The Issue The issue to be determined is the amount Respondent, Agency for Health Care Administration (“AHCA”), is to be reimbursed for medical expenses paid on behalf of Markus Smith (“Petitioner” or “Mr. Smith”) pursuant to section 409.910, Florida Statutes (2018),1/ from settlement proceeds he received 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 February 12, 2018, Mr. Smith was 26 years old and working for $11.00 an hour as a custodian for E&A Cleaning at All Saints Academy, in Winter Haven, Florida. While leaving the school just before 9:00 a.m., Mr. Smith came to a traffic light at the school’s entrance. When the light turned green and Mr. Smith moved into the intersection, another car ran the red light and slammed into the driver’s side of Mr. Smith’s vehicle. Mr. Smith was severely injured and transported to Lakeland Regional Medical Center where he stayed until approximately April 13, 2019. Mr. Smith’s injuries included, but were not limited to, a collapsed lung, altered mental state, intracerebral hemorrhage, traumatic subdural hematoma, traumatic subarachnoid hemorrhage with loss of consciousness, traumatic intraventricular hemorrhage, lumbar transverse process fracture, and a left ankle fracture. Mr. Smith required surgery to repair his left ankle, and he now walks with a severe limp. He experiences a constant, dull ache in his left ankle and is unable to walk any significant distance without experiencing severe pain. It is very difficult for Mr. Smith to stand, and he has a constant fear of falling because his balance is “terrible.” Mr. Smith is left-handed, and the accident left him with very limited use of his left hand. Since the accident, Mr. Smith’s vision has been blurry, and he suffers from double vision. He believes that his impaired vision would prevent him from obtaining a driver’s license. As described above in paragraph 3, Mr. Smith suffered a brain injury during the accident, and there was some bleeding inside his skull. He now has difficulty forming long-term memories and often records conversations so that he has a record of what was said. Since the accident, Mr. Smith has been struggling with anger and depression. He has difficulty controlling his anger and is prone to random outbursts of rage. He has experienced suicidal thoughts and asked his current caretaker if she would kill him, if he gave her a knife. Since being released from the hospital, Mr. Smith has not received any physical or occupational therapy. He was receiving some mental health treatment and taking medicine to treat his depression and memory issues. However, he cites a lack of transportation as to why he is no longer receiving any care. Mr. Smith has not worked since the accident, and the Social Security Administration has determined that he is disabled. After leaving the hospital, Mr. Smith stayed with his girlfriend. After they separated, Mr. Smith lived with his father. Since November of 2018, he has been living with his father’s ex-wife in Georgia. Mr. Smith, through counsel, filed a lawsuit against the driver and owner of the car that slammed into him. They settled Mr. Smith’s claims for the available policy limits of $100,000.00. There was no other liable person or other insurance available to Mr. Smith to compensate him for his injuries. AHCA provided $74,312.38 in Medicaid benefits to Mr. Smith and determined through the formula in section 409.910(11)(f), that $36,596.54 of Ms. Smith’s settlement proceeds was subject to the Medicaid lien. Mr. Smith, through counsel, deposited the entire settlement proceeds of $100,000.00 into an interest bearing account pending resolution of AHCA’s interest. Valuation of the Personal Injury Claim David Dismuke was identified as Mr. Smith’s expert witness. Since 2012, Mr. Dismuke has been a board-certified trial lawyer, and approximately one percent of attorneys in Florida possess that credential. That designation essentially means that an attorney can represent that he or she is an expert in civil trial practice. Mr. Dismuke has his own law practice and has handled at least 34 civil jury trials. Over the course of his 18-year legal career, he has assessed the value of at least 2,000 personal injury cases, including ones involving brain injuries. Mr. Dismuke also has extensive experience in valuing the individual components of a damages award: Q: Before we get to this final opinion, Mr. Dismuke, in your practice, have you had to allocate portions of settlements between past medical expenses, usual medical expenses, and the other elements of damages? A: Many times. Q: And for what purpose would you do that sort of allocation? A: We do it, we do it frequently. We do it often times in situations just like this, where we’re trying to determine what an appropriate amount would be for either a Medicare or Medicaid lien, health insurance liens, we deal with it in situations, and we have lien issues on almost every case. Q: And do you also do it when you are trying to help clients figure out how, and in what manner, to structure their settlements, so they can have enough money for their future medical expenses and pay their old medical expenses? A: Yes, we do. And in fact to make another point, every single case I have to allocate [] the value [of past medical expenses], that’s one element of damages, what the value of future [medical expenses] is, that’s another element of damages, past lost wages, another element of damages, future lost wages, another element of damages, pain and suffering, inconvenience, you know, the noneconomic stuff. Every case we make these, we make these determinations. That’s how we come to total value on every case that we settle or get a verdict on. Q: And even on the ones that you settle for less than full value, are you still performing that same evaluation of the allocation of the various elements of damages? A: Yes sir. Mr. Dismuke has similar experience with Medicare set asides: Q: Now, another area where you allocate between elements of damages is where you require a Medicare set aside, isn’t that true? A: That’s correct. Q: Now, tell the court what a Medicare set aside is? A: A Medicare set aside is something that we put in place to protect the future interest of Medicare for when there’s a settlement. So we receive a large settlement that the person is still going to require future medical care, so we have to evaluate what is a reasonable amount of that settlement to set aside to protect Medicare’s future interests, so the client doesn’t just get a windfall from the settlement. Q: And have you done that? A: Multiple times. Q: And that requires you to evaluate the total settlement and allocate between past medical expenses, future medical expenses, pain and suffering and other elements of damages? A: That’s correct. In Mr. Dismuke’s opinion, Mr. Smith’s total damages easily amount to $1 million and could be as high as $2 to $3 million. Mr. Dismuke values Mr. Smith’s lost wages at no less than $750,000.00. While Mr. Smith is not currently receiving medical treatment, Mr. Dismuke believes those expenses would amount to hundreds of thousands of dollars and possibly millions of dollars. However, the damages resulting from Mr. Smith’s pain and suffering would be the largest component of his total damages. Mr. Dismuke believes that Mr. Smith’s past medical expenses would be the smallest component of his total damages given Mr. Smith’s age, future needs, and lost wages. With regard to allocating $10,000.00 of Mr. Smith’s total recovery to past medical expenses, Mr. Dismuke testified that a “$10,000 allocation of the $100,000 settlement is perfectly reasonable if not, more than generous, given the past [medical expenses] in this case of around $70,000. So setting forth ten percent of that is a generous allocation for past medical expenses.” Findings Regarding the Testimony Presented at the Final Hearing The undersigned finds that the testimony from Mr. Dismuke was compelling and persuasive as to the total damages incurred by Mr. Smith. While attaching a value to the damages that a plaintiff could reasonably expect to receive from a jury is not an exact science, Mr. Dismuke’s considerable experience with litigating personal injury lawsuits makes him a very compelling witness regarding the valuation of damages suffered by an injured party such as Mr. Smith. The undersigned also finds that Mr. Dismuke was qualified to present expert testimony as to how a damages award should be allocated among its components, such as past medical expenses, economic damages, and noneconomic damages.2/ AHCA offered no evidence to counter Mr. Dismuke’s opinions regarding Mr. Smith’s total damages or the past medical expenses he recovered. Accordingly, it is found that the preponderance of the evidence demonstrates that the total value of Mr. Smith’s personal injury claim is no less than $1 million and that the $100,000.00 settlement resulted in him recovering no more than 10 percent of his past medical expenses. In addition, the preponderance of the evidence demonstrates that $10,000.00 amounts to a fair and reasonable determination of the past medical expenses actually recovered by Mr. Smith and payable to AHCA.
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 from a settlement received by Petitioner, from a third party, pursuant to section 409.910, Florida Statutes (2017).
