James Fitzgerald Smith
James Fitzgerald Smith

A state appeals panel last month upheld a record-breaking $4.1 million Cook County jury verdict against a Bartlett retirement community.

The 1st District Appellate Court found that Clare Oaks — also known as Assisi at Clare Oaks and Assisi Healthcare Center at Clare Oaks — is on the hook for the plaintiff estate’s attorney fees and costs.

The estate’s contingency fee was contractually set at one-third the award amount.

The appellate court itemized $250,000 of the award as damages under the Wrongful Death Act, leaving the remaining balance of recoverable damages under the Nursing Home Act at $3.86 million. One third of that is just over $1.28 million.

Additionally, the trial court totaled legal costs for experts, exhibits and other items at $147,000.

Rather than the plaintiff’s attorneys getting paid that amount through the awarded money itself, Clare Oaks owes the fees and costs in addition to the $4.1 million.

Trendel died in March 2015, four years after suffering a stroke after staff at Clare Oaks took her off Coumadin, a blood-thinning drug.

The July 2017 verdict awarded to the Trendel estate was and remains the highest reported jury verdict against a senior housing facility, according to John L. Kirkton, editor of Jury Verdict Reporter, a Law Bulletin Media publication.

The Nursing Home Care Act specifically requires senior care licensees to pay “the actual damages and costs and attorney’s fees to a faculty resident whose rights … are violated.” But the appellate court found the statute does not lay out a methodology a trial court has to use to calculate the fees.

“Nothing prohibits a plaintiff, in seeking fees under a fee-shifting statute, from requesting fees in an amount equal to the contingent fee that the plaintiff has contractually agreed to pay his or her attorney for the attorney’s work on the case and establishing that such amount as reasonable,” Justice James Fitzgerald Smith wrote in the June 28 unpublished order.

The panel found the estate can recover from Clare Oaks the cost of litigation. Clare Oaks argued that, under the Illinois Code of Civil Procedure, the estate should have only been able to recover its court costs, such as filing fees.

The panel sided with the estate, finding the purpose of the Nursing Home Care Act is to encourage litigation, which it does by shifting plaintiffs’ costs to senior care facilities who violate the act.

As a result, the costs covered under the nursing home law are broader than what would typically be covered in other kinds of litigation, the panel found.

“The expectation is that the prospect of litigation, in which the nursing home will be responsible not just for a prevailing resident’s actual damages (which may be modest) but for their attorney fees and costs as well, will have the effect of encouraging nursing homes to comply with the Nursing Home Care Act and decrease future instances where residents’ rights are violated,” Smith wrote.

Margaret P. Battersby Black, a partner at Levin & Perconti who represented the estate at trial and on appeal, said the Nursing Home Care Act “was created because the legislature wanted to encourage lawyers to take these cases.”

Battersby Black said the estate plans to file a motion to have the Rule 23 order entered as a published, precedent-creating opinion.

Clare Oaks was represented by Karen Kies DeGrand and Meagan P. VanderWeele of Donohue Brown Mathewson & Smyth LLC; Matthew R. Henderson and Carson R. Griffis of Hinshaw & Culbertson LLP; and Michael L. Vittori and Michael E. Zidek of Wilson Elser Moskowitz Edelman & Dicker LLP. They did not return requests for comment.

The Trendel estate was also represented by Steven M. Levin, Susan L. Novosad and Daniel A. Goldfaden of Levin & Perconti, and sole practitioner Michael W. Rathsack.

Justices Nathaniel R. Howse Jr. and Cynthia Y. Cobbs concurred with the Rule 23 order.

The case is Susan R. Grauer, et al., v. Clare Oaks, et al., 2019 IL App (1st) 180835-U.