Findings Of Fact At all times material hereto, Respondent is and has been eligible for licensure and licensed as a life insurance agent, a an ordinary life including health insurance agent, as a general lines insurance agent, and as a health insurance agent. On July 25, 1986, Respondent pled guilty and was found guilty in the United States District Court for the Southern District of Florida of conspiracy to possess with intent to distribute cocaine, a felony. He was sentenced to serve one year and one day in a penal institution and was fined $50. On September 10, 1986, Respondent pled guilty and was convicted in the United States District Court for the Southern District of Florida of conspiracy to import marijuana, a felony. He was given a five year sentence to run concurrent with his other sentence, with the requirement that six months be served in a jail-type institution, and with the execution of the remainder of the sentence of imprisonment being suspended. Additionally, Respondent was placed on probation for a period of five years to commence upon his release from confinement, was assessed a fine of $50, and was required to perform 250 hours of community service work during his first year of probation, 200 hours of community service work during his second year of probation, and 100 hours of community service work during his third year of probation. Other charges involving either the sale or possession of machine guns were dismissed. No underlying facts regarding the marijuana conviction were offered in evidence. Respondent and a companion negotiated with federal undercover agents for the sale of approximately 4700 automatic weapons (machine guns). Those discussions ultimately lead into negotiations for the sale of 15 kilos of cocaine. The final agreement was that the first transaction would involve 10 kilos of cocaine. On July 10, 1985, Respondent and two companions sold to the undercover agents 2 kilos of cocaine, Respondent explaining to the undercover agents that there would be a delay in him supplying the additional 8 kilos. The actual sale took place at Respondent's insurance office, as had many of the telephone contacts between Respondent and the federal agents. Respondent and his companions were arrested at Respondent's insurance office immediately following Respondent's sale of the 2 kilos of cocaine to the federal agents. Three firearms were seized from Respondent and his companions at the time of their arrests. No evidence was offered to show that Respondent has completed serving his probation or that his civil rights have been restored. Respondent has been licensed by Petitioner since 975. None of his insurance licenses have been previously revoked.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is, RECOMMENDED that a Final Order be entered finding Respondent guilty of the factual allegations contained within the Administrative Complaint filed herein, revoking Respondent's licenses, and revoking Respondent's eligibility for licensure as an insurance agent in this state. DONE and RECOMMENDED this 30th day of June, 1988, at Tallahassee, Florida. LINDA M. RIGOT, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 30th day of June, 1988. APPENDIX TO RECOMMENDED ORDER DOAH Case No. 88-1374 Petitioner's proposed findings of fact numbered 1, 2, and 4-6 have been adopted either verbatim or in substance in this Recommended Order. Petitioner's proposed finding of fact numbered 3 has been rejected as being irrelevant to the issues under consideration herein. Petitioner's proposed findings of fact numbered 7 and 8 have been rejected as not constituting findings of fact but rather as constituting argument of counsel, conclusions of law, or recitation of the testimony. COPIES FURNISHED: William Gunter State Treasurer and Insurance Commissioner The Capitol, Plaza Level Tallahassee, Florida 32399-0300 Robert C. Byerts, Esquire Department of Insurance 413-B Larson Building Tallahassee, Florida 32399-0300 Leslie L. Florez, Esquire Ocean Bank Building, Suite 604 780 N.W. LeJune Road Miami, Florida 33126 Don Dowdell, Esquire Department of Insurance 413-B Larson Building Tallahassee, Florida 32399-0300
Findings Of Fact On or about September 24, 1982, the Petitioner, Donald Ray Shelton, submitted his application to the Department of Insurance in order to become licensed as an Ordinary Life including Disability agent in the State of Florida. On January 21, 1983, the Department of Insurance, by letter, notified Petitioner that his application for examination and licensure as an Ordinary Life including Disability agent had been denied. That letter, in summarizing the grounds for denial, stated: The reason for the denial is because on your application for license you failed to note that you had been charged with a felony, your record of issuing worth- less checks and your record of traffic offenses. Additionally, on a previous application for license processed by the Department of Insurance for examination, you gave false information, i.e., social security number, birthplace, residence address, employment history and license history as insurance agent. One of the grounds for denial related to an application filed with the Department by American Republic Insurance Company in March, 1981. (See