Michael Sabo v. State of Illinois

OPINION

BIRNBAUM, C.J. Claimant filed a Complaint for monetary damages on September 7, 2016. The Complaint alleges that Joseph Sabo, now deceased, was injured when he was dropped while being transferred to a wheelchair at the Illinois Department of Veterans’ Affairs Home located in Anna, Illinois. On August 26, 2019, the parties filed a Joint Motion to Waive Formal Hearing electing to proceed through a Joint Stipulated Record. Claimant was represented by Pamela Brennan, and Assistant Attorney General Jamie Knodel represented Respondent.

The Parties stipulated to a record that included three exhibits. Exhibit A is the Respondent’s Departmental Report filed on February 28, 2018. Exhibit B is the Claimant’s July 29, 2019, Request to Admit. Exhibit C is the Respondent’s Response to Claimant’s Request to Admit filed on August 23, 2019. The parties also submitted written arguments, comprised of Claimant’s Trial Brief, Respondent’s Trial Brief, and Claimant’s Reply Brief. It is based upon this record that the Court will issue its decision.

In its Trial Brief, Respondent admits liability based upon its Responses to the Request to Admit. Specifically, Respondent admits that on October 14, 2014, Illinois Veterans’ Home Nursing Assistant, William Frisbee, accidentally dropped Mr. Sabo while transferring him from his bed to a care assistant specialty wheelchair (“Broda Chair”), causing him to break his right femur. Mr. Sabo died on November 29, 2019. Respondent admits that Mr. Frisbee’s conduct was negligent, and that it proximately caused Mr. Sabo’s injuries. Based upon these admissions, the sole issue before this Court is damages.

Claimant argues that the damages in this case include Mr. Sabo’s pain and suffering, loss of normal life, and medical expenses. In addition, Claimant seeks the recovery of attorney’s fees pursuant to §3-602 of the Illinois Nursing Home Care Act (210 ILCS 45/3-602). Respondent argues that the damages should be limited to Mr. Sabo’s personal injuries as a direct result of the fall. Respondent argues that due to his condition at the time of the fall, his damages were minimal. Respondent further argues that it is entitled to a setoff for payments made by the State of Illinois for medical expenses. With respect to the request for attorney’s fees pursuant to §3-602 of the Nursing Home Care Act, Respondent argues that Claimant must prove “neglect” and the Illinois Department of Public Health found no neglect in relation to Mr. Sabo’s injuries.

The Court starts its analysis by considering the personal injuries suffered by Mr. Sabo based upon the evidence contained in the record. We note that the Illinois Legislature raised the limitation of liability for personal injuries (except State owned auto cases where there is no cap) from $100,000 to $2,000,000 for all claims filed on or after July 1, 2015. See 705 [*282] ILCS 508(d). The Complaint in this case was filed on September 7, 2016. As such, the $2,000,000 limitation applies to this case and because of this we review the prayer for damages de novo.

Neither party disputes that Mr. Sabo fractured his femur. But the parties dispute the nature and extent of Mr. Sabo’s injuries. Claimant argues that Mr. Sabo suffered tremendously when his femur was broken. Claimant asserts that Mr. Sabo had to undergo surgery, have plates and screws inserted into his leg, and endure pain and suffering associated with such interventions. Respondent argues that due to Mr. Sabo’s unfortunate health condition at the time of his fall, specifically he suffered from multiple sclerosis and could not ambulate well, his damages were minimal.

When considering damages, a trier of fact must not only consider the circumstances of the injury to the party but also the condition of the injured party both prior to the injury and following the injury. As such the factual circumstances of how the injury occurred, and Mr.

Sabo’s condition both prior to, and following, the injury is relevant.

At the time of his injury, Mr. Sabo was a resident of the Illinois Department of Veterans’ Affairs long term care facility in Anna, Illinois. Mr. Sabo suffered from multiple sclerosis and could not ambulate well, as is evident for the need for a Broda Chair. On October 14, 2014, Illinois Veteran’s Home Nursing Assistant William Frisbee attempted to transfer Mr. Sabo from his bed to his Broda Chair by himself. Mr. Frisbe did so despite Mr. Sabo’s care plan requiring that such a move be performed by two persons along with the assistance of a mechanical lift.

Unfortunately, Mr. Frisbee acting without assistance was unsuccessful in transferring Mr. Sabo.

Mr. Sabo fell to the ground fracturing his femur, the strongest bone in the body.

