Parker v. Symphony of Evanston Healthcare, LLC

2023 IL App (1st) 220391

220 N.E.3d 455

468 Ill.Dec. 147

Cheryl PARKER, as Independent Administrator of the Estate of Mae Jefferson, Deceased, Plaintiff-Appellant,

v.SYMPHONY OF EVANSTON HEALTHCARE, LLC, an Illinois Limited Liability Corporation, d/b/a Symphony of Evanston, and Maestro Consulting Services, LLC, an Illinois Limited Liability Corporation, Defendants-Appellees.

No. 1-22-0391

Appellate Court of Illinois, First District, FIRST DIVISION.

Filed June 5, 2023

Michael W. Rathsack, of Park Ridge, and Steven M. Levin and Paul J. Connery, of Levin & Perconti LLP, of Chicago, for appellant.

Gregory E. Schiller, Lynn M. Reid, and David M. Macksey, of Johnson & Bell, Ltd., of Chicago, for appellees.

OPINION

JUSTICE COGHLAN delivered the judgment of the court, with opinion.

¶ 1 Plaintiff Cheryl Parker, as the independent administrator of the estate of Mae Jefferson, filed an action against defendants Symphony of Evanston Healthcare, LLC (Symphony), and Maestro Consulting Services, LLC (Maestro) (collectively, defendants), alleging violations of the Nursing Home Care Act ( 210 ILCS 45/1-101 et seq. (West 2020)) and common-law negligence pursuant to the Survival Act ( 755 ILCS 5/27-6 (West 2020) ) and Wrongful Death Act ( 740 ILCS 180/1 et seq. (West 2020)).

¶ 2 Symphony moved to dismiss and compel arbitration of the Survival Act claims, arguing that Mae's daughter, Kathy Jefferson (Kathy), signed a binding arbitration agreement as Mae's agent pursuant to a health care power of attorney. The trial court granted the motion, dismissed and compelled arbitration of the survival claims, and stayed the wrongful death claims.

¶ 3 Plaintiff filed an interlocutory appeal pursuant to Illinois Supreme Court Rule 307(a)(1) (eff. Nov. 1, 2017). See Salsitz v. Kreiss , 198 Ill. 2d 1, 11, 260 Ill.Dec. 541, 761 N.E.2d 724 (2001) (circuit court's order compelling arbitration is injunctive in nature and is subject to interlocutory appeal under Rule 307(a)(1) ). On appeal, plaintiff argues that Kathy lacked authority to bind Mae to the arbitration agreement and that the agreement is procedurally and substantively unconscionable. For the following reasons, we reverse and remand for further proceedings.

¶ 4 BACKGROUND

¶ 5 On May 20, 2005, Mae executed an Illinois statutory short form power of attorney for health care ( 755 ILCS 45/4-10(b) (West 2004)) designating Kathy as her agent. As Mae's "attorney-in-fact," Kathy was authorized "to make any and all decisions for [her] concerning [her] personal care, medical treatment, hospitalization and health care and to require, withhold or withdraw any type of medical treatment or procedure, even though [her] death may ensue."

¶ 6 On September 17, 2017, Mae was admitted as a resident of Symphony, a long-term care facility. On October 16, 2017, Kathy executed a 13-page "Contract Between Resident and Symphony of Evanston" (admission agreement) on behalf of Mae, detailing the rights and obligations of each party during Mae's residency. Kathy signed a separately paginated "Health Care Arbitration Agreement" on the same date. Section G of the admission agreement provides that "[t]he Resident and Facility have entered into a separate Health Care Arbitration Agreement in connection with this Contract and expressly affirm and state that said Health Care Arbitration Agreement be incorporated into this document as though stated and contained herein."

¶ 7 The arbitration agreement defines the parties as "Resident" or "Resident's Authorized Representative" and "facility" as "the particular facility where the Resident resides, its parents, affiliates, and subsidiary companies, [and] owners." The first "Recital" of the arbitration agreement states, "This health care arbitration agreement is not a condition to the rendering of health care services by any party."

¶ 8 The arbitration agreement provides:

"In the event of any claim arising out of (1) any dispute between you and us, (2) any dispute relating to services rendered for any condition, (3) injuries alleged to have been received by patient, (3) death of patient due to health care provider negligence or other wrongful act, but not including intentional torts, (4) services rendered for any condition and arising out of the diagnosis, treatment or care of the patient, and (5) collection proceedings in excess of $50,000.00, the claim will be submitted to binding arbitration pursuant to the provisions of this health care arbitration agreement."

Arbitration is also mandated for the above claims brought pursuant to the Illinois Survival Act. The agreement does not apply to collection proceedings under $50,000, involuntary discharge proceedings, probate estate claims, petitions for guardianship, and health care liens.

