STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CLIFFORD T. COLLINS AS PERSONAL REPRESENTATIVE OF THE ESTATE OF BREANA LAUREN COLLINS, DECEASED, AND ON BEHALF OF THE SURVIVING PARENTS, CLIFFORD T. COLLINS AND GWEN O. COLLINS,

Petitioner,

vs.

AGENCY FOR HEALTH CARE ADMINISTRATION,

Respondent.

/

Case No. 20-2312MTR

FINAL ORDER

Pursuant to notice, a final hearing was conducted in this case on October 19, 2020, via Zoom teleconference, before Lawrence P. Stevenson, a duly-designated Administrative Law Judge (“ALJ”) of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Alan J. Landerman, Esquire

Melvin B. Wright, Esquire Colling, Gilbert, Wright & Carter

801 North Orange Avenue, Suite 830

Orlando, Florida 32801

For Respondent: Alexander R. Boler, Esquire

2073 Summit Lake Drive, Suite 330

Tallahassee, Florida 32317

STATEMENT OF THE ISSUE

The issue in this proceeding is how much of Petitioner’s settlement proceeds should be paid to Respondent, Agency for Health Care Administration (“AHCA”), to satisfy AHCA's Medicaid lien under section 409.910, Florida Statutes.

PRELIMINARY STATEMENT

On May 19, 2020, Petitioner, Clifford T. Collins, as personal representative of the estate of Breana Lauren Collins, deceased, and on behalf of the surviving parents, Clifford T. Collins and Gwen O. Collins, filed with the Division of Administrative Hearings a pleading styled “Petition to Determine Medicaid’s Lien Amount to Satisfy Claim Against Personal Injury Recovery/Wrongful Death Recovery by the Agency for Health Care Administration” (the “Petition”). The Petition challenged AHCA’s lien for recovery of medical expenses paid by Medicaid in the amount of $44,836.83.1 Petitioner asserted that established case law provides for the reimbursement of a lesser amount of the total third-party settlement proceeds than the amount calculated by AHCA pursuant to the formula established in section 409.910(11)(f).

The case was scheduled for hearing on July 13, 2020. One continuance was granted, based on the parties’ concerns about Covid exposure in the courtroom environment. The hearing was rescheduled for October 19, 2020, via Zoom teleconference, on which date it was convened and completed. Prior to the hearing, the parties submitted a Joint Pre-hearing Stipulation, which has been accepted and incorporated into the Findings of Fact in this Final Order.

1 The Joint Pre-hearing Stipulation contained a scrivener’s error stating the lien amount as

$44,863.83. At the outset of the final hearing, the parties stipulated that the correct amount of the lien is $44,836.83.

At the hearing, Petitioner, Clifford Collins, testified on his own behalf and presented the testimony of two attorneys, J. Scott Murphy and Alan J. Landerman, both of whom were accepted without objection as experts in the evaluation of damages for medical malpractice and wrongful death cases. The deposition testimony of Gwen Collins was admitted as Petitioner’s Exhibit 3. Petitioner’s Exhibits 1 through 11 were accepted into evidence. AHCA presented no witnesses and offered no exhibits.

The one-volume Transcript of the hearing was filed at the Division of Administrative Hearings on November 12, 2020. The parties timely filed their Proposed Final Orders, Petitioner on November 19, 2020, and Respondent on November 23, 2020.

All references to the Florida Statutes are to the 2019 edition, unless otherwise noted.

FINDINGS OF FACT

Based on the evidence adduced at hearing, and the record as a whole, the following Findings of Fact are made:

1. Breana Collins was born on January 31, 1985, with a severe chromosomal growth deficiency known as 3P2 Trisomy. She was unable to speak or care for herself and could walk only with assistance. Breana lived at home with her parents, Clifford and Gwen Collins, until she was 17 years old, at which time she was placed in Howell Branch Court, a group home located in Winter Park near the family’s home.

2. On July 11, 2017, Breana underwent an esophagogastroduodenoscopy, or “EGD” procedure.

3. On July 11, 2017, while undergoing the EGD procedure, Breana Collins was noted to be unarousable and unresponsive.

   
   

4. Breana was transported by emergency medical services to Florida Hospital Altamonte. She was experiencing severe distress and was unresponsive. She was diagnosed with acute respiratory failure.

