SYDNEY L. COOPER,
vs.
Case No. 19-0227MTR
Respondent.
This case came before Administrative Law Judge Darren A. Schwartz of the Division of Administrative Hearings ("DOAH") for final hearing by video teleconference on August 29, 2019, at sites in Tallahassee and Lauderdale Lakes, Florida.
For Respondent: Alexander R. Boler, Esquire
The amount to be paid by Petitioner, Sydney L. Cooper ("Petitioner") to Respondent, Agency for Health Care Administration ("AHCA"), out of the settlement proceeds, as
reimbursement for past Medicaid expenditures pursuant to section 409.910, Florida Statutes.
On January 14, 2019, Petitioner filed a Petition to Determine Medicaid's Lien Amount to Satisfy Claim Against Personal Injury Recovery by the Agency for Health Care Administration. On January 28, 2019, the undersigned entered an Order setting the final hearing for March 20, 2019. On
March 14, 2019, the parties filed a joint motion to continue the final hearing because Petitioner's chief witness,
Charles Moorehead, III, was unavailable due to a scheduling conflict in a circuit court matter also scheduled for March 20, 2019. On March 15, 2019, the undersigned entered an Order granting the motion resetting the final hearing for April 10, 2019. On March 19, 2019, the undersigned entered an Order resetting the final hearing for May 23, 2019.
On May 13, 2019, the parties filed a joint motion to continue the final hearing because of the recent death of Mr. Moorehead and Petitioner's need to secure another expert
witness to testify at the final hearing. On May 21, 2019, the undersigned entered an Order granting the motion resetting the final hearing for August 29, 2019.
The final hearing was held on August 29, 2019, with Petitioner and counsel for the parties appearing on behalf of
their clients. At hearing, Petitioner testified on his own behalf and presented the additional testimony of
Novelette Cooper, Bradley Winston, Esquire, and Diana Santa Maria, Esquire. Petitioner's Exhibits 1 through 6 were received in evidence upon stipulation of the parties. AHCA did not call any witnesses or offer any exhibits into evidence.
A court reporter was present at the hearing, but the parties did not order the transcript. The parties timely filed proposed final orders which were given consideration in the preparation of this Final Order.
The facts set forth in the parties' Joint Pre-hearing Stipulation, filed August 26, 2019, have been incorporated herein. References to the Florida Statutes are to the 2018 version.
On or about August 13, 2016, Petitioner, a Florida resident, suffered significant and debilitating injuries due to a motorcycle accident in Miami-Dade County, Florida. Petitioner was taken to Kendall Regional Medical Center ("Kendall Regional") in Miami immediately after the accident, where he received care and treatment from August 13, 2016, through October 13, 2016. Upon admission to Kendall Regional, Petitioner was diagnosed with an open fracture of the left tibia and fibula, multiple abrasions, altered mental status, pelvic
fracture, pubic ramus fracture, fracture of the lumbar vertebra-
-closed, scalp laceration, traumatic rupture of the bladder, ileum mesenteric tear, open fracture of the first metatarsal bone of the left foot, acute kidney injury, and depression determined by examination. Petitioner spent one month in the intensive care unit under critical care management.
Petitioner had multiple surgeries as a result of the accident. In addition, his left foot is deformed, he is permanently disabled, is disfigured, has difficulty walking, and is unable to work. Petitioner is in frequent pain, is restricted in his daily activities, and requires assistance in his daily activities.
A portion of Petitioner's medical care related to the injury was paid by AHCA through the Medicaid program and Medicaid, through AHCA, provided $177,564.47 in benefits.
Petitioner brought a tort action against multiple defendants ("Defendants") to recover all of his damages.
Because of a $1,000,000 single limit wasting policy on the most culpable defendant, in which $75,000 had already been spent for attorneys' fees, a competing wrongful claim against that defendant's policy limits during the policy period, and thin liability against the other defendants, Petitioner's action against the Defendants was settled for a confidential lump sum of $972,000.
