June 17, 2020 Practice Points

Court Denies Arbitration of Nursing Home Wrongful Death and Survival Claims

An Illinois appellate affirmed the denial due to the decedent’s lack of mental capacity.

By Tony Shapiro

An Illinois appellate court has affirmed the denial of a motion to compel arbitration of wrongful death and survival act claims due to the decedent’s lack of mental capacity. Rigoli v. Manor Care of Oak Lawn, 2019 IL App (1st Dist.) 191635.  

In Rigoli, the executor of an estate brought wrongful death and survival act claims against a nursing home arising from a resident’s death. The nursing home moved to compel arbitration based on an arbitration agreement made when the decedent entered the nursing home. The trial court compelled arbitration of the survival act claim, but not the wrongful death claim. The executor moved for reconsideration as to the survival act claim, and the trial court agreed that arbitration should not be compelled with regard to either claim.      

The trial court initially stated that “the plaintiff . . . in effect is asking the court to take judicial notice of some medical conditions that are referenced in those documents and come to the conclusion that they establish factually that there’s some question about the individual’s cognitive deficiencies.” Rigoli, 2019 Ill App (1st) at ¶ 6. The court explained that “what I need is some sort of facts or affidavits or testimony admissible at trial to say, ‘[i]n my professional opinion looking at the kind of medications this person had she could not have given [consent].” Id. Reacting to the court’s statements, the executor moved for reconsideration and filed an affidavit from a physician stating, among other things, “[g]iven the number of medications, her overall debilitated mental condition, and her diagnosis of cognitive communication deficit [,] it is unlikely that [Rigoli] would have understood the contents of any legal documents or would have understood the circumstances surrounding her admission.” Id at ¶ 8. 

With this amended record, the trial court granted the motion to reconsider and explained that although the doctor’s affidavit filed by executor was tardy, it supported the executor’s original assertions regarding Rigoli’s mental capacity, and thus, raised a question whether Rigoli was competent to give informed consent to the agreement. Id. at ¶ 9. The nursing home appealed arguing that the trial court erred when it allowed the executor to file the doctor’s affidavit and that the affidavit was insufficient because it was not based on the doctor’s personal knowledge.  Id at ¶ 24

The appellate court stated, “[A] court has discretion to allow supplemental documents to be filed along with a motion for reconsideration.” Id at ¶ 18. It agreed with the nursing home that the legal standard applicable to allowing new evidence to be presented in a motion to reconsider is the same as the standard for reopening the proofs after trial. This standard required the court to consider

whether the failure to introduce the evidence occurred because of inadvertence or calculated risk, whether the adverse party will be surprised or unfairly prejudiced by the new evidence, whether the new evidence is of the utmost importance to the movant’s case, and whether any cogent reasons exist to justify denying the request.

Id.

The appellate court approved the trial court’s consideration of this evidence, because there was no indication that the executor had any strategic purpose for withholding expert opinion evidence interpreting the medical records and the executor’s failure to submit such evidence sooner “was not due to inadvertence . . .” The court reasoned that executor’s decision to withhold expert opinion evidence resulted from executor’s belief that such evidence was not essential to making out a prima facie case, and did not prejudice the defendant who could still submit evidence that the decedent was competent at the time she signed the arbitration agreement. 

The nursing home also argued that the lower trial court should have granted its motion to strike the doctor’s affidavit because the affidavit was not based on the doctor’s personal knowledge of the patient. The nursing home contended that the doctor could not testify competently to the statements made in his affidavit because he never interviewed or examined the decedent and had no personal knowledge” of her mental condition; rather, he relied on “sheer supposition” about the effects of the decedent’s medications and diagnosis. Rigoli, at ¶ 24. 

The appellate court rejected these arguments. It ruled that an expert may opine on a person’s mental condition even if the expert never had direct contact with that person and that Illinois law does not require a personal interview for the expert opinion of a doctor to be admissible. Here, the doctor based his opinion on medical records and his knowledge of the side effects of the medications that the decedent was taking at the time she signed the arbitration agreement. Therefore, the trial court did not err in denying the motion to strike the affidavit. Id

Tony Shapiro is a 2020 J.D. candidate at DePaul University College of Law in Chicago, Illinois.


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