The Issue The issue in this proceeding is how much of Petitioner’s settlement proceeds should be paid to Respondent, Agency for Health Care Administration (“AHCA”), to satisfy AHCA's Medicaid lien under section 409.910, Florida Statutes.
Findings Of Fact Based on the evidence adduced at hearing, and the record as a whole, the following Findings of Fact are made: Breana Collins was born on January 31, 1985, with a severe chromosomal growth deficiency known as 3P2 Trisomy. She was unable to speak or care for herself and could walk only with assistance. Breana lived at home with her parents, Clifford and Gwen Collins, until she was 17 years old, at which time she was placed in Howell Branch Court, a group home located in Winter Park near the family’s home. On July 11, 2017, Breana underwent an esophagogastroduodenoscopy, or “EGD” procedure. On July 11, 2017, while undergoing the EGD procedure, Breana Collins was noted to be unarousable and unresponsive. Breana was transported by emergency medical services to Florida Hospital Altamonte. She was experiencing severe distress and was unresponsive. She was diagnosed with acute respiratory failure. On August 24, 2017, Breana died. Her cause of death was noted as acute cardiorespiratory arrest. Petitioner, Clifford Collins, brought the following claims: a medical malpractice tort claim; a claim for abuse, neglect, and exploitation under section 415.1111, Florida Statutes, commonly called the “Vulnerable Adult” statute; and a claim under section 393.13, Florida Statutes, the “Bill of Rights of Persons with Developmental Disabilities.” The claims were brought against several healthcare providers, seeking wrongful death damages for Breana Collins’s parents for non-economic mental pain and suffering for the loss of their daughter, and survival damages for Breana’s loss, injury, and damage, including, but not limited to, acute hypoxic respiratory failure, right lower lobe pneumonia, aspiration pneumonia, urinary tract infection, sepsis with shock, and leukocytosis. In 2020, Petitioner, Clifford Collins, settled the tort action for a limited confidential amount due to significant liability and causation challenges with the claims. AHCA was properly notified of the Collins’s lawsuit against the defendants and provided notice that it had paid benefits related to the injuries from the incident in the amount of $44,836.83. AHCA paid benefits in the amount of $44,836.83 for the care of Breana related to the injuries allegedly caused by third parties. The parties stipulated that the application of the formula provided by section 409.910(11)(f), to the confidential settlement amount, would require payment to AHCA in the amount of $44,836.83 from the settlement proceeds. J. Scott Murphy is an attorney, who is Florida Board Certified in Civil Trial Law. Mr. Murphy is also certified by the American Board of Professional Liability Attorneys and the National Board of Trial Advocates, and is a member of the American Board of Trial Advocates. Mr. Murphy specializes in wrongful death and catastrophic injury cases, primarily in medical malpractice. He has over 35 years’ experience in this area of practice. As part of his ongoing practice, Mr. Murphy routinely evaluates the damages suffered by injured persons, including wrongful death medical malpractice cases involving adult children as defined by section 768.18(2), Florida Statutes, i.e., persons over the age of 25. In formulating his opinions, Mr. Murphy reviewed the deposition of Mr. Collins, as well as the amended complaint and the motions to dismiss filed by the defendants in the underlying case. Mr. Murphy also reviewed the pre-suit expert affidavits and jury verdict reports related to damage awards and settlements involving the death of an adult child. Mr. Murphy testified that in medical malpractice cases brought under section 768.21, emotional loss, pain, and suffering for the parents’ loss of an adult child is specifically disallowed. Mr. Murphy testified as to the substantial legal obstacles to pursuing the underlying personal injury/medical malpractice claim brought by Clifford and Gwen Collins for the death of Breana. Mr. Murphy stated that it would be extremely difficult to prove the causation element because no autopsy was performed to establish definitively Breana’s cause of death. Mr. Murphy opined that Breana’s survival claim for her pain and suffering over the month and a half between the EGD procedure and her death would be de minimus because of her congenital disability. Mr. Murphy further testified as to the extreme difficulties in pursuing the two statutory claims under sections 415.1111 and 393.13. He testified that similar claims under section 415.1111 have been specifically rejected by the First and Third District Courts of Appeal, both of which concluded that the medical malpractice statutes provide an exclusive remedy that cannot be circumvented by resorting to the Vulnerable Adult statute. Mr. Murphy testified that, while the appellate courts have yet to address the question of whether a claim under section 393.13 could be used to avoid the limitations of the medical malpractice statute, he would expect the result to be the same as that reached by the courts on section 415.1111. Mr. Murphy testified that his review of the motions to dismiss filed by the defendants in the underlying action led him to conclude that the odds of success were very low on the claims under section 415.1111 and 393.13. Mr. Murphy testified that Breana’s EGD procedure was performed by a gastroenterologist and monitored by a certified registered nurse anesthetist, both of whom met the statutory definition of “health care providers.” Because