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Clement v. Fulton4/8/2005
l's conduct. The authors never explained Mary's precise underlying medical condition, nor did they elaborate on the potential effect of available therapy. Dr. Kiraly's report merely quoted the remission and relapse rates of leukemia patients generally. The court had no opportunity to question the authors regarding Mary's specific chances for survival.
The reports themselves recognize that Mary could have lived longer, perhaps much longer, than one year had she received proper medical care. Dr. Spindle's report expresses an opinion that the misdiagnosis "might well have been prevented [enabling] her to have a much longer life with the correct medical treatment." This evidence alone was sufficient to support the superior court's finding. Furthermore, Dr. Kiraly's report expresses an opinion that the misdiagnosis prevented Mary from receiving therapy "that may have averted her premature death." His report also states that it appeared that Mary "lost the opportunity for both short-term and long-term survivals as a result of missed diagnosis." The court could have permissibly read the reference to her "long-term" survival to imply that proper care would have made long-term survival a realistic possibility.
Dr. Kiraly's report also states that "twenty to thirty percent of patients [who receive chemotherapy] may be expected to remain in long-term remission, whereas 70-80% will usually relapse within one year and succumb to their disease." Dr. Kiraly did not discuss factors that would indicate whether Mary was in one group or the other. His statement that many patients will "usually" relapse within one year and succumb to their disease, read at face value, literally only offers an opinion that relapse will usually occur within one year and offers no opinion about when death will ensue. If this is how the superior court read this passage in Dr. Kiraly's opinion, it would have been a permissible reading.
The dissent states that "the only evidence in the record specific to Mary Fulton indicated that her life expectancy would not be normal." But neither doctor indicated what her life expectancy would have been, whether her disease probably would have caused her to die in the near future, or even whether she would die before Michael (whose life expectancy was the basis for his proposal). Certainly neither report directly states that Mary Fulton would have died within one year regardless of the misdiagnosis, and Dr. Spindle's report instead notes the lost possibility of a "much longer life." It was not clear error, therefore, for the superior court to regard Clement's conclusion that Mary would have lived no longer than about a year as "too speculative."
Nor did the court inappropriately speculate when discussing the potential effect of treatment. The superior court's observation that "proper medical treatment may bring many diseases into remission, or prolong the life of the afflicted" echoes the experts' own statements.
Clement also briefly contends that the superior court "erred in concluding that Mary Fulton had a normal life expectancy." This argument is unavailing for several reasons.
First, it is unpersuasive on the merits. As we saw above, Dr. Spindle's opinion that Mary might have lived a "much longer life" supports the superior court's apparent finding that Mary might have lived much longer than one year and its express finding that it was "too speculative" to conclude that Mary would have lived no longer than a year. Likewise, Dr. Kiraly's report contains passages (discussed above) that support the court's express finding.
This argument also subtly, but unfairly, recasts the way the case was presented to the superior court and the
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