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Anne M. Oldenburg
What to Expect in 2023: Illinois Nursing Home COVID-19 Litigation “Quarantined” in Appellate Court
By Anne M. Oldenburg
Illinois nursing homes and long-term care facilities are under fire in the aftermath of the COVID-19 pandemic. Hundreds of actions have been filed against nursing homes and long-term care facilities in Cook County alone. As the number of actions rise, the future of these cases is still unclear as litigation is presently making its way through the Appellate Court. In the interim, the various circuit courts continue to take varied and inconsistent positions.
On March 9, 2020, Illinois Governor J.B. Pritzker declared a First Gubernatorial Disaster Proclamation and issued an Executive Order in response to the COVID-19 outbreak pursuant to the Illinois Emergency Management Agency Act.1 Shortly after, on April 1, 2020, Governor Pritzker issued Executive Order 2020-19 (“Order”), which directed health care facilities to render assistance in support of the State’s response to the disaster by undertaking “measures such as increasing the number of beds, preserving personal protective equipment, or taking necessary steps to prepare to treat patients with COVID-19.”2 In exchange for their assistance, the Order granted immunity from civil liability for any injury or death that occurred when rendering that assistance to the State unless it could be established that the injury or death was caused by gross negligence or willful and wanton misconduct.3 This Order remained in effect through the duration of the Gubernatorial Disaster Proclamation.
Despite these protections, numerous civil actions were filed against long-term care facilities starting in May of 2020. However, instead of limiting complaints to allegations of willful and wanton acts or omissions so as to stay outside the scope of the Order, plaintiffs have also made allegations of ordinary negligence, wrongful death, and violations of the Illinois Nursing Home Care Act and Illinois Survival Act.
Unsurprisingly, throughout the state, the circuit courts have not been aligned in their interpretation of Governor Pritzker’s Order when faced with complaints alleging negligence and violations of seemingly protected acts. Accordingly, courts
1 2 3
See First Gubernatorial Disaster Proclamation (Mar. 9, 2020). EO 2020-19 §2 (Apr. 1, 2020).
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FDCC ANNUAL INSIGHTS 2023