OPINIONS OF THE SUPREME COURT OF OHIO

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Thompson, Exr., Appellee, v. Wing et al., Appellants. [Cite as Thompson v. Wing (1994), ___ Ohio St.3d ___.]

Judgments — Recovery in medical malpractice action by decedent

during his lifetime does not bar subsequent wrongful death

action on behalf of decedent's beneficiaries — Parties in

wrongful death action brought pursuant to R.C. 2125.01 are

barred by collateral estoppel from relitigating issues

litigated and determined in decedent's prior action against

the defendent.

1. A recovery in a medical malpractice action by a decedent

during his or her lifetime does not bar a subsequent

wrongful death action brought pursuant to R.C. 2125.01 on

behalf of the decedent's beneficiaries.

2. The beneficiaries in a wrongful death action are in privity

with the decedent. As a result, the parties in a wrongful

death action brought pursuant to R.C. 2125.01 are barred by

collateral estoppel from relitigating issues that were

actually litigaged and determined in the decedent's prior

action against the defendant.

(No. 93-620 — Submitted April 5, 1994 — Decided August 31, 1994.)

Appeal from the Court of Appeals for Summit County, No.

15764.

Susan W. Allen filed an action in 1987 for medical

malpractice against several defendants, including appellants,

N.D. Wing, M.D., and the Akron Clinic, Inc. Allen alleged in her

complaint that she consulted Wing in November 1983 for medical

care and that he provided such care from then until March 1986.

In late February 1986 another doctor apparently diagnosed that

Allen had cancer. Allen alleged that Wing was negligent and

liable for malpractice with regard to her care, diagnosis, and

treatment. She further alleged that his negligence and

malpractice caused a substantial delay in the diagnosis of her

cancer. Finally, she alleged that his negligence and malpractice

caused her to lose earnings and earning capacity, and to suffer

pain, anxiety, emotional distress and mental anguish, and a

diminution of her life expectancy.

The jury returned a verdict against defendant Wing, finding

him negligent for failing to act in accordance with acceptable standards of care for an internist. The jury awarded Allen

damages totalling fifty thousand dollars. Interrogatories were

submitted to test the injury and damages proven by Allen. One

interrogatory was directed at Allen's lost earnings, which the

jury found to be ten thousand dollars. A second interrogatory

was directed more generally at the injury and damages proven by

Allen:

“[S]tate what injury and damage plaintiff has proven by a

preponderance of the evidence that was directly and proximately

caused by such negligence of Dr. N.D. Wing.

“ANSWER: Susan Allen's visits to the psychiatrist and the

second evaluation were due to concerns that she had been

victimized.”

Wing and the Akron Clinic satisfied the judgment in Allen's

medical malpractice action, and no appeal was filed.

Allen died in 1990 at the age of forty-nine from metastatic

carcinoma of the breast. In 1991, appellee Elizabeth Thompson,

the personal representative of Allen's estate, filed the present

wrongful death action against Wing and the Akron Clinic. Thompson alleged, as Allen had earlier, that Wing had provided medical

care to Allen beginning in November 1983 and ending in March

1986. Thompson further alleged that Wing and the Akron Clinic

were negligent and liable for malpractice for failing to diagnose

Allen's breast cancer. Finally, Thompson alleged that Wing's

negligence and malpractice proximately caused the delay in the

diagnosis of Allen's cancer and ultimately her shortened life

expectancy.

Defendants Wing and the Akron Clinic moved for summary

judgment, which the trial court granted. The court held that

Thompson could not bring a wrongful death action against

defendants “based on the doctrine of collateral estoppel and a

plain reading of the wrongful death statutes * * *.”

The court of appeals reversed the decision of the trial

court. The appellate court held that defendants were not

entitled to judgment as a matter of law because “a personal

injury action and a wrongful death action, arising out of the

same wrongful act, are distinct, independent causes of action.”

The court did not address the collateral estoppel issue.

The cause is now before us pursuant to the allowance of a

motion to certify the record.

