December 27, 2007

Re: SB 38 (2008) – Senator Ted Deutch

HB 483 (2008) – Representative Kelly Skidmore Relief of Shakima Brown and Janaria Miller (daughter)

SPECIAL MASTER’S FINAL REPORT

THIS IS AN UNOPPOSED CLAIM FOR $300,000 BASED ON A CONSENT FINAL JUDGMENT IN FAVOR OF CLAIMANTS SHAKIMA BROWN AND HER DAUGHTER, JANARIA MILLER, FOR THE PERMANENT INJURIES SUFFERED BY JANARIA AT MEMORIAL REGIONAL HOSPITAL, A FACILITY OF THE SOUTH BROWARD HOSPITAL DISTRICT.

nurse with responsibility for checking the heart rate monitor, Nellie Miller, turned off the alarm. The monitor continued to only intermittently record a heart rate for the next hour and a half. Although Ms. Miller made a written notation of "poor tracing" at 1:00 a.m. and again at 2:00 a.m., she took no action to make certain that the fetus was not in distress.

At 2:24 a.m., the monitor began to record a heart rate below safe levels or no heart rate. Despite the negative indications, Ms. Miller did nothing. There is no notation from her to show that she even checked the heart rate monitor during this critical period of time. Ms. Miller did not intervene to resuscitate the fetus nor did she contact the doctor. Finally, at about 3:15 a.m., she called the doctor. He immediately ordered a caesarian section and Janaria was delivered about an hour later.

A fetus obtains oxygen from the blood supplied through the umbilical cord. A low fetal heart rate threatens asphyxiation. A test of Janaria's blood following her birth showed metabolic acidosis, which is consistent with asphyxia. Janaria suffered irreversible brain damage as a result of lack of sufficient oxygen to her brain. She has cerebral palsy, partial paralysis, and cognitive impairment. Now 4 years old, Janaria has never spoken. She has weakness on her left side and 60 percent deafness in her left ear. She has had delayed cognitive development throughout her life. Although her life expectancy is normal, Janaria is unlikely to ever attend a regular school or hold a regular job.

The Medicaid lien that resulted from Janaria's medical costs has been satisfied.

Janaria receives Medicaid payments of $626 per month, which will continue until she is 18 years old. She also receives Medicare payments of $623 each month, which she should be eligible for the rest of her life.

The Claimants' attorney investigated and made tentative arrangements for using the proposed claim bill proceeds (after fees are deducted) to fund an annuity for the benefit of Janaria. Under one option, the annuity could pay Janaria

$1,981.18 each month for her entire life and terminate upon her death. Under a second option, the annuity would pay Janaria $1,939.59 each month for her entire life and, if she

died before the 40th year of the annuity, the monthly payment would go to her estate until the end of the 40th year. Under either option, the payments would not begin until Janaria's 18th birthday.

There are many reasons for entering into a settlement agreement other than the perceived merits of the claim and, therefore, I am not precluded from reviewing the terms of the parties' settlement agreement in this matter and determining whether they are reasonable under the totality of the circumstances. In this case, the settlement amount is far less than the usual jury verdict for injuries of this nature. Had this case involved a private hospital, the settlement amount would probably have been much larger. Therefore, I believe it would be fair and reasonable for the Senate to pay an award of $550,000 (or 50 percent more than the agreed settlement amount).

Respectfully submitted,

cc: Senator Ted Deutch Representative Kelly Skidmore

Faye Blanton, Secretary of the Senate

Bram D. E. Canter Senate Special Master

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

Counsel of Record

Docket for Case No: 07-004285CB

Orders for Case No: 07-004285CB