The Issue What amount of the personal injury settlement recovered by Petitioners, Valeria Alcala ("Alcala"), et al., must be paid to Respondent, Agency for Health Care Administration ("AHCA" or "Agency"), pursuant to section 409.910, Florida Statutes (2018), to satisfy the Agency's claimed $76,973.33 Medicaid Lien?
Findings Of Fact The undersigned makes the following Findings of Fact based on the stipulations of the parties and the evidence presented at the hearing. PARTIES' STIPULATED FACTS AND LAW On November 3, 2005, Yobany Rodriguez, age 38, was a passenger in a motor vehicle involved in a minor collision. She was eight months pregnant. Fire Rescue examined her on the scene. She had a sore back, elevated blood pressure, and no other visible injuries. She declined hospital transport. The following day (November 4, 2005) she went to the Public Health Trust's Penalver Clinic ("Penalver") where she had been receiving her pre- natal care as a "county indigent" without insurance. She had been experiencing irregular contractions since 7:00 a.m. and Penalver referred her to Jackson Memorial Hospital to rule out pregnancy induced hypertension. She was examined. Fetal movement was noted, membranes were intact, and she was admitted at 4:40 p.m., November 4, 2005, as high risk based on age and concerns regarding pregnancy induced hypertension. On November 6, 2005, at 00:29 a.m., Valeria Alcala was delivered over a right midline episiotomy with no respirations and apgars of 1/2/3 at 1, 5, and 10 minutes respectively. On that same day, Valeria Alcala was delivered in a severely depressed state, with an apparent subgaleal hematoma, possible subdural and cerebral hemorrhage, and hypoxic/anoxic injury to her brain. Shortly after her birth, it was noticed that Valeria's head was extremely swollen. CT of the brain showed an occipital bone fracture with bilateral posterior parietal bones overriding the occipital bone; severe scalp soft tissue swelling; subgaleal hemorrhage; bilateral parieto-occipital epidural hematomas; and a frontal contusion. As a result of the alleged malpractice on November 6, 2005, Alcala suffered a hypoxic event at birth leading to cognitive deficits and significant damage to her kidneys. Alcala brought a medical malpractice action to recover all of her damages from the malpractice. This action was brought against Jackson Memorial Hospital and the University of Miami School of Medicine ("University of Miami"). In 2019, Alcala settled her tort action for $750,000.00, even though Petitioners believed Alcala's injuries were tens of millions of dollars in excess of the recovery. AHCA was properly notified of Alcala's lawsuit against Jackson Memorial and the University of Miami. AHCA paid benefits related to the injuries from the incident in the amount of $76,973.33. AHCA has asserted a lien for the full amount it paid, $76,973.33, against Alcala's settlement proceeds. The parties stipulated that AHCA is limited in the section 409.910(17)(b) procedure to the past medical expenses portion of the recovery, and that a preponderance of the evidence standard should be used. Petitioners and AHCA also agreed that application of the formula found at section 409.910(11)(f), to the $750,000.00 settlement amount, requires payment to AHCA in the amount of $76,973.33. Petitioners and AHCA agreed that the burden of proof for a Medicaid recipient to successfully contest the amount payable to AHCA in a section 409.910(17)(b) proceeding is a preponderance of the evidence. § 120.57(1)(j), Fla. Stat. Petitioners and AHCA agree that the 2019 version of section 409.910 controls DOAH's jurisdiction and this case, and further they agree that Petitioners have met the conditions precedent to bring the petition. ADDITIONAL EVIDENCE AT THE HEARING At the final hearing, Alcala presented expert testimony from Andrew Needle, Esquire ("Needle"), her personal injury attorney, and Kenneth Bush, Esquire ("Bush"), an experienced trial lawyer who handles catastrophic damages cases with a specialty in medical malpractice. Both Needle and Bush were accepted as experts on the valuation of personal injury damages for an injured individual. Needle is a 43-year practicing attorney who is a partner with the Miami, Florida law firm of Needle & Ellenberg, P.A. He testified regarding his representation of Alcala. Needle handles serious/catastrophic medical malpractice injury cases throughout Florida exclusively for plaintiffs. He specializes in litigating complex medical malpractice claims. In his practice he has handled, and currently handles, cases with personal injuries similar to those suffered by Alcala. He is admitted to practice law in Florida. Needle regularly evaluates the damages suffered by injured people such as Alcala. He is familiar with Alcala's damages from his representation of Alcala in this personal injury lawsuit. Needle was tendered as an expert regarding valuation of personal injury damages. The Agency did not object to the witness or his qualifications, and the undersigned accepted him as such an expert. Needle testified as to the nature of the litigation on behalf of Alcala and the difficult liability issues related to Alcala and her injuries. As part of his work-up of the case, he evaluated all elements of damages suffered by Alcala. After litigating the case for a lengthy period of time, Needle negotiated a settlement of $750,000.00 against the defendants. He testified regarding the process that he followed to evaluate and arrive at his opinion related to the total value of the damages suffered in Alcala's case. Through the course of his representation, he met with the family; reviewed all the medical information; evaluated the facts of the case; determined how the alleged malpractice occurred; reviewed all records and reports regarding the injuries Alcala suffered; analyzed liability issues and fault; developed economic damages figures; and also valued noneconomic damages such as pain and suffering--both future and past, loss of capacity to enjoy life, scarring and disfigurement, and mental anguish. Needle testified about the significant impact of the injuries on Alcala's life. He related that Alcala has endured significant medical treatment as a result of the alleged malpractice and resulting injuries to her kidneys. As a result of her injuries, Alcala's life has been severely impacted due to the brain injury, seizures, and treatment to her kidneys. Needle testified that the total value of Alcala's damages was conservatively $9 million. That figure included Alcala's pain and suffering, mental anguish, loss of quality of life, and the economic damages. He opined that in comparing the $9 million total valuation to the settlement proceeds of $750,000.00, this resulted in Alcala recovering only 8.3% of her total damages. Needle's testimony was not contradicted by AHCA, and was persuasive on this point. Bush is a 37-year practicing plaintiff attorney whose practice focuses on litigating serious plaintiff personal injuries involving medical malpractice. He testified as an expert as to the total valuation of Alcala's damages, and resolution of healthcare liens on behalf of Alcala. Bush and his firm specialize in litigating serious and catastrophic personal injury cases throughout Florida. As part of his practice, Bush has reviewed thousands of personal injury cases as it relates to damages. Bush has worked closely with economists and life care planners to identify the relevant types of damages in catastrophic personal injuries, and he regularly evaluates the types of damages suffered by those who are catastrophically injured. Bush was tendered as an expert regarding valuation of personal injury damages and resolution of liens in personal injury cases. The Agency did not object to the witness or his qualifications, and this tribunal accepted him as such an expert. Bush testified as to how he arrived at his valuation opinion by explaining the elements of damages suffered by Alcala. Similar to Needle, he stated that the greatest element of loss Alcala suffered was noneconomic damages. He testified that, in his opinion, the total damages suffered by Alcala were in the range of $9 to $10 million, and agreed with the conservative $9 million total valuation testified to by Needle. He testified that the future care of Alcala would be in the high seven figures based upon a life care plan. His opinion as to the total value of the claim was not persuasively rebutted or contradicted by AHCA's counsel on cross examination or by any other evidence. Bush also testified that he believed that the standard accepted practice when resolving liens in Florida was to look at the total value of damages compared to the settlement recovery. This results in a ratio which may be used to reduce the lien amount sought by AHCA.1 Both Needle and Bush testified about the total value of the claim for Alcala's personal injury medical malpractice case. They also testified as to a method that, in their opinions, reasonably allocated a percentage of the settlement amount to past medical expenses. Both witnesses reviewed Alcala's medical information and other information before offering an opinion regarding her total damages. AHCA offered no convincing or credible evidence to question the credentials or opinions of either Needle or Bush, or to persuasively assail the methodology used by Petitioners. 1 This is also commonly referred to as the proportionality ratio or methodology. Further, the Agency did not offer any evidence to rebut the testimony of either Needle or Bush regarding the total value of Alcala’s claim or the proportionality ratio they proposed which would reduce Alcala’s claim. Likewise, AHCA did not offer any alternative expert opinions on the damage valuation or allocation method proposed by either Needle or Bush. The undersigned finds that Petitioners have established by unrebutted and uncontradicted evidence that the $750,000.00 recovery is 8.3% of the total value ($9 million) of Petitioners' total damages. Using that same 8.3% and applying the current proportionality methodology required by the First District Court of Appeal, Petitioners have established that 8.3% of $76,973.33, or $6,414.44, is the amount of the recovery fairly allocable to past medical expenses and is the portion of the Medicaid lien payable to AHCA.
The Issue The issue to be decided in this proceeding is the amount to be paid to Respondent, Agency for Health Care Administration (“AHCA” or the “Agency”), from the proceeds of a personal injury settlement received by Petitioner, Emily E. Bryan (“Bryan”), to reimburse the Florida Medicaid Program (“Medicaid”) for expenditures made on her behalf.
