Scherer v. Ravenswood Hosp. Medical Center

• Decision Date: 26 July 1974
• Docket Number: No. 59223,59223
• Citation: 316 N.E.2d 98,21 Ill.App.3d 637
• Parties: Robert SCHERER, Jr., a minor, by Robert Scherer, his father and next friend, Plaintiff-Appellee, v. RAVENSWOOD HOSPITAL MEDICAL CENTER, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 98

316 N.E.2d 98

21 Ill.App.3d 637

Robert SCHERER, Jr., a minor, by Robert Scherer, his father and next friend, Plaintiff-Appellee, v. RAVENSWOOD HOSPITAL MEDICAL CENTER, Defendant-Appellant.

No. 59223.

Appellate Court of Illinois, First District, Fifth Division.

July 26, 1974.

Hinshaw, Culbertson, Moelmann, Hoban & Fuller, Chicago (D. Kendall Griffith, John D. Cassiday, Stanley J. Davidson, Chicago, of counsel), for defendant-appellant.

Baskin, Server, Berke & Rosenbloom, Chicago (Alan I. Boyer, Chicago, of counsel), for plaintiff-appellee.

BARRETT, Justice.

Pursuant to Supreme Court Rule 308, defendant was granted leave to appeal from an interlocutory order denying its motion to dismiss Count I of plaintiff's amended complaint. (Ill.Rev.Stat.1973, ch. 110A, par. 308.) The question of law identified by the judge of the chancery division of the circuit court is 'whether the Probate Court's approval of a minor's settlement is a bar to the minor bringing a subsequent suit based on the same incident when the minor alleges that there was a mutual mistake of fact as to the nature of the damages sustained by the minor as a result of such incident.'

The question arose under the following circumstances: On October 16, 1961, when two months old, plaintiff was allegedly injured while a patient in defendant hospital. Plaintiff's father, as duly appointed guardian, petitioned the probate court for approval of a settlement reached by the parties. The probate court order, entered October 18, 1962, recited that from the petition it appeared that plaintiff had suffered a linear fracture of the head. The court ordered that the claim against defendant be settled for $1,500 and that the guardian execute and deliver to defendant a full and complete written release and discharge from all liability on account of injuries to the minor.

On February 28, 1972, plaintiff filed suit at law against defendant seeking damages for injuries alleged to have resulted from the incident of October 16, 1961. There was no mention in the complaint of the October 18, 1962 court approved settlement and release. Defendant's motion to dismiss the complaint on the basis of the prior order of settlement and release was denied.

Thereafter, on his own motion, plaintiff filed a two count amended complaint. In Count I plaintiff acknowledged that his claim had been settled and released, but asked that the release and court order approving the settlement be vacated, set aside, and adjudged void and of no effect. In support of this request plaintiff alleged that the release and court approval were procured as a result of a mutual mistake of fact, in that the parties settled for $1,500 in the mistaken belief that plaintiff had been completely cured of his injuries. In both original and amended complaints, damage as a result of defendant's conduct in 1961, which alleged plaintiff alleges he suffers from brain damage could not be detected or evaluated in 1962 by virtue of the infancy of the plaintiff. Had both parties known of the brain injury now alleged, the settlement would not have been made. Inasmuch as the relief sought in Count I of the amended complaint sounds in equity, the cause was transferred to the chancery division of the court.

Defendant filed a motion to dismiss Count I on the basis that it failed to set forth any equitable grounds upon which the release approved by the probate court could be set aside. Defendant appeals from the denial of this motion. Ill.Rev.Stat.1973, ch. 110A, par. 308.

Opinion

Defendant contends that in approving a minor's settlement the court makes a determination that the settlement is reasonable. Thus, it argues, the order had the force of a judgment and may be vacated only upon a showing of actual or constructive fraud, lack of jurisdiction, or improper legal representation of the minor. Plaintiff maintains that no such determination of reasonableness is made. He argues that the order merely authorizes the guardian to execute a release on behalf of the minor, who is incompetent to do so himself. Under plaintiff's theory, the court approved release has the force of a release between two adults and may not be rescinded on grounds of infancy. But as is the case with releases between two adults, a release executed on behalf of a minor, plaintiff claims, may be set aside upon a proper showing of mutual mistake of fact.

Although the court is not required to approve every settlement that a minor and an alleged tortfeasor might reach, the proceeding in which approval is sought is essentially the submission of a predetermined agreement to the court. The court may lend its wisdom and...