Sanders v. Oakbrook Healthcare Ctr.

225 N.E.3d 16

2022 IL App (1st) 221347

Maria SANDERS, Plaintiff-Appellee,

v.OAKBROOK HEALTHCARE CENTRE, LTD., d/b/a Oakbrook Care, and Lancaster, Ltd., Defendants-Appellants.

No. 1-22-1347

Appellate Court of Illinois, First District, FOURTH DIVISION.

Filed: December 22, 2022

Appeal from the Circuit Court of Cook County, No. 19 L 013794, Honorable Moira Johnson, Judge, presiding.

Carter A. Korey and Chaniece ?. Hill, of Korey Richardson LLP, of Chicago, for appellants.

Michael W. Rathsack, of Law Offices of Michael W. Rathsack, of Park Ridge, and Gabriel J. Aprati, of Levin & Perconti, of Chicago, for appellee.

OPINION

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

¶ 1 Plaintiff, Maria Sanders, sustained injuries from a fall in her nursing home. Plaintiff sued the nursing home, Oakbrook Healthcare Centre, Ltd. (Oakbrook), and its alleged owner/operator, Lancaster, Ltd. (Lancaster). Counts I and II against Oakbrook alleged violations of the Nursing Home Care Act (Act) (210 ILCS 45/1-101 et seq. (West 2018)) and common-law negligence. Count III alleged common-law negligence against Lancaster. Defendants filed a motion to dismiss and to compel mediation and/or arbitration (hereinafter motion to dismiss and compel· arbitration) of counts I and II against Oakbrook. Defendants asked to stay count III against Lancaster, who was not a party to the contract/arbitration agreement, pending the arbitration of counts I and II. The circuit court denied the motion to dismiss and compel arbitration of counts I arid II, which also had the effect of mooting defendants’ request to stay count III. Defendants filed this interlocutory appeal pursuant to Illinois Supreme Court Rule 307(a)(1) (eff. Nov. 1, 2017). For the reasons that follow, we vacate the order denying defendants’ motion to dismiss and compel arbitration of counts I and II and we remand for the court to conduct an evidentiary hearing/summary proceeding on the motion and plaintiff’s response thereto pursuant to section 2(a) of the Uniform Arbitration Act (710 ILCS 5/2(a) (West 2018)).

¶ 2 Plaintiff filed her amended complaint alleging that she was a resident of Oakbrook, a skilled nursing facility, on October 2, 2018, when she suffered a fall and was subsequently hospitalized with a right hip fracture. In count I, plaintiff alleged that Oakbrook violated her rights under the provisions of the Act. Count II alleged that Oakbrook was negligent in its care and treatment of plaintiff. Count III alleged that Lancaster owned and managed Oakbrook and also was negligent in its care and treatment of plaintiff.

¶ 3 Defendants moved to dismiss counts I and II of the amended complaint and compel arbitration under section 2-619(a)(9) of the Code of Civil Procedure (735 ILCS 5/2-619(a)(9) (West 2020)) and to stay count III pending the arbitration of counts I and II. Defendants argued that on September 4, 2018, plaintiff voluntarily entered into and signed an admission contract with Oakbrook, a copy of which was, attached to the motion. Subsection E of the contract stated:

"Resident and Facility agree that all civil claims arising in any way out of this Agreement, other than claims by Facility to collect unpaid bills for services rendered, or to involuntarily discharge Resident, shall be resolved exclusively through mandatory mediation, and, if such mediation does not resolve the dispute, through binding arbitration using the commercial, mediation and arbitration rules and procedures of JAMS/Endispute in its Chicago, Illinois Office."

¶ 4 Defendants argued that pursuant to subsection E of the contract, plaintiff’s civil claims against Oakbrook in counts I and II were subject to mandatory mediation, and if mediation failed, then her claims were subject to binding arbitration. Defendants attached the affidavit of Ken Anacay, Oakbrook’s patient advocate who as- sisted in the process of admitting residents into the facility. This process included presenting and discussing the contract entered into between Oakbrook and each of its residents, including the mandatory arbitration provision contained therein. Anacay was involved in the admission of plaintiff to Oakbrook on September 4, 2018, and he would have employed his practice of presenting the contract to her and explaining the arbitration provision. Anacay and plaintiff each affixed their signature to the contract.

