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Nursing Home Motion 13 - Memorandum in Support of Motion for Entry of Partial Summary Judgment on the Issue of Liability and in Support of the Entry of Judgment

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Memorandum in Support of Motion for Entry of Partial Summary Judgment on the Issue of Liability and in Support of the Entry of Judgment on the Issue of Liability for Failure of the Defendant to Comply with Discovery

Carrie Biles, Administrator of the Estate of Steller Wilkins, Plaintiff, Fred Johnson, Heller, Holmes & Associates, P.C., 1101 Broadway Ave., P. O. Box 889, Mattoon, IL 61938-0889, Phone: 217-235-2700; Fax: 217-235-0743.


The Plaintiff, CARRIE BILES, is the elderly daughter of the decedent, STELLER WILKINS, who was a resident of the Defendant nursing home prior to her death. While a resident at the Defendant nursing home, STELLER WILKINS was partially paralyzed. Two employees of the Defendant nursing home attempted to have STELLER WILKINS perform a “pivot transfer” which required STELLER WILKINS to make use of one of her legs while being transferred from her bed to a wheelchair. The result of that attempted transfer was a spiral fracture to the lower extremity of STELLER WELKINS which resulted in her hospitalization and surgical insertion of a retrograde rod by Dr. Jerome Kraft.

The Illinois Department of Public Health investigated the conduct of the Defendant facility and determined that neglect occurred in the course of the transfer. The Plaintiff took the deposition of Nurse Kathleen Sweatman who investigated the case on behalf of the Illinois Department of Public Health as well as the surgeon who treated STELLER WILKINS as well as her attending physician, Dr. Reed Yeater. Dr. Reed Yeater, as well as Nurse Sweatman, testified with reasonable certainty that “neglect” occurred in the care and treatment of the resident at the hands of the Defendantnursing home. (Yeater Dep. pg. 13-14; Sweatman Dep. pg. 41-42). The aforesaid witnesses opined that a fracture resulted as a consequence of the neglect. Dr. Jerome Kraft also opined that the cause of the fracture was related to the method of transfer.

The Plaintiff's cause of action against the Defendant facility is a statutory cause of action predicated on a violation of the Nursing Home Care Act found at 210 ILCS 45/1-101 et seq . That statute creates a cause of action on behalf of a resident who suffers “neglect” or “abuse”. See 210 ILCS 45/3-601, 602. Section 45/3-602 states “The licensee shall pay the actual damages and costs and attorney fees to a facility resident whose rights as specified in Part 1 of Article II of this Act are violated.” Part I of Article II of the Act expressly states, “An owner, licensee, administrator, employee or agent of a facility shall not abuse or neglect a resident.” The statute further defines neglect as: “Neglect means a failure in a facility to provide adequate medical or personal care or maintenance which results in physical or mental injury to a resident or in the deterioration of a resident's physical or mental condition.” See 210 ILCS 45/1-117.

Long ago in Harris v. Manor Health Care, 111 Ill.2d 354, 89 N.E.2d 1374, 95 Ill.Dec. 510 (1986), the Illinois Supreme Court held that, “The statutory definition of neglect is synonymous with the term negligence.”

In order to further develop the Plaintiff's case, it is necessary for the Plaintiff to depose those individuals who were employed by the Defendant facility and further obtain the Defendant's “policies and procedures manual” in order to determine what internal rules and regulations existed at the Defendant facility which would forbid the type of negligent transfer that occurred and resulted in the spiral fracture to STELLER WILKINS' leg. To that end the Plaintiff, on March 13, 2001, sent Interrogatories and Request To Produce to the Defendant. The requests for discovery were few in number and straightforward. Among other things the Interrogatories sought the name of individuals who had knowledge of the facts alleged in the Complaint as well as names of individuals who investigated the incident. The Request To Produce sought the chart and records of the decedent at the nursing home as well as “rules, regulations, protocols or guidelines of the Defendant that were in effect at the time STELLER WILKINS was a resident.” Those rules, regulations, protocols, etc. are found in the Nursing Home Policies and Procedures. The Defendant informally produced documents which it claims are nursing home records of STELLER WILKINS; however, the Defendant has yet to produce an affidavit that the production is complete in accordance with the request. The Defendant did not object to any of the requests for discovery; nor did the Defendant file a motion for continuance; nor did the Defendant file a motion to strike any of the matters submitted by the Plaintiff in support of her Motion For Judgment on the issue of liability

The following is a chronology of the Plaintiff's efforts to obtain compliance with discovery:

-- March 13, 2001, Request For Production of Documents and Interrogatories sent to Defendant.

