Findings Of Fact The Department of Health and Rehabilitative Services (Department or HRS) drafted and published an Invitation to Bid (ITB) DCPHU-93-02, inviting bids for laboratory services for the ten medical clinics located in Duval County, Florida. ITB DCPHU-93-02 provided that prospective bidders could submit written questions prior to the bidders' conference and make verbal inquiries at the bidders' conference regarding the terms of the ITB. The ITB provided that "no change, modifications or additions to the bids submitted will be accepted by the Department after the deadline for submitting bids has passed." The ITB provided that any prospective bidder could file a written protest of the provisions of the ITB as outlined in the Item 5 of the General Conditions. See Joint Exhibit 1, Page 13. The ITB provided that the vendor was responsible to develop the bid as clearly and succinctly as possible to avoid misinterpretations of the information presented, and that the bids would be reviewed and evaluated solely on the basis of the information contained therein. The ITB provided that the contract would be awarded to the bidder who satisfied the requirements of the evaluation criteria in Section E and who provided the lowest overall valued bid. The ITB specifically invited the attention of the prospective bidders to Section E of the ITB which contained fatal criteria, i.e., requirements which if the prospective bidders failed to meet would result in the rejection of their bid. Contained in Section E among the various fatal criteria was the specific requirement that bids were to include proof of registration with the Department of State to do business in the State of Florida. Section E, "Bid Evaluation Criteria," provided, "listed below are the minimum requirements (Fatal Criteria) that all bids must satisfy," and that "a bid given a 'no' response to one or more of these requirements will be removed automatically from further consideration." See Joint Exhibit Page 14. The Petitioner did not challenge bid specifications or designation of "proof of registration with the Department of State to do within business in the State of Florida" within 72 hours of receiving the ITB. No bidders provided written questions concerning the meaning of "proof of registration with the Department of State to do business within the State of Florida." Representatives of the Petitioner attended the bidders' conference on August 11, 1993. Although representatives of the Petitioner asked certain questions at the bidders' conference, they did not question the meaning of the term, "proof of registration with the Department of State to do business within the State of Florida." Shortly before the bid opening on August 18, 1993, a representative of the Department emphasized to a representative of the Petitioner the need to fully comply with the Fatal Criteria contained in the ITB. The Petitioner submitted its bid to the Department ten minutes prior to the bid opening scheduled for 10:00 a.m. on August 18, 1993. The bid opening was conducted in public with representatives of the various prospective bidders in attendance. Among those attending were three representatives of the Petitioner. The Department's representative opened four responses which appeared to be, and were, "no bids." The representative then opened SmithKline's bid and reviewed the Intervenor's submittal to determine if it complied with the Fatal Criteria. Upon review, it was determined that SmithKline complied with the Fatal Criteria. SmithKline's bid contained a certification from the Department of State of the State of Florida certifying that SmithKline Beecham Clinical Laboratories, Inc., was authorized to transact business in the State of Florida and that it had paid all fees and penalties due the State of Florida through December 31, 1993, filing its most recent annual report on May 1, 1993, and that its status was active. This certificate was dated the 13th day of August 1993 under the seal of the Secretary of State of the State of Florida. The Department's representative next opened the proposal of the Petitioner and evaluated it to determine whether it complied with the Fatal Criteria. This review of the Petitioner's proposal revealed that the Petitioner had not included in its submittal any specific document or paper showing that the Petitioner was registered with the Department of State to do business in the State of Florida. The Petitioner had not filed a certificate of the Secretary of State or a copy of its annual report required to be filed with the Department of State. The Department rejected the Petitioner's bid for failure to comply with