Berkman, Gordon, Murray, Palda & DeVan, J. Michael Murray

and Lorraine R. Baumgardner, for appellee.

Jacobson, Maynard, Tuschman & Kalur, Janis L. Small and

David M. Best, for appellants.

Wright, J. The issue in this case is whether a judgment for

medical malpractice entered in favor of a plaintiff during her

lifetime bars a subsequent wrongful death action brought on

behalf of her beneficiaries when both actions are based on the

same tortious conduct. We hold that in such a situation a

subsequent wrongful death action is not barred by the language of

the wrongful death statute, R.C. Chapter 2125, but that

collateral estoppel applies to the parties in the wrongful death

action. In the present case, however, collateral estoppel does

not bar appellee Thompson from bringing a wrongful death action

against appellants Wing and the Akron Clinic. We therefore

affirm the decision of the court of appeals.

Appellants present two arguments in support of their view that a decedent's representative may not file a cause of action

in wrongful death after the decedent has obtained a judgment in a

medical malpractice action. The first argument is based on the

wrongful death statute itself, R.C. Chapter 2125; the second

concerns the application of collateral estoppel to the parties in

the wrongful death action. We address these arguments below.

The Wrongful Death Statute

Appellants argue that R.C. Chapter 2125, which provides the

sole basis for a cause of action in wrongful death, does not

allow Thompson to bring her action. They claim that the ability

to maintain a wrongful death action under R.C. 2125.01 is

conditioned on the decedent's having a cause of action against

the wrongdoer immediately before the decedent's death.

Appellants assert (quite correctly) that Allen could not have

maintained a cause of action against them immediately before her

death because her claim for medical malpractice had been reduced

to judgment and satisfied before her death. Appellants conclude

that because the required condition has not been met, Thompson

may not maintain the present wrongful death action. Appellants' argument derives from the following language in R.C. 2125.01:

“When the death of a person is caused by wrongful act,

neglect, or default which would have entitled the party injured

to maintain an action and recover damages if death had not

ensued, the person who would have been liable if death had not

ensued, or the administrator or executor of the estate of such

person, as such administrator or executor, shall be liable to an

action for damages, notwithstanding the death of the person

injured * * *.” (Emphasis added.)

The meaning of the foregoing language has not been squarely

addressed by this court in the context of a case like the one

before us today. However, the meaning of this language has been

addressed in similar cases in other jurisdictions with statutes

similar to the Ohio statute. Courts began addressing this

language in the mid-to-late 1800s, and despite the passage of

time, a consensus does not exist even today.

At the outset, it should be noted that when a person is

injured by the tortious conduct of another and the person later

dies from the injury, two claims arise. The first is a claim for malpractice or personal injury, enforced either by the injured

person herself or by her representative in a survival action. The

second is a wrongful death claim, enforced by the decedent's

personal representative on behalf of the decedent's

beneficiaries.

A difficult issue arises when an injured person brings an

action during his or her lifetime, recovers a judgment against

the defendant, and later dies — allegedly from the same conduct

that gave rise to the initial claim for personal injury or

malpractice (the situation in the present case). The issue

concerns the effect the injured person's recovery has on his or

her representative's ability to bring a subsequent wrongful death

action. Two conflicting views have emerged on the issue, views

explained and summarized in 2 Restatement of the Law 2d

Judgments, (1982), Section 46, Comment, at 17-20.

According to the Restatement of Judgments 2d, a majority of

jurisdictions hold that a recovery by the injured person in his

or her own action extinguishes the subsequent wrongful death

action. The rationale is that a wrongful death action is a derivative action, one derived from the claim held by the

decedent immediately before his or her death. Under the majority

view, the decedent's representative may bring the action only if

the decedent immediately before his or her death could have

brought suit, a view based on the “if death had not ensued”

phrase in the wrongful death statute. The phrase, according to a

majority of jurisdictions, means that a recovery by the injured

person during his or her lifetime defeats a wrongful death action

because the person, if he or she were still living, could not

have brought suit. Appellants ask us to adopt the majority view.