-- May 9, 2001, mail and fax sent to defense counsel requesting compliance with discovery request.

-- May 21, 2001, letter to defense counsel again requesting compliance with discovery.

-- May 29, 2001, letter to defense counsel confirms telephone conversation between attorneys which requested discovery compliance. Correspondence further states, “I desperately need the names and addresses of the nurses and CNAs who were attending Steller Wilkins at the time the incident occurred.”

-- Correspondence June 5, 2001, to defense counsel again requesting compliance with discovery.

-- June 13, 2001, Plaintiff's counsel writes to Defendant's counsel again requesting compliance with the Request For Discovery.

-- June 7, 2001, Motion To Compel Discovery filed.

-- July 6, 2001, the Court orders the Defendant to “comply completely with Plaintiff's request to produce documents and with Plaintiff's interrogatories within 30 days of this order.” The Order further states, “Defendant is to furnish an affidavit that production of documents is complete within 30 days of this Order.”

The Defendant failed to comply with the Court's Order or seek an extension of time for compliance.

-- August 13, 2001, Plaintiff filed “Motion For Entry of Judgment Against The Defendant And In The Alternative For Entry of Partial Summary Judgment Against The Defendant.”

-- September 13, 2001, Plaintiff appears for hearing on the Motion For Entry of Judgment Against The Defendant at which time the Defendant orally requested a briefing schedule. The Court entered an Order directing the Defendant to pay attorney fees for the Plaintiff's appearance and granted the Defendant's oral request for time to file a brief.

The Plaintiff's request for discovery seeks to obtain the names of those individuals who were involved in the incident which caused the spiral fracture to the leg of STELLER WILKINS. Plaintiff is entitled to such fundamental information as well as an affidavit from the Defendant that the production of documentation is complete in accordance with the request. The Defendant declines to provide that information. To date the Plaintiff has no assurance that the records of STELLER WILKINS which have been produced are in fact complete records. No explanation is given by the Defendant why an affidavit could not be produced, that the records furnished to date concerning STELLER WILKINS are in fact the complete records of STELLER WILKINS from the Defendant facility. The Defendant's brief criticizes the Plaintiff for seeking “original” records concerning STELLER WILKINS. The Plaintiff does indeed seek to look at the original chart of STELLER WILKINS for several reasons. First, the original records of nursing home residents are color coded. That is to say certain entries are made with a different color ink than other entries, depending upon the type of care or treatment that is given to a patient. Secondly, the original records are far more legible than the machine copies that are generated. Given the fact Senior Living Properties was able to make a copy of records pertaining to STELLER WILKINS strongly suggests that the original of those records presently exists and should be made available to Plaintiff's attorneys to inspect.

The thrust of the Defendant's opposition to the relief requested is an open ended invitation to the Court to allow noncompliance with the discovery Order of this Court to continue indefinitely. The Defendant claims efforts have been made to locate the information requested. However, neither the Defendant's Memorandum nor the supporting Affidavit signed by Beth Alford explain specifically what efforts were made to locate the information requested in discovery. Indeed paragraphs 4, 5 and 6 of the Alford Affidavit are predicated on “information and belief. On page 3, paragraph 6 of the Defendant's Memorandum the Defendant avers that it is unable to locate any former Golfview employees and that efforts to locate former employees have been reasonable. What specific undertakings and efforts were made to locate former employees, such as the director of nursing, the former administrator, or nurses is not stated. It is not the responsibility of the Plaintiff to locate officers and supervisory personnel of the Defendant. In paragraph 7 (page 3 of Defendant's Memorandum), the Defendant states, “Further since none of the witnesses identified in the medical records are in the control of this Defendant, Plaintiff is on equal footing and she should seek to subpoena the depositions of any of those individuals.” The nursing home administrator and the director of nursing are supervisory personnel who would certainly be within the control group of the Defendant and should be available to this Defendant to produce.

A careful review of the Alford Affidavit shows that at no point in time does the Defendant represent to the Court that the records of STELLER WILKINS or the rules, regulations and protocols of the Defendant facility have in fact been destroyed. The Affidavit merely claims on information and belief that such records and information have not yet been located. Seven months have passed since the Plaintiff's request for discovery. Informal attempts between counsel to obtain discovery compliance failed. Plaintiff sought the assistance of the Court to compel discovery. An Order compelling discovery was entered and violated. The Defendant has yet to file a motion for continuance or a request for extension of time to excuse its noncompliance. At the last hearing the Court ordered the Defendant to pay attorney fees as a consequence of its noncompliance.

