March 2016 Case Notes & Comments

Times of transition are strenuous, but I love them. They are an opportunity to purge, rethink priorities, and be intentional about new habits."
~ Kristin Armstrong - Author, Olympian & Mother

MONTHLY QUIZ:  Resident files a personal injury action against the long-term medical care Facility where he lives. According to Resident, he was physically assaulted by Aggressor, another resident of the Facility, who was receiving treatment for dementia. During discovery, Resident requests that Facility produce records and information regarding Aggressor. Specifically, Resident seeks information as to whether any complaints had been made regarding Aggressor, and documentation of any past incidents involving Aggressor. Facility objects, asserting that the discovery requests seek information protected by the health insurance portability and accountability act (HIPAA). Resident files a motion to compel production of the records, and the trial court grants the motion. Nevertheless, Facility stands by its objection, refuses to produce the records, and is ruled in contempt of court. The appellate court is now called upon to review the lower court's contempt ruling. Should the appellate court affirm or reverse the lower court's order? You be the judge. (Answer below)


APPLICABILITY OF SNOW AND ICE REMOVAL ACT: Plaintiff was injured following a slip and fall on ice on the sidewalk outside her condominium.  Plaintiff sued Condominium Owner and Management Company alleging their negligent maintenance of the property created an unnatural accumulation of ice which caused her fall.  In her complaint, discovery responses and testimony, Plaintiff stressed that she was not alleging negligent shoveling or removal of snow and ice, but an unnatural accumulation caused by defective construction (i.e., drainage from downspouts) or improper/insufficient maintenance of a premises (negligent landscaping causing runoff and pooling).  The Illinois Snow and Ice Removal Act ("Act") provides immunity for any personal injuries to owners, lessors, occupants and others in charge of residential property who remove or attempt to remove snow or ice from sidewalks abutting their property unless the alleged misconduct was willful or wanton. The Trial Court held that the Act applied to Owner and Management Company and entered summary judgment. However, the Appellate Court reversed, holding that allegations of negligence in snow and ice removal efforts are required to trigger the immunity under the Act. Here, the Act did not apply as the complaint was silent regarding negligent snow/ice removal efforts, but rather was grounded in allegations that the defendants negligently maintained or constructed their premises.  Murphy-Hylton v. Lieberman Management Services, Inc., 2015 IL App (1st) 142804 (December 21, 2015).   


WORKERS' COMPENSATION LIEN WAIVER: Roofer tripped and fell through a skylight on a commercial building and died from his injuries.  A workers' compensation claim was filed on behalf of the Roofer's surviving sons, resulting in an award for weekly benefits. Roofer's Estate filed a wrongful death action against the Tenant and Owner of the building, who in turn filed a contribution claims against Roofer's Employer. Though Employer refused to compromise its workers' compensation lien, Estate and defendants reached a settlement whereby defendants would pay $745,000 to the Estate and assign their contribution claims against Employer.  The Estate proceeded to trial on the contribution action against Employer, which resulted in a finding that the Employer was 100% at fault for the Roofer's death.  Following the verdict, Employer waived its workers' compensation lien and moved to dismiss the contribution claims based on that waiver.  Over Plaintiff's objection, the court allowed Employer's waiver, and entered judgment against Employer for $35,000, representing the additional workers' compensation benefits incurred between the time of the underlying settlement and the judgment in the contribution trial.  Plaintiff appealed, arguing that Employer should be barred from waiving its lien after a verdict. In a prior decision, LaFever v. Kemlite Co., 185 Ill. 2d 380 (1998), the Illinois Supreme Court held that an employer may avoid or satisfy its liability for contribution by waiving its workers' compensation lien and agreeing to forego any reimbursement for workers' compensation payments made to the employee, even if such lien waiver occurred after a verdict was rendered. Though Plaintiff argued that LeFever was distinguishable on its facts, the Appellate Court re-affirmed LaFever and held that Employer was permitted to waive its workers' compensation lien even after an adverse verdict, regardless of whether the contribution action is tried separately.  Cozzone v. Garda GL Great Lakes, Inc. et al, 2016 IL App (1st) 151479 (February 11, 2016).  


INSURER OBLIGATED TO DEFEND WRONGFUL DEATH ACTION DESPITE INTENTIONAL ACT AND CONTROLLED SUBSTANCE EXCLUSIONS: Insurer issued a homeowners' policy to Insureds (homeowners and their Son) which excludes liability for bodily injury "arising out of the use" of a controlled substance. However, the policy provides an exception for "the legitimate use of prescription drugs by a person following the orders of a licensed physician."  Son (who used prescription methadone) met Decedent at a tavern and brought Decedent back to the Insureds' home. The following morning, Homeowners and Son found Decedent unresponsive in Son's bedroom, but took no action until that evening, when Decedent is determined to have died of methadone intoxication. "Date-rape drugs" are found in Decedent's system. Decedent's Estate sues Insureds, alleging that Son drugged Decedent, either deliberately administered or negligently stored the methadone, sexually battered Decedent, and failed to request medical assistance. Relying on policy exclusions, Insurer filed a declaratory judgment regarding its duty to defend the suit filed by Decedent's Estate. The trial court granted summary judgment for Insurer, finding no duty to defend because the claim did not involve an "occurrence," but rather, an expected or intended injury. However, the appellate court reversed, finding a genuine issue of material fact as to whether Decedent's death was caused solely by her methadone ingestion. The four corners of the complaint alleged negligent conduct, and described a lengthy period of time during which Son or Homeowners could have sought medical assistance. According to the Appellate Court, factual issues existed as to whether Decedent would have died had Insureds or Son called 911, and whether "other potential causes" including "genetic predisposition and a prior history of drug abuse" could have contributed to the death. In view of the factual issues, the Appellate Court ruled that Insurer owed a duty to defend. Skolnik et al. v. Allied Prop. and Cas. Ins. Co., 2015 IL App (1st) 142438 (Dec. 22, 2015, modified Jan. 26, 2016).


ANSWER TO QUIZ: The Facility was correct in withholding the requested documents pursuant to HIPAA. There is no dispute that the items requested were medical records, and that Aggressor was receiving medical care while a resident at the Facility. The definition of "mental health or developmental disabilities services" contained in HIPAA is "very broad." In addition, HIPAA protects "any record" or "communication" kept by an agency in the course of providing services to a patient.  All of the documents in question (including notes, evaluations, care plans, and information forms) were prepared by nurses or social workers at the Facility in the course of providing care to Aggressor.  Accordingly, release of the records would have violated HIPAA.  Stuckey v. The Renaissance at Midway, Inc., 2015 IL App (1st) 143111 (Dec. 18, 2015). 


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