A minority of jurisdictions, on the other hand, hold that a

recovery by the injured person does not extinguish a subsequent

wrongful death action because the action is an independent cause

of action. Accordingly, the decedent's prosecution or settlement

of his or her own claim during his or her lifetime can have no

effect on the separate wrongful death claim that arises upon the

decedent's death. Instead, a wrongful death claim may be brought

so long as the defendant's conduct was such that a cause of

action could have been brought against him or her at one time, not necessarily at the moment immediately before the decedent's

death. Appellee argues for the minority position.

The split of authority on the issue in this case is by no

means a recent development. The present-day majority view

originated in an English case decided in 1868, twenty-two years

after the passage of Lord Campbell's Act.1 The court in Read v.

Great Eastern Ry. Co. (1868), L.R., 3 Q.B. 555, addressed the

issue whether a widow could bring a wrongful death action under

Lord Campbell's Act when her husband, who had been injured in a

railway accident by the Great Eastern Railway Company, had

settled his personal injury suit before his death.

The court held that the Act itself barred the widow from

maintaining a wrongful death action against the Great Eastern

Railway Company. Lord Campbell's Act allowed a wrongful death

action to be brought only “in those cases where the person

injured could maintain an action * * *,” id. at 558, which

referred to the person's ability to maintain an action

immediately before his or her death.2 The injured husband in

Read could not have maintained an action immediately before his death “because he had already received satisfaction.” Id. And

because he could not have brought such an action, the widow was

barred from bringing a wrongful death action.

The court in Read expressly rejected the notion that Lord

Campbell's Act created a new cause of action. Referring to

Section 2 of the Act, the provision on damages, Judge Blackburn

stated: “This section may provide a new principle as to the

assessment of damages, but it does not give any new right of

action.” Id. Judge Lush agreed: “It is true that s. 2 provides

a different mode of assessing the damages, but that does not give

a fresh cause of action.” Id. The point was made clear fourteen

years later in Griffiths v. The Earl of Dudley (1882), L.R., 9

Q.B. 357, 363, in which the court emphasized: “Read v. Great

Eastern Ry. Co. (1) is a clear decision that Lord Cambpell's Act

did not give any new cause of action, but only substituted the

right of the representative to sue in the place of the right

which the deceased himself would have had if he had survived.”

Near the time Read v. Great Eastern Ry. Co. was decided,

courts in this country began to address the issue whether a wrongful death action could be maintained when the injured person

had settled or recovered a judgment in an action before the

person's death, reaching opposite conclusions on the issue. Some

courts followed the conservative approach of the court in Read

and refused to allow two suits on the same tortious conduct.

Other courts were more expansive in their view, recognizing that

the enactment of a wrongful death statute created a new cause of

action, one that could not be foreclosed by the injured person

during his or her lifetime.

Taking the conservative approach, for example, was the New

York Court of Appeals in Littlewood v. New York (1882), 89 N.Y. 24, 42 Am.Rep. 271. The court held that a wrongful death action

could not be maintained when the decedent had already recovered

damages in an earlier personal injury action, citing the decision

in Read. The court remarked that a wrongful death action was

“singularly inappropriate to the case of one who has in his

lifetime maintained the action and actually recovered his

damages.” Id. at 28, 42 Am.Rep. at 273.

The plaintiff in Littlewood had argued that New York's wrongful death statute, enacted in 1847, created a new right of

action. The court evaded this argument, asserting that “this is

not the point on which the case turns.” The question, the court

said, was whether the legislature intended to add to the

liability of a wrongdoer who had already paid damages. The court

answered this question in the negative. The “plain language” of

the statute, the court said, showed that the legislature did not

intend such a result. Instead, the legislature intended only to

deprive the wrongdoer of the immunity from liability afforded by

the common-law rule that personal actions die with the person.

In contrast to the decisions in Read and Littlewood, we

stated in an early decision under Ohio's wrongful death statute

that the action created by the statute is an independent cause of

action. In paragraph two of the syllabus in Mahoning Valley Ry.