The matter now comes before the Court once again for hearing on the relief requested. That is to say for entry of judgment on the issue of liability. It is unfair to the Plaintiff to allow the case in its present posture to continue to linger indefinitely until such time as the Defendant complies with the Order of the Court. The Plaintiff herself is elderly and entitled to a prompt resolution of this case.

The Defendant cites cases for the proposition that sanctions should be applied only when noncompliance is “unreasonable” or otherwise characterized by a “deliberate and pronounced disregard for the rules of the court.” Citing Cedric Spring & Associates v. N.E.I. Corp., 81 Ill.App.3d 1031, 402 N.E.2d 352 (2nd Dist.1980) ; Perimeter Exhibits, Ltd v. Glenbard Molded Binder, Inc., 122 Ill.App.3d 504, 461 N.E.2d 44 (2nd Dist.1984). The five factors set forth inCedric to determine whether a party's noncompliance with discovery is “unreasonable” weigh in favor of the sanction of judgment against this Defendant. First, the prejudicial effect that results to the Plaintiff from the Defendant's withholding of its internal rules, regulations and protocol is manifest. Plaintiff believes that the Defendant has rules, regulations and protocols which bear upon the manner in which transfers of a disabled resident are to be undertaken. The Plaintiff believes those regulations were violated and would be evidence of the standard of care applicable to this Defendant facility. By allowing the Defendant to withhold that information the Plaintiff is deprived of compelling evidence pertaining to the Defendant's neglect. Secondly, the Defendant has failed to set forth in any factual detail what specific efforts have been made to obtain discovery. That is to say what diligence this Defendant has exercised to obtain discovery other than to represent to the Court that the Defendant facility sustained physical damage and certain records located at the facility have yet to be located. The Defendant, for example, fails to provide the Court with any information whether a representative of the Defendant has attempted to telephone or physically locate nurses, CNAs, administrators, or physically attempt to retrieve records from the location of the nursing home itself. Thirdly, the Plaintiff has demonstrated good faith and timely efforts to obtain the information requested by eliciting the assistance of the Court when cooperation of the Defendant, through counsel, failed.

If the Defendant could not comply with the June 6, 2001, Order of the Court which required compliance with discovery in 30 day, it should have objected to the entry of the Order. If thereafter the Defendant could not meet the Court's deadline, it should have filed a motion to extend the deadline before 30 days passed. The Defendant did not do so. Supreme Court Rule 219 expressly authorizes and empowers the Court to enter judgment on the issue of liability as a consequence of a defendant's failure to comply with discovery. Such is the relief that is mandated under the circumstances. In Harris v. Harris, 196 Ill.App.3d 815, 155 N.E.2d 10 (1st Dist. 1990), the court stated,

“Where the trial court imposes a sanction for noncompliance pursuant to Rule 219(c), the offending party has the burden of establishing, by affidavit or otherwise, that his failure to comply with the court's discovery order was justified by extenuating circumstances.”

See also Fine Arts Distributors v. Hilton Hotel, 89 Ill.App.3d 881, 412 N.E.2d 608 (1980) wherein the court held,

“The burden of proving extenuating circumstances causing discovery delays falls on the noncomplying party.”

The Defendant's excuse for its violation of the Court's Order does not constitute “extenuating circumstances.” In each of the aforesaid cases the Appellate Court upheld the entry of a judgment on the issue of liability against the offending party.

The court in Vonn v. Northwestern Memorial Hospital, 210 Ill.App.3d 253, 569 N.E.2d 77 (1st Dist. 1991), upheld a judgment on the issue of liability by dismissing a complaint for failure, of a plaintiff to comply with discovery. The court noted that,

“The imposition of sanctions under Rule 219(c)(v) is a matter within the court's discretion and a reviewing court should not disturb the trial court's decision unless abuse is present.... An abuse of discretion may be found only where no reasonable person would take the view adopted by the trial court.”

The court went on to state,

“When a scheme of deliberate defiance of the rules of discovery and the court's authority over an attempt to stall significant discovery has been shown, dismissal is an appropriate sanction and should be unhesitatingly applied.”(Emphasis added)

Consistent with the aforesaid holdings the Plaintiff respectfully prays this Court find the Defendant's failure to comply with discovery under the circumstances is unreasonable and the explanation tendered insufficient to forestall the imposition of the sanctions requested by the Plaintiff.

