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Clement v. Fulton4/8/2005
No. 5883
FABE, Justice, dissenting.
I. INTRODUCTION
Mary Fulton died several days after a hospital allegedly failed to diagnose and treat her medical condition, leukemia. She was survived by her husband and two minor children. The children contend that the superior court misallocated the wrongful death settlement proceeds paid by the hospital. Because the court did not clearly err in rejecting the children's assertion that Mary Fulton's life expectancy would have been only one year even if she had been correctly diagnosed, we affirm the allocation.
II. FACTS AND PROCEEDINGS
Mary Fulton was the primary breadwinner in the Fulton family; she supported her husband, Michael Fulton, and her two minor children, Savannah and Christopher. On November 25, 1999, Mary sought treatment for headaches and weight loss at Providence Alaska Medical Center. As a result of a blood test mix-up, the hospital failed to diagnose her true medical condition, and she was discharged. She actually had acute leukemia. She returned to the hospital on November 29 and died on November 30, five days after she first sought treatment, following a hemorrhage in her right temporal lobe.
Mary's estate, through co-personal representatives Maria Clement and Michael Fulton, sued the hospital for damages under Alaska's survivorship and wrongful death statutes, claiming the hospital misdiagnosed her condition and failed to give her proper care, causing her death. Maria Clement is one of Mary's adult daughters. The estate and the hospital eventually agreed to settle the lawsuit for $500,000, but no agreement was reached on how to allocate the settlement funds between Mary Fulton's two minor children and her husband.
In November 2002 Michael Fulton moved for superior court approval of the amount of the proposed settlement and for allocation of the settlement proceeds to the three surviving statutory dependents in accordance with Horsford v. Estate of Horsford. Statutory dependents are the statutory beneficiaries recognized in the Alaska Wrongful Death Act, AS 09.55.580. Under Horsford, wrongful death settlement proceeds are allocated based upon the life expectancy of the decedent and the years each statutory dependent could reasonably expect to receive significant benefits from the decedent. Michael claimed that application of the Horsford formula would entitle him to sixty-three percent of the settlement.
Clement, on behalf of the minor children, opposed Michael's proposed allocation because she asserted that, among other reasons, his allocation assumed Mary had a full life expectancy. Arguing in part that " t is incorrect to apply a normal life expectancy for Mary Fulton when she more likely than not would only have survived another year," Clement urged the superior court to depart from the Horsford formula and allocate the proceeds on equitable grounds. She also contended that Michael should not share in the settlement at all because Mary had intended to divorce him. She argued that Michael should receive nothing because he had emotionally and physically abused the children.
After hearing evidence on February 11 and 27, 2003 and oral argument, Superior Court Judge Sen K. Tan approved the proposed settlement with the hospital and allocated the proceeds among the three beneficiaries. In allocating the proceeds, the superior court held that "this is not a case where the Horsford formula should be applied." Observing that the Horsford formula "is not a hard and fast rule and . . . can be modified for longer periods of dependency, expectations of contribution beyond the age of majority," or abandoned if necessary, the superior cour
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