Findings Of Fact The following Findings of Fact are derived from the exhibits and oral testimony at final hearing, as well as from the stipulated facts between the parties. On April 12, 2010, just a couple of days after her first birthday, Bryan was taken to the emergency room (“ER”) at a local hospital. (Due to a confidential settlement between the hospital and Bryan, the name of the healthcare facility will not be disclosed in this Final Order.) The reason for the hospital visit was a blunt head trauma Bryan had experienced, followed by multiple episodes of vomiting and excessive sleepiness. A CT scan of her brain revealed a subdual hemorrhage within the anterior falx and a small amount of subarachnoid hemorrhage adjacent to the anterior falx. She was admitted to the hospital for observation, but no surgery was deemed necessary at the time. Due to repeated emesis (vomiting), a repeat brain scan was done on April 15, 2010, i.e., three days later. This scan demonstrated less apparent areas of hemorrhage and no new areas of hemorrhage, but front scalp swelling was detected. Bryan was discharged from the hospital with instructions to return if the symptoms did not improve. Bryan was taken back to the hospital ER the very next day, April 16, 2010, and returned again on May 7, 2010, and on May 13, 2010. The day after her last hospital visit, Bryan experienced a grand mal seizure while at her daycare center. She went into respiratory distress and was transmitted by ambulance to the hospital ER. A brain scan was done, which revealed bilateral subdural hematomas involving the interhemispheric fissure, convexity of both frontal parietal lobes, as well as the inferior area of the corpus callosum, anteriorly. She required intubation and admitted to the pediatric intensive care unit. As a result of initially undiagnosed problems, Bryan developed severe neurological injury resulting in communication disabilities (receptive and expressive), cognitive impairments, seizures, quadriparesis (extremity function), bowel and bladder control issues, and difficulty swallowing. There does not appear to be any way to reverse the damage, and Bryan will likely lead a life without much development or growth. As a result of Bryan’s injuries, she sued the hospital, the ER, and two doctors who first treated her. She claimed damages well in excess of $30 million, perhaps as much as $60 or $70 million dollars. The amount she claimed was for both economic and non-economic damages. There was no evidence provided at final hearing as to whether either of those categories of damages was more or less critical than the other. The valuation experts did opine that non-economic damages are more vague, nebulous and ephemeral than economic damages. Bryan received extensive medical care for treatment of her condition. The majority of that care was paid for by Medicaid. Upon completion of her treatment, Medicaid imposed a lien in the amount of $379,599.90 (the “Medicaid Lien”), representing the amount of money Medicaid expended for Bryan’s past medical expenses. Medicaid is now seeking repayment of the Medicaid Lien. The medical malpractice action filed on Bryan’s behalf sought to obtain payments from the defendants in an amount sufficient to care for Bryan’s future needs and to pay for her medical expenses, past and present. The Medicaid Lien represented the majority of past medical expenses. Her other damages, economic and non-economic, were estimated from objective expectations based on similar cases, expert analysis, and reasonable guesswork. One of Bryan’s lawyers in her malpractice action estimated a value of her economic damages in the range of $26 to $30 million. He estimated the value of her non-economic damages at about the same amount, but possibly up to twice the amount of the economic damages. Again, non-economic damages are more difficult to ascertain. Another expert in valuation of claims of this sort estimated the total value of Bryan’s damages to be $30 to $60 million. Prior to the medical malpractice trial, Bryan’s attorneys and representatives began to worry that the hospital, which had the largest assets and best insurance coverage, might be able to avoid liability for Bryan’s damages. If there was no liability for the hospital, Bryan would have to receive any monetary recovery from the doctors, whose insurance coverages were woefully inadequate to pay the estimated value of Bryan’s damages. This situation induced her legal team to seek a settlement that included the hospital. During the settlement discussions, it was presumed by some of the defendants that Bryan’s counsel would be able to convince AHCA to reduce the Medicaid Lien. Neither Medicaid nor AHCA was represented in the settlement discussions, so it is not known how the defendants came to that belief concerning the Medicaid Lien. In fact, AHCA chose not to be involved in the settlement discussions; rather, they asserted their Medicaid Lien in full and left it up to the parties to address that potentiality. Bryan eventually settled with the defendants for the sum of three million dollars ($3,000,000), the “Settlement Amount.” This sum was much less than the potential or estimated value of her damages, but is the amount decided upon by her professional representatives as acceptable for the value of her claim. This settlement was reached despite the known liability of the Medicaid Lien. The estimated value of Bryan’s damages was not an absolute figure. That is, no one testified as to what amount would be awarded if the case went before a jury. In fact, the defendants seemed to have had significant defenses they might have raised if the case had proceeded to trial. The Settlement Amount was deemed acceptable by all parties considering the full circumstances of the case and all potential defenses that might have been raised. There is no dispute that AHCA paid for medical treatment in an amount commensurate with the Medicaid Lien. Bryan is not challenging that amount; she merely asserts that there is only a much smaller amount of funds available to pay that lien. Bryan asserts that only $38,106.28 of the $3 million settlement was actually allocated to past medical expenses and is, therefore, the pool of settlement funds from which the Medicaid Lien could be paid. As noted above, two qualified and experienced trial attorneys evaluated the settlement as it related to Bryan’s injuries. Each of those–-as confirmed by a hearsay affidavit from another expert-–noted that Bryan’s recovery in the settlement was far less than her actual damages. Those damages included, presumably, all of Bryan’s past medical costs, her pain and suffering, and her projected future costs (e.g., ongoing medical care, therapies, private nursing care, extensive rehabilitation and assistance, equipment and supplies, round- the-clock supervision). However, none of the experts qualified any of these costs, vis-à-vis the other costs. For example, if it had been determined that Bryan’s care going forward was much more critical than her past medical expenses, the past medical costs may have warranted a smaller percentage of the total settlement than future care was awarded. The “one size fits all” (percentage) approach by the three valuators puts each element of Bryan’s damages at equal value. That approach is simply not persuasive. The settlement agreement between the parties in the medical malpractice action did not allocate a specific portion of the Settlement Amount to past medical expenses. Any effort by Bryan to do so after the fact and without confirmation by the other parties is speculative. The allocation of 10 percent of the Settlement Amount to each and every element of Bryan’s damages is not proven by the evidence presented at final hearing.
The Issue The issue to be determined is the amount to be reimbursed to Respondent, Agency for Health Care Administration (“AHCA”), for medical expenses paid on behalf of Clifford J. Deyampert (“Petitioner” or “Mr. Deyampert”) pursuant to section 409.910, Florida Statutes (2015),1/ from settlement proceeds received by Mr. Deyampert from a third party.
Findings Of Fact The following findings of fact are based on exhibits accepted into evidence, admitted facts set forth in the pre- hearing stipulation, and matters subject to official recognition. Facts Pertaining to the Underlying Personal Injury Litigation and the Medicaid Lien On July 25, 2015, Mr. Deyampert was attending a party held at a friend’s house and was shot in the throat by another guest. The bullet traveled down Mr. Deyampert’s throat, struck his spinal cord, and caused Mr. Deyampert to be paralyzed from the chest down. As a result, Mr. Deyampert is permanently disabled, disfigured, and wheelchair-bound. In addition, Mr. Deyampert is bowel and bladder incontinent.2/ Medicaid paid $76,944.67 in order to cover Mr. Deyampert’s past medical expenses. No portion of the $76,944.67 paid by Medicaid on Mr. Deyampert’s behalf represents expenditures for future medical expenses, and Medicaid did not make payments in advance for medical care. Mr. Deyampert initiated a personnel injury lawsuit by making a claim against a homeowner’s insurance policy that covered the shooter. Mr. Deyampert’s personal injury action settled for $305,000, and that was the limit of an aforementioned insurance policy.3/ The General Release memorializing the settlement stated the following: Although it is acknowledged that this settlement does not fully compensate Clifford Deyampert for all of the damages he has allegedly suffered, this settlement shall operate as a full and complete Release as to Releasees without regard to this settlement only compensating Clifford Deyampert for a fraction of the total monetary value of his alleged damages. The parties agree that Clifford Deyampert’s alleged damages have a value in excess of $6,000,000, of which $76,944.67 represents Clifford Deyampert’s claim for past medical expenses. Given the facts, circumstances, and nature of Clifford Deyampert’s injuries and this settlement, the parties have agreed to allocate $3,847.23 of this settlement to Clifford Deyampert’s claim for past medical expenses and allocate the remainder of the settlement toward the satisfaction of claims other than past medical expenses. This allocation is a reasonable and proportionate allocation based on the same ratio this settlement bears to the total monetary value of all Clifford Deyampert’s damages. Further, the parties acknowledge that Clifford Deyampert may need future medical care related to his injuries, and some portion of this settlement may represent compensation for future medical expenses Clifford Deyampert will incur in the future. However, the parties acknowledge that Clifford Deyampert, or others on his behalf, have not made payments in the past or in advance for Clifford Deyampert’s future medical care and Clifford Deyampert has not made a claim for reimbursement, repayment, restitution, indemnification, or to be made whole for payments made in the past or in advance for future medical care. Accordingly, no portion of this settlement represents reimbursement for future medical expenses. During the pendency of Mr. Deyampert’s personal injury action, AHCA was notified of the suit and asserted a Medicaid lien in the amount of $76,944.67 against any damages received by Mr. Deyampert. Via a letter issued on July 24, 2017, Mr. Deyampert’s attorney notified AHCA that Mr. Deyampert’s personal injury action had settled. The letter asked AHCA to specify what amount it would accept in satisfaction of the $76,944.67 Medicaid lien. AHCA responded by demanding full payment of the lien. Section 409.910(11)(f) sets forth a formula for calculating the amount that AHCA shall recover in the event that a Medicaid recipient or his or her personal representative initiates a tort action against a third party that results in a judgment, award, or settlement from a third party.4/ AHCA is seeking to recover $76,944.67 in satisfaction of its Medicaid lien. See § 409.910(11)(f)4., Fla. Stat. (providing that “[n]otwithstanding any provision in this section to the contrary, [AHCA] shall be entitled to all medical coverage benefits up to the total amount of medical assistance provided by Medicaid.”). Valuation of the Personal Injury Claim F. Emory Springfield represented Mr. Deyampert during the personal injury action and testified during the final hearing. Mr. Springfield has practiced law for 32 years. He owns his own law firm and handles cases involving personal injury, workers’ compensation, and social security disability. Mr. Springfield has experience with jury trials and monitors jury verdicts issued in his fields of practice. Mr. Springfield routinely assesses the value of damages suffered by injured parties. He makes those assessments by determining the injured person’s life expectancy, evaluating the injuries, and conferring with lifecare planners about the injured party’s need for future care. In addition, Mr. Springfield learns as much as possible about the injured party’s past life activities and compares those activities to what the injured party is presently capable of doing. Mr. Springfield also assesses an injured party’s damages by examining jury verdicts from other cases. Mr. Springfield was accepted in this proceeding as an expert regarding the valuation of damages. Mr. Springfield is of the opinion that Mr. Deyampert’s damages (including damages for pain and suffering and economic damages) are well in excess of $6 million. According to Mr. Springfield, the $305,000 settlement does not “come close” to fully compensating Mr. Deyampert for all of his damages. Furthermore, the $305,000 settlement only represents a five percent recovery of the more than $6 million in damages incurred by Mr. Deyampert. Therefore, in Mr. Springfield’s opinion, only five percent (i.e., $3,847.23) of the $76,944.67 in Medicaid payments for Mr. Deyampert’s past medical expenses were recovered. Mr. Deyampert also presented the testimony of R. Vinson Barrett, Esquire, during the final hearing. Mr. Barrett is a trial attorney who has been practicing in North Florida since the mid 1970s. Over the last 30 years, he has focused his practice on the areas of medical malpractice, medical products liability, and pharmaceutical liability. Mr. Barrett routinely handles jury trials and monitors jury verdicts issued in his practice areas. Mr. Barrett routinely assesses the value of damages suffered by injured parties. According to Mr. Barrett, a personal injury attorney must be skilled at estimating the value of a client’s claim. Otherwise, the high cost of bringing a case to trial can result in a personal injury attorney losing money and going bankrupt. Mr. Barrett was accepted in this proceeding as an expert regarding the valuation of damages. Mr. Barrett gave the following testimony regarding Mr. Deyampert’s damages: This man not only is a paraplegic, but during all this, and I couldn’t really tell from the records I read whether the bullet caused this or some intubation in the hospital, but he got air into the space between his lung and his diaphragm, which can be a very painful problem, he had to be intubated to get that out. He developed, I believe, sepsis, at some point in his -- in his treatment; and it’s already evidence early on in his situation that he’s going to be, and is very susceptible to pressure ulcers on his skin. His skin is going to be prone to breakdown from prolonged periods of sitting in the same position and that sort of thing. Fortunately, he has enough strength left in his upper body that he’s able to ameliorate that somewhat. He’s able actually, on his own, and after a lot of rehab, to roll over in his bed to different positions even though his lower extremities are not working at all. He’s able to -- he’s able to reposition himself in his chair using the strength of his arms, so that will cut down a little bit on that. But he had already developed a pressure ulcer or two by the time he got into rehab in this case. He – so, he’s got no use at all, it appears, of his lower extremities. He had a number of complications that had to be dealt with. He was in the hospital a long time. His overall prospects after rehabilitation -– and he was still in some rehabilitation as early as about February of this year, so I’m not totally sure he’s through all his rehab yet. He has to take rehabilitation courses to learn -– relearn how to do things. He’ll need his home made wheelchair accessible, cabinets, and thing[s] like that, all the things that a person normally does without thinking about, are going to be challenges for him just in daily household stuff. He will have to have modifications, most likely, of his kitchen, his bathroom, that sort of thing. And so, yeah, there’s quite a bit to work within this case to come up with an evaluation. Mr. Barrett opined that $6 million was a “very conservative” estimate of the damages suffered by Mr. Deyampert. Mr. Barrett also opined that allocating five percent of the $76,000 claim (i.e., $3,847.23) to past medical expenses was a reasonable and rational allocation to past medical expenses and reflected the ratio of the amount recovered to the actual value of Mr. Deyampert’s damages. Findings Regarding the Testimony Presented at the Final Hearing The undersigned finds that the testimony from Mr. Springfield and Mr. Barrett was compelling and persuasive. While attaching a value to the damages that a plaintiff could reasonably expect to receive from a jury is not an exact science, Mr. Springfield’s and Mr. Barrett’s decades of experience with litigating personal injury lawsuits make them very compelling witnesses regarding the valuation of damages suffered by injured parties such as Mr. Deyampert.5/ Accordingly, the undersigned finds that Mr. Deyampert proved by a preponderance of the evidence that $3,847.23 constitutes a fair and reasonable recovery for past medical expenses actually paid by Medicaid.
