STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
DEIDRE DENSON, a minor, by and ) through her parents and natural ) guardians, DAVID DENSON and )
LINDA DENSON, )
)
Petitioners, )
)
vs. ) CASE NO. 93-5702N
) FLORIDA BIRTH-RELATED NEUROLOGICAL ) INJURY COMPENSATION ASSOCIATION, )
)
Respondent. )
)
FINAL ORDER
Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, William J. Kendrick, held a formal hearing in the above-styled case on April 12, 1994, in St. Petersburg, Florida.
APPEARANCES
For Petitioners: Charles R. Scully, Esquire
Frances Curry Ryan, Esquire
Law Offices of Charles R. Scully 3835 Central Avenue
St. Petersburg, Florida 33713
For Respondent: W. Douglas Moody, Jr., Esquire
Taylor, Brion, Buker & Greene
225 South Adams Street, Suite 250 Tallahassee, Florida 32301
STATEMENT OF THE ISSUES
Whether Deidre Denson has suffered an injury for which compensation should be awarded under the Florida Birth- Related Neurological Injury Compensation Plan, as alleged in the claim for compensation.
PRELIMINARY STATEMENT
On or about October 5, 1993, David Denson and Linda Denson, as parents and natural guardians of Deidre Denson, a minor, filed a claim with the Division of Administrative Hearings (hereinafter referred to as "DOAH") for compensation under the Florida Birth-Related Neurological Injury Compensation Plan (hereinafter referred to as the "Plan").
DOAH served the Florida Birth-Related Injury Compensation Association (hereinafter referred to as "NICA") with a copy of the claim on or about October 6, 1993. NICA reviewed the claim, and on or about December 3, 1993, gave notice that it had "determined that such claim is not a 'birth-related neurological injury' within the meaning of Section 766.302(2), [Florida Statutes]" and requested that the Hearing Officer "enter an order setting a hearing in this cause on the issue of the compensability of this claim."
On December 7, 1993, DOAH issued a notice of hearing advising the parties that an evidentiary hearing would be held on January 3, 1994, to resolve the issue of compensability. Thereafter, the hearing was continued at petitioners' request and heard on April 12, 1994.
At hearing, petitioners called David Denson, Linda Denson and Annie Ruth Rush as witnesses, and petitioners' exhibits 1-14, 15A, 15B, 16A, 16B, 17A, 17B, 17C, 18 and 19
were received into evidence. Respondent called Michael S. Duchowny, M.D., as a witness, and respondent's exhibit 1 was received into evidence.
The transcript of hearing was filed June 6, 1994, and the parties were accorded ten days from that date to file proposed findings of fact. The parties' proposed findings have been duly considered and are addressed in the appendix to this final order.
FINDINGS OF FACT
Preliminary matters
Deidre Denson (Deidre) is the natural daughter of David and Linda Denson. She was born a live infant on October 8, 1991, at Bayfront Medical Center in St. Petersburg, Pinellas County, Florida, and her birth weight was in excess of 2500 grams.
The physicians providing obstetrical services during the birth of Deidre were David Moreland, M.D., and
Donna Miller, M.D., who were, at all times material hereto, participating physicians in the Florida Birth-Related Neurological Injury Compensation Plan, as defined by Section 766.302(7), Florida Statutes.
The birth of Deidre Denson
At or about 12:30 a.m., October 8, 1991, Linda Denson presented to Bayfront Medical Center, upon advice of her physician, following the spontaneous rupture of her membrane. At the time, Linda Denson was in active labor and Deidre, who was at term, was in a breach presentation.
At approximately 1:09 a.m., Mrs. Denson was admitted to the labor room, and thick meconium was observed upon examination. External fetal monitoring was commenced, which initially reflected a fetal heart rate in the 80-90 beat per minute range; however, at or about 1:12 a.m., and continuing until approximately 1:18 a.m., the fetal heart rate was observed to fluctuate between the 80-90 rate and 60 beats per minute. This situation evidenced fetal distress and an urgent need for surgical intervention. Accordingly, at approximately 1:18 a.m. Mrs. Denson was taken to the operating room.
Mrs. Denson was admitted to the operating room at 1:23 a.m., and Deidre was delivered by a cesarean section surgical procedure at 1:35 a.m. Upon delivery, Deidre's physical appearance was observed to be "blue" and her heart rate was below 30 beats per minute. Delivery room resuscitation included intubation, with suctioning of meconium below the vocal cords four times, and bagging with
100 percent oxygen. Spontaneous respirations were not observed in the infant until thirty minutes after birth, when they were noted as "slow" and continued to be noted as "slow" until 2:12 a.m. when she was transferred to the neonatal intensive care unit at All Children's Hospital.
At birth, Deidre's Apgar scores at one, five and 10 minutes were one, four and five respectively. These scores are a numerical expression of the condition of a newborn infant, and reflect the sum points gained on assessment of the heart rate, muscle tone, respiratory effort, color, and reflex irritability, with each category being assigned a score ranging from the lowest score of zero through a maximum score of two. As noted, at one minute, Deidre's Apgar score totaled one, with heart rate being graded at one ("slow, below 100"), and muscle tone, respiratory effort, color and reflex irritability being graded at zero. At five minutes, Deidre's Apgar score totaled four, with heart rate and color being graded at two each, respiratory effort being graded at one ("slow, irregular"), and muscle tone and reflex irritability being graded at zero each. At
10 minutes, Deidre's Apgar score totaled five, with heart
rate and color again being graded at two each, and muscle
tone, respiratory effort and reflex irritability being graded at one each. Such scores are consistent with Deidre having suffered a severe hypoxic insult (deprivation of oxygen) at birth.
At approximately 2:25 a.m., October 8, 1991, Deidre was admitted to the neonatal intensive care unit at All Children's Hospital, and was placed on a ventilator until four days of age and remained with an endotracheal tube until six days of age. At 1:45 p.m., Deidre was observed to have developed seizure activity, secondary to perinatal depression, and an electroencephalogram (EEG) was ordered. That EEG was read as an "abnormal ictal EEG recording," and is consistent with diffuse cerebral disfunction.
Dr. Kenneth Sassower, a pediatric neurologist, performed a consult on Deidre on October 8, 1991, and observed that the "differential diagnosis of neonatal seizures at this early age include fetal hypoxia; metabolic abnormalities . . . intracranial hemorrhage . . .; meningitis, etc." He recommended a cranial ultrasound, a "CT scan of the head without contrast, pending stable clinical status," a repeat EEG study, and certain other testing procedures designed to identify the cause of Deidre's seizure activity.
The cranial ultrasound was taken on October 9, 1991, and was read as normal in that it failed to reflect any hemorrhage in or around the ventricles and did not reflect any displacement of the ventricles. Such findings do not, however, rule out the possibility that a bleed/intracranial hemorrhage existed in the frontal area, since such would not be picked up on ultrasound. Rather, a CT scan of the head without contrast would have been the preferred and more reliable testing procedure; however, due to the fragile nature of the infant's condition, ultrasound was employed as the first test to discern the presence of cerebral blood. As discussed infra, the first CT scan was performed December 3, 1991, after Deidre's discharge from All Children's Hospital, and evidenced a bleed in the frontal area. Other testing procedures ruled out metabolic abnormalities and meningitis as causative factors for Deidre's seizures.
As with the EEG taken October 8, 1991, serial EEG's taken October 9, 14 and 23, 1991, were also read as abnormal and "indicative of diffuse cerebral dysfunction with bifocal dysfunction over both central regions."
The proximity of Deidre's seizure activity to birth, and the abnormal EEGs, are consistent with diffuse brain injury as a consequence of hypoxic insult at birth. Given the absence of any other identifiable factor, it is found that Deidre's seizure activity was directly attributable to birth asphyxia. 1/
In addition to the foregoing abnormalities, Deidre was also diagnosed as suffering hypotension due to mycardial insufficiency, as well as renal (kidney) and liver damage, due to perinatal depression, and on neurologic consult to exhibit "evidence of generalized hypotonia and hyporeflexia." Such observations are consistent with hypoxic insult at birth. Deidre's condition was, however, managed and she was discharged from All Children's Hospital to the care of her parents on October 24, 1991. Currently, Deidre is, indisputedly, permanently and substantially mentally and physically impaired.
