By: Jason G. Schutte
Overview of case.
Plaintiff filed a lawsuit against Defendant, Bickford Senior Living, asserting violations of the Nursing Home Care Act and various common law claims in Fiala v. Bickford Senior Living Group, LLC. Bickford filed a Motion to Dismiss the Complaint and enforce the arbitration agreement included in the assisted-living establishment contract. Susan Kahanic, plaintiff’s daughter and his health-care power of attorney, executed the contract on plaintiff’s behalf. The trial court denied the Bickford’s motion.2
Facts of the Case:
Upon admission to Bickford’s facility, Kahanic as attorney-in-fact executed the establishment contract which set forth the obligations and duties of the plaintiff and Bickford while plaintiff resided at the facility. The contract obligated Bickford to provide numerous services, including meals, snacks, housekeeping and laundry. Additionally, services available to the plaintiff included oversight of medication, assistance in bathing, dressing, ambulation and transfer.3
The contract also included a “Binding Arbitration Provision” which provided that “Any controversy, claim or dispute arising out of or relating to this Establishment Contract or breach thereof, shall be settled by arbitration administered by the American Arbitration Association …” The arbitration provision was an integral part of the establishment contract. A prospective resident’s agreement to the arbitration provision was required in order to secure admission to Bickford’s facility.4
Scope of the Arbitration Provision
Illinois law states that parties are only bound to arbitrate those issues that they have clearly agreed to arbitrate.5 A “generic” arbitration clause provides that all claims arising out of or relating to the contract at issue shall be decided at arbitration; whereas, an arbitration clause stating “arising out of the agreement” (or a variation thereof), but fails to contain the phrase “or relating to [the agreement]” (or a variation thereof), is narrower in scope and any arbitration should be limited to the specific terms of the contract or agreement containing the more limited arbitration clause.6
The trial court in Fiala found that the language of the arbitration clause in the contract at issue was not a generic clause. Hence, “the arbitration provision was limited narrowly to the terms of the establishment contract.”7 The Fiala Appellate Court found that the language within the arbitration provision, specifically “any claim … arising out of or relating to” in the establishment contract indicated that the arbitration provision was generic and should be construed broadly.8
The Fiala Appellate Court then analyzed the provisions of the establishment contract to determine if the allegations of the Complaint “arose out of or were related to” the establishment contract. The court noted that the plaintiff’s allegations against Bickford asserted that Bickford administered plaintiff medications that were not included in his medical chart. The establishment contract contained provisions stating “oversight/supervision of medications” were available to plaintiff; also, that a resident “may receive …assistance with medication.”9
The court found that the underpinnings of the plaintiff’s claims arose out of and were related to the establishment contract since they were services within contemplation of the establishment contract. Hence, the arbitration clause language encompassed the issues included in the plaintiff’s complaint.
Authority of Healthcare Power of Attorney to Enter into Establishment Contract
The Fiala court next examined whether Kahanic, as plaintiff’s healthcare power of attorney, had authority to execute the contract containing the arbitration provision. The court noted that the power of attorney law is intended “to allow an individual to designate an agent to stand in his or her shoes and to make health-care decisions in the event of disability” to the same extent as if the individual made them.10 Further, the Power of Attorney Law provides the agent under the health-care power of attorney agreement authority to make any type of healthcare decision, including admitting the principal into an assisted living facility such as Bickford.11
The Appellate Court in Fiala also noted that Kahanic and the plaintiff executed a statutory short form power of attorney from the Illinois Probate Act. The court cited specific sections of §45/4-10(c), part of the statutory form, authorizes the agent to “make any and all health care decisions on behalf of the principal” and to “sign and deliver all instruments, negotiate and enter into all agreements and do all other acts reasonably necessary to implement the exercise of the powers granted” by the health-care power of attorney. This authority extends to making decisions on medical care, admitting and discharging the principal from care facility and contracting with providers for services.12 The Power of Attorney Law expressly includes the power to enter into necessary contracts for the provision of health care services.13