The Issue The issue to be decided is the amount payable to Respondent in satisfaction of the Agency’s Medicaid lien from a settlement received by Petitioners from a third party, pursuant to section 409.910(17), Florida Statutes.1/
Findings Of Fact Nazyrah Jones was born May 13, 2008, at North Florida Regional Hospital. The attending physician was Dr. Anthony Agrios.2/ During her birth, Nazyrah suffered an anoxic brain injury, a deprivation of oxygen to her brain. As a result, Nazyrah is totally disabled, unable to sit up, stand, crawl, walk, speak, or feed herself. Nazyrah is unable to swallow and requires frequent suctioning of her airway to remove substances which are, or may become, aspirated. Nazyrah’s condition is permanent. Nazyrah’s mother, Callena Jones, lives alone with Nazyrah and is Nazyrah’s primary care-giver. Ms. Jones relies upon a home-health care agency, to assist with Nazyrah’s daily care. Ms. Jones currently attends Webster University where she is working toward a master’s degree in mental health counseling. No evidence was introduced upon which to base a finding that Ms. Jones is employed. Claims for compensation for birth-related neurological injuries alleging medical malpractice are governed by Florida’s Neurological Injury Compensation Plan administered by the Florida Birth-Related Neurological Injury Compensation Association (NICA), pursuant to sections 766.301 through 766.316, Florida Statutes. NICA is the exclusive remedy for such medical malpractice claims, except that a civil action “shall not be foreclosed where there is clear and convincing evidence of bad faith or malicious purpose or willful and wanton disregard of human rights, safety, or property[.]” § 766.303(2), Fla. Stat. Ms. Jones filed a civil medical malpractice lawsuit on her behalf and on behalf of Nazyrah, against both North Florida Regional Hospital and Dr. Agrios, alleging “willful and wanton misconduct” on behalf of the medical providers. Petitioners obtained a settlement of $825,000.003/ from the medical providers related to Nazyrah’s injuries. Petitioners presented no evidence as to what portion of the $825,000.00 total settlement was designated by the parties as compensation to Petitioners for medical expenses, or conversely, for various other types of damages either Nazyrah or her mother may have suffered, such as pain and suffering, loss of enjoyment of life, or loss of future earnings. Neither the settlement agreement itself, nor any documents prepared in connection therewith, was introduced into evidence. No witness offered any testimony on this issue. Based upon the evidence presented at hearing, all of the settlement might have been apportioned to medical care, or none of it might have been. Petitioners offered the testimony of Richard Kolodinsky, a civil trial lawyer who has practiced since 1978, has been board certified in civil trial law for approximately 20 years, and is a member of the American Board of Trial Advocates, among other professional distinctions. Mr. Kolodinsky was retained by Petitioners to review the case and offer his opinion on the full value, or total damages, of the underlying medical malpractice claim. In preparation for his testimony, Mr. Kolodinsky reviewed Petitioners’ medical records, the Life Care Plan for Nazyrah Jones, the pleadings filed in the underlying medical malpractice lawsuit, a list of payments by Medicaid on behalf of Nazyrah Jones, the NICA statute, the settlement in the underlying medical malpractice lawsuit, the Guardian ad Litem report to the court evaluating the settlement, the court order approving the settlement, and a “tender” from Dr. Agrios. Mr. Kolodinsky testified that, in his opinion, the full value of the underlying medical malpractice claim was at least $25 million. Mr. Kolodinsky testified that his opinion was “based primarily on the Life Care Plan . . . in summary . . . that provided for costs of about $11 million over the child’s lifetime[.]”4/ Further, he testified that it’s my understanding that Ms. Jones is a college graduate and may have a master’s degree, if I’m remembering correctly, and so I looked at the potential for lost earnings that was also mentioned in the Life Care Plan. And for a college graduate, lifetime earnings are in the range of 2.1 million.5/ The Life Care Plan was not introduced into evidence. Mr. Kolodinsky testified, generally, that a Life Care Plan is usually prepared as evidence in a personal-injury case by a life care planner who evaluates the cost of services, as determined by a physician after examination of the injured party, to be needed by the injured party over his or her lifetime. Mr. Kolodinsky testified that, together, the expenses for Nazyrah’s ongoing care plus Ms. Jones’ potential lost earnings “brings us to a special damages number of about $13 million.”6/ Mr. Kolodinsky next testified as to his opinion of the full value of non-economic damages in the underlying case. His explanation was as follows: And so on top of that, you know, you have of course the noneconomic damages component . . . for a profoundly injured, profoundly handicapped child, that is a life of constant care and deprivation that this child suffers minute to minute and the mother deals with minute to minute and will deal with for the rest of their lives. So, you know, these are big numbers. You know, the valuation on personal injury and medical malpractice claims, you know, there was sort of a rule of thumb that people talk about three times the specials, but that really is a rule of thumb that almost never is accurately applied, and as we all know that is very difficult to predict what a jury would do in any particular cases but you have to think that when you have special damages in the $13 million range that the damages for the child could easily be another $10 million on top of that and for the mom somewhere in the couple million to 5 million range. So, that brings us up to in the 25 million plus range, and if there were no damage caps, if there were no limitations on insurance, if there was no NICA, if there were no problems with the case, and you were looking at, okay, what are the full damages for this case absence of any of those other issues, that’s what I would think that that would be worth.7/ On cross-examination, when questioned whether he had tried cases similar to Nazyrah’s, Mr. Kolodinsky testified, “I don’t do NICA cases and in part because of the limitations on damages,”8/ and that he has never tried a case involving an anoxic injury at birth “because of NICA.”9/ Mr. Kolodinsky has tried cases in which a child was a victim of medical malpractice, and has tried cases which involve Medicaid and Medicare liens. Mr. Kolodinsky conducted no jury verdict research and did not compare this case to any case tried to verdict. Mr. Kolodinsky’s testimony regarding Petitioners’ economic damages was imprecise, utilizing hedging language such as costs “of about $11 million” and earnings “in the range of $2.1 million.” Mr. Kolodinsky provided no basis for his opinions other than the Life Care Plan, which was not introduced into evidence and the genesis and role of which was explained only in the most general terms. Mr. Kolodinsky’s testimony regarding Petitioners’ non- economic damages was lacking in detail, failed to establish the basis for his opinion, and was unpersuasive. No other evidence was introduced as to the basis for Mr. Kolodinsky’s opinion on the full value of the non-economic damages in the underlying medical malpractice claim. Mr. Kolodinsky’s opinion was the only evidence introduced on the issue of valuing the total damages in the underlying medical malpractice claim. Respondent, Agency for Health Care Administration (AHCA), is the Florida state agency authorized to administer Florida’s Medicaid program. § 409.902, Fla. Stat. The Florida Statutes provide that Medicaid shall be reimbursed for medical assistance that it has provided if resources of a liable third party become available. § 409.910(1), Fla. Stat. Florida Medicaid, through AHCA, paid $172,890.44 for Nazyrah’s medical expenses. Thus, Respondent has asserted a Medicaid lien in the amount of $172,890.44 against any proceeds received from a third party. The amount to be recovered for Medicaid medical expenses from a judgment, award, or settlement from a third party is determined by the formula in section 409.910(11)(f), which establishes the amount at one-half of the total recovery, after deducting attorney’s fees of 25% of the recovery and all taxable costs, up to the total amount actually paid by Medicaid on the recipient’s behalf. The parties stipulated that application of the formula in section 409.910(11)(f) to the entire proceeds of the settlement yields $172,890.44.10/ Petitioners argued that the Agency should be reimbursed a lesser amount than the lien of $172,890.44. Petitioners offered two theories for calculating the correct amount to be reimbursed to the Agency. The first theory, and the one advanced by Petitioners’ expert, is that the Agency should recover from its lien in the same proportion that Petitioners’ recovered from the full value of the damages in the underlying case. Petitioners again relied upon Mr. Kolodinsky to establish the proportion of the Medicaid lien which the Agency should be reimbursed under this theory. In this regard, Mr. Kolodinsky testified as follows: So then you look at what proportion the settlement is to the 25 million and you get I think it’s like 3 or 4 percent. We can do the math and determine correctly. Then you apply the percentage, the 3 or 4 percent, to the $172,000 that Medicaid is seeking and that’s the net that Medicaid gets; 4 percent, 3 percent of 172,000, because that is the proportion that the settlement was of the total value of the case.11/ Mr. Kolodinky’s testimony, again, was imprecise and unpersuasive. Assuming the full value of the damages at $25 million, Petitioners recovered 3.3% of the full value of their claim in the $825,000 settlement. Under Petitioners’ first theory, the Agency should be reimbursed 3.3% of its lien for medical expenses, or $5,705.38.12/ Under an alternate theory, advanced for the first time in Petitioners’ Proposed Final Order, Petitioners maintain the Agency should recover in the same proportion that past medical expenses are to the full value of the damages in the underlying case. Under this theory, Petitioners designate the amount paid by Medicaid, $172,890.44, as Petitioners’ past medical expenses. Petitioners introduced no direct evidence to establish the amount to be recovered by the Agency under this theory. Petitioners posit, correctly, that $172,890.44 is .69% of $25 million. Applying that percentage to the settlement amount returns a figure of $5,692.50, which Petitioners claim is due to the Agency in satisfaction of its lien.13/ Both theories rely upon establishing the full value of damages in the underlying medical malpractice claim at $25 million. Petitioners did not prove the value of the damages in underlying medical malpractice by clear and convincing evidence. Petitioners failed to prove by clear and convincing evidence that the statutory lien amount of $172,890.44 exceeds the amount actually recovered in the settlement for medical expenses.