Considering its quality, the proof is compelling that Deidre suffered a severe hypoxic insult at birth and that as a consequence of such oxygen deprivation suffered an injury to her brain which adversely impacted her mentally and physically. Notwithstanding, respondent, Florida Birth- Related Neurological Injury Compensation Association (NICA), contends that the seriousness of Deidre's current neurological deficit is not a product of the hypoxic insult she suffered at birth but, rather, was occasioned by head trauma suffered after her discharge from All Children's Hospital. For the reasons that follow, NICA's position is rejected, and it is found, based on the more compelling proof, that Deidre sustained an injury to the brain caused by oxygen deprivation in the course of labor, delivery or resuscitation in the immediate post-delivery period that rendered her permanently and substantially mentally and physically impaired.
Events subsequent to Deidre's discharge from All Children's Hospital
Following Deidre's discharge from All Children's Hospital, she was next neurologically examined by Dr. Kenneth Sassower on November 26, 1991. On examination, Dr. Sassower observed evidence of a mild to moderate spastic diparesis and hyperreflexia in the lower extremities, but noted that Deidre was currently seizure free on phenobarbital monotherapy without undue behavioral side effects noted. Based on his observations, Dr. Sassower proposed a reevaluation of Deidre in three to four months. 2/
On December 3, 1991, Deidre presented for a CT Scan of the brain without enhancement at the radiology department of All Children's Hospital. Such CT scan was an apparent follow-up to a recommendation made by Dr. Sassower when he examined Deidre on October 8, 1991, to address the cause of Deidre's seizure activity. [Petitioners' exhibits
16 and 18] The attending radiologist reported:
Findings: As compared to the sonogram on
10-9-91, the frontal horns now seem slightly distended. This is seen in association with chronic bilateral subdural hematomas. There is also evidence of prominent sulci and cisterns with underlying leukomalacia. This is most pronounced in the frontal lobes. The 3rd and 4th ventricle are also slightly
distended . . . No intracranial calcifications. The mastoid air cells are well aerated bilaterally. The anterior and posterior fontanelles are small for the patient's age.
Otherwise, normal calvarial contour.
IMPRESSION: 1. Status post development of
bilateral subdural hematomas and brain atrophy with predominant frontal leukomalacia. This raises
a question of intervening trauma. Recommend clinical correlation.
Consequently, the radiologist telephoned Dr. Sassower at 10:15 a.m., December 3, 1991, and arranged for a neurological examination of Deidre at 12:00 p.m.
Deidre was indeed examined by Dr. Sassower on December 3, 1991. During the course of that examination he concluded:
. . . The CT scan reveals evidence of prominent cortical atrophy, along with what appears to be a suggestion of semi-acute bifrontal subdural hematomas. The exact extent of subdural blood is somewhat difficult to assess due to the presence of increased hypolucencies which at times appear continuous with areas of relative cortical atrophy.
* * *
During the course of the clinical examination,
both parents deny any known recent head trauma, either accidental or otherwise. Both parents, who appear extremely reliable, have
now reported leaving their child in the company of other caretakers since discharge from the nursery. I think in spite of the fact that both parents appear to be appropriately concerned, one needs to exercise a good deal
of caution in this regard, and pursue careful clinical surveillance over the course of the ensuing weeks. In this regard, a repeat neurologic follow-up in 4-6 weeks time is suggested.
A subdural hematoma, as observed in Deidre, is a collection of blood which has accumulated in the space between the dura matter, a thickened membrane which covers the brain, and the surface of the other membranes which cover the brain. Their presence raises the possibility that any existent brain damage may have been caused or exacerbated by trauma or the subdural hematoma itself. Notably, the trauma which tears the subdural veins and creates the subdural hematoma may be of sufficient force itself to cause brain damage or the hematoma itself may be of sufficient magnitude to compress the brain and cause brain damage.
About 99 percent of subdural hematomas are due to trauma, which causes the veins crossing the subdural space into the dural sinuses to tear and thereby bleed. The other one percent of observed subdural hematomas are due to rare causes such as bleeding disorders. Under the circumstances, the presence of a subdural hematoma in Deidre certainly raised the possibility of secondary brain damage due to trauma or abuse.
Here, the proof demonstrates that the subdural hematomas reflected by the CT scan of December 3, 1991, may be characterized as "chronic," and so defined, reflect a hematoma that had its genesis more than two weeks prior to its discovery. As for Deidre's hematomas, her neurosurgeon, whose opinion is credited, dates their occurance at two to four weeks prior to the CT scan of December 3, 1991. 3/
Regarding the cause of Deidre's subdural hematomas, the proof is, at best, unsatisfying. Deidre's birth was by cesarean section and therefore no mechanical maneuver or device, such as a vacuum extractor, forceps or a forced vaginal delivery, was utilized which could cause trauma. Moreover, the medical records are devoid of any
indication of trauma to Deidre's head during delivery or the term of her hospitalization. Such does not, of course, completely rule of the possibility that trauma was induced during resuscitation efforts or at some other time in the hospital, but any such conclusion, absent a CT scan or other definitive testing during her admission, would be speculative. On the other hand, Deidre received routine follow-up after discharge by her pediatricians and Dr.
Sassower, and they observed no evidence of trauma or abuse to Deidre, and a physical and ophthalmology consult revealed none. The absence of such physical evidence does not completely rule out the possibility of trauma or abuse, but its absence coupled with the ophthalmology consult and the reliability and character of the parents, as well as the other sole caregiver, renders it extremely unlikely that the subdural hematomas were a consequence of abuse or trauma suffered following Deidre's discharge from the hospital.
The only other explanation offered at hearing for Deidre's subdural hematomas, other than a blood disorder which was ruled out, were the opinions offered by her physicians and experts, who suggested that because of the brain atrophy and the resultant shrinkage of the brain suffered as a consequence of the hypoxic insult at birth, the bridging veins which cross the subdural space into the dural sinuses were stressed and introduced a bleed, causing the hematomas. Given the conclusion that trauma or abuse was not the cause of Deidre's hematomas, and the elimination of a blood disorder as a possible cause, such opinions, based on the proof in this case, are the most likely explanation of Deidre's bleed, which resulted in the hematomas disclosed by the December 3, 1991 scan.
Finally, the absence of any compelling proof to demonstrate that Deidre's hematomas were induced by trauma, and the absence of any compelling proof that the chronic subdural hematomas were of sufficient magnitude and existed for a sufficient period of time to compress the brain and cause significant brain damage, absent trauma, it is concluded that the atropy evidenced by the CT scan of December 3, 1991, was more likely than not, a product of the hypoxic insult that Deidre suffered at birth, and that such hypoxic insult rendered her substantially and permanently mentally and physically impaired. 4/
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of,
these proceeding. Section 766.301, et seq., Florida Statutes (1993).
The Florida Birth-Related Neurological Injury Compensation Plan (the "Plan") was established by the Legislature "for the purpose of providing compensation, irrespective of fault, for birth-related neurological injury claims" relating to births occurring on or after January 1, 1989. Section 766.303(1), Florida Statutes.
The injured "infant, his personal representative, parents, dependents, and next of kin," may seek compensation under the Plan by filing a claim for compensation with the Division of Administrative Hearings within five years of the infant's birth. Sections 766.302(3), 766.303(2), 766.305(1), and 766.313, Florida Statutes. The Florida Birth-Related Neurological Injury Compensation Association (NICA), which administers the Plan, has "45 days from the date of service of a complete claim . . . in which to file a response to the petition and to submit relevant written information relating to the issue of whether the injury is a birth-related neurological injury." Section 766.305(3), Florida Statutes.
If NICA determines that the injury alleged in a claim is a compensable birth-related neurological injury, it may award compensation to the claimant, provided that the award is approved by the Hearing Officer to whom the claim has been assigned. Section 766.305(6), Florida Statutes. If, on the other hand, NICA disputes the claim, as it has in the instant case, the dispute must be resolved by the assigned Hearing Officer in accordance with the provisions of Chapter 120, Florida Statutes. Sections 766.304, 766.307, 766.309 and 766.31, Florida Statutes.
In discharging this responsibility, the Hearing Officer must make the following determination based upon the available evidence:
Whether the injury claimed is a birth-related neurological injury. If the claimant has demonstrated, to the satisfaction of the hearing officer, that the infant has sustained a brain or spinal cord injury caused by oxygen deprivation or mechanical injury and that the infant was thereby rendered permanently and substantially mentally and physically impaired, a rebuttable presumption shall arise that the injury is a birth-related neurological injury as defined in
s. 766.302(2).