In the less favored alternative, this Court should enter partial summary judgment on the issue of liability based upon the unrefuted evidence now before the Court. The Plaintiff is not barred from seeking partial summary judgment at the present time. Indeed the court in Atwood v. Warner Electric Break and Clutch Co., 239 Ill.App.3d 81, 605 N.E.2d 1032 (1992) held that a party may move for summary judgment “at any time as to all or any part of the relief sought against him or her.” Citing Section 2-1005(b) of the Code of Civil Procedure. The aforesaid case discussed the interrelationship between granting summary judgment and the entry of sanctions for discovery violations. The court upheld the entry of partial summary judgment as well as the entry of sanctions for discovery violations in that case. The court went on to state,

“However, Illinois courts are becoming less tolerant of violations of discovery rules, even at the expense of a case being decided on the basis of the sanction imposed, rather than on the merits of the litigation.”

More recently the Illinois Appellate Court upheld the entry of summary judgment as a consequence of a party's failure to comply with the orders of the court and that party's failure to tender affidavits in opposition to the motion for summary judgment. See Higgens v. House, 288 Ill.App.3d 543, 680 N.E.2d 1089 (4th Dist. 1997). Higgens involved a claim of medical neglect. As in Higgens, the Defendant in the instant case failed to file any affidavits in opposition to the motion for summary judgment.

As a final matter the Defendant claims that Nurse Sweatman was not “competent” to testify that a statute or regulation had been violated. The Defendant does not offer any basis to conclude that Nurse Sweatman was not qualified to comment that a particular regulation was or was not violated. Rather, the Defendant directs the Court's attention to the case of Stogsdill v. Manor Convalescent Home, Inc., 35 Ill.App.3d 634, 343 N.E.2d 589 (2nd Dist. 1976). TheStogsdill case is not applicable to the facts before the court. First, the Stogsdill case concerned the application of certain rules of the Illinois Department of Public Health to a nursing home case. The court determined that certain of the regulations were too vague to constitute a standard of care “by themselves”. The plaintiff in Stogsdill apparently did not provide the requisite expert testimony concerning the application of the Illinois Department of Public Health regulations so as to establish those regulations as a standard of care. Indeed the court squarely held, “Since the regulations do not clearly set forth the standard of care required, expert testimony was still required in this case.” Unlike the plaintiff in Stogsdill the plaintiff in the case now at bar offered the testimony of Nurse Sweatman that “Neglect” indeed occurred in the transference of STELLER WILKINS from her bed while she was in a paralyzed condition. Nurse Sweatman was familiar with the standard of care, not only by her familiarity with rules and regulations that were applicable, but also upon her years of experience. Indeed Nurse Sweatman was qualified to testify regarding the standard of care based upon the fact she was a licensed nurse and was familiar with the methods, procedures, and treatment in such nursing facilities. See Gill v. Foster, 157 Ill.2d 304, 626 N.E.2d 190 (1993).

Another distinction between the Stogsdill case and the case of Steller Wilkins is found in the allegations of neglect in the Complaint of STELLER WILKINS. The Complaint is not predicated solely on allegations that a particular regulation of the Department of Public Health was violated. The Complaint alleges neglect occurred by allowing a transfer of STELLER WILKINS at a time when she could not realistically bear weight on her extremity as well as a violation of the federal regulation applicable to this nursing home found at 42 C.F.R. §483.25(a)(2). The Federal regulation as found in paragraph 8 subsection (f) alleges neglect in that the Defendant facility failed to provide appropriate services to STELLER WILKINS by failing to properly transfer her from her bed. The Stogsdill case was decided in 1976 prior to the passage of the OBRA regulations (Federal Regs) which mandate the aforesaid standard of care be followed by this facility.

In any event the Plaintiff provided the requisite “expert” testimony from Nurse Sweatman regarding the interpretation and applicability of the federal and state regulations as well as the requisite testimony that neglect occurred in the transfer of STELLER WILKINS (irrespective of any regulatory violations) based upon her experience as well as the admissions of representatives from the Defendant facility that the transfer that was undertaken was not a “safe transfer.” (See Sweatman Dep., pg. 34).

For all of the aforesaid reasons the Plaintiff respectfully asks this Court enter judgment on the issue of liability by reason of the Defendant's wilful and unreasonable failure to cooperate in discovery, as well as partial summary judgment on the issue of liability based upon the uncontradicted record now before the Court.

The matter should then be scheduled for a hearing on the issue of damages only.

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