February 5, 2008

Re: SB 68 (2008) – Senator Charlie Dean

HB 875 (2008) – Representative Marcelo Llorente Relief of Tyler Giblin

SPECIAL MASTER’S FINAL REPORT

THIS IS AN UNOPPOSED EQUITABLE CLAIM FOR

$700,000 AGAINST THE MARION COUNTY HOSPITAL DISTRICT FOR MEDICAL MALPRACTICE IN THE COURSE OF THE DIAGNOSIS AND TREATMENT OF TYLER GIBLIN AT MONROE REGIONAL MEDICAL CENTER IN 2004.

been delivered at a tertiary facility such as Shands Hospital in Gainesville rather than at a community hospital. There is no evidence that the failure to diagnose the condition prenatally was a violation of the standard of care.

Dr. Yves Lande-Pierre, the physician who delivered Tyler, detected a heart murmur in Tyler within an hour of his birth. According to one of the claimants’ experts, pediatric cardiologist Dr. William Hellenbrand, the heart murmur was a “red flag” that should have caused Dr. Pierre to request an immediate cardiac consultation for Tyler even though he did not exhibit any other symptoms indicative of a heart problem.

On the evening of December 14, Tyler’s parents reported to the nurses that Tyler turned bluish or purplish when he was crying. This is referred to as a cyanotic episode and can be indicative of a heart problem. The nurses did not document this episode in Tyler’s chart or report it to Dr. Pierre, even though Dr. Pierre’s notes from her initial evaluation of Tyler requested “close observation” of Tyler because of the heart murmur. The nurses’ failure to document and report this episode to Dr. Pierre was a violation of the standard of care.

Dr. Pierre examined Tyler on the morning of December 15. She noted an increase in the heart murmur and, therefore, ordered a chest x-ray and a four-extremity blood pressure test. This is the proper procedure when a heart problem is indicated.

The nurse who administered the four-extremity blood pressure test reported results that were generally within normal limits, but according to Dr. Hellenbrand, there were several anomalies in the results that should have indicated to Dr. Pierre that Tyler may have a heart condition that warranted a cardiac consultation. More significantly, according to another expert for the claimants, pediatric cardiologist Dr. Charles Kleinman, the test could not have been administered correctly because the reported results were not possible in a child that had hypoplastic left heart syndrome.

Tyler had another cyanotic episode where he turned bluish or purple when crying on the morning of December 15. Tyler’s parents reported the episode to the nurses, but the nurses did not document the episode in Tyler’s chart or

report it to Dr. Pierre. The nurses’ failure to document and report this episode to Dr. Pierre was a violation of the standard of care.

Dr. Pierre scheduled a cardiac consultation for Tyler at Shands on December 16. She did not schedule it on a “stat” or emergency basis because she did not believe that Tyler’s condition was serious based upon the information that she had at the time.

Tyler’s condition worsened significantly between midnight and 5:00 a.m. on December 16. The nurses called Dr. Pierre at 5:15 a.m. that morning and told her that Tyler was “pale and dusky” and having difficulty breathing and that she needed to come in to the hospital. By the time that Dr. Pierre got to the hospital at 6:45 a.m., Tyler was cyanotic, his oxygen level was 70-80 percent, and his blood gas pH level was an alarmingly low 6.6. The experts referred to this event as a “crash.”

After conferring with a pediatric cardiologist at Shands, Dr. Pierre administered medication to stabilize Tyler’s heart condition and put Tyler on a ventilator. Thereafter, Tyler was transferred to Shands by helicopter for further treatment.

On December 22, Tyler was transferred from Shands to Miami Children’s Hospital for open heart surgery. He successfully underwent the first stage of the Norwood procedure, but he was unable to undergo the second and third stages of the surgery because of the damage to the right side of his heart that was caused by the “crash” on December 16. As a result, Tyler was transferred back to Shands to await a heart transplant.

Tyler received a heart transplant on June 3, 2005. He is now almost 3 years old, and he is doing well physically. His treating physician, Dr. Jay Frickler, a pediatric cardiologist at Shands, characterized Tyler as a “medical miracle.”

The claimants experts’ testified in deposition that the “crash” could have been avoided if Tyler’s had been properly diagnosed on December 14 or 15. They further testified that but for the “crash” on December 16 and the damage that it did to the right side of Tyler’s heart, it is more likely than not that Tyler would have been able to undergo all three stages

of the Norwood procedure. Stated another way, but for the “crash,” Tyler likely would not have required a heart transplant.

There are concerns about Tyler’s developmental delay, which the claimants’ experts attribute to brain damage caused by oxygen deprivation associated with the “crash” on December 16. Dr. Robert Baumann, a pediatric neurologist, reported that “Tyler shows major delays in important cognitive functions evidenced by deficits in speech and in imaginative plan” and that Tyler’s motor skills “are probably mildly impaired.” Tyler is currently in speech therapy twice a week.

It is likely that Tyler will require additional heart transplants as he gets older because the average life span of a transplanted heart is 12-13 years. Tyler may have required a heart transplant even if he was able to undergo all three stages of the Norwood procedure, but the life span of that procedure is longer -- 20+ years -- and that procedure generally has fewer long-term side effects than a heart transplant.

It is expected that Tyler will have the cognitive capacity to live independently as an adult and, with therapy, he will reach or come close to reaching normal developmental levels. One of the claimants’ experts, certified rehabilitation counselor Dr. Paul Deutsch, opined that Tyler’s chronic medical condition will not be conducive to his participation in gainful employment. However, as noted by Tyler’s treating cardiologist, Dr. Frickler, Tyler is too young make such a determination at this time.

