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Healthcare Practice
have issued a wide variety of rulings depending largely on venue. For example, defendants recently found success when a DuPage County Circuit Court partially granted a defendant nursing home’s motion to dismiss, holding it was covered under the Order and defendant was entitled to immunity.4 However, defendants in Cook County have been wholly unsuccessful in persuading the court to dismiss complaints because of immunity.
Kane County, a western region of the state, has
at least recognized the differences of opinion
in interpreting the extent of immunity granted
by Governor Pritzker’s Order. On April 29, 2022,
the Sixteenth Circuit certified a question to the
Appellate Court pursuant to Supreme Court Rule
308, asking whether the Executive Order 2020-
19 provides “blanket immunity for ordinary
negligence to healthcare facilities that rendered assistance to the State during the COVID-19 pandemic”.5 In doing so, the Appellate Court was tasked for the first time with evaluating the scope of immunity provided to health care facilities in Governor Pritzker’s Order. The Sixteenth Circuit has stayed all discovery while this question makes its way through the Appellate Court. Cook County, on the other hand, has disregarded the appeal and has ordered parties to move forward with discovery.
After parties began to brief the certified question, the Appellate Court allowed the Illinois Trial Lawyers Association (“ITLA”) to file an Amicus brief in support of the Plaintiffs. ITLA argued that the plain language of the Order did not provide immunity for ordinary negligence to healthcare facilities that remained operational during COVID-19, and that an interpretation of the Order that gives defendants blanket immunity would be “nonsensical.”6 Shortly after ITLA filed its brief, the Appellate Court ordered the Attorney General (“AG”) to file an Amicus brief to elucidate the State’s position on the immunity issue. The AG also relied on the theory of statutory construction and agreed that the Order does not provide blanket immunity.7 The Appellate Court is expected to hear oral arguments on this issue in March or April of this year.
As of this point, the future of COVID-19 nursing home litigation is unknown and largely depends on the higher courts’ interpretation of Executive Order 2020-19. We hope to receive decisions from the Appellate Court this year, although a petition for leave to appeal to the Supreme Court is likely.
Anne Oldenburg is a Partner at Hepler Broom, LLC in Chicago, IL. Contact her at: Anne.Oldenburg@heplerbroom.com.
4 Wayne v. Providence Operations LLC, et al., Civ. Action No. 2021L001356 (18th Dist., Jan. 10, 2023).
5 Doneske v. Geneva Nursing and Rehab. Ctr., LLC, Civ. Action No. 2020L00259
(16th Dist. Apr. 29, 2022).
6 Ill. Trial Lawyers Assoc.’s Amicus Brief, Doneske et. al, v. Geneva Nursing and Rehab. Ctr., LLC,
2-22-0180 (Sept. 1, 2022).
7 Atty. Gen.’s Amicus Brief, Doneske et. al, v. Geneva Nursing and Rehab. Ctr., LLC, 2-22-0180
(Jan. 1, 2023).
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FDCC ANNUAL INSIGHTS 2023