Cases involving catastrophic injuries to minors, whether through birth trauma, motor vehicle collision, or any other alleged mechanism of negligence, can carry extremely high exposure due to the effect the injuries may have on the minor during the rest of his or her life. Especially in cases where liability is in question, litigants should be aware of the ability for courts to appoint a guardian ad litem to effectuate settlement in the best interest of the minor or the minor’s estate. Further, a guardian ad litem can be appointed in any case where a beneficiary of the settlement or trial proceeds is a minor.

What is a Guardian Ad Litem?

A guardian ad litem is an attorney appointed by the court to protect their wards’ interest in a lawsuit. In Illinois, courts have statutory authority to appoint guardians ad litem for minor parties to litigation. 750 ILCS 5/606; See also Pelham v. Grieshheimer, 92 Ill.2d 13 (1982). Every minor plaintiff is a ward of the court when involved in litigation, and the court has a duty and broad discretion to protect the minor’s interest. Burton v. Estrada, 149 Ill.App.3d 965 (1986). With regard to settlement, when the court believes a potential settlement to be in a minor’s best interest, the court may order an appointed guardian or conservator to effectuate settlement. Ott v. Little Company of Mary Hospital, 273 Ill.App.3d 563, 571 (1st Dist. 1995). If that person refuses settlement, the court may appoint a guardian ad litem to settle the case on the minor’s behalf. Id.

Case Law Update: Estate of Prather v. Sherman Hospital Systems

This issue recently arose in a birth trauma case, Estate of Prather v. Sherman Hospital Systems, 2015 IL App (2d) 140723. Prather is instructive on how the appointment of a guardian ad litem can function to effectuate settlement where the defendant was faced with a very high exposure risk at trial.

Factual Background

In Prather, Jaclyn Pena-Prather presented to Sherman Hospital for elective induction of labor because she was 41 weeks pregnant. Id. at ¶ 6. An external fetal monitor was applied and the fetus was monitored continuously throughout labor. Id. at ¶ 7. Jaclyn received an epidural at 2:15 a.m. Id. At 4:45 a.m., a nurse contacted Jaclyn’s obstetrician/gynecologist (hereinafter “OB/GYN”) to update her on Jaclyn’s progress. Id. At 7:20 a.m., the OB/GYN was present and Jaclyn was coached to begin pushing. Id. At 8:21 a.m., the baby, Gianna Prather, was born. Id. Gianna’s Apgar scores were very low, rating zero at one minute after birth, rating one at five minutes after birth, and rating three at ten minutes after birth. Id. at ¶ 8. The umbilical cord was described as “thin and shoe-string-like” and was coiled seven times. Id. The cord also had no Wharton’s jelly around it, which is usually present to cushion the cord itself. Id. Gianna was diagnosed with hypoxic-ischemic encephalopathy and metabolic acidosis. Id. Gianna now has cerebral palsy and a life expectancy of only 21 years. Id.

The Plaintiff alleged that Gianna suffered intrapartum asphyxia and that the fetal monitor strips showed late decelerations in labor, indicating fetal distress that necessitated an emergency caesarian section hours before Gianna’s vaginal delivery. Id. at ¶ 9. Plaintiff alleges Sherman Hospital, through its employees, failed to properly interpret the fetal monitoring strips and notify the OB/GYN of the strip indications, and that the OB/GYN failed to timely diagnose fetal distress and order an emergency caesarian section. Id. Defendants denied liability and alleged that the fetal heart rate did not indicate intrapartum hypoxemia or acidosis, that the obstetrical team acted within the standard of care, and that the thinness of the umbilical cord, its coiled position, and the absence of Wharton’s jelly post-deliver indicate an antenatal event, a genetic abnormality, or both, which caused Gianna’s poor neurological outcome. Id.

Trial Court’s Appointment of a Guardian Ad Litem

After more than eight years of litigation and discovery, the parties began settlement negotiations. Id. at ¶ 19. The Plaintiff claimed damages exceeding $22.5 million. Id. The trial court appointed a guardian ad litem to evaluate settlement offers on behalf of Gianna, to which Plaintiff’s counsel did not object. Id. Gianna’s guardian ad litem reviewed the pretrial memorandum submitted by both parties, the depositions of the OB/GYN and the nursing staff, and the parties’ experts. Id. at 20. The guardian ad litem also reviewed the fetal monitoring strips, researched issues of causation and damages, evaluated the OB/GYN’s conduct during labor and delivery, met with plaintiff’s counsel, and reviewed the report of plaintiff’s damages expert. Id.