The report prepared by the claimants’ expert economist, Dr. F.A. Raffa, estimated that Tyler’s economic damages were between $22.3 million and $22.6 million. Those figures were based upon a comparison between a healthy child and a child with Tyler’s medical conditions. The claimants’ attorney acknowledged at the Special Master hearing that those figures would not have been presented at trial and that a more accurate comparison would be between a child with hypoplastic left heart syndrome who was able to undergo the Norwood procedure and a child, like Tyler, who had that condition but had to undergo a heart transplant.

MRHS is self-insured up to $2 million. It has an excess insurance policy over that amount, but that policy is not implicated because this claim was settled against MRHS for

$900,000. MRHS reports that the claim will be paid from the general revenues of the hospital, and that "the hospital has the ability to pay the claims bill without detrimental impact to hospital operations or provision of any service at the hospital."

Dr. Pierre is not an employee of the hospital. She had staff privileges at Monroe Regional Medical Center at the time of Tyler’s delivery. She no longer has staff privileges because she is not board certified, which the hospital now requires.

A special needs trust has been established for Tyler. The trust provides that, consistent with federal law (e.g., 42 USC

§ 1396p(d)(4)(A)), any funds remaining in the trust at Tyler’s death must first be used to reimburse the State for benefits provided to Tyler under the Medicaid program. Then, if any funds are remaining, they will go to Tyler’s parents. Tyler’s grandmother is the trustee of the trust.

Tyler’s father is employed by the State as a forest ranger at the Tomoka State Park in Ormond Beach. Tyler is covered by the Blue Cross and Blue Shield (BC/BS) insurance that his father has through his employment with the State.

Tyler’s mother is not been able to work full-time outside of the home because Tyler cannot to go to daycare as a result of his medical conditions. She works about one day a week at Disney as a server and she also works as a bartender during Bike Week. Tyler’s grandmother watches Tyler when his mother is at work.

the amount of $900,000 and the claimants agreed to voluntarily dismiss with prejudice their claims against the hospital district. MRHS agreed to pay the claimants

$200,000 under the sovereign immunity cap and further agreed to support a claim bill for the remaining $700,000.

On July 25, 2007, the circuit court entered an Order approving the settlement between MRHS and the claimants. An amended Order was entered on November 7, 2007, approving the allocation of the net settlement proceeds between Tyler’s special needs trust (75%) and his parents (25%). The Orders authorized the reservation of $1,838.09 for an outstanding Medicaid lien and the reservation of

$645,401.76 for an outstanding BC/BS lien. (The claimants’ attorney reported at the Special Master hearing that he is working to get the BC/BS lien discharged in full.)

MRHS paid the claimants $200,000 under the sovereign immunity cap. The claimants received $100,000 of that amount, with $75,000 going into Tyler’s special needs trust and $25,000 going to his parents. The other $100,000 went to the claimants’ attorney, with $50,000 going to attorney’s fees and $50,000 being applied to costs. There are still outstanding costs of approximately $135,000, which will be paid from the proceeds of the claim bill.

The claimants voluntarily dismissed their claims against Dr. Pierre and the other physicians. As to Dr. Pierre, the claimants were concerned that if they had gone to trial and lost, then they would have been required to pay Dr. Pierre’s costs and the costs of their attorneys, which would have reduced the amount of the money from the settlement with MRHS that would have gone to Tyler. As explained by Tyler’s father at the hearing, they dismissed the suit against Dr. Pierre because they “were not willing to gamble with Tyler’s money.”

been timely diagnosed, Tyler would have not have suffered the “crash” on December 16 which damaged the right side of his heart and caused brain damage and required him to undergo a heart transplant rather than open heart surgery.

• The amount of the mediated settlement in this case is reasonable in light of the significant life-long medical care that Tyler will need.

failure to order an immediate cardiology consultation when she detected a heart murmur shortly after Tyler’s birth also contributed to the delayed diagnosis of Tyler’s heart condition.

The delayed diagnosis of Tyler’s heart condition led to his “crash” on December 16 because it is more likely than not that Tyler would have been transferred to Shands or another tertiary facility had his condition been diagnosed sooner. Tyler was not a candidate for the second and third stages of the Norwood procedure because of the damage caused by the “crash,” and he also suffered brain damage during the “crash” that caused his developmental delay.

The amount of damages agreed to by MRHS is reasonable, even though Dr. Pierre likely shares some of the responsibility for Tyler’s condition. Indeed, the life care plan prepared for Tyler reflects that the cost of a transplant is between $650,000 and $700,000 and Tyler is expected to require multiple transplants over the course of his life. Moreover, the non-economic damages (e.g., pain and suffering) of Tyler and his parents could very well have exceeded the settlement amount had the case gone to jury trial.

this claim may not exceed 25 percent of the amount awarded [by the bill].”

If this language remains in the bill (and the bill is amended as recommended below to reflect the allocation approved by the circuit court), the claimants will receive a total of

$525,000, with $393,750 going into Tyler’s special needs trust and $131,250 going to his parents. The remaining

$175,000 will go to attorney’s fees, costs, and lobbyist’s fees.

If this language was not in the bill (and the bill is amended as recommended below to reflect the allocation approved by the circuit court), the claimants would receive approximately

$362,000, with approximately $271,500 going into Tyler’s special needs trust and approximately $90,500 going to his parents. The claimants’ attorney would receive a total of approximately $310,000 ($175,000 for attorney’s fees and approximately $135,000 for costs), and the lobbyist would receive $28,000.

Respectfully submitted,

cc: Senator Charlie Dean Representative Marcelo Llorente

Faye Blanton, Secretary of the Senate

T. Kent Wetherell Senate Special Master

House Committee on Constitution and Civil Law Tony DePalma, House Special Master

Counsel of Record

Docket for Case No: 07-004297CB

Orders for Case No: 07-004297CB