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In re Guardianship of Matyaszek12/29/2004
ely must inquire about appellant's current medical condition. Appellant's current medical condition was especially important when it is completely evident to this Court that appellant's injuries, even at the time of the settlement hearing ten months after the accident, could by no means be considered trivial. The Magistrate properly stated that any type of injury, even a soft tissue injury, would have prompted him to appoint a guardian ad litem.
{ } This Court is very concerned about the failure of either party or appellee's attorney to make disclosures about appellant's current health to the Magistrate. We are confident that the Magistrate, as he testified himself, would have appointed a guardian ad litem had the extent of appellant's injuries even been hinted at. Instead, the Magistrate approved a settlement for nuisance value without any representation for appellant for injuries that any reasonable person would conclude were not of nuisance value
{ } This Court does not find Dr. McLaughlin's letter to be of "miniscule" value as did the Probate Court. Dr. McLaughlin's letter states that he was the family physician and therefore he was in a superior position to inform the court of appellant's health decline resulting from the accident. Further, his letter specifically stated that it was his intent to inform appellee about appellant's "residual" health issues; that is, those arising months after the accident when the scope of his injuries were far more clear.
{ } Dr. Hlavin's discharge summary stating that appellant's prognosis was "excellent" gives the impression that he would recover completely. Dr. McLauglin's report gives a far different impression, especially with his longer association with the family and his more recent contact with appellant.
{ } Even if the letter does not contradict Dr. Hlavin's initial prognosis, it would provide notice to the Magistrate that appellant had lingering problems and had not recovered fully such that a settlement at that time was appropriate. This Court views the failure of appellee, its attorneys, or appellant to appraise the Magistrate regarding appellant's lingering health issues as a gross procedural irregularity which again was highly prejudicial to appellant.
D. Lack of Meaningful Representation for Appellant
{ } The Probate Court found that appellant's interests were represented by his father. Based on the above-noted procedural irregularities, it would be difficult to conclude that appellant's father was representing his interests. Further, R.C. 2111.18 recognizes the reality that parents are not the proper parties to represent their children because their interests often conflict with the child's. Magistrate Wertz likewise recognized this reality when he stated that parents often lose sight of whose claim is being settled. Further, based on the statements the father may have made at the hearing, appellant's current condition was not accurately disclosed to the Magistrate. This Court cannot conclude that appellant was represented by his father.
{ } This Court also views with concern, in light of all the other circumstances, the fact that this matter was settled at the very limits permitted without the automatic appointment of a guardian ad litem required under R.C. 2111.18. This fact alone would not provide grounds to vacate, but it adds weight to the other serious procedural irregularities which occurred, and which could not have occurred, had a single penny more been given in settlement. Further, the obvious severity of the injury based on the length of the hospital stay, the fact that much of that hospital stay was spent in the intensive care unit, the fact that the injury was
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