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06/19/87 Freida Wysocki, Guardian v. the Upjohn Company Et Al.

June 19, 1987

FREIDA WYSOCKI, GUARDIAN OF THE ESTATE OF BOHDAN WYSOCKI, PLAINTIFF-APPELLANT

v.

THE UPJOHN COMPANY ET AL., DEFENDANTS-APPELLEES



APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, FIFTH DIVISION

510 N.E.2d 994, 157 Ill. App. 3d 868, 109 Ill. Dec. 926 1987.IL.849

Appeal from the Circuit Court of Cook County; the Hon. Lester Foreman, Judge, presiding.

APPELLATE Judges:

JUSTICE PINCHAM delivered the opinion of the court. LORENZ and MURRAY, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE PINCHAM

Plaintiff, Freida Wysocki, guardian of the estate of Bohdan Wysocki, filed a complaint which alleged that a drug manufactured by defendants and administered to plaintiff's husband Bohdan when he was hospitalized permanently disabled him and caused him to sustain damages in excess of $5 million. The trial court granted defendants' motion to dismiss the lawsuit on the ground that a release given in a prior lawsuit filed by Bohdan against Foster G. McGaw/Loyola University Hospital et al., barred this action as to defendants. On appeal, plaintiff asserts that a release signed by her after September 14, 1979, did not release defendants and that evidence of the intentions of a party entering into a settlement is relevant and admissible regarding the construction of a release.

On October 3, 1975, Bohdan Wysocki entered Loyola University/Foster G. McGaw Hospital (the hospital) to receive treatment for phlebitis. Heparin, the drug manufactured by defendants and sold by them to the hospital, was administered to Bohdan by medical personnel at the hospital. As a result of the infusion of heparin, an embolus formed in Bohdan's arteries and his circulation of blood was impaired. On October 21, 1975, he suffered a cerebrovascular accident which left him "disabled" as defined by section 11(a)-2 of the Illinois Probate Act of 1975 (Ill. Rev. Stat. 1985, ch. 110 1/2, par. 11(a)-2).

In 1977, Bohdan Wysocki filed an action for medical malpractice against the hospital and certain persons who provided his medical treatment. During trial proceedings, testimony was given that Bohdan had suffered blood clots which had been induced by heparin. Before the case went to the jury a settlement was entered into between the parties in the amount of $60,000.

Although defendants prepared a release the Wysockis refused to sign it and submitted their own. Plaintiff, as guardian for her husband, signed the release which appears below:

"RELEASE OF ALL DEMANDS

KNOW ALL MEN BY THESE PRESENTS that the undersigned, for and in consideration of the sum of TEN THOUSAND DOLLARS ($10,000.00) to the undersigned in hand paid, the receipt whereof is hereby acknowledged, do/does hereby and for my/our/its/their heirs, executors and administrators, successors and assigns, release and forever discharge FOSTER G. McGAW/LOYOLA UNIVERSITY HOSPITAL and JOHN F. BARTIZAL, M.D. and his/her/their/its agents, servants, heirs, executors and administrators, successors and assigns, and all other persons or organizations, both known and unknown, from all claims and demands, actions and causes of action, which have arisen or may arise from or by reason of any and all known and unknown, foreseen and unforeseen, personal and bodily injuries, sickness, disease or death and damage to or destruction of property, and any and all consequential injuries and damages, which have resulted or may result from . . . injuries sustained by my husband, BOHDAN WYSOCKI, during and subsequent to periods of hospitalization at or near Loyola University Hospital commencing on or about October 3, 1975.

It is understood and agreed that this settlement is the compromise of a doubtful and disputed claim and that the payment is not to be construed as an admission of liability on the part of the party or parties hereby released and that this release and settlement shall not be used by the undersigned or anyone on his behalf against the party or parties hereby released, his or their agents or servants, as a waiver or estoppel or as a defense in any action which is now pending or may be brought hereafter, whether such action be asserted in a complaint or by way of cross-action, counterclaim or set off.

The undersigned agrees that this release contains the entire agreement between the parties hereto and that the terms hereof are ...


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