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October 1, 2003 - Nursing home can be sued for not telling family of death

A Chicago-based nursing home can be sued for intentional infliction of emotional distress after its employees failed to inform a family that a relative had died and had been buried, a state appeals panel ruled on Wednesday.

The 1st District Appellate Court revived two sisters' complaint against The Garden View Home Inc. after finding that it was improperly dismissed by a Cook County judge. The case was remanded Wednesday to trial court for further proceedings.

"If true, these actions by Garden View are outrageous and so extreme in degree as to go beyond the bounds of decency," wrote Justice Ellis E. Reid in a 17-page opinion unpublished pursuant to Illinois Supreme Court Rule 23.

Lillybelle Leslie was a resident at Garden View from Aug. 25, 1997, until she died on Oct. 29, 1998.

When Leslie was admitted to the nursing home, she was accompanied by her sister, Geraldine Lehman, who provided nursing home administrators with contact information for herself and another sister, Ruth Scott, Reid wrote.

Lehman also informed the nursing home that Leslie's mother, Margaret Leslie, lived in Wisconsin, Reid added. An admission intake form included a notation that Leslie had two sisters, Lehman and Scott.

Lehman and Scott occasionally visited Leslie at Garden View and, during their last visit in August, 1998, she appeared to be in good health, Reid wrote. However, shortly after, Leslie was hospitalized for a recurrence of malignant melanoma. She was repeatedly hospitalized for chemotherapy but Garden View never notified family members, Reid wrote.

When Scott and another sibling went to Garden View in February 1999 to inform Leslie that their mother had died, nursing-home employees told them that Leslie had died on Oct. 29, 1998.

"Garden View also informed them that Leslie's remains had been turned over to Barr Funeral Home. Garden View informed Barr that Leslie did not have any family," Reid wrote. "This was the first time that Leslie's family was notified of her death and subsequent burial."

In October 2000, Scott and Lehman filed a complaint against Garden View which accused the nursing home of intentional infliction of emotional distress as well as tortious interference with the next of kin's right to preservation and possession of the body.

The case was dismissed in May, 2002, by Circuit Judge Sheldon Gardner, who ruled that Scott and Lehman failed to sufficiently state a cause of action for intentional infliction of emotional distress or the next of kin's right to preservation and possession of Leslie's body.

Citing Public Finance Corp. v. Davis, 66 Ill.2d 85, 89-90 (1976), Reid wrote: "To state a cause of action for the intentional infliction of emotional distress, the plaintiff must allege facts that establish the conduct of the defendant was extreme and outrageous; that the emotional distress suffered by the plaintiff was severe; and, in cases where the plaintiff alleges that the defendant's conduct was 'reckless,' that the defendant's conduct was such that the defendant knew severe emotional distress would be certain or substantially certain to result."

Lehman and Scott pleaded specific facts which "would demonstrate that Garden View's actions were in conscious disregard of, and in utter indifference to, their rights," Reid wrote.

The sisters alleged that Garden View employees failed or refused to notify them of Leslie's illness and subsequent death, Reid noted.

"Garden View then falsely informed Barr that Leslie had no family members and turned over her remains to Barr for burial without their approval," wrote Reid, who noted that the funeral home performed a pauper's burial of Leslie's remains.

The appeals panel also found that the sisters properly stated a cause of action based on the next of kin's right to possession and preservation of a body, which requires plaintiffs to demonstrate, using specific facts, that a defendant's conduct was willful and wanton, said Reid, citing Kelso v. Watson, 204 Ill.App.3d 727, 731 (1990).

Garden View employees not only had family contact information for Leslie, but it is alleged that they "purposefully did not contact the decedent's family members," Reid wrote. "The appellants have alleged that Garden View falsely informed Barr that Leslie did not have any family members. This is not inadvertent behavior."

Justices Calvin C. Campbell and Neil Hartigan concurred.

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