Zostautas v. St. Anthony Depadua Hosp‪.‬

This is an action for damages by Julia Zostautas, as administratrix, and in her own right as mother, and by John J. Zostautas, as father, for the death of their five-year-old son while undergoing a tonsilectomy, against the surgeon, anesthetist, hospital and nurse. The amended complaint, consisting of six counts, sets forth claims under the Wrongful Death Act (Ill. Rev. Stat. 1959, chap. 70, par. 1,) and for breach of contract. On motion of defendant Tumasonis, the circuit court of Cook County dismissed, on the grounds of legal insufficiency, count IV, which alleged an action for breach of contract against only the defendant surgeon. The court made its order appealable under section 50(2) of the Civil Practice Act by an express finding that ""there is no just reason for delaying an appeal,"" (Ill. Rev. Stat. 1959, chap. 110, par. 50,) and also found that no constitutional rights of plaintiffs were infringed by the dismissal. Plaintiffs have appealed directly to this court on the ground that the Illinois constitution was violated by construing the Wrongful Death Act as barring the common-law contract action asserted in count IV. The controverted count IV alleges in substance that on May 4, 1957, the defendant surgeon entered into an express contract with the plaintiffs to perform a tonsilectomy upon their son with the degree of care which physicians and surgeons of ordinary skill, care and diligence would exercise under the circumstances, and plaintiffs agreed to pay defendant the reasonable value of his professional services; that, while plaintiffs have performed all conditions of their agreement, defendant breached his contract and treated plaintiffs' son in a careless manner directly resulting in his death on May 16, 1957; that as a natural and probable consequence of such breach, plaintiffs suffered sever shock and mental anguish, lapsed into a deep depression, and were compelled to expend large sums for professional medical services, and $1,000 for funeral expenses, for which damages of $125,000 each are sought.