Favata v. Rosenberg

Deceased, before his death, filed a malpractice action against several parties, including defendants-appellees, J. Ernest Breed and Breed Radium Institute. His wife was joined as a party plaintiff. Immediately after his death the malpractice complaint was voluntarily dismissed without prejudice. Later it was reinstated on defendants-appellees motion. Several months later it was dismissed with prejudice for failure to serve summons on defendants within a reasonable time. A few months thereafter the administrator filed the present action against the parties, including defendants Breed and Breed Radium Institute, seeking recovery under the Wrongful Death Act (Ill. Rev. Stat. 1981, ch. 70, pars. 1, 2), and for funeral and medical expenses. The trial court held the action for wrongful death and for medical and funeral expenses was barred by the previous judgment, dismissing the common law malpractice suit. We reverse as to the claim under the wrongful death action and for funeral expenses. We agree that the claim for medical expenses is barred under the doctrine of res judicata. Page 671