Respondent's Exhibit 1.) The social security number, birthplace, residence address, employment history, and license history as an insurance agent were all false. This information had been entered on the application by the Petitioner during a job interview with American Republic. The petitioner signed the application but did not sign in the presence of a notary. Petitioner also signed an additional application form titled Application for State and County License as Life/Disability Agent. (See Joint Exhibit No. 2.) This form did not require a notary. The interview with American Republic had been arranged by a close friend and the Petitioner gave the false information in order to not appear disinterested. He, however, did not want his friends, relatives, and business associates being bothered by a background investigation for a job he was not going to accept. The Petitioner had not intended for the March, 1981, application to be filed with the Department of Insurance, because he had no intention of going to work for American Republic. He learned that the application had been filed when he received notification that he had been approved for taking the examination. He did not take the examination. He did not notify the Department of Insurance that the application was filed without his knowledge or authorization. In October, 1982, Petitioner sent a letter of explanation to the Department after inquiry was made about the March, 1981, application in connection with the processing of the current application. (See Petitioner's Exhibit No. 1.) Another ground for denial by the Department was the Petitioner's failure to disclose he had been arrested for a felony, auto theft. Petitioner unequivocally denied ever having been arrested or charged with auto theft or any other felony. The evidence offered by the Department did not establish that the Petitioner had ever been arrested for larceny of an auto or that larceny of an auto as set forth in the Index to Criminal Records (Respondent's Exhibit 3) was a felony. petitioner did not fail to disclose an arrest for or charge of larceny of an auto. The application form does not ask for nor provide a space for the disclosure of traffic, bad check offenses, or other non-felony offenses. On October 29, 1980, the Petitioner pled guilty and was found guilty of the crime of worthless checks. The offense arose out of a check written to the Army Store on June 8, 1980, in the amount of $149.46, and returned due to the account being closed. The check was signed by Petitioner and was check number 126. The face of the check reveals that the account was in the name of "Donald R. Shelton" and "Vickie Shelton". Petitioner was sentenced to six months imprisonment which was suspended for two years, two years probation, and payment of restitution, and court costs. This conviction occurred in Case Number 80 Cr 4469, 30th District Court, Baywood County, North Carolina. Also, on October 29, 1980, Petitioner pled guilty to six other worthless check charges. Court records reveal the following information with regard to those convictions. Case No. 3205 involved Check No. 107 written to Bilo in the amount of $60.57 on March 1, 1980, and returned not paid because of insufficient funds. Case No. 80 Cr 2639 arose out of Check No. 3 written to Ingles on February 22, 1980, in the amount of $37.49 and returned not paid because of insufficient funds;. This check is a counter check without the name and address of Petitioner and Vickie Shelton printed on it. The check number is written on the check rather than pre-printed. Case No. 80 Cr 4053 arose out of Check No. 108 written on March 4, 1980, to Gas & Groceries in the amount of $21.30 and returned not paid because of insufficient funds. Case No. 80 Cr 4054 involved Check No. 105 written on March 1, 1980, to Gas & Groceries in the amount of $23.60 and returned not paid because of insufficient funds. Case No. 80 Cr 6027 involved Check No. 120 written to Potts Texaco on June 7, 1980, in the amount of $25.50 and returned not paid because of account closed. Case Nos. 80 Cr 2639, 80 Cr 4053, 80 Cr 4054, and 80 Cr 6027 were consolidated and for the conviction in these four cases, Petitioner was sentenced 30 days imprisonment suspended for two years with two years probation and restitution on each check and court costs in each case. This sentence was to begin following completion of the sentence in Case No. 80 Cr 4469 discussed in Paragraph 7 above. In Case No. 3205, Petitioner was sentenced to six months imprisonment, suspended for two years with two years probation and payment of restitution and court costs. All of the checks in these cases were written on the same account. This account was a joint account with Petitioner and his ex-wife as signatures on the account. On January 9, 1981, the Petitioner pled guilty and was convicted of worthless checks. That charge arose out of Check No. 109 written on March 4, 1980, to John Graham's in the amount of $259.98 and returned not paid because of insufficient funds. He was sentenced to pay court costs plus restitution. On February 16, 1981, the Petitioner pled guilty to the crime of worthless checks. The charge involved Check No. 101 written to Sky City on February 28, 1980, in the amount of $33.58 