Whether obstetrical services were delivered by a participating physician in the course of labor, delivery, or resuscitation in the immediate post-delivery
period in a hospital; or by a certified nurse midwife in a teaching hospital supervised by a participating physician in the course of labor, delivery, or resuscitation in the
immediate post-delivery period in a hospital.
Section 766.309(1), Florida Statutes. An award may be sustained only if the Hearing Officer concludes that the "infant has sustained a birth-related neurological injury and that obstetrical services were delivered by a participating physician at birth." Section 766.31(1), Florida Statutes.
Pertinent to this case, "birth-related neurological injury" is defined by Section 766.302(2), Florida Statutes, to mean:
. . . injury to the brain or spinal cord of a live infant weighing at least 2,500 grams at birth caused by oxygen deprivation or mechanical injury occurring in the course of labor, delivery, or resuscitation in the
immediate post-delivery period in a hospital, which renders the infant permanently and substantially mentally and physically impaired. This definition shall apply to live births only and shall not include disability or death caused by genetic or congenital abnormality.
Here, the proof demonstrated that the attending physicians who provided obstetric services during the birth of Deidre Denson were a "participating physician" as that term is defined by Section 766.302(7), Florida Statutes, and as that term is used in Sections 766.301 through 766.316, Florida Statutes. Moreover, the record developed in this case demonstrates that Deidre did suffer a "birth-related neurological injury," within the meaning of Section 766.302(2), Florida Statutes. As noted in the findings of fact, the proof demonstrated that Deidre suffered an injury to the brain caused by oxygen deprivation during the course of labor, delivery or resuscitation in the immediate post- delivery period that rendered her permanently and substantially, mentally and physically impaired. Accordingly, the subject claim is compensable under the Plan. Sections 766.302(2), 766.309(1) and 766.31(1), Florida Statutes.
Where, as here, the Hearing Officer determines that "the infant has sustained a birth-related neurological injury and that obstetrical services were delivered by a participating physician at the birth," the Hearing Officer is required to make a determination as to "how much compensation, if any, is to awardable pursuant to s.
" Section 766.309(1)(c), Florida Statutes. In this case, the issues of compensability and the amount of compensation to be awarded were bifurcated. Accordingly, absent agreement by the parties, a further hearing will be necessary to resolve any existent disputes regarding "actual expenses," the amount and manner of payment of "an award to
the parents or natural guardians," and the "reasonable expenses incurred in connection with the filing of the claim." Section 766.31(1), Florida Statutes.
CONCLUSION
Based on the foregoing findings of fact and conclusions of law, it is
ORDERED that:
The petition for compensation filed by David Denson and Linda Denson, on behalf of and natural guardians of Deidre Denson, a minor, be and the same is hereby granted.
NICA shall make immediate payment of all actual expenses, as defined by Section 766.31(1)(a), Florida Statutes, previously incurred and shall make payment for future expenses as incurred.
Jurisdiction is hereby reserved to enforce this award and to resolve any disputes that may arise concerning the compensability of any previously incurred or future "actual expenses," and to establish the amount and manner of payment of "an award" to the parents, and the "reasonable expenses incurred in connection with the filing of the claim."
The parties are accorded thirty (30) days from the date of this order to resolve any dispute they may have regarding the compensability of any previously incurred "actual expenses," the amount and manner of payment of "an award" to the parents, and the "reasonable expenses incurred in connection with the filing of the claim." If not resolved within such period, the parties will so advise the Hearing Officer, and a hearing will be scheduled to resolve such issues.
DONE AND ORDERED in Tallahassee, Leon County, Florida, this 8th day of July 1994.
WILLIAM J. KENDRICK
Hearing Officer
Division of Administrative Hearings The DeSoto Building
1230 Apalachee Parkway
Tallahassee, Florida 32399-1550
(904) 488-9675
Filed with the Clerk of the Division of Administrative Hearings this 8th day of July 1994.
ENDNOTES
1/ Deidre's seizure activity was controlled over time with Dilantin and Phenobarbital. The control of such seizures does not, however, suggest that any damage to Deidre's brain has been remedied. Indeed, once brain cells are destroyed, they are not replaced.
2/ In his neurologic exam of Deidre of October 8, 1991, Dr. Sassower did not note the presence of spastic diaparesis or hyperreflexia. The absence of such observations does not, however, compel the conclusion that Deidre's current physical condition is not related to the hypoxic insult she suffered at birth since such signs may be difficult to discern at birth or develop over time. On October 8, 1991, Dr. Sassower did, however, note hypotonia and hyporeflexia.
3/ Physicians apparently do not have a hard and fast rule as to the meaning of the terms "acute," "semiacute or subacute" and "chronic" with regard to hematomas. For example, Dr. Sassower defined the term "acute" to mean a lesion had occurred within 0 to 3 days, "semiacute" to mean a lesion had occurred within 3-21 days, and "chronic" to mean a lesion had occurred in 22 days or more following the cause of the hematoma. In contrast, Dr. Duchowny described "acute" as meaning the date of occurrence was two weeks or less and that "chronic" meant an occurrence greater than two weeks.
4/ In reaching the foregoing conclusion, the CT scan of January 24, 1992, which revealed an acute frontal left subdural hematoma overlying the chronic subdural hematoma discovered on the December 3, 1991 CT scan, has not been overlooked; however, given the proof, the more likely explanation for that hematoma is the spontaneous rupture of the vascular membrane of the chronic subdural hematoma and not trauma. Also not overlooked was the fact that Deidre underwent an emergency craniotomy of her left cerebral hemisphere to remove the acute subdural hematoma since it was causing pressure on the cerebrum that was sufficient to cause brain damage, as evidenced by a right sided weakness in Deidre. While such acute subdural hematoma may have caused additional brain damage to Deidre, although it cannot be quantified, the brain damage evident from the December 3,
1991 CT scan, heretofore found to be consistent with hypoxic insult at birth, was diffuse and of sufficient magnitude to render Deidre permanently and substantially physically and mentally impaired.
APPENDIX
Petitioners' proposed findings of fact are addressed as follows:
Addressed in paragraph 1.
Addressed in paragraphs 3-5.
Addressed in paragraphs 5 and 6.
Addressed in paragraph 7 and endnote 1.
Addressed in paragraphs 7, 10 and 12.
Addressed in paragraphs 13 and 21.
7 & 8. Rejected as subordinate and not a finding of fact.
Addressed in paragraph 7 and endnote 4, otherwise subordinate.
Addressed in paragraphs 13, 20-22, and endnote 4.
Addressed in paragraphs 14, 15 and 22.
Addressed in paragraphs 8-13 and 21.
Addressed in endnote 4.
Unnecessary detail but see endnote 4.
Subordinate, but see paragraph 19.
Subordinate, but see endnote 4.
17-20. Subordinate and unnecessary detail.
Subordinate, but see paragraphs 13 and 20-22.
Subordinate, but see paragraph 22 and endnote 1. 23-28. Subordinate.
29-32. Subordinate, but see paragraph 20.
33-35. Addressed in paragraph 21, otherwise subordinate.
Addressed in endnote 4, otherwise subordinate.
Addressed in endnote 2, otherwise subordinate.
Addressed in paragraphs 13 and 22.
Respondent's proposed findings of fact are addressed as follows:
Addressed in paragraph 1.
Addressed in paragraph 2.
Addressed in paragraph 4.
Addressed in paragraphs 5, 6 and 7.
Addressed in paragraph 12.
Addressed in paragraphs 9 and 20.
Accepted but subordinate or unecessary detail. 8-10. Addressed in paragraph 14 and endnote 2.
11 & 12. Addressed in paragraphs 15 and 16.
13. Addressed in paragraph 19.
14-16. Addressed in paragraphs 17 and 18.
Unnecessary detail.
Accepted, but brain damage due to trauma and oxygen depravation will also be represented in like form.
Addressed in paragraphs 20-22, otherwise unnecessary detail.
20 & 21. Addressed in endnote 4.
22-25. Rejected as argument or subordinate to the ultimate findings.
26 & 27. Addressed in paragraphs 13, 22, and endnote
1.
28-32. Addressed in paragraphs 13, 19-22, and endnote
4, otherwise subordinate.
Addressed in paragraph 21, otherwise rejected as argumentative.
Addressed in paragraph 14 and endnote 2.
35 & 36. Addressed in endnote 4.