Findings Of Fact On May 1, 2009, Toresco, who was then 18 years old, was involved in a car accident. In the accident, Toresco suffered severe personal injury, including numerous fractures and a closed head injury resulting in brain damage. Toresco is now permanently disabled, has limited use of her left arm and leg, and cannot walk without assistance. Toresco's accident occurred when she turned her vehicle left in an intersection, in front of a 3000-pound truck. The truck hit her vehicle's passenger side, and her vehicle went over a concrete curb and into two palm trees. After the accident, Toresco was in a coma for approximately two months and suffered skull fractures and brain damage. Toresco's injuries included kidney failure, hemorrhages, and cognitive loss. She was fed by a feeding tube. Toresco lost full use of her right side due to a brain injury. She is no longer able to work, horseback ride, dance, or participate in many of the activities she had participated in before the accident. Toresco's medical care related to the injury was paid by Medicaid, and the Medicaid program provided $116,549.10 in benefits associated with her injury. The $116,549.10 represented the entire claim for past medical expenses. Toresco brought a personal injury lawsuit against the driver/owner of the truck that caused the accident to recover all of her damages associated with her injuries. McCullough, a 23-year civil trial attorney with the law firm of McCullough and Leboff, P.A., in Davie, Florida, represented Toresco in her personal injury action. He was her third attorney handling the case and took over from the two previous attorneys because of the difficult liability issues in the personal injury action. During the pendency of the personal injury action, AHCA was notified of the action, and AHCA asserted a $116,549.10 Medicaid lien against cause of action and settlement of that action. McCullough handled the case through settlement. The personal injury lawsuit was settled for the lump-sum unallocated amount of $750,000.00. AHCA has neither filed an action to set aside, void, or otherwise dispute the settlement nor started a civil action to enforce its rights under section 409.910. AHCA, through its Medicaid program, spent $116,549.10 on behalf of Toresco, all of which represents expenditures paid for Toresco's past medical expenses. The formula at section 409.910(11)(f), as applied to the entire $750,000.00 settlement, requires payment in the full amount of the $116,549.10 Medicaid lien, and AHCA is demanding payment of $116,549.10 from the $750,000.00 settlement. Toresco 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). At the final hearing, Petitioner presented, without objection, the expert valuation of damages testimony of her Florida trial attorney, McCullough. McCullough practices exclusively personal injury law and always represents individuals who are injured. The majority of his cases involve automobile accidents. McCullough's expertise also encompasses evaluation of personal injury cases. He stays abreast of all State of Florida jury verdicts by reviewing jury verdict reporters and discussing personal injury verdicts and valuations with other attorneys in his geographical area. At hearing, McCullough explained that as a routine part of his practice, he makes assessments concerning the value of damages suffered, and he detailed his process for making those assessments. McCullough credibly made clear the process he took to develop an opinion concerning the value for the damages suffered in Toresco's case. McCullough testified that he reviewed Toresco's automobile report, medical records, Life Care Plan, Economist Report, and met with his client, Toresco, numerous times. McCullough testified that prior to the accident, Toresco was a champion horseback rider, and she spent most of her time at the stables. The accident "tremendously affected her" because she is unable to work, ride horses, and participate in daily activities due to her injury from the automobile accident. McCullough analyzed how the accident occurred and detailed that Toresco turned left in front of a 3000-pound truck, which hit the passenger side of Toresco's car and pushed her into two palm trees. Toresco was found to have significant head injury, with facial fractures, and a closed head injury when she was taken to the hospital. McCullough testified that the brain damage from the head injury caused Toresco to lose use of her full right side. McCullough further testified at hearing that the medical care related to the accident was paid by Medicaid in the amount of $116,549.10, which constituted Toresco's claim for past medical expenses. McCullough explained that Toresco sued the individual driver and driver's company because even though Toresco turned left in front of the driver's vehicle, if the driver had not been moving at a rate of speed above the speed limit, Toresco would not have been as seriously injured because she would not have been hit squarely in the middle of the vehicle. A slower lawful speed would not have resulted in as significant of an injury, or the truck might have even missed her. McCullough further stated that the defense's position was that Toresco was liable for her own injuries because she turned in front of the vehicle, and, ultimately, the case hinged on a battle of engineering experts and accident reconstructionists. McCullough explained that during the mediation of Toresco's case, the damages were presented to the defendant. He detailed how the economic damages were outlined for the defendant, including the $116,549.10 for past medicals and noneconomic pain and suffering of around $7,000,000.00. Ultimately, the case settled during mediation with the liable third parties for $750,000.00. McCullough opined that the settlement was not the full value of Toresco's damages and that the settlement only represents about ten percent of the full measure of her damages. McCullough's testimony was uncontradicted and compelling. McCullough explained that he based his valuation of Toresco's economic damages on the life care plan, which included the following claims: past medical expenses of $116,549.10; lost earnings of $68,106.00; future lost earnings of $976,186.00; and future medical expenses $2,154,509.00. He added the past medicals, past lost wages, future lost wages, and future medical expenses together, which totaled $3,300,000.00. Based on his training and experience, McCullough also credibly testified that the noneconomic damages would have significant value under the circumstances and that Toresco's economic and noneconomic damages together have a value that totals between a conservative $7,500,000.00 and $10,000,000.00. McCullough concluded that the low-end conservative number for the value of Toresco's damages is $7,500,000.00. At hearing, Barrett also provided an expert opinion without objection regarding the value of Toresco's case. Barrett is a 40-year trial attorney who has represented plaintiffs in various types of personal injury lawsuits, including automobile accidents. He is a partner with the law firm of Barrett, Nonni, and Homola and handles jury trials. Barrett routinely makes assessments concerning the value of damages suffered by injured parties in his daily practice. He is familiar with reviewing medical records, life care plans, and economist reports. He stays abreast of jury verdicts and routinely runs facts by a listserv group of approximately 25 trial lawyers to get the value of what cases are reasonably worth. Barrett became familiar with Toresco's injuries after he reviewed the exhibits in this case, the report and patient summary, life care plan, economist report, and mediation summary. Barrett determined that Toresco's medical damages were severe, and she was largely at fault when she turned left in front of the vehicle that struck her. Barrett detailed how severe Toresco's injuries were by explaining that she was in a coma in the hospital for about two months and suffered kidney failure because of the brain damage and that "it affected her almost in every way." Barrett also explained that before the accident, Toresca was athletically built, a competitive equestrian and dancer, and was a working senior in high school, but she will never be able to work, ride a horse, dance, or do things young women do again. Barrett explained that the evidence supports over $3,000,000.00 in economic damages. He testified that he relied on the economist who had calculated the present value of Toresco's future medical expenses, lost past and future income, and claim for past medical expenses for a total of $3,315,350.00. Barrett further opined that "[Toresco's] future and past pain and suffering and mental anguish, loss of enjoyment of life was worth $6,000,000.00" in noneconomic damages. Barrett added the economic and noneconomic damages and determined the total would have a value between approximately $8,000,000.00 and $10,000,000.00 with an average around $9,000,0000.00. He credibly concluded that Petitioner's total conservative value of damages is $7,500,000.00. Barrett went on to explain that the $750,000.00 settlement was very conservative and did not fully compensate Toresco for the full value of her damages. Instead, he opined that the settlement only covered a ten-percent recovery of the conservative value of her damages, $7,500,000.00. Barrett further explained that each element of damages should be reduced to ten percent of the amount attributable to each element, and if ten percent was applied to the $116,549.10 claim for past medical expenses, the amount is $11,654.91. The evidence demonstrates that the total conservative value of the damages related to Toresco's injury was $7,500,000.00 and that the settlement amount, $750,000.00, is only ten percent of the total value. The $750,000.00 settlement does not fully compensate Petitioner for the total value of her damages. Petitioner has established by unrebutted uncontested evidence that the $750,000.00 settlement amount is ten percent of the total value ($7,500,000.00) of Petitioner's damages. Using the same calculation, Petitioner correctly established that applying ten percent to $116,549.10 (Petitioner's amount allocated in the settlement for past medical expenses) results in $11,654.91, the portion of the Medicaid lien owed. Petitioner proved by a preponderance of the evidence that Respondent should be reimbursed for its Medicaid lien in a lesser amount than the amount calculated by Respondent pursuant to the formula set forth in section 409.910(11)(f).
The Issue The issue in this proceeding is how much of Petitioner’s settlement proceeds received from a third party should be paid to Respondent, Agency 1 All statutory references are to Florida Statutes (2019), as the parties agreed. for Health Care Administration (AHCA), to satisfy AHCA’s Medicaid lien under section 409.910, Florida Statutes.
