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03/31/97 FRANCISCA HERNANDEZ v. WOODBRIDGE NURSING

March 31, 1997

FRANCISCA HERNANDEZ, PLAINTIFF-APPELLEE,
v.
WOODBRIDGE NURSING HOME, DEFENDANT-APPELLANT.



APPEAL FROM THE CIRCUIT COURT OF COOK COUNTY. HONORABLE KATHY M. FLANAGAN, JUDGE PRESIDING.

Released for Publication May 12, 1997.

The Honorable Justice McNAMARA delivered the opinion of the court. Wolfson, P.j., and Burke, J., concur.

The opinion of the court was delivered by: Mcnamara

The Honorable Justice McNAMARA delivered the opinion of the court:

Defendant, Woodbridge Nursing Home, appeals from an order denying its motion to strike a prayer for treble damages for injuries plaintiff, Francisca Hernandez, allegedly sustained as a resident of the nursing home. Plaintiff filed her complaint on February 23, 1995, and seeks treble damages under section 3-602 of the Illinois Nursing Home Care Act (210 ILCS 45/3-602 (West 1994)), as it existed on that date. During the pendency of plaintiff's action, the treble damages provision of section 3-602 was repealed by Public Act 89-197. Pub. Act 89-197, eff. July 21, 1995 (amending 210 ILCS 45/3-602 (West 1994)). The sole issue on appeal is whether the amended section 3-602 shall apply to causes of action accruing and actions filed prior to July 21, 1995. The trial court entered an order certifying the question for interlocutory appeal to this court. 155 Ill. 2d R. 308. For the reasons set forth below, we hold that the trial court properly denied defendant's motion to strike plaintiff's claim for treble damages.

On February 23, 1995, plaintiff filed a one-count complaint against Woodbridge. The complaint alleges that, in August 1993, as a resident of the nursing home, plaintiff fell while attempting to transfer herself from her wheelchair to a toilet seat. The complaint also alleges that, in October 1993, plaintiff fell again when a Woodbridge employee could not support her during a transfer from a toilet seat to her wheelchair. The complaint alleges that defendant acted negligently in providing inadequate surveillance and supervision; in failing to evaluate plaintiff's risk of falling; in allowing plaintiff to fall in August and October 1993; and in not providing adequate medical care after her falls.

At the time the alleged negligence occurred in 1993, and when plaintiff filed her complaint on February 23, 1995, section 3-602 of the Illinois Nursing Home Care Act (210 ILCS 45/3-602 (West 1994)) provided:

" § 3-602. The licensee shall pay 3 times the actual damages, or $500, whichever is greater, and costs and attorney's fees to a facility resident whose rights, as specified in Part 1 of Article II of this Act, are violated." 210 ILCS 45/3-602 (West 1994).

While plaintiff's action was pending, the Illinois General Assembly enacted Public Act 89-197, effective July 21, 1995. Among other changes, Public Act 89-197 repealed the treble damages provision of section 3-602. Pub. Act 89-197, eff. July 21, 1995 (amending 210 ILCS 45/3-602 (West 1994)). Section 3-602 now provides:

" § 3-602. The licensee shall pay the actual damages and costs and attorney's fees to a facility resident whose rights, as specified in Part 1 of Article II of this Act, are violated." 210 ILCS 45/3-602 (West Supp. 1995).

Upon enactment of Public Act 89-197, defendant moved to strike plaintiff's claim for treble damages. On February 28, 1996, the trial court denied defendant's motion. The court found it significant that both the incidents giving rise to plaintiff's cause of action and the filing of plaintiff's complaint occurred prior to the legislature's repeal of the treble damages provision. In conjunction with its decision, the trial court, pursuant to Supreme Court Rule 308 (155 Ill. 2d R. 308), certified the following question of law for review by this court:

"May a plaintiff plead (and ultimately be awarded) treble damages for violation of the Nursing Home Health Care Act (210 ILCS 45/1-101 et seq.) where a cause of action accrued (injury occurred) and where the lawsuit was filed at a time when the Act provided for treble damages, the Act later being amended to delete the treble damages provision?"

On May 28, 1996, this court granted leave to appeal pursuant to Rule 308 (155 Ill. 2d R. 308).

Recently, the fifth district of this court addressed the identical issue before us. In Weimann v. Meadow Manor, Inc., 220 Ill. Dec. 872, 285 Ill. App. 3d 455, 674 N.E.2d 143 (1996), the certified ...


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