the Fatal Criteria concerning proof of registration with the Department of State to do business in the State of Florida. Because of its rejection, the Department did not consider whether the Petitioner's bid complied with any of the remaining Fatal Criteria and did not consider any amount of the Petitioner's bid in considering which of the proposals was the lowest bid. At 4:30 p.m. on August 18, 1993, the Petitioner provided the Department a 1975 certificate from the Secretary of State indicating that the Petitioner was authorized to do business in the State of Florida and a copy of an annual report the Petitioner had submitted to the Secretary of State on March 10, 1993. These were filed too late to cure the fatal defect. The Department also determined that three other bidders, including Consolidated/St. Vincent's failed to comply with Fatal Criteria. Subsequent to its disqualification of Consolidated/St. Vincent's bid, said bidder brought to the Department's attention of the that its proposal included a copy of a corporate report filed with the Secretary of State and dated August 3, 1993. The Department determined that this was sufficient proof that the bidder was registered to do business in the State of Florida with the Secretary of State. On August 25, 1993, the Department awarded to the contract to SmithKline Beecham, Intervenor. On August 28, 1993, the Petitioner formally protested this award. The Petitioner did include in its proposal the following: a sworn statement of public entity crimes; a clinical laboratory certificate of licensure from the Department of Health and Rehabilitative Services of the State of Florida; a Federal Health Care and Finance Administration number issued pursuant to Federal law; and a College of American Pathology number.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, the Hearing Officer RECOMMENDS: that the Department dismiss the Petition of National Health Laboratories, Inc., and award the contract to the Intervenor, SmithKline Beecham Clinical Laboratories. DONE and ENTERED this 17th day of November, 1993, in Tallahassee, Florida. STEPHEN F. DEAN, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 17th day of November, 1993. APPENDIX TO RECOMMENDED ORDER, CASE NO. 93-5552BID The Petitioner filed proposed findings which were read and considered. The Intervenor filed proposed findings which were read and considered. The Respondent adopted the findings of the Intervenor. The following states which of the proposed findings were adopted, and which were rejected and why. Intervenor's Recommended Order Proposed Findings Paragraph 1 Adopted in paragraph 1. Paragraph 2 Adopted in paragraphs 2 - 9. Paragraph 3 Adopted in paragraph 10. Paragraph 4 Adopted in paragraph 11. Paragraph 5 Adopted in paragraph 12. Paragraph 6 Rejected, argument. Paragraph 7 Adopted in paragraph 13. Paragraph 8 Adopted in paragraph 14. Paragraph 9 Adopted in paragraphs 15, 16 and 20. Paragraph 10 Adopted in paragraph 19. Paragraph 11 Adopted in paragraph 20 and 21. Paragraph 12 Adopted in paragraph 22. Paragraph 13 Adopted in paragraph 23. Paragraph 14-25 Arguments and ultimate findings contained in conclusions of law. Petitioner's Recommended Order Proposed Findings Paragraph 1 Adopted in paragraph 1. Paragraph 2, 3 Rejected, irrelevant. Paragraph 4 Adopted in paragraph 4. Paragraph 5 Adopted in paragraph 8. Paragraphs 6-13 Rejected, irrelevant. All argument based upon attack on criteria. Paragraph 14 Adopted in paragraph 13. Paragraph 15, 16 Rejected, irrelevant. Paragraph 17, 18 Adopted in paragraph 13. Paragraphs 19-31 Rejected. See comments to paragraph 6, et seq. above. Also see paragraphs 15, 16, 17 and 18. Paragraph 32 Adopted in paragraph 23 Paragraph 33-45 See comments to paragraph 19 above. COPIES FURNISHED: Thomas F. Panza, Esquire 3081 East Commercial Boulevard, Suite 200 Fort Lauderdale, Florida 33308 Scott D. Leemis, Esquire Department of Health and Rehabilitative Services Post Office Box 2417 Jacksonville, Florida 32231-0083 SmithKline Beecham Clinical Laboratories Donald E. Hemke, Esquire Carlton, Fields, Ward, Emmanuel, Smith & Cutler Post Office Box 3239 Tampa, Florida 33601 Robert L. Powell, Agency Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 Kim Tucker, Esquire Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700
The Issue The issues for determination are, first, whether a lesser portion of Petitioner's total recovery from a third-party tortfeasor should be designated as recovered medical expenses than the share presumed by statute; if so, then the amount of Petitioner's recovery to which Respondent's Medicaid lien may attach must be determined.