Findings Of Fact Stipulated Facts On July 13, 2018, Mr. Miller was involved in an automobile accident in Sarasota County, Florida. Mr. Miller was struck from behind while stopped at a red light on Bee Ridge Road. At the time of the crash, the tortfeasor was driving under the influence of alcohol. Immediately after the accident, Mr. Miller was treated at Sarasota Memorial Hospital for multiple serious injuries including a T2 complete spinal cord injury, C5-C7 incomplete spinal cord injury, brachial plexus injury, loss of majority of function to dominant left hand, intracranial hemorrhage, acetabular fracture, basilar skull fracture, femur fracture, thoracic spine fracture, rib fractures, as well as a closed fracture of the pelvis. As a result of the accident, Mr. Miller cannot control his blood pressure, cannot sweat, and lacks control of his bowels and bladder due to the spinal cord injury. While hospitalized, he underwent a PEG placement and tracheostomy. As a result of the accident, Mr. Miller was rendered a paraplegic. Due to the severity of his injuries, Mr. Miller has required intermittent medical care for his significant injuries. Mr. Miller brought a personal injury action to recover for all the damages related to the incident. This action was brought against various defendants. Since this incident and the resulting spinal cord injury, Mr. Miller has been in a permanently disabled state, requiring assistance with most activities of daily living. In May of 2020, after litigation was commenced, Mr. Miller settled his tort action. AHCA was properly notified of Mr. Miller’s lawsuit against the defendants. AHCA indicated it had paid benefits related to the injuries from the incident in the amount of $108,456.65. AHCA has asserted a lien for the full amount it paid, $108,456.65, against Mr. Miller’s settlement proceeds. AHCA has maintained that it is entitled to application of the formula in section 409.910(11)(f), to determine the lien amount. Application of the statutory formula to Mr. Miller’s $1,110,000.00 settlement would result in no reduction of the lien, given the amount of the settlement. AHCA paid $108,456.65 for medical expenses on behalf of Mr. Miller, related to his claim against the liable third parties. The parties stipulated that AHCA is limited in this section 409.910(17)(b) proceeding to the past medical expenses portion of the recovery. Evidence at the Hearing Mr. Miller testified about the extent of the injuries he suffered as a result of the automobile accident that was the subject of the personal injury lawsuit. As a 23 year old, who is confined to a wheelchair, Mr. Miller testified about the severe, permanent injuries he endures and the tremendous and permanent impact it has and will have on his life. His testimony was detailed and compelling. He explained his recent and upcoming surgeries. He also explained the effects that his accident has had on his family, particularly his mother who helps him meet life’s daily routines. Petitioner called two experts to testify on his behalf: Mr. Fernandez, Petitioner’s personal injury attorney in the underlying case; and Mr. McLaughlin, an experienced board-certified civil trial attorney. Both Mr. Fernandez and Mr. McLaughlin were accepted as experts on the valuation of personal injury damages, without objection by AHCA. Mr. Fernandez is an attorney at Maney & Gordon, P.A., in Tampa, Florida. He is admitted to practice law in Florida and has been practicing for 12 years. In addition to Petitioner’s case, he has represented clients in personal injury matters, including cases involving catastrophic injuries similar to that of Mr. Miller’s. Mr. Fernandez regularly evaluates the damages suffered by injured people such as Mr. Miller. He is familiar with Mr. Miller’s damages from his representation of Mr. Miller in his personal injury lawsuit. Mr. Fernandez testified as to the difficulties he encountered in the personal injury suit on behalf of Mr. Miller, which included the inherent difficulties of dram shop claims2 and the limited insurance coverage available to fully compensate Mr. Miller for his injuries. Through his investigation, Mr. Fernandez sought out all of the available insurance coverage and filed a complaint in Sarasota County circuit court on behalf of Mr. Miller. As part of his work-up of the case, he evaluated all elements of damages suffered by Mr. Miller. After litigating the case for some time, Mr. Fernandez negotiated a total settlement for the insurance limits of $1,110,000.00 against the defendants. Mr. Fernandez provided detailed testimony regarding how Mr. Miller’s accident occurred and the extent of his injuries. Mr. Fernandez testified regarding the process he followed to evaluate and arrive at his opinion on the total value of the damages suffered in Mr. Miller’s case. Through the course of his representation, he reviewed all the medical information; evaluated the facts of the case; determined how the accident occurred; reviewed all records and reports regarding the injuries Mr. Miller suffered; analyzed liability issues and fault; developed economic damages figures; and also valued non- economic damages such as past and future pain and suffering, loss of capacity to enjoy life, scarring and disfigurement, and mental anguish. Mr. Fernandez testified about the impact of the accident on Mr. Miller’s life. As a result of his injuries, Mr. Miller can no longer perform many of the normal activities of daily living for himself and he has limited mobility. 2 Florida’s dram shop law, as set forth in section 768.125, Florida Statutes, provides that “[a] person who sells or furnishes alcoholic beverages to a person of lawful drinking age shall not thereby become liable for injury or damage caused by or resulting from the intoxication of such person, except that a person who willfully and unlawfully sells or furnishes alcoholic beverages to a person who is not of lawful drinking age or who knowingly serves a person habitually addicted to the use of any or all alcoholic beverages may become liable for injury or damage caused by or resulting from the intoxication of such minor or person.” Based on Mr. Fernandez’s evaluation of Petitioner’s case, he opined that the total value of Mr. Miller’s damages was conservatively estimated at $35 million. The valuation of the case includes past medical expenses, future medical expenses, economic damages, loss of quality of life, and pain and suffering. Mr. Fernandez testified that the non-economic damages were the greatest element of loss or damage sustained by Mr. Miller, and therefore the largest driver of the valuation and greatest portion of damages recovered in the settlement. Mr. Fernandez testified that his estimation of total damages is based upon his experience as a trial lawyer, and would be what he would have asked a jury to award related to Mr. Miller’s damages had the case gone to trial. Mr. Fernandez opined that in comparing the $35 million valuation of the damages in the case to the total settlement proceeds of $1,110,000.00 (that is, by dividing $1,110,000.00 by $35,000,000.00), Mr. Miller recovered only 3.17 percent of the full value of his claim. Mr. Fernandez opined that, as a result, the allocation formula is 3.17 percent. Mr. Fernandez went on to testify that he routinely uses a pro-rata approach with lien holders in his day-to-day practice of resolving liens in Florida. The past medical expenses of Mr. Miller are $108,456.65.3 That figure multiplied by 3.17 percent would result in recovery of $3,438.074 allocated to past medical expenses. Mr. Fernandez’s testimony was not contradicted by AHCA, and, mathematical error aside, was persuasive on this point. 3 There is no competent substantial evidence in the record that Mr. Miller’s past medical expenses amount to more than the sum of AHCA’s Medicaid lien. 4 The undersigned finds that 3.17 percent of $108,456.65 is $3,438.07, not $3,433.07, as testified to by Petitioner’s witnesses and presented in Petitioner’s Proposed Final Order. Mr. McLaughlin is a 23-year practicing plaintiff’s attorney with Wagner & McLaughlin. Mr. McLaughlin and his firm specialize in litigating serious and catastrophic personal injury cases throughout central Florida. As part of his practice, Mr. McLaughlin has reviewed numerous personal injury cases in so far as damages are concerned. Mr. McLaughlin has worked closely with economists and life care planners to identify the relevant damages in catastrophic personal injuries, and he regularly evaluates the types of damages suffered by those who are catastrophically injured. Mr. McLaughlin testified as to how he arrived at his valuation opinion in this case by explaining the elements of damages suffered by Mr. Miller. Similar to Mr. Fernandez, he stated that the greatest element of loss Mr. Miller suffered was non-economic damages. He testified that his estimates for the future care and pain and suffering damages of Mr. Miller would be in the high eight figures. Mr. McLaughlin testified that, in his opinion, the total damages suffered by Mr. Miller are conservatively estimated at $38,350,000.00. Mr. McLaughlin testified that it is a routine part of his practice to conduct round-table discussions about cases with other attorneys at his firm. His discussions regarding Mr. Miller’s case with attorneys in his firm resulted in a consensus that Mr. Miller’s total damages had a value in excess of $38 million. He agreed with the $35 million total valuation testified to by Mr. Fernandez for purposes of the lien reduction formula. Mr. McLaughlin 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 (that is, dividing $1,110,000.00 by $35,000,000.00). This resulted in Mr. Miller recovering only 3.17 percent of the full value of his claim, and, as such, a 3.17 percent ratio may be used to reduce the lien amount sought by AHCA. Both Mr. Fernandez and Mr. McLaughlin testified about the ultimate value of the claim, measured in damages, for Mr. Miller’s personal injury liability 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 Mr. Miller’s medical information and other information before offering an opinion regarding his total damages. Both Mr. Fernandez and Mr. McLaughlin’s approaches to evaluating the damages suffered by Mr. Miller and the resulting ratio for reducing past medical expenses were conservative. The undersigned finds that both were credible, persuasive, and well qualified to render their opinions. The valuation opinions by Mr. Fernandez and Mr. McLaughlin as to the total value of the claim were not rebutted or contradicted by AHCA on cross examination or by any other evidence. AHCA offered no evidence to question the credentials or opinions of either Mr. Fernandez or Mr. McLaughlin, or to dispute the methodology they proposed which would reduce Mr. Miller’s claim. AHCA did not offer any alternative expert opinions on the damage valuation or allocation method proposed by Mr. Fernandez or Mr. McLaughlin. The undersigned finds that Petitioner has established by persuasive, unrebutted, and uncontradicted evidence that the $1,110,000.00 recovery is 3.17 percent of the total value ($35 million) of Petitioner’s total damages. Applying the proportionality methodology, Petitioner has established that 3.17 percent of $108,456.65, or $3,438.07, is the amount of the recovery fairly allocable to past medical expenses and is the portion of the recovery payable to AHCA, pursuant to its Medicaid lien. Petitioner proved by a preponderance of the evidence that Respondent should be reimbursed $3,438.07, which is the portion of the settlement proceeds fairly allocable to past medical expenses.