¶ 5 Plaintiff filed a response to defendants’ motion to dismiss and compel arbitration of counts I and II, arguing that she lacked the mental capacity to sign the contract on September 4, 2018. In support, plaintiff attached the affidavit of a physician with board certification in internal medicine and geriatric medicine, David Seignious. Seignious reviewed plaintiff’s medical records and stated that prior to her admission to Oakbrook, plaintiff was hospitalized at Loyola Hospital from August 14, 2018, through August 29, 2018, for persistent hypoglycemia, failure to thrive secondary to deconditioning and malnutrition, and urinary tract infection. Upon her admission to Oakbrook, plaintiffs admission diagnoses included a history of recurrent strokes (one as recent as May 2018) that resulted in residual right side weakness, abnormality of gait, dysphagia, and aphasia, which impaired her ability to express herself and otherwise communicate. Plaintiff required feeding by a gastrostomy tube due to malnutrition and recent infection. She also was on psychotropic medication for mood and behavior.

¶ 6 On September 4, 2018, the day plaintiff was presented with and signed the contract containing the arbitration provision, Oakbrook’s social services team completed an assessment of. plaintiff. Plaintiffs assessment documented that she had been having trouble concentrating for several days, was speaking slower than usual, and scored a six on her "Brief Interview of Mental Status" (BIMS), which represented a "severe" level of impairment. Seignious stated:

"Given her underlying condition, medical history, comorbidities, her overall debilitated medical condition, assessments of impairment, expressive aphasia, and fluctuating mood, memory, and cognition, it is unlikely that [plaintiff] would have understood the contents of any legal documents, would have the ability to express/communicate any concerns that she did have, or would have understood the circumstances surrounding her admission to [Oakbrook]."

¶ 7 Plaintiff also attached the deposition testimony of Anacay, the Oakbrook patient advocate. Anacay testified that when a patient sought admission to Oakbrook, the admissions director, in conjunction with the social services team, first would determine whether the patient had the cognitive ability to understand and sign the contract. If the admissions director and social services team determined that the patient lacked such cognitive ability, the patient’s family member was contacted so that they could obtain a power of attorney to sign on the patient’s behalf.

¶ 8 Anacay’s job was to sit down with the patient who wished to be admitted to the nursing home (and/or with the person who had power of attorney to sign for the patient) and review the contract with them "section by section" so that they understood what they were being asked to sign. Anacay admitted, though, that if the patient had any questions about arbitration, he would have had difficulty answering them as he did not himself understand what arbitration entailed, nor did he understand the rights that the patient was waiving by agreeing to the arbitration pro- vision. Any such questions would have been referred to the admissions director.

¶ 9 Anacay had no specific recollection of plaintiff or of presenting her with the contract and reviewing it with her and, as such, had no recollection of whether plaintiff had any questions about subsection E’s arbitration provision. Anacay did not remember whether he had any discussions with the social services team prior to presenting and reviewing the contract with plaintiff on September 4, 2018, nor did he remember whether the social services team had assessed plaintiff as being severely impaired on that date.

¶ 10 In addition to arguing that plaintiff lacked the mental capacity to sign the admission contract on September 4, 2018, she also argued that the contract was procedurally unconscionable because she did not participate in the drafting of the agreement; had no bargaining power; was mentally impaired such that she was unable to understand its contents, including the ramifications of the arbitration provision; was physically unable to communicate any questions or concerns about the contract due to the aphasia resulting from her recurrent strokes; and even if she had been able to voice any questions or concerns about the arbitration provision, Anacay himself had no knowledge about arbitration and thus would not have been able to answer her questions.

¶ 11 Defendants filed a reply, arguing that Seignious’s affidavit regarding plaintiff’s lack of mental capacity should be stricken because it violated the requirement of Illinois Supreme Court Rule 191(a) (eff. Jan. 4, 2013) that the affidavit be made on his personal knowledge, where he never saw or treated plaintiff and based his findings solely off of a review of her medical records. Defendants also argued that plaintiff is presumed to have the mental capacity to enter into the admission contract pursuant to section 2-202(a) of the Act, which states:

"An adult person shall be presumed to have the capacity to contract for admission to a long term care facility unless he has been adjudicated a ‘person with a disability’ within the meaning of Section 11a-2 of the Probate Act of 1975, or unless a petition for such an adjudication is pending in a circuit court of Illinois." 210 ILCS 45/2-202(a) (West 2018).

¶ 12 Defendants argued that plaintiff has never been adjudicated a person with a disability under the Probate Act of 1975 (Probate Act) (755 ILCS 5/11a-2 (West 2018)), nor is...