specially concurring in part in the result, but for reasons different than those set forth in the opinion by QUINN, J.
I.
Procedure
I concur in the majority’s conclusion that the procedural errors which occurred require reversal of the trial court’s granting of summary judgment, but disagree with the opinion of Justice Quinn as to the standards for determining the finality of a release and the directions for trial.
In 1975, the plaintiff filed her complaint for money damages based on personal injuries sustained in 1970. In their answer, the defendants raised the affirmative defense of release, C.R.C.P. 8(c), and endorsed a demand for a jury trial, C.R.C.P. 38(b). At this point, a question of fact existed as to the validity of the release, and the jury, as the trier of fact, should have resolved that issue along with all other factual questions in the case. McCarthy v. Eddings, 109 Colo. 526, 127 P.2d 883 (1942). We held in McCarthy v. Eddings, supra, that mutual mistake of fact is an issue which is properly submitted to the jury.
The fact that defendants filed a motion for summary judgment and that the plaintiff then filed a motion to set aside the release, does not change the fact that the original complaint sought legal relief in the form of money damages, and that the validity of the release was a question of fact to be determined by the jury. C.R.C.P. 38(a). See Miller v. District Court, 154 Colo. 125, 388 P.2d 763 (1964); Jacobs v. Prudential Insurance Co., 35 Colo.App. 423, 533 P.2d 516 (1975). Since the defendants refused to waive a jury, the trial court could not determine factual issues and use those findings of fact to support a summary judgment. Jaynes v. Marrow 144 Colo. 138, 355 P.2d 529 (1960).
Throughout the proceedings the trial court determined the admissibility of evidence on the theory that the hearing was on a motion for summary judgment. It is obvious from the record that the same evidence was not presented at the hearing on the motion for summary judgment that would have been presented at the time of trial. Affidavits and depositions constituted a substantial part of the record which provided the basis for the trial court’s summary judgment.
II.
Prognosis versus Diagnosis
I agree that the release may be set aside where it was obtained as a result of a mutual mistake of fact based upon a mistake in diagnosis. Scotten v. Landers, 190 Colo. 27, 543 P.2d 64 (1975); McCarthy v. Eddings, 109 Colo. 526, 127 P.2d 883 (1942). Conversely, mistakes in prognosis will not *388support the setting aside of a valid release contract. Davis v. Flatiron Materials Co., 182 Colo. 65, 511 P.2d 28 (1973); McCarthy v. Eddings, supra. The rule has been stated succinctly as: “In general our law has been of the view that each party takes his chances as to the future, and an incorrect prediction provides no basis for avoidance of a contract.” G. Palmer, II. The Law of Restitution § 12.22 (1978).
The fine line between diagnosis and prognosis, however, is often difficult to draw. The difference has been defined as:
“Diagnosis ... means the act of recognizing the presence of disease, from its signs or symptoms and deciding as to its character, or the decision arrived at from such symptoms. Prognosis is the act or course of termination of a disease.”
Branham v. Gardner, 383 F.2d 614, 622 (6th Cir. 1967).
The factual foundations for both Scotten v. Landers, supra, and Davis v. Flatiron, supra, provide guidance to the courts in determining whether a release should be set aside, but neither case fully answers the factual issues in this case.1 It is possible to view the facts of this case as the trial court did, and to conclude that Davis v. Flatiron, supra, dictates that the release precludes further recovery.2 However, it is also possible to interpret portions of the record so as to bring the facts within Scotten v. Landers, supra.3
In this case, the nature of the injury was known, but there was an incorrect prediction as to its future consequences. The minor plaintiff who was injured was given medical treatment and evaluated for a period of two years. She was under the care of a doctor who made a full report to the court before the settlement was finalized. As a result, a guardian was appointed for her *389and an extended evidentiary hearing was held before the probate court to determine whether the release should be approved. The court requested that an additional neurological examination be made, but the minor’s father, who was her court-appointed guardian, agreed that the matter should be settled once and for all. Based on the foregoing factors, the court approved the settlement.
The amount paid in settlement of the claim was approximately two and one-half times the special damages, which has commonly been used as a formula for estimating the value of a personal injury claim.