the claims would likely have been construed as “medical malpractice claims,” Clifford and Gwen Collins would have been limited to the recovery of medical expenses incurred as a result of the negligence of the defendants, plus Breana’s funeral expenses. The significant damages associated with the parents’ pain and suffering and emotional loss would have likely been barred by the limitations imposed under section 768.21. Mr. Murphy’s unrefuted testimony was that the total value of the parents’ claims would be at least $1 million by a very conservative estimate. The Collins family was very close knit and the parents remained intimately involved in Breana’s life for as long as she lived. Based on the Collins’s depositions and family photographs that were admitted into evidence, Mr. Murphy found it “glaringly apparent” that the loss of their daughter was devastating to Clifford and Gwen Collins. Mr. Collins’s testimony at the hearing confirmed Mr. Murphy’s opinion. Mr. Collins testified that his health has suffered, and he has lost substantial weight since Breana’s death. Mr. Collins appeared reticent to discuss his feelings, but he did state, “It’s the worst thing that can happen to a parent. I mean, we knew her limitations, but she was – you know, she was a joy in our lives and it’s emotional.” In her deposition testimony, Gwen Collins stated, “I know I can’t ask you questions, but if you were a parent and you truly are involved and love your child, you’re impacted daily by that loss and you never get over it.” Ms. Collins testified that she now has high blood pressure that she did not have before Breana’s death. She is now pre-diabetic, which she also attributes to the stress of losing a child. Mr. Murphy testified that the amount of the settlement in this case was $190,000, or 19 percent of the conservative valuation of $1,000,000.00. Using a pro rata methodology, Mr. Murphy concluded that the appropriate share of Breana’s past medical expenses to be applied to satisfy AHCA’s medical lien should be 19 percent of the $44,836.83 total, or $8,518.99. Mr. Murphy’s testimony was uncontradicted and persuasive on this point. Petitioner’s counsel, Alan J. Landerman, testified as an expert in the evaluation of damages for medical malpractice and wrongful death cases, without objection from AHCA. Mr. Landerman is an AV-rated civil trial attorney with over 35 years of experience, primarily as counsel in catastrophic injury cases, medical malpractice, and product liability cases. Mr. Landerman has tried multiple medical malpractice cases and product liability cases, and has achieved multiple verdicts in excess of $1 million in those cases. A routine part of Mr. Landerman’s practice is to make assessments concerning the value of damages, including damages in wrongful death cases under section 768.21. Mr. Landerman concurred with Mr. Murphy’s testimony regarding the strict monetary limitations associated with pursuing medical malpractice wrongful death cases on behalf of parents for the death of an adult child. Mr. Landerman testified that he keeps abreast of settlement and damage awards through the Florida Jury Verdict Reporters, and as a member of many plaintiff attorneys’ organizations, including the American Justice Association and Central Florida Trial Lawyers. Mr. Landerman was the primary trial attorney for Clifford and Gwen Collins in the underlying civil lawsuit. Mr. Landerman testified that after the defendants filed motions to dismiss, he initiated settlement discussions with defense counsel. Mr. Landerman testified that he accepted a compromise settlement on behalf of his clients, in light of the substantial factual and legal impediments previously described by Mr. Murphy. Mr. Landerman testified that in evaluating the underlying wrongful death action, he elected to plead “novel theories” under sections 415.1111 and 393.13 in order to evade the limitations imposed by the wrongful death statute on medical malpractice cases. Mr. Landerman testified that, unfortunately, the recent case styled Specialty Hospital-Gainesville, Inc. v. Barth, 277 So. 3d 201 (Fla. 1st DCA 2019), held that the wrongful death statute is the exclusive remedy for medical malpractice, and that chapter 415 cannot serve as a vehicle for a medical malpractice claim. As to the claim under section 393.13, Mr. Landerman testified that this was a case of first impression. While he concurred with Mr. Murphy that the result would likely be the same as that in Specialty Hospital, Mr. Landerman also believed that uncertainty about the outcome in a jury trial was a driving factor in the defendants’ willingness to settle the case. Mr. Landerman agreed with Mr. Murphy that a very conservative total value for the case was $1 million. Mr. Landerman testified that he conducted jury verdict research that revealed the case of the death of a 30-year-old, in a non-medical malpractice setting, in which the parents were awarded in excess of $10 million in non-economic damages. Mr. Landerman further agreed with Mr. Murphy that if one accepts the $1 million figure as the full value of the claim, then the settlement amount equaled 19 percent of the value of the parents’ damages. Applying a pro rata analysis, Mr. Landerman testified that 19 percent of $44,836.83 yields $8,518.99, which is the amount that should be allocated to the past medical expenses claim of AHCA. AHCA did not offer any witnesses or documentary evidence to question the credentials or opinions of either Mr. Murphy or Mr. Landerman. AHCA did not offer testimony or documentary evidence to rebut the testimony of Mr. Murphy and Mr. Landerman as to valuation or the pro rata reduction ratio. AHCA did