Mr. Sabo was taken via ambulance to Union County Hospital for treatment. From there Mr. Sabo was transferred to Southern Illinois Healthcare where he underwent surgery to repair his femur. The surgery included the placement of plates secured by multiple screws. After the surgery Mr. Sabo suffered from an infection and had to receive further medical treatment. Once all of this was concluded, Mr. Sabo received physical therapy at Southern Orthopedics. The total for Mr. Sabo’s medical care equaled $56,902.11.

Because of Mr. Sabo’s condition at the time of the injury, this case presents the question of whether the person’s physical condition at the time of the injury results in damages sustained that are different than what would have been expected for the average person.

Where there is an aggravation of a pre-existing condition this Court considers the preexisting condition as a factor in assessing damages. See Kmetz v. State. 68 Ill.Ct.Cl. 107 (2016) also Vander Zanden v. State. 73 Ill.Ct.Cl. 98 (2021). Regardless of a Claimant’s pre-existing medical conditions, a tortfeasor is liable for the injuries he proximately causes and may not be relieved of such liability by establishing that the claimant’s injuries would have been less severe if inflicted upon another person. Chicago City Ry. Co. v. Saxby. 213 Ill. 274, 279 (1904); Voykin v. Estate of DeBoert, 192 Ill.2d 49, 57 (2000) (reaffirming the proposition that a plaintiff’s aggravation of a pre-existing injury does constitute damages that the defendant is liable for so long as he is cause for such aggravation). The aforementioned cases are directly applicable and establish that Claimant’s underlying condition does not relieve Respondent of liability for his damages, even if a claimant without a pre-existing condition may have suffered more damages.

With that said there is no doubt that Mr. Sabo suffered damages. He broke his femur. He endured a surgery that included plates and screws. He got an infection and needed further treatment.

Finally, he received physical therapy. No doubt he suffered greatly and lived with this pain for over 5 years before his death in 2019.

[*283] While his pre-injury condition may have lessened the amount of pain he sustained, it does not eliminate his injury and the effect the injury had on him while recovering. Mr. Sabo is certainly entitled to damages for the injury he sustained due to Respondent's negligence, including damages for pain and suffering. Based upon the record of this case, Mr. Sabo is awarded $250,000.00 for his injury, his associated pain and suffering and non-Respondent paid medical bills of $54,015.23.

The final issue is whether Claimant is entitled to recover his attorney's fees pursuant to §3-602 of the Illinois Nursing Home Care Act. While this seems to be a simple statutory review issue, the question on whether a fee shifting provision applies in this case is more complicated. §3-602 provides: "The licensee shall pay the actual damages and costs and attorney's fees to a facility resident whose rights, as specified in Part I of Article II of this Act, are violated."

See 210 ILCS 45/3-602. Thus, we must look to Part I of Article II, "Resident Rights" of the Nursing Home Care Act to determine if any rights have been violated. The only applicable section in Part I of Article II that applies to this case is §2-107, which provides that "An owner, licensee, administrator, employee or agent of a facility shall not abuse or neglect a resident." See 210 ILCS 45/2-107. The next step is to determine if the action of Mr. Frisbee, in not following Mr. Sabo's care plan and allowing him to fall, constitutes either "abuse" or "neglect" under the Nursing Home Care Act. The Nursing Home Care Act defines "abuse" as "…any physical or mental injury or sexual assault inflicted on a resident other than by accidental means in a facility." See 210 ILCS 45/1-103. This is not a case of abuse. The Nursing Home Care Act defines "neglect" as "…a facility's failure to provide, or willful withholding of, adequate medical care, mental health treatment, psychiatric rehabilitation, personal care, or assistance with activities of daily living that is necessary to avoid physical harm, mental anguish, or mental illness of a resident." See 210 ILCS 45/1-117.

Applying the "neglect" definition to the facts of this case justifies an award of attorney's fees. The stipulated facts of this case are that Respondent's employee failed to follow Mr. Sabo's medical plan and dropped him while trying to transfer him from his bed to a Broda chair. These facts constitute a failure to provide adequate "…personal care, or assistance with activities of daily living that is necessary to avoid physical harm…" See ILCS 45/1-117. Since the facts of this case fall within the definition of neglect under the Nursing Home Care Act, the fee shifting provision of §3-602 applies.

