23
OPINIONS OF THE SUPREME COURT OF OHIO
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Thompson, Exr., Appellee, v. Wing et al., Appellants.
[Cite as Thompson v. Wing (1994), ___ Ohio St.3d ___.]
Judgments — Recovery in medical malpractice action by decedent
during his lifetime does not bar subsequent wrongful death
action on behalf of decedent's beneficiaries — Parties in
wrongful death action brought pursuant to R.C. 2125.01 are
barred by collateral estoppel from relitigating issues
litigated and determined in decedent's prior action against
the defendent.
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 litigaged and determined in the decedent's prior
action against the defendant.
(No. 93-620 — Submitted April 5, 1994 — Decided August 31,
1994.)
Appeal from the Court of Appeals for Summit County, No.
15764.
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, for appellee.
Jacobson, Maynard, Tuschman & Kalur, Janis L. Small and
David M. Best, for appellants.
Wright, J. 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 action under
Lord Campbell's Act when her husband, who had been injured in a
railway accident by the Great Eastern Railway Company, had
settled his personal injury suit before his death.
The court held that the Act itself barred the widow from
maintaining a wrongful death action against the Great Eastern
Railway Company. Lord Campbell's Act allowed a wrongful death
action to be brought only “in those cases where the person
injured could maintain an action …,” id. at 558, which
referred to the person's ability to maintain an action
immediately before his or her death.2 The injured husband in
Read could not have maintained an action immediately before his
death “because he had already received satisfaction.” Id. And
because he could not have brought such an action, the widow was
barred from bringing a wrongful death action.
The court in Read expressly rejected the notion that Lord
Campbell's Act created a new cause of action. Referring to
Section 2 of the Act, the provision on damages, Judge Blackburn
stated: “This section may provide a new principle as to the
assessment of damages, but it does not give any new right of
action.” Id. Judge Lush agreed: “It is true that s. 2 provides
a different mode of assessing the damages, but that does not give
a fresh cause of action.” Id. The point was made clear fourteen
years later in Griffiths v. The Earl of Dudley (1882), L.R., 9
Q.B. 357, 363, in which the court emphasized: “Read v. Great
Eastern Ry. Co. (1) is a clear decision that Lord Cambpell's Act
did not give any new cause of action, but only substituted the
right of the representative to sue in the place of the right
which the deceased himself would have had if he had survived.”
Near the time Read v. Great Eastern Ry. Co. was decided,
courts in this country began to address the issue whether a
wrongful death action could be maintained when the injured person
had settled or recovered a judgment in an action before the
person's death, reaching opposite conclusions on the issue. Some
courts followed the conservative approach of the court in Read
and refused to allow two suits on the same tortious conduct.
Other courts were more expansive in their view, recognizing that
the enactment of a wrongful death statute created a new cause of
action, one that could not be foreclosed by the injured person
during his or her lifetime.
Taking the conservative approach, for example, was the New
York Court of Appeals in Littlewood v. New York (1882), 89 N.Y.
24,
42 Am.Rep. 271. The court held that a wrongful death action
could not be maintained when the decedent had already recovered
damages in an earlier personal injury action, citing the decision
in Read. The court remarked that a wrongful death action was
“singularly inappropriate to the case of one who has in his
lifetime maintained the action and actually recovered his
damages.” Id. at 28, 42 Am.Rep. at 273.
The plaintiff in Littlewood had argued that New York's
wrongful death statute, enacted in 1847, created a new right of
action. The court evaded this argument, asserting that “this is
not the point on which the case turns.” The question, the court
said, was whether the legislature intended to add to the
liability of a wrongdoer who had already paid damages. The court
answered this question in the negative. The “plain language” of
the statute, the court said, showed that the legislature did not
intend such a result. Instead, the legislature intended only to
deprive the wrongdoer of the immunity from liability afforded by
the common-law rule that personal actions die with the person.
In contrast to the decisions in Read and Littlewood, we
stated in an early decision under Ohio's wrongful death statute
that the action created by the statute is an independent cause of
action. In paragraph two of the syllabus in Mahoning Valley Ry.