37. Addressed in paragraphs 20-22.
COPIES FURNISHED:
(By Certified Mail)
Charles R. Scully, Esquire Frances Curry Ryan, Esquire
Law Offices of Charles R. Scully 3835 Central Avenue
St. Petersburg, Florida 33713
W. Douglas Moody, Jr., Esquire Post Office Box 11189 Tallahassee, Florida 32302-3189
Lynn Dickinson, Executive Director Florida Birth-Related Neurological
Injury Compensation Association Post Office Box 1528
Tallahassee, Florida 32302
Sue Foster, Chief Bureau of Complaints Department of Business
and Professional Regulation Suite 60
1940 North Monroe Street Tallahassee, Florida 32399-0792
Ms. Tanya Williams
Division of Health Quality Assurance Hospital Section
Agency for Health Care Administration 2727 Mahan Drive
Tallahassee, Florida 32308
Bill O'Neil, Esquire General Counsel Department of Insurance The Capitol, PL-11
Tallahassee, Florida 32399-0300
Dr. David Moreland, M.D. 700 6th Street South
St. Petersburg, Florida 33701
Dr. Donna Major-Miller, M.D.
164 Sun Isle Circle
Treasure Island, Florida 33706
Dr. Debra Hemsath, M.D. 9766 Seminole Boulevard
Seminole, Florida 34642
Bayfront Medical Center Legal Department
701 6th Street South
St. Petersburg, Florida 33701-4814
NOTICE OF RIGHT TO JUDICIAL REVIEW
A party who is adversely affected by this final order is entitled to judicial review pursuant to Sections 120.68 and 766.311, Florida Statutes. Review proceedings are governed by the Florida Rules Of Appellate Procedure. Such proceedings are commenced by filing one copy of a notice of appeal with the Agency Clerk Of The Division Of Administrative Hearings and a second copy, accompanied by filing fees prescribed by law, with the appropriate District Court of Appeal. See, Section 120.68(2), Florida Statutes, and Florida Birth-Related Neurological Injury Compensation Association v. Carreras, 598 So.2d 299 (Fla. 1st DCA 1992). The notice of appeal must be filed within 30 days of rendition of the order to be reviewed.
STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
DAVID DENSON and LINDA DENSON as )
parents and natural guardians of ) DEIDRE DENSON, a minor, )
)
Petitioners, )
)
vs. ) CASE NO. 93-5702N
) FLORIDA BIRTH-RELATED NEUROLOGICAL ) INJURY COMPENSATION ASSOCIATION, )
)
Respondent. )
)
FINAL ORDER AWARDING ATTORNEY'S FEES
Pursuant to notice, a formal hearing was held in the above-styled case on May 2, 1996, in St. Petersburg, Florida, before William J. Kendrick, an Administrative Law Judge 1/ of the Division of Administrative Hearings.
APPEARANCES
For Petitioner: Charles R. Scully, Esquire
Frances Ryan, Esquire
Law Offices of Charles R. Scully 3835 Central Avenue
St. Petersburg, Florida 33713
For Respondent: David W. Black, Esquire
Frank, Effman and Weinberg, P.A. 8000 Peters Road
Plantation, Florida 33324 STATEMENT OF THE ISSUE
At issue is the reasonable attorney's fee that should be awarded as a consequence of the filing of a claim for benefits under the Florida Birth-Related Neurological Injury Compensation Plan. 2/
PRELIMINARY STATEMENT
On or about October 5, 1993, David Denson and Linda Denson, as parents and natural guardians of Deidre Denson, a
minor, filed a claim with the Division of Administrative Hearings (hereinafter referred to as "DOAH") for
compensation under the Florida Birth-Related Neurological Injury Compensation Plan (hereinafter referred to as the "Plan").
DOAH served the Florida Birth-Related Neurological Injury Compensation Association (hereinafter referred to as "NICA") with a copy of the claim on or about October 6, 1993. NICA reviewed the claim, and on December 3, 1993, gave notice that it had "determined that such claim is not a 'birth-related neurological injury' within the meaning of Section 766.302(2), [Florida Statutes]", and requested that "an order [be entered] setting a hearing in this case on the issue of the compensability of this claim."
On December 7, 1993, DOAH issued a notice of hearing advising the parties that an evidentiary hearing would be held on January 3, 1994, to resolve the issue of compensability. Thereafter, the hearing was continued at petitioners' request and the claim was heard on April 12, 1994.
Following the conclusion of the hearing, the parties were accorded ten days from the date the transcript was filed to submit proposed final orders. The transcript was filed June 6, 1994, and both parties elected to file such proposals.
On July 8, 1994, a final order was rendered which found the claim compensable. Pertinent to this case, the final order concluded:
The parties are accorded thirty (30) days from the date of this order to resolve any dispute they may have regarding . . . the "reasonable expenses incurred in connection with the filing of the claim." If not resolved within such period, the parties will so advise the . . . [Administrative Law Judge], and a hearing will be scheduled to resolve such issue[].
The parties resolved the issue of costs; however, they were unable to resolve, between themselves, an appropriate award for attorney's fees incurred in connection with the filing of the claim. Consequently, on December 12, 1995, petitioners filed a petition for determination of attorney's fees, which was duly heard on May 2, 1996.
At hearing, petitioners called, as witnesses: Robert Carr, Esquire, Thomas Masterson, Esquire, Frances Ryan, Esquire, and Charles Scully, Esquire. Petitioners' exhibits
1 and 2 were received into evidence. 3/ Respondent called John Kelner, Esquire, as a witness.
The transcript of hearing was filed June 5, 1996, and the parties were accorded thirty days from that date to file proposed final orders. Subsequently, at petitioners' request, the time for submitting proposals was extended to July 12, 1996. Consequently, the parties waived the requirement that a final order be rendered within thirty days after the transcript is filed. Rule 60Q-2.031, Florida Administrative Code. The parties' proposed findings of fact, contained within their proposed orders, have been duly considered in the resolution of this matter. 4/
FINDINGS OF FACT
Background
Deidre Denson (Deidre), the daughter of David and Linda Denson, was born October 8, 1991, at Bayfront Medical Center in St. Petersburg, Florida, following an emergency cesarean section, necessitated by a breach presentation and fetal distress. Upon delivery, Deidre evidenced sequelae consistent with severe hypoxic insult and she was soon transferred to the neonatal intensive care unit at All Children's Hospital. There, although grave on admission, her condition was managed, and she was discharged to her parents' care on October 24, 1991. Subsequently, Deidre's development evidenced that she suffered permanent and substantial mental and physical impairment. [Final Order, July 8, 1994].
On September 28, 1992, the Densons met with Charles Scully, Esquire, regarding the injury to their child, and employed him, as counsel, to represent their interests in the matter. At the time, the most likely explanation for Deidre's condition was the hypoxic insult she had experienced during the course of her birth.
Notwithstanding, it was not until September 9, 1993, that any significant activity was taken on the Denson's claim. At that time, Mr. Scully reviewed the file, and discussed the case with Frances Ryan, a recent employee and admittee to the Florida Bar. Thereafter, the medical records of Bayfront Medical Center and All Children's Hospital were requested, and on October 5, 1993, a claim was filed with the Division of Administrative Hearings ("DOAH") for compensation under the Florida Birth-Related Neurological Injury Compensation Plan (the "Plan").
DOAH served the Florida Birth-Related Neurological Injury Compensation Association ("NICA") with a copy of the claim on or about October 6, 1993. Following service, NICA requested and arranged for an independent medical examination to assess Deidre's "current mental and physical condition." That examination was scheduled for October 27, 1993, with Dr. Michael Duchowny at Miami Children's Hospital, Miami, Florida.
Deidre was examined by Dr. Duchowny, as scheduled. Dr. Duchowny's examination revealed that Deidre did suffer from a permanent and substantial mental and physical impairment; however, subsequent review of Deidre's medical records led him to conclude that the seriousness of Deidre's neurologic deficit was not the product of the hypoxic insult she suffered at birth, but was occasioned by head trauma suffered following her discharge from All Children's Hospital.
On December 3, 1993, following receipt of Dr. Duchowny's opinion, NICA gave notice that it had "determined that such claim is not a 'birth-related neurological injury' within the meaning of Section 766.302(2), [Florida Statutes]" and requested that "an order [be entered] setting a hearing in this cause on the issue of the compensability of this claim."