The Issue The issue to be determined is the amount to be reimbursed to Respondent, Agency for Health Care Administration, for medical expenses paid on behalf of Petitioner, Micaiah McCray, from a medical-malpractice settlement received by Petitioner from a third party.
Findings Of Fact Petitioner was born on November 11, 2008. In the months following birth, Petitioner underwent several surgeries and procedures including a percutaneous endoscopic gastrostomy tube placement on January 26, 2009, a repair of incomplete atrioventricular canal defect on April 15, 2009, and Nissen Fundoplication and revision of gastrostomy tube on July 8, 2009. On July 23, 2009, Petitioner was admitted to St. Mary’s Medical Center with suspected bronchitis and exacerbation of reactive airway distress. During this hospitalization, on or about August 15, 2009, Petitioner suffered a stroke involving the right hand and part of the right leg. A CT scan of Petitioner’s brain revealed a left middle cerebral artery distribution infarction suggesting a large ischemic infarct. Petitioner’s condition stabilized and Petitioner was released from the hospital on August 27, 2009, with the following discharge summary: Exacerbation of reactive airway disease Bronchitis Mitral stenosis Mild pulmonary hypertension Hypersecretory upper airway Pansinusitis Clostridium difficile colitis Hypoxemia with oxygen dependency Gastroesophageal reflux disease, status post fundoplication Left cerebral infarction of unknown etiology Endocardial cushion defect status post atrioventricular canal repair Bilateral optic nerve colobomas Rule out CHARGE association/Goletz syndrome On September 21, 2009, Petitioner was admitted to Palms West Hospital with a diagnosis of respiratory distress. Petitioner’s condition improved and he was discharged home on September 25, 2009. Subsequent to that hospitalization, an MRI performed on October 19, 2009, revealed new acute strokes. In the years following Petitioner’s strokes, he underwent numerous surgeries, procedures, and therapies for a multitude of medical conditions. Petitioner’s past medical expenses related to his injuries were paid by both private health insurance and Medicaid. Medicaid paid for Petitioner’s medical expenses in the amount of $217,545.58. United Healthcare and Aetna provided $37,090.17 and $3,231.72 in benefits, respectively. Total healthcare expense incurred for Petitioner’s injuries was $257,867.47. Petitioner is developmentally delayed and cannot walk or crawl. Petitioner requires a wheelchair or stroller for mobility and requires positioning and trunk support to maintain a seated position. His ability to independently explore his environment is severely restricted. Petitioner is completely dependent on others for activities of daily living. He cannot bathe, dress, or eat on his own. He requires a feeding tube, and receives professional in-home services to monitor his respiration and heartrate, manage his GJ tube, administer medication, and monitor bowel and bladder function. Petitioner does not vocalize words and has limited communication. He has no function of his right hand and has tightness in the right leg below the knee. Petitioner’s condition is permanent. Petitioner’s parents brought a medical malpractice action on his behalf in the Circuit Court of the 15th Judicial Circuit Court in and for Palm Beach County against Tenet St. Mary’s Inc., d/b/a St. Mary’s Medical Center; Palms West Hospital Limited Partnership, d/b/a Palms West Hospital; David Evan Mound Drucker, M.D.; South Florida Pediatric Surgeons, P.A.; Physicians Professional Liability Risk Retention Group; Alberto Antonio Marante, M.D.; Florida Pediatric Critical Care, P.A.; Diego Maurcio Diaz, M.D.; Gerard Minor, P.A.-C; Children’s Center Gastroenterology & Nutrition, P.A.; Chartis Claims, Inc.; Lexington Insurance Company; Eunice Cordoba, M.D; and Edwin Liu, M.D., P.A., d/b/a Pediatric Neurologist of Palm Beach (Defendants). Petitioner’s action alleged, among other theories, that the Defendants failed to recognize in Petitioner a sickle cell trait and properly treat Petitioner’s dehydration, a factor contributing to Petitioner’s strokes. Petitioner’s parents retained Scott Marlowe Newmark, an attorney specializing in personal and catastrophic injury claims for over 30 years, to represent Petitioner in the medical malpractice action against Defendants. In preparation for litigation, Stephanie P. Chalfin, M.S., prepared a life care plan for Petitioner. The plan sets out the need for future medical care, equipment, hospitalizations, surgeries, medications, and attendant care, through Petitioner’s expected life span. In this case, Petitioner’s life expectancy is an additional 66.9 years. During the pendency of the medical malpractice action, J. Rody Borg, Ph.D., an economist, prepared a report assigning a present value between $24,373,828 and $29,065,995 for the future costs of Petitioner’s life care plan, lost benefits, and lost earning capacity. Mr. Newmark’s expert valuation of the total damages suffered by Petitioner is at least $30 million. Mr. Newmark considered the life care plan and Dr. Borg’s report in arriving at the value of total economic damages. Mr. Newmark then examined jury verdicts in similar cases involving catastrophic injury to value non-economic damages. Of the nine jury verdicts examined, Mr. Newmark highlighted three as particularly relevant because they involved young children with brain injuries similar to Petitioner’s injury and who required life-long care. The nine cases had an average award of $12 million for non-economic damages (past and future pain and suffering). Mr. Newmark arrived at his valuation of Petitioner’s damages at $30 million by considering the low-end of Dr. Borg’s economic damages estimate, $24 million, along with the average jury award for non-economic damages in similar cases. Mr. Newmark’s testimony was credible, reliable and persuasive. Mr. Newmark’s valuation of total damages was supported by the testimony of two additional personal injury attorneys, Mark Finklestein and R. Vinson Barrett, both of whom have practiced personal injury law for more than 30 years and were accepted as experts in valuation of damages (in personal injury cases). Mr. Finkelstein served as Petitioner’s guardian ad litem in the underlying medical malpractice action and agreed with the valuation of total damages at $30 million. In formulating his opinion on the value of Petitioner’s damages, Mr. Barrett reviewed the discharge summaries from Petitioner’s hospitalizations, the life care plan, Dr. Borg’s report, and a day-in-the-life video of Petitioner. Mr. Barrett also reviewed the jury trial verdicts and awards relied upon by Mr. Newmark. Mr. Barrett likewise agreed with the $30 million valuation of Petitioner’s total damages. Respondent was notified of Petitioner’s medical malpractice action during its pendency. Respondent asserted a Medicaid lien in the amount of $217,545.58 against the proceeds of any award or settlement arising out of that action. In 2012 and again in 2015, Petitioner received a series of settlements from the Defendants. The settlements totaled $2,450,000. The settlements do not fully compensate Petitioner for the total value of his damages. The settlements are undifferentiated, meaning they are not apportioned to specific types of damages, such as economic or non-economic, past or future. In all of the releases signed by the parties thereto, the parties agreed that, “if an allocation of this settlement is necessary in the future, this allocation should be made by applying the same ratio this settlement bears to the total monetary value of all [Petitioner’s] damages to the specific damage claim.” Respondent was not a party to the 2012 and 2015 settlements and did not execute any of the applicable releases. Respondent’s position is that it should be reimbursed for its Medicaid expenditures on behalf of Petitioner pursuant to the formula set forth in section 409.910(11)(f). Under the statutory formula, the lien amount is computed by deducting a 25 percent attorney’s fee and taxable costs (in this case, $613,131) from the $2,450,000 recovery, which yields a sum of $1,836,869 then dividing that amount by two, which yields $918,434.50. Under the statute, Respondent is limited to recovery of the amount derived from the statutory formula or the amount of its lien, whichever is less. In the case at hand, Respondent may recover under the statute the full amount of its lien. Petitioner’s position is that reimbursement for past medical expenses should be limited to the same ratio as Petitioner’s recovery amount to the total value of damages. Petitioner urges Respondent should be reimbursed $21,067.77 in satisfaction of its Medicaid lien. The settlement amount of $2,450,000 is 8.17 percent of the total value ($30 million) of Petitioner’s damages. By the same token, 8.17 percent of $257,867.47 (Petitioner’s past medical expenses paid by both Medicaid and private insurance) is $21,067.77. Both Mr. Finklestein and Mr. Barrett testified that $21,067.77 is a reasonable and rational reimbursement for past medical expenses. Their testimony is accepted as persuasive. 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).