Findings Of Fact Petitioner has been a dentist for five years, licensed to practice in Massachusetts, New York and New Jersey. Petitioner took Florida's dentist exam in June, 1979. As the result of scoring a zero on the cast gold laboratory part oil the exam, he received a failing grade of 74 percent (75 percent was passing) on the clinical or practical portion of the exam. Petitioner reviewed the exam with the Board, who refused to change the grade for lack of jurisdiction. The involved laboratory exam dealt with the Examinee's ability to do laboratory procedures and is graded independently of other aspects of the clinical portion of the exam. The procedure required the taking an impression of the patient's mouth, the mounting of that cast on a semi-adjustable articulator, the preparation of a die model of the tooth being restored, the preparation of a wax pattern on the die, the investing of the wax pattern in a stove, and the injection of molten gold into the area from which the wax has been burned out. The gold inlay may be pickled and cleaned but not otherwise made to fit the die. Prior to the exam, Petitioner had received a copy of the instructions and basis for grading. Petitioner took two impressions of the cavity. From the accurate portions of the two impressions, two dies were made. Petitioner undercut the deficient area of the first die so it would reflect the accurate portion of the second die. From this procedure an acceptable cast gold inlay was produced. The Board's graders were given instruction, standardized and tested for consistency prior to the exam. Petitioner's two graders received an inter-rater reliability of 95 percent for the June 1979 exam. Each grader rated Petitioner's work independently and concluded his work was completely unacceptable in every category listed on the grade sheet. Petitioner's witness contended the zero grade was unwarranted as a gold inlay had been produced that did fit the patient's tooth; however, he could not grade all of the Petitioner's lab work as it was not before him.
Recommendation From the foregoing findings of fact and conclusions of law, it is RECOMMENDED that Petitioner's request to revise the laboratory portion of his June 1979 dentist exam to a higher grade be DENIED; however, Petitioner should be permitted to retake only that portion of the exam in which he received a zero. DONE AND ENTERED this 4th day of December, 1980, in Tallahassee, Florida. H. E. SMITHERS Hearing Officer Division of Administrative Hearings 101 Collins Building Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 4th day of December, 1980. COPIES FURNISHED: Kenneth Meer, Esquire Post Office Drawer B Winter Park, Florida 32790 John Griffin, Esquire Assistant Attorney General Department of Legal Affairs The Capitol, Room 1604 Tallahassee, Florida 32301 Deborah Miller, Esquire Department of Professional Regulation 2009 Apalachee Parkway Tallahassee, Florida 32301
Findings Of Fact Petitioner has been licensed to practice dentistry in the State of Massachusetts since 1953. Since 1966, Petitioner has limited his practice to oral and maxillo-facial surgery. In June of 1976 petitioner took part as a candidate for licensure in a licensure examination administered by Respondent. On this examination, a final score of 75 was needed to pass the "clinical" or "practical" portion of the examination. Petitioner was awarded a failing grade of 59.69. By this proceeding, Petitioner maintains that the grades he was awarded on the Amalgam Preparation procedure, the Amalgam Restoration procedure, and the Cast Gold Final Restoration procedure were unjust, arbitrary and capricious. The clinical examination administered by Respondent in June, 1976, consisted of the following procedures, weights, and percentages: Percentage of Casts and Wax Pattern 1/2 Casting 1/2 10 percent Professional Evaluation 3/3 15 percent Gold Inlay Restoration Preparation 1/2 Inlay Cemented 1/2 25 percent Amalgam Restoration Preparation 2/3 Final Restoration 1/3 25 percent Periodontal Evaluation Diagnosis 1/3 Periodontal Procedure 2/3 25 percent Procedure Weight Final Grade Laboratory Petitioner's final score on the clinical portion of the June, 1976, examination was based on the following scores: 1st 2nd Percentage Exam- Exam- of Final Procedure iner iner Total Grade Grade Laboratory Casts and Wax Pattern (1/2) 1 2 Casting (1/2) 2 2 10 percent 59.38 Professional Evaluation (3/3) 3 3 15 percent 75.00 Gold Inlay Restoration Preparation (1/2) 2 3 Inlay Cemented (1/2) 0 0 25 percent 53.13 Amalgam Restoration Preparation (2/3) 0 0 Final Restoration (1/3) 2 2 25 percent 33.50 Periodontal Evaluation Diagnosis (1/3) 4 N/A Periodontal Procedure (2/3) 4 3 25 percent 83.33 59.69 During the 1976 examination, Respondent utilized the following grading system for the