not offer alternative opinions on the damage valuation or allocation method suggested by either Mr. Murphy or Mr. Landerman, both of whom testified knowledgably and credibly as experienced practitioners. The testimony of Petitioner's two experts regarding the total value of damages was credible, unimpeached, and unrebutted. Petitioner proved that the settlement of $190,000 does not begin to fully compensate Clifford and Gwen Collins for the full value of their damages. Petitioner’s recovery represents only 19 percent of a conservative valuation of the Collins’s claims. AHCA argues with some force that this case is distinguishable from other Medicaid reimbursement cases in that here the question of the value of the Collins’s damages versus the settlement amount is not merely a matter of the uncertainty of pressing forward with the underlying litigation. The parents in this case faced a statutory barrier to recovering non-economic damages for the wrongful death of their adult daughter, which leads AHCA to argue that the $1 million valuation of their damages is unrealistically high and that this case is not suitable for application of the pro rata reduction methodology. ACHA’s argument is undercut by the settlement itself, which was more than a nominal amount even if only a fraction of the total damages estimated by Petitioner’s experts. The fact that the defendants were willing to pay over $190,000 to settle the lawsuit indicates a degree of uncertainty as to the outcome of the claim brought under section 393.13 that is sufficient to bring this case comfortably within the ambit of the pro rata reduction analysis. The undersigned finds that Petitioner has proven by a preponderance of the evidence that 19 percent (the ratio that $190,000 bears to $1 million) is the appropriate pro rata share of Breana Collins’s medical expenses to be applied to determine the amount recoverable by AHCA in satisfaction of its Medicaid lien. ACHA’s lien for past medical expenses is $44,836.83. Applying the 19 percent pro rata ratio to this total yields $8,518.99, which is the portion of the settlement representing reimbursement for past medical expenses and the amount recoverable by AHCA for its lien.
The Issue The issue is whether Petitioner’s request for hearing should be dismissed as untimely.
Findings Of Fact In a letter dated January 29, 2009,1/ DSGI informed Petitioner that his Level II appeal was denied. The appeal concerned Blue Cross and Blue Shield of Florida’s denial of coverage for a Magnetic Resonance Imaging Spectography procedure that Petitioner underwent in July 2008. The letter informed Petitioner of his right to request an administrative hearing on the denial of his appeal, and also informed Petitioner that the request must filed with DSGI within 21 days of his receipt of the letter. Copies of Florida Administrative Code Rules 28-106.201 and 28-106.301 were attached to the letter, as was an “informational page” that stated in pertinent part: Your request (petition) for a formal hearing must be in writing. We recommend you send your request by certified mail so you will have proof of the date the Department of Management Services (DMS) receives it. You lose your right to a hearing if we do not receive your request on time. (Bold in original and underlining added). * * * If you dispute the facts we used in our decision, state them in your written request for a hearing. Your request must meet the requirements of rule 28-106.201, Florida Administrative Code. Petitioner received the letter denying his appeal on February 9, 2009. The 21-day period for requesting a hearing on that decision expired on March 2, 2009. Petitioner requested a hearing on the denial of his appeal through a letter dated March 1, 2009. The letter stated in pertinent part: I am writing in protest of the decision rendered against a health insurance claim I submitted in July of 2008 by DSGI. I believe that the decision to DENY my health insurance is improper, the reasons for which actually encourage further health risks by limiting my health care options to only procedures that are inherently dangerous by promoting the spread of cancer. I am writing to request a formal hearing.... Petitioner mailed this letter to DSGI. The postmark date on the envelope in which the letter was mailed was March 5, 2009, which is after the applicable filing deadline. Petitioner’s request for hearing was received by DSGI on March 9, 2009 (seven days after the deadline), and was filed with the Clerk of the Department of Management Services on March 10, 2009 (eight days after the deadline). Petitioner’s request for hearing was untimely because it was filed more than 21 days after he received the letter denying his Level II appeal. The Order to Show Cause issued on April 23, 2009, gave Petitioner an opportunity to explain why his untimely petition should not be dismissed. The letter filed by Petitioner in response to the Order to Show Cause stated in pertinent part: I apologize for missing the 21 day deadline to file a request for hearing. I do not waive my rights. I cannot afford legal representation in this matter. I received the letter dated January 29 from the Department of Management Services [and] I was led to believe that a full and complete response -- one that was equal to the five-page letter I received -- was necessary. Because of the amount of information I felt that I was required to assemble, and demands on my life circumstances I [was] unable to file in a timely manner. The response to the Order to Show Cause also articulates what Petitioner believes to be the merit of his case,2/ which he argues “outweighs dismissal because of procedural technicalities.”