The Issue At issue are the actual expenses, if any, for medically necessary and reasonable medical and hospital, habilitative and training, residential, and custodial care and service, for medically necessary drugs, special equipment, and facilities and for related travel currently required for the infant, and the reasonable expenses, if any, incurred in connection with the filing of the claim for compensation, including reasonable attorney's fees.
Findings Of Fact Background Michael Lebrun (Michael) is the natural son of Barnabas Lebrun and Rolande Lebrun, and was born October 9, 1990, at Jackson Memorial Hospital, Dade County, Florida. At birth, Michael suffered a "birth-related neurological injury," as that term is defined by Section 766.302(2), Florida Statutes, and he was accepted by respondent, Florida Birth- Related Neurological Injury Compensation Association (NICA) for coverage under the Florida-Birth Related Neurological Injury Compensation Plan (the Plan). Section 766.301, et seq., Florida Statutes. Consistent with Section 766.305(6), Florida Statutes, NICA's acceptance of the claim was approved by final order of March 30, 1994, and NICA was directed to pay "past medical expenses, a reasonable attorney's fee, and . . . future expenses as incurred" in accordance with Section 766.31, Florida Statutes. The order further reserved jurisdiction to resolve "any disputes, should they arise, regarding petitioners' entitlement to past medical expenses, a reasonable attorney's fee, and subsequently incurred expenses." At petitioners' request, a hearing was held to address, pertinent to this order, medically necessary and reasonable expenses alleged to be currently required by the infant, and the reasonable expenses incurred in connection with the filing of the claim for compensation, including reasonable attorney's fees. Petitioners did not, however, at any time prior to hearing, present any requests for compensation to NICA which identified any specific needs of the infant which they felt should be covered by the Plan, but were currently unmet. 2/ Notably, the parties' stipulation, which resolved that Michael was covered under the Plan, approved by order of March 30, 1994, provided: 8. The Claimants and the Association hereby agree as follows: * * * The Association will pay all benefits, past and future, as authorized by Section 766.31, Florida Statutes. The Association and Alan Goldfarb, Esquire, the attorney for the Claimants, agree that a reasonable sum for attorneys fees and services and certain expenses incurred in the representation of the Claimant in this case will be determined at a future date. In absence of an agreement for a specific amount, either party may request a hearing for determination. * * * 11. The Parties agree that the issues of the actual expenses for medically necessary and reasonable medical and hospital, habilitative and training, residential and custodial care and service, for medically necessary drugs, special equipment and facilities, and for related travel as per Florida Statute 766.31 and for a reasonable attorney's fee and expenses, may be determined by the Hearing Officer if a dispute arises regarding the same. The association is not aware of any specific disputes regarding the services being provided to Michael Lebrun but acknowledges that petitioners have requested a hearing regarding the same. . . . * * * 16. In order for the Association to carry out its responsibility as provided in this stipulation, the Claimants shall provide within thirty (30) days of the date of approval of this stipulation, the following: A complete list (with copies, invoices, addresses, etc.) of all known past expenses for which the Claimants seek reimbursement in accordance with the terms and provisions of this stipulation document for medical and related expenses previously incurred; and A fully executed authorization of release of any and all medical records, insurance program records, and such other authorization as may, from time to time, reasonably be required by the Associa- tion to complete its duties hereunder; and Such other reasonable information as may be required by the Association, which relates to the provision of Michael [sic] [medical] or habilitative care or the payment of Michael's bills. Petitioners' failure to file a claim with NICA for benefits they were of the opinion that Michael currently required, but had not received, or supply NICA with the requested information to evaluate any request for benefits, was contrary to their obligation, as evidenced by the forgoing stipulation. Such failing was not, however, raised by NICA prior to hearing, nor did it object to such failing during the course of hearing. Accordingly, while, if timely raised, petitioners' failure to first provide NICA an opportunity to address the specifics of a claim for benefits prior to hearing could have been appropriately addressed, such failure is not a bar to the resolution of the issues presented. 3/ Michael's past and current history Following six months of life, Michael was referred to the Department of Health and Rehabilitative Services (DHRS), Children's Medical Services, Early Intervention program. Through his Early Intervention coordinator, Michael was initially provided services, at public expense, through what is known as the "Birth through Two" ("B-2") services program. That program is a public service program for handicapped children through 36 months of age, or until their transition to the Dade County Public Schools Special Education Pre-K Program, and is jointly funded by DHRS and the Dade County Public Schools. As of the date of hearing, Michael had been receiving, and was scheduled to continue to receive until his transition into the Pre-K Program, physical therapy three times a week at forty-five minutes a session and occupational therapy four times a week at forty-five minutes a session, including oral stimulation, through United Cerebral Palsy. Such other services or items of special equipment that Michael needed were also ordered or provided, at public expense, through the auspice of his Early Intervention coordinator. As of July 5, 1994, some two weeks following the hearing in this case, Michael was scheduled to transition from the B-2 Program into the Pre-Kindergarten Exceptional Education Program (Pre-K program), where he would receive a different level of rehabilitative services. According to the proof, once he transitions into the Pre-K program, Michael will receive sixty minutes per week of physical therapy and thirty to forty-five minutes of occupational therapy, during the course of the school day. Such therapies are not quantified by frequency or duration of a therapy session predicated on the well founded belief that a child's responsiveness to therapy will vary from day to day and, accordingly, the frequency of delivery is left to the discretion of the individual therapist. As provided by the School Board, physical therapy primarily deals with the functional mobility, positioning and musculoskeletal "status" of the lower extremity of the student, and occupational therapy primarily addresses the functioning of the upper extremities, classroom positioning and improvement of visual and perceptual motor skills to function in an educational program. Although available, the School Board does not propose to offer speech therapy to Michael since it has concluded, based upon evaluations and observations, that his speech development is commensurate with his present level of cognitive functioning and that no developmental deficiency exists. As noted, the physical therapy and occupational therapy provided by the School Board during the school year is predicated on what it perceives is necessary for the student to profit from the educational program. Under the circumstances, the services provided are not necessarily an objective evaluation of the medically necessary and reasonable habilitative services the infant may need for treatment; 4/ however, in some cases they may be. Whether the services to be provided the infant in this case will meet such standard can not, based on the record in this case, be resolved; however, if not, such services should be available, subject to available appropriations, through the Department of Health and Rehabilitative Services. Section 409.905, Florida Statutes. In addition to his apparent need for physical and occupational therapy, Michael also exhibits various self-abusive behaviors which require therapeutic correction. Such treatment was requested by Michael's Early Intervention coordinator, through Developmental Services, on February 18, 1994. As of the date of hearing, it was not shown whether Michael had or had not begun to receive such services. The subject claim At hearing, petitioners offered no proof of any expenses previously incurred for which they sought reimbursement, 5/ and their claim, relative to the current needs of Michael, was limited to certain equipment, therapy and attendant care which Paul M. Deutsch, Ph.D. ("Mr. Deutsch"), perceived was required for Michael. 