June 1, 2023

Punitive Damages for Wrongful Death Not Available Under the Illinois Nursing Home Act

The Illinois Supreme Court recently addressed the question of whether punitive damages for willful and wanton violations of the Illinois Nursing Home Act will survive the death of the deceased. This question is of particular importance to anyone with a family member residing in a nursing home, as it addresses the type of damages that may be recovered by the family as the result of negligent nursing home care, resulting in death.

Punitive damages are damages awarded by a court to the plaintiff and against a defendant, as a punishment to redress an egregious wrong committed by the defendant. Punitive damages seek to punish a wrongdoing defendant, whereas the more commonly awarded compensatory damages attempt to make an injured party (plaintiff) whole by returning them to the position they had prior to the wrongdoing alleged.

In the present case, the decedent died as a resident at the defendant Rockford nursing home.  The complaint filed by the decedent’s estate alleged that the defendant nursing home had acted with conscious and reckless disregard for the decedent’s health and safety and that its actions were willful and wanton. The defendant nursing home preemptively moved to dismiss an award of punitive damages, arguing that punitive damages do not survive the death of the decedent, under Illinois law. On appeal, the Supreme Court ruled that, generally, an award of punitive damages does not survive death, unless expressly noted otherwise by statute. The Illinois Nursing Home Act does not expressly allow for punitive damages and so it was held that punitive damages were not permissible in this case.

Although this decision addressed damages available under the Illinois Nursing Home Act, specifically, it also reaffirmed earlier Illinois case law barring punitive damages in wrongful death actions, generally. In Marston v. Walgreen, 389 Ill.App.3d 337 (2009), for example, the Illinois Appellate Court also held that “actions for punitive damages will not survive the death of the original plaintiff unless the legislature specifically authorizes such an action or there are strong equitable reasons for allowing the recovery of punitive damages.” The court interpreted “very strong equitable reasons” to mean “instances in which a party would otherwise be left without any remedy.”

Paradoxically, punitive damages are available to those merely injured at a nursing home facility, so long as the injured party does not die as a result of the injuries, leading many to grimly conclude that it is cheaper to kill, than to injure, under Illinois law.


Millions given to family in Wrongful-death suit

A $4.5 million settlement was reached in Estate of Krzysztof Bialas v. Advocate Christ Hospital and Medical Center. A 42-year old warehouse worker fractured his pelvis at work, arrived at the Advocate Christ Hospital and died four days later because the hospital staff did not recognize he had a ruptured bladder.  He had been operating a forklift when he injured his pelvis.  According the plaintiff’s counsel, the pelvis fracture was not severe and the hospital was not planning on performing surgery.  From the onset, the nurses allegedly reported that the victim had symptoms that normally necessitating a CT scan. As procedure dictated, the CT scan was performed.  The family claims that results were misinterpreted as negative.

What everyone missed was a bladder laceration that could have been treated very early on with the insertion of a catheter.  A catheter was inserted the next day, but it was already too late.  Because of the bladder laceration, the victim suffered a severe infection, which developed into sepsis. Sepsis can be a potentially deadly medical condition when combined with an infection which causes a whole-body inflammatory state, also called systemic inflammatory response syndrome (SIRS).  In this case, sepsis led to multi-system organ failure and the ultimately death.

Judge Drella C. Savage of the Circuit Court of the Cook County approved the settlement because it was fair and reasonable.  The defense approached the plaintiff early in the case and stated they would like to proceed with mediation.  Plaintiff’s counsel acknowledged that the defense approaching with meaningful negotiations was critical to an early settlement.  This helped both sides save litigation costs and emotional turmoil that the plaintiff’s family would have been put through. At the very least, the large settlement supports the victim’s family and allows his children to attend college.




Doctor on the run. . .

Weinberger disappeared while on vacation in Greece in 2004, as the accusations against him mounted. He became the subject of an international dragnet and authorities eventually tracked him down as he camped on an Italian mountainside in December 2009.

Dr. Mark Weinberger was on the run for five years after failing to correctly diagnose a female patient and being accused of health care fraud. He did not diagnose her with lung cancer and she died in 2004. Weinberger subsequently went on vacation to Greece in 2004 where he disappeared. Both Weinberger and a physician’s assistant were sued for negligence, which resulted in the patient’s death.

