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Thompson v. Wing8/31/1994
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 decedenshas 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.
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'
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