clinical examination: - An unethical or unacceptable performance - Work falling far short of acceptable standards - Work falling short in one or more aspects of being acceptable - Minimally acceptable work - Work beyond the bare minimum of acceptability - Work demonstrating outstanding skill Prior to the clinical examination, all candidates were sent an instruction booklet which included information concerning the subject areas to be tested, the weight to be accorded each subject, the procedures to be used in performing each procedure, the criteria to be used in grading, and the grading system to be utilized by Respondent. The clinical portion of the examination for each candidate took two days and involved approximately 400 to 450 candidates and 20 to 22 examiners. Except for the diagnosis portion of the periodontal procedure, each clinical procedure performed by a candidate was independently graded by two different examiners, and the two grades were then averaged to determine the total grade. However, if grades given by the two examiners were more than one grading criteria apart, and the examiners could not resolve their evaluative differences, a third examiner was brought in to resolve any remaining dispute as to the grade to be awarded. Candidates for the June, 1976, examination were required to perform a Class II Amalgam Restoration on a tooth which had occlusal and proximal contact. The tooth to be used by the candidate was not to contain extensive decay and an ideal cavity preparation with minimal outline form and cavity depth was to be prepared by the candidate. The grading criteria for the Amalgam Preparation were contained on the grade sheets' utilized by the individual examiners. These criteria were as follows: outline form; depth preparation; retention form; marginal finish; unsupported enamel; caries; debris; and mechanical exposure. Only leaving caries in the preparation or causing a mechanical exposure of the nerve of the tooth required an examiner to give a candidate an automatic zero for the preparation. However, any number or combination of missed criteria, depending on the degree of error, could result in a grade of zero. Because of the number of criteria involved, and the degrees to which they could be satisfactorily or unsatisfactorily performed, there existed an infinite variety of combinations of missed criteria, and degrees of performance, that could result in a zero or a failing grade. Petitioner received grades of zero and zero, for an overall score of zero on the Amalgam Preparation. Petitioner's grade sheets for this procedure as well as Respondent's records identifying the examiners for this procedure were not available at hearing in this cause because they had been previously destroyed in the normal course of the biennial purge of Respondent's examination records pursuant to Chapter 466, Florida Statutes. As a result, it is not possible to determine why a particular grade was given on this portion of an examination administered six years ago, without the availability of the particular grade sheet to indicate criteria missed by Petitioner. For example, it cannot be determined with any degree of accuracy the roughness of the pulpal floor of the tooth at the time of grading, whether any debris was left in the preparation at the time it was graded, whether there were adequate buccal, gingival or axial retention points present, and whether they were overcut, whether a buccal or lingual cusp was undermined, whether the enamel was undercut on the occlusal surface, among a variety of other pertinent points. None of these criteria can adequately be assessed by way of an x-ray examination some six years after the procedures were performed. In addition to the aforementioned procedure, candidates at the June, 1976, examination were also required to place an amalgam restoration in the tooth they had prepared for the Amalgam Preparation procedure. The grading criteria for the final restoration were contained on the grade sheets utilized by the examiners, and were as follows: functional anatomy; proximal contour; contact; margin; gingival overhang; and management of soft tissue. Unlike the Amalgam Preparation, failure in any given criteria did not result in an automatic zero for this procedure. However, like the preparation phase of the examination, the restoration grade was also determined by a variety of combinations of criteria, depending upon the degree of performance. Again, because of the number of criteria involved and the degrees to which they could be successfully or unsuccessfully performed, there were an infinite variety of combinations of missed criteria and degrees of deficiencies that could result in a failing score. Petitioner received grades of two and two, for an overall average score of two on the Final