Thompson v. Wing

• Decision Date: 31 August 1994
• Docket Number: No. 93-620,93-620
• Citation: 637 N.E.2d 917,70 Ohio St.3d 176
• Parties: THOMPSON, Exr., Appellee, v. WING et al., Appellants.
• Court: Ohio Supreme Court

Page 176

70 Ohio St.3d 176

637 N.E.2d 917

THOMPSON, Exr., Appellee, v. WING et al., Appellants.

No. 93-620.

Supreme Court of Ohio.

Submitted April 5, 1994.

Decided Aug. 31, 1994.

SYLLABUS BY THE COURT

1. A recovery in a medical malpractice action by a decedent during his or her lifetime does not bar a subsequent wrongful death action brought pursuant to R.C. 2125.01 on behalf of the decedent's beneficiaries.

2. The beneficiaries in a wrongful death action are in privity with the decedent. As a result, the parties in a wrongful death action brought pursuant to R.C. 2125.01 are barred by collateral estoppel from relitigating issues that were actually litigated and determined in the decedent's prior action against the defendant.

Susan W. Allen filed an action in 1987 for medical malpractice against several defendants, including appellants, N.D. Wing, M.D., and the Akron Clinic, Inc. Allen alleged in her complaint that she consulted Wing in November 1983 for medical care and that he provided such care from then until March 1986. In late February 1986 another doctor apparently diagnosed that Allen had cancer. Allen alleged that Wing was negligent and liable for malpractice with regard to her care, diagnosis, and treatment. She further alleged that his negligence and malpractice caused a substantial delay in the diagnosis of her cancer. Finally, she alleged that his negligence and malpractice caused her to lose earnings and earning capacity, and to suffer pain, anxiety, emotional distress and mental anguish, and a diminution of her life expectancy.

The jury returned a verdict against defendant Wing, finding him negligent for failing to act in accordance with acceptable standards of care for an internist. The jury awarded Allen damages totalling fifty thousand dollars. Interrogatories were submitted to test the injury and damages proven by Allen. One interrogatory was directed at Allen's lost earnings, which the jury found to be ten thousand dollars. A second interrogatory was directed more generally at the injury and damages proven by Allen:

"[S]tate what injury and damage plaintiff has proven by a preponderance of the evidence that was directly and proximately caused by such negligence of Dr. N.D. Wing.

"ANSWER: Susan Allen's visits to the psychiatrist and the second evaluation were due to concerns that she had been victimized."

Wing and the Akron Clinic satisfied the judgment in Allen's medical malpractice action, and no appeal was filed.

Allen died in 1990 at the age of forty-nine from metastatic carcinoma of the breast. In 1991, appellee Elizabeth Thompson, the personal representative of Allen's estate, filed the present wrongful death action against Wing and the Akron Clinic. Thompson alleged, as Allen had earlier, that Wing had provided medical care to Allen beginning in November 1983 and ending in March 1986. Thompson further alleged that Wing and the Akron Clinic were negligent and liable for malpractice for failing to diagnose Allen's breast cancer. Finally, Thompson alleged that Wing's negligence and malpractice proximately caused the delay in the diagnosis of Allen's cancer and ultimately her shortened life expectancy.

Defendants Wing and the Akron Clinic moved for summary judgment, which the trial court granted. The court held that Thompson could not bring a wrongful death action against defendants "based on the doctrine of collateral estoppel and a plain reading of the wrongful death statutes * * *."

The court of appeals reversed the decision of the trial court. The appellate court held that defendants were not entitled to judgment as a matter of law because "a personal injury action and a wrongful death action, arising out of the same wrongful act, are distinct, independent causes of action." The court did not address the collateral estoppel issue.

The cause is now before us pursuant to the allowance of a motion to certify the record.

Berkman, Gordon, Murray, Palda & DeVan, J. Michael Murray and Lorraine R. Baumgardner, Cleveland, for appellee.

Jacobson, Maynard, Tuschman & Kalur, Janis L. Small and David M. Best, Cleveland, for appellants.

WRIGHT, Justice.

