Lubowsky v. Skokie Valley Community Hospital

• Decision Date: 26 December 1979
• Docket Number: No. 78-1775,78-1775
• Citation: 398 N.E.2d 1037,35 Ill.Dec. 87,79 Ill.App.3d 909
• Parties: , 35 Ill.Dec. 87 Hanna LUBOWSKY, Individually and as Personal Representative of the Estate of Dan Lubowsky, Deceased, Plaintiff/Petitioner-Appellee, v. SKOKIE VALLEY COMMUNITY HOSPITAL, a corporation; Milton Goldberg; Donald Cohen; Melvin Goldstein; George E. Block, Defendants, and The University of Chicago, a corporation (sued herein as The University of Chicago Hospitals and Clinics, a corporation), Defendant/Respondent-Appellant.
• Court: United States Appellate Court of Illinois

Page 1037

398 N.E.2d 1037

79 Ill.App.3d 909, 35 Ill.Dec. 87

Hanna LUBOWSKY, Individually and as Personal Representative of the Estate of Dan Lubowsky, Deceased Plaintiff/Petitioner-Appellee, v. SKOKIE VALLEY COMMUNITY HOSPITAL, a corporation; Milton Goldberg; Donald Cohen; Melvin Goldstein; George E. Block, Defendants and The University of Chicago, a corporation (sued herein as The University of Chicago Hospitals and Clinics, a corporation), Defendant/Respondent-Appellant.

No. 78-1775.

Appellate Court of Illinois, First District, Second Division.

Dec. 26, 1979.

Menk & Bishop, Chicago (John Cadwalader Menk, Ronald T. Bishop, John T. Mehigan, Chicago, of counsel), for defendant/respondent-appellant.

John D. Hayes, John D. Hayes & Associates, Ltd., Chicago, for plaintiff/petitioner-appellee.

HARTMAN, Justice:

The salient issue in this appeal is whether an order entered on April 26, 1976 dismissing "with prejudice" certain defendants from a suit for alleged medical negligence, which order was based upon " * * * oral motion and by agreement * * * " of the parties, should have been vacated upon a petition pursuant to section 72 of the Civil Practice Act (Ill.Rev.Stat.1977, ch. 110, par. 72). On July 26, 1978, the trial court vacated the 1976 order above described and reinstated one of the previously dismissed defendants as a party to the lawsuit. For the reasons which follow, we affirm.

Plaintiff filed her medical negligence action on March 17, 1972 charging the wrongful death of her decedent on February 21, 1972, naming as original defendants Skokie Valley Community Hospital and three physicians who had staff privileges there, Doctors Milton Goldberg, Donald Cohen and Melvin Goldstein. ¹ On February 21, 1974, plaintiff joined the University of Chicago (hereinafter "University") and Dr. George E. Block as additional defendants in an amended complaint. On April 26, 1976, one of several status hearings was held by the trial court with counsel present, during the course of which, according to recitations contained in the 1978 vacatur order, the trial court reviewed the evidence produced by discovery completed to that date. The evidence indicated to the court that "short bowel syndrome," as the cause of death, was dependent upon whether the amount of bowel removed from decedent at Skokie Valley Community Hospital was greater than reported. The court suggested to plaintiff's counsel that because Dr. Block and the University treated decedent after he was treated at Skokie Valley Community Hospital, they did not appear to have been implicated in the alleged causative negligence, and asked counsel to agree to their dismissal. The "oral motion" to which the order refers was made by counsel for the University and Dr. Block. Plaintiff's counsel acceded to the trial court's suggestion and the order of dismissal was thereafter entered.

During continuing discovery, plaintiff's counsel deposed a Dr. Marshall S. Sparberg in November of 1976, who recommended that the records be reviewed by a Dr. Richard Kessler, a board certified physician and surgeon, professor of surgery and cell biology at New York University and assistant chief of surgery at the Veterans Administration Hospital in Manhattan, New York. The records were submitted to Dr. Kessler who reviewed them and on March 7, 1977, after apologizing for " * * * taking so long to send you a report * * *," gave as his opinion that the underlying cause of decedent's death was "stagnant bowel syndrome," rather than "short bowel syndrome." ² "Stagnant bowel syndrome," he stated, had not been theretofore diagnosed or treated properly while decedent was hospitalized at the University. Dr. Kessler's report was verified by affidavit and was submitted in support of plaintiff's section 72 petition. The Kessler diagnosis differed from the deposition testimony previously given by Doctors Block and Sparberg, who had indicated that the cause of death was "short bowel syndrome" upon which evidence the trial court and plaintiff's counsel had in part relied.