5. On August 24, 2017, Breana died. Her cause of death was noted as acute cardiorespiratory arrest.

6. Petitioner, Clifford Collins, brought the following claims: a medical malpractice tort claim; a claim for abuse, neglect, and exploitation under section 415.1111, Florida Statutes, commonly called the “Vulnerable Adult” statute; and a claim under section 393.13, Florida Statutes, the “Bill of Rights of Persons with Developmental Disabilities.” The claims were brought against several healthcare providers, seeking wrongful death damages for Breana Collins’s parents for non-economic mental pain and suffering for the loss of their daughter, and survival damages for Breana’s loss, injury, and damage, including, but not limited to, acute hypoxic respiratory failure, right lower lobe pneumonia, aspiration pneumonia, urinary tract infection, sepsis with shock, and leukocytosis.

7. In 2020, Petitioner, Clifford Collins, settled the tort action for a limited confidential amount due to significant liability and causation challenges with the claims.

8. AHCA was properly notified of the Collins’s lawsuit against the defendants and provided notice that it had paid benefits related to the injuries from the incident in the amount of $44,836.83.

9. AHCA paid benefits in the amount of $44,836.83 for the care of Breana related to the injuries allegedly caused by third parties.

10. The parties stipulated that the application of the formula provided by section 409.910(11)(f), to the confidential settlement amount, would require payment to AHCA in the amount of $44,836.83 from the settlement proceeds.

11. J. Scott Murphy is an attorney, who is Florida Board Certified in Civil Trial Law. Mr. Murphy is also certified by the American Board of Professional Liability Attorneys and the National Board of Trial Advocates,

    
    

    and is a member of the American Board of Trial Advocates. Mr. Murphy specializes in wrongful death and catastrophic injury cases, primarily in medical malpractice. He has over 35 years’ experience in this area of practice. As part of his ongoing practice, Mr. Murphy routinely evaluates the damages suffered by injured persons, including wrongful death medical malpractice cases involving adult children as defined by section 768.18(2), Florida Statutes, i.e., persons over the age of 25.

12. In formulating his opinions, Mr. Murphy reviewed the deposition of Mr. Collins, as well as the amended complaint and the motions to dismiss filed by the defendants in the underlying case. Mr. Murphy also reviewed the pre-suit expert affidavits and jury verdict reports related to damage awards and settlements involving the death of an adult child.

13. Mr. Murphy testified that in medical malpractice cases brought under section 768.21, emotional loss, pain, and suffering for the parents’ loss of an adult child is specifically disallowed.

14. Mr. Murphy testified as to the substantial legal obstacles to pursuing the underlying personal injury/medical malpractice claim brought by Clifford and Gwen Collins for the death of Breana. Mr. Murphy stated that it would be extremely difficult to prove the causation element because no autopsy was performed to establish definitively Breana’s cause of death.

15. Mr. Murphy opined that Breana’s survival claim for her pain and suffering over the month and a half between the EGD procedure and her death would be de minimus because of her congenital disability.

16. Mr. Murphy further testified as to the extreme difficulties in pursuing the two statutory claims under sections 415.1111 and 393.13. He testified that similar claims under section 415.1111 have been specifically rejected by the First and Third District Courts of Appeal, both of which concluded that the medical malpractice statutes provide an exclusive remedy that cannot be circumvented by resorting to the Vulnerable Adult statute.

    
    

17. Mr. Murphy testified that, while the appellate courts have yet to address the question of whether a claim under section 393.13 could be used to avoid the limitations of the medical malpractice statute, he would expect the result to be the same as that reached by the courts on section 415.1111.

18. Mr. Murphy testified that his review of the motions to dismiss filed by the defendants in the underlying action led him to conclude that the odds of success were very low on the claims under section 415.1111 and 393.13.