Co. v. Van Alstine (1908), 77 Ohio St. 395, 83 N.E. 601, we

expressed our view that the statute “give[s] an independent right

of action.” We emphasized this view again in May Coal Co. v.

Robinette (1929), 120 Ohio St. 110, 165 N.E. 576, paragraph two

of the syllabus, in which we held: “The two actions, the survivor action and the death action, although prosecuted by the same

personal representative, are not in the same right * * *.”3

Thus, our precedents hold that a wrongful death action is an

independent cause of action. The doctrine of stare decisis

requires us to apply this holding to the present case.

Because a wrongful death action is an independent cause of

action, the right to bring the action cannot depend on the

existence of a separate cause of action held by the injured

person immediately before his or her death. To conclude

otherwise would convert the wrongful death action from an

independent cause of action to a derivative action, one dependent

on a separate cause of action. Moreover, the wrongful death

action does not even arise until the death of the injured person.

It follows, therefore, that the injured person cannot defeat the

beneficiaries' right to have a wrongful death action brought on

their behalf because the action has not yet arisen during the

injured person's lifetime. Injured persons may release their own

claims; they cannot, however, release claims that are not yet in

existence and that accrue in favor of persons other than themselves.

For the foregoing reasons, we hold that a recovery in a

medical malpractice action by a decedent during his or her

lifetime does not bar a subsequent wrongful death action brought

pursuant to R.C. 2125.01 on behalf of the decedent's

beneficiaries. The statute requires the decedent to have at one

time had a cause of action against the defendant. This condition

was met in the present case, as is evident from the jury's

finding that appellants were negligent in their care and

treatment of Allen.

We recognize, however, that Allen's medical malpractice

action and Thompson's wrongful death action are similar in that

they each share the same set of underlying facts. As a result,

many of the issues in the prior medical malpractice action will

also be present in the subsequent wrongful death action. The

second issue raised by appellants is whether the subsequent

action is barred by the doctrine of collateral estoppel.

Collateral Estoppel

Collateral estoppel (issue preclusion) prevents parties or their privies from relitigating facts and issues in a subsequent

suit that were fully litigated in a prior suit. Collateral

estoppel applies when the fact or issue (1) was actually and

directly litigated in the prior action, (2) was passed upon and

determined by a court of competent jurisdiction, and (3) when the

party against whom collateral estoppel is asserted was a party in

privity with a party to the prior action. Whitehead v. Gen. Tel.

Co. (1969), 20 Ohio St.2d 108, 49 O.O.2d 435, 254 N.E.2d 10,

paragraph two of the syllabus.

This case is unusual in that the parties who were found

negligent in the prior medical malpractice action, Wing and the

Akron Clinic, are the ones arguing for the application of

collateral estoppel. They seek to assert collateral estoppel

against Allen's beneficiaries (the real parties in interest in a

wrongful death action). Because the beneficiaries were not a

party to Allen's medical malpractice action, the initial question

is whether they are in privity with Allen.

We have previously held that a person is in privity with

another if he or she “succeeds to an estate or an interest formerly held by another.” Whitehead, supra, at 115, 49 O.O.2d at 439, 254 N.E.2d at 15. The beneficiaries assert their own

independent right to have an action brought on their behalf under

the wrongful death statute. They do not succeed to any estate or

interest held by the decedent, and, as a result, they do not fit

within the narrow definition of “privity” set forth above.

In certain situations, however, a broader definition of

“privity” is warranted. As a general matter, privity “is merely

a word used to say that the relationship between the one who is a

party on the record and another is close enough to include that

other within the res judicata.” Bruszewski v. United States

(C.A.3, 1950), 181 F.2d 419, 423 (Goodrich, J., concurring). We

believe the beneficiaries' relationship with the decedent is

close enough to conclude that the beneficiaries are in privity

with the decedent. The Restatement of Judgments 2d, supra, holds

essentially the same view. Section 46(3) of the Restatement

states:

“Issues determined by a judgment for or against a person in

an action based on an act which later causes his death are conclusive in a subsequent action for causing his death.”

