History of Attorney’s Fees Under the Illinois Nursing Home Care Act

In the Winter 2020 edition of Trial Journal magazine, Levin & Perconti partners Margaret P. Battersby Black and Michael F. Bonamarte IV shared their review of how the Illinois Nursing Home Care Act provides for attorney’s fees and costs to successful litigants. In the article, the attorneys discuss the uncertainty many plaintiff’s attorneys have about the calculation of fees and costs allowed when taking on nursing home cases. This ambiguity has existed since Berlak v. Villa Scalabrini Home for the Aging, Inc., one of the first cases to interpret the statutory attorney’s fees provision of the Act, finding them mandatory.

  • The requirement that the licensee pay the prevailing resident’s attorney’s fees is mandatory as evidenced by the legislature’s use of the word “shall” in the statute. Ordinarily, the use of the word “shall” in a statute is indicative of a mandatory legislative intent.

In Berlak, the plaintiff was awarded $7,478.96 in damages. Ultimately the Berlak court determined that a fee of $85,000.00, far exceeding the recovery and calculating fees based on an hours times rate format, was appropriate. Since Berlak, no case had been decided where the plaintiff argued that a contingency fee was the proper and reasonable method to calculate attorney’s fees and has remained a source of ambiguity regarding the impact of a potential verdict on the defendant.

Levin & Perconti’s Record-Breaking Win: Grauer v. Clare Oaks

In Grauer v. Clare Oaks, the First District Appellate Court upheld the trial court’s award of attorney’s fees based on a contingency fee agreement where the jury awarded $4,111,477.66 in damages. The most significant part of the Grauer opinion for plaintiff cases moving forward is the appellate court’s confirmation that “costs” as included in the Nursing Home Care Act mean all reasonable litigation expenses. In Grauer, the trial court’s award of $147,471.55 in costs included reimbursement for testifying experts’ fees; trial exhibits, trial technology and video editing; obtaining medical records, court costs, fees of court reporters and videographers for depositions, fees of court reporters at the trial, production expenses for a day-in-the-life video, and expenses of travel for expert depositions.

It is not unusual for a nursing home case to cost tens if not hundreds of thousands of dollars to prosecute through completion. The state lacks the resources to police these homes, and private citizens would be unwilling and unable to do so without private attorneys who know they can recoup these costs if they are successful.

It is right and appropriate for attorneys to use every tool available to advocate for their clients, especially when facing an adversary with such extreme power and financial resources as the private nursing home industry. As the appellate court held in Grauer, the Illinois Nursing Home Act empowered attorneys at Levin & Perconti to provide this zealous representation. We take great pride in our track record as advocates for nursing home residents and will continue to seek justice for them and their families.

“Our Clients Are Best Served When We Focus on Getting the Best Results”

For nearly three decades, we have successfully defended the rights of the elderly against nursing homes. Call us now (312) 332-2872 for a FREE consultation with one of our nursing home abuse and neglect attorneys.

Also read: Coverage of “Costs” Is Crucial to Providing Zealous Representation