19. Mr. Murphy testified that Breana’s EGD procedure was performed by a gastroenterologist and monitored by a certified registered nurse anesthetist, both of whom met the statutory definition of “health care providers.” Because the claims would likely have been construed as “medical malpractice claims,” Clifford and Gwen Collins would have been limited to the recovery of medical expenses incurred as a result of the negligence of the defendants, plus Breana’s funeral expenses. The significant damages associated with the parents’ pain and suffering and emotional loss would have likely been barred by the limitations imposed under section 768.21.

20. Mr. Murphy’s unrefuted testimony was that the total value of the parents’ claims would be at least $1 million by a very conservative estimate. The Collins family was very close knit and the parents remained intimately involved in Breana’s life for as long as she lived. Based on the Collins’s depositions and family photographs that were admitted into evidence,

    Mr. Murphy found it “glaringly apparent” that the loss of their daughter was devastating to Clifford and Gwen Collins.

21. Mr. Collins’s testimony at the hearing confirmed Mr. Murphy’s opinion. Mr. Collins testified that his health has suffered, and he has lost substantial weight since Breana’s death. Mr. Collins appeared reticent to discuss his feelings, but he did state, “It’s the worst thing that can happen to a parent. I mean, we knew her limitations, but she was – you know, she was a joy in our lives and it’s emotional.”

    
    

22. In her deposition testimony, Gwen Collins stated, “I know I can’t ask you questions, but if you were a parent and you truly are involved and love your child, you’re impacted daily by that loss and you never get over it.” Ms. Collins testified that she now has high blood pressure that she did not have before Breana’s death. She is now pre-diabetic, which she also attributes to the stress of losing a child.

23. Mr. Murphy testified that the amount of the settlement in this case was $190,000, or 19 percent of the conservative valuation of $1,000,000.00. Using a pro rata methodology, Mr. Murphy concluded that the appropriate share of Breana’s past medical expenses to be applied to satisfy AHCA’s medical lien should be 19 percent of the $44,836.83 total, or $8,518.99.

    Mr. Murphy’s testimony was uncontradicted and persuasive on this point.

24. Petitioner’s counsel, Alan J. Landerman, testified as an expert in the evaluation of damages for medical malpractice and wrongful death cases, without objection from AHCA. Mr. Landerman is an AV-rated civil trial attorney with over 35 years of experience, primarily as counsel in catastrophic injury cases, medical malpractice, and product liability cases. Mr. Landerman has tried multiple medical malpractice cases and product liability cases, and has achieved multiple verdicts in excess of $1 million in those cases.

25. A routine part of Mr. Landerman’s practice is to make assessments concerning the value of damages, including damages in wrongful death cases under section 768.21. Mr. Landerman concurred with Mr. Murphy’s testimony regarding the strict monetary limitations associated with pursuing medical malpractice wrongful death cases on behalf of parents for the death of an adult child. Mr. Landerman testified that he keeps abreast of settlement and damage awards through the Florida Jury Verdict Reporters, and as a member of many plaintiff attorneys’ organizations, including the American Justice Association and Central Florida Trial Lawyers.

    
    

26. Mr. Landerman was the primary trial attorney for Clifford and Gwen Collins in the underlying civil lawsuit. Mr. Landerman testified that after the defendants filed motions to dismiss, he initiated settlement discussions with defense counsel. Mr. Landerman testified that he accepted a compromise settlement on behalf of his clients, in light of the substantial factual and legal impediments previously described by Mr. Murphy.

27. Mr. Landerman testified that in evaluating the underlying wrongful death action, he elected to plead “novel theories” under sections 415.1111 and

    393.13 in order to evade the limitations imposed by the wrongful death statute on medical malpractice cases. Mr. Landerman testified that, unfortunately, the recent case styled Specialty Hospital-Gainesville, Inc. v. Barth, 277 So. 3d 201 (Fla. 1st DCA 2019), held that the wrongful death statute is the exclusive remedy for medical malpractice, and that chapter 415 cannot serve as a vehicle for a medical malpractice claim.

28. As to the claim under section 393.13, Mr. Landerman testified that this was a case of first impression. While he concurred with Mr. Murphy that the result would likely be the same as that in Specialty Hospital,

    Mr. Landerman also believed that uncertainty about the outcome in a jury trial was a driving factor in the defendants’ willingness to settle the case.