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that DSGI issue a final order dismissing Petitioner’s request for hearing. DONE AND ENTERED this 5th day of May, 2009, in Tallahassee, Leon County, Florida. S T. KENT WETHERELL, II Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 5th day of May, 2009.
Findings Of Fact Based upon the stipulation of the parties, the following facts are found: Houda Charfi and Omar Elmouki (Petitioners) are the parents and legal guardians of Mundir Elmouki (Mundir), and are the “Claimants” as defined by section 766.302(3). Mundir incurred a “birth-related neurological injury” as that term is defined in section 766.302(2), on or about May 11, 2018, which was the sole and proximate cause of Mundir’s injury. At birth, Mundir weighed 3,390 grams. Luis Sanchez-Ramos, M.D., rendered obstetrical services in Mundir’s delivery, and, at all material times, was a “participating physician” as defined in section 766.3012(7). UF Health Jacksonville is a hospital located in Jacksonville, Florida, is the hospital where Mundir was born, and is the “hospital” as that term is defined in section 766.302(6). Mundir died on May 11, 2018. Petitioners filed a petition pursuant to section 766.305, seeking compensation from NICA, and that Petition is incorporated by reference in its entirety, including all attachments. Any reference made within this document to NICA encompasses, where appropriate, the Florida Birth-Related Neurological Injury Compensation Plan (the Plan).
Findings Of Fact Bella B. Diaz was born on July 31, 2013, at Baptist Hospital located in Miami, Florida. Donald Willis, M.D. (Dr. Willis), was requested by NICA to review the medical records for Bella. In a report dated November 2, 2016, Dr. Willis described his findings in pertinent part as follows: Cesarean section was done for post-dates with unfavorable cervix and decreased FHR variability. Birth weight was 3,385 grams. Amniotic fluid was clear. The newborn was not depressed. Apgar scores were 9/9. Pediatric evaluation at delivery stated the “baby came out vigorously crying.” No resuscitation was required. The baby was taken to the normal nursery. The initial meconium drug screen was positive for cannabinoids, but repeat testing the following day was negative. Chest X-ray suggested an enlarged heart, but ECHO was essentially normal. The baby was transferred to the NICU about 3 hours after birth due to clinically evident Jaundice. Neurologic exam was normal. The baby did not have any respiratory distress. ABO blood type incompatibility was diagnosed as the cause of Jaundice and managed with phototherapy. The baby was noted to have poor feeding and neurologic evaluation initiated. EEG was done on the day after birth and was abnormal, consistent with diffuse encephalopathy. The abnormal EEG findings were felt to be only due to immaturity and expected to improve. Follow-up EEG at 1 month of age was normal, but EEG at 16 months of age was again abnormal with findings suggestive of global cortical dysfunction. MRI at one month of age was normal. Follow up MRI at 6 months of age was essentially normal with “delayed myelination for the age of the patient.” No structural defects were seen. An extensive Genetic evaluation was negative. Chromosome analysis showed a pericentric inversion of chromosome #9, which is considered a normal variation. Microarray was negative. Evaluation at 19 months of age described a child that was unable to walk or stand unassisted and with global developmental delay. No obvious cause was identified. In summary, labor was induced for post-dates. There was no change in the cervix after overnight cervidil induction. Primary Cesarean section delivery was done the following morning. The newborn was not depressed. Apgar scores were 9/9. The baby was “active and responsive” at birth. No resuscitation was required. The baby was taken to the normal newborn nursery. Shortly after delivery the baby was transferred to the NICU for clinically apparent Jaundice. Poor feeding lead to further evaluation, including MRI, which was normal. Genetic evaluation was negative. There was no apparent obstetrical event that resulted in loss of oxygen or mechanical trauma to the baby’s brain during labor, delivery or the immediate post delivery period. Dr. Willis reaffirmed his opinion in an affidavit dated December 12, 2016. A review of the file reveals that no contrary evidence was presented to dispute Dr. Willis’ finding that there was no apparent obstetric event that resulted in oxygen deprivation or mechanical trauma during labor, delivery, or the immediate post- delivery period. Dr. Willis’ opinion is credited.