Co. v. Van Alstine (1908), 77 Ohio St. 395,
83 N.E. 601, we
expressed our view that the statute “give[s] an independent right
of action.” We emphasized this view again in May Coal Co. v.
Robinette (1929),
120 Ohio St. 110,
165 N.E. 576, paragraph two
of the syllabus, in which we held: “The two actions, the survivor
action and the death action, although prosecuted by the same
personal representative, are not in the same right ….”3
Thus, our precedents hold that a wrongful death action is an
independent cause of action. The doctrine of stare decisis
requires us to apply this holding to the present case.
Because a wrongful death action is an independent cause of
action, the right to bring the action cannot depend on the
existence of a separate cause of action held by the injured
person immediately before his or her death. To conclude
otherwise would convert the wrongful death action from an
independent cause of action to a derivative action, one dependent
on a separate cause of action. Moreover, the wrongful death
action does not even arise until the death of the injured person.
It follows, therefore, that the injured person cannot defeat the
beneficiaries' right to have a wrongful death action brought on
their behalf because the action has not yet arisen during the
injured person's lifetime. Injured persons may release their own
claims; they cannot, however, release claims that are not yet in
existence and that accrue in favor of persons other than
themselves.
For the foregoing reasons, we hold that 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. The statute requires the decedent to have at one
time had a cause of action against the defendant. This condition
was met in the present case, as is evident from the jury's
finding that appellants were negligent in their care and
treatment of Allen.
We recognize, however, that Allen's medical malpractice
action and Thompson's wrongful death action are similar in that
they each share the same set of underlying facts. As a result,
many of the issues in the prior medical malpractice action will
also be present in the subsequent wrongful death action. The
second issue raised by appellants is whether the subsequent
action is barred by the doctrine of collateral estoppel.
Collateral Estoppel
Collateral estoppel (issue preclusion) prevents parties or
their privies from relitigating facts and issues in a subsequent
suit that were fully litigated in a prior suit. Collateral
estoppel applies when the fact or issue (1) was actually and
directly litigated in the prior action, (2) was passed upon and
determined by a court of competent jurisdiction, and (3) when the
party against whom collateral estoppel is asserted was a party in
privity with a party to the prior action. Whitehead v. Gen. Tel.
Co. (1969), 20 Ohio St.2d 108,
49 O.O.2d 435,
254 N.E.2d 10,
paragraph two of the syllabus.
This case is unusual in that the parties who were found
negligent in the prior medical malpractice action, Wing and the
Akron Clinic, are the ones arguing for the application of
collateral estoppel. They seek to assert collateral estoppel
against Allen's beneficiaries (the real parties in interest in a
wrongful death action). Because the beneficiaries were not a
party to Allen's medical malpractice action, the initial question
is whether they are in privity with Allen.
We have previously held that a person is in privity with
another if he or she “succeeds to an estate or an interest
formerly held by another.” Whitehead, supra, at 115,
49 O.O.2d
at 439,
254 N.E.2d at 15. The beneficiaries assert their own
independent right to have an action brought on their behalf under
the wrongful death statute. They do not succeed to any estate or
interest held by the decedent, and, as a result, they do not fit
within the narrow definition of “privity” set forth above.
In certain situations, however, a broader definition of
“privity” is warranted. As a general matter, privity “is merely
a word used to say that the relationship between the one who is a
party on the record and another is close enough to include that
other within the res judicata.” Bruszewski v. United States
(C.A.3, 1950), 181 F.2d 419, 423 (Goodrich, J., concurring). We
believe the beneficiaries' relationship with the decedent is
close enough to conclude that the beneficiaries are in privity
with the decedent. The Restatement of Judgments 2d, supra, holds
essentially the same view. Section 46(3) of the Restatement
states:
“Issues determined by a judgment for or against a person in
an action based on an act which later causes his death are
conclusive in a subsequent action for causing his death.”