During the pendency of Petitioner's action against the Defendants, AHCA was notified of the action and AHCA asserted a
$177,564.47 Medicaid lien against Petitioner's action and settlement of that action. The Medicaid program through AHCA spent $177,564.47 on behalf of Petitioner, all of which represents expenditures paid for Petitioner's past medical expenses.
Another non-AHCA health care provider, Sunshine Health, provided $17,688.68 in past medical expenses on behalf of Petitioner.
Petitioner's total past medical expenses by the time a demand letter was sent was $2,803,220.
AHCA did not commence a civil action to enforce its rights under section 409.910 or intervene or join in Petitioner's action against the Defendants. AHCA has not filed a motion to set-aside, void, or otherwise dispute Petitioner's settlement.
Application of the formula in section 409.910(11)(f) to Petitioner's $972,000 settlement requires payment to AHCA of the full $177,564.47 Medicaid lien.
At the hearing, Petitioner presented the testimony of attorney Bradley Winston. Mr. Winston represented Petitioner throughout the underlying action against the Defendants.
Mr. Winston has been an attorney since 1988. Over the past 30 years, Mr. Winston has been a plaintiff's trial lawyer in Davey, Florida, with a substantial portion of his practice devoted to personal injury cases, including roadway defect and product liability litigation. He is the owner of Winston Law Firm and AV rated by Martindale-Hubbell. Mr. Winston has been a board-certified civil trial lawyer since 1997. He is a member of numerous trial attorney associations and has held leadership positions in several associations.
As a routine part of his practice, Mr. Winston makes assessments concerning the value of damages suffered by his clients. Mr. Winston was familiar with the circumstances surrounding Petitioner's injury and claims and gave a detailed explanation of them. Mr. Winston reviewed Petitioner's life care plan and vocational rehabilitation report, which details Petitioner's future medical needs and lost future earnings.
The economist placed the present value of Petitioner's future medical expenses at $2,551,539.94. Mr. Winston further testified that Petitioner's lost future earnings are $974,958 and his past lost wages are $7,127. According to Mr. Winston, the past medical expenses of $2,803,220 would also be added to arrive at the full value of Petitioner's economic damages in excess of $6,000,000. Mr. Winston testified that in addition to economic damages, a jury would also be asked to assign a value
to past and future noneconomic damages (i.e., pain and suffering and loss of enjoyment of life).
Mr. Winston persuasively and credibly testified that the total value of all of Petitioner's damages would be in the range of $12,000,000 to $13,000,000, and that valuing Petitioner's damages at $10,000,000 is a very conservative and low valuation of his damages.
Mr. Winston persuasively and credibly testified that the $972,000 settlement did not fully compensate Petitioner for the full value of his damages. Mr. Winston testified that based on a conservative value of all of Petitioner's damages of
$10,000,000, the $972,000 settlement represents a recovery of
9.72 percent of the full value of his damages.
Mr. Winston further testified that because Petitioner only recovered in the settlement 9.72 percent of the full value of his damages, he only recovered 9.72 percent of AHCA's
$177,564.47 Medicaid lien, or $17,259.26. Mr. Winston testified that it would be reasonable to allocate $18,987.61 (9.72 percent of the sum of AHCA's $177,564.47 Medicaid Lien and Sunshine Health's $17,688.68 Medicaid lien)(9.72 percent of $195,253.15) of the settlement to past medical expenses paid by AHCA through the Medicaid program.1/
Mr. Winston's testimony regarding the reasonableness of the allocation is consistent with the allocation set forth in
the confidential Settlement Agreement and Global General Release entered into between Petitioner, his wife, and the private defendants in October 2018. As set forth on pages six and seven of that document:
SYDNEY COOPER is recovering in this settlement 9.72% of their claim for past medical expenses. SYDNEY and NOVELETTE COOPER'S past medical special damages which they are currently responsible and could claim as damages in his tort case, total
$195,253.15 as of 8/24/2018. Hence, the Nine Hundred and Seventy-Two Thousand Dollar ($972,000.00) combined global settlement of SYDNEY and NOVELETTE COOPER's claims results in an allocation of $18,987.61 toward his claim for past medical expenses. This amount ($18,987.61) represents 9.72% of SYDNEY and NOVELETTE COOPER's past medical special damages. Therefore, $18,987.61 of this combined global settlement is allocated to past medical expenses, and the remainder of the settlement is allocated to the satisfaction of claims other than past medical expenses.