In my view, the issue of whether the future consequences of the injury was a mistake in diagnosis or prognosis, is an issue of fact which is properly determined by the trier of fact. In Melvin v. Stevens, 10 Ariz.App. 357, 458 P.2d 977 (1969), the court concluded:
“The line between injuries which are unknown in nature or extent and injuries which are known but develop unknown consequences can in some circumstances be a narrow one, and is primarily an issue of fact. (Citations omitted.) The language most commonly used to describe the difference is that in order to be grounds for invalidating a release the mistake must relate to a past or present fact material to the contract and not to an opinion concerning future conditions as a result of present facts. Thus, the prognosis or probable path of recovery or complication is a matter of opinion respecting future events and, if mistaken, will not be grounds for rescission. Diagnosis, or analysis of injury in terms of nature and extent, on the other hand, is a question of present fact and, if mistaken, will be grounds for rescission.” Id. 458 P.2d at 981.
I disagree with Justice Quinn to the extent that it sets forth a subjective test, governed by what the minor’s father knew about the injury for setting aside the release. The rationale for the rule that a mistake in prognosis will not support invalidation of a release is clear. Public policy favors the settlement of disputes without resort to the courts, provided such settlements are fairly reached. Davis v. Flatiron, supra. Valid releases must be assured a degree of finality. If the plaintiff in the instant case had not executed a release, and the case had gone to trial, the judgment rendered would have been final, and the doctrine of res judicata would have foreclosed a new action for damages. Pomeroy v. Waitkus, 183 Colo. 344, 517 P.2d 396 (1973). The dangers inherent in setting aside a release because an injured party did not foresee the medical complications which could be triggered at a later time, are well summarized by Chief Justice Hodges in his opinion. I agree with the views expressed by the Chief Justice relating to the release issue, but disagree as to his approval of the procedure followed by the ftial court.
The trial court made a factual finding that traumatic epilepsy constituted an error in prognosis. On the basis that the mistake was in the prognosis, and not an error in diagnosis, a summary judgment was granted on the authority of Davis v. Flatiron, supra.
An action for traumatic epilepsy is barred by the release if the disease was the result of an error in prognosis. Davis v. Flatiron, supra. If the error was in diagnosis, the plaintiff’s claim for relief should be reinstated. Scotten v. Landers, supra. The factual issue must be resolved by a jury.
Accordingly, I would reverse the trial court and remand for a trial on the factual issues which were resolved by the court without a jury in a hearing on the motion for summary judgment.
. “Head injury is a major cause of acquired epilepsy, the seizures occurring both in the acute phase and as a chronic residual. The incidence of epilepsy after head injury is difficult to determine, because of the great variability of injury. General surveys report an incidence of up to 10 per cent after closed-head injury and between 30 and 40 per cent after open-head injuries, seizures developing in most cases within three years. The seizure incidence is highest when the wound is severe, when the dura is penetrated, and when the injury involves the nolandic or parietal regions.” P. Beeson & W. McDermott, Textbook of Medicine, 725 (1975).
. The following testimony was presented at the hearing on the issue of a mistake in diagnosis versus prognosis:
MR. PRYOR: “What you’re really saying — for the purpose of this motion — is that traumatic epilepsy isn’t a separate and distinct injury in this case, but a complication of the intra-tem-poral hematoma?”
DR. RYAN: “Yes. It is an injury to the brain. This could have been a contusion. In other words, just an area of swelling around a hema-toma. There is no direct visualization. Otherwise, there is direct brain injury to the left temporal lobe, and subsequently after this happened and maturity, she developed overt seizures.”
MR. PRYOR: “So in this particular case, then, the fact that the patient developed traumatic epilepsy was a complication of a head injury in 1970?”
DR. RYAN: “Yes, a direct result of it.”
MR. PRYOR: “Okay. Now, is traumatic epilepsy a recognized and yet an infrequently occurring complication of a closed head injury or an intratemporal hematoma?”
DR. RYAN: “It is a recognized complication of this kind of injury.”
* * * * * *
MR. PRYOR: “What I am getting at, it is a complication of a known injury?”
DR. RYAN: “Yes, yes. It was a complication of that injury, but the epilepsy wasn’t present at the time of the injury or even — you know— recently in the few months or weeks or even a year or so after the injury. The epilepsy was really present when she had her first seizure, as far as I could tell.”
.Dr. Ryan also testified that “[U]nless you have an electroencephalograph or E.E.G. or evidence of seizures electrically, there is no way to tell at that time that the [person has] epilepsy.” He testified further that “[t]he problem was there ... since the accident ... but she plaintiff didn’t have a seizure [epilepsy] until ’74.... The epilepsy was diagnosed in 1974.”
Both the father, who was the guardian, the mother, and the plaintiff, testified that they did not know and were not advised of the possibility of future epileptic seizures. Dr. Ryan was not the treating doctor at the time the initial injury was incurred in 1970. Moreover, the treating doctor was not called, and the sole medical testimony was that provided by Dr. Ryan.