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08/29/94 THEODORA VARELIS v. NORTHWESTERN MEMORIAL

August 29, 1994

THEODORA VARELIS, INDIVIDUALLY AND JAMES VARELIS, AS INDEPENDENT ADMINISTRATOR OF THE ESTATE OF SPIROS VARELIS, DECEASED, PLAINTIFFS-APPELLANTS,
v.
NORTHWESTERN MEMORIAL HOSPITAL, A CORPORATION, DEFENDANT-APPELLEE.



APPEAL FROM THE CIRCUIT COURT OF COOK COUNTY. HONORABLE JAMES M. CASCIATO, JUDGE PRESIDING.

Released for Publication October 14, 1994. Petition for Leave to Appeal Allowed December 6, 1994.

Buckley, Campbell, O'connor, Jr.

The opinion of the court was delivered by: Buckley

JUSTICE BUCKLEY delivered the opinion of the court:

Plaintiffs Theodora and James Varelis brought a wrongful death action against defendant Northwestern Memorial Hospital after Theodora and Spiros Varelis had already recovered a $2,821,934 judgment against defendant for personal injuries and loss of consortium arising from the same medical negligence which is alleged to have caused the death of Spiros. On cross-motions for summary judgment, the circuit court entered judgment in favor of defendant, finding that plaintiffs' wrongful death action could not be properly maintained after the entry of judgment and satisfaction of that judgment in decedent's personal injury action. Following thecircuit court's denial of their motion for reconsideration, plaintiffs filed this appeal requesting reversal of the summary judgment order entered in favor of defendant and that we enter summary judgment in their favor.

Spiros' and Theodora's initial lawsuit against defendant was a medical negligence action for personal injuries and loss of consortium arising from a magnesium sulfate overdose which was administered to Spiros on July 5, 1987, while in defendant hospital. After the closing arguments in that lawsuit, the circuit court instructed the jury to award Theodora damages for loss of consortium "for only such period of time that you find that her husband, SPIROS VARELIS, is likely to live." In accordance with the jury's verdict, the circuit court entered judgment in that case against defendant and in favor of Theodora and Spiros in the amount of $2,248,434 for personal injury damages and $573,500 for loss of consortium damages. On March 14, 1989, Theodora and Spiros filed a post-trial motion seeking to set aside the jury's verdict pertaining to Spiros' damages and grant him a new trial on that issue. Defendant filed its answer to the motion. Spiros, however, died on May 7, 1989, while the motion was pending.

Satisfactions of judgment for the initial lawsuit were executed by a representative of Spiros' estate and by Theodora acknowledging the acceptance of payment of the judgment. The satisfactions included the following language:

"In releasing the judgment of December 14, 1988, plaintiff reserves all rights, if any, to pursue a wrongful death claim, which rights defendant denies that plaintiff has."

An agreed order to withdraw the post-trial motion was entered on July 18, 1989.

On July 3, 1989, plaintiffs filed the wrongful death action which is the subject of this appeal. Defendant responded to the suit by filing a motion to dismiss, arguing that since judgment was entered and satisfied in the personal injury action against defendant, Spiros' dependents are barred from prosecuting any wrongful death action against it. The motion was briefed and argued by both parties. On May 17, 1990, Judge Sodaro denied defendant's motion to dismiss. Thereafter, defendant filed a motion for reconsideration of the dismissal order. Judge Sodaro also denied that motion. Defendant then moved that the circuit court certify the question under Supreme Court Rule 308 (134 Ill. 2d R. 308). On April 9, 1990, the circuit court found that such certification was unwarranted and denied defendant's motion.

Subsequently, defendant filed a motion for summary judgment. Plaintiffs responded by filing a cross-motion for summary judgment allegedly attaching Spiros' death certificate and an affidavit from Dr. Harvey Golomb, chief of hematology at the University of Chicago, which stated that the magnesium overdose was a proximate cause of Spiros' death and citing Judge O'Connell's order for summary judgment in favor of Spiros and Theodora in the personal injury action. Judge Sodaro's successor, Judge Casciato granted defendant's summary judgment motion and denied plaintiffs' cross-motion, commenting that plaintiffs had failed to file an affidavit establishing the cause of death. Now, plaintiffs appeal the above orders, requesting that we reverse the order entered in favor of defendant, enter summary judgment in their favor and remand this cause to the circuit court for a trial limited to the issue of damages.

Defendant argues on appeal that the circuit court properly entered summary judgment in its favor. Specifically, defendant argues that the language of the Illinois Wrongful Death Act (Ill. Rev. Stat. 1987, ch. 70, par. 1) bars plaintiffs' cause of action because there was recovery in a personal injury action for the same negligence alleged in the wrongful death action. The Wrongful Death Act states that:

"whenever 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 or company or corporation which would have been liable if death had not ensued, shall be liable to an action for damages, notwithstanding the death of the person injured, and although the death shall have been caused under such circumstances as amount in law to felony. (Ill. Rev. Stat. 1987, ch. 70, par. 1.)

Defendant asserts that in accordance with the above statute, a release or accord and satisfaction by the injured party during his lifetime precludes a wrongful death action predicated on the same alleged negligence and injury. This reasoning ...


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