The above allocation for money for past medical damages is a reasonable and proportionate allocation based upon the injuries suffered, damages sustained, amount of the combined global settlement, and facts of this case. While this allocation to past medical expenses is not binding on third- parties, including but not limited to the Defendants/Releasees herein, it is intended that this allocation be prima facie proof of the portion of this settlement allocated to SYDNEY COOPER'S claim for past medical expenses.
A separate Addendum A to Release of All Claims as to a public defendant was executed by Petitioner and his wife on October 8, 2018, which similarly provided:
SYDNEY COOPER is recovering in this settlement 9.72% of their claim for past medical expenses. SYDNEY and NOVELETTE COOPER'S past medical special damages which they are currently responsible and could claim as damages in his tort case, total
$195,253.15 as of 8/24/2018. Hence, the Nine Hundred and Seventy-Two Thousand Dollar ($972,000.00) combined global settlement of SYDNEY and NOVELETTE COOPER's claims results in an allocation of $18,987.61 toward his claim for past medical expenses. This amount ($18,987.61) represents 9.72% of SYDNEY and NOVELETTE COOPER's past medical special damages. Therefore, it is agreed that $18,987.61 of this combined global settlement is allocated to past medical expenses, and the remainder of the settlement is allocated to the satisfaction of claims other than past medical expenses.
The above allocation for money for past medical damages is a reasonable and proportionate allocation based upon the injuries suffered, damages sustained, amount of the combined global settlement, and facts of this case. While this allocation to past medical expenses is not binding on third- parties, it is intended that this allocation be prima facie proof of the portion of this settlement allocated to SYDNEY COOPER'S claim for past medical expenses.
AHCA was not a party to the settlement agreements and releases entered into between Petitioner, his wife, and the Defendants, and AHCA is not bound by the terms of the settlement agreements and releases.
Petitioner also presented the expert testimony of attorney Diana Santa Maria. Without objection, Ms. Santa Maria was accepted as an expert in the valuation of damages suffered by injured parties.
Ms. Santa Maria has been an attorney since 1985.
Since 1985, Ms. Santa Maria has been a plaintiff's trial lawyer, with a substantial portion of her practice devoted to personal injury cases. She is the managing attorney of the law firm of Diana Santa Maria, P.A., in Davey, Florida. Ms. Santa Maria is AV rated by Martindale-Hubbell, a certified Florida Supreme Court mediator, and former member of the Florida Supreme Court Judicial Nominating Commission. She is on the Florida Bar Board of Governors for the Seventeenth Judicial Circuit. She is a member of numerous trial attorney associations and has held leadership positions in several associations.
As a routine part of her practice, Ms. Santa Maria makes assessments concerning the value of damages suffered by her clients, which includes damages similar to those involving Petitioner.
Ms. Santa Maria reviewed the life care plan and vocational rehabilitation report, photographs, Petitioner's demand, closing statement, and the United States Supreme Court's decision in Arkansas Department of Health and Human Services v.
Ahlborn, 547 U.S. 268 (2006).
Ms. Santa Maria testified, consistent with the testimony of Mr. Winston, that the total value of Petitioner's economic damages exceeds $6,000,000. Ms. Santa Maria further testified that Petitioner's claim for noneconomic damages would be approximately $6,000,000 ($1,500,000 for past pain and suffering and $4,500,000 for future pain and suffering).
Ms. Santa Maria persuasively and credibly testified that the total value of all of Petitioner's damages would be in excess of $12,000,000, and that valuing Petitioner's damages at
$10,000,000 is a very conservative and low valuation of his damages.
Ms. Santa Maria testified that Mr. Winston's method of allocating past medical expenses in this case is reasonable and consistent with the Supreme Court's opinion in Ahlborn.