Restoration. As in the preparation procedure, Petitioner's grade sheets for this procedure as well as Respondent's records of the examiners for this procedure were not available because they had been previously destroyed in the normal course of the biennial purge of the Respondent's examination records pursuant to Chapter 466, Florida Statutes. The record in this cause establishes that it would not be possible with any degree of accuracy to determine why a particular grade was given on an examination administered six years ago without the grade sheet to indicate the particular criteria missed by the candidate, or even the identity of the examiners who awarded that grade. X-ray examination of the patient with the restoration in place could determine criteria such as functional anatomy, proximal contour, margins, and gingival overhang. However, criteria such as management of soft tissue is obviously not now discernible in that the tissue would have healed since the examination. Neither can the criteria of adequate contact be evaluated now some six years after the procedure was performed. In addition, because of various changes which could have occurred during the lapse of time between the administration of the examination and the present time, criteria such as functional anatomy and adequacy of margins can not now be determined with any degree of accuracy. Candidates at the June, 1976, examination were also required to prepare a tooth for a Class II cast gold restoration. This restoration was required to have occlusal and proximal contact and was to be cemented in the patient's mouth. Grading criteria for the final gold restoration were as follows: casting not seated; margins; functional anatomy; proximal contours; contact; surface finished; and, management of soft tissue. According to Respondent's criteria, if the gold inlay produced by a candidate was not satisfactory to be cemented as a permanent restoration, a grade of zero was mandatory. If the inlay was only cemented temporarily, a grade of zero was still required. As in other areas of the examination, the final gold restoration grade could be determined by any number or combination of criteria, depending upon the degree of error. Petitioner received grades of zero and zero, for an overall average score of zero on the final gold restoration. Petitioner admits that the inlay he prepared at the examination would not seat, and that he placed a temporary restoration in the patient's mouth. He contended, however, that he successfully performed some of the grading criteria and should not, therefore, have received a grade of zero. However, Petitioner's grade sheets for this procedure as well as Respondent's records of the examiners for the procedure were again not available because they had been previously destroyed in the normal course of the biennial purge of the Respondent's examination records pursuant to Chapter 466, Florida Statutes. As with the preceding procedures, it is not possible to determine why a particular grade was given on this portion of the examination without the particular grade sheet involved to indicate missed criteria. At all times material hereto, candidates were allowed access to their examination grades upon request, and were notified of their right to an examination review with an examiner. In the event of such review, the candidate and the examiner reviewed the candidate's grade sheets, x-rays and models from the examination, and the examiner indicated to the candidate the reasons for the awarding of a particular score. In addition, at all times material to this proceeding Petitioner had as an available remedy an administrative hearing pursuant to the requirement of Section 120.57, Florida Statutes. Respondent was, in fact, contacted by Petitioner's attorneys in 1979 regarding the Petitioner's examination scores. All available examination documents were produced for Petitioner's attorneys in 1979, but Respondent was at no time advised that an examination challenge was intended, nor did Petitioner or his attorneys request that examination documents pertinent to Petitioner's performance not be destroyed. However, it is likely that at the time Respondent was contacted by Petitioner's attorneys his examination records had already been destroyed since approximately three years had passed since the administration of the examination, and Respondent's policy is to destroy those documents every two years. Petitioner received his 1976 examination results approximately six weeks after the examination had been administered. According to Petitioner's testimony, he waited until 1981 to initiate this proceeding in the belief that the Florida Legislature would amend Chapter 466, Florida Statutes, to include licensure by reciprocity. That legislative action has not been forthcoming.
