Nursing Home Motion 14 - Petition to Settle Wrongful Death Case

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Petition to Settle Wrongful Death Claim

Mark Masur (6201603), Kinnally, Flaherty, Krentz, & Loran, P.C., 2114 Deerpath Road, Aurora, Illilnois 60506, Phone: 630-907-909, Fax: 630-907-0913.

NOW COMES, the petitioner MARGARET SCARPINO, Special Administrator of the Estate of SARA SCARPINO, deceased, by and through her attorneys, KINNALLY, FLAHERTY, KRENTZ, & LORAN, P.C., and for her petition to settle this wrongful death cause of action states as follows:

1) Sara Scarpino was born on XX/XX/1920. She died on September 17, 2006 at the age of 86.

2) On September 10, 2006, and for some time prior thereto, Sara Scarpino was a resident at Elmwood Terrace Healthcare Center (Nursing Home).

3) That on September 10, 2006, aids from the aforementioned nursing home were attempting to transport Sara Scarpino from her bed to a chair when they lost control, causing Sara Scarpino to fall to the ground sustaining a left hip fracture, swelling and bruising of the head and neck. She was transported from the scene of the occurrence to Provena Mercy Heath Care Center Hospital, where she was admitted on September 10, 2006 to the date of her death, September 17, 2006. On September 12, 2006, Dr. Panello, a local orthopedic surgeon, performed surgery on Sara's left hip consisting of a repair of the intertrochanteric fracture with screws and nails. Sara Scarpino died of complications resulting from her accident of September 10, 2006.

4) Margaret Scarpino, natural sister of decedent, has been acting as Special Administrator of the Estate of Sara Scarpino, pursuant to Court Order, for purposes of prosecuting this wrongful death action.

5) Sara Scarpino incurred medical expenses at Provena Mercy Healthcare Center Hospital totaling approximately $115,000.00 prior to her death as a result of the injuries sustained of aforementioned occurrence. Additionally, funeral and burial expenses total $11,339.03.

Hamlin & Burton Liability Management, Inc., in Appleton, Wisconsin, has been representing Elmwood Terrace Healthcare Center during settlement negotiations of this claim. A final settlement offer of $250,000.00 in exchange for a properly executed release of all claims to resolve this matter has been tendered by the above noted company on behalf of the Defendant.

6) Margaret Scarpino, Special Administrator of the Estate of Sara Scarpino, deceased, has discussed the offer with her attorney and believes it is in the next of kin's best interest to accept the offer in exchange for a properly executed release of all claims.

7) Margaret Scarpino signed a retainer agreement with the lawfirm of KINNALLY, FLAHERTY, KRENTZ, & LORAN, P.C. Said retainer agreement provides for attorney's fees in the amount of 1/3 of any monies recovered by way of settlement or judgment. (See attached Exhibit 1)

8) In light of the fact that this claim is a nursing home death case, it would be considered a Medical Malpractice claim and therefore governed by the statutory fee provisions governing medical malpractice cases in the state of Illinois. Therefore, attorney fees would be limited to 1/3 of the first $150,000.00 and 25% thereafter.

Margaret Scarpino hereby requests payment of attorney's fees in the sum of $75,000.00 to the law firm of KINNALLY, FLAHERTY, KRENTZ, & LORAN, P.C. to be approved by this Court.

9) That KINNALLY, FLAHERTY, KRENTZ, & LORAN, P.C. has expended $548.27 in expenses which are itemized in Exhibit 2 attached hereto and incorporated herein by reference. Margaret Scarpino requests that the costs advanced by KINNALLY, FLAHERTY, KRENTZ, & LORAN, P.C. be reimbursed out of the aforementioned wrongful death settlement proceeds.

10) That the decedent's medical bills were submitted to and paid by Medicare.

11) That at present the total amount of payments made by Medicare for medical bills that the decedent incurred in the aforementioned accident is unknown. The hospital bill from Provena Mercy Healtcare Center Hospital totaling $100,959.94 was submitted to Medicare. Medicare paid $10,862.11 on this account and the remainder was written off pursuant to Medicare adjustments.

There were a number of additional services provided to the decedent while she was admitted to Provena Mercy Healthcare Center Hospital for which the total amount of Medicare payments has not yet been determined.

12) Margaret Scarpino, hereby requests that $40,000.00 be withheld from the settlement and held in the trust account of KINNALLY, FLAHERTY, KRENTZ, & LORAN, P.C., until the Medicare “Lien” can be adjudicated and resolved.

13) Sara Scarpino, deceased, is survived by her one sister, Margaret Scarpino who is 83 years of age.

14) Margaret Scarpino requests that this court approve this settlement and approve distribution of the remaining settlement proceeds totaling $134,451.73 payable to the decedent's only surviving next of kin, Margaret Scarpino.

WHEREFORE, MARGARET SCARPINO, Special Administrator of the Estate of SARA SCARPINO, deceased, requests the Court grant the following:

a) Approve settlement with the Defendant, ELMWOOD TERRACE HEALTHCARE CENTER for $250,000.00 in exchange for a properly executed release.

b) That Margaret Scarpino be granted authority to execute any and all necessary paperwork to fully extinguish this wrongful death and survival cause of action.

c) The attorneys fees in the amount of $75,000.00 be approved and reimbursement of advanced costs totaling $548.27 be approved.

d) That KINNALLY, FLAHERTY, KRENTZ, & LORAN, P.C. is authorized to withhold $40,000.00 from the settlement in its' trust account until the Medicare Lien can be resolved. Once the Medicare Lien has been resolved and payment has been sent to Medicare in exchange for a properly executed release, the balance of the settlement proceeds being held in trust ($40,000.00) to be distributed to Margaret Scarpino consistent with this Court Order. Further, the partial net settlement proceeds totaling $134,451.73 to be paid to Margaret Scarpino according to this petition and accompanied Court Order.

<<signature>>

Margaret Scarpino
Mark Masur (6201603)
KINNALLY, FLAHERTY, KRENTZ, & LORAN, P.C.
2114 Deerpath Road
Aurora, Illilnois 60506
Phone: 630-907-909
Fax: 630-907-0913

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