HeplerBroom Blog

The question of what constitutes “apparent agency” in the context of alleged medical malpractice continues to be analyzed by the Illinois appellate courts. The issue was first addressed by the Illinois Supreme Court in the case of Gilbert v. Sycamore Municipal Hospital. 156 Ill.2d 511 (1993). In Gilbert, the Court set forth a multi-factor test to determine whether a hospital could be held vicariously liable for the alleged acts of its independent contractor physicians. Id. at 525. Specifically, in order to hold a hospital liable under the theory of “apparent agency,” a plaintiff must show that: “(1) The hospital, or…
The Illinois Supreme Court recently decided Sienna Court Condominium Ass’n v. Champion Aluminum Corp., 2018 IL 122022 (December 28, 2018). The case raised a rather straightforward question: May the purchaser of a newly constructed home assert a claim for breach of an implied warranty of habitability against a subcontractor who had no contractual relationship with the purchaser? The Court held that the purchaser could not assert such a cause of action, regardless of the general contractor’s insolvency or the unavailability of recourse against the general contractor. This ruling overturned the decades-long rule established in Minton v. The Richards Group of…
The Nursing Home Care Act (“Act”) was born of concerns about reports of inadequate or improper treatment of residents in such facilities and provided residents with a cause of action against those facilities. To encourage residents, residents’ families, and attorneys to bring claims against nursing homes, the Act originally provided that a resident whose rights were violated could recover “3 times the actual damages . . . and costs and attorney’s fees.” 210 ILCS 45/3-602. That rather draconian remedy was subsequently challenged as being unconstitutional but was ultimately upheld by the Illinois Supreme Court in Harris v. Manor Healthcare Corp.,…
The United States Environmental Protection Agency (“Agency”) issued guidance on April 15, 2019, “clarifying” that releases of pollutants from point sources to groundwater are not subject to the Clean Water Act’s permitting requirements. The Agency, however, announced that its interpretation only applies to states outside the Fourth and Ninth Circuits, because those Courts of Appeal have ruled exactly the opposite on this issue. Upstate Forever v. Kinder Morgan Energy Partners, L.P., 887 F.3d 637 (4th Cir. 2018) (“Kinder Morgan”); Hawai’i Wildlife Fund v. County of Maui, 881 F.3d 754 (9th Cir. 2018) (“County of Maui”). The Fourth Circuit in Kinder…
Illinois law provides specific rules that nursing homes must follow when discharging or transferring a resident when the resident does not agree to the discharge/transfer (an “involuntary discharge/transfer”). 210 ILCS 45/3-401 et seq. If the resident requests a hearing on the discharge/transfer, an attorney must represent the nursing home during the hearing/appeal process if the nursing home is operated by a corporate entity or limited liability company. Stone Street Partners, LLC v. The City of Chicago Dept. of Admin. Hearings, 2014 IL App (1st) 123654. Before the hearing, however, the nursing home must follow specific rules to facilitate the resident’s…
Under certain circumstances, Missouri nursing homes may discharge or transfer a resident even when the resident does not agree to the discharge/transfer (an “involuntary discharge/transfer”). If the resident appeals the discharge/transfer, Missouri law requires that an attorney represent the nursing home during the hearing/appeal process if the nursing home is operated by a corporate entity. 19 CSR 30-82.050(12). Before the hearing, however, the nursing home must follow specific rules to facilitate the resident’s discharge/transfer. Missouri Rules on the Pre-Appeal Process Missouri nursing homes may involuntarily discharge/transfer residents for the following reasons: 1) the nursing home cannot meet the resident’s health…
On November 4, 2015, the Illinois Supreme Court reversed the decision of the Appellate Court of Illinois, for the First District in Folta v. Ferro Engineering. The Supreme Court held that the Workers’ Compensation Act and Workers’ Occupational Diseases Act provides the exclusive remedy for an employee’s injury arising out of and in the course of his or her employment, even when the employee first learns of the injury after the expiration of the applicable statutes of repose. Folta v. Ferro Eng’g, 2015 IL 118070, ¶ 52, 43 N.E.3d 108, 120 In Folta, the plaintiff’s decedent was allegedly exposed to…
The federal Resource Conservation and Recovery Act (“RCRA”) authorizes a citizen suit against “any person” who has violated “any permit, standard, regulation, condition, requirement, prohibition, or order which has become effective pursuant to this chapter,” or “who has contributed or who is contributing to the past or present handling, storage, treatment, transportation, or disposal of any solid or hazardous waste which may present an imminent and substantial endangerment to health or the environment.” 42 U.S.C. § 6972(a)(1). Disputes between private parties regarding environmental contamination at a property sometimes result in one side threatening to bring a citizen suit under the…
This is not about restrictions on how you cook your eggs or hunt game out of season. But read on if you are an employer and want to know about a serious and growing antitrust risk, heightened by federal and state antitrust enforcement as well as private litigation. Agreements to refrain from soliciting another company’s employees (“no poaching” agreements) face increased scrutiny — with potential criminal consequences. In close alignment, there is a spate of new “wage-fixing” cases, a variant of price fixing. It all started with three cases brought by antitrust enforcement agencies against several major high-tech companies, including…
February 20, 2019 – On February 15, the Federal Trade Commission (FTC) published increased reporting thresholds under the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended (HSR Act). The new thresholds represent an approximate 6.6 percent increase over last year’s thresholds. They are expected to be published in the Federal Register during the week of February 18, 2019, and they will become effective 30 days after the date of their publication. This year’s revised thresholds were delayed due to the government shutdown in January. The revised thresholds will remain in effect until the FTC’s next annual adjustment expected in the…
The Biometric Information Privacy Act (BIPA) establishes safeguards and procedures relating to the retention, collection, disclosure, and destruction of biometric data. Passed in October 2008, BIPA is intended to protect a person’s unique biological traits—the data encompassed in a person’s fingerprint, voice print, retinal scan, or facial geometry. This information is the most sensitive data belonging to an individual. Unlike a PIN code or a social security number, once biometric data is compromised, “the individual has no recourse, is at [a] heightened risk for identity theft, and is likely to withdraw from biometric-facilitated transactions.” 740 ILCS 14/5(c). For this reason,…