In the Fiala case, Kahanic, as plaintiff’s agent, entered into an agreement for Bickford to provide living quarters and health care related services for the plaintiff. The agreement included the arbitration provision which is an integral part of the contract. Acceptance of the arbitration provision was a prerequisite to admission into Bickford’s facility. Under the power of attorney statute, Kahanic had authority to bind the plaintiff to the establishment contract, including the arbitration provision.14
The court further noted that heath care powers of attorney are generally limited in scope to matters involving the principal’s health care and that such an agent has no authority over the principal’s property or financial matters. After analyzing cases from foreign courts, the Fiala court accepted the principle that “if an arbitration provision is required for admission to a care facility then it becomes part and parcel of the health-care decision to admit the patient to the facility.”15
In this case, consent to arbitration was integral to admission into Bickford’s facility. Hence the health care power of attorney authorized Kahanic to bind plaintiff to the arbitration provision because it was part of the establishment contract that gained plaintiff admission into Bickford’s facility which provided health care services.16
Enforceability Under the Federal Arbitration Act
The Fiala court next analyzed whether the plaintiff’s causes of action under the Illinois Nursing Home Care Act could be arbitrated pursuant to the arbitration clause of the establishment contract. The court noted that §3-606 of the Act states that “[a]ny waiver by a resident or his legal representative of the right to commence an action under Sections 3-601 through 3-607 … shall be null and void and without legal effect.”17 Further, “any party to an action pursuant to 3-601 through 3-607 shall be entitled to a trial by jury and any waiver of the right to a trial by jury …shall be null and void…”18
The Fiala court noted that sections 3-606 and 3-607 of the Nursing Home Care Act conflicted with and were preempted by the Federal Arbitration Act.19 Further, the Illinois Supreme Court had “definitively held that the Nursing Home Care Act’s prohibition of arbitration agreements between a nursing home and a resident was precluded by the Federal Arbitration Act.”20
Effect of Case:
A healthcare power of attorney has authority to bind a long term care facility resident to arbitrate claims that the resident may hold against the long term care facility, provided certain prerequisites are met. First, the individual signing the admission contract with the facility must be operating under a valid power of attorney for the anticipated resident. Second, the arbitration provision of the admission contract must be sufficiently broad to include the issues and causes of action complained of by the plaintiff. Finally, the arbitration contract must be an integral portion of the admission contract where agreement to arbitration is a requirement for entry into the facility.
1 Fiala v. Bickford Senior Living Group, LLC, 2015 Il App (2d) 141160
2 Fiala at ¶¶1-6.
3 Fiala at ¶ 7.
4 Fiala at ¶ 8.
5 Keeley & Sons, Inc. v. Zurch American Insurance Co., 409 Ill.App. 3d 515, 520 (2011);
6 Fiala at ¶19, internal citation omitted.
7 Fiala at ¶ 13.
8 Fiala at 21.
9 Fiala at 22.
10 Fiala at ¶ 30, discussing 755 ILCS 45/4-1 (2012).
11 Fiala at ¶ 31
12 Fiala at ¶ 33, 755 ILCS 45/4-10(c)(1)-(3)(2012)
13 Fiala at ¶ 35
14 Fiala at ¶ 39
15 Fiala at ¶ 45
16 Fiala at ¶45
17 Fiala at ¶52, 210 ILCS 45/3-606 (2012)
18 Fiala at ¶52, 210 ILCS 45/3-607 (2012)
19 Fiala at ¶53
20 Fiala at ¶53, Carter v. SSC Odin Operating Company, 237 Ill.2d 30, 47, 50
By: Jason G. Schutte
Workers compensation laws have developed in most major countries and in the states of the United States. Similarly, Illinois has a workers compensation system, which is governed by the Illinois Workers Compensation Commission, an administrative body.
The primary purpose of workers compensation is to provide employees of the state of Illinois with prompt and definite compensation and remedies for injuries or death suffered by employees in the course of their employment. An added goal of workers compensation is that the cost of work related injuries be borne by the industry itself, rather than the individual members of the workforce.
The Illinois Supreme Court discussed the basis of workers compensation, in Kelsay v. Motorola, Inc., 74 Ill.2d 172 (1978). The court stated that the Workers Compensation Act:
The overarching goal of the Illinois Workers Compensation law is to provide prompt, sure compensation to employees at a fixed cost to employers.