and returned not paid because of insufficient funds. Petitioner was convicted and sentenced to pay court costs plus restitution. On February 25, 1981, after making full restitution, the two year probation was terminated by the Court. Each of the worthless checks discussed above was written in February, March, or June, 1980. During the period August, 1979, to July, 1980, the Petitioner was unemployed. During this period, Petitioner was also going through a hotly contested divorce and checks were being written on the joint account by his now ex-wife without his knowledge. During this time, Petitioner did not make an effort to determine the balance in his checking account. The Petitioner has been convicted of the following traffic offenses: September 24, 1970: Speeding. September 18, 1970: Violation of quiet zone ordinance. September 23, 1971: Expired inspection sticker. October 19, 1972: Driving under the influence. Petitioner was 17, 18, and 19 years old when the offenses occurred. From April, 1977, to August, 1979, the Petitioner was employed by Globe Life Insurance Company in the State of North Carolina. Until August 1, 1979, Petitioner was a licensed Life and Accident and Health Agent in the State of North Carolina. The Petitioner is an agent in good standing with the Department of Insurance of the State of North Carolina. He had no complaints made against him or his license while selling insurance for Globe Life. He was a good, reliable agent while with Globe Life.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Petitioner's application for licensure be granted conditioned upon passing the required examination and payment of the necessary fees. DONE and ENTERED this 15th day of August, 1983, in Tallahassee, Florida. MARVIN E. CHAVIS, 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 15th day of August, 1983. COPIES FURNISHED: Honorable Bill Gunter Insurance Commissioner and Treasurer The Capitol, Plaza Level Tallahassee, Florida 32301 Donald Ray Shelton Post Office Box 155 Grand Island, Florida 32735 Ruth Gokel, Esquire Department of Insurance 413-B Larson Building Tallahassee, Florida 32301
Findings Of Fact At all times material herein, the Respondent was a licensed Health and Legal Expense Insurance agent in the State of Florida. By criminal indictment filed October 4, 1984, Respondent was charged with the crimes of conspiracy to commit fraud, use of the mails to defraud and the use of a fictitious name or address to defraud. After a jury trial, Respondent was convicted of the offenses of conspiracy to commit fraud, in violation of Title 18, USC, Section 1341, Title 29, USC, Section 501(c), all in violation of Title 18, USC, Section 371, as charged in Count One of the Indictment and mail fraud, all in violation of Title 18, USC, Sections 1341 and 1342, as charged in Counts Two through Five of the Indictment. The American Federation of State, County and Municipal Employees (AFSCME) was at all times material herein a labor union affiliated with the AFL- CIO, a labor organization as defined in Section 402 of Title 29, United States Code. Florida Public Employees Council 79 (Council 79) was at all times material herein a labor union affiliated with AFSCME and the AFL-CIO, a labor organization as defined in Section 402 of Title 29, United States Code. The scheme upon which the Respondent's conviction rests, was directed toward both AFSCME and Council 79. At all times herein, Respondent was employed by either AFSCME or Council 79. Upon Council 79 being chartered, Respondent became its Tallahassee Regional Director. The record does not reflect any persons as victims of the scheme upon which the Respondent's conviction rests other than AFSCME and Council 79. Respondent's participation in the schemes upon which his conviction rests was as follows: (a) at the directions of William Van Zandt, Assistant to Jerry Wurf, President of AFSCME, and Thomas J. Fitzpatrick, President of Council 79, Respondent enrolled David J. Michalski as an employee of Council 79 and met with David J. Michalski in November 1979 to set up an address where payments on expense account vouchers and salaries would be delivered, and assisted David J. Michalski in opening an account at the bank for this purpose, and; (b) contacted George Albert Cuneo, Jr., President and owner of Cuneo Advertising, Inc., and requested that Cuneo mail bills for printing a Council 79 newspaper directly to G.A.D., Inc. G.A.D., Inc. was a corporation used by defendants other than Respondent to funnel inflated bills for advertising and public relations for payment by AFSCME or Council 79. The record is clear that Respondent had no knowledge of the schemes, was following orders of his superiors, and received no money, property, or other consideration for his participation in the schemes. The only evidence in the record concerning the Respondent's participation in the mail fraud is that the Respondent did apparently mail some matters concerning David R. Michalski's expense vouchers. Whether he mailed anything concerning the "kick-back scheme" or the inflated bills for advertising and public relations is not clear from the record. Respondent had never been convicted of a crime before this conviction. Respondent was sentenced to three (3) years