In Carter v. SSC Odin Operating, 237 Ill. 2d 30 (2010), the Illinois Supreme Court held that the Federal Arbitration Act, 9 U.S.C. 2, preempted the the anti waiver provisions of the Nursing Home Care Act, 210 ILCS 45/3-606 and 3-607. This meant that valid arbitration agreements could not be overridden by Illinois State law.
The Illinois Supreme Court clarified their 2010 decision in Carter v. SSC Odin Operating, 2012 IL 113204, 976 N.E. 2d 344 (2012). In this decision the court held that arbitration agreements contained in contracts for nursing home care signed by a resident do not apply in wrongful death actions. The Supreme Court stated:
A survival action allows for recovery of damages for injuries sustained by the deceased up to the time of death;
a wrongful death action covers the time after the death and addresses the injury suffered by the next of kin due
the loss of the deceased rather than the injuries suffered by the deceased party prior to death. Carter, 976 N.E. 2d 344, 354.
The court held: “…that plaintiff as a non party to the arbitration agreement, cannot be compelled to arbitrate a wrongful death claim that does not belong to the decedent.” Carter, 976 N.E. 2d 344, 360.
On April 26, 2018 the Third District Appellate Court held that a valid arbitration agreement in a nursing home action sounding in survival and wrongful death, can not stay the wrongful death claim from proceeding in the trial court pursuant to the Uniform Arbitration Act, 710 ILCS 5/2(d). see Messmore v. Silvis Operations, 2018 IL App. 17078. The effect of this of this decision is that the survival action is subject to arbitration and the order to arbitrate cannot compel the trial court to stay the wrongful death action, atleast as to proximate cause and damages. However, since the the negligence in the survival action and the wrongful death action are the same, the issue of negligence must be determined at arbitration. Should you, a family member or a friend require the legal services of experienced nursing home attorney, feel free to contact Edmund Scanlan at 877-494-1309 or 312-422-0343.