The Issue The issue is whether Petitioner has proved, pursuant to section 409.910(17)(b), Florida Statutes (2013), that, during the life of the recipient,1/ Respondent's share of the proceeds of a medical malpractice settlement is less than the share assigned to Respondent by section 409.910(11)(f). The underlying issues are whether Respondent's share of the recipient's settlement proceeds extends to the portion of the proceeds representing past and future medical expenses, or just past medical expenses, and whether, from its share, Respondent may obtain reimbursement of all of its medical assistance expenditures, as it makes these expenditures over the life of the recipient, or Respondent may obtain only a single reimbursement of its medical assistance expended through the date of the settlement or distribution hearing.
Findings Of Fact The Child was born on November 28, 2006, with Group B streptococcal sepsis, which was acquired at or shortly prior to birth. The Child went into septic shock one hour after delivery. The sepsis and accompanying meningitis caused catastrophic damage to the white matter of his brain. By six years of age, the Child suffered from static encephalopathy, spastic quadriparetic cerebral palsy, and intractable epilepsy. The Child is unable to swallow, so all of his nourishment and oral medications must be administered through a permanent gastrointestinal tube. He endures four feedings daily. The first consists of two eight-ounce cans of vitamin-fortified Pediasure 1.5 and 250 ml of water, and the next three consist of one can of the Pediasure and 250 ml of water. At times, the Child's reflux is so severe as to interfere with his dentition. The Child daily suffers up to five seizures, each lasting up to 20 seconds, with post-ictal phases of about ten seconds. The Child engages in inconsolable, prolonged crying in response to noises due to a sensory disorder and sometimes for no apparent reason. The Child suffers impaired respiration, although he is able to breathe independently. The Child requires suctioning at least three times daily when healthy and many more times when ill. In one recent year, the Child suffered two bouts of pneumonia, requiring hospitalization each time. The Child sleeps poorly, tending to fall asleep anywhere between 10:00 p.m. and 2:00 a.m. He requires turning while in bed, as he is unable to turn himself. The Child's arms are so tight that he sometimes cries when a caregiver tries to place him in a prone position, and he cannot tolerate remaining in this position for long periods. The Child cannot sit, stand, hold his head up, or walk. Suffering from severe contractures of his upper and lower extremities, the Child has undergone repeated surgeries to sever tendons and dislocate shoulders and hips to provide him some relief from the pain from the contractures. The Child lacks sufficient muscle control to produce speech. When he tries to speak, he can produce only a groan. He cannot put his lips together. At three years of age, the Child presented receptive language skills of an infant aged 0-3 months. He has made limited progress since that time. A couple of anecdotals illustrate the Child's capacity to experience pain and suffering. During mediation between Petitioner and the hospitals and physicians described below, the Child was wheeled into the presence of the attorneys and adjustors representing the hospitals and physicians. Spontaneously, he emitted a plaintive wail that brought tears to the eyes of all in attendance. In 2013, the speech-language pathologist reported: Jael is very, very involved. He is trapped as a lot of [cerebral palsy] children are. He understands. When I walk into the room and I turn and look at him and I say "Hello Jael" he turns straight to me and I get a great big smile. Now as therapy has gone on, he will turn when I get a certain toy out, he knows instantly what it is [and] he lights up. I bring it over, and I'll vocalize to him, I do my oral motor exercises with him. He'll do the oral gestures to try to communicate, and he just locks up. He knows. But he can't get it out. Through approximately the time of the settlement of the personal injury action, Respondent had expended $533,692 in medical assistance on behalf of the Child. Respondent will likely expend medical assistance for the life of the Child. As noted immediately below, a close correspondence exists between past medical expenses and the medical assistance that Respondent had expended through the settlement. A reasonably close correspondence between future medical expenses and the medical assistance that Respondent will thereafter expend may be assumed. However, this assumption is subject to two major contingencies-- the premature death of the Child, relative to the life expectancy used in the life-care analysis described immediately below, and changes in the Medicaid program. Petitioner commenced a personal injury action against one or more tortfeasors among