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10/28/94 LAUREN DETTMAN-BRUNSFELD v. MARTIN J.

October 28, 1994

LAUREN DETTMAN-BRUNSFELD, SPECIAL ADMINISTRATOR OF THE ESTATE OF PAMELA KOLMAN, DECEASED, PLAINTIFF-APPELLANT,
v.
MARTIN J. SZANTO, M.D., DEFENDANT-APPELLEE.



APPEAL FROM THE CIRCUIT COURT OF COOK COUNTY. HONORABLE WILLARD LASSERS, JUDGE PRESIDING.

Released for Publication December 16, 1994.

McNAMARA, Giannis, Egan

The opinion of the court was delivered by: Mcnamara

JUSTICE McNAMARA delivered the opinion of the court:

This case involves a wrongful death action brought by plaintiff, Lauren Dettman-Brunsfeld, Special Administrator of the Estate of Pamela Kolman, the decedent, against defendant Martin J. Szanto, M.D., in connection with defendant's failure to diagnose that the decedent had lung cancer when she consulted him at his office. The cause was dismissed by the trial court upon its granting of defendant's section 2-619 motion to dismiss with prejudice. (Ill. Rev. Stat. 1991, ch. 110, par. 2-619.) The pleadings raise the issue of whether plaintiff's cause of action is barred by a previous judgment. The pertinent facts are as follows.

In May 1988, the decedent consulted defendant at his office. At that time, defendant ordered the decedent to undergo a chest x-ray. Prior to July 5, 1989, the decedent became aware that she had lung cancer. On July 5, 1989, the decedent brought an action to recover damages for the injuries she sustained as a result of defendant's allegedly negligent medical treatment, that is his failure to diagnose her cancer.

The case proceeded to trial, and on November 15, 1990, the jury returned a verdict in favor of the decedent in the amount of $1,250,000. It then reduced the award by 40%, the percentage of negligence it found attributable solely to the decedent; it thereby assessed the decedent's recoverable damages in the sum of $750,000. The verdict included damages for the following elements: aggravation of a pre-existing ailment or condition; disability and disfigurement; past and future pain and suffering; and past and future lost earnings. The jury did not and could not include damages for the loss of the decedent's society. The trial court entered judgment on the verdict in the net amount of $750,000.

On November 30, 1990, defendant satisfied the $750,000 judgment that the decedent held against him. The decedent did not execute any quittance documents or releases purporting to extinguish her rights or the rights of her heirs or estate.

On May 14, 1991, the decedent died, allegedly due to the injuries she sustained as a result of defendant's negligent medical treatment. She left three survivors, her mother and her two sisters, one of whom is plaintiff. On December 28, 1992, acting as special administrator of the decedent's estate, plaintiff filed the present wrongful death action to recover loss of society damages resulting from the decedent's death. The claim was filed within the two year statute of limitations.

On March 18, 1993, defendant filed a section 2-619 motion to dismiss with prejudice wherein he pointed out that in her wrongful death action, plaintiff did not attempt to make any additional allegations of negligence which would be unique to the present cause of action, but rather relied entirely on the jury's verdict. After a hearing on May 24, 1993, the trial court granted defendant's motion and dismissed plaintiff's action. The trial court held in pertinent part:

"While this is a case of first impression to an extent, I think that the language of the statute is so clear that it really doesn't leave much room for doubt. The language of the statute unequivocally requires that the plaintiff have a cause of action during her lifetime. Now what is the nature of the cause of action for malpractice. That is what she had. That is what she took to the jury. The jury agreed with her, and the jury awarded her a net sum of $750,000, which was paid apparently the very day that the jury rendered its verdict. The cause of action is a cause of action for malpractice, and that cause of action no longer existed because it had to go to final judgment, and the judgment had been paid, and the matter concluded. Now, the plaintiff makes the argument, well, there was a cause of action for loss of society which the plaintiff -- the decedent could not have brought in her lifetime. It is perfectly true that the plaintiff could not have brought a cause of action for loss of society in her lifetime and neither could anyone else, but a loss of society is not a cause of action. It is an element of damage, and it seems to me that we should not split up in fragments the cause of action. We have to remember that the cause of action is a cause of action for medical malpractice. That is what went to trial, and that is what was decided, and while it is true that if the plaintiff had died, and that there -- and that the cause of action was still open under the statue of limitations, the Statute of Repose, there would have been perhaps an additional recovery by the heirs for loss of society. That is not what in fact happened, and it seems to me the cause of action for loss of society -- that the claim or element of damage, of loss of society was simply gone. I am going to grant your motion."

Plaintiff appeals.

On appeal, plaintiff contends that the trial court erred when it granted defendant's motion to dismiss with prejudice her cause of action, ruling that the decedent's recovery of a judgment for her personal injuries during her lifetime extinguished plaintiff's wrongful death cause of action for loss of society damages.

Plaintiff argues that the court erroneously failed to consider that under section 1 of the Wrongful Death Act (Ill. Rev. Stat. 1991, ch. 70, par. 1), an action to recover loss of society damages on behalf of the survivors is independent of the decedent's action to recover for her own personal injuries. She therefore asserts that because the actions are independent, the survivors' cause of action cannot merge into a judgment entered in the decedent's personal injury action. Plaintiff also argues that under this reasoning, the statute itself cannot bar a cause of action which has yet to come into existence. Moreover, plaintiff claims that Illinois law establishes that a survivor's cause of action for loss of the decedent's society under the Wrongful Death Act is independent of ...


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