The Restatement recognizes that there is a close alignment

of interests between the beneficiaries and the decedent. The

decedent has every incentive to vigorously pursue a claim for

personal injury or medical malpractice. Upon the decedent's

death, the beneficiaries may reasonably expect to be bound by the

determination of issues that were litigated in the earlier

action, issues, concerning, for example, duty, breach of duty,

and proximate cause. Moreover, allowing such issues to be

relitigated in a wrongful death action could result in

inconsistent decisions, with the defendant found liable in one

action and not the other. Such a result would not further

confidence in our judicial system. For these reasons, we hold

that the beneficiaries in a wrongful death action are in privity

with the decedent.

Because the beneficiaries are in privity with the decedent,

they are collaterally estopped from relitigating issues that were

decided in the decedent's own action. The central issue in a

wrongful death action is whether a person's “wrongful act, neglect, or default” caused the death of another. See R.C.

2125.01. To bring a wrongful death action upon a theory of

negligence, the plaintiff must show (1) the existence of a duty

owing to the plaintiff's decedent, (2) a breach of that duty, and

(3) proximate causation between the breach of the duty and the

death. 1 Speiser, Recovery for Wrongful Death (2 Ed. 1975) 64,

Section 2:1.

Two of the three elements above were actually litigated and

decided in Allen's medical malpractice case; the third was not.

As a result, the present wrongful death action is not barred by

collateral estoppel. The jury in Allen's medical malpractice

action found that Wing and the Akron Clinic owed a duty to Allen

and that they breached their duty. However, the issue concerning

the proximate cause between the breach of their duty and Allen's

death was not litigated in Allen's medical malpractice action for

the very obvious reason that Allen was still living when her case

was tried.

Appellants argue at length that their negligence did not

cause Allen any physical harm. Instead, they argue, it caused Allen only psychological harm. They draw this conclusion from

the interrogatories in Allen's medical malpractice action which

reveal that the jury apparently awarded Allen no damages for her

shortened life expectancy. Instead, the jury awarded Allen ten

thousand dollars for lost earnings and forty thousand dollars for

her visits to a psychiatrist and for having obtained a second

evaluation.

It makes little difference here (as far as the legal issue

is concerned) whether appellants' negligence caused Allen

physical harm. The primary issue in the present wrongful death

action is whether appellants' neglect proximately caused Allen's

death, and this issue has not yet been determined. It is not

enough that a similar issue, one addressing physical injury

instead of death, was litigated and decided in Allen's medical

malpractice action. For collateral estoppel to bar the

relitigation of an issue, precisely the same issue must have

previously been litigated and decided.

In sum, we hold that the parties in a wrongful death action

are barred by collateral estoppel from relitigating issues that were actually litigated and determined in the decedent's prior

action against the defendant. In the present case, therefore,

Wing and the Akron Clinic should be bound by the determination

that they owed Allen a duty and breached their duty. The

proximate cause of Allen's death and the damages suffered by the

beneficiaries were not litigated in Allen's medical malpractice

action (nor could they have been). These issues remain to be

litigated in the present wrongful death action.

For the foregoing reasons, the decision of the court of

appeals is affirmed. The cause is remanded to the court of

common pleas for proceedings consistent with this opinion.

Judgment affirmed.

Moyer, C.J., A.W. Sweeney, F.E. Sweeney and Pfeifer, JJ.,

concur.

Douglas, J., concurs in judgment.

Resnick, J., concurs in judgment only.

FOOTNOTES:

1. The English Parliament passed Lord Campbell's Act in 1846 to

eliminate the harsh results inherent in the common-law rule disallowing any recovery for the wrongful death of an individual,

a rule attributed to the case of Baker v. Bolton (1808), 1 Campb.

493, 170 Eng. Rep. 1033. Lord Campbell's Act formed the basis

for many wrongful death statutes in this country, including the

wrongful death statute in Ohio, which was enacted in 1851. See

49 Ohio Laws 117.

As originally enacted, Lord Campbell's Act provided in

relevant part:

“* * * That whensoever 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 would

have been liable if Death had not ensued shall be liable to an

action for Damages, notwithstanding the Death of the Person

injured ***.” 9 & 10 Vict. Ch. 93, 86 Eng. Stat. at Large 531.