6/ As to the items of equipment recommended by Mr. Deutsch, many were age specific and no longer required or had otherwise been provided through a public assistance program. Currently, according to Mr. Deutsch, Michael is in need of the following equipment: (1) TLC bath seat; (2) prone stander; (3) exercise mat; (4) hand-held shower; (5) wheelchair backpack; and, (6) Rifton pottychair. At the time of final hearing, the prone stander had been ordered through Children's Medical Services, but a TLC bath seat and hand-held shower had not. There was, however, no showing that the Lebruns desired such items or that the TLC bath seat and held-held shower were needed for Michael's care. Indeed, Michael can sit in the bathtub where he is regularly bathed by his parents without a TLC bath seat or hand-held shower. Should the Lebruns decide in the future that such items would be beneficial to them in the care of Michael, they are certainly able to ask NICA for such items; however, currently, they have demonstrated no desire or need for them. As to the wheelchair backpack, the proof fails to demonstrate that Michael needs such item because he does not suffer from any medical condition that requires the transport of special medical equipment. Likewise, Michael does not currently require a Rifton pottychair since he is not currently being "potty trained" nor is there any expressed expectation to begin such training in the known future. Michael also does not currently require an exercise mat since he is not receiving any home therapy. As for rehabilitative services, Mr. Deutsch recommends that in addition to the services that Michael is to receive through the Dade County Public School system that he receive two physical therapy sessions, two occupational therapy sessions, and two speech therapy sessions each week. Given that Mr. Deutsch was not specifically aware of the therapies Michael was receiving and was to soon receive, that he had never participated or observed any therapy sessions with Michael, and offered no specific reasons as to why these additional therapies were necessary to treat Michael's condition, Mr. Deutsch's opinion is rejected. Indeed, Mr. Deutsch's recommendations appear to be little more than a generic model, without specific reference to the needs of Michael and the benefits that might reasonably be expected from additional therapies, if any. Notably, Mr. Deutsch's life care plan recommends an annual evaluation by health care specialists to address Michael's specific needs for physical, occupational and speech therapy. That recommendation is a tacit recognition of the fact that each disabled child does not require the same services, and recognizes that the need for services is appropriately left to health care professionals involved with Michael's care. Significantly, the record is devoid of any proof, apart from public services, that petitioners or their counsel ever acted on Mr. Deutsch's recommendation, made May 27, 1993, that Michael receive an annual evaluation by health care specialists to address his need for such services. While the nature and frequency of services requested were not shown to be medically necessary or reasonable at the time of hearing, the record does demonstrate that Michael requires rehabilitative services and special equipment, which, although ordered through public service programs, may not have been provided or may not be adequate. Given the circumstances, it would be appropriate for NICA to continue its coordination with public service agencies, as discussed infra, to assure that Michael receives the services and special equipment he requires in a timely manner. 7/ Moreoever, since the proof fails to demonstrate whether a medical assessment has been made, it would be appropriate and in the best interests of the child for NICA to coordinate with the public service agencies to assure a comprehensive medical assessment is made of Michael's current need for speech therapy and to determine whether additional physical and occupational therapy may be warranted. Should there currently exist no obligation or ability, because of lack of funding or otherwise, for the public service agencies to provide a medical evaluation, therapy as needed, or special equipment, or should the agencies fail to timely provide a medical evaluation, therapy or special equipment, though required by law to do so, it would be appropriate for NICA, with the parents' consent, to provide those services or equipment until the appropriate pulbic service agency accepts responsibility for the provision of those services and equipment. Finally, Mr. Deutsch has recommended that "attendant care" be provided to the Lebrun family at the rate of two to four hours a day to provide consistency in the care of Michael while allowing the parents a respite. Notably, the Lebruns, who speak regularly with NICA, have never made such a request, and there was no showing that such services are necessary at this time. 8/ Attendant care is generally provided in the home to assist with an individual's daily living skills, such as bathing, moving the individual in and out of a wheelchair or repositioning. Attendant care is not necessary at this time as Michael is still quite small and he is mobile. Indeed, there was no proof at hearing that the Lebruns were incapable, by virtue of any circumstance, to care for Michael, or that he required inordinate care. NICA's activities NICA, consistent with its obligations under law, has maintained communication with Michael's Early Intervention coordinator at the Department of Health and Rehabilitative Services, Children's Medical Services, as well as Michael's staffing specialist with the Dade County Public Schools, to monitor Medicaid services to Michael and, if necessary, provide any services those agencies are unable to provide. NICA, through its Executive Director, Lynn Dickinson, has met personally with the Lebruns on numerous occasions, and has routinely spoken with them by telephone, regarding Michael's care and any perceived needs they may have had for his care. At no time, during the course of any of those conversations, did the Lebruns ever request any attendant care or any other service or equipment recommended by Mr. Deutsch. 9/ Attorney's fees and costs Although duly noticed at petitioners' request, as an issue to be heard, petitioners offered no proof, as required by Section 766.31(1)(c), Florida Statutes, to support their claim for an award of reasonable attorney's fees. As for costs, the only proof offered concerned an agreed fee arrangement with Mr. Deutsch. According to Mr. Deutsch, he agreed to a cap of $3,000 just to cover expenses. What those expenses were, are or will be, was not, however, explained of record, and it cannot be concluded, based on the proof, that such $3,000 cap is reasonable or recoverable.
The Issue What amount of Petitioners' $7,250,000.00 settlement related to personal injuries he received and also arising from a bad faith claim he intended to file, is payable to Respondent, Agency For Health Care Administration ("AHCA"), to satisfy AHCA's Medicaid lien totaling $356,714.94.
