May 24, 2024

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.


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