three hospitals and two physicians.2/ The record does not indicate the amount of attorney's fees and costs that Petitioner incurred in the personal injury action. In settling the personal injury action, Petitioner did not analyze pain and suffering or past medical expenses. As discussed in the Conclusions of Law, the Child's pain and suffering is capped at $1,000,000.3/ As certain as it is tragic, the Child has met this limit. As discussed in the Conclusions of Law, a close correspondence exists between past medical expenses and medical assistance expenditures through the settlement or judgment.4/ Past medical expenses thus approximate Respondent's medical assistance expenditures of $533,692. In settling the personal injury action, Petitioner analyzed the loss of earning capacity and future medical expenses, using a statistical life expectancy of about 72 years. Petitioner's economist projected the loss of future earnings based on two educational scenarios. Petitioner has reasonably selected the lower projection, which assumes that the Child would not have obtained a high school diploma. This projection states that the present value of the Child's lifetime earnings is $594,801. Petitioner's life-care analyst projected future medical expenses using a detailed life-care analysis, which includes four projections of the present value of future medical expenses. The projections are $29,733,708 for care in a home setting with privately hired staff, $41,959,858 for care in a home setting with agency-hired staff, $13,495,238 for care in a facility with privately hired staff, and $14,255,708 for care in a facility with agency-hired staff. Care in a home setting will extend the Child's life expectancy, and Petitioner has reasonably selected the lower of these projections for a present value of $29,733,708. As used in this final order, "true damages" means a tort victim's damages without regard to liability-related matters that may justify a settlement for a lesser amount or drive a smaller verdict or judgment, if the personal injury action is tried. These matters include sovereign immunity, comparative negligence, or collection issues. In the discussion of other recipients' true damages and state Medicaid agencies' medical assistance expenditures or insurers' payments, this final order generally substitutes approximations for exact dollar amounts. The Child's true damages consist of the following items: Past medical expenses: $533,692 Future medical expenses: $29,733,708 Loss of earning capacity: $594,801 Pain and suffering: $1,000,000 TOTAL $31,862,201 Expressed as approximate percentages of total true damages, future medical expenses are 93%, pain and suffering is 3%, and the loss of earning capacity and past medical expenses are each 2%. Future medical expenses are about 98% of the total of past and future medical expenses. In other words, from the perspective of the date of the settlement, the true damages suffered by the Child and, thus, the medical assistance expenditures of Respondent are almost entirely for medical expenses and medical assistance expenditures that will be incurred or paid in the future. The acts and omissions of the five tortfeasors portray a series of missed opportunities timely to diagnose and treat a Group B streptococcus infection in the Child's mother after she reported that her amniotic membrane had ruptured.5/ Unfortunately for Petitioner and Respondent, recoverable damages against the two most blameworthy tortfeasors were restricted by the sovereign immunity of Hospital 1, whose liability was thus limited to $100,000, and the lack of insurance or nonexempt assets of Physician 1. For good cause, then, Petitioner settled the Child's claims for a total of $4.13 million: $100,000 from Hospital 1, $60,000 from Physician 1, $3.9 million from Hospitals 2 and 3, and $70,000 from Physician 2. The settlement proceeds represent 13% of the true damages. The settlement agreement does not allocate the settlement proceeds among the four items of damages discussed above. Despite the problems that Petitioner would have encountered in successfully executing on a judgment against Physician 1, Petitioner nonetheless considered settling with the other tortfeasors and litigating with Physician 1. Petitioner ultimately decided against doing so when it could not negotiate Respondent's share in any resulting judgment proceeds. By letter dated August 14, 2014, counsel for Respondent advised counsel for Petitioner that, prior to the settlement with Physician 1, Respondent was due $533,692. Petitioner argues that its overall settlements with the tortfeasors was driven by its understanding that Respondent would accept $533,692 in full satisfaction of its Medicaid lien. In this matter, as well as others, Petitioner argues based on facts not in the present record. This letter alone is not a waiver by Respondent of any of its rights, nor is it a basis to estop Respondent from asserting any of these rights.