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: Stipulated Facts From the Parties On June 21, 2013, Wilsin Guzman ("Guzman"), who was then 22 years old, was involved in a motor vehicle accident when his motorcycle struck a car that did not yield the right-of-way and turned left into Guzman's lane. In the accident, Guzman suffered catastrophic and permanent injuries including fractures to his left and right femur, fractures to his left wrist, chest contusion, multiple facial fractures, and catastrophic brain damage. Guzman is now unable to ambulate, eat, toilet, or care for himself in any manner. JPHS p. 9 ¶1. Guzman's medical care related to the injuries was paid by Medicaid. Medicaid, through AHCA, provided $356,714.94 in benefits. This $356,714.94 constituted Guzman's entire claim for past medical expenses. JPHS p. 9 ¶2. Adela Mayra Aguila was appointed Guzman's guardian and she pursued a personal injury lawsuit against the driver/owner of the car that struck Guzman's motorcycle ("Defendants") to recover all Guzman's damages. JPHS p. 9 ¶3; Pet. Ex. 8 Guzman's personal injury action was settled through a series of confidential settlements in a lump-sum unallocated amount of $7,250,000.00. Because Guzman was incapacitated, court approval of the settlement was required and the circuit court, by order of December 5, 2019, approved the settlement. JPHS p. 9 ¶4. As a condition of Guzman's eligibility for Medicaid, Guzman 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) and § 409.910(6)(b), Fla. Stat. During the pendency of Guzman's personal injury action, AHCA was notified of the action. JPHS p. 10 ¶5. AHCA did not "institute, intervene in, or join in" the personal injury action to enforce its rights as provided in section 409.910(11) or participate in any aspect of Guzman's personal injury action against the Defendants. JPHS p. 10 ¶6. Instead, AHCA asserted a $356,714.94 Medicaid lien against Guzman's cause of action and settlement of that action. JPHS p. 10 ¶5. By letter, AHCA was notified of Guzman's settlement. JPHS p. 10 ¶7. AHCA has not filed a motion to set-aside, void, or otherwise dispute Guzman's settlement. JPHS p. 10 ¶8. The Medicaid program through AHCA spent $356,714.94 on behalf of Guzman, all of which represents expenditures paid for Guzman's past medical expenses. JPHS p. 10 ¶9. Guzman's taxable costs incurred in securing the settlement totaled $281,958.20. JPHS p. 10 ¶10. Application of the formula at section 409.910(11)(f) to Guzman's $7,250,000.00 settlement requires payment to AHCA of the full $356,714.94 Medicaid lien. JPHS p. 10 ¶11. Petitioners have deposited the 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). JPHS p.10 ¶12. Evidence From the Hearing Testimony of Alejandro Garcia-Halenar, Esquire Alejandro Garcia-Halenar, Esquire ("Garcia"), has been a trial attorney for 20 years and practices with Steinger, Greene & Feiner in Fort Lauderdale, Florida. He is the head of his firm's Fort Lauderdale litigation department and handles four to six jury trials each year. Most of his cases involve traumatic catastrophic brain injury. He is familiar with reviewing medical records, life care plans, economist reports, and interviewing/deposing expert witnesses. Garcia stays abreast of jury verdicts by reviewing jury reports and discussing cases with other attorneys. Garcia is a member of a number of trial attorney associations, including the Florida Justice Association and the Broward County Justice Association. As a routine part of his law practice, he makes assessments concerning the value of damages suffered by injured clients and he explained his process for making these determinations. Garcia is familiar with, and routinely participates in, allocation of settlements in the context of health insurance liens, worker compensation liens, and Medicare set-asides, as well as, allocations of judgments made by trial judges, post-verdict. Garcia represented Guzman in his personal injury claim. Garcia reviewed the accident report, reviewed Guzman's medical records, reviewed the life care plan, reviewed the economist report, interviewed/deposed fact and expert witnesses, and met with Guzman and his family numerous times. On the day of the accident, Guzman left work around 3:00 p.m. on his motorcycle. A short distance from work, the defendant turned her Cadillac Escalade left in front of Guzman's motorcycle. Guzman laid-down his motorcycle in an attempt to avoid hitting the defendant's vehicle, but ultimately struck the side of her vehicle. There were no line of sight issues or anything blocking her view, and the defendant was cited by law enforcement for making an illegal left turn and reckless driving. Guzman was taken to the hospital where it was determined that he had multiple broken bones, internal injuries, and catastrophic brain damage. It was questionable if Guzman was going to survive and he remained in a coma for over two months and in the ICU for some time longer. Garcia felt that Guzman's injuries profoundly and negatively impacted his life. Due to the catastrophic brain damage, Guzman is unable to walk, feed himself, bathe, and requires 24-hour-a-day care. He has limited speech and only short-term memory. Guzman's mother quit her job as a home health aide to stay home and care for Guzman 24/7. Further, Guzman's fiancée moved out of her parents' home and into Guzman's parents' home to help care for Guzman. Based on his professional training and experience, Garcia testified that Guzman's total damages have a value in excess of $50 to $60 million. Garcia explained that during the litigation of the case, a life care plan and economist report was prepared calculating the present value of Guzman's past and future lost wages and future medicals. The economist report provided a low and a high valuation based on whether Guzman remained in-home or was transferred to a nursing home. The lower calculation placed a value of past lost wages at $28,208.00, future lost wages at $194,761.00, and future medicals at $15,160,055.00. The higher calculation valued past lost wages at $28,208.00, future lost wages at $240,814.00, and future medicals at $30,664,888.00. Garcia explained that taking these numbers and adding them to the $356,714.94 claim for past medical expenses, Guzman's total claim for economic damages would be between $15,739,738.00 and $31,290,624.00. Garcia opined that Guzman's life care plan and economist report were consistent with life care plans and economist reports he had seen in other cases involving catastrophic brain damage. He concluded that the calculation of Guzman's economic damages was conservative. Garcia explained that added to the estimated $15 million to $31 million in economic damages, would be Guzman's claim for noneconomic damages. This added amount was necessary to calculate the full value of Guzman's damages. Garcia testified that typically the noneconomic damages awarded by a jury alone are in excess of the value of the economic damages. Garcia explained that his law firm routinely presents cases to focus groups and mock juries to gauge the potential reaction of a jury. Garcia testified that in Guzman's case, the focus groups and mock juries consistently placed a high value on Guzman's noneconomic damages, and that each focus group assessed noneconomic damages with numbers ranging from $50 million, up to as high as $100 million. Garcia testified that the jury verdicts in Petitioners' Exhibit 12 were comparable to Guzman's case and supported his valuation of Guzman's damages. Garcia testified that Guzman's noneconomic damages could have been in this $22 to 39 million range, based on the focus groups and mock jury results for noneconomic damages. Adding the $15 to $31 million in economic damages to the noneconomic damages, Garcia testified that Guzman's damages had a total value in excess of $50 to $60 million. Garcia testified that it is a routine part of his practice to round-table cases with other attorneys. His discussions regarding Guzman's case with attorneys in his firm, as well as with the law firm handling the potential insurance bad faith claim, resulted in a consensus that Guzman's total damages had a value in excess of $50 to $60 million. Garcia recapped his total damage valuation and concluded that it would be extremely conservative to value all of Guzman's damages at $30 million. Garcia testified that after his evaluation and investigation of the case, a personal injury lawsuit was filed against the owner and driver of the vehicle. He explained that prior to filing the suit, a demand was made for the defendant/owner's $30,000.00 insurance policy limits in settlement of the personal injury claim because there was no other insurance available. The insurance company did not appropriately tender the $30,000.00 in a timely manner. In Garcia's professional opinion, this gave rise to a potential claim for bad faith against the driver's insurance company, making it potentially liable for all personal injury damages suffered by Guzman. Garcia summarized the procedures related to a bad faith claim brought against an insurance company. He explained that in such circumstances the initial lawsuit for personal injuries is brought against the underlying at-fault party, in this case, the driver. If and when a judgment is entered against the at-fault party, a separate bad faith lawsuit is ripe and may be brought against the insurance company to recover on the judgment. In Garcia's opinion, a bad faith claim against an insurance company and related litigation, can be a lengthy process and is extremely complicated with mixed results. In this case, the initial lawsuit was brought against the owner and driver of the vehicle. The insurance company was notified of the lawsuit against the driver and was aware of its potential bad faith liability if a judgment was entered against the Defendants.1 After five years of litigation, the personal injury case settled on the eve of trial for $7,250,000.00. Garcia testified that the settlement was based, in part, on the risk of proceeding forward with a future complicated bad faith lawsuit and the extensive time involved in such a proceeding.2 Garcia testified that the $7,250,000.00 settlement did not fully compensate Guzman for the total or full value of his damages arising from the accident. He opined that based on a conservative value of total damages of $30 million, Guzman recovered only 24.16% of the total value of his damages in the settlement. He further explained that because Guzman recovered only 24.16% of his total damages, he recovered only 24.16% of his $356,714.94 claim for past medical expenses in the settlement, or $86,182.33. Garcia concluded, without objection, that it would be reasonable and fair to allocate $86,182.33 of the settlement to past medical expenses. Garcia also testified that because the allocation to past medical expenses was based on a conservative value of all damages at $30 million, the allocation of $86,182.33 of the settlement to past medical expenses was conservative as well. 1 Guzman had attorneys working on his personal injury case who specialized in bad faith litigation. The insurance company participated in the litigation of the personal injury lawsuit. 