on Count One but served only eight (8) months. The sentences in Count Two through Five were suspended and Respondent was placed on probation. Respondent was placed on probation for six (6) months on Counts Two through Four which began immediately and was placed on three (3) years probation on Count Five which was to run consecutively with the sentence imposed in Count One. After serving the eight (8) months of his sentence, Respondent returned to Tallahassee and enrolled in, and completed, a course in insurance at Tallahassee Community College hoping to further expand his existing insurance license. The record is clear that Respondent's reputation for truth and veracity in the community is good despite his conviction, and the Respondent enjoys a good reputation as far as his integrity in dealing with others in concerned.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record and the candor and demeanor of the witnesses, it is, therefore, RECOMMENDED that Petitioner, Department of Insurance, enter a Final Order dismissing all counts of the Administrative Complaint filed herein. Respectfully submitted and entered this 31st day of March, 1987, in Tallahassee, Leon County, Florida. WILLIAM R. CAVE 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 31st day of March, 1987. APPENDIX TO RECOMMENDED ORDER, CASE NO. 86-4404 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties in this case. Rulings on Proposed Findings of Fact Submitted by the Petitioner Adopted in Finding of Fact 1. Adopted in Finding of Fact 2. Adopted in Finding of Fact 3 as clarified. Adopted in Finding of Fact 5 with the exception of the phrase "with in excess of ten numbers" which is rejected as immaterial since there was no substantial competent evidence in the record to show that any individual member had been defrauded or that any conspiracy to defraud was directed at any individual member. Rulings on Proposed Findings of Fact Submitted by the Respondent 1. Adopted in Finding of Fact 3. 2-7. Rejected as immaterial and irrelevant. Adopted in Finding of Fact 9. Adopted in Finding of Fact 7. Adopted in Findings of Fact 9 and 11. Adopted in Findings of Fact 9 and 11. Adopted in Findings of Fact 9 and 11. Adopted in Finding of Fact 9. Adopted in Findings of Facts 9 and 11. Rejected as immaterial and irrelevant. Adopted in Finding of Fact 15. Rejected as immaterial and irrelevant. Adopted in Finding of Fact 13. 19.-20. Adopted in Finding of Fact 16. COPIES FURNISHED: Robert V. Ellias, Esquire Department of Insurance 413-B Larson Building Tallahassee, Florida 32399-0300 Ben R. Patterson, Esquire PATTERSON and TRAYNHAM 1215 Thomasville Road Post Office Box 4289 Tallahassee, Florida 32315 Honorable William Gunter State Treasurer and Insurance Commissioner The Capitol, Plaza Level Tallahassee, Florida 32399-0300 =================================================================
The Issue Whether Petitioner's application for licensure as a health insurance agent should be granted.
Findings Of Fact By application dated December 18, 2001, Visser applied to the Department for a license as a health insurance agent. On the application, Visser answered affirmatively to the following question: Have you ever been charged, convicted, found guilty, or pleaded guilty or nolo contendere (no contest) to a crime under the laws of any municipality, county, state, territory or country, whether or not adjudication was withheld or a judgment of conviction was entered? In March 1999, a three-count information was filed in the Circuit Court of the Tenth Judicial Circuit In and For Polk County, State of Florida, charging Visser with burglary of a dwelling, a second degree felony; grand theft dwelling $100 or more, a third degree felony; and possession of cannabis less than 20 grams, a first degree misdemeanor. On July 27, 1999, Visser pled nolo contendere to all three counts. Adjudication was withheld. Visser was placed on probation, required to reimburse the Lakeland Police Department $250 for the costs of investigation, assessed $500 in court costs, and required to perform 60 hours of community service. Visser completed her probation, and an Order Terminating Probation was entered on November 21, 2002. The Department denied her application for licensure by letter dated May 17, 2002, stating that the application was denied on the basis of Subsections 626.611(1), (7), (14), 626.621(8), and 626.831(1), Florida Statutes.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered denying the application of Naomi A. Visser for licensure as a health insurance agent. DONE AND ENTERED this 21st day of January, 2003, in Tallahassee, Leon County, Florida. SUSAN B. KIRKLAND Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 21st day of January, 2003. COPIES FURNISHED: Ladasiah Jackson, Esquire Department of Insurance 200 East Gaines Street Tallahassee, Florida 32399-0333 Naomi A. Visser 1617 London Grove Port Road Grove City, Ohio 43123 Honorable Tom Gallagher Chief Financial Officer Department of Financial Services The Capitol, Plaza Level 11 Tallahassee, Florida 32399-0300 Mark Casteel, General Counsel Department of Financial Services The Capitol, Plaza Level 11 Tallahassee, Florida 32399-0300
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.