The Issue The issue is the amount payable to Respondent, Agency for Health Care Administration (“Respondent” or “AHCA”), in satisfaction of Respondent’s Medicaid lien of $847,526.16 from a $500,000.00 settlement received by Petitioner (“Petitioner” or “Ms. Doe”) from a third party, pursuant to section 409.910, Florida Statutes (2019).
Findings Of Fact On April 24, 2008, Petitioner, who was then 18 years old, was viciously assaulted outside a library. As a result of the assault, Ms. Doe suffered catastrophic and permanent brain damage. She is now unable to ambulate without assistance, speak, see, or care for herself in any manner. She is dependent on others for every aspect of daily life. Ms. Doe’s medical care related to the injury was paid by Medicaid. Medicaid through AHCA provided $847,526.16 in benefits. Ms. Doe’s mother was appointed as Ms. Doe’s plenary guardian. Ms. Doe’s guardian pursued a personal injury action against the parties allegedly liable for Ms. Doe’s injuries (“Defendants”) to recover all Ms. Doe’s damages. As a condition of Ms. Doe’s eligibility for Medicaid, Ms. Doe assigned to AHCA her right to recover from liable third parties medical expenses that were paid by Medicaid. Mariano Garcia (“Garcia”), a civil trial attorney of 26 years, last represented Ms. Doe in her personal injury action. Ms. Doe’s personal injury action was settled through a series of confidential settlements in a lump-sum unallocated amount. Due to Ms. Doe’s incapacity, the Guardianship Court approved the settlement on January 7, 2020. During the pendency of Ms. Doe’s personal injury action, AHCA was notified of the action. AHCA did not commence a civil action to enforce its rights under section 409.910 or intervene or join in Ms. Doe’s action against the Defendants. AHCA asserted an $847,526.16 Medicaid lien against Ms. Doe’s cause of action and settlement of that action. By letter, AHCA was notified of Ms. Doe’s settlement of the personal injury action. AHCA has not filed a motion to set-aside, void, or otherwise dispute Ms. Doe’s settlement. AHCA, through its Medicaid program, spent $847,526.16 in Medicaid benefits on behalf of Ms. Doe, all of which represent expenditures paid for Ms. Doe’s past medical expenses. Ms. Doe’s taxable costs in pursing the personal injury action totaled $153,145.25. The formula at section 409.910(11)(f), as applied to Ms. Doe’s $500,000.00 settlement, requires payment of the Medicaid lien in the full amount of $110,927.37. AHCA is demanding payment of $110,927.37 from the settlement. Petitioner has deposited the $110,927.37, section 409.910(11)(f) formula amount, in an interest-bearing account for the benefit of AHCA pending an administrative determination of AHCA’s rights, and this constitutes “final agency action” for purposes of chapter 120, Florida Statutes, pursuant to section 409.910(17). Hearing Petitioner presented expert testimony from Garcia, Ms. Doe's Florida trial attorney. Garcia is a Florida bar member who practices personal injury law specializing in medical malpractice, traffic accidents, premises cases, and aviation cases. He is a shareholder with the West Palm Beach and Tallahassee, Florida, based law firm of Searcy, Denny, Scarola, Barnhart & Shipley, PA. Garcia has handled numerous catastrophic personal injury plaintiff cases. He is also a board-certified civil trial attorney and a member of the American Justice Association, Florida Justice Association, and Palm Beach County Justice Association. Garcia testified that he took over Ms. Doe’s case from her original attorney who died in a plane crash. When he took over the case, it had been through several appellate proceedings and a number of the counts in the Complaint had been dismissed. Garcia detailed how Ms. Doe had been accepted and was planning to attend the University of Florida. The incident occurred when she went to the library to drop off books in the night drop box. Ms. Doe was viciously attacked while in the book drop box area and taken to the back of the library and violently assaulted. After being raped and strangled, Ms. Doe was left for dead. Fortunately, Ms. Doe was on the phone with a friend when she got out of her car to drop off the books and the friend heard her scream and called the police. The police arrived at the book drop scene and followed a blood trail to Ms. Doe’s naked body and she was flown by helicopter to the hospital. Garcia explained at hearing that the strangulation from the attack stopped the oxygen to Ms. Doe’s brain and caused anoxic brain damage. As a result of her catastrophic brain damage, she is blind, incapable of communicating, confined to a wheelchair, and requires 24-hour-a-day assistance. She can only make gestures and recognizes the voices of her family members. Garcia also explained that Ms. Doe’s family is remarkable and takes wonderful care of her. They immigrated to the United States from Vietnam. Garcia testified that the perpetrator that attacked Ms. Doe was arrested, his DNA was matched with another crime, and he is serving a life sentence in prison for both cases. Garcia’s practice regularly encompasses the assessment and evaluation of cases and arriving at the case value of damages for injured parties. He reviews clients’ cases daily to determine their value by accessing the economic and noneconomic damages. He is familiar with reviewing medical records, life care plans, economic reports, and deposing and interviewing fact and expert witnesses. As a routine part of his practice, Garcia also explained that he stays abreast of jury verdicts through jury verdict reports and roundtables cases by discussing them with other attorneys to determine damage amounts weekly on Thursdays. Garcia testified further that he routinely participates in the process of allocation of settlement amounts as part of his law practice and is familiar with the process in the context of Medicare liens, Medicare set-asides, and health insurance liens. Garcia credibly made clear the process he took to develop an opinion concerning the value for the damages suffered in Ms. Doe’s case. Garcia explained that to determine the damage amount, he reviewed and analyzed Ms. Doe’s medical records, police investigation reports, and met with both the family and also Ms. Doe on several occasions. He also reviewed Ms. Doe’s current condition including her catastrophic brain injury, blindness, inability to communicate, ability to only make unintelligible sounds, wheelchair confinement, requirement of 24-hour-a-day care, and long-life expectancy. Garcia detailed the care that has been provided to Ms. Doe and what she continues to need since the brutal attack. He testified that Ms. Doe requires total care. Her activities of daily living must be met with assistance in every aspect of her life. She cannot do the following activities without assistance: move, eat, take care of herself, and change diapers. Additionally, Ms. Doe requires a catheter and feeding tube. Ms. Doe needs 24-hour care, which is expensive. Garcia also evaluated Ms. Doe’s life expectancy. Garcia testified that he determined that Ms. Doe was likely to live to her full life expectancy, 70 or 80 years. Garcia also reviewed a number of cases to help determine the full damages amount. He testified he relied on Korzeniowski, a case of a birth injury resulting in anoxic brain injury, and the Edwards case. Both cases involve significant monetary damage amounts because of the care required for young people that will take place for the rest of their lives in addition to money for past and future damages suffered. Garcia explained that the defendants did not disagree with the amount of damages. The disputed issue in Ms. Doe’s case was liability. The theory of the case rested on the negligent lighting design of the book drop area where the attack occurred. After years of appeals, the contractor and construction claims did not survive, only the claim against the architect survived. Garcia opined that based on his professional education, training, and experience, the full value of Ms. Doe’s damages is $30 million. Garcia testified that the only thing that would reduce the 30-million-dollar value is if evidence had come to light that Ms. Doe would have a compromised life expectancy. However, there is no evidence that would occur, which demonstrated Ms. Doe will live to her full life expectancy. Garcia explained that he did not need a life care plan or economists to calculate the value, because in his experience, the claim for future medical expenses would have an exceedingly high value when there is no evidence of a compromised life expectancy. He also expounded on how Ms. Doe would have a claim for both economic damages and a claim for past and future suffering. He testified that he believed her past and future suffering damages would have a significantly high value, at least in the amount of the economic damages. Garcia testified that $30 million was a conservative valuation for Ms. Doe’s damages. He explained that he had roundtabled Ms. Doe’s damages with his law partners and other attorneys in his firm several times and they all agreed with the valuation of damages for $30 million. Garcia further explained during the hearing that ultimately Ms. Doe’s case was mediated and settled for $500,000.00. Garcia testified that the settlement amount was a “gross under recovery of the damages” and a “minuscule amount of the full value of the case.” Garcia’s unrefuted testimony that placed the value of all damages at $30 million concluded that Ms. Doe’s settlement only recovered 1.66 percent of the value of her damages. Garcia opined credibly that because Ms. Doe recovered only 1.66 percent of her damages, she recovered from the settlement only 1.66 percent of the $847,526.16 claim for past medical expenses or $14,068.93. He further explained that it would be reasonable and fair to allocate $14,068.93 of the settlement to past medical expenses. At hearing, R. Vinson Barrett (“Barrett”) also testified. He is a 40-year trial lawyer and partner with the law firm of Barrett Nonni & Homola, in Tallahassee, with an active civil practice. Barrett practices plaintiffs’ personal injury and wrongful death law. He has handled cases involving catastrophic brain injury to children and routinely litigates cases involving jury trials. Barrett is familiar with reviewing medical records, life care plans, and economist reports. He stays abreast of jury verdicts by reviewing jury verdict reports and discussing cases with other trial attorneys. He is also a member of the Florida Justice Association and Capital City Justice Association. As a routine part of his practice, Barrett makes assessments concerning the value of damages suffered by injured parties. Barrett explained the process for making the assessments. He testified that he also has experience with settlement allocations and it has been a part of his law practice in the context of health insurance liens, Medicare set-asides, and workers’ compensation liens. Barrett testified that he has been accepted as an expert in the valuation of damages in federal court as well as in numerous Medicaid lien hearings at DOAH. Barrett explained that he is familiar with Ms. Doe’s injuries and circumstances of her injuries, as he has reviewed the exhibits filed in this proceeding, medical records, and the Joint Pre-hearing Stipulation. Barrett testified that Ms. Doe seemed to have had everything going for her and was preparing to attend college until the attack had a horrible impact on her life. The incident made her wheelchair bound, blind, unable to communicate, and dependent on others for every aspect of her daily life. Barrett testified that based on his professional training and experience, he believed that Ms. Doe’s damages had a value of at least $30 million. He explained that Ms. Doe’s economic damages would have a value between $20 and $30 million based on his experience reviewing life care plans and economist reports for people with similar brain injuries and the need for 24-hour-a-day care. Barrett explained further that his valuation was within range of damages of jury verdicts from Petitioner’s Exhibit 9. Barrett detailed three cases that substantiated Ms. Doe’s damage amount. First, Barrett testified that in the Mosely verdict, the brain damaged child needed 24-hour, seven days a week care and the future economic damages were $34,278,738.00. In Korzeniowski, the verdict was $30 million in future economic damages for the brain damaged child, and, in the Coleman verdict, there was an $11 to $28 million award in future economic damages. Barrett testified that “Ms. Doe’s case falls in the same range as those cases and also a lot of other cases that I’ve seen when children have had severe brain injury damage.” Barrett further testified that Ms. Doe’s economic damages alone would be upwards of $30 million without non-economic damages. Barrett explained that Ms. Doe’s non-economic damages would have a high value. He concluded that it would be “very conservative” to value Ms. Doe’s damages at $30 million. Barrett also testified that the settlement amount of $500,000.00 did not fully compensate Ms. Doe for all the damages she suffered. Barrett used his allocation experience and credibly testified that using the conservative value of all damages, $30 million, the $500,000.00 settlement represents a recovery of 1.66 percent of the value of the damages. Barrett further testified that because the settlement was only 1.66 percent of the value of the damages recovered, only 1.66 percent of the $847,526.16 claim for past medical expenses, $14,068.93, should be recovered. Barrett testified that his method of determination was reasonable to allocate $14,068.93 of the settlement to past medical expenses in this case. Barrett’s testimony was uncontradicted and persuasive on this point. Barrett also testified that the methodology to calculate the $14,068.93 was consistent with his testimony in other MTR cases at DOAH. The testimony of Petitioner’s two experts regarding the total value of damages was credible, unimpeached, and unrebutted. Petitioner proved that the settlement does not fully compensate Ms. Doe for the full value of damages. As testified to by the experts, Ms. Doe’s recovery represents only 1.66 percent of the total value of her claim. AHCA did not offer any witnesses, alternate opinions, or documentary evidence as to the value of damages. Hence, Petitioner’s evidence is unrebutted. AHCA did, however, contest the methodology used to calculate the allocation of past medical expenses, but was unpersuasive. The parties stipulated to the value of the services provided by AHCA as $110,927.37. Petitioner also demonstrated that the settlement allocation should be based on the ratio between the settlement amount of $500,000.00 and the conservative valuation of $30 million, meaning 1.66 percent of the settlement proceeds should be allocated to past medical expenses. Hence, $14,068.93 of the settlement represents AHCA’s reasonable and fair reimbursement for past medical expenses.
