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Nursing Home litigation has increased significantly in Illinois in recent years in large part due to the failure of Illinois to institute damages caps and eliminate attorney’s fees from their nursing home statute. Attorneys’ fees are recoverable under the Nursing Home Care Act. In fact, the Illinois Nursing Home Care Act provides for fee shifting and specifically states that “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. An attorney’s fees in a matter worked up through trial can be significant, and those fees are paid in addition to a jury award. Consideration of these potential fees is an obstacle that should be addressed in settlement discussions.

The Nursing Home Care Act does not contain any guidance for how to calculate attorneys’ fees or costs. Importantly, the fees allowed are not limited by any contingency fee contract that may exist.

Courts have allowed plaintiffs to use a lodestar calculation, which utilizes an hourly rate. Recently, the First District Appellate Court issued an unpublished opinion in Grauer v. Clare Oaks, No. 1-18-0835 (June 28, 2019) that provides insight into how an Illinois Appellate Court will interpret the fee shifting provision of the Illinois Nursing Home Care Act.

The opinion addresses the calculation of attorneys’ fees in nursing home cases and allows for a plaintiff who prevails in a claim under the Illinois Nursing Home Care Act to base the post-judgment fee petition on a 1/3 contingency fee contract rather than on an hourly rate method (lodestar method), which was argued by the defendant as the proper basis to calculate a reasonable fee. The court ruled that use of the lodestar method of calculating fees (based on multiplying the number of hours by an hourly rate) was not mandatory in all cases: “...[W]hile it is true that the lodestar method will be the most useful starting point in many cases, ‘it is not the only starting point.’” Grauer, pg. 59, citing, Kirchoff v. Flynn, 786 F. 2d 320, 324 (7th Cir. 1986). Instead, the court held that the trial judge has discretion to consider the contractual fee arrangement between the attorney and the client as one factor in determining the reasonable fee. In Grauer, the jury returned a compensatory damages award of $4,111,477.66. The trial court granted the plaintiff’s attorney’s fee petition in the amount of $1,370,492.55 in fees and an additional $151,694.40 in costs, also rejecting the defense argument that recoverable “costs” should be limited to “taxable costs” under 735 ILCS 5/5-108 (i.e., court filing fees, subpoena fees, etc.). Rather, the court expressly held that recoverable costs include such things as expert fees, trial exhibits, trial technology and video editing, medical record fees, court reporting fees, travel expenses, videographer fees for depositions, etc.

The opinion in this case will inflate the value of cases brought under the Nursing Home Care Act and make it more difficult to justify taking a case to trial when there is some chance of an adverse verdict. It will also allow plaintiffs’ attorneys wide discretion to base their fee petitions on the method that results in the highest fee, utilizing the hourly rate method in cases with lower value (where the contingent fee is likely to be small) and the contingency fee method in cases with potentially higher compensatory damages.