Such a hearing was held on April 12, 1994, and, as appears more fully from the final order rendered July 8, 1994, Deidre's injury was found to be compensable under the Plan. Pertinent to this case, the final order accorded the parties an opportunity to resolve, between themselves and subject to the Administrative Law Judge's approval, the amount of an award for reasonable attorney's fees incurred in connection with the filing of the claim. The parties were unable to resolve the matter and, consequently, this proceeding ensued to establish the award for reasonable attorney's fees incurred in connection with the filing of the claim for benefits under the Plan.
The attorneys for petitioners
Mr. Scully, assisted by Ms. Ryan, represented petitioners in this case.
Mr. Scully is a 1967 graduate of Stetson University College of Law, and was admitted to the Florida Bar the same year. Mr. Scully has and does maintain his own trial practice in civil and criminal law; however, since approximately 1970 substantially all of his practice has
been in the areas of personal injury and medical malpractice. According to Mr. Scully, he has handled "thousands of personal injury cases," as well as a "substantial number of medical malpractice cases." As of the date of hearing, he estimated that he currently had fifteen or twenty malpractice cases in the office, and over
300 personal injury cases, with 60 cases in litigation at the time. In all, Mr. Scully was shown to be an experienced trial practitioner, who enjoys an excellent reputation among his peers.
Frances Ryan is a 1993 graduate of Stetson University College of Law, and was admitted to the Florida Bar that same year. She also holds a bachelor's degree in psychology from Auburn University, conferred in 1979, and a bachelor's of science in nursing from the University of Alabama in Birmingham, conferred in 1983. In addition to her Bar licensure, Ms. Ryan is also licensed as a nurse in the State of Florida, and has practiced in the areas of perioperative nursing, home health care and hospice work. She was not, however, shown to possess any special expertise in the areas of pediatric or obstetrical nursing.
The number of hours reasonably expended
The initial step in deriving a reasonable attorney's fee in the instant case is to determine the number of hours reasonably expended to pursue the claim.
Pertinent to this aspect of the case, petitioners have submitted what are labeled as "time sheet[s]" for Mr. Scully and Ms. Ryan reflecting the time they claim was dedicated to the claim, and for which they seek compensation. Mr. Scully's time sheet reflects 163.5 hours dedicated to the claim, and Ms. Ryan's time sheet reflects
216.41 hours dedicated to the claim. 5/ [Petitioner's exhibit 1]. In total, petitioners' counsel claim a total of
379.91 hours as reasonably dedicated to the pursuit of the claim.
Here, a significant amount of time has been devoted to an evaluation of counsels' time sheets, together with the explanations they offered at hearing, as well as the record developed in this case and the underlying proceeding. Based on such considerations, it must be concluded that the hours claimed by counsel are not supported by credible or persuasive proof, and that the hours claimed are clearly inflated and therefore unreliable. 6/
In reaching the foregoing conclusion, it is first observed, on a global basis, that between Mr. Scully and Ms. Ryan there was substantial duplication of effort. In this regard it is noted that Mr. Scully, with his experience, was quite capable of attending to all matters related to the claim, and that Ms. Ryan, with her lack of experience, was not. Indeed, it is quite apparent that Mr. Scully was lead counsel and supervised Ms. Ryan's novice efforts. Such is apparent from his review of discovery and other documents she prepared, their constant conferencing, the fact that each attorney reviewed the various medical records on multiple occasions, that each attorney prepared for and attended each deposition, and that Ms. Ryan, although present at hearing, took no active part. While such might have been a desirable way to prepare the case, given Ms. Ryan's inexperience, it was not necessary, and the hours expended on such duplicative efforts cannot be considered as reasonably expended.
Were the conferencing and duplicative efforts of counsel the only irregularity in the hours claimed, it might be possible, although not precise, considering the generality ascribed to counsel's efforts on many occasions, to reject the conferencing and duplicative efforts and derive an approximation of the number of hours counsel actually and reasonably dedicated to the claim. However, the inflation apparent in the hours counsel claim likewise renders their claim unreliable, and renders such approach unacceptable.
In so concluding it is initially observed, again in a global sense, that between them counsel claimed 35.61 hours were dedicated to the claim between the initial client interview and receipt of the notice of noncompensibility. Essentially all that occurred during that period was an effort by counsel to familiarize themselves with the Plan, the securing and review of the medical records, and the preparation and filing of the petition (claim) for benefits. Given that no experts were contacted during this period, and the filing of the claim was routine and largely ministerial until the notice of denial, the hours claimed by counsel were, apart from including duplicative efforts, excessive. For experienced counsel, such efforts may have required 12 hours of attorney time, and perhaps as much as 15 hours, but no more time could have reasonably been dedicated to the claim to that point in the process.
Also in a global sense, it is observed that from April 9, 1994, to April 12, 1994, the date the trial on compensability occurred, Mr. Scully and Ms. Ryan claim 59
hours on trial preparation matters. That is the equivalent of a week and a half, at 8 hours a day, for a hearing that lasted 5 hours, where all petitioners' medical testimony was submitted through depositions, the medical records were limited in number, the only live witnesses petitioners presented were the Densons and one neighbor, and petitioners were only called upon to cross examine one witness. Such time is, apart from including duplicative efforts, clearly excessive and therefore not reliable.
Finally it is observed on a global basis that Mr. Scully and Ms. Ryan claim 78.5 hours were dedicated to the preparation of the proposed final order post-hearing. Such claim is excessive given that, but for the proposed findings of fact, the order submitted tracked in all other material respects a final order the undersigned had previously issued in another matter, and considering the familiarity counsel should have had and evidently did have, as evidenced by Mr. Scully's opening statement in the underlying case, with the record. The reliability of the hours claimed is further reduced by the symmetry with which the time counsel ostensibly dedicated to the preparation of the order is docketed. Such symmetry is contrary to human experience.
Addressing more focally the reliability of Mr. Scully's time sheet, it is observed that Mr. Scully did not maintain contemporaneous time records, and that his time sheet is an after-the-fact attempt to reconstruct a record of tasks performed and time dedicated on particular dates. Consequently, at best, Mr. Scully's time sheet could be considered an estimate; however, given the proof, it is more likely an exaggeration and therefore unreliable.
In reaching such conclusion, it is observed that Mr. Scully's time sheet was created at least one year after the hearing on compensability. 7/ Consequently, substantial time had elapsed since the professed events occurred, which either singularly or coupled with the demands of Mr. Scully's busy practice renders it unlikely that Mr. Scully could remember the events or time dedicated in the detail he recorded on his time sheet or as he testified to at hearing. Indeed, Mr. Scully's testimony to the contrary is simply not persuasive or credible.
The reliability of Mr. Scully's time sheet, as well as his elaboration at hearing, is further suspect since, with de minimus exception, all time is recorded in half-hour or hourly segments. Such symetry or regularity does not comport with human experience. Moreover, many of the entries for which substantial blocks of time are
assigned contain only vague or general terms to describe the task, such as "research," "review medical records," and "consult with Frances [Ryan]." Such practice renders it impossible to determine what work was actually done, whether the work was duplicative, and whether the time was actually expended or was reasonable. For reasons already stated, Mr. Scully's elaborations at hearing lend no sense of confidence to the reliability of such entries.
Finally, where identifiable tasks can be compared with objective proof, the time assigned to performing that task by Mr. Scully is inflated. For example, Mr. Scully claims 3 and 1/2 hours for reviewing the draft petitions provided by respondent and preparing the petition for benefits. Given that he used the form provided by respondent, those tasks are exaggerated by at least two hours. For further example, it may be noted that on December 14, 1993, Ms. Ryan charged one hour for "Prepare Motion to Continue and Order -- copies, mailing," and Mr. Scully charged 1/2 hour for "Motion for Continuance until April 1994, and consultation," 1/2 hour for "Letter to Mr. Kendrick [the Administrative Law Judge] with Motion To Continue and proposed order." Such efforts by Mr. Scully were not only unnecessary, given Ms. Ryan's efforts, but the
1 and 1/2 hours billed for the tasks is an exaggeration of
the time necessary to fulfill them. An additional example of the discrepancy between the task claimed and the time billed may be had by reference to Ms. Ryan's entries of December 16 and 29, 1993, where she noted 2 hours to "Draft discovery" and 1 hour for "Final draft discovery, copies, mailing," and Mr. Scully's entries of December 18 and 29, 1993, where he noted 2 and 1/2 hours for "Research and review discovery matters" and 1 hour to "Re-review discovery and sign." An examination of the discovery matters reveals them to be brief and routine, and of the 6 and 1/2 hours assigned to the task, not more than 1 and 1/2 hours could possibly have been incurred in their formulation. As a final example, it may be noted that on September 30, 1993, Mr. Scully billed 4 hours for "research" on the NICA statute and on October 1, 1993, Ms. Ryan billed 3 hours for "research" on the NICA statute. Such entries, collectively and individually, are excessive.