The Issue What is the proper amount of Petitioner's personal injury settlement payable to Respondent, Agency for Health Care Administration ("AHCA"), to satisfy AHCA's $191,298.99 Medicaid lien under section 409.910(17)(b), Florida Statutes.
Findings Of Fact Based on the stipulations of the parties, the evidence presented at the hearing, and the record as a whole, the following findings of fact are made: On August 9, 2018, Petitioner, Russell Wellington ("Wellington"), who was 59 years old, was driving a motorcycle in the inside northbound lane of U.S. Highway 1 at or near mile marker 99 in Monroe County, Florida. A vehicle driven by JI Young Chung ("Chung"), and owned by a car rental company, was northbound in the outside lane on U.S. Highway 1. Chung turned left into Wellington’s motorcycle causing him to be ejected from the motorcycle. As a result of the accident, Wellington sustained catastrophic injuries including a right leg amputation, a fractured pelvis, fractured humerus, fractured ribs, kidney failure, and a head injury. Wellington is now disabled and unable to work. JPHS p. 10, ¶1. Wellington’s medical care related to the injury was paid by Medicaid, and Medicaid, through AHCA, provided $191,298.99 in benefits. This $191,298.99 constituted Wellington’s entire claim for past medical expenses. JPHS p. 10, ¶2. Wellington pursued a personal injury claim against the driver and owner of the car that struck his motorcycle (“tortfeasors”) to recover all his damages. JPHS p. 10, ¶3. The other driver, Chung, maintained an insurance policy with only $100,000 in insurance limits, and had no other recoverable assets. The rental company that owned the vehicle maintained an insurance policy with only $10,000 in insurance limits. Wellington’s personal injury claim against the tortfeasors was settled for an unallocated lump sum amount of $110,000.00. JPHS p. 10, ¶4. As a condition of Wellington’s eligibility for Medicaid, Wellington assigned to AHCA his right to recover from liable third-parties medical expenses paid by Medicaid. See 42 U.S.C. § 1396a(a)(25)(H) ; § 409.910(6)(b), Fla. Stat. During the pendency of Wellington’s personal injury claim, AHCA was notified of the claim and asserted a $191,298.99 Medicaid lien against Wellington’s cause of action and settlement of that action. JPHS p. 10, ¶5. AHCA did not commence a civil action to enforce its rights under section 409.910 or intervene or join in Wellington’s claim against the tortfeasors. JPHS p. 10, ¶6. By letter, AHCA was notified of Wellington’s settlement. JPHS p. 10, ¶7. AHCA has not filed a motion to set-aside, void, or otherwise dispute Wellington’s settlement. JPHS p. 10, ¶8. The Medicaid program, through AHCA, spent $191,298.99 on behalf of Wellington, all of which represents expenditures paid for Wellington’s past medical expenses. JPHS p. 10, ¶9. Wellington’s taxable costs incurred in securing the $110,000.00 settlement totaled $766.78. JPHS p. 10, ¶10. Application of the formula at section 409.910(11)(f) to Wellington’s $110,000.00 settlement requires payment to AHCA of $40,866.61. JPHS p. 11, ¶11. Petitioner has deposited the section 409.910(11)(f) formula amount in an interest bearing account for the benefit of AHCA pending an administrative determination of AHCA’s rights, and this constitutes “final agency action” for purposes of chapter 120, Florida Statutes, pursuant to section 409.910(17). JPHS p.11, ¶12. Testimony of Steven G. Jugo, Esquire Steven G. Jugo, Esquire ("Jugo"), was called by Petitioner. He has been an attorney for 41 years and practices with the law firm of Jugo & Murphy in Miami, Florida. For the past 37 years, Jugo has practiced exclusively plaintiff’s personal injury, medical malpractice, and wrongful death law. He routinely handles jury trials and cases involving catastrophic injury. He is familiar with reviewing medical records, reviewing accident reports, and deposing fact and expert witnesses. He stays abreast of jury verdicts in his geographic area by reviewing jury verdict reporters and discussing cases with other trial attorneys. He is a member of several trial attorney organizations including the Florida Justice Association and the American Association for Justice. As a routine part of his practice, Jugo makes assessments concerning the value of damages suffered by injured clients. He briefly explained his process for making these determinations. Jugo is familiar with, and routinely participates in, processes involving the allocation of settlements in matters including health insurance liens, workers' compensation liens, and Medicare set-asides, as well as, allocations of judgments made by judges post-verdict. Jugo represented Wellington in his underlying personal injury claim. Jugo reviewed the accident report, reviewed Wellington’s medical records, met with Wellington numerous times, and deposed the driver of the vehicle that struck Wellington’s motorcycle. As a result of the accident, Wellington underwent many surgeries and extensive medical intervention. Jugo felt that Wellington’s injuries have tremendously impacted his life in a negative way. He explained that Wellington is no longer able to work and he is no longer able to adequately care for or play with the three young children he adopted. Without objection by AHCA, Jugo testified that based on his professional training and experience, it was his opinion that a very conservative value for Wellington’s damages would be $4 million. Jugo explained that his valuation of Wellington’s total projected damages was based on his experience, his comparison of Wellington’s case to similar jury verdicts, and discussions about the case with other attorneys. He explained that the jury verdicts outlined in Petitioner’s Exhibit 9 were comparable to Wellington’s case and supported his valuation of Wellington’s total and projected damages in this case. Jugo detailed that about 70 percent of the verdicts he reviewed which were similar in nature, were in the $5 million range. He opined that this demonstrated that Wellington’s total and projected damages would also have a minimum value of $4 million. Jugo discussed the value of Wellington’s damages with other attorneys, and they agreed with the valuation of Wellington’s total projected damages being in excess of $4 million. Wellington’s personal injury claim was brought against the driver and the rental car company that owned the vehicle which struck Wellington’s motorcycle. The vehicle driver, Chung, maintained an insurance policy with only $100,000.00 in coverage, and had no other recoverable assets. Jugo explained that because the vehicle was owned by a rental car company, the law shielded the rental car company from suit. Nonetheless, he explained that the rental car company had a $10,000.00 insurance policy it made available. As a result, the total settlement was $110,000.00. Jugo believed that the personal injury settlement did not fully compensate Wellington for all of his projected personal injury damages. Without objection by AHCA’s counsel, Jugo testified that based on a conservative value of all damages of $4 million, Wellington recovered in the settlement only 2.75 percent of the value of his total and projected damages. Again, without objection, he testified that because Wellington recovered only 2.75 percent of his total and projected damages, he recovered in the settlement only 2.75 percent of his $191,298.99 claim for past medical expenses, or $5,260.72. Jugo also testified that it would be reasonable to allocate $5,260.72 of the settlement to past medical expenses, stating “[t]hat’s the maximum amount I believe should be allocated to past medical expenses.” Testimony of R. Vinson Barrett, Esquire R. Vinson Barrett, Esquire ("Barrett"), has been a trial attorney for over 40 years. He is a partner with the law firm of Barrett, Nonni and Homola, P.A., in Tallahassee. His legal practice is dedicated to plaintiff’s personal injury and wrongful death cases. He has handled cases involving automobile accidents and catastrophic injuries. Barrett routinely handles jury trials. Barrett stays abreast of jury verdicts by periodically reviewing jury verdict reports and discussing cases with other trial attorneys. He is a member of the Florida Justice Association and the Capital City Justice Association. As a routine part of his practice, Barrett makes assessments concerning the value of damages suffered by injured parties. He briefly explained his process for making these assessments. It has been part of his law practice to gain familiarity with settlement allocation involving health insurance liens, Medicare set-asides, and workers’ compensation liens. He is also familiar with the process of allocating settlements in the context of Medicaid liens, and he described that process. Barrett has been accepted as an expert in the valuation of personal injury damages in federal court, as well as numerous Medicaid lien hearings at DOAH. Barrett addressed the instant case. He was familiar with Wellington’s injuries and the circumstances resulting in the injuries. Barrett detailed the extensive nature of Wellington’s injuries and the general impact of such injuries. Barrett testified, without objection, that based on his professional training and experience, he believed Wellington’s damages had a conservative value of $4 million. More specifically, he stated, “I felt that the damages were conservatively, very conservatively, $4 Million. I believe this case, if it had gone to a jury could well have gone up into the eight figures, probably would have, I think. If I was asking for damages in this case in front of a jury, it would probably be somewhere, between $8 and 12 million or even a little higher, if I was in South Florida jurisdiction.” Barrett has been accepted as an expert in the valuation of personal injury damages in other cases at DOAH. Barrett explained that the jury verdicts outlined in Petitioner’s Exhibit 9 involved injuries comparable to Wellington’s injuries and supported his valuation of Wellington’s total and projected damages at $4 million. Barrett went on to explain that the average trial verdict and award he reviewed from Exhibit 9 was $5.5 million and the average award for pain and suffering was $3,788,333.00. Barrett believed that the jury verdict in the Nummela case, from Exhibit 9, most closely tracked Wellington’s case. Barrett explained that the injuries suffered by Nummela compared most closely with Wellington’s injuries and he noted the similarities. Barrett also pointed out that the jury in Nummela had determined that the damages had a value of $9.5 million, which Barrett testified was in line with what he believed a jury would have awarded to Wellington, if this matter had proceeded to trial. Barrett was aware that Wellington’s case had settled for the insurance policy limits of $110,000.00. He testified that this settlement amount did not fully compensate Wellington for all the personal injury damages he had suffered. Barrett testified, without objection by AHCA’s counsel, that using a conservative value of $4 million for all projected damages, the $110,000.00 settlement represented a recovery of 2.75 percent of the total and projected damages. Barrett testified, again without objection, that because only 2.75 percent of his damages were recovered in the settlement, only 2.75 percent of the $191,298.99 claim for past medical expenses was recovered by Wellington in the settlement, namely $5,260.72. Barrett testified that it would be reasonable to allocate $5,260.72 of Wellington’s settlement to his past medical expenses. Inexplicably, AHCA did not call any witnesses, present any contradictory evidence as to a lower value of Wellington’s projected or total damages, or call any witnesses to contest the methodology used to calculate the $5,260.72 allocation to past medical expenses. The unrebutted evidence supports that Wellington’s total and projected damages had a value in excess of $4 million. By applying the same ratio to AHCA's lien that the settlement ($110,000.00) bears to the total projected monetary value of all the damages ($4,000,000.00), a finding is reached that $5,260.72 of the settlement is fairly allocable to past medical expenses. Under the proportionality methodology, the $110,000.00 settlement represents a 2.75 percent recovery of the expert’s total and projected damages of $4 million ($110,000.00 is 2.75 percent of $4 million). Applying this same 2.75 percent to the $191,298.99 claim for past medical expense, the experts opined that Wellington recovered $5,260.72 in past medical expenses in the settlement.2 Of particular consequence to this case, AHCA did not call any expert witnesses, nor did it present any evidence, to rebut or contradict Petitioner's experts or proposed allocation of $5,260.72 in the settlement to past medical expenses. Likewise, AHCA did not dispute or present any persuasive evidence or arguments that Wellington’s injuries were overstated or incorrectly described by Messrs. Jugo or Barrett. 2 This methodology is commonly referred to as the proportionality test or pro-rata formula. On AHCA's cross-examination of the attorney experts, the methodology used by them to arrive at their opinion concerning a fair allocation of past medical expenses in Wellington’s settlement was not persuasively challenged or overcome by AHCA. Simply put, the amount of $5,260.72 proposed by Petitioner as a fair allocation of past medical expenses from the settlement agreement was not successfully refuted or challenged by AHCA. Under the circumstances and proof presented in this case, Petitioner proved by a preponderance of the evidence that $5,260.72 was a fair allocation of the total settlement amount to past medical expenses. AHCA failed to develop any adequate basis or evidence in the record to reject Jugo’s or Barrett’s opinion, or to reach any other conclusion concerning a fair allocation, other than the amount of $5,260.72 presented by the evidence and proposed by Petitioner.