The claim is that Weinberger and his physician’s assistant did not comply with the standard of care required when treating a patient. Prior to trial, a state medical review panel unanimously determined the same. The victim’s attorney argues that her lung cancer was foreseeable and preventable.

At the same time, Weinberger is also being sentenced on 22 counts of health-care fraud. He billed two-dozen patients’ insurance companies for surgical procedures that never took place. Weinberger used this money to finance a Chicago condominium, daily limo rides to his office and a yacht. Not only did he bill insurance companies for surgeries that didn’t take place, but he also performed unnecessary surgeries on his patients.

Weinberger performed one of these unnecessary surgeries on the patient in this case—a sinus surgery. Testimony from Dr. Dennis Han, an otolaryngologist testified at trial that Weinberger was “more than qualified to pick up on this cancer on the first visit.” The defense attorney argued that Weinberger only recommended surgery for the patient after giving her antibiotics, which were not successful.

Facing a federal lawsuit filed by his malpractice insurance provider, along with more than 350 state medical malpractice suits, Weinberger sits in jail while this trial takes place. The insurance provider alleges Weinberger breached his contract by becoming an international fugitive. Once the breach occurred, Weinberger became liable for the hundreds of malpractice cases.

Attorney Loses Fee in Settlement

In July of 2008 the plaintiff’s son was killed in a car accident.  The victim’s parents settled for $100,000, the other driver’s insurance company policy limit.  Five months after the incident, the victim’s girlfriend gave birth to a girl and a DNA test proved that the victim was the father.   The Judge awarded $27,426 to the victim’s parents and $13,041 for reimbursement of funeral expenses.  The attorney for the parents received $22,222. The newborn child was awarded $27,426. The child’s mother appealed the award, claiming that the child is the only “next of kin” and the parents of the victim should not get any money.  She also argued that the attorney fee was improper and that the parents should not have received a funeral reimbursement.

The appellate court agreed with the baby’s mother.  Following the Illinois wrongful death act, the victim’s only surviving next of kin, was the child. The panel stated that the parents’ share, funeral reimbursement and settlement payment, be given to the child ($40,467).  The appeals panel also stated that the parents’ attorney should not have argued that the parents were entitled to money once she was aware of the child.  The child was awarded the $22,222 attorney fee and $760 in legal expenses.  The panel did not accept the mother’s request that her attorney should be awarded $8,200 in fees and an additional $920 in costs.

The attorney for the parents felt that the trial court was in the best position to award the money, and she claims that the victim supported his parents and they were dependent upon him financially.  She feels that the law should be changed to factor in these types of situations. The full text of the case is available at, Judith Baez, etc. v. Garrett Rosenberg, etc., No. 1-10-0090.


Screening Wrongful Death Actions on Behalf of an Unborn Child

Wrongful death cases rely heavily on expert testimony (thus, costly to litigate), and as an attorney, it is important to screen potential cases before you and your client expend considerable time and money. In wrongful death actions brought on behalf of an unborn child, an initial focus on the unborn child’s viability at the time of expiration is, as an initial matter, a relatively easy way to evaluate the plaintiff’s potential recovery.

In Green v. Smith, the Illinois Supreme Court held that a wrongful death action brought on behalf of an unborn child requires a finding of viability. 377 N.E.2d 37 (Ill. 1978). The term “viability” has been generally interpreted in both the legal and medical community to mean that the unborn child would have been capable of surviving independently of the mother at the time of expiration. In Illinois, viability is a factual determination that depends on numerous factors, including the length of pregnancy, the health of the mother and child, the weight and race of the child, and the availability of life-sustaining technology.

Illinois courts have stated that because a finding of viability depends on multiple factors, the gestation period is not determinative in itself. However, the length of gestation in combination with health statistics can be a valuable tool for an attorney in determining whether a wrongful death action has a reasonable chance of success. There will be some point in any given pregnancy, where an unborn child would simply not survive outside the womb. The earliest baby to have ever survived premature birth was born at 21 weeks and 6 days. Even this was widely considered a miracle. A child born at 20 weeks is generally thought to have a less than 1% chance of survival, absent any other complications. Given the odds of survival, it is safe to say that a wrongful death action brought on behalf of an unborn child of less than 21 weeks gestation would be an uphill battle, and likely too risky considering the costs of litigation.

An unborn child’s viability increases dramatically with every week of gestation after the 22nd week of pregnancy. Viability at that point would depend on many factors and would require a more in depth analysis.