AHCA did not call any witnesses, present any evidence as to the value of damages, or propose a different valuation of damages.
Mr. Winston's and Ms. Santa Maria's testimony regarding the total value of Petitioner's damages was credible, unrebutted, and unimpeached. However, AHCA successfully contested the methodology used to calculate the allocation to past medical expenses based on Mr. Winston's and Ms. Santa Maria's failure to include the total past medical expenses of
$2,803,220 in applying the ratio.
Accordingly, Petitioner proved by a preponderance of the evidence that 9.72 percent is the appropriate pro rata share of Petitioner's past medical expenses to be applied to determine the amount recoverable by AHCA in satisfaction of its Medicaid lien.
However, total past medical expenses is the sum of AHCA's lien in the amount of $177,564.47, Sunshine Health's lien in the amount of $17,688.68, and other past medical expenses, which altogether total $2,803,220.
Accordingly, following the methodology of Mr. Winston and Ms. Santa Maria and applying the $10,000,000 valuation to the proper total amount of past medical expenses of $2,803,220, the settlement portion properly allocable to Petitioner's past medical expenses to satisfy AHCA's lien is the full amount of AHCA's lien in the amount of $177,564.47 ($2,803,220 x 9.72 percent= $272,472.98).
CONCLUSIONS OF LAW
DOAH has jurisdiction over the parties and subject matter of this case pursuant to sections 120.569, 120.57(1), and 409.910(17)(b), Florida Statutes.
Medicaid is a joint federal-state program that allows states to provide medical services to residents who cannot afford treatment. As a condition of receipt of federal Medicaid funds, states are required to seek reimbursement for medical
expenses from Medicaid recipients who recover from legally liable third parties. Giraldo v. Ag. for Health Care Admin., 248 So. 3d 53, 55 (Fla. 2018); Eady v. State, No. 1D18-1852,
2019 Fla. App. LEXIS 13685, at *10 (Fla. 1st DCA September 12, 2019).
AHCA is the state agency authorized to administer Florida's Medicaid program. AHCA is subrogated to any rights a Medicaid recipient may have from any third party to recover the full amount of the past medical expenses paid to the Medicaid recipient. §§ 409.902, 409.910(6), Fla. Stat.
Section 409.910(11)(f) provides a statutory formula that AHCA uses in determining the Medicaid lien amount. The parties agree that application of the statutory formula results in AHCA recovering the full amount of its $177,564.47 lien.
Pursuant to section 409.910(17)(b), a Medicaid recipient may contest the amount payable under the statutory formula in an administrative proceeding at DOAH. In order to prevail in such an action, the Medicaid recipient must prove, by a preponderance of the evidence, that a lesser portion of the total recovery should be allocated as reimbursement for past medical expenses than the amount calculated pursuant to the statutory formula. Giraldo, 248 So. 3d at 54; Eady, 2019 Fla. App. LEXIS 13685, at *14. Although a factfinder may reject uncontradicted testimony, there must be a reasonable basis in
the record for doing so. Giraldo, 248 So. 3d at 56; Eady, 2019
Fla. App. LEXIS 13685, at *23.
As detailed above, the unrefuted, uncontradicted, and unimpeached testimony of Ms. Santa Maria demonstrates that the
$972,000 settlement represents only 9.72 percent of Petitioner's claim valued conservatively at $10,000,000.
However, the testimony presented by Petitioner at hearing demonstrates that Petitioner's past medical expenses were $2,803,220. The full amount of all past medical expenses (which in this case totals $2,803,220) must then be considered, not just the past medical expenses representing the amount of AHCA's and Sunshine Health's liens. Smith v. Ag. for Health
Care Admin., 24 So. 3d 590, 591 (Fla. 5th DCA 2009); Garcia v. Ag. for Health Care Admin., Case No. 19-2013MTR, 2019 Fla. Div.
