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Toepper v. Cooker

OPINION FILED DECEMBER 5, 1986.

JANE TOEPPER, AS MOTHER AND NEXT FRIEND OF JASON TOEPPER, A MINOR, ET AL., PLAINTIFFS-APPELLANTS,

v.

RONALD ALBERT COOKER ET AL., DEFENDANTS-APPELLEES.



Appeal from the Circuit Court of McHenry County; the Hon. Michael J. Sullivan, Judge, presiding.

JUSTICE HOPF DELIVERED THE OPINION OF THE COURT:

This suit represents the second attempt by plaintiffs, Jim and Jane Toepper, to recover for injuries sustained by their infant son, Jason. Defendants, Ronald Cooker and Pamela Smith, moved to dismiss the suit as res judicata. The trial court granted the motion, and plaintiffs appeal, claiming that the instant case has as its basis a different set of operative facts than the prior suit.

Jason Toepper was born at McHenry Hospital on January 24, 1978. He was subsequently found to have sustained severe brain damage. His parents, as well as the First National Bank of Chicago as special administrator of the estate of Jason Toepper, filed suit against the hospital; Dr. G. Sherman Porter, chairman of the obstetrics department; Dr. Richard Adams, the doctor who delivered Jason; Ruth Miller Ramsey, the nurse who examined Mrs. Toepper the night of Jason's birth; and Lee Ulrich, another nurse who was on duty that night. That suit alleged that Mrs. Toepper went to McHenry Hospital at approximately 2:15 a.m. on January 24, 1978, thinking that she was in labor. She was examined by Ruth Ramsey, who determined that she was not in labor and sent her home. Ramsey did not consult a physician as required by hospital procedures.

The complaint alleged that the hospital and Dr. Porter were negligent in, inter alia, permitting a nurse to work in the obstetrics department who lacked adequate experience and training in that field and that supervisory nursing personnel were not discharging supervisory duties by permitting obstetrical nurses to deviate from established precheck procedures. These, as well as other alleged instances of negligence by the named defendants, were alleged to be the proximate cause of the brain damage sustained by Jason.

After plaintiffs rested their case, the court entered a directed verdict for Dr. Adams. At the close of all the evidence, the case as to the other defendants was sent to the jury. The jury, however, failed to reach a verdict and was discharged. The court then granted the remaining defendants' motions for directed verdict. This court affirmed on the ground that there was insufficient proof that any of the alleged instances of negligence were the proximate cause of Jason's injuries. First National Bank v. Porter (1983), 114 Ill. App.3d 1, 448 N.E.2d 256.

Plaintiffs then filed the present suit against Ronald Cooker, McHenry Hospital's director of nursing services, and Pamela Smith, the supervising nurse in the obstetrical department. Paragraph 11 of the complaint alleges as follows:

"The defendants, and each of them, were negligent, in one or more of the following regards:

(a) Hired Ruth Ramsey when they knew or should have known that she lacked the requisite training and experience to provide obstetrical nursing care and was unqualified because of her deficient training and background to determine when a patient was in labor;

(b) Failed to provide Ruth Ramsey with additional training experience through an established program to qualify her to provide obstetrical nursing care prior to January 24, 1978;

(c) Knew, or should have known, that Ruth Ramsey was unqualified to provide nursing care to obstetrical patients in labor."

Defendants moved to dismiss based on res judicata. The trial court granted the motion, and plaintiffs appeal.

• 1, 2 The doctrine of res judicata provides that an adjudication upon the merits by a court of competent jurisdiction is conclusive as to the rights of the parties and those in privity with them and constitutes an absolute bar to subsequent action by them involving the same claim, demand, or cause of action. (Towns v. Yellow Cab Co. (1978), 73 Ill.2d 113, 122, 382 N.E.2d 1217.) In suits involving masters and servants, res judicata has special applicability. "Thus, the rule has evolved that a judgment for either the master or servant, arising out of an action predicated upon the alleged negligence of the servant, bars a subsequent suit against the other for the same claim of negligence where the agency relationship is not in question." (73 Ill.2d 113, 122-23, 382 N.E.2d 1217.) This rule obtains even though defendants in the second suit were not parties to the first action and even though the master and servant are not technically in privity. (73 Ill.2d 113, 123, 382 N.E.2d 1217.) When res judicata is properly raised, it is conclusive not only as to all questions actually decided, but also as to all questions which could have been litigated in the prior action. (Neuberg v. Michael Reese Hospital & Medical Center (1983), 118 Ill. App.3d 93, 99, 454 N.E.2d 684.) It does not matter that different types of relief or different damages are sought, so long as a single group of operative facts gives rise to the successive assertions of relief. Radosta v. Chrysler Corp. (1982), 110 Ill. App.3d 1066, 1069, 443 N.E.2d 670.

In the instant case, it is clear that the conduct with which defendants are charged is the same conduct which was alleged in Porter but not adequately proved to be the proximate cause of Jason's injuries. Plaintiff's own jury instructions in that case stated that the ...


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