The Issue The issue to be determined is the amount to be paid, pursuant to section 409.910(17)(b), Florida Statutes, from the proceeds of a third-party settlement, in full satisfaction of the agency's Medicaid lien.2
Findings Of Fact The Parties Petitioner Armando R. Payas is a court-appointed guardian ad litem for A.D.J., Jr., a minor. Petitioners Carvetta Taylor and Arthur D. Jamison, Sr., are A.D.J., Jr.'s, parents. Respondent, AHCA, is the state agency that administers the Medicaid program in Florida. § 409.902, Fla. Stat. Stipulated Facts In the underlying medical malpractice action, Petitioners alleged that the liable third-party negligently failed to provide proper prenatal care, identify and treat prenatal stress, and timely order a Caesarian section delivery. Petitioners asserted that this caused A.D.J., Jr., to suffer severe and permanent brain damage, which resulted in substantial expenses being incurred for his medical and nursing care. There also is a separate cause of action asserted on behalf of A.D.J., Jr's., parents, Carvetta Taylor and Arthur Jamison, for their own injuries for their loss of services, earnings, companionship, society, and affection of A.D.J., Jr., and for the value and expense of A.D.J., Jr.'s, hospitalizations and medical and nursing care, in the past and future. As a result of the alleged third-party negligence, Petitioner A.D.J., Jr., sustained severe and permanent brain damage, including hypoxic ischemic encephalopathy and neurodevelopment disorder. As a result of those permanent injuries, A.D.J., Jr., requires medical care and treatment for the rest of his life. AHCA, through the Medicaid program, paid $39,854.66 for A.D.J., Jr.'s, medical care related to his claim against the liable third-parties in Petitioners' medical malpractice action. Facts Based on Evidence Adduced at the Final Hearing A.D.J., Jr., is a minor child for whom Medicaid paid medical expenses for treatment for injuries resulting from third parties' failure to provide proper prenatal care, identify and treat prenatal distress, and timely order a Caesarian delivery. As stated above, as the result of this negligent treatment, A.D.J., Jr., sustained severe and permanent brain damage, including hypoxic ischemic encephalopathy and neurodevelopment disorder, which results in him suffering from a seizure disorder. As a result of these injuries, he will require a certain level of medical care for the rest of his life. Additionally, his future earnings capacity is negatively affected, due to cognitive impairment resulting from his birth-related injuries. Medicaid first made payments for A.D.J., Jr.'s, medical care in 2012. Petitioners initiated a medical malpractice action against one or more medical providers. The action ultimately settled in 2021, for $775,000.00. AHCA has asserted a Medicaid lien, in the amount of $39,854.66 against the portion of the settlement allocated to A.D.J., Jr.3 3 AHCA may assert a lien only on past medical expenses. Giraldo v. Ag. for Health Care Admin., 248 So. 3d 53, 56 (Fla. 2018). If the formula in section 409.910(11)(f) is applied to the settlement proceeds allocated to A.D.J., Jr., then the full amount of the $39,864.66 Medicaid lien should be paid to AHCA.4 Maria Tejedor, the lead attorney representing A.D.J., Jr., and his parents in the underlying medical malpractice case, testified regarding the value of A.D.J., Jr.'s, medical malpractice claim. Tejedor is a Florida Bar Board-certified attorney in civil trial practice with over 20 years of experience in medical malpractice matters, focusing primarily on civil actions involving infants and children who have sustained brain damage. She has extensive experience in the valuation of these types of cases. Based on Tejedor's experience with similar cases involving children who have sustained brain damage as a result of medical malpractice, she estimated that the full value of A.D.J., Jr.'s, medical malpractice case was $21,939,105.12. Based on A.D.J., Jr.'s, medical history, and on Tejedor's experience in valuing similar medical malpractice cases and allocating settlement amounts, she (Tejedor) testified that the $21,939,105.12 value of the medical malpractice case would properly be allocated as follows: $15,694,185.50 for future medical expenses; $1,204,418.00 for lost earnings' capacity; $5,000,000.00 for pain and suffering; $39,854.66 for the Medicaid lien; and $646.96 for another medical services lien. The underlying medical malpractice case settled for substantially less than its full value, in part because the treating physician was uninsured, and also because one of the birth-related injuries that A.D.J., Jr., incurred, 4 As discussed below, the formula in section 409.910(11)(f) creates a presumptive "default allocation" of the third-party settlement proceeds. This presumptive allocation may be rebutted in an administrative proceeding—such as this proceeding—brought under section 409.910(17)(b), to contest the amount designated as recovered medical expenses under the formula. attention deficit hyperactivity disorder, could partially be attributed to A.D.J., Jr., having inherited the condition. The $775,000.00 settlement amount constitutes 3.5 percent of the full value of $21,939,105.12 of the case. Using the pro rata method to allocate the $775,000.00 settlement to future medical expenses, lost earnings, pain and suffering, the Medicaid lien, and the other medical services lien, the value allocated to each of these categories of damages and expenses, discussed above, is multiplied by 3.5 percent, to determine the portion of the total settlement amount allocated to each of these categories. Multiplying 3.5 percent by $39,854.66, which is the amount of the Medicaid lien, yields $1,394.91. Pursuant to the pro rata allocation method, this is the amount payable to Medicaid in full satisfaction of its Medicaid lien in this case. Tejedor testified, and the case law bears out, that Florida courts and ALJs consistently have accepted the pro rata allocation method as a reasonable, fair, and accurate methodology, consistent with Arkansas Department of Health and Human Services v. Ahlborn, 547 U.S. 268 (2006), for allocating the settlement proceeds when the underlying third-party action is settled for less than the full value of the case. Todd Copeland testified as an expert in the valuation of damages in medical malpractice actions and resolution of healthcare liens. Copeland has practiced law for 29 years, representing injured parties in medical malpractice, personal injury, products liability, negligent security, and premises liability cases. He has testified as an expert between 10 and 20 times over the past ten years regarding the valuation of damages and liens in medical malpractice cases. He testified that $21,939,105.12 is a conservative estimate of the full value of the underlying medical malpractice case. In formulating his expert opinion, Copeland relied on the report of Petitioners' non-testifying expert, Dr. Craig H. Lichtblau, M.D.; A.D.J., Jr.'s, medical records; his own communications with A.D.J., Jr.'s, guardian ad litem; the very conservative estimate of A.D.J., Jr.'s, pain and suffering in this case; jury verdicts in similar medical malpractice cases; and his own professional experience regarding the valuation of medical malpractice cases. Copeland confirmed that the pro rata method of allocating the settlement proceeds to each specific category of damages and expenses (i.e., future medical expenses, pain and suffering, lost earnings' capacity, and the Medicaid and other medical services liens) proportional to the amount allocated to that specific category if the total value of the case had been recovered in the third-party settlement, is a fair and reasonable method for allocating the settlement proceeds. He further confirmed that the pro rata methodology is consistent with that ratified by the U.S. Supreme Court in Ahlborn. Copeland opined, based on the application of the pro rata allocation method to this case, that AHCA is entitled to payment of 3.5 percent of $39,854.66, which equals $1,394.91, in satisfaction of its Medicaid lien.