The Issue The issue to be determined in this case is the amount to be paid to Respondent, Agency for Health Care Administration (“Respondent” or “AHCA”), to reimburse Medicaid for medical expenses paid on behalf of Petitioner from proceeds of a personal injury settlement received by Petitioner.
Findings Of Fact The following findings of fact are based on exhibits admitted into evidence, testimony offered by witnesses, and admitted facts set forth in the prehearing stipulation. Petitioner, William O’Malley, is the recipient of Medicaid for injuries he sustained in an automobile accident. Respondent is the state agency charged with administering the Florida Medicaid program, pursuant to chapter 409. On September 9, 2009, Petitioner, William O’Malley, lost control of his vehicle when it hydroplaned across three lanes of traffic. Mr. O’Malley’s vehicle left the roadway and struck a tree. While he was restrained with a seat belt, Mr. O’Malley suffered a severe brain injury, fractured skull, injury to his neck at the C6-C7 level, numerous fractured ribs, shattered spleen, lacerated liver, abdominal bleeding, a fractured ankle and other serious injuries. He remained in a coma for a number of weeks undergoing extensive surgical procedures to save his life. As a result of his severe and permanent injuries, Mr. O’Malley now suffers from cognitive deficits, is disfigured, and is unable to work. He receives disability payments due to his injuries. A portion of Mr. O’Malley’s past medical expenses related to his injuries was paid by Medicaid, in the amount of $196,125.72. Mr. O’Malley initiated a personal injury civil action to recover all his damages associated with his injuries against the construction companies who allegedly designed and constructed the roadway in a defective manner (“Defendants”). During the pendency of Mr. O’Malley’s personal injury action, AHCA was notified of the action, and asserted a $196,125.72 Medicaid lien against any damages received by Mr. O’Malley. AHCA was not otherwise involved in the personal injury action or settlement. In October 2016, Mr. O’Malley’s personal injury action settled for the gross amount of $1,750,000. The General Release memorializing the settlement agreement provides as follows: Although it is acknowledged that this settlement does not fully compensate William O’Malley for all of the damages he has allegedly suffered, this settlement shall operate as a full and complete Release as to Releasees without regard to this settlement only compensating William O’Malley for a fraction of the total monetary value of his alleged damages. The parties agree that William O’Malley’s alleged damages have a value in excess of $20,000,000.00, of which $379,874.27 represents William O’Malley’s claim for past medical expenses. Given the facts, circumstances, and nature of William O’Malley’s injuries and this settlement, the parties have agreed to allocate $33,239.00 of this settlement to William O’Malley’s claim for past medical expenses and allocate the remainder of the settlement toward the satisfaction of claims other than past medical expenses. This allocation is a reasonable and proportionate allocation based on the same ratio this settlement bears to the total monetary value of all William O’Malley’s damages. Further, the parties acknowledge that William O’Malley may need future medical care related to his injuries, and some portion of this settlement may represent compensation for future medical expenses William O’Malley will incur in the future. However, the parties acknowledge that William O’Malley, or others on his behalf, have not made payments in the past or in advance for the First Party’s future medical care and William O’Malley has not made a claim for reimbursement, repayment, restitution, indemnification, or to be made whole for payments made in the past or in advance for future medical care. Accordingly, no portion of this settlement represents reimbursement for future medical expenses. By letter of October 13, 2016, Mr. O’Malley’s attorney notified AHCA of the settlement and provided AHCA with a copy of the executed Release and itemization of $123,699.86 in litigation costs. This letter explained that Mr. O’Malley’s damages had a value in excess of $20 million and the settlement represented only 8.75 percent of the recovery of Mr. O’Malley’s $379,874.27 claim for past medical expenses. This letter requested AHCA to advise as to the amount AHCA would accept in satisfaction of the $196,125.72 Medicaid lien. AHCA responded to Mr. O’Malley’s attorney’s letter and demanded full payment of the entire $196,125.72 Medicaid lien from the settlement. AHCA, through the Medicaid program, spent $196,125.72 on behalf of Mr. O’Malley, all of which represents expenditures paid for Mr. O’Malley’s past medical expenses. No portion of the $196,125.72 paid by AHCA represented expenditures for future medical expenses. Application of the formula at section 409.910(11)(f) to Mr. O’Malley’s settlement requires payment to AHCA of $196,125.72, the actual amount of the medical expenses paid by Medicaid. Petitioner disputes that $196,125.72 is the amount of recovered medical expenses payable to Respondent, and instead asserts that $33,239.00 in medical expenses are payable to Respondent. Notwithstanding Petitioner’s dispute, Petitioner has deposited the full Medicaid lien amount in an interest-bearing account for the benefit of AHCA pending an administrative determination of AHCA’s rights, and this constitutes “final agency action” for purposes of chapter 120, Florida Statutes, pursuant to section 409.910(17). In support of his position, Mr. O’Malley presented the testimony of two experts, Steven Browning, Esquire, and Vinson Barrett, Esquire. Mr. Browning represented Mr. O’Malley in the personal injury action. He testified as an expert regarding the valuation of Mr. O’Malley’s personal injury claim. Mr. Browning has practiced law for 31 years, primarily representing plaintiffs. He is a partner of his law firm and handles serious personal injury, wrongful death, and catastrophic injury cases. Mr. Browning handles cases that result in jury trials and, thus, he routinely researches jury verdicts to determine potential value of cases. In the litigation of civil actions, he also prepares mediation statements regarding the value of cases. He reviews life care plans, economic reports, and past jury verdicts to determine the value of a case. Mr. Browning opined that $20 million constituted a very conservative valuation of damages suffered by Mr. O’Malley. He based this opinion on having represented Mr. O’Malley in the underlying personal injury action and on his knowledge of jury verdicts and settlements in recent Florida cases involving awards of damages to individuals with similar injuries as Mr. O’Malley. He emphasized that his valuation was far more conservative than many comparable cases that resulted in substantially higher verdicts or settlements. Mr. Browning concluded that the $1,750,000 settlement amount represented 8.75 percent of the damages suffered by Mr. O’Malley. He also opined that only 8.75 percent of the $196,125.72, the past medical expenses paid by Respondent, was recovered. Mr. Browning was accepted as an expert in this matter and his testimony was found to be persuasive. Mr. O’Malley also presented the testimony of Mr. Barrett regarding the valuation of Petitioner’s claim. Mr. Barrett has practiced law for approximately 35 years. He primarily practices in the areas of medical malpractice, pharmaceutical liability, and catastrophic injuries resulting from automobile accidents. Mr. Barrett routinely handles jury trials. Thus, he routinely monitors jury verdicts and determines the value of damages suffered in personal injury actions. He reviewed recent jury verdicts and the life care plan for Mr. O’Malley to formulate his opinion regarding the valuation of Mr. O’Malley’s claim. Mr. Barrett testified that $20 million to $25 million was the estimated value of Mr. O’Malley’s claim. He testified that the amount was a very conservative estimate of damages suffered by Mr. O’Malley. Similar to Mr. Browning, Mr. Barrett opined that allocating 8.75 percent to past medical expenses in the amount of $196,125.72 was a reasonable allocation of past medical expenses and reflected the amount recovered by Mr. O’Malley for past medical expenses. Respondent also presented an expert regarding the valuation of Mr. O’ Malley’s claim, Steven Carter. Mr. Carter has been licensed to practice law for 23 years. He is the managing shareholder of his law firm. He has handled catastrophic injury cases in which he determined the value of the claim. He has conducted 35 to 40 jury or bench trials. Mr. Carter was accepted as an expert regarding valuation of Mr. O’Malley’s claim. Mr. Carter testified that the value of Mr. O’Malley’s damages was the actual settlement amount of $1,757,000. Ultimate Finding of Fact The undersigned finds that the testimony of Mr. Browning and Mr. Barrett was more persuasive regarding valuation of Mr. O’Malley’s claim than the testimony of Respondent’s expert witness. Mr. Browning and Mr. Barrett’s number of years of experience with handling catastrophic personal injury cases, and the fact that they had the benefit of the life care plan when evaluating the case, make their testimony more persuasive regarding the valuation of damages suffered by Mr. O’Malley in this case.
The Issue At issue in this proceeding is whether Jahmel Henry, a minor, suffered an injury for which compensation should be awarded under the Florida Birth-Related Neurological Injury Compensation Plan.