Findings Of Fact Based on the evidence adduced at hearing, and the record as a whole, the following Findings of Fact are made: 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. On July 11, 2017, Breana underwent an esophagogastroduodenoscopy, or “EGD” procedure. On July 11, 2017, while undergoing the EGD procedure, Breana Collins was noted to be unarousable and unresponsive. 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. On August 24, 2017, Breana died. Her cause of death was noted as acute cardiorespiratory arrest. 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. In 2020, Petitioner, Clifford Collins, settled the tort action for a limited confidential amount due to significant liability and causation challenges with the claims. 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. AHCA paid benefits in the amount of $44,836.83 for the care of Breana related to the injuries allegedly caused by third parties. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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.” 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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.
Findings Of Fact On March 23, 1992, Petitioner executed and subsequently submitted to Respondent agency his sworn application for licensure as a life and variable annuity and health insurance agent. On November 9, 1992, the Respondent notified Petitioner by Denial Letter that his application for licensure had been denied because his nondisclosure of past felony convictions and his representation that he had no such convictions was deemed a material misrepresentation and because the convictions themselves constituted a bar to licensure. The denial named the convictions and cited applicable statutes. On his application, Petitioner had been asked several questions in a run-on sentence. He filled in the answer NO to each element of the sentence as follows: "Have you ever been charged with or convicted of or pleaded guilty or no contest to a crime involving moral turpitude NO, or a felony NO or a crime punishable by imprisonment of one (1) year or more under the law of any state, territory or county, whether or not a judgment or conviction has been entered? NO" However, on June 3, 1985, Petitioner was charged in the United States District Court for the Eastern District of Virginia with one count of Possession with Intent to Distribute Cocaine, a felony punishable by one year or more of imprisonment in violation of Title 21 U.S.C. Section 841(a)(1) and Title 18 U.S.C. Section 2, and one count of Travel in Interstate Commerce With Intent to Promote, Manage, Establish and Distribute Cocaine, a felony punishable by one year or more imprisonment in violation of Title 18 U.S.C. Sections 1952(a)(3) and (2). On August 23, 1985, Petitioner was found guilty and convicted of the foregoing felony charges and was sentenced to five years in federal prison followed by a special parole term of three years. At the time of formal hearing, Petitioner was serving his probationary term and was under parole supervision. On July 23, 1987, Petitioner was found guilty of criminal contempt of court in violation of Title 18 U.S.C. Section 401 and Rule 42 of the Federal Rules of Criminal Procedure and was sentenced to ninety days imprisonment. Petitioner has made significant amendment of life and life-style since his incarceration and during parole. He is gainfully employed, happily married, and the father of a seventeen month old child. He seeks employment in the insurance industry to further better himself and contribute to society. He testified that he answered the first part of the question as "no" because he did not consider his crimes to be crimes of moral turpitude, which, in his opinion, would be such crimes as fraud or child molestation. As to the rest of the question, he stated that he had no recollection of answering "no," but admitted he signed the application verifying the answer, "no" as true. He suggested that he may have been interpreting each successive element of the question as relating back to "crimes of moral turpitude," when he answered "no".