Findings Of Fact Madison Carlene Benner was born on May 2, 2008, at Mease Countryside Hospital in Safety Harbor, Florida. On November 21, 2008, a complaint for medical malpractice was filed by Diana Lynn Benner, individually, and as parent and natural guardian of Madison Benner, a minor. The complaint alleged that Tampa Bay Women’s Healthcare Alliance, LLP, d/b/a Tampa Bay Women’s Care (Defendant), acting by and through an agent or employee, delivered Madison. The complaint further alleged that Defendant’s agent or employee applied excessive lateral traction “to the fetal head during the dystocia causing and/or substantially contributing to the brachial plexus injury and/or aggravating a pre-existing condition.” Subsequent to the filing of the medical malpractice action a Guardian Ad Litem was appointed. Shortly thereafter, a settlement agreement was entered into between Diana Benner, individually, and as parent and natural guardian of Madison Benner, a minor, and Anjana D. Patel, M.D.; Tampa Bay Women’s Healthcare Alliance, LLP, d/b/a Tampa Bay Women’s Care; Tampa Bay Women’s Healthcare Alliance, LLP, d/b/a Women’s Care Florida; and First Professionals Insurance Company, Inc. The Settlement Agreement and Release states as recitals the following: Recitals Diana Benner was a patient of Defendants. Madison Benner, the minor, was injured by Defendants during her delivery on May 2, 2008 in Pinellas County, Florida. Claimants allege that the minor’s physical and personal injuries arose out of certain alleged negligent acts or omissions by Defendants and have made a claim seeking monetary damages on account of those injuries. The Release extends to all damages which could have been alleged in the Notice of Intent to Initiate Litigation against the Defendants. The Release does not extend to any other person or entity not identified herein. FPIC is the Defendants’ liability insurer and, as such, would be obligated to pay any claim made or judgment obtained against Defendants which is covered by its policy with Defendants. The parties desire to enter into this Settlement Agreement in order to provide for certain payments in full settlement and discharge of all claims which have, or might be made, by reason of the incident described in Recital A above, upon the terms and conditions set forth below. In exchange for the complete release and forever discharge given to the Defendants and insurer, Diana Benner, individually, and as parent and natural guardian of Madison, received $250,000, $80,000 of which was annuitized. The settlement further states: Release and Discharge In consideration of the payments set forth in Section 2 Claimants hereby completely release, and forever discharge, Defendants and Insurer from any and all past, present or future claims, demands, obligations, actions, causes of action, wrongful death claims, rights, damages, costs, losses of services, expenses and compensation of any nature whatsoever, whether based on a tort, contract, or other theory of recovery, which the Claimants may have, or which may hereafter accrue or otherwise be acquired, on account of, or may in any way grow out of, the incident described in Recital A above, including, without limitation, any and all known or unknown claims for bodily or personal injuries to Claimants or any future wrongful death claim to Claimants’ representatives or heirs, which have resulted or may result from the alleged acts or omissions of the Defendants. On February 12, 2009, Ms. Benner filed a Motion to Approve Settlement. A two-page letter from the Guardian Ad Litem in support of the settlement was also filed. On March 6, 2009, a hearing was held before Circuit Judge Amy Williams, who approved the settlement. Any claims of Madison’s father were extinguished by the settlement. The Guardian Ad Litem was relieved of further responsibilities. The medical malpractice action was voluntarily dismissed on March 16, 2009. At the time of Madison’s birth, Dr. Patel, who was one of the parties settling with Ms. Benner, was a “participating physician” as that term is defined by section 766.302(7). There is no dispute that Dr. Patel delivered Madison, was named in the Petition as the physician providing obstetric services, and was present at the birth of Madison.
