Brain-Damaged Woman At Center Of $5M Negligence Suit
“Consistent with its fiduciary duty and in accordance with a court order approving a 1995 medical malpractice settlement, Northern Trust properly administered the guardianship,” company spokesman Doug Holt said in an email received after deadline. “Northern Trust intends to vigorously defend its actions in relation to this litigation.”
Fox explained McBean was entitled to Medicaid, Social Security and other benefits because of her condition. But these are means-tested programs that go away if the subject’s income exceeds the government programs’ benchmarks. A special needs trust must be established to reinstate those benefits.
“Taylor got the trust set up. The bad news is that by that time 15 years had passed and $4.8 million had been paid out of the guardianship account. Had a special needs trust been set up initially, Medicaid would’ve picked up $4.6 million of it,” Fox said.
Northern Trust’s answer filed on Christmas Eve by Miami attorney John O’Sullivan at Hogan Lovells blamed everyone but the fund manager. The answer filed with Circuit Judge Charles Green said annual accountings were provided to the court, and her parents never objected to them.
“Cristal’s natural guardians were aware that Cristal may have been eligible for public benefits and were aware of the possibility of structuring the guardianship estate as a special needs trust but opposed both,” O’Sullivan said in Northern Trust’s defense.
Any alleged loss, he continued, were caused by “Cristal’s parents, counsel for Cristal’s parents in the underlying personal injury action and the guardian ad litem appointed to represent Cristal in the settlement.”
Fox represented Terri and Michael Schiavo in the medical malpractice trial that arose from the events that caused her coma. In McBean’s case, he said Northern Trust’s primary duty was to fashion the trust that best served her interests.
Fox found it galling that Northern Trust tried to shift blame to a financially unsophisticated parent or to Cohen, the attorney who handled McBean’s malpractice case.
“Cohen’s job was to secure the settlement, maximize the recovery and be sure that got into the hands of a professional, experienced money manager,” Fox said. “He had every right to believe Northern Trust was capable of handling this type of account.”
Standard of Care
In the court petition, Fox maintained the standard of care for a financial guardian is to requalify the ward “for any and all government benefits the ward may be entitled to by reason of her age, disability or other factors.”