29. Mr. Landerman agreed with Mr. Murphy that a very conservative total value for the case was $1 million. Mr. Landerman testified that he conducted jury verdict research that revealed the case of the death of a

    30-year-old, in a non-medical malpractice setting, in which the parents were awarded in excess of $10 million in non-economic damages. Mr. Landerman further agreed with Mr. Murphy that if one accepts the $1 million figure as the full value of the claim, then the settlement amount equaled 19 percent of the value of the parents’ damages. Applying a pro rata analysis,

    Mr. Landerman testified that 19 percent of $44,836.83 yields $8,518.99, which is the amount that should be allocated to the past medical expenses claim of AHCA.

    
    

30. AHCA did not offer any witnesses or documentary evidence to question the credentials or opinions of either Mr. Murphy or Mr. Landerman. AHCA did not offer testimony or documentary evidence to rebut the testimony of Mr. Murphy and Mr. Landerman as to valuation or the pro rata reduction ratio. AHCA did not offer alternative opinions on the damage valuation or allocation method suggested by either Mr. Murphy or

    Mr. Landerman, both of whom testified knowledgably and credibly as experienced practitioners.

31. The testimony of Petitioner's two experts regarding the total value of damages was credible, unimpeached, and unrebutted. Petitioner proved that the settlement of $190,000 does not begin to fully compensate Clifford and Gwen Collins for the full value of their damages. Petitioner’s recovery represents only 19 percent of a conservative valuation of the Collins’s claims.

32. AHCA argues with some force that this case is distinguishable from other Medicaid reimbursement cases in that here the question of the value of the Collins’s damages versus the settlement amount is not merely a matter of the uncertainty of pressing forward with the underlying litigation. The parents in this case faced a statutory barrier to recovering non-economic damages for the wrongful death of their adult daughter, which leads AHCA to argue that the $1 million valuation of their damages is unrealistically high and that this case is not suitable for application of the pro rata reduction methodology.

33. ACHA’s argument is undercut by the settlement itself, which was more than a nominal amount even if only a fraction of the total damages estimated by Petitioner’s experts. The fact that the defendants were willing to pay over $190,000 to settle the lawsuit indicates a degree of uncertainty as to the outcome of the claim brought under section 393.13 that is sufficient to bring this case comfortably within the ambit of the pro rata reduction analysis.

    
    

34. The undersigned finds that Petitioner has proven by a preponderance of the evidence that 19 percent (the ratio that $190,000 bears to $1 million) is the appropriate pro rata share of Breana Collins’s medical expenses to be applied to determine the amount recoverable by AHCA in satisfaction of its Medicaid lien.

35. ACHA’s lien for past medical expenses is $44,836.83. Applying the

    19 percent pro rata ratio to this total yields $8,518.99, which is the portion of the settlement representing reimbursement for past medical expenses and the amount recoverable by AHCA for its lien.

    
    

    CONCLUSIONS OF LAW

36. The Division of Administrative Hearings has jurisdiction of the subject matter of and the parties to this proceeding. §§ 120.569, 120.57(1), and 409.910(17), Fla. Stat.

37. AHCA is the agency authorized to administer Florida’s Medicaid program. § 409.902, Fla. Stat.

38. As a condition for receipt of federal Medicaid funds, states are required to seek reimbursement for medical expenses from Medicaid recipients who later recover from legally liable third parties.

39. By accepting Medicaid benefits, Medicaid recipients automatically subrogate their rights to any third-party benefits for the full amount of Medicaid assistance provided by Medicaid, and automatically assign to AHCA the right, title, and interest to those benefits, other than those excluded by federal law. Section 409.910(6)(c) creates an automatic lien on any such judgment or settlement with a third party for the full amount of medical expenses paid to the Medicaid recipient. However, AHCA's recovery is limited to those proceeds allocable to past medical expenses. See Giraldo v. Ag. for Health Care Admin, 248 So. 3d 53 (Fla. 2018)(under federal law AHCA may only reach the past medical expenses portion of a Medicaid recipient's tort recovery to satisfy its Medicaid lien).