The issue in this case is whether a judgment for medical malpractice entered in favor of a plaintiff during her lifetime bars a subsequent wrongful death action brought on behalf of her beneficiaries when both actions are based on the same tortious conduct. We hold that in such a situation a subsequent wrongful death action is not barred by the language of the wrongful death statute, R.C. Chapter 2125, but that collateral estoppel applies to the parties in the wrongful death action. In the present case, however, collateral estoppel does not bar appellee Thompson from bringing a wrongful death action against appellants Wing and the Akron Clinic. We therefore affirm the decision of the court of appeals.

Appellants present two arguments in support of their view that a decedent's representative may not file a cause of action in wrongful death after the decedent has obtained a judgment in a medical malpractice action. The first argument is based on the wrongful death statute itself, R.C. Chapter 2125; the second concerns the application of collateral estoppel to the parties in the wrongful death action. We address these arguments below.

The Wrongful Death Statute

Appellants argue that R.C. Chapter 2125, which provides the sole basis for a cause of action in wrongful death, does not allow Thompson to bring her action. They claim that the ability to maintain a wrongful death action under R.C. 2125.01 is conditioned on the decedent's having a cause of action against the wrongdoer immediately before the decedent's death. Appellants assert (quite correctly) that Allen could not have maintained a cause of action against them immediately before her death because her claim for medical malpractice had been reduced to judgment and satisfied before her death. Appellants conclude that because the required condition has not been met, Thompson may not maintain the present wrongful death action.

Appellants' argument derives from the following language in R.C. 2125.01:

"When the death of a person is caused by wrongful act, neglect, or default which would have entitled the party injured to maintain an action and recover damages if death had not ensued, the person who would have been liable if death had not ensued, or the administrator or executor of the estate of such person, as such administrator or executor, shall be liable to an action for damages, notwithstanding the death of the person injured * * *." (Emphasis added.)

The meaning of the foregoing language has not been squarely addressed by this court in the context of a case like the one before us today. However, the meaning of this language has been addressed in similar cases in other jurisdictions with statutes similar to the Ohio statute. Courts began addressing this language in the mid-to-late 1800s, and despite the passage of time, a consensus does not exist even today.

At the outset, it should be noted that when a person is injured by the tortious conduct of another and the person later dies from the injury, two claims arise. The first is a claim for malpractice or personal injury, enforced either by the injured person herself or by her representative in a survival action. The second is a wrongful death claim, enforced by the decedent's personal representative on behalf of the decedent's beneficiaries.

A difficult issue arises when an injured person brings an action during his or her lifetime, recovers a judgment against the defendant, and later dies--allegedly from the same conduct that gave rise to the initial claim for personal injury or malpractice (the situation in the present case). The issue concerns the effect the injured person's recovery has on his or her representative's ability to bring a subsequent wrongful death action. Two conflicting views have emerged on the issue, views explained and summarized in 2 Restatement of the Law 2d, Judgments (1982), Section 46, Comment, at 17-20.

According to the Restatement of Judgments 2d, a majority of jurisdictions hold that a recovery by the injured person in his or her own action extinguishes the subsequent wrongful death action. The rationale is that a wrongful death action is a derivative action, one derived from the claim held by the decedent immediately before his or her death. Under the majority view, the decedent's representative may bring the action only if the decedent immediately before his or her death could have brought suit, a view based on the "if death had not ensued" phrase in the wrongful death statute. The phrase, according to a majority of jurisdictions, means that a recovery by the injured person during his or her lifetime defeats a wrongful death action because the person, if he or she were still living, could not have brought suit. Appellants ask us to adopt the majority view.

A minority of jurisdictions, on the other hand, hold that a recovery by the injured person does not extinguish a subsequent wrongful death action because the action is an independent cause of action. Accordingly, the decedent's prosecution or settlement of his or her own claim during his or her lifetime can have no effect on the separate wrongful death claim that arises upon the decedent's death. Instead, a wrongful death claim may be brought so long as the defendant's conduct was such that a cause of action could have been brought against him or her at one time, not necessarily at the moment immediately before the decedent's death. Appellee argues for the minority position.

The split of authority on the issue in this case is by no means a recent development. The present-day majority view originated in an English case decided in 1868, twenty-two years after the passage of Lord Campbell's Act. ¹ The court in Read v. Great Eastern Ry. Co. (1868), L.R., 3 Q.B. 555, addressed the issue whether a widow could bring a wrongful death...