The Restatement recognizes that there is a close alignment
of interests between the beneficiaries and the decedent. The
decedent has every incentive to vigorously pursue a claim for
personal injury or medical malpractice. Upon the decedent's
death, the beneficiaries may reasonably expect to be bound by the
determination of issues that were litigated in the earlier
action, issues, concerning, for example, duty, breach of duty,
and proximate cause. Moreover, allowing such issues to be
relitigated in a wrongful death action could result in
inconsistent decisions, with the defendant found liable in one
action and not the other. Such a result would not further
confidence in our judicial system. For these reasons, we hold
that the beneficiaries in a wrongful death action are in privity
with the decedent.
Because the beneficiaries are in privity with the decedent,
they are collaterally estopped from relitigating issues that were
decided in the decedent's own action. The central issue in a
wrongful death action is whether a person's “wrongful act,
neglect, or default” caused the death of another. See R.C.
2125.01. To bring a wrongful death action upon a theory of
negligence, the plaintiff must show (1) the existence of a duty
owing to the plaintiff's decedent, (2) a breach of that duty, and
(3) proximate causation between the breach of the duty and the
death. 1 Speiser, Recovery for Wrongful Death (2 Ed. 1975) 64,
Section 2:1.
Two of the three elements above were actually litigated and
decided in Allen's medical malpractice case; the third was not.
As a result, the present wrongful death action is not barred by
collateral estoppel. The jury in Allen's medical malpractice
action found that Wing and the Akron Clinic owed a duty to Allen
and that they breached their duty. However, the issue concerning
the proximate cause between the breach of their duty and Allen's
death was not litigated in Allen's medical malpractice action for
the very obvious reason that Allen was still living when her case
was tried.
Appellants argue at length that their negligence did not
cause Allen any physical harm. Instead, they argue, it caused
Allen only psychological harm. They draw this conclusion from
the interrogatories in Allen's medical malpractice action which
reveal that the jury apparently awarded Allen no damages for her
shortened life expectancy. Instead, the jury awarded Allen ten
thousand dollars for lost earnings and forty thousand dollars for
her visits to a psychiatrist and for having obtained a second
evaluation.
It makes little difference here (as far as the legal issue
is concerned) whether appellants' negligence caused Allen
physical harm. The primary issue in the present wrongful death
action is whether appellants' neglect proximately caused Allen's
death, and this issue has not yet been determined. It is not
enough that a similar issue, one addressing physical injury
instead of death, was litigated and decided in Allen's medical
malpractice action. For collateral estoppel to bar the
relitigation of an issue, precisely the same issue must have
previously been litigated and decided.
In sum, we hold that the parties in a wrongful death action
are barred by collateral estoppel from relitigating issues that
were actually litigated and determined in the decedent's prior
action against the defendant. In the present case, therefore,
Wing and the Akron Clinic should be bound by the determination
that they owed Allen a duty and breached their duty. The
proximate cause of Allen's death and the damages suffered by the
beneficiaries were not litigated in Allen's medical malpractice
action (nor could they have been). These issues remain to be
litigated in the present wrongful death action.
For the foregoing reasons, the decision of the court of
appeals is affirmed. The cause is remanded to the court of
common pleas for proceedings consistent with this opinion.
Judgment affirmed.
Moyer, C.J., A.W. Sweeney, F.E. Sweeney and Pfeifer, JJ.,
concur.
Douglas, J., concurs in judgment.
Resnick, J., concurs in judgment only.
FOOTNOTES:
1. The English Parliament passed Lord Campbell's Act in 1846 to
eliminate the harsh results inherent in the common-law rule
disallowing any recovery for the wrongful death of an individual,
a rule attributed to the case of Baker v. Bolton (1808), 1 Campb.
493, 170 Eng. Rep. 1033. Lord Campbell's Act formed the basis
for many wrongful death statutes in this country, including the
wrongful death statute in Ohio, which was enacted in 1851. See
49 Ohio Laws 117.
As originally enacted, Lord Campbell's Act provided in
relevant part:
“… That whensoever the Death of a Person shall be caused
by wrongful Act, Neglect, or Default, and the Act, Neglect, or
Default is such as would (if Death had not ensued) have entitled
the Party injured to maintain an Action and recover Damages in
respect thereof, then and in every such Case the Person who would
have been liable if Death had not ensued shall be liable to an
action for Damages, notwithstanding the Death of the Person
injured ….” 9 & 10 Vict. Ch. 93, 86 Eng. Stat. at Large 531.