Findings Of Fact 1. Gwendolyn Henry and Melvin Henry are the parents and natural guardians of Jahmel Henry (Jahmel), a minor. Jahmel was born a live infant on October 12, 1998, at South Broward Hospital District, d/b/a Memorial Hospital West, a hospital located in Pembroke Pines, Florida, and his birth weight was in excess of 2,500 grams. 2. The physicians providing obstetrical services during the birth of Jahmel were Stephen P. Schneider, M.D., Jose M. Santos, M.D., and Marvin Newman, D.O., and they were, at all times material hereto, participating physicians in the Florida Birth- Related Neurological Injury Compensation Plan, as defined by Section 766.302(7), Florida Statutes. Coverage under the Plan 3. Pertinent to this case, coverage is afforded under the Plan when the claimants demonstrate, more likely than not, that the infant suffered an "injury to the brain or spinal cord caused by oxygen deprivation or mechanical injury occurring in the course of labor, delivery, or resuscitation in the immediate post-delivery period in a hospital, which renders the infant permanently and substantially mentally and physically impaired." Jahmel's presentation 4. On January 8, 2001, following the filing of the claim for compensation, Jahmel was examined by Michael S. Duchowny, M.D., a board-certified pediatric neurologist associated with Miami Children's Hospital, Miami, Florida. The results of that evaluation were reported, as follows: HISTORY ACCORDING TO MR. AND MRS. HENRY: The parents began by explaining that Jahmel's major problem is that he cannot elevate or stretch his right arm. This problem has been present essentially since birth and has not responded to nerve graft surgery in May 1999. Jahmel has had persistent weakness of the right upper extremity, primarily in the shoulder, although he has had some return of hand and finger movement. He is an obligate left hander, performing virtually all tasks primarily with his left hand. He does have some dexterity on the right, but this is limited by his reduced range of motion at the shoulder. Jahmel's left arm is normal and he has not had any problems in his legs. He has received physical therapy until six months ago and the parents are requesting that additional therapy be performed. There has been no subsequent trauma to the arm and Jahmel is not experiencing significant pain. Jahmel was born at .. .- Memorial Hospital with delivery complicated by shoulder dystocia. He additionally had meconium aspiration syndrome and required ECHMO for several weeks. Jahmel ultimately remained in Newborn Intensive Care for approximately 3 months before being discharged. His birth weight had been 9-pounds. Jahmel's EARLY GROWTH AND DEVELOPMENTAL MILESTONES were on time in that he walked and talked at a year. He is now toilet trained. All of his immunizations have been up-to-date and he has no significant allergies. Jahmel's overall health has otherwise been good. There are no problems with his vision or hearing and his sleep habits are quite stable. His appetite has been steady and he is on no intercurrent medications. He has had the usual childhood infections. FAMILY HISTORY: The father is 31; the mother is a 33 year old gravida 1, para 1, AB2. Two half brothers from the father's previous marriage are 14 and 8 and healthy. There are no family members with extremity palsy, neurodegenerative illnesses, mental retardation or epilepsy. PHYSICAL EXAMINATION reveals Jahmel to be an alert, pleasant and cooperative toddler. His weight is 29-pounds and height 31-inches. There is midline anterior cervical sebaceous cyst. He has no cutaneous stigmata, dysmorphic features or heterochromia i'ridis. The head circumference measures 48.2 cm and there are no significant cranial or facial anomalies or asymmetries. The neck is supple without adenopathy. The cardiovascular, respiratory and abdominal examinations are unremarkable. The peripheral pulses are 2+ and symmetric. NEUROLOGIC EXAMINATION reveals an apprehensive toddler who is quite fearful and fends off much of the examination. Jahmel did not speak in words during the examination to me, but spoke to his mother and father on several occasions. He maintains an appropriate stream of both thought and attention. The cranial nerve examination reveals full visual fields to direct confrontation testing and a brief, but normal fundoscopic examination. The pupils are 2 to 3 mm and react briskly to direct and consensually presented light. There is good visual tracking. The tongue movements are well coordinated and the uvula is midline. Motor examination is significant for a prominent asymmetry of the upper extremities. There is a prominent downward slope to the right shoulder and decreased size of the right upper extremity compared to the left. Range of motion is clearly limited at the right shoulder with the shoulder being held in a position of internal rotation, adduction and flexion. The elbow is slightly flexed. In contrast, there is full range of motion at the wrist and fingers. Mild to moderate winging of the scapula is noted and there is slightly decreased muscle bulk along the mesial border. The healed scars over the right supraclavicular area and right gastroc region are noted. The sensory examination could not be elicited reliably. The deep tendon reflexes are 1+ on the left, but are absent on the right. In comparison, deep tendon reflexes are 2+ in the lower extremities. There are no abnormalities of movement, muscle bulk or tone in the left upper extremity or legs. The right arm tone is slightly diminished distally. Individual finger movements on the right are intact with thumb and finger opposition. A pincer grasp is noted. The gait is stable and symmetric. Neurovascular examination reveals no cervical, cranial or ocular bruits and no temperature or pulse asymmetries. In SUMMARY, Jahmel's neurologic examination in detail reveals findings that are referable to the right upper extremity, consistent with right Erb's palsy. He does not appear to of achieved significant benefit from his surgical intervention and has a noticeable limitation at the shoulder. I believe that this impairment is likely to be permanent. In contrast, Jahmel's cognitive status appears well preserved. 5. An Erb's palsy, such as that evidenced by Jahmel, is a weakness of an upper extremity due to damage of the nerve roots of the upper brachial plexus, and does not involve the brain or spinal cord. Moreover, Jahmel's mental or cognitive status has been described as essentially normal. Consequently, while Jahmel may have suffered a mechanical injury, permanent in nature (to his right brachial plexus) during the course of birth, he does not (for reasons appearing more fully in the Conclusions of Law) qualify for coverage under the Plan.
Conclusions For Petitioner: Andrew Needle, Esquire Needle, Gallagher & Areces, P.A. 1401 Brickell Avenue, Suite 900 Miami, Florida 33131 For Respondent: James C. Pilkey, Esquire 1000 South Andrews Avenue Fort Lauderdale, Florida 33316-1038 For Intervenors (Doctors) : Darlene Stosik, Esquire Bunnell, Woulfe, Kirschbaum, Keller, McIntyre & Gregoire, P.A. 888 East Las Olas Boulevard, Suite 400 Fort Lauderdale, Florida 33301 For Intervenor (Hospital): Gary S. Genovese, Esquire Conrad & Scherer Post Office Box 14723 Fort Lauderdale, Florida 33302
Other Judicial Opinions A party who is adversely affected by this final order is entitled to judicial review pursuant to Sections 120.68 and 766.311, Florida Statutes. Review proceedings are governed by the Florida Rules of Appellate Procedure. Such proceedings are commenced by filing one copy of a Notice of Appeal with the Agency Clerk of the Division of Administrative Hearings and a second copy, accompanied by filing fees prescribed by law, with the appropriate District Court of Appeal. See Section 120.68(2), Florida Statutes, and Florida Birth-Related Neurological Injury Compensation Association v. Carreras, 598 So. 2d 299 (Fla. 1st DCA 1992). The Notice of Appeal must be filed within 30 days of rendition of the order to be reviewed. 13
The Issue The issue in this proceeding is the amount to be reimbursed to Respondent, Agency for Health Care Administration, for medical expenses paid on behalf of Petitioner from a settlement received by Petitioner from a third party.
Findings Of Fact On October 18, 2013, Jose Fourcoy, who was then 39 years old, was on the premises of an air-conditioning shop that refurbished air-conditioners, waiting for them to discard their scrap metal. While there, an employee who was disassembling an air conditioner with a blowtorch ignited a gas tank and caused an explosion and fire. The fire spread across the floor engulfing Mr. Fourcoy in flames. The fire was extinguished and Mr. Fourcoy’s long-term girlfriend/common law wife and young child, who were waiting for Mr. Fourcoy and witnessed the event, immediately took Mr. Fourcoy to the hospital. As a result of the accident, Petitioner suffered severe, catastrophic and very painful injuries with 2nd, 3rd and 4th degree burns to about 17 percent of his body, including both his legs, his right arm and the right side of his face, mouth and throat. He was admitted to the hospital on two occasions. Amputation of both legs was recommended but rejected by Petitioner. Eventually, Mr. Fourcoy spent one and a half months undergoing numerous surgeries and skin grafts first with pig skin and then with his own skin from other parts of his body. Throughout the process he was in extreme pain. Currently and as a result of the burn injury, he has neurological problems with his legs and other areas of his body including constrictions and chronic pain syndrome in both legs. Additionally, he has post-traumatic stress disorder, moderate to severe anxiety with flashbacks, irritability, forgetfulness and reduced self-regulation. The pain Mr. Fourcoy suffers is chronic and will be with him the rest of his life. His injuries have resulted in a 50-percent impairment of his whole body. Further, his chronic pain, anxiety and post-traumatic stress disorders have caused him not to be able to do the things he used to do, including loss of consortium, inability to enjoy playing with his young son, inability to play sports, and general inability to enjoy life. Mr. Fourcoy’s legs are deformed and disfigured and he cannot straighten them without severe pain. He is unable to wear long pants due to the pain they cause. Petitioner cannot walk and requires a wheelchair/rolling chair for mobility. He is dependent on others for activities of daily living. His condition is permanent and he most likely will not be able to obtain employment sufficient to support himself or replace the income/earning capacity he had as a scrap metal recycler prior to his injuries, which income could have provided for him during the 35.1 years he is expected to live. Petitioner is no longer a Medicaid recipient. Petitioner’s past medical expenses related to his injuries were paid by both personal funds and Medicaid. Medicaid paid for Petitioner’s medical expenses in the amount of $119,673.33. Unpaid out-of-pocket expenses totaled $36,423.04. Thus, total past healthcare expenses incurred for Petitioner’s injuries was $156,096.37. Petitioner brought a personal injury claim to recover all his damages against the owner of the air-conditioning shop and premises where the accident occurred (Defendants). Towards that end, Petitioner retained Stuart H. Share, an attorney specializing in personal and catastrophic injury claims for over 30 years, to represent Petitioner in his negligence action against the Defendants. Ultimately, Petitioner settled his personal injury action for $850,000, which did not fully compensate Petitioner for the total value of his damages. The settlement was allocated and the settling parties agreed that: 1) Mr. Fourcoy’s damages had a value in excess of $3,400,000, of which $156,096.37 represented his claim for past medical expenses; and 2) allocation of $39,024.09 of the $850,000 settlement to Mr. Fourcoy’s claim for past medical expenses was reasonable and proportionate based on the same ratio the settlement bears to the total monetary value of all Mr. Fourcoy’s damages. The General Release stated, in pertinent part: JOSE FOURCOY, has claimed damages in excess of $3,400,000, of which $156,096.37 represents JOSE FOURCOY’s claim for past medical expenses. Given the facts, circumstances, and nature of JOSE FOURCOY’s injuries and this settlement $39,024.09 has been allocated to JOSE FOURCOY’s claim for past medical expenses and allocate the remainder of the settlement towards the satisfaction of claims other than past medical expenses. This