Nursing Home Motion 10 - Plaintiff's Response to Defendant's 615 Motion

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Plaintiff's Response to Motion to Dismiss

Attorneys for Plaintiffs, Blumberg & Dore, 33 N. Dearborn St. - Suite 1410, Chicago, Ill. 60602, (312) 368-8669.

NOW COMES Plaintiff, PHYLLIS KREIDLER, ind. & as Special Administrator/Special Representative of the Estate of LAWRENCE KREIDLER, Deceased by and through her attorneys, BLUMBERG & DORE, and in response to the motion to dismiss pursuant to 735 ILCS 5/2-615 of the defendant, MARIANJOY REHABILITATION HOSPITAL & CLINICS, and in support thereof, states as follows:

1. Defendant, in its argument for dismissal of Count I & IV of the plaintiff's Amended Complaint at Law (as against that defendant only), relied solely on its interpretation of the definition of “owner” as used in the Nursing Home Care Act. Concluding that the Amended Complaint does not sufficiently identify defendant, MARIANJOY REHABILITATION HOSPITAL & CLINIC, as an owner within the purview of the Nursing Home Care Act, defendant argues for dismissal from any responsibility for the underlying injuries of Lawrence Kreidler, Deceased, within the purview of the Nursing Home Care Act. Plaintiff maintains that defendant's argument is not well-founded in fact or in law and should therefore be denied.

Standard of Review

2. In considering a motion to dismiss, the Court must accept as true all well pleaded facts and any reasonable inferences therefrom. ( Dvorak vs. Village of Wilmette, 249 Ill. App. 3d 275, 188 Ill.Dec. 404 (1st Dist. 1993). Upon such a motion, Courts act to construe the pleading liberally with a view to doing substantial justice between the parties. As such, no pleading is defective in substance if it contains facts which reasonably inform the opposing party of the nature of the charge to be answered. ( Disk Jockey Lee Network Ltd. vs. Ameritech Pub of Ill., 230 Ill. App. 3d 908, 172 Ill. Dec. 725 (1st Dist. 1992). Also, a motion to dismiss admits all well-pleaded facts in the complaint and attacks only the legal sufficiency of those facts. ( Taradish vs. Adelet/Scott-Fetzer Co., 260 Ill. App. 3d 313 195 Ill. Dec. 420 (1st Dist. 1993). Since such a motion only attacks the complaints legal sufficiency, it does not and should not raise affirmative factual defenses. ( Evers vs. Edward Hospital Association, 247 Ill. App.3d 717, 187 Ill. Dec. 490 (2nd Dist. 1993). Moreover, when ruling on a motion to dismiss the pleadings, the Court is to interpret the allegations of the complaint in a light most favorable to the plaintiff. (Id.) Finally, a complaint should not be dismissed unless the pleadings disclose that no set of facts could be proved that will entitle the plaintiff to relief. ( Delaney vs. Marchon, Inc., 254 Ill. App. 3d 933, 194 Ill. Dec. 128 (1st Dist. 1993).

Liability & Ownership Under the Nursing Home Care Act

3. The Nursing Home Care Act provides that an owner of a Nursing Home and a licensee of a Nursing Home are liable to a resident for any intentional or negligent act or omission of their agents or employees which injures the resident. 210 ILCS 45/3601. As such, that defines what is meant by “owner”. Said definition states:

Sec. 1-119. “Owner” means the individual, partnership, corporation, association or other person who owns a facility. In the event a facility is operated by a person who leases the physical plant, which is owned by another person, “owner means the person who operates the facility except that if the person who owns the physical plant is an affiliate of the person who operates the facility and has significant control over the day-to-day operations of the facility, the person who owns the physical plant shall incur jointly and severally with the owner all liabilities imposed on an owner under this Act.

Amended Pleadings

4. Initially, it should be noted that while defendants motion seeks dismissal of the entire Count I of plaintiffs Amended Complaint, defendant is actually complaining of only one paragraph in said Count. Namely, paragraph 21 (i). Sub-paragraph (i) of the charging allegations in the Amended Complaint Count I is the only basis in that Count upon which liability is premised within the purview of the Nursing Home Care Act. The remainder of the Count and the remainder of the charging allegations are based on general principles of negligence and not the statutory protection afforded under the Act. As such, if the Court does agree with the defendants motion, which plaintiff believes would be incorrect, only sub-paragraph (i) of paragraph 21 should be stricken from Count I and only as against Marionjoy and not the defendant, Rest Haven.

5. Defendant, Rest Haven, and defendant, Marianjoy, are co-“owners” under the Act. Paragraph 4 of Count I of the Amended Complaint states pursuant to the joint venture agreement attached as Exhibit “A” to the Amended Complaint, Marionjoy, “... operated and have significant control over the day-to-day operation of a sub-acute rehabilitation program and facility under the name InterRehab located inside Rest Haven Central (attachment 4, 1 in Exhibit “A”). That attachment referred to in the Amended Complaint is an attachment to the Joint Venture Agreement between the co-defendant, Rest Haven and Marionjoy. That attachment states that the contribution of the defendant, Marionjoy Rehabilitation Hospital & Clinics to the InterRehab program at the Rest Haven facility consists of: “1. Non-exclusive right to operate a sub-acute rehabilitation program under the name ‘InterRehab’.” As further reflected in paragraph 4 of Count I of the Amended Complaint, the Joint Venture Agreement at page 2, paragraph 7 states that the defendant, Marionjoy, “... will be solely responsible for the components of the program related to physiatry and rehabilitation, ...”. As such, Count I of the Amended Complaint goes on to state in paragraph 6 thereof that the defendant, Marionjoy and the defendant, Rest Haven Central, are co-operators of the long-term convalescent nursing and rehabilitative facilities at Rest Haven Central pursuant to their agreement. As such, the Joint Venture Agreement and allegations of the manner in which the InterRehab unit at Rest Haven was “co-operated” falls within the purview of the definition of an owner under Section 1-119 of the Nursing Home Care Act. Specifically, while the defendant, Rest Haven, may have owned the physical plant, the persons i.e. Marionjoy who operated the facility (i.e. the InterRehab unit), shares and has significant control over day-to-day operations of the facility and thereby incurs joint and several liability with the owner or Rest Haven. As such, under the Nursing Home Care Act, defendant, Marionjoy, within the definition of owners in that Act is a co-owner of the InterRehab unit with Rest Haven and should, therefore, enjoy ownership responsibilities and liabilities as set forth under the Nursing Home Care Act.

WHEREFORE, Plaintiff respectfully requests that this Honorable Court enter its Order denying the Motion to Dismiss of the defendant, Marionjoy Rehabilitation Hospital & Clinics, and further ordering that said defendant answer the Amended Complaint at Law within a reasonable time hereof, and for any and all other relief that this Court deems fair and proper under the circumstances, alternatively, should this Court rule in favor of the defendant's motion then the Court should make a specific finding under Section 3-601 of the Nursing Home Care Act that defendant, Marionjoy, and its agents, such as Dr. Nelson McLemore III, were acting as agent of the defendant, Rest Haven Central, in all of the acts or omissions attributed to Marionjoy under the Amended Complaint at Law, and for any and all other relief that this Court deems fair and proper under the circumstances.

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ATTORNEYS FR PLAINTIFFS
BLUMBERG & DORE
33 N. Dearborn St. - Suite 1410
Chicago, Ill. 60602
(312) 368-8669

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