Contact the attorneys at Koepke & Hiltabrand with any questions you may have regarding workers compensation claims.
The Illinois Workers Compensation laws have provided some very precise guidelines for certain types of injuries. These laws indicate that the loss of certain body parts are valued in a specific number of weeks of “average weekly wage”. These awards are detailed below.
For example, if an employee loses a thumb in a work related injury after 2/1/06, he is entitled to an award of 76 weeks of his average weekly wage. Hence, if the average weekly wage for this employee was $100.00, he would be entitled to an award of $7600.00 for the loss of his thumb.
Parts of Body pre 2/1/06 post 2/1/06
Thumb: 70 weeks 76 week
Index Finger: 40 weeks 43 weeks
Middle Finger: 35 weeks 38 weeks
Ring Finger: 25 weeks 27 weeks
Little Finger 20 Weeks 22 Weeks
Great Toe: 35 weeks 38 weeks
Each other toe: 12 weeks 13 weeks
(The loss of the first or distal phalanx of the thumb or any finger or toe is = to ½ of the above; the loss of more than one phalanx is considered 100% loss of above)
Hand: 190 weeks 205 weeks
(190 weeks if the accidental injury occurs on or after 6/28/11 and if the injury involves carpal tunnel, in which case the PPD shall not exceed 15% loss of hand except for cause shown by clear and convincing evidence)
(The loss of 2 or more digits or 1 or more phalanges may be compensated by partial loss of hand; loss of use of 4 digits in same hand shall constitute complete loss of hand)
Arm: 235 weeks 253 weeks
Foot: 155 weeks 167 weeks
Leg: 200 weeks 215 weeks
Plaintiff’s simple allegation that medications were administered to plaintiff without plaintiff’s consent did not require 2-622 merit report as allegations did not present healing art malpractice allegations and were not beyond the ken of layperson’s understanding.
In Fiala v. Bickford Senior Living Group, LLC, a resident (Fiala) of a long term care facility (Bickford) brought a lawsuit against a doctor who prescribed drugs to the resident while at Bickford.[i] The lawsuit asserted claims of medical battery against the doctor as well as other claims against the doctor and facility. Defendant doctor filed a motion to dismiss the medical battery count of the lawsuit on the basis that the plaintiff failed to file a required health-professional’s report pursuant to 735 ILCS 5/2-622.[ii]
Plaintiff resided at Bickford from October 2012 through August of 2013. Plaintiff was confined to a wheelchair when admitted and carried diagnosis of Lewy Body dementia. The plaintiff’s medical chart indicated that his children held medical powers of attorney and that no medications were to be administered to plaintiff without prior consent. Further, the use of Paxil was prohibited.[iii] Paxil was eventually administered at Bickford.[iv]
The plaintiff alleged that defendant doctor prescribed the drugs administered to plaintiff at Bickford for use at night. He never met or consulted with plaintiff at any time before, during or after his stay at Bickford. Neither plaintiff’s wife nor children were given the opportunity to discuss or consult with defendant regarding the prescriptions. Plaintiff asserted in his Complaint that the use of Paxil and other drugs diminished the quality of his life and caused him physical and emotional problems.[v]
Plaintiff specifically alleged within his medical battery cause of action that neither he nor his authorized representatives consented to the prescription or administration of various medications. Plaintiff further asserted that the administration of the medications was contrary to the expressed desires of the plaintiff and that consent of plaintiff or his representatives was required prior to the administration of these medications, as indicated in his chart. Plaintiff also asserted that the administration of these medications constituted an unwanted touching of the plaintiff’s person.[vi]
A battery is an intentional tort of unauthorized touching of the person of another.[vii] The main focus in a medical battery case focuses on the plaintiff’s consent. In a medical battery case, a plaintiff may recover if they establish “a total lack of consent to the procedure performed, that the treatment was contrary to the patient’s will, or that the treatment was a substantial variance with the consent granted.”[viii]
Section 2-622 requires the plaintiff to file an Affidavit of Merit with the Complaint that states that the affiant has consulted with a health professional, who, after reviewing the medical records and other relevant material, has determined in a written report that there is a reasonable and meritorious cause for filing the action.[ix] This section requires the plaintiff to attach a copy of the report to the Affidavit, and the medical report must identify the plaintiff and the reasons the medical professional believes there to be a reasonable and meritorious cause of action. The Affidavit and report are required in any cause of action by reason of medical, hospital or other healing art malpractice.[x]
Defendant asserted in Fiala that a medical-battery claim based on lack of informed consent falls within medical-malpractice claims, hence, requiring compliance with section 2-622.