2 Regardless of what considerations drove the settlement amount, the evidence showed that Petitioners' experts still valued Guzman’s total damages at $30 million. Testimony of R. Vinson Barrett, Esquire Barrett has been a trial attorney for over 40 years and is a partner with the law firm of Barrett, Nonni and Homola, P.A., in Tallahassee, Florida. His practice is dedicated to plaintiff's personal injury and wrongful death cases. He has handled cases involving catastrophic brain injury and routinely handles jury trials. Barrett is familiar with reviewing medical records, life care plans, and economist reports. Barrett stays abreast of jury verdicts by 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 regular part of his practice, Barrett makes assessments concerning the value of damages suffered by injured parties. He explained his process for making these assessments. Barrett testified that he is familiar with settlement allocation in the context of health insurance liens, Medicare set-asides, and workers' compensation liens. He is familiar with the process of allocating settlements in the context of Medicaid liens and described that process. Barrett has been accepted as an expert in the valuation of damages in federal court as well as numerous Medicaid lien hearings at DOAH. Barrett reviewed the exhibits filed in this proceeding, the JPHS, and listened to Garcia's testimony. He was familiar with Guzman's injuries. Barrett detailed the extensive nature of Guzman's injuries and the impact Guzman's injuries had on his life. Barrett commented that Guzman had suffered as catastrophic an injury as you can possibly suffer, and he could not imagine how an individual could be hurt much worse. In Guzman's case, the injuries were made worse by the fact that Guzman was not just in a coma or "completely out of it." Guzman had enough mental capacity remaining to realize that his life, as he would have hoped for it, was over. Based on his professional training and experience, Barrett believed Guzman's total damages had a conservative value between $30 and $50 million. Barrett outlined that the economist report placed the present value of Guzman's economic damages at between $15 and $31 million. Barrett testified that this present valuation of the economic damages was very similar to valuations he had seen in other economic reports involving catastrophic brain damage, and he believed the valuations were reasonable. He believed that in addition to the $15 to $31 million in economic damages, he would add Guzman's claim for noneconomic damages. According to Barrett, Guzman's claim for noneconomic damages would have a significantly high value. He felt that it would be extremely unlikely for a jury to award less than $15 million to Guzman for his noneconomic damages. Barrett noted that the jury verdicts included in Petitioners' Exhibit 12 were comparable to Guzman's case--noting that the average award for pain and suffering in those verdicts was $24.7 million. The $24.7 million value of noneconomic damages was in-line with his opinion that Guzman's noneconomic damages alone would be in the same range as Guzman's economic damages--$15 to $31 million. Barrett testified that, in light of the fact that he believed Guzman's damages would have a total combined value of between $30 and 50 million, a total value of $30 million was extremely conservative. Barrett was aware that the case settled for $7,250,000.00. He concluded that this settlement amount did not fully compensate Guzman for all the damages he had suffered. Using a value of total damages of $30 million, the $7,250,000.00 settlement represented a recovery of 24.16% of the value of the damages. Because only 24.16% of the total damages were recovered by Guzman, only 24.16% of the $356,714.94 claim for past medical expenses was recovered in the settlement, or $86,182.33.3 Barrett concluded that it was reasonable and conservative to allocate $86,182.33 of the settlement to past medical expenses. AHCA did not call any witnesses, present any evidence regarding a different value of the damages or utilize experts to propose a different way or method to value the total damages suffered by Guzman. Nor did AHCA persuasively contest the experts' valuation of Petitioners' total damages or the methodology used to calculate the $86,182.33 allocation to past medical expenses. As a result, Petitioners' testimony and evidence presented regarding his total damages was essentially unrebutted and uncontradicted. To recap the evidence, Petitioners presented the unrebutted expert testimony of two trial lawyers who made projections as to the amount of total damages suffered by Guzman. This evidence, in turn, adequately proved what portion of Guzman's undifferentiated settlement was "fairly allocable to past medical expenses." More specifically, and in "doing the math" under the proportionality methodology--the $7,250,000.00 settlement represents a 24.16% recovery of all damages. ($7,250,000.0 is 24.16% of $30 million). Applying the same ratio of 24.16% to the $356,714.94 in past medical expenses paid by AHCA, the undersigned finds that $86,182.33 in the settlement agreement is "fairly allocable" to past medical expenses.
The Issue The issue in this case is whether Petitioner, who was hurt while working for Respondent as a law enforcement officer, suffered a catastrophic injury on or after January 1, 1995, making her eligible for lifetime health insurance benefits pursuant to Section 112.19(2)(h)1., Florida Statutes.
Findings Of Fact From 1982 through January 1999, Petitioner Sheila Kiess (“Kiess”) was employed by Respondent Florida International University (“FIU”) as a law enforcement officer. On September 16, 1994, Kiess was injured at work in the course of subduing a violent young man who managed, in the struggle, to kick her right arm, causing severe pain. (This event will be referred to hereafter as the “First Accident.”) Kiess immediately reported to a clinic for medical attention, following which she returned to duty and completed her shift. Through workers’ compensation, Kiess received regular, ongoing medical treatment for her injured right arm, which continued to hurt and became even more painful as time passed. She continued to work as well but was not able to use her right arm. On December 17, 1994, Kiess’s doctor deemed her “unable to work,” at which point she stopped working. Kiess’s treating physician released her to return to modified duty on January 4, 1995. Accordingly, on or about that date, despite being still without the beneficial use of her right arm, Kiess resumed her duties as Shift Supervisor on the 4:00 p.m. to midnight shift. On January 24, 1995, while on duty, Kiess was called upon to help restrain an unruly person. Her previously injured right arm was twisted while wrestling with the combatant, causing great pain. (This event will be referred to hereafter as the “Second Accident.”) After the Second Accident, Kiess received medical treatment, again through workers’ compensation, at the same clinic where she had been seen regularly for the preceding four months as a result of the First Accident. She continued to work, with limitations on the use of her right arm. Some months later, Kiess came under the care of an orthopedic surgeon named Dr. Charles Virgin, who first saw her on June 12, 1995. Dr. Virgin determined that Kiess had sustained damage to the tendons around her right elbow. On April 23, 1996, Dr. Virgin operated on Kiess’s elbow, surgically removing damaged tissue and repairing the extensor tendon. At some point thereafter, Kiess returned to work. As Kiess healed from the surgery, the “old pain” associated with the preoperative trauma to her right arm gradually began to subside. In August 1996, however, Kiess began to experience “new pain” that was the result of a condition diagnosed as Reflex Sympathetic Dystrophy (“RSD”).1 The RSD most likely was caused by the preoperative trauma, or by the surgery, or by some combination thereof. About one year later, Dr. Virgin determined that, as of August 14, 1997, Kiess had reached maximum medical improvement (“MMI”).2 For workers’ compensation purposes, Dr. Virgin assigned Kiess a permanent impairment rating of six percent of the body as a whole. Despite having achieved MMI, Kiess suffered——and as of the date of the final hearing continued to suffer——constant, crippling pain, muscle spasms, swelling, and other symptoms caused by RSD. On July 27, 1998, Dr. Virgin wrote that Kiess was “temporarily totally disabled and . . . unable to work as a result of her employment injury.” After that, Kiess did not regularly, if ever, resume her duties at FIU. Effective January 21, 1999, FIU terminated Kiess from her employment as a police officer because her physical limitations could not be reasonably accommodated. FIU’s workers’ compensation carrier accepted Kiess as permanently and totally disabled, effective November 26, 2001. Ultimate Factual Determinations The parties have stipulated and agreed, and consequently the undersigned determines as an ultimate fact, that Kiess has suffered a “catastrophic injury” as that term is defined in Section 440.02, Florida Statutes. There is likewise no dispute that both the First Accident and the Second Accident occurred in the line of duty; that each did so is, therefore, accepted and found as a matter of ultimate fact. Further, it is undisputed, and hereby found, that the injuries Kiess suffered as a consequence of the referenced accidents occurred as a result of her responses to situations involving either an emergency or an unlawful act perpetrated by another. Finally, for reasons more fully explained below, it is determined that Kiess, on or after January 1, 1995, suffered a “catastrophic injury” in the line of duty.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent FIU enter a final order accepting Petitioner Kiess’s claim for health insurance benefits pursuant to Section 112.19(2)(h)1., Florida Statutes. DONE AND ENTERED this 17th day of November, 2003, in Tallahassee, Leon County, Florida. S JOHN G. VAN LANINGHAM Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 17th day of November, 2003.
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.