allocation is a reasonable and proportionate allocation based on the same ratio this settlement bears to the total monetary value of all JOSE FOURCOY’s damages. Further, JOSE FOURCOY may need future medical care related to his injuries, and some portion of this settlement may represent compensation for future medical expenses JOSE FOURCOY will incur in the future. However, JOSE FOURCOY, or others on his behalf, have not made payments in the past or in advance for JOSE FOURCOY’s future medical care and JOSE FOURCOY has not made a claim for reimbursement, repayment, restitution, indemnification, or to be made whole for payments made in the past or in advance for future medical care. No dollar amount was assigned to Petitioner’s future medical care needs, and there remains uncertainty as to what those needs will be. Additionally, neither Petitioner nor others on his behalf made payments in the past or in advance for his future medical care, and no claim for reimbursement, restitution or indemnification was made for such damages or included in the settlement. On the other hand, given the loss of earning capacity and the past and present level of pain and suffering, the bulk of the settlement was clearly intended to provide future support for Petitioner. Respondent was notified of Petitioner’s negligence action around July 13, 2015. Thereafter, Respondent asserted a Medicaid lien in the amount of $119,673.33 against the proceeds of any award or settlement arising out of that action. No portion of the $119,673.33 paid by AHCA through the Medicaid program on behalf of Mr. Fourcoy represents expenditures for future medical expenses, and AHCA did not make payments in advance for medical care. Respondent was not a party to the 2015 settlement and did not execute any of the applicable releases. Mr. Share’s expert and conservative valuation of the total damages suffered by Petitioner is at least $3,400,000. In arriving at this valuation, Mr. Share reviewed the facts of Petitioner’s personal injury claim, vetted the claim with experienced members in his law firm, and examined jury verdicts in similar cases involving catastrophic injury. The reviewed cases had an average award of $3,639,577.62 for total damages and $2,418,390.31 for non- economic damages (past and future pain and suffering). Mr. Share’s valuation of total damages was supported by the testimony of one additional personal injury attorney, R. Vinson Barrett, who has practiced personal injury law for more than 30 years. In formulating his opinion on the value of Petitioner’s damages, Mr. Barrett reviewed the discharge summaries from Petitioner’s hospitalizations. Mr. Barrett also reviewed the jury trial verdicts and awards relied upon by Mr. Share. Mr. Barrett agreed with the $3.4 million valuation of Petitioner’s total damages and thought it could likely have been higher. The settlement amount of $850,000 is 25 percent of the total value ($3.4 million) of Petitioner’s damages. By the same token, 25 percent of $156,096.37 (Petitioner’s past medical expenses paid in part by Medicaid) is $39,024.09. Both experts testified that $39,024.09 is a reasonable and rational reimbursement for past medical expenses. Their testimony is accepted as persuasive. Further, the unrebutted evidence demonstrated that $39,024.09 is a reasonable and rational reimbursement for past medical expenses since Petitioner recovered only 25 percent of his damages, thereby reducing all of the categories of damages associated with his claim. Given these facts, Petitioner proved by clear and convincing evidence that a lesser portion of the total recovery should be allocated as reimbursement for past medical expenses than the amount calculated by Respondent pursuant to the formula set forth in section 409.910(11)(f). Therefore, the amount of the Medicaid lien should be $39,024.09.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby ORDERED that the Agency for Health Care Administration is entitled to $39,024.09 in satisfaction of its Medicaid lien. DONE AND ORDERED this 27th day of April, 2016, in Tallahassee, Leon County, Florida. S DIANE CLEAVINGER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 27th day of April, 2016. COPIES FURNISHED: Alexander R. Boler, Esquire Xerox Recovery Services Group 2073 Summit Lake Drive, Suite 300 Tallahassee, Florida 32317 (eServed) Floyd B. Faglie, Esquire Staunton and Faglie, P.L. 189 East Walnut Street Monticello, Florida 32344 (eServed) Elizabeth Dudek, Secretary Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 1 Tallahassee, Florida 32308 (eServed) Stuart Williams, General Counsel Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 3 Tallahassee, Florida 32308 (eServed) Richard J. Shoop, Agency Clerk Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 3 Tallahassee, Florida 32308 (eServed)
The Issue At issue is whether Melody N. Smith, a minor, suffered an injury for which compensation should be awarded under the Florida Birth-Related Neurological Injury Compensation Plan.
Findings Of Fact Fundamental findings 1. Irwin C. Smith and Kristelle K. Smith are the parents and natural guardians of Melody N. Smith (Melody), a minor. Melody was born a live infant on October 16, 1989, at Baptist Medical Center, a hospital located in Jacksonville, Florida, and her birth weight was in excess of 2,500 grams. 2. The physician providing obstetrical services at birth was Ernest Ferrelle, M.D., who was, at all times material hereto, a “participating physician" in the Florida Birth-Related Neurological Injury Compensation Plan, as defined by Section 766.302(7), Florida Statutes. 3. Here, there is no dispute that Melody is permanently and substantially mentally and physically impaired, consequent to a brain anomaly. What is at issue is the cause and timing of Melody's brain anomaly or, pertinent to these proceedings, whether her neurologic impairment resulted from an "injury to the brain . . . caused by oxygen deprivation. . . occurring in the course of labor, delivery, or resuscitation in the immediate post-delivery period ina hospital."* — — The cause-and timing of Melody's brain anomaly 4. On September 12, 1989, approximately one month before Melody's delivery, Mrs. Smith underwent an amniocentesis,’ following a diagnosis of polyhydramniosis,* to test for congenital abnormality. The test revealed the fetus suffered a common congenital abnormality known as Turner's Syndrome. 5. Turner's Syndrome, the hallmark of which is the presence of 45 chromosomes, as opposed to the normal 46 chromosomes, in every cell of the fetus, is a severe congenital abnormality that results in abortion or fetal loss among 99 percent of affected fetuses. Typical defects associated with the syndrome include cardiac, renal, and lymphatic abnormalities. Additionally, apart from those abnormalities typically associated with the syndrome, such infants are also known to present with other deficits, including developmental abnormalities of the brain. Compounding the complexity of risks associated with fetal development in this case, Mrs. Smith was diagnosed with chorioamnionitis, an inflammation of the fetal membranes, suggesting the presence of an infectious process. 6. At approximately 6:45 p.m., October 15, 1989, Mrs. Smith was admitted to Baptist Medical Center in labor. Fetal heart monitoring was started shortly after admission and revealed a fetal heart rate within normal limits. 7. At 3:00 a.m., October 16, 1989, an amniotomy (a deliberate rupture of the fetal membranes) was performed to drain excessive fluid. Upon rupture of the membranes, meconium stained amniotic fluid was noted; however, the fetal heart rate continued — we within normal limits, without any sign of fetal distress .* 8, Following the amniotomy, the fetal head stayed high and Mrs. Smith's physician elected to proceed with delivery by cesarean section. Consequently, Mrs. Smith was moved to the operating room at 8:11 a.m., and Melody was delivered at 8:41 a.m., October 16, 1989. 9. Upon delivery, Melody was DeLee suctioned and received oxygen by ambu bag for "a few seconds." Apgars were 3 at one minute and 9 at five minutes, consistent with infant well-being.* Umbilical cord pH, at delivery, was subsequently reported as 7.28, well within normal limits. 10. Following delivery, Melody was transported to the neonatal intensive care unit, where she was admitted in mild respiratory distress.* Admission chest x-ray was hazy, with fluid noted in the fissures, and the heart was noted to be enlarged, consistent with congenital heart disease. 11. Melody was initially on room air; however, at 18 hours of life, secondary to a bath, she inexplicably became hypothermic and required an oxihood. By day 2 of life, Melody was weaned to the equivalent of room air, and the oxihood was discontinued on day 3 of life. 12. On October 23, 1989, at day 7 of life, a computerized tomography (CT) brain scan was performed on Melody. The results of the scan were abnormal and provided "nonspecific findings" (not definitive for any particular diagnosis), suggesting atrophic changes in the brain. As a preliminary assessment, Melody's physicians noted these changes as consistent with those WwW —_ tw associated with a hypoxic ischemic insult; however, they were unsure, and were not shown to have ultimately resolved, the etiology and timing of Melody's anomaly. 13. As to etiology, the record developed in this case does not permit a conclusion to be drawn. Notably, there were many forces at work and risks present during the course of fetal development that could have caused or contributed to Melody's presentation, including congenital abnormality and infection. Moreover, the possibility of hypoxic insult cannot be discounted. There is, however, no compelling basis to prefer one factor over another as the cause of Melody's anomaly or, stated otherwise, to conclude that Melody's anomaly is attributable to hypoxic insult, as opposed to the other risks present during the course of her development . 14. While the proof does not permit a conclusion to be drawn as to the cause of Melody's brain anomaly, it does support the conclusion that, whatever its cause, it was not consequent to an injury to the brain caused by oxygen deprivation occurring in the course of labor, delivery, or resuscitation in the immediate post-delivery period.’ 15. In reaching such conclusion, it is first observed that there was no evidence of fetal stress during the course of labor and delivery. Rather, the fetal heart tracings were normal throughout labor, and delivery by cesarean section was not traumatic. 16. Melody's presentation was likewise not consistent with hypoxic insult during labor and delivery. First, her umbilical ~ ~~ cord pH was normal. Had she undergone a hypoxic ischemic injury during birth, the pH would have reflected metabolic acidosis. Second, she did not require intubation and ventilation at birth, and her five-minute Apgar score was normal. 17. Melody's clinical course was likewise not consistent with hypoxic insult during labor or delivery. There was no evidence of multiple organ system dysfunction, which one would expect had Melody suffered a hypoxic ischemic event during birth. Moreover, no seizure activity developed in the immediate postpartum period. 18. Finally, the anomaly Melody was shown to suffer, as represented on the CT scan of October 23, 1989, at 7 days of life, was inconsistent with a hypoxic ischemic insult during labor and delivery. Rather, the progress or atrophic nature of the presentation, assuming a hypoxic ischemic etiology as opposed to congenital abnormality, dates the insult at least 4 to 6 weeks prior to the CT scan.
Conclusions For Petitioners: Robert J. Winicki, Esquire Winicki Law Firm 10161 Centurion Parkway North, Suite 190 Jacksonville, Florida 32256 For Respondent: W. Douglas Moody, Jr., Esquire Graham & Moody, P.A. 101 North Gadsden Street Tallahassee, Florida 32301
Other Judicial Opinions A party who is adversely affected by this Final Order is entitled to judicial review pursuant to Sections 120.68 and 766.311, Florida Statutes. Review proceedings are governed by the Florida Rules of Appellate Procedure. Such proceedings are commenced by filing one copy of a Notice of Appeal with the Agency Clerk of the Division of Administrative Hearings and a second copy, accompanied by filing fees prescribed by law, with the appropriate District Court of Appeal. See, Section 120.68(2), Florida Statutes, and Florida Birth-Related Neurological Injury Compensation Association v. Carreras, 598 So. 2d 299 (Fla. ist DCA 1992). The Notice of Appeal must be filed within 30 days of rendition of the order to be reviewed.