The Fiala court noted that it must look past a party’s characterization of their claim and examine the underlying allegations and facts to determine whether they raise issues requiring expertise to aid in the understanding of matters beyond the ken of laypersons, thus invoking the requirements of 2-622.[xi]
The court found that when taken as true, the plaintiff’s Complaint successfully pleaded a complete lack of consent to the administration of medications.[xii] The court cited prior case law which established that in “a medical battery case, an injured party can recover [for medical battery] by establishing that (1) there was no consent to the medical treatment performed.”[xiii]
The plaintiff alleged that he refused the administration of all medication without prior consent, thereby pleading medical battery. Plaintiff did not allege any incorrect or inappropriate medication was prescribed and administered. Further, plaintiff did not assert any deviation from the appropriate medical standards based upon healing arts malpractice. In light of these facts and allegations, the Fiala court did not find any basis to apply section 2-622 to the facts of that case.[xiv]
The court made a notable distinction between the case at bar and McDonald v. Lipov. In McDonald, the plaintiff alleged that the subject treatment substantially deviated from the consent granted.[xv] The court emphasized that the substantial deviation allegation sounded more in medical or healing arts malpractice and required a medical expert to opine whether the treatment performed fell within the scope of the consent provided. The facts of Fiala were simpler in that there was a complete lack of consent alleged by the plaintiff, which is a much less complex issue.[xvi]
The plaintiff’s allegations of total lack of consent, rather than a deviation from consent given, kept the plaintiff’s medical battery cause of action outside the scope of section 2-622.[xvii]
Practical effect of Case:
The simplicity of the medical battery allegations exempted this particular claim from the requirements of section 2-622. The plaintiff’s allegations simply stated that a particular thing should not be done without consent [administration of medication/Paxil] and this particular thing was done, without consent. The allegations of wrongdoing had nothing to do with medical diagnosis or judgment. The plaintiff only asserted that he was provided the medication when he should not have been.
Had the plaintiff asserted that the medication was not required for the conditions presented by plaintiff or that the medication was contraindicated in some way other than simply lack of consent, rule 2-622 likely would have been invoked and an expert report required.
Attorneys, claims adjusters and risk management professionals should pay close attention to the facts of the case and the allegations within the plaintiff’s Complaint. If the allegations involve concerns of medical judgment and/or failure to meet the standard of care, the plaintiff’s claim almost certainly will require a 2-622 merit report. Failure of the plaintiff to file such a report can lead to dismissal of their claim. If the plaintiff’s claim is a simple medical batter claim, similar to Fiala, the plaintiff may be able to proceed without such a report.
[i] Fiala v. Bickford Senior Living Group, LLC, 2015 IL App (2d) 150067
[ii] Fiala at ¶14.
[iii] Fiala ¶6;
[iv] Fiala ¶8;
[v] Fiala ¶9;
[vi] Fiala ¶10;
[vii] Fiala ¶ 20;
[viii] Fiala ¶20 citing Curtis v. Jaskey, 326 Ill.App.3d 90 (2001);
[ix] 735 ILCS 5/2-622(a)(1);
[xi] Fiala ¶29;
[xii] Fiala ¶32;
[xiii] Fiala ¶ 32, citing McDonald v. Lipov, et al., 2014 IL App (2d) 130401;
[xiv] Fiala ¶ 33;
[xv] Fiala ¶34, citing McDonald;
[xvi] Fiala ¶34;
[xvii] Fiala ¶35.