At a pretrial conference, the defendants made a final offer to settle for $3 million, representing the OB/GYN’s $1 million insurance policy limit and $2 million from Sherman Hospital. Id. at ¶ 21.  The next day, the guardian ad litem formally recommended that the Plaintiff accept the $3 million offer. Id. at 23. In doing so, he cited the OB/GYN’s testimony that, despite not reading the fetal monitoring strips until after the incident, she would have delivered Gianna the same way had she read them contemporaneously. Id. Shortly thereafter, the guardian ad litem filed a written report summarizing the basis for his recommendation, explaining the likelihood of Gianna prevailing at trial was low due to the failure rate of medical malpractice actions in the venue of Kane County and the weakness of Plaintiff’s case in terms of both liability and medical causation. Id.

Plaintiff objected to the proposed $3 million settlement, alleging it put the State’s interests ahead of Gianna’s, as the State had asserted a lien of $383,000.00, and had an open lien on the settlement trust, which would continue to grow as the State was paying for Gianna’s medical care for the remainder of her life. Id. at 24-25. Over Plaintiff’s objection, the trial court judge approved the settlement, finding it was in Gianna’s best interest due to the Plaintiff’s low chances of success at trial. Id. The Plaintiff then filed a motion objecting to the appointment of the guardian ad litem and to the approval of the settlement. Id. at 26. The Court denied Plaintiff’s motion, noting that the objection came only after the guardian ad litem recommended acceptance of the $3 million offer and again explained that the settlement was in the best interest of Gianna. Id. at 25-27.

Appellate Court’s Review

On appeal, the Appellate Court found that the trial court’s appointment of a guardian ad litem to recommend settlement was proper under Ott v. Little Company of Mary Hospital, 273 Ill.App.3d 563 (1st Dist. 1995). The Sherman Court explained:

Ott stands for the proposition that ‘when the court believes settlement to be in the minor’s best interest, the court may order a prior-appointed guardian or conservator to effectual settlement; and if that person refuses, may appoint a guardian ad litem to settle the case on the minor’s behalf.

Estate of Prather v. Sherman Hospital Systems, 2015 IL 140723, ¶ 60, quoting Ott, 273 Ill.App.3d at 571 (emphasis in original). With regard to the terms of the settlement, the Plaintiff cited a birth trauma case involving brain injury to the infant, which resulted in an award of $28 million. Id. at ¶ 72. The Court nonetheless rejected Plaintiff’s argument and found that the $3 million settlement approved by the trial court was in Gianna’s best interest.

The Takeaway: Guardians Ad Litem can Shield against Excessive Verdicts by Effectuating Settlement in Cases Where Liability is Questionable

Prather and Ott make clear that the appointment of a guardian ad litem is a weapon that defendants can keep in their arsenal to hamstring the ability of Plaintiffs during settlement negotiations. Too often, Plaintiffs seize the potential for a runaway verdict to inflate settlement values in cases involving minors. In such cases, defendants should strongly consider petitioning the court to appoint a guardian ad litem to effectuate settlement.

Utilizing Guardian Ad Litem in Cases Involving Minor Beneficiaries

 The appointment of a guardian ad litem is not reserved only to cases where the injured party is a minor. Johnson & Bell recently represented a long-term care facility in a lawsuit brought pursuant to the Nursing Home Care Act and Wrongful Death Act, where the decedent was survived by two sisters under the age of eighteen. The defense team was successful in petitioning the Court to appoint a guardian ad litem on behalf of the minor sisters. The guardian ad litem submitted a report in favor of the settlement proposed by the defense, which the Court accepted and approved. Therefore, while cases involving injuries to minors will likely have a higher exposure potential, any case involving minors who would be beneficiaries of the proceeds of the suit is one in which appointing a guardian ad litem may be beneficial for the defense.

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