    
    

40. Section 409.910(11)(f) limits AHCA's recovery for a Medicaid lien to the lesser of its full lien or one-half of the total award, after deducting attorney's fees of 25 percent of the recovery and all taxable costs, not to exceed the total amount actually paid by Medicaid on the recipient's behalf. In this case, application of the formula would result in AHCA recovering the full amount of the lien.

41. However, section 409.910(17)(f) provides a method by which a Medicaid recipient may contest the amount designated as recovered Medicaid expenses payable under section 409.910(11)(f). To successfully challenge the amount payable to AHCA, the 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 by AHCA pursuant to the formula. The parties stipulated that the burden of proof for a Medicaid recipient to successfully contest the amount payable to AHCA in a section 409.910(17)(b) proceeding is a preponderance of the evidence. However, even if the clear and convincing evidentiary standard was applied, as in Gallardo v. Dudek, 763 F.3d 1167, 1181 (11th Cir. 2020), Petitioner met that more stringent standard of proof

42. The pro rata approach has been accepted in Florida cases where the Medicaid recipient has presented competent, substantial evidence to support the allocation of a smaller portion of a settlement for past medical expenses than the portion claimed by AHCA. Ag. for Health Care Admin v. Rodriguez, 294 So. 3d 441 (Fla. 1st DCA 2020); Bryan vs. Ag. for Health Care Admin, 291 So. 3d 1033 (Fla. 1st DCA 2020); Mojica vs. Ag. for Health Care Admin, 285 So. 3d 393 (Fla. 1st DCA 2019); Eady vs. State, 279 So. 3d 1249 (Fla. 1st DCA 2019).

43. Where uncontradicted testimony is presented by the recipient, the factfinder must have a “reasonable basis in the record” to reject it. Giraldo, 248 So. 3d at 56 (quoting Wald v. Grainger, 64 So. 3d 1201, 1205-06 (Fla.

    
    

    2011)). In the instant case, AHCA has provided no reasonable basis to reject the testimony of Mr. Murphy and Mr. Landerman.

44. Petitioner proved by a preponderance of the evidence that the settlement proceeds of $190,000 represent only 19 percent of Petitioner’s claim valued at $1 million, which both testifying attorneys reasonably believed was a very conservative valuation. Therefore, it is concluded that AHCA's full Medicaid lien amount should be reduced by the percentage that Petitioner's recovery represents of the total value of Petitioner's claim.

45. The application of the 19 percent ratio to the Medicaid lien amount of

$44,836.83 results in $8,518.99. This amount represents that share of the settlement proceeds fairly and proportionately attributable to expenditures that were actually paid by AHCA for Petitioner's past medical expenses.

ORDER

Based on the foregoing Findings of Fact and Conclusions of Law, it is hereby ORDERED that:

The Agency for Health Care Administration is entitled to $8,518.99 in satisfaction of its Medicaid lien.

DONE AND ORDERED this 9th day of December, 2020, in Tallahassee, Leon County, Florida.

S

LAWRENCE P. STEVENSON

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675

Fax Filing (850) 921-6847 www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings this 9th day of December, 2020.

COPIES FURNISHED:

Alexander R. Boler, Esquire Suite 330

2073 Summit Lake Drive Tallahassee, Florida 32317 (eServed)

Shena Grantham, Esquire

Agency for Health Care Administration Building 3, Room 3407B

2727 Mahan Drive

Tallahassee, Florida 32308 (eServed)

Alan J. Landerman, Esquire Colling, Gilbert, Wright & Carter Suite 830

801 North Orange Avenue Orlando, Florida 32801 (eServed)

Melvin B. Wright, Esquire Colling, Gilbert, Wright & Carter Suite 830

801 North Orange Avenue Orlando, Florida 32801

Richard J. Shoop, Agency Clerk

Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 3

Tallahassee, Florida 32308 (eServed)

Shevaun L. Harris, Acting Secretary Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 1

Tallahassee, Florida 32308 (eServed)

Bill Roberts, Acting General Counsel Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 3

Tallahassee, Florida 32308 (eServed)

Thomas M. Hoeler, Esquire

Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 3

Tallahassee, Florida 32308 (eServed)

NOTICE OF RIGHT TO JUDICIAL REVIEW

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.

Docket for Case No: 20-002312MTR

Orders for Case No: 20-002312MTR