Counsel for the University was alleged to have been made aware of the substance of Dr. Kessler's findings as early as April or May of 1977. On September 12, 1977, plaintiff moved to vacate the dismissal as to the University, submitting an affidavit in support of the motion on October 6, 1977. The University filed a motion to strike and dismiss supported by a memorandum in opposition to plaintiff's motion to vacate on October 19, 1977. On November 7, 1977, the motion to vacate was denied, the order stating that the motion was not being construed as a section 72 petition. Plaintiff then filed such a petition on January 6, 1978 supported by the affidavits of Dr. Kessler and plaintiff's counsel, and accompanied by a memorandum, to which defendant filed a motion to strike and dismiss, together with a memorandum in support thereof. A hearing on the section 72 petition and opposing motion was held on July 5, 1978 and a written opinion and order was filed by the trial court on July 26, 1978 allowing the petition. The order vacated the order of dismissal of April 26, 1976 as to defendant University; directed that plaintiff provide the University with a copy of the transcript of Dr. Sparberg's deposition; directed that plaintiff produce Dr. Sparberg for future deposition at the office of counsel for the University at plaintiff's expense; and required counsel for plaintiff, if requested, to arrange for Dr. Kessler's deposition at a time and place agreeable to the parties. It is from this order that the University appeals.

The University makes two principal points on appeal: first, that a judgment entered by consent of the parties cannot be vacated by motion of one of them; and second, that plaintiff's section 72 petition fails to show a meritorious claim or due diligence.

With respect to the first point, the University argues that the rule of law is long established and well recognized which considers a judgment entered by consent to be an agreement by the parties which cannot be vacated on motion by one of them, citing 23 I.L.P. Judgments, § 3, p. 118 and § 172, p. 261 (23 Ill.L. & Pr. §§ 3, 172 (1956)); Jackson v. Ferolo (1972), 4 Ill.App.3d 1011, 1014, 283 N.E.2d 247; Peters v. Hokin (1976), 41 Ill.App.3d 995, 997, 355 N.E.2d 205; Pierce v. MacNeal Memorial Hospital Ass'n (1977), 46 Ill.App.3d 42, 48, 4 Ill.Dec. 615, 360 N.E.2d 551; and Filosa v. Pecora (1974), 18 Ill.App.3d 123, 127, 309 N.E.2d 356. The University maintains further that a consent decree as a general rule is conclusive upon the parties and cannot be amended or vacated by one of the parties in the absence of a showing that the consent order resulted from fraudulent misrepresentation; or coercion in making the agreement; or the incompetence of a contracting party; or gross disparity in the position or capacity of the parties. As far as they go, the cases above cited exemplify the rule in Illinois. Plaintiff's section 72 petition raised none of the aforesaid grounds as support for the relief she sought, but rather was based upon the assertions that the dismissal order was entered by reason of a misapprehension of fact by the court and counsel for plaintiff; that if the additional fact had been known, the court would not have entered the agreed order; and that plaintiff's failure to discover the true fact was not due to lack of diligence or, alternatively, that failure of plaintiff's counsel to ascertain the true fact was "excusable failure." We must therefore consider whether such grounds for relief are sufficient upon which to support the 1978 order vacating the 1976 dismissal order.

A consent judgment is generally regarded as one entered by a court reciting a settlement agreement reached as an independent undertaking by the parties which may supercede pleadings and evidence and limit the relief to be granted. (Clark v. Standard Life & Accident Ins. Co. (1979), 68 Ill.App.3d 977, 983, 25 Ill.Dec. 416, 386 N.E.2d 890; Pierce v. MacNeal Memorial Hospital Ass'n, 46 Ill.App.3d at 50, 4 Ill.Dec. 615, 360 N.E.2d 551; Filosa v. Pecora, 18 Ill.App.3d at 127, 309 N.E.2d 356.) Because it is not a judicial determination of the rights of the parties and does not purport to represent the judgment of the court, a consent order ordinarily cannot be reviewed on appeal. (Bergman v. Rhodes (1929), 334 Ill. 137, 143, 165 N.E. 598.) The rule appears to have been first articulated in the early chancery cases in which the parties arriving at their agreement exchanged Quid pro quo and would not later be heard to question their own agreement, particularly where a change of position by the parties followed the entry of the decree. For example, in Webb v. Webb (1676), 28 Car. 2, 3 Swanst. 656, a son sought an accounting of a personal estate and stipend of which his father was trustee. A consent decree was entered in which the father conveyed to the son the funds in return for which the son was to pay the father an annual emolument and release the father of all accounts in arrears. This decree was held to foreclose father's bill of review seeking to reverse the decree upon the maxims Concensus tollit errorem And Volenti non fit injuria. In Armstrong v. Cooper (1850), 11 Ill. 413, our supreme court noted that the parties there seeking a bill of review had been authorized to represent the interests of certain heirs one of whom was their attorney and administrator of an estate. Through the attorney they proposed to the defendant in error that if certain conditions were met, they would permit and consent to the decree to be taken. In refusing to consider the bill of review, the supreme court stated that (11 Ill. at 414): "A decree made by consent can not be appealed from, nor can error be properly assigned upon it. Even a rehearing can not be allowed in the suit; nor can the decree be set aside by a bill of review."

The rule was modified subsequently, however, to permit equitable relief...