Recommendation Upon the foregoing findings of fact and conclusions of law, it is recommended that the Department of Insurance enter a final order ratifying its denial of Petitioner's application for licensure. RECOMMENDED this 21st day of May, 1993, at Tallahassee, Florida. ELLA JANE P. DAVIS Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 21st day of May, 1993. APPENDIX TO RECOMMENDED ORDER 92-2060 The following constitute specific rulings, pursuant to S120.59(2), F.S., upon the parties' respective proposed findings of fact (PFOF). Petitioner's PFOF: Petitioner's proposals are not numbered and constitute only admissions and argument. The admissions have been incorporated in the findings of fact as appropriate. The paragraphs of argument are rejected as argument and because they are not proposed findings of fact. Respondent's PFOF: Respondent's proposed findings of fact 1-9 are accepted in substance except where unnecessary, subordinate or cumulative. COPIES FURNISHED: Tom Gallagher State Treasurer and Insurance Commissioner The Capitol, Plaza Level Tallahassee, FL 32399-0300 Bill O'Neil, Esquire General Counsel Department of Insurance and Treasurer The Capitol, PL-11 Tallahassee, FL 32399-0300 John R. Dunphy, Esquire Department of Insurance and Treasurer 612 Larson Building Tallahassee, FL 32399-0300 Carlos A. Salas 10150 Arrowhead Drive East Unit #5 Jacksonville, FL 32257
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found: At all times relevant to this proceeding, Eduardo E. Ramos was a licensed medical doctor in Florida. He is also licensed in the states of Maryland, New jersey and New York, and specializes in general surgery. On November 11, 1977 , an Information was filed against respondent alleging one count of conspiracy and eleven counts of grand larceny. On or about April 6, 1978, respondent pled guilty to Count III of the Information, which charged respondent with grand larceny. Judge Richard S. Fuller of the Circuit Court of Dade County stated that he was satisfied there was a factual basis for the plea. On May 23, 1978, Judge Fuller entered an "order withholding adjudication." Said order states, in part, "it appearing unto the court that the defendant, Eduardo Ramos, has been found guilty of the charge of grand larceny as set forth in Count Three of the Information by the Court upon the entry of a guilty plea. . . ." The Court withheld the imposition of sentence and placed the respondent on probation for a term of three years. Among the conditions of his probation, respondent was ordered to pay a fine in the amount of $2,000.00, make restitution to the insurance company in the amount of $550.00 and serve one veer of weekends In community service at the Jackson Memorial Hospital, Ward D. At the time of the hearing in this cause, respondent had completed his year of weekend service at the Jackson Memorial Hospital. He reported there every Friday at 6:00 p.m. and stayed until Sunday, 6:00 p.m. His services included acting as a physician, a consultant, an instructor to nurses, a nurse and an orderly. Dr. Ramos did fill out and sign multiple insurance forms for a patient and responded "no" to the question on the form asking if there was other insurance coverage. He did not have specific knowledge of the patient's intent to defraud the insurance companies and he received no extra compensation from the patient for filling out the form. He received no compensation or reimbursement from the insurance company. He did realize that something was not right when he was asked by the patient to fill out and sign several forms.
Recommendation Based upon the findings of fact and conclusions of law recited above, it is RECOMMENDED that the Board find the respondent guilty of violating Sections 458.1201(1)(c) and (1)(k), Florida Statutes, and issue a private reprimand to respondent for said offenses. Respectfully submitted and entered this day of July, 1979, in Tallahassee, Florida. DIANE D. TREMOR, Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: William B. Wiley McFarlain, Bobo, Sternstein and Wiley 666 Lewis State Bank Building Tallahassee, Florida 32301 Leonard Sussman 204 Biscayne Building 19 West Flagler Street Miami, Florida 33130 Michael Schwartz Suite 201 Ellis Building 1311 Executive Center Drive Tallahassee, Florida 32301
The Issue Whether Petitioner is entitled to a legal expense insurance agent's license.
Findings Of Fact On October 17, 2001, Petitioner applied for licensure as a legal expense insurance agent. On December 20, 2001, the Department denied Petitioner's application for licensure based upon his unfitness and untrustworthiness due to Petitioner's guilty plea to conspiracy to engage in racketeering, for conduct which occurred while he was a sitting circuit court judge and which was related to his judicial duties. Petitioner had fully disclosed the plea and the details of the crime in his application to the Department. Petitioner received a juris doctorate degree in 1975 and a master's in criminal law in 1977. After being admitted to the Florida Bar, Petitioner worked as an assistant state attorney, as an associate with a private firm, as a practitioner in his own law firm, and finally was elected to a judgeship at the county court level. Petitioner served two years as a county court judge. In 1988, Petitioner was elected to the circuit court. As such, Petitioner was required to read, know, and abide by the Code of Judicial Conduct. He swore to uphold the Code of Judicial Conduct and voluntarily assumed