APPEAL from the Circuit Court of Cook County; the Hon. JOHN
LUPE, Judge, presiding.
MR. JUSTICE SOLFISBURG DELIVERED THE OPINION OF THE COURT:
This is an action for damages by Julia Zostautas, as administratrix, and in her own right as mother, and by John J. Zostautas, as father, for the death of their five-year-old son while undergoing a tonsilectomy, against the surgeon, anesthetist, hospital and nurse. The amended complaint, consisting of six counts, sets forth claims under the Wrongful Death Act (Ill. Rev. Stat. 1959, chap. 70, par. 1,) and for breach of contract. On motion of defendant Tumasonis, the circuit court of Cook County dismissed, on the grounds of legal insufficiency, count IV, which alleged an action for breach of contract against only the defendant surgeon. The court made its order appealable under section 50(2) of the Civil Practice Act by an express finding that "there is no just reason for delaying an appeal," (Ill. Rev. Stat. 1959, chap. 110, par. 50,) and also found that no constitutional rights of plaintiffs were infringed by the dismissal. Plaintiffs have appealed directly to this court on the ground that the Illinois constitution was violated by construing the Wrongful Death Act as barring the common-law contract action asserted in count IV.
The controverted count IV alleges in substance that on May 4, 1957, the defendant surgeon entered into an express contract with the plaintiffs to perform a tonsilectomy upon their son with the degree of care which physicians and surgeons of ordinary skill, care and diligence would exercise under the circumstances, and plaintiffs agreed to pay defendant the reasonable value of his professional services; that, while plaintiffs have performed all conditions of their agreement, defendant breached his contract and treated plaintiffs' son in a careless manner directly resulting in his death on May 16, 1957; that as a natural and probable consequence of such breach, plaintiffs suffered sever shock and mental anguish, lapsed into a deep depression, and were compelled to expend large sums for professional medical services, and $1,000 for funeral expenses, for which damages of $125,000 each are sought.
In determining the legal sufficiency of that count on his appeal, we must resolve several questions of first impression before our court: Whether the common-law action for breach of contract lies against the surgeon where the death of the patient arose out of the breach; whether such action is barred by our Wrongful Death Act, and if so, whether such a construction violates the Illinois constitution; or, if this action or other remedy is recognized, whether mental anguish is a proper element of damages.
These questions involve not only an interpretation of legal history, but a balancing of the legal policies of protecting the public in its dealings with the medical practitioner, and of protecting the practitioner in the pursuit of his highly essential profession from the fraudulent minded.
In the development of the law the relationship of physician and patient has given rise to actions of a hybrid nature (70 C.J.S. 981; Giambozi v. Peters, (1940) 127 Conn. 380, 16 A.2d 833; Barnhoff v. Aldridge, (1931) 327 Mo. 767, 38 S.W.2d 1029), sounding in tort or in contract (74 A.L.R. 1256; 151 A.L.R. 1027; 1953 Wn. U.L.Q. 413, 416), and both theories are often advanced in alternative counts, as in the instant case. Conklin v. Draper, 241 N.Y.S. 529, aff'd 254 N.Y. 620, 173 N.E. 892 (1930); Stewart v. Rudner, 349 Mich. 459, 84 N.W.2d 816 (1957); Hickey v. Slattery, 103 Conn. 716, 131 A. 558 (1926).
Although these actions of malpractice and breach of contract may arise out of the same transaction, they are distinct as to theory, proof and damages. (McQuaid v. Michou, 85 N.H. 299, 157 A. 881 (1932); Colvin v. Smith, 92 N.Y.S.2d 794 (1949); Robins v. Finestone, 308 N.Y. 843, 127 N.E.2d 330 (1955).) Actions in contract may be based upon an express promise by the physician, such as to perform a Caesarean section (Stewart v. Rudner), or to cure plaintiff of syphilis (Giambozi v. Peters), or to cure an illness within a specified time (Robins v. Finestone); or may be based upon the implied obligation arising out of defendant's employment as a physician to use proper skill and care (Hickey v. Slattery), or to furnish proper medical aid. (Conklin v. Draper.) In such actions liability is predicated on the failure to perform an agreed undertaking rather than upon negligence, and the damages are restricted to the payments made, the expenditure for nurses and medicines, or "other damages that flow from the breach thereof" (Conklin v. Draper), and do not include the patient's pain and suffering as in malpractice actions (Robins v. Finestone).
However, while the law is clear that a common-law contract remedy may be available to a surviving patient (Conklin v. Draper, 241 N.Y.S. 529, aff'd 254 N.Y. 620, 173 N.E. 892; Burke v. Maryland, 149 Minn. 481, 184 N.W. 32 (1921); Kolb v. Berglin, 209 Wis. 547, 245 N.W. 583 (1932); Parrish v. Clark, 107 Fla. 598, 145 So. 848; Stewart v. Rudner, 349 Mich. 459, 84 N.W.2d (1947); Robins v. Finestone, 308 N.Y. 843, 127 N.E.2d 330 (1955); McQuaid v. Michou, 85 N.H. 299, 157 A. 881 (1932); Boshes v. Kamin, 209 Ill. App. 508 (1918),) the law is a maze of conflicting decisions and rationalizations as to whether this action can be maintained where the physician's breach of contract causes the patient's death which is the issue in the case at bar.