The Issue The issues to be decided concern the question of the entitlement of the Petitioner to receive retirement benefits envisioned by Section 121.091(7)(c)1., Florida Statutes, related to the alleged in-line-of-duty death of her husband, Eddie Lee Robinson, Jr.
Findings Of Fact From January 7, 1969, until his death on April 12, 1984, Eddie Lee Robinson, Jr., served as a deputy sheriff in Gadsden County, Florida. In May 1971 the deceased was made a shift commander with that department and those were his duties from that period until the end. He held the rank of Captain at the time of his death. In his capacity as a shift supervisor, Eddie Lee Robinson, Jr., was in charge of the overall sheriff's office for part of the day. In essence, Robinson was the senior officer in charge while actively serving as a shift commander. The shift which Robinson worked would vary over time. The normal work week for Robinson at the time of his death was 46 to 50 hours. During his employment with the Gadsden County sheriff's office, Captain Robinson had been enrolled in the Florida Retirement System. Robinson had married Petitioner Margie Robinson, formerly Margie Rittman Mashhurn, on August 18, 1980, and was married to the Petitioner at the time of his death. In early October 1983 Eddie Lee Robinson, Jr., experienced an onset of severe chest pain syndrome. At that time he was seen by Dr. Earl Britt, a licensed physician in the state of Florida, who is board eligible in cardiology. In the patient history given to Dr. Britt at the time, Robinson indicated that he had a cardio-respiratory complaint as early as 1975 and was seen in an emergency room for that condition. The chest pain that he suffered on that occasion persisted off and on from that date forward and became more pronounced in the several weeks prior to the October 1983 visit with Dr. Britt. At that point in time Robinson complained of shortness of breath, even with limited physical activity. In 1976 Robinson had been diagnosed as suffering with diabetes and was taking medication for that condition. In October 1983 Robinson was overweight and suffered from hypertension. When seen by Dr. Britt on this occasion, Robinson was a smoker who had used a pack of cigarettes a day for approximately 35 years. At the time of his visit in October 1983 Robinson indicated that he had experienced what Dr. Britt describes as postcoital chest discomfort, some emotionally provoked chest pain and postprandial chest pain. Upon the recommendation of Dr. Britt, Robinson submitted himself to a coronary arteriogram which was done on October 4, 1983. This catherization process was performed by Dr. Charles C. Bianco, a licensed Florida physician who specializes in diagnostic radiology and, in particular, cardiovascular radiology. Dr. Bianco is a board certified radiologist. The results of the coronary arteriogram which Dr. Bianco performed revealed blockages ranging from 95% to 100% in the coronary arteries of three vessels. Given these facts, Dr. Britt recommended that Captain Robinson submit himself to by- pass surgery to correct these conditions. Captain Robinson declined this treatment, opting instead to be treated with medication provided by Dr. Britt. Following the October 1983 episode, Captain Robinson returned to his duties with the Gadsden County Sheriff's Office. His employer was aware of Robinson's heart condition when he returned to work. At the time of his death and those days before his death, Captain Robinson was on regular duty for the sheriff's office as a shift commander. The sheriff's office had made provision for him to take an hour off at the end of his shift to exercise by walking on those days when his shift ended around 6:00 p.m. This arrangement was not carried out if his duties demanded that he remain at his post throughout the entire shift sequence. In the late evening of April 10, 1984, Captain Robinson was summoned to the Gadsden County jail to assist the chief jailer, Lieutenant Cecil Morris. In particular, Lieutenant Morris was experiencing problems with an inmate, Morris Brown, who was incarcerated for attempted armed robbery and some form of aggravated battery or assault. Brown was a juvenile who had been adjudicated under the criminal law system pertaining to adults. He was some 6'1" and 200 pounds. Brown was a problem inmate who had destroyed lockers within the jail. On the night in question when Captain Robinson was summoned to the jail around 8:00 or 9:00 p.m., Brown had flooded his jail cell. Robinson and Morris entered the jail cell and Robinson talked to Brown to try to calm the inmate down. In doing so, Robinson shook a can of mace and told Brown that if Brown did not calm down, Robinson would have to mace him. Brown responded by indicating that he wished that Robinson would do that so that he could sue him. Brown also told Robinson, "If I get out, I know where you live." Eventually, Brown became less belligerent. Robinson then explained to Brown that they were going to have to put handcuffs on him, to which Brown replied that nobody was going to cuff him. Robinson and Morris then took the prisoner by the arms and moved him toward a bed or bunk within the cell. While this was transpiring, the prisoner pulled away from Morris, causing Morris to have to grab his arm again. Subsequently, Brown was moved back toward the bunk and pulled down to the bunk's surface. While Brown was seated on the bunk, a third officer put cuffs on him, and Brown