¶ 9 Section three, "Expenses of Arbitration," provides that "[i]n consideration for the execution of this agreement Facility agrees to pay up to $5,000.00 of Resident's arbitration costs, attorney's fees and out-of-pocket expenses" and that "Resident further waives any and all right to the collection of Statutory Attorney's fees, included but not limited to those provided for in the Illinois Nursing Home Care Act." "All remaining costs and expenses of the Arbitrators’ will be apportioned equally among all parties," and "[a]ll remaining costs and fees associated with prosecuting and defending said claim shall be borne by each party."

¶ 10 An "AGREEMENT TO ARBITRATE HEALTH CARE NEGLIGENCE CLAIMS NOTICE TO PATIENT" immediately precedes the signature block. In all-capital letters, residents are advised that they cannot be required to sign the arbitration agreement to receive treatment, that their right to a trial by judge or jury will be barred as to any dispute relating to injuries that may result from negligence during their treatment or care, and that any claims that may arise out of their health care will be submitted to a panel of arbitrators rather than a court.

¶ 11 On February 22, 2021, plaintiff filed a complaint against defendants, alleging violations of the Nursing Home Care Act against Symphony (count I) and common-law negligence against both defendants pursuant to the Survival Act (counts II and IV) and the Wrongful Death Act (counts III and V). Plaintiff also alleged that Maestro "owned, operated, and/or managed" Symphony and "exercised significant control over *** the day-to-day operations."

¶ 12 Plaintiff asserted that Mae was "high risk for the development and deterioration of pressure sores"; that Symphony failed to provide appropriate care "to prevent the development and deterioration" of this condition; and that Maestro negligently failed "to provide appropriate care and supervision to prevent pressure sores from developing, worsening, and becoming infected." As a result, Mae experienced "deterioration of her physical, mental, and psychosocial condition" and "unnecessary pain and suffering," which "caused or contributed to" her death in January 2020.

¶ 13 On June 17, 2021, Symphony moved to dismiss and compel arbitration of plaintiff's survival claims pursuant to section 2-619(a)(1) of the Code of Civil Procedure ( 735 ILCS 5/2-619(a)(1) (West 2020)) and to stay plaintiff's wrongful death claims pending arbitration.¹ Symphony alleged that Kathy had executed an arbitration agreement as the "agent for Mae *** under a healthcare power of attorney" and "clearly and unambiguously agreed to submit any and all disputes and claims for personal injuries" arising from Mae's residency at Symphony to binding arbitration.

¶ 14 In response to the motion, relying on Fiala v. Bickford Senior Living Group, LLC , 2015 IL App (2d) 141160, 392 Ill.Dec. 80, 32 N.E.3d 80, plaintiff asserted that, "where an arbitration provision is optional or not necessary to gain admission to a long-term care facility, a person acting as the power of attorney for healthcare for a patient cannot bind the patient to that agreement."² In other words, Kathy lacked authority to bind Mae to arbitration because arbitration was optional and not a condition to admission. Plaintiff further alleged that the arbitration agreement was procedurally unconscionable because Kathy "did not have equal bargaining power," was not "properly informed about the contents of the documents she was signing," and had " ‘no hand in its drafting’ " and because the agreement's "key terms were hidden in ‘a maze of fine print.’ " Plaintiff also alleged that the arbitration agreement was substantively unconscionable because it required residents to waive statutory attorney fees under the Nursing Home Care Act and that Maestro was not a party to the arbitration agreement.

¶ 15 In support of her response, plaintiff attached the deposition of Leslie Riccardino, who signed the admission and arbitration agreements as Symphony's representative. Riccardino testified that she has been Symphony's business office manager since April 2015. She was present when Kathy signed the agreements, but Mae was not. Since Mae was "nonverbal" and was on the "memory support floor," Riccardino was concerned that Mae "wouldn't be able to understand the contract." She "always reach[es] out to families" of residents admitted to memory support to have them sign the agreements.

¶ 16 Riccardino explained that the agreements are "presented at the same time" but that the arbitration agreement is "always presented last." She "review[s] each portion with residents" when she presents the agreements. With respect to the arbitration agreement, Riccardino informs residents and family members that "if they had a dispute with the facility or the facility had a dispute with them that they would agree to handle it through the process of arbitration as opposed to going through court." She "always give[s] the representative or the resident the option to refuse the arbitration agreement," and about 85% refuse to sign.

¶ 17 Plaintiff also attached the affidavit of Kathy, attesting that she "never held a Power of Attorney for Property for Mae." Mae "did not direct [her...