
    In re Estate of WILSON.
    Court of Common Pleas of Ohio, Fayette County, Probate Division.
    No. 941133.
    Decided Oct. 25, 1995.
    
      
      Michael L. Barr, for the Estate of Wilson.
    
      James A Hardgrove and Robert P. Carlisle, for Arbor Health Care Company and Green Tree Pharmacy.
   Nancy Drake Hammond, Judge.

The matter comes before the court on a question of priority of claims. Claimants, Arbor Health Care Company and Green Tree Pharmacy, claim that their bills, fees, and charges are expenses of the last sickness of the decedent, Marvin L. Wilson. They claim that because of this their claims are entitled to be treated with priority under R.C. 2117.25(E) and not just as general creditors of the estate.

The obligations owed to Arbor Health Care Company were incurred prior to May 6, 1994. Arbor Health Care Company is a nursing home. Mr. Wilson was released from Arbor Health Care Company to his home. He remained at home until his death on August 1,1994.

From October 1993 until his death in August 1994, Mr. Wilson had been treated for advanced arteriosclerotic vascular discard, diabetes mellitus, severe peripheral vascular disease, end stage renal failure, and essential hypertension. These diseases are all listed on Mr. Wilson’s death certificate as “contributing to death but not resulting in the underlying cause.” The cause of death stated on the death certificate is “acute cerebrovascular accident.” The certificate indicates a week elapsed between the happening of the cause and the death. No secondary or tertiary causes of death are listed.

Apparently, one of the reasons for enacting statutes that give priority to the expenses of last illness is to assure the sick patient of proper medical care and attention during the period of his sickness, when he is more or less incapable of looking after business affairs, and at the same time to assure his physician that during this period his services will be paid, if there is anything left of the estate. Long v. Northrup (1938), 225 Iowa 132, 279 N.W. 104.

There is scant legal authority defining what constitutes “last illness” or what criteria courts should use in testing to see if a disease is a “last illness.”

The consensus of the authority that does exist defines “last illness” or “last sickness” as that illness which terminates in the patient’s death. Black’s Law Dictionary (6 Ed.1990) 883; Holmes v. Krause (P.C.1954), 69 Ohio Law Abs. 337, 56 O.O. 272, 123 N.E.2d 755; and McLean v. Breen (Tex.App.1920), 219 S.W. 1089.

The case law differentiates between “last illness” and protracted or chronic illness from which a patient may never be free. In Holmes v. Krause, supra, an eighty-year-old woman had been known to have heart disease from 1942. She died on October 10, 1953 from a coronary occlusion which occurred October 9, 1953. The court found she continued to do business during the eleven-year interval and did not see the doctor on a continual basis. The court held that the doctor should be precluded from making a claim for preference even though his treatment was for the same disease of which she died, if and when his services are not continuous, but occasional.

In McLean v. Breen, supra, the decedent, an eighty year old, was so infirm as to be habitually ill. However, as long as she could leave her bed and attend to certain business affairs, she was not in her last illness. Her last illness was when she was last taken to her bed and died.

In Murphy v. Langa (1939), 62 Ohio App. 192, 15 O.O. 500, 23 N.E.2d 516, the doctor was entitled to priority from the last time the decedent became ill until her death. The same doctor had previously seen the decedent and treated her for cancer two years prior to her death. He initially treated her for five months. She then returned to work and to her duties as a wife and mother for nine months and sought treatment for the cancer one month after leaving work. At this juncture the cancer became the last illness and she never recovered from it.

This differentiation made by the cases between a long, protracted illness and the last illness becomes more vivid in light of today’s medical knowledge and treatment. Many people live many years with various illnesses or diseases. These conditions may or may not become the last illness. Whether or not they become the last illness depends on whether they totally incapacitate the sufferer to the point where the sufferer will not recover and can no longer carry on any of his or her affairs and takes to his or her bed with no hope of being about again. The time of the last illness can vary widely, from a few hours to months.

Applying these rules to the present situation it becomes clear what constituted Mr. Wilson’s last illness. He had suffered from many illnesses since 1993. These illnesses had necessitated various hospital and nursing home stays. Then, as his daughter avers, “after a lot of hard work and meeting all of their requirements to show he could care for himself, he was released from Arbor on May 6, 1994. He went to Summit Station apartments which was handicapped accessible. There he took care of himself, did his dialysis four times a day, cooked meals, started driving again, visited friends and family and attended his granddaughter’s ball games.”

On July 2, 1994, he had a stroke. He was hospitalized, then sent to a nursing home and suffered another stroke on July 23, 1994. He passed away on August 1, 1994. The illness from which he never recovered nor from which he could resume any independent life is the stroke of July 2,1994.

Holmes v. Krause, supra, states that the term “last illness” “must be liberally construed and cannot be limited in meaning to the period during which the decedent was in extremis, but, on the other hand, it relates to the proximate and not the remote cause of death.”

Here, Mr. Wilson was in extremis from July 23, 1994 until his death. This period is included in his “last illness.”

WHEREFORE, the court orders that any bills incurred from July 2,1994 until his death on August 1, 1994 from Arbor Health Care Company and Green Tree Pharmacy for goods or services rendered to Mr. Wilson on and between those dates are expenses of his last illness and, in his estate, are entitled to priority under R.C. 2117.25(E).

Judgment accordingly.  