The above interpretation of the meaning of "neglect" under the Nursing Home Care Act is consistent with the Illinois Supreme Court case of Harris v. Manor Healthcare Corporation, 111 Ill.2d 350 (1986). In Harris, the Court was asked whether negligent conduct allowed for treble damages under the previous version of §3-602. See Harris, 111 Ill.2d at 367. While not precisely the same issue as before the Court in this case, the analysis of whether negligent conduct was neglect under §3-602 is the same.¹ ¹In Harris the Supreme Court considered §3-602, which at that time provided: "§3-602. The licensee shall pay 3 times the actual damages, or $500, whichever is greater, and costs and attorney's fees to a facility resident whose rights, as specified in Part I of Article II of this Act, are violated." In 1995 the statute was amended and deleted the treble damages provisions so it now reads in its present form: §3-602. The licensee shall pay the actual damages and costs and attorney's fees to a facility resident whose rights, as specified in Part I of Article II of this Act, are violated." See 210 ILCS 45/3-602. While the statute is slightly changed the analysis in Harris. i.e., whether "neglect" under the statute includes negligence, still applies.

[*284] The Supreme Court held that negligence was synonymous with “neglect” under the Nursing Home Care Act writing: “The Act defines “neglect” as “a failure in a facility to provide adequate medical or personal care or maintenance, which failure results in physical or mental injury to a resident or in the deterioration of a resident’s physical or mental condition. [citation omitted] The term “adequate care” has been defined as: “[s]uch care as a man of ordinary prudence would himself take under similar circumstances to avoid accident * * *.” [citation omitted] As such, we construe the term “adequate care” to be synonymous with ordinary care, “due care,” or “reasonable care” - terms that have been used interchangeably to describe the standard of care for negligence. . . . Therefore, we agree that the Act allows for the award of treble damages for negligent conduct.” See Harris v. Manor HealthCare Corp., 111 Ill. 2d 350, 366-67, 489 N.E.2d 1374, 1381 (1986).

The Nursing Home Care Act was amended nearly ten years later in 1995, and the General Assembly did not amend the statute to negate the Supreme Court’s interpretation that negligent conduct was synonymous with “neglect” under the Nursing Home Care Act. Thus, the Harris interpretation stands to this day.

Respondent argues that the Illinois Department of Public Health undertook an investigation in relation to the fall of Mr. Sabo and determined that the facts did not constitute a finding of “neglect”. As such Respondent argues that §2-603 fee shifting provision for neglect does not apply in this case because the Illinois Department of Public Health found no neglect.

See Exhibit A, pg. 16. There are a couple of deficiencies in Respondent’s argument. First, the determination of a regulatory agency is not binding upon this Court when it is considering a tort action. As the Fourth Appellate District Court recognized in Springfield Associates v. Lumpkin there is a distinction between a regulatory action and a tort action. See Springfield Associates v. Lumpkin, 239 Ill. App.3d 771, 778 (4th Dist. 1992). In Springfield Associates, the Appellate Court was asked whether negligence was prerequisite to a finding of a regulatory violation. The Appellate Court held in the negative wrote: “Springfield’s reliance on these cases is misplaced as they deal with a negligence cause of action, rather than a nursing home’s failure to meet the minimum standards promulgated by the regulatory agency. We are unaware of any authority for the extension of the negligence analysis to violations of the regulations of a regulatory agency. Moreover, examination of the Act and regulations reveal no intent to implement a negligence analysis in the case of regulatory violations.” Springfield Associates v. Lumpkin, 239 Ill. App. 3d 771, 776 (4th Dist. 1992).

The converse is likewise true; a determination by a regulatory agency is not binding upon this Court. In addition, Respondent’s argument would create the unusual circumstance wherein Respondent, through one of its agencies, would make a determination as to whether Respondent had to pay attorney’s fees. This Court holds that whether the conduct of Respondent justifies a fee shifting award under the Nursing Home Care Act is a question to be determined by this Court based upon the facts of each case.

As stated above the facts of this case warrant the issuance of attorney’s fees per §3-602 of the Nursing Home Care Act. The next question is the amount of attorney’s fees. A review of [*285] the pleadings shows that there was no specific amount requested. However, the Court of Claims Act provides direction as to the amount of attorney's fees, § 505/26-1 of the Court of Claims Act provides: "Except as otherwise provided herein, the maximum contingent fee to be charged by an attorney practicing before the Court shall not exceed 20 percent of the amount awarded, which is in excess of the undisputed amount of the claim, unless further fees shall be allowed by the Court. See 705 ILCS 505/26-1. The court will follow §505/26-1 and award Claimant 20% of the award in attorney's fees. As the award in this case is $250,000.00, Claimant is awarded $50,000.00 in attorney's fees.

IT IS HEREBY ORDERED that Claimant's claim is GRANTED. Claimant is awarded $250,000.00 in damages and $50,000.00 in attorney's fees.