Findings Of Fact At all times, material hereto, Respondent Antonio J. Maniglia, M. D., has been licensed as a medical doctor under the laws of the State of Florida. Respondent graduated from medical school in Brazil in December, 1962. He came to the United States in 1963, and has practiced from then until the present date. He was licensed as a medical doctor by the State of Florida in 1971. On or about February 11, 1976, Maury Braga appeared at Respondent's office requesting to see him. Respondent had never before met Braga and had never heard of him. Braga brought with him a letter of introduction from a processor in Brazil whom Respondent knew. Braga advised Respondent that, he was a medical doctor from Brazil, that he had attended and graduated from the Faculdade de Ciencias Medicas de Santos, Brazil, that he had practiced the profession of medicine in Brazil during the years of 1967 through 1972, that he was in the process of, obtaining his medical license in Florida, and that to complete his Florida medical application he needed statements from local doctors acknowledging that Braga was a Brazilian medical doctor. Braga showed to Respondent documentation concerning his education and practice, including his medical diploma. Based upon his interview of Braga and his examination of Braga's documents, Respondent signed a form utilized by Petitioner, which form is entitled "Affidavit" and which reads, in pertinent part, as follows: - I, Antonio J. Maniglia, M. D., F.A.C.S., of 1776 NW 10th Ave, Miami, Florida 33136, do hereby swear and affirm by my personal knowledge, that Maury Braga attended and graduated from Faculdade de Ciencias Medicas de Santos and did lawfully prac- tice the profession of medicine, in Brazil during the years of 1967 through 1972, and that I also practiced the same, profession in Brazil. When Respondent signed the "affidavit," it was not notarized. Respondent had no personal knowledge regarding whether Braga had ever attended or graduated from medical school or regarding whether Braga had ever practiced medicine in Brazil. Respondent relied totally on the information contained in the documents, Braga showed to him and upon what Braga told him. After Braga left Respondent's office, he had the "affidavit" signed by Respondent notarized. He attached the "affidavit" to an Application for Examination and Course in Continuing Medical Education, which application he then submitted to the Florida Board of Medical Examiners. "On February 26, 1976, the same day that Braga's application was received, the Executive Director of the Board of Medical Examiners wrote to Braga advising him that his application was received after the deadline of January 26, 1976, and was therefore rejected. The application was not returned to Braga, but rather was placed in a file opened under Braga's name to be retained in the event that Braga again applied within the next three years to take the course in continuing medical education and the examination for licensure. On January 17, 1977, Braga filed a second application to take the course in continuing medical education which would then qualify him to take the examination for licensure. The second application included "affidavits" from medical doctors other than Respondent. One of Braga's two applications was approved; Braga completed the course in continuing medical education; Braga took and passed the examination for licensure; and Braga was licensed as a medical doctor in the State of Florida on March 10, 1978. Maury Braga did not attend or graduate from the Faculdade de Ciencias Medicas de Santos, and did not lawfully practice the profession of medicine in Brazil during the years 1967 through 1972. Braga's license to practice medicine in the State of Florida has been revoked. At least prior to the revocation of his license, Braga's file with the Petitioner contained both the application he filed in 1976 and the application he filed in 1977 No evidence was introduced to show which application was reviewed when Braga's application to take the educational course and examination for licensure was approved.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered finding Respondent guilty of the violation charged in Count Two of the Administrative Complaint, dismissing Counts One, Three and Four of the Administrative Complaint, and placing Respondent's license on probation for a period of one year, subject to terms and conditions set forth by the Board. DONE and RECOMMENDED this 17th day of February, 1983, in Tallahassee, Leon County, Florida. LINDA M. RIGOT, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 17th day of February, 1983. COPIES FURNISHED: Joseph W. Lawrence, II, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Jack E. Thompson, Esquire Ingraham Building, Suite 516 25 SE Second Avenue Miami, Florida 33131 Frederick Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Dorothy J. Faircloth, Executive Director Board of Medical Examiners 130 North Monroe Street Tallahassee, Florida 32301