struggled while this was being achieved. Throughout this episode Brown's basic demeanor evidenced antagonism. The situation with Morris Brown lasted for a period of five to fifteen minutes. Captain Robinson's reputation in his law enforcement work was that of an officer who was able to diffuse difficult situations with persons he encountered in his law enforcement work by talking to them as opposed to physical confrontation. Nonetheless, there were occasions where Robinson was called upon to physically subdue prisoners. In the experience of Lieutenant Morris, the previously described circumstance was the only occasion in which Robinson had been observed to interact physically with a prisoner. The extent of that physical confrontation did not include exchange of punches between the participants. When Captain Robinson returned home following the incident with Brown, he discussed that situation with his wife. The discussion was held on that same evening or the early hours of the following morning. His remarks and physical appearance pointed out how disturbed he was about the Brown incident. He seemed despondent. In the course of the conversation, Robinson took nitroglycerin because of his physical condition. He had not taken nitroglycerin for an identifiable period prior to that evening. (Nitroglycerin had been prescribed by Dr. Britt for Captain Robinson's heart condition.) Robinson remarked to his wife that he was "hurting." He told her that the prisoner Brown had flooded the jail cell and he had to go in and help restrain the prisoner. This was only the third incident, to the knowledge of his wife, in which Robinson had physically struggled with someone while performing his duties. On the following day, Captain Robinson went off duty. He visited with his mother, Lena Robinson, on a couple of occasions during that day and talked to two of his acquaintances, Luke McCray and King Baker. While in the presence of his mother and the other two individuals, there was no indication of pain on the part of Captain Robinson, nor did he use any medication. In their presence he did not appear troubled. In the late night of April 11 or early morning of April 12, 1984, while at home, Captain Robinson complained to his wife that he could not breathe. He took two nitroglycerin, began to have cold sweats and expired, having suffered a fatal heart attack described as an acute myocardial infarction, sudden death syndrome. At the time of his death, Eddie Lee Robinson, Jr., was 50 years old. Dr. Britt is qualified to give expert medical opinion testimony on the question of the cause of death of Eddie Lee Robinson, Jr. Those qualifications are based upon Dr. Britt's training and experience as a physician and specialist in cardiology, his familiarity with the deceased's underlying health and his knowledge of the basic facts of Robinson's encounter with Brown, the remarks of the Petitioner about the deceased's condition on the evening of the Brown incident when the deceased returned home and the explanation of the death approximately 26 to 28 hours later. In remarking on these matters, in his deposition of May 22, 1986, at page 9 under questioning by counsel for the Petitioner, Dr. Britt said: Assuming these facts, Doctor, within a reasonable degree of medical probability, is it your medical opinion that the struggle at the jail that night caused the death of E.L. Robinson? A I can answer that in the hypothetical fashion by stating that there are well- documented markers as to what will trigger a stable anginal pattern in a patient with documented coronary artery disease being emotional provocation with physical exertion as a very common trigger for what we call the inciting event for a fatal result. If you give the clinical scenario that you have just described and ask me to mark it, use it as an index marker of likely cause and effect, it would be very high as a probable cause of the effect that occurred to him within the next 24 to 36 hours as the inciting or provocative cause. Q Within a reasonable degree of medical probability then, it could be stated that the struggle at the jail precipitated the cardiological event that resulted in E. L. Robinson's death? A It would be reasonable to say that this was the inciting event that caused an unstable setting to occur out of which a sudden death syndrome could arise. Having considered these remarks by Dr. Britt, it is concluded that within a reasonable degree of medical probability the encounter between the deceased and Brown was the precipitating event of the death of Captain Robinson. Dr. Bianco, who had knowledge of the Robinson case and the patient's death, felt that the overall condition of the patient, that is significant coronary artery disease and the fact of participation in a job which was much too stressful for his physical condition, was more likely the cause of death than the specific incident with Brown. That condition is made the more threatening, according to Dr. Bianco, due to the patient's habit of smoking, the patient's diabetes and high blood pressure and obesity. Dr. Bianco emphasized the effect of stress as a contributing factor in the patient's demise. However, in the final analysis, Dr. Bianco defers to Dr. Britt on the subject of the causation of Captain Robinson's death, and for that reason the opinion of Dr. Bianco is discounted and does not form the basis of fact determination on the question of the causation of the death of Captain Robinson.