Turning now to Ms. Ryan's time sheets, as well as the elaboration she offered at hearing, it is first observed that, although Ms. Ryan testified at hearing that at least
90 percent of the entries on her time sheet were based on contemporaneous time records she kept during the progress of the case, she also stated that when the time sheet was prepared she destroyed the contemporaneous records because
she felt they were no longer needed. Such act of destruction is chilling to the veracity of her testimony and time sheet, given that at the time of destruction the dispute was ongoing regarding the attorney's fee claim and given Ms. Ryan's acknowledgment that, upon her initial review of the NICA statute, she understood the need to keep contemporaneous time records. Considering the import of her contemporaneous time records, as well as the timing of their destruction, it cannot be concluded that the act of destruction was an idle or casual act. Consequently, it is appropriate to infer that the destroyed evidence would be unfavorable to the claim for attorney's fees. While not dispositive, it lends further support to the conclusion that Ms. Ryan's time sheet, as well as her testimony, do not credibly support the hours claimed.
The reliability of Ms. Ryan's time sheet, as well as her elaboration at hearing, is further suspect since, with de minimus exception, all activities are billed at a minimum of one-quarter hour (.25), with numerous large blocks of time, such as 2, 3, 5, and 8 hours, for such vague pursuits as "consult [with Mr. Scully]," "medical record review," "research," and "hearing preparation." That every telephone call or task Ms. Ryan performed took a minimum of
15 minutes, or was performed with such rounded or symetrical precision, is contrary to human experience and is inherently improbable and unworthy of belief. Ms. Ryan's practice of unit billing is unacceptable, as was her practice of billing for secretarial or ministerial matters, such as typing correspondent, acting as a courier, and copying documents and pleadings. See, Browne v. Costales, 579 So.2d 161 (Fla. 3d DCA 1991). Given the vagueness with which tasks are denoted, and the manner in which the hourly entries were made, no confidence can be placed in either Ms. Ryan's testimony or her time sheet.
Finally, as with Mr. Scully's time sheet, where identifiable tasks can be compared with objective proof, the time assigned to performing that task by Ms. Ryan is inflated or unreasonable. Some examples of such inflation have heretofore been noted with regard to an evaluation of Mr. Scully's time sheet, and will not be repeated. Other examples may be found at the October 18, 1993, entry of Ms. Ryan's time sheet where she bills 1/3 of an hour for a simple letter to Ann Cole [DOAH clerk], and 1/3 of an hour for a simple letter to Lynn Dickinson [executive director of NICA] forwarding medical records that had already been copied; and, at the March 13, 1994, entry where she bills 1 hour to review the responses to discovery.
Given the record, it must be concluded that the proof offered by petitioners to support the number of hours counsel dedicated to the claim is not credible or persuasive, and that it would be pure speculation to attempt to derive any calculation or meaningful estimate based on such proof. In the end, counsel must bear the responsibility for such failure, and by advancing such proof counsel detracted from the acceptable job done representing petitioners' interests. However, as commendable as those efforts were, they offer no basis or justification to accept what is, politely, unreliable proof or a gross exaggeration of the time dedicated to the claim. 8/
While petitioners' proof offers no credible basis upon which to derive the number of hours they dedicated to the claim and their reasonableness, petitioners' counsel obviously dedicated time to the claim, and to the extent the record contains proof on which a reasonable assessment of those hours may be based, it is appropriate to do so. In this regard, the testimony of John Kelner, Esquire, has been most helpful.
Mr. Kelner reviewed the file, has extensive experience in medical malpractice cases, has prosecuted NICA claims, and is familiar with the Plan. He evaluated the claim for attorneys fees from two perspectives. First, he reviewed the time sheets to resolve whether they could be utilized as a reliable guide to the number of hours counsel dedicated to the claim, and upon which a determination could be made that the time dedicated was reasonable. Based on that evaluation, Mr. Kelner concluded that the time sheets were not reliable because the description of work performed was insufficient and hours expended were inflated. Mr. Kelner further concluded that he could not simply subtract the hours unreasonably spent because the records were not sufficiently clear as to tasks performed or hours actually spent to permit such an approach. Mr. Kelner's observations are consistent with the proof in this case and his opinion is credited.
As an alternative, Mr. Kelner evaluated the file based on what work was reasonably required (i.e., conferences with client, obtain and review medical records, retention of experts, preparation of pleadings, preparing for and taking depositions, preparation for final hearing, attendance at final hearing, and preparation of final order), and how much time that work should take an experienced practitioner to accomplish. Based on that evaluation and, in his opinion, giving counsel the benefit
of the doubt, the reasonable time necessary to pursue the claim was 99 to 100 hours.
Here, given the lack of credibility of counsels' time sheets, as well as their testimony, to provide a basis on which to derive the number of hours counsel actually dedicated to the claim, and then test those hours against the standard of reasonableness, Mr. Kelner's alternative approach is accepted as reasonable and his opinion credited. 9/
The "market rate"
The next consideration in establishing a reasonable fee is the determination of the "market rate" or prevailing hourly rate, or range of hourly rates, charged in the community by lawyers of reasonably comparable skill, experience and reputation, for similar services. Here, the proof demonstrates a range of rates to employ competent counsel for similar work, where the fee basis is hourly billing for time worked. That range is $75.00 to $150.00 an hour, with $75.00 an hour for junior associates, $100.00 an hour for an attorney with 5 years experience, and $125.00 an hour for an attorney with 10 years experience.
Given the methodology necessarily employed to calculate the reasonable number of hours dedicated to the claim, and that the case warranted the employment of counsel with the skills and experience of Mr. Scully, it is appropriate to assign a value to those hours commensurate with the rate Mr. Scully would enjoy. Such approach recognizes the inherent inability, based on the unreliability of the proof, to establish the number of hours Mr. Scully and Ms. Ryan actually dedicated to the claim, but recognizes the value of the services rendered at a rate commensurate with the time it would take experienced counsel to pursue the claim. Consequently, given Mr. Scully's reputation and experience, the appropriate rate in this case is $150.00 per hour. 10/
The reasonable fee
A reasonable fee, under the methodology established by Florida Patient's Compensation Fund v. Rowe,
472 So.2d 1145 (Fla. 1985), and Florida Birth-Related Neurological Injury Compensation Association v. Carreras, 633 So.2d 1103 (Fla. 3d DCA 1994), is determined by multiplying the hours reasonably expended by the reasonable hourly rate. The result produces the "lodestar figure" which, if appropriate, may be adjusted because of a
consideration of the remaining factors. Applying such methodology to the facts of this case produces a "lodestar figure" of $15,000.
Upon consideration of the facts of this case, and the remaining criteria established at Section 766.31(1)(c), Florida Statutes, there is reason, based on the contingency nature of the fee, to adjust the "lodestar figure." 11/ Given the nature of the claim, the risk of non-recovery was substantial and warrants an adjustment of the fee award to
$25,000. 12/
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, these proceedings. Section 766.301, et seq., Florida Statutes.
As the claimants, the burden rests on petitioners to substantiate a fee award. Balino v. Department of Health and Rehabilitative Services, 348 So.2d 349, 350 (Fla. 1st DCA 1977), ("[T]he burden of proof, apart from statute, is on the party asserting the affirmative issue before an administrative tribunal.") See also, Florida Department of Transportation v. J.W.C. Co., Inc., 396 So.2d 778 (Fla. 1st DCA 1981).
Pertinent to this case, Section 766.31, Florida Statutes, provides:
Upon determining that an infant has sustained a birth-related neurological injury and that obstetrical services were delivered by a participating physician at the birth, the hearing officer shall make an award providing compensation for the following items relative to such injury:
* * *
(c) Reasonable expenses incurred in connection with the filing of a claim under ss. 766.301-766.316, including reasonable attorney's fees, which shall be subject to the approval and award of the hearing officer. In determining an award for attorney's fees, the hearing officer shall consider the following factors:
The time and labor required, the novelty and difficulty of the questions involved, and the skill requisite to perform the legal services properly.