2. As explained by one English author, commenting on the
decision in Read: “… if a person who ultimately dies of
injuries caused by wrongful act or neglect has accepted
satisfaction for them in his lifetime, an action under Lord
Campbell's Act is not afterwards maintainable. For the injury
sued on must in the words of the Act be 'such as would, if death
had not ensued, have entitled the party injured to maintain an
action and recover damages in respect thereof'; and this must
mean that he might immediately before his death have maintained
an action, which, if he had already recovered or accepted
compensation, he could not do.” (Emphasis added.) Pollock, The
Law of Torts: A Treatise on the Principles of Obligations arising
from Civil Wrongs in the Common Law (12 Ed. 1923) 70.
3. The facts in Van Alstine and Robinette are similar to the
facts in the present case, but the cases are not directly on
point because the decedents each held a claim immediately before
their death. Nevertheless, the reasoning in Van Alstine and
Robinette applies to the present case.
The decedent in Van Alstine had commenced an action before
her death for injuries sustained in a railway accident. She died
before the action could be resolved, and her administrator
continued it under the survivor statute. The administrator later
recovered a judgment from the defendant, and the defendant,
having satisfied the judgment, argued that the administrator was
estopped from further prosecuting a pending wrongful death
action. We disagreed, holding that the administrator may
continue to prosecute the wrongful death action. We based our
decision on the view that the action is independent from the
decedent's personal injury action.
In Robinette, the administrator filed a survival action and,
concurrently, a wrongful death action for the death of the
decedent in an automobile accident. The survival action was
heard first, and the jury returned a verdict in favor of the
defendant. The defendant asserted this verdict as an additional
defense in the wrongful death action. We held that the judgment
in the survival action, even though adverse to the administrator,
did not bar prosecution of the wrongful death action. We again
reasoned that a wrongful death action is not the same as a
personal injury action.
Douglas, J., concurring in judgment. Given the discussion
by the majority concerning Lord Campbell's Act, the cases of
Baker v. Bolton (1808), 1 Campb. 493, 170 Eng.Rep. 1033,
Griffiths v. The Earl of Dudley (1882), L.R., 9 Q.B. 357, and
especially Read v. Great Eastern Ry. Co. (1868), L.R., 3 Q.B.
555, all found in “The Wrongful Death Statute” portion of the
opinion and/or in fn. 1, I find it necessary to point out to any
reader interested in wrongful death and the common law this
court's split decision in Shover v. Cordis Corp. (1991), 61 Ohio
St.3d 213,
574 N.E.2d 457. In Shover, three members of this
court, Justices A.W. Sweeney, Resnick and Douglas dissented. Our
major concern, of course, was the sanctioning by the majority of
the use of fraud to conceal the cause of a wrongful death so as
to permit the limitations period in R.C. 2125.02(D) to expire
before any suit was commenced. This concern remains today and is
amplified by today's case wherein a slight change of facts would
have, again, brought Shover into play. Shover should be
overruled at our first opportunity to do so.
Our other concern was the incantation of the language “[a]t
common law, there is no action for wrongful death.” Id. at 215,
574 N.E. 2d at 459. See
id. at 229,
574 N.E.2d at 468 (Douglas,
J., dissenting). Today's decision, written by a member of the
majority in Shover, by its discussion and citations seems now to
accept, at the very least by implication, that the Wrongful Death
Statute (as a latter day descendent of Lord Campbell's Act) “…
* did not give any new cause of action, but only substituted the
right of the representative to sue in the place of the right
which the deceased himself would have had if he had survived.”
See majority's citation to Read, supra, and Griffiths, supra, and
the discussion pertinent thereto.
Finally, I concur not just on the basis stated by the
majority that “[t]he doctrine of stare decisis requires us to
apply this holding to the present case,” but also because the
ultimate holding is just and correct.