Admin. Hear. LEXIS 542, at *9 (Fla. DOAH August 27, 2019) (concluding that full amount of past medical expenses of
$462,480.81, not just the past medical expenses representing the amount of AHCA's lien, must be included in calculating total past medical expenses); Fallon v. Ag. for Health Care Admin.,
Case No. 19-1923MTR, 2019 Fla. Div. Admin. Hear. LEXIS 420 (Fla. DOAH July 26, 2019)(concluding that past medical expenses of
$592,554.18 provided by Optum must be included in calculating total past medical expenses, even though this amount was reduced through negotiation to a lien in the amount of $22,220.78);
Ramella v. Ag. for Health Care Admin., Case No. 17-5454MTR,
2018 Fla. Div. Admin. Hear. LEXIS 92, at *20 (Fla. DOAH Feb. 15, 2018)(rejecting Petitioners' contention that non-AHCA lien should not be considered in total past medical expenses for the purpose of applying ratio); Osmond v. Ag. for Health Care
Admin., Case No. 16-3408MTR, 2016 Fla. Div. Admin. Hear. LEXIS 454, at *16 (Fla. DOAH Sept. 8, 2016)(full amount of medical expenses is the amount to be applied in calculating that portion of the settlement which is available for reimbursement of AHCA's Medicaid lien).
In Eady, the First District recently held that the Medicaid recipient presented competent, substantial, and uncontradicted evidence establishing $11,838.01 as the settlement portion properly allocated to past medical expenses. The court further stated: "Because there was no reasonable basis in the record to reject that evidence, the ALJ erred as a matter of law in concluding that Appellant failed to prove his case by a preponderance of the evidence." Eady, 2019 Fla. App. LEXIS, at *23. In Eady, however, the Medicaid recipient's
counsel who testified at hearing "acknowledged that Appellant's past medical expenses approximated $177,000," which approximated the amount of AHCA's $177,747.91 Medicaid lien. Id. at *3. No evidence of other past medical expenses was presented.
In the instant case, the testimony presented by Petitioner at hearing established that Petitioner's past medical expenses were $2,803,220.00, well in excess of AHCA's lien. To accept Petitioner's position that the ratio should apply only to the sum of the AHCA and Sunshine Health liens would ignore the testimony presented at hearing by Petitioner. Petitioner utilized the total past medical expenses of $2,803,220 in arriving at a total value of damages in excess of $10,000,000. Failing to include the total past medical expenses of $2,803,220 in applying the ratio renders Petitioner's methodology and corresponding valuation meaningless.
Accordingly, the application of the 9.72 percent ratio to Petitioners' total past medical expenses of $2,803,220.00 results in $272,472.98, which is more than the amount of AHCA's lien. Accordingly, Petitioner is not entitled to a reduction of AHCA's lien.
Based on the foregoing Findings of Fact and Conclusions of Law, it is ORDERED that AHCA is entitled to recover the full amount of its Medicaid lien in the amount of $177,564.47.
DONE AND ORDERED this 26th day of September, 2019, in Tallahassee, Leon County, Florida.
DARREN A. SCHWARTZ
Filed with the Clerk of the Division of Administrative Hearings this 26th day of September, 2019.
1/ The testimony and documentary evidence in this case appear to contain a minor mathematical error—9.72 percent of $195,253.15 is actually $18,978.59, not $18,987.61. The minor discrepancy has no bearing on this Order as it is determined that the actual amount of past medical expenses is $2,803,220.
Alexander R. Boler, Esquire
Richard J. Shoop, Agency Clerk
Mary C. Mayhew, Secretary
Sheena L. Grantham, Esquire
A party who is adversely affected by this Final Order is entitled to judicial review pursuant to section 120.68, Florida Statutes. Review proceedings are governed by the Florida Rules of Appellate Procedure. Such proceedings are commenced by filing the original notice of administrative appeal with the agency clerk of the Division of Administrative Hearings within
30 days of rendition of the order to be reviewed, and a copy of the notice, accompanied by any filing fees prescribed by law, with the clerk of the District Court of Appeal in the appellate district where the agency maintains its headquarters or where a party resides or as otherwise provided by law.
