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.

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.

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.