an office that encompassed the highest level of responsibility and fiduciary duty to the public found in any public office in the United States of America. Petitioner was assigned to the criminal law division of the circuit court. Petitioner knowingly took bribes while he was a sitting circuit court judge. Because Petitioner was in debt, he approached an attorney named Raymond Takiff for a loan. Petitioner admitted that Mr. Takiff agreed to give him money in exchange for Petitioner's helping him out some time in the future. At that time, Mr. Takiff was being used by the Federal Bureau of Investigations (FBI) to set up an undercover bribery investigation. In return for Mr. Takiff's financial help, Petitioner ruled in favor of Mr. Takiff and ordered the return of some property that was the subject matter of one of the false criminal/forfeiture cases used by the FBI in their investigation. Petitioner knowingly helped Mr. Takiff establish a group of judges who would also take bribes. Petitioner stated that he introduced Mr. Takiff to ten other judges and that these instructions included Petitioner's saying that Mr. Takiff was trustworthy, that he could make it worth their while, and convincing the judges that Mr. Takiff was not working for the government. Petitioner continued to be involved in the on-going scheme to bribe multiple judges. One of the judges who received money from Mr. Takiff proceeded to send a portion of this bribe back to Respondent. Petitioner ultimately received $88,000.00 from Mr. Takiff in exchange for actions such as ruling for Mr. Takiff in one case and for knowingly establishing Mr. Takiff with other judges in an attempt to perpetuate the bribery scheme. Petitioner also accepted money from friends in exchange for setting them up with some appointments. Eventually, Petitioner was caught and arrested by the FBI. Petitioner agreed to help the FBI in the on-going investigation and multiple trials stemming from the FBI sting operation. As a result of the aforementioned acts on April 9, 1992, Petitioner pled guilty to conspiracy to engage in racketeering in Federal District Court in the Southern District of Florida and was sentenced to 12 years and seven months in federal prison. Petitioner's actions violated the fiduciary duty he had voluntarily assumed upon becoming a circuit court judge, and by introducing other judges to Mr. Takiff, he was promoting and causing a continuous and increasing breach of the judiciary's fiduciary duty to the public. The offense for which Petitioner was convicted did not have any relation either directly or indirectly upon the insurance business. Petitioner was disbarred on September 26, 1991. While in prison, Petitioner continued to live up to his agreement to help the FBI in the prosecution of criminal cases stemming from the sting operation, even though he did not have to, and was in grave danger because of his continued help. Petitioner had numerous threats made on his life, including contracts to kill him. Petitioner was nearly beaten to death in the attempted execution of one of the contracts on his life. He continued to help the FBI and felt it was one way to make up for his absolute breach of conscience and faith in committing the crime for which he was imprisoned. Subsequent to an unusual Rule 35 hearing held on June 9, 1995, Petitioner's sentence was shortened to five years' incarceration followed by three years' supervised release. The Rule 35 hearing was unusual in that the FBI agents and prosecutors were strongly in favor of Petitioner's release from prison and testified in his favor. Petitioner has completed his supervision and has since tried to pick up the pieces of his life. As a result of his conduct, Petitioner lost everything--family, friends, reputation and property. He clearly has learned the value of integrity and trustworthiness. He helps in various community organizations and serves as a mentor to others who might follow a less than trustworthy life. Petitioner had his civil rights, except the specific authority to possess or own a firearm, restored by the Office of Executive Clemency on August 31, 2002. Petitioner did not lie, mislead, or attempt to conceal in any way his past felony conviction. Petitioner has shown remarkable achievements in rehabilitating himself. Multiple witnesses testified as to his many deeds and rehabilitative achievements in ameliorating his admitted misdeeds in the face of actual death threats and brutal physical attacks resulting in severe and permanent bodily injury. Given this rehabilitation, Petitioner is entitled to be licensed as a legal expense insurance agent.
Recommendation Based on the foregoing Findings of Facts and Conclusions of Law, it is RECOMMENDED: That a final order be entered granting Petitioner's application for licensure as a legal expense agent in the State of Florida. DONE AND ENTERED this 2nd day of December, 2002, in Tallahassee, Leon County, Florida. DIANE CLEAVINGER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 2nd day of December, 2002. COPIES FURNISHED: John R. Forbes, Esquire 8825 Perimeter Park Boulevard Suite 102 Jacksonville, Florida 32216 Matthew A. Nowels, Esquire Department of Insurance 200 East Gaines Street Tallahassee, Florida 32399-0333 Honorable Tom Gallagher State Treasurer/Insurance Commissioner Department of Insurance The Capitol, Plaza Level 02 Tallahassee, Florida 32399-0300 Mark Casteel, General Counsel Department of Insurance The Capitol, Lower Level 26 Tallahassee, Florida 32399-0307
