( Graul v. Adrian (1965), 32 Ill.2d 345, 347, 205 N.E.2d 444.) It is also well established that the minor is liable for necessaries only if the sale is on his own credit, and not on the credit of another, including his parents. ( Kennedy v. Kiss (1980), 89 Ill. App.3d 890, 894, 412 N.E.2d 624; 2 Williston on Contracts sec. 240, at 51 (3d ed. 1959).) Thus, the obligation to pay the medical expenses is on the parent, and the cause of action to recover for the medical expenses lies in the parent, not in the child.
ยถ 25 Nonetheless, the plaintiff contends a health care lien cannot attach to a minor's tort recovery in the absence of an assignment of the parent's cause of action for medical expenses owed under the Family Expense Act because the obligation to pay a child's medical expenses belongs solely to the parent. In support, he cites the decisions in Graul v. Adrian , 32 Ill.2d 345, 347, 205 N.E.2d 444 (1965), Bibby v. Meyer , 60 Ill.App.2d 156, 163, 208 N.E.2d 367 (1965), and Kennedy v. Kiss , 89 Ill.App.3d 890, 894, 45 Ill.Dec. 273, 412 N.E.2d 624 (1980). The plaintiff's reliance on those decisions is misplaced, however, as a brief examination of each of those cases shows.
For example, in Bibby v. Meyer, 60 Ill.App.2d 156, 163, 208 N.E.2d 367 (1965), decided shortly after Graul, the child's attempt to recover medical expenses in his tort action was held barred by a release the mother had signed. In Kennedy v. Kiss, 89 Ill.App.3d 890, 894, 45 Ill.Dec. 273, 412 N.E.2d 624 (1980), a case in which the parents assigned their cause of action to the minor plaintiff, this court held that because the cause of action for medical expenses lay with the parents, it was essential for the minor plaintiff to both plead and prove the parents were free from contributory negligence. In Reimers v. Honda Motor Co., 150 Ill.App.3d 840, 843, 104 Ill.Dec. 165, 502 N.E.2d 428 (1986), this court held that because a parent's right to recover medical expenses arises out of the injury to the minor child, it is governed by the applicable statutory limitations period for derivative causes of action.
ยถ 24 Second, plaintiff relied on cases stating parents are liable for the medical expenses of their minor children under the the family expenses statute, thereby providing the cause of action to the parents. E.g., Graul v. Adrian, 32 Ill. 2d 345, 347 (1965); Reimers v. Honda Motor Co., 150 Ill. App. 3d 840, 843 (1986); Kennedy v. Kiss, 89 Ill. App. 3d 890, 894 (1980). This court recognized this basic point from Graul and its progeny in Estate of Enloe, but ruled the family expenses statute merely provides an alternative remedy for creditors. Estate of Enloe, 109 Ill. App. 3d at 1091-92.
Further, any claim for medical expenses incurred in treating a minor for injuries sustained due to a tortfeasor's negligence belongs to the parents, rather than the child. Kennedy v. Kiss, 89 Ill. App. 3d 890, 894, 412 N.E.2d 624, 628 (1980). The minor's doctrine is premised on both the rule that a minor child cannot be a third-party beneficiary of an insurance contract and the related rule that only the parents can recover for the child's medical expenses.
โข 19, 20 Lastly, we find no merit in plaintiffs' final issue on appeal, that the trial court erred by refusing to allow Herchella's parents to waive their claim for medical expenses. It is well-established Illinois law that the parents of a minor are responsible for the child's medical expenses. ( Estate of Woodring v. Liberty Mutual Fire Insurance Co. (1979), 71 Ill. App.3d 158, 389 N.E.2d 211.) Any cause of action for medical expenses lies in the parents, and if the parents are not entitled to recover, the child may not. ( Kennedy v. Kiss (1980), 89 Ill. App.3d 890, 412 N.E.2d 624.) Consequently, if Herchella's parents had waived their right to recover Herchella's medical expenses, she would not have been entitled to recover her medical expenses unless her parents assigned their claim to her. While parents may assign their cause of action to recover medical expenses to a child, that child must prove that the parents had a cause of action and be subject to any defense which might have been raised against the parents.
" To the same effect are the following: Stockdale v. Jamison, 416 Mich. 217, 330 N.W.2d 389, 36 A.L.R. 4th 911, 913 (1982); Kennedy v. Kiss, 89 Ill.App.3d 890, 45 Ill. Dec. 273, 278, 412 N.E.2d 624, 629 (1980); Lisiewski v. Countrywide Ins. Co., 75 Mich. App. 631, 255 N.W.2d 714, 716-18 (1977); Bennett v. Slater, 154 Ind. App. 67, 289 N.E.2d 144, 63 A.L.R.3d 670 (1972) (reviewing authorities in other jurisdictions and declining to follow contrary rule of Thompson v. Commercial Union Ins. Co., 250 So.2d 259 (Fla. 1971)); Bourget v. Government Employees Ins. Co., 456 F.2d 282, 287 (2d Cir. 1972) (noting that in this respect "[t]he decisions have been practically unanimous"); Cook v. Superior Ins. Co., 476 S.W.2d 363 (Tex.Civ.App.-Beaumont 1972, writ ref'd n.r.e.) (denying garnishment by injured party-judgment creditor of insured); Pringle v. Robertson, 258 Or. 389, 394, 483 P.2d 814, 60 A.L.R.3d 1186 (1971) (same); Greer v. Mid-West National Fire Casualty Ins. Co., 434 F.2d 215 (8th Cir. 1970) (also holding that injured party-judgment creditor of insured could not force insured to bring action against insurer); Rowe v. United States Fidelity and Guaranty Co., 421 F.2d 937, 939-40 (4th Cir. 1
Id. There is no case law, however, explicitly holding what should happen when one parent seeks to recover under the Family Expense Act and the other parent was contributorily negligent. The defendants contend that Kennedy v. Kiss, 412 N.E.2d 624, 89 Ill.App.3d 890 (1980) establishes that both parents must be free from contributory negligence in order to assert a Family Expense Act claim. The defendants overlook the fact that in Kennedy the Family Expense Act claim was being asserted by the minor child, who had been assigned both of her parents' rights to recover for medical expenses incurred on her behalf. --------
But several other states' courts have held that because parents are responsible for their children's healthcare costs, they own and may assign corresponding causes of action to health care providers. See, e.g., Kennedy v. Kiss, 412 N.E.2d 624, 628 (Ill. App. 1980).
For example, some courts have held minors liable only if the creditor can show that the minor was not living with or being supported by his or her parents at the time the contract arose or the services were rendered, or, put another way, only if it is shown that the services were furnished on the minor's credit and not that of his or her parents. See North Carolina Baptist Hospitals, Inc. v. Franklin, 103 N.C. App. 446, 450, 405 S.E.2d 814 (1991) (minor not liable when parents provided all necessaries but were found not to be willing or able to pay one bill); see also Kennedy v. Kiss, 89 Ill. App.3d 890, 894-95, 412 N.E.2d 624 (1980); Gaspard v. Breaux, 413 So.2d 288, 290-91 (La.App. 1982); Hoyt v. Casey, 114 Mass. 397, 399 (1874); Westrate v. Schipper, 284 Mich. 383, 386, 279 N.W. 870 (1938); Gardner v. Flowers, 529 S.W.2d 708, 711 (Tenn. 1975). Some courts have held that liability is only established where an express or implied in fact contract arose between the minor and the creditor.