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Clement v. Fulton4/8/2005
rts that the superior court improperly discredited or disregarded two medical reports that, she argues, indicated a "high likelihood" that Mary would have died within one year even if the hospital had not been negligent. Clement maintains that no evidence presented to the superior court would indicate otherwise.
The two reports to which Clement refers are unsworn medical reports prepared by Dr. John Kiraly and Dr. David Spindle. Before the estate and the hospital agreed to settle the lawsuit, Michael's lawyer had submitted both reports to representatives of the hospital and to counsel for Clement, the co-personal representative. Clement argues that Michael's use of the reports in that way results in an admission under Alaska Evidence Rule 801(d)(2)(C) as a statement by a person authorized by the party to make a statement concerning the subject. We held in Frazier v. H.C. Price/CIR Construction JV that, under Evidence Rule 801(d)(2)(C), unsworn medical reports prepared at the appellee's request were not hearsay. We concluded that the appellee had "vouched for the credibility and competence of the physicians" who prepared the medical reports when it asked the appellant to submit to examination by clinic physicians of the appellee's choice.
Clement regards the reports as both (1) legally binding on Michael, because they were Evidence Rule 801(d)(2)(C) admissions, and (2) factually conclusive, because she reads them to establish that Mary's probable life expectancy was one year. She thus describes Dr. Kiraly's report as concluding that Mary "likely would have succumbed to acute leukemia and died within one year." She likewise asserts that his report "finds that Mary Fulton had a life expectancy of only one year due to her acute leukemia." Referring collectively to both reports, she asserts that they "concluded that it was likely that Mary Fulton would succumb to her illness within one year."
The superior court ultimately admitted the reports into evidence, but indicated that it would give them little weight because they contained unsworn opinions offered without sworn testimony to explain them. Following the hearing, the court issued its written decision in which it found:
There is also an allegation that Mary Fulton was very ill, and in any event would have passed away in about a year or so. No medical doctors testified on this issue. The Clement representative would have this court draw this conclusion from the reports and documents submitted. This court has considered the evidence and finds that such a conclusion would be too speculative. In many instances, proper medical treatment may bring many diseases into remission, or prolong the life of the afflicted.
The main question Clement poses to us on appeal is whether it was clear error for the superior court to reject Clement's assertion that Mary would have lived only one year. Our independent review of the two medical reports persuades us that it was not clear error. In allocating wrongful death damages, the superior court should, absent reliable evidence to the contrary, assume that the decedent had a full life expectancy.
When evidence is offered that deviates from that assumption, the court must weigh all of the evidence, including evidence of the decedent's normal life expectancy.
The evidence Clement offered did not compel a finding that it was reliable and conclusive, or even very probative. It consisted of unsworn expert opinions prepared for the wrongful death lawsuit. The reports focused on the short-term consequences of the missed diagnosis rather than Mary's long-term prognosis. They seem to primarily address a causal relationship between Mary's death and the hospita
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