Friday Feature: Litigation, Arbitration, and COVID

TGIF! I live and have an office in Illinois, though my part of the state differs dramatically from the Illinois most people recognize. I live and work in a small town (Galena) in an area known as the driftless region. The driftless region is “original” terra-firma, where the glaciers did not touch. This area is in the far northwest corner of the state, Mississippi river country (Tri-State area – Iowa, Wisconsin, Illinois).

The prior context is important for this post as the focus is on a litigation event, a case involving a wrongful death claim, due to COVID. The case and the decision, that is a bit baffling and troublesome for SNFs, is in Illinois. The court involved in the decision is the 4th Circuit, Appellate Court, located in Springfield, the State’s capitol city.

The core of the case involves an elderly woman and her daughter. The elderly woman died after being hospitalized due to COVID. The daughter filed a negligence and wanton disregard suit against the nursing home where her mother lived. The suit alleges violations of the Illinois Wrongful Death Act and the Survival Act. The Wrongful Death Act can be viewed here: The Survival Act basically provides surviving members of someone who died allegedly via a wrongful death event the right to pursue a claim on behalf of the deceased.

The facility and its ownership group filed a motion to compel arbitration for the claim as the resident, by virtue of the daughter/POA, signed an admission agreement containing a provision for arbitration in the event of a dispute between the parties, such as in this case – alleged negligence.

Initially, the circuit court in the county where the suit was filed, agreed with the SNF, sending the case to arbitration. On appeal, the Appellate Court ruled that the arbitration clause was not binding to the daughter/POA as she was not directly, a party to the agreement, merely a representative singing the agreement on behalf of the resident. The language the decision is as follows: “While it is true that (daughter/POA) signed the admission and arbitration agreements, she did so only in a representative capacity for (the resident). There is nothing in the record to show that any arbitration agreement was ever formed between defendants and decedent’s next of kin in an individual capacity.”

A justice in dissent wrote the following: “(Daughter/POA) does not dispute the arbitration agreement contains a broad delegation clause. As such, all matters of arbitrability, including what claims are bound by the arbitration agreement… are questions for the arbitrator to decide.”

Cases like this are emerging all over the nation and likewise, decisions are similarly coming forward that begin to shed light on ultimately, how COVID wrongful death litigation may resolve. The difficulty for SNFs such as in this case, (is) the law was never quite clear about arbitration clauses, state statutes/laws, and litigation for events such as COVID infections.  Generally, across the nation, the view on culpability for COVID infection, including complications thereto, has been a matter of no specific fault.  As additional light comes forward on infection prevention and mitigation measures via the CDC (including vaccination) being basically, useless and ineffective in stopping the spread of COVID, arguments around a facility being negligent in preventing COVID infections, if common measures (thought relevant at the time) were in-use, should be moot. 

For SNFs, my takeaways are not much different than I have always advised regarding arbitration clauses in admission agreements.

  1. The arbitration clause is a last stand measure, but it is not a preventative measure.  Arbitration is also expensive, so the goal is to deliver exceptional care, be engaged with residents and families, be transparent about negative outcomes and why (they happen, even with best practice interventions in-place) and communicate, communicate, communicate.
  2. Be exceptionally clear about the legal relationships among surrogates.  Know the applicable state laws regarding POAs and their duties/responsibilities and make certain that those professing POA status are, and that the ward (resident) is in fact, incapable of acting.  Don’t have the wrong person under the wrong authority, sign documents or consent to treatment, etc.
  3. Have a really knowledgeable attorney with experience, review facility admission and legal paperwork, frequently – no less than annually.  Provide proper training to staff involved in the admission process, on who can sign what and how agreements should be handled.  Agreements must be simple and need to be properly crafted to produce readability and references backed by policies or law, for the signer to properly understand the Agreement. Arbitration clauses, poorly done, are more problem than they are worth.  Prevention is always about prior, proper, preparation.



Leave a Comment