The fee customarily charged in the locality for similar legal services.
The time limitations imposed by the claimant or the circumstances.
The nature and length of the professional relationship with the claimant.
The experience, reputation, and ability of the lawyer or lawyers performing services.
The contingency or certainty of a fee.
The first step in the process of calculating a reasonable attorney's fee is to determine the number of hours reasonably expended in connection with the filing of the claim. See, Standard Guarantee Insurance Co. v. Quanstrom, 555 So.2d 828 (Fla. 1990), Florida Patient's Compensation Fund v. Rowe, 472 So.2d 1145 (Fla. 1985), and Florida Birth-Related Neurological Injury Compensation Association v. Carreras, 633 So.2d 1103 (Fla. 3d DCA 1994).
To assess the number of hours reasonably expended on a claim, it is observed that:
[The] Florida courts have emphasized the importance of keeping accurate and current records of work done and time spent on a case, particularly when someone other than the client may pay the fee. [Citations omitted]. To accurately assess the labor involved, the attorney fee applicant should present records detailing the amount of work performed. Counsel is expected, of course, to claim only those hours that he could properly bill to his client. Inadequate documentation may result in a reduction in the number of hours claimed, as will a claim for the hours the court finds to be excessive or unnecessary.
Rowe, at page 1150.
To like effect, the court in Carreras, at page 1110, observed that under the "hour-setting" portion of the lodestar computation,
. . . it is important to distinguish between "hours actually worked" versus "hours reasonably expended." . . . "Hours actually worked" is not the issue. The objective instead is for the trier of fact
to determine the number of hours reasonably expended in providing the service. 'Reasonably expended' means the time that ordinarily would be spent by lawyers in the community to resolve this particular type of dispute. It is not necessarily the number of hours actually expended by counsel in the case. Rather, the court must consider the number of hours that should reasonably have been expended in that particular case. The court is not
required to accept the hours stated by counsel. [In re Estate of Platt], 586 So.2d at 333-34
[emphasis in original]. The trier of fact must determine a reasonable time allowance for the work performed--which allowance may be less than the number of hours actually worked. Such a reduction does not reflect a judgment that the hours were not worked, but instead reflects a determination that a
fair hourly allowance is lower than the time put in.
While the Florida courts have emphasized the importance of keeping accurate and current records of work done and time spent on a case, counsels' failure to maintain such records is not necessarily fatal to their case. City of Miami v. Harris, 490 So.2d 69 (Fla. 3d DCA 1985). However,
. . . the burden to substantiate the fee award is on plaintiff's attorney. Johnson
v. University College of the University of Alabama, 706 F.2d 1205. That burden is met when the fee award is supported by substantial competent evidence, Cohen v. Cohen,
400 So.2d 463 (Fla. 4th DCA 1981) (on rehearing) which may include reconstructed,
although not contemporaneous, records.
Id., at page 73.
Here, as noted in the findings of fact, petitioners failed to present credible evidence to demonstrate the number of hours dedicated to the claim or from which the number of hours reasonably expended could be derived. Where such proof is not forthcoming, such failure is generally fatal to the claim. Mercy Hospital, Inc. v. Johnson, 431 So.2d 687 (Fla. 3d DCA 1983). See also, Miller
v. First American Bank and Trust, 607 So.2d 483 (Fla. 4th DCA 1992). As observed by the court in Mercy Hospital, Inc.
v. Johnson, supra, at page 688:
In deciding upon amounts to be awarded as attorney's fees, a trial court must consider not only the reasonableness of the fees charged but the appropriateness of the number of hours counsel engaged in performing his services as well. The court should review the nature of the services rendered and the necessity for their performance, along with the reasonableness of the charges. Lyle v.
Lyle, 167 So.2d 256 (Fla. 2d DCA), cert. denied, 172 So.2d 601 (Fla. 1964). [Counsel's] . . . failure to present detailed
evidence of his services is fatal to his claim. In re Estate of Lopez, 410 So.2d 618 (Fla.
4th DCA 1982); Cohen v. Cohen, 400 So.2d 463 (Fla. 4th DCA 1981); Nevins v. Nevins,
312 So.2d 201 (Fla. 2d DCA 1975). The opinion of an expert witness does not constitute proof that the facts necessary to support the conclusion exist. Arkin Construction Co. v. Simpkins, 99 So.2d 557 (Fla. 1957).
The expert testimony presented to the trial court concerning the reasonableness of the fees charged accepted as correct the number of hours . . . [counsel] claimed he spent performing legal services on behalf of Mercy Hospital. The court heard neither testimony nor competent evidence detailing the nature of the services performed. To support his testimony, . . . [counsel] offered a written statement, admitted over objection, describing in general terms what he achieved but offering no details to enlighten the court as to the manner in
which he performed his obligation. [Counsel's] . . . written statement constituted hearsay, Florida Evidence Code, section 90.801(1)(c), as amended by Chapter 81-93, section 2, Laws of Florida, and was therefore inadmissible.
As in Mercy Hospital, Inc. v. Johnson, supra, counsel in the instant case failed to present credible or competent proof of the number of hours counsel dedicated to the claim, and from which the nature and necessity for their performance could be addressed. Also, as in Mercy Hospital, Inc. v. Johnson, supra, the acceptance by petitioners' experts as to the reasonableness of those hours, does not constitute proof that those hours were actually worked.
Such failure, as heretofore noted, would normally be fatal to petitioners' claim. However, respondent, through its expert, Mr. Kelner, offered an alternative approach which permitted the identification of a quantity of hours which would not otherwise have been approached, absent the indulgence of speculation and conjecture, and which could be identified as reasonably incurred in the pursuit of the claim. Given the record or, stated differently, the lack thereof, the alternative offered by Mr. Kelner was reasonable, and 100 hours are accepted as reasonable in this case.
Under the "hourly-rate" portion of the lodestar computation,
". . . [t]he fee customarily charged in the locality for similar legal services" . . . is the starting point for setting hourly
rates. It is designed to provide a reference point by determining, as a factual matter, what the customary rate is in the relevant community for the same or similar legal services. For lodestar purposes, the relevant inquiry is to determine the prevailing rate, or range of rates, where the fee basis is hourly billing for time worked. See In re Estate of Platt, 586 So.2d at 334. Once the hourly customary fee is determined, the [presiding officer] then considers the other applicable statutory factors in order to arrive at the approved reasonable hourly rate for the case.
. . . In so doing, "the trial court is not
bound to accept the hourly rate asserted by counsel who performed the service. The court
in this instance determines the appropriate hourly rate for the services performed." In re Estate of Platt, 586 So.2d at 334.
Furthermore, expert opinion is not binding on the trier of fact, Baruch v. Giblin, 122 Fla. 59, 64, 164 So. 831 833 (1935), Miller
v. First American Bank & Trust, 607 So.2d 483, 485-86 (Fla. 4th DCA 1992), and "[t]he opinion of an expert witness does not constitute proof that the facts necessary to support the conclusion exist." Mercy
Hospital, Inc. v. Johnson, 431 So.2d 687, 688 (Fla. 3d DCA) (citation omitted), review denied, 441 So.2d 632 (Fla. 1983).
Carreras, at page 1108.
Given the proof, as heretofore noted in the findings of fact, it is concluded that the appropriate "market rate" or "fee customarily charged in the locality for similar legal services," considering "the experience, reputation, and ability of the lawyer . . . performing [the] services," is $150.00.
A reasonable fee, under the methodology established by Florida Patient's Compensation Fund v. Rowe, supra, and approved in Florida Birth-Related Neurological Injury Compensation Association v. Carreras, supra, is determined by multiplying the hours reasonably expended by the reasonable hourly rate. The result produces the "lodestar figure" which, if appropriate, may be adjusted because of a consideration of the remaining factors. Applying such methodology to the facts of this case produces a "lodestar figure" of $15,000 and, as heretofore noted in the findings of fact, that figure should be adjusted to
$25,000, for the reasons stated.
CONCLUSION
Based on the foregoing Findings of Fact and Conclusions of Law, it is
ORDERED that petitioners recover from respondent, Florida Birth-Related Neurological Injury Compensation Association, the sum of $25,000, as a reasonable attorney's fee.
DONE AND ORDERED this 24th day of October, 1996, in Tallahassee, Leon County, Florida.
WILLIAM J. KENDRICK
Administrative Law Judge
Division of Administrative Hearings The DeSoto Building
1230 Apalachee Parkway
Tallahassee, Florida 32399-1550
(904) 488-9675 SUNCOM 278-9675
Fax Filing (904) 921-6847
Filed with the Clerk of the Division of Administrative Hearings this 24th day of October, 1996.
ENDNOTES
1/ Effective October 1, 1996, Chapter 96-159, Laws of Florida, amended many of the provisions of Chapter 120, Florida Statutes. Among the amendments was a change in the title of the presiding officers employed by the Division of Administrative Hearings from "Hearing Officer" to "Administrative Law Judge."
2/ Pursuant to Section 766.31(1)(c), petitioners are entitled to recover "[r]easonable expenses incurred in connection with the filing of a claim under ss. 766.301- 766.316, including reasonable attorney's fees." Here, the parties were able to resolve, between themselves, the issue of costs and those costs have been paid. Consequently, the sole remaining issue is the reasonable attorney's fee which should be awarded. [Transcript, page 3].
3/ Petitioners also offered exhibits 3 and 4 which were, following objection, rejected.
4/ During the preparation of this final order, careful consideration has been accorded the proposed final orders submitted by the parties; however, in view of the amendment to Chapter 120, Florida Statutes, effected by Chapter 96- 159, Laws of Florida, which eliminated the requirement that the parties' proposed findings of fact be specifically addressed, this final order does not specifically address the parties proposed findings of fact.
5/ The face sheet of Mr. Scully's time sheet reflects a total of 162 hours and 20 minutes; however, he increased the line item for April 14, 1994, from 1/2 hour to 1 and 1/2 hours. The face sheet of Ms. Ryan's time sheet reflects 212 hours; however, she increased the line items for March 28, 1994, to include a consult with Mr. Scully of 1 hour; the line items for March 30, 1994, to include a consult with Mr. Scully of 2 hours and a telephone conference with Mr. Moody and Dr. Duchowny for 1 hour; the line items for March 31, 1994, to include a consult with Mr. Scully for 1 hour; and increased the line item of April 4, 1994, for a consult with Mr. Scully from 1/2 hour to 1 hour. Running a tape on the time sheets, as amended, derives the totals noted.
6/ This case is characteristic of the "notorious 'billable hours' syndrome, with its multiple evils of exaggeration, duplication, and invention," observed by the court in Miller
v. First American Bank and Trust, 607 So.2d 483, 485 (Fla. 4th DCA 1992).
7/ Notably, while Mr. Scully testified to vivid recall regarding the events he recorded in his time sheet, he was unable to recall with any exactitude when he prepared his time sheet. He did recall, however, that it was submitted to respondent's counsel, Mr. Black, shortly thereafter. [Transcript, page 262]. Mr. Black entered his appearance on August 9, 1995, which would suggest preparation subsequent to that date. Ms. Ryan, while likewise testifying to vivid recall regarding events on her time sheet, was likewise unable to recall specifically when she prepared it. When pressed, she responded "[a]t least a year ago, I think." [Transcript, page 195]. Given such record, the proof fairly suggests that their time sheets were not created until at least a year after hearing, and renders suspect counsels' ability of recall, with any degree of clarity.
8/ In reaching the foregoing conclusion, the testimony of petitioners' experts, Mr. Carr and Mr. Masterson, that the time recorded by Mr. Scully and Ms. Ryan was reasonable has not been overlooked. However, these witnesses did not examine the time entries or compare them to the work performed, and spoke in a global sense that they felt it was reasonable. Here, the proof demonstrated that the hours billed by counsel were not reasonable. Consequently, the testimony of those witnesses is contrary to the proof, and their testimony is rejected. Moreover, the testimony of these witnesses does not constitute proof that counsel dedicated the time claimed. Mercy Hospital, Inc. v.
Johnson, 431 So.2d 687, 688 (Fla. 3d DCA 1983), ("The
opinion of an expert does not constitute proof that the facts necessary to support the conclusion exist.")
Finally, the testimony of these witnesses and Mr.
Scully to the effect that where counsel does not routinely maintain time records and is required to create a time record after-the-fact he invariably loses 40 or 50 hours of time he cannot recall has also not been overlooked. Such testimony is, however, rejected as not credible. Rather, where, as here, counsel are aware that, if successful, they will be entitled to recover a reasonable attorney's fee it stretches the imagination to believe that if they know time will be lost by not documenting it they would choose not to maintain contemporaneous time records.
9/ In concluding that 100 hours were reasonably dedicated to the pursuit of the claim, it is not suggested that some number of hours in excess of that number may not have been dedicated to the claim. Rather, it is found that petitioners' proof is so unreliable that, absent speculation and conjecture, no credible basis exists in the record to support a finding in excess of 100 hours.
10/ Having resolved, for the reasons stated, that the fee should be awarded at Mr. Scully's rate, it would ordinarily be unnecessary to address the less than credible testimony offered by petitioners' experts as to an appropriate hourly rate for Ms. Ryan. However, that their testimony in this
regard was less than credible is worthy of observation since it renders the opinions they expressed at hearing more incredible.
In so concluding, it is observed that Mr. Carr offered two alternatives. First, that the reasonable rate in the community was $300.00 an hour, that no distinction should be made between Mr. Scully and Ms. Ryan, and that such hourly rate should be enhanced to $600.00 for each attorney.
Alternatively, Mr. Carr suggested a reduced rate to $200.00 an hour for Ms. Ryan, enhanced to $400.00 an hour, recognizing her recent licensure, but acknowledging her nursing background. Mr. Masterson was of the opinion that the reasonable rate for Mr. Scully was $250.00 an hour, enhanced to $500.00 an hour, and the reasonable rate for Ms. Ryan, considering her limited legal experience, but recognizing her nursing background, was $150.00 an hour, enhanced to $300.00 an hour.
In concluding that the foregoing opinions are wholly lacking in credibility, and render their testimony more incredible, it is observed that Ms. Ryan was not competent to handle this case by herself, and simply because she held a nursing degree in addition to her new found admission to the Florida Bar hardly raised her worth in the market place to the levels expressed by Mr. Carr and Mr. Masterson.
Notably, Ms. Ryan is currently employed by Mr. Scully, as she was at the time, albeit now with three years admission to the bar and with no trial experience as lead counsel, at
$20 an hour. In sum, the hourly rates advanced by petitioners' experts are rejected as not credible or compatible with the prevailing rate, or range of rates, where the fee basis is hourly billing for time worked.
11/ The other criteria are neutral or provide no basis on which to enhance the fee awarded. In this regard, it is observed that there were no significant time limitations shown to have been imposed by the claimants or the circumstances in this particular case, and the nature and length of the professional relationship with the claimants was likewise a neutral consideration. The experience, reputation and ability of the lawyer has been considered in establishing the reasonable hours and reasonable hourly rate and does not, in this case, afford any additional basis to adjust the "lodestar figure."
12/ Although, having heard the case, the undersigned does not agree that the chances of prevailing were as narrow as those espoused at hearing; he does agree that the risk was substantial, or, stated differently, the risk of not prevailing approached fifty percent, and warrants the enhancement derived.
COPIES FURNISHED:
Charles R. Scully, Esquire Frances Ryan, Esquire
3835 Central Avenue
St. Petersburg, Florida 33713
David W. Black, Esquire
Frank, Effman & Weinberg, P.A. 8000 Peters Road
Plantation, Florida 33324
Lynn Dickinson, Executive Director Florida Birth-Related Neurological
Injury Compensation Association Post Office Box 14567 Tallahassee, Florida 32317-4567
NOTICE OF RIGHT TO JUDICIAL REVIEW
A party who is adversely affected by this final order is entitled to judicial review pursuant to Sections 120.68 and 766.311, Florida Statutes. Review proceedings are governed by the Florida Rules of Appellate Procedure. Such proceedings are commenced by filing one copy of a Notice of Appeal with the Agency Clerk of the Division of Administrative Hearings and a second copy, accompanied by filing fees prescribed by law, with the appropriate District Court of Appeal. See, Section 120.68(2), Florida Statutes, and Florida Birth-Related Neurological Injury Compensation Association v. Carreras, 598 So.2d 299 (Fla. 1st DCA 1992). The Notice of Appeal must be filed within 30 days of rendition of the order to be reviewed.
| Issue Date | Document | Summary |
|---|---|---|
| Oct. 24, 1996 | DOAH Final Order |