2. As explained by one English author, commenting on the

decision in Read: “* * * if a person who ultimately dies of

injuries caused by wrongful act or neglect has accepted satisfaction for them in his lifetime, an action under Lord

Campbell's Act is not afterwards maintainable. For the injury

sued on must in the words of the Act be 'such as would, if death

had not ensued, have entitled the party injured to maintain an

action and recover damages in respect thereof'; and this must

mean that he might immediately before his death have maintained

an action, which, if he had already recovered or accepted

compensation, he could not do.” (Emphasis added.) Pollock, The

Law of Torts: A Treatise on the Principles of Obligations arising

from Civil Wrongs in the Common Law (12 Ed. 1923) 70.

3. The facts in Van Alstine and Robinette are similar to the

facts in the present case, but the cases are not directly on

point because the decedents each held a claim immediately before

their death. Nevertheless, the reasoning in Van Alstine and

Robinette applies to the present case.

The decedent in Van Alstine had commenced an action before

her death for injuries sustained in a railway accident. She died

before the action could be resolved, and her administrator

continued it under the survivor statute. The administrator later recovered a judgment from the defendant, and the defendant,

having satisfied the judgment, argued that the administrator was

estopped from further prosecuting a pending wrongful death

action. We disagreed, holding that the administrator may

continue to prosecute the wrongful death action. We based our

decision on the view that the action is independent from the

decedent's personal injury action.

In Robinette, the administrator filed a survival action and,

concurrently, a wrongful death action for the death of the

decedent in an automobile accident. The survival action was

heard first, and the jury returned a verdict in favor of the

defendant. The defendant asserted this verdict as an additional

defense in the wrongful death action. We held that the judgment

in the survival action, even though adverse to the administrator,

did not bar prosecution of the wrongful death action. We again

reasoned that a wrongful death action is not the same as a

personal injury action.

Douglas, J., concurring in judgment. Given the discussion

by the majority concerning Lord Campbell's Act, the cases of Baker v. Bolton (1808), 1 Campb. 493, 170 Eng.Rep. 1033,

Griffiths v. The Earl of Dudley (1882), L.R., 9 Q.B. 357, and

especially Read v. Great Eastern Ry. Co. (1868), L.R., 3 Q.B.

555, all found in “The Wrongful Death Statute” portion of the

opinion and/or in fn. 1, I find it necessary to point out to any

reader interested in wrongful death and the common law this

court's split decision in Shover v. Cordis Corp. (1991), 61 Ohio St.3d 213, 574 N.E.2d 457. In Shover, three members of this

court, Justices A.W. Sweeney, Resnick and Douglas dissented. Our

major concern, of course, was the sanctioning by the majority of

the use of fraud to conceal the cause of a wrongful death so as

to permit the limitations period in R.C. 2125.02(D) to expire

before any suit was commenced. This concern remains today and is

amplified by today's case wherein a slight change of facts would

have, again, brought Shover into play. Shover should be

overruled at our first opportunity to do so.

Our other concern was the incantation of the language “[a]t

common law, there is no action for wrongful death.” Id. at 215,

574 N.E. 2d at 459. See id. at 229, 574 N.E.2d at 468 (Douglas, J., dissenting). Today's decision, written by a member of the

majority in Shover, by its discussion and citations seems now to

accept, at the very least by implication, that the Wrongful Death

Statute (as a latter day descendent of Lord Campbell's Act) “* *

* did not give any new cause of action, but only substituted the

right of the representative to sue in the place of the right

which the deceased himself would have had if he had survived.”

See majority's citation to Read, supra, and Griffiths, supra, and

the discussion pertinent thereto.

Finally, I concur not just on the basis stated by the

majority that “[t]he doctrine of stare decisis requires us to

apply this holding to the present case,” but also because the

ultimate holding is just and correct.