Findings Of Fact Petitioner's application for licensure by endorsement was filed November 30, 1993. By order dated August 10, 1994, Respondent denied Petitioner's application on the basis of Petitioner's "less than favorable evaluation" from Robert Packer Hospital; Petitioner's failure "to list training at Wilson Memorial Regional Medical Hospital" on the application; Petitioner's termination from the Wilson Memorial Regional Medical Center training program due to "academic and behavioral problems"; and Petitioner's inability to "practice with skill and safety." Petitioner's first post graduate training was a three year residency program in internal medicine at Robert Packer Hospital in Sayre, Pennsylvania. Petitioner participated in that program during the period 1984-85, and received an overall evaluation denominated as "Recommend with some Reservation" from Fredrick D. Rose, M.D. at Robert Packer Hospital. The only lower evaluation that could have been received, as denoted on the evaluation form, was a "Cannot Recommend." There were two evaluation ratings higher than that rating received by Petitioner, "Recommend as Qualified and Competent" and "Recommend as Outstanding Applicant." Subsequent to his evaluation, Petitioner was not offered a contract permitting him to continue for a second year in the three year program. Respondent's application form, completed and submitted by Petitioner, required that Petitioner set forth a chronological listing of all postgraduate training (including internship, residency, and fellowship) from date of graduation to the present. Directions on the application required the applicant to "[a]ccount for all time from date of graduation medical school to present. DO NOT LEAVE OUT ANY TIME". Petitioner responded by listing training at Robert Packer Hospital in the specialty of internal medicine for the time period of July 1, 1984 to July 1, 1985. Petitioner did not list on the application, or his curriculum vitae (CV) which was attached to the application, his participation in postgraduate training at Wilson Regional Memorial Medical Center (Wilson Memorial) in the specialty of family medicine from July 1989 to June 1990. By letter to the Board of Medicine dated January 1, 1994, Petitioner stated that the omission of training at Wilson Memorial had occurred in an effort to avoid "more delay in the application process." In an appearance before the Board of Medicine's credentials committee on July 8, 1994, Petitioner testified under oath that he lied on his application when he omitted disclosing the Wilson Memorial training program on the application, and that he did so because "it looked bad" since he had not finished the program. He also testified to the committee that he did not think the Wilson Memorial residency program was relevant to the application since he did not receive "any kind of credit" for the program. To the contrary, Petitioner received eight months credit for his participation in the Wilson Memorial residency program, a 12 month program. As established by his testimony at the final hearing, Petitioner was aware that failure to list all training on the application would jeopardize his ability to obtain a license. The application also required that Petitioner list in chronological order from date of graduation to present, all practice experience and/or employment. Petitioner responded on the application with the written notation "see CV [curriculum vitae]." Petitioner's CV, submitted with the application, represented that he was an "ER attending" during the period 1989-90 at St. Joseph's Hospital in Elmira, New York, and was working full time there. Petitioner further testified to the Board of Medicine's credentials committee meeting on July 8, 1994, that his preparation of the CV was "half- hearted" and that "it [the document] wouldn't contribute anything." Petitioner's CV concludes with his handwritten certification that the document is "true and accurate." During Petitioner's participation in the residency program at Wilson Memorial, he moonlighted as an emergency room physician at St. Joseph's Hospital. While on call as a resident, Petitioner either paid other residents to cover his duties at Wilson Memorial, or he called in sick in order to be available for work at St. Joseph's Hospital. As established by Petitioner's testimony at the final hearing, the ability to be accurate and truthful reflects on the ability to practice medicine with skill and safety.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that a Final Order be entered denying Petitioner's application. DONE and ENTERED this 19th day of August, 1996, in Tallahassee, Leon County, Florida. DON W. DAVIS, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 19th day of August, 1996. APPENDIX The following constitutes my specific rulings, in accordance with Section 120.59, Florida Statutes, on findings of fact submitted by the parties. Petitioner's Proposed Findings. 1.-5. Rejected, unnecessary to result reached. Adopted generally. Incorporated by reference. 8.-10. Subordinate to HO findings. 11.-12