That issue depends upon whether the rule of Baker v. Bolton (1 Camp. 493 (1808),) incorporating Lord Ellenborough's celebrated dictum that "in a civil court the death of a human being could not be complained of as an injury" which has become part of the fabric of our law (Hall v. Gillins, 13 Ill.2d 26) applies to contract actions where death is caused by the breach, as well as to tort actions. 13 Vanderbilt L. Rev. 605.
The early English cases cited by plaintiffs (Jackson v. Watson, 2 K.B. (1909) 193; Bradshaw v. Lancashire & Yorkshire Ry., L.R., 10 C.P. 189 (1875),) refused to apply the rule of Baker v. Bolton where the action can be framed in contract, even though the rule would have barred recovery in tort for the same conduct. Thus in the Jackson case the court awarded the husband damages for the loss of his wife's services after her death, along with medical and funeral expenses in an action for breach of implied warranty on canned food sold by defendant, which caused her death. The courts reasoned that the rule of Baker v. Bolton had no application to an action for breach of warranty since it was independent of the wrong, and the death of the wife was only an element in ascertaining damages, and not an essential part of the action.
In this country, with the exception of an early Connecticut case (Crofs v. Guthery, 2 Root's 90 (Conn. 1794),) the case law has followed a contrary course. The Crofs case and those English decisions allowing recovery for death where the action could be framed ex contractu have been rejected in several jurisdictions, including the United States Supreme Court. Mobile Life Insurance Co. v. Brame, 95 U.S. 754, 24 L.ed. 580 (1877); Vittum v. Gilman, 48 N.H. 416, 417 (1868); Sherlag v. Kelley, 200 Mass. 232, 86 N.E. 293 (1908); Duncan v. St. Luke's Hospital, 98 N.Y.S. 867, aff'd 192 N.Y. 580, 85 N.E. 1109 (1906); Roche v. St. John's Riverside Hospital, 160 N.Y.S. 401, aff'd 161 N.Y.S. 1143 (1916); 13 Vand. L. Rev. 605, 616; see also discussion in Kilberg v. Northeast Airlines, 211 N.Y.S.2d 133, 139.
The Massachusetts court held in Sherlag v. Kelley that a husband could not recover for loss of his wife's society, care and comfort resulting from her death, in a common-law contract action against a physician for breach of his implied agreement to render necessary and proper medical care to the wife. The court stated that elements of damage arising from death were barred in contract actions, as well as tort actions, and allowed the husband only damages for the wife's treatment.
Similarly, the New York court in Duncan v. St. Luke's Hospital held that the common-law rule barring actions for death applied equally where the act which caused death was alleged to be a breach of an express or implied contract. Consequently, the court dismissed, for legal insufficiency, the husband's action against a hospital for breach of its contract to keep a constant watch over his mentally disturbed wife, as a result of which she was killed in jumping from the window. That interpretation of the common law was given approbation in 1916 in Roche v. St. John's Riverside Hospital (160 N.Y.S. 401, aff'd 161 N.Y.S. 1143). The court however, distinguished the Duncan case on other grounds, and recognized a statutory basis of liability. After reaffirming its early decision that a patient could recover in a common-law contract action against a hospital for breach of a contract to furnish a skillful and competent nurse for a stipulated sum (Ward v. St. Vincent's Hospital, 79 N.Y.S. 1004 (1903),) the court reasoned that, although such an action would not survive the death of the patient, nevertheless, an action could be brought under the Wrongful Death Act on either a contract or tort theory. The court then explained that to maintain such a statutory action it was important to set forth the contract and its breach in order to measure defendant's liability. Recovery, however, was for the pecuniary value of the decedent's life to his next of kin, and not for damages under contract or tort rules. Under this rationale, the court sustained the sufficiency of the complaint, since it set forth a contract between the hospital and the deceased infant and his parents to guard the infant while the mother was undergoing treatment in the hospital, and alleged the breach thereof by the hospital resulting in the infant's death.
The rule promulgated in the Roche case, that a breach of contract causing death could be the basis of liability under the Wrongful Death Act, was further analyzed and approved by the New York Court of Appeals in Greco v. S.S. Kresge Co. 277 N.Y. 26, 12 N.E.2d 557 (1938). There it was held that a breach of an implied warranty that food was fit for human consumption constituted a "default" or "wrongful act" within the terms of the statute. In support of this interpretation the court pointed out that the distinction between torts and breaches of contract is often shadowy, so that the same facts may warrant proceeding in contract or tort; that the term "default," in the statute, is defined in Bouvier's Law Dictionary (p. 814) as "the non-performance of a duty, whether arising out of a contract or otherwise," and that the interpretation was in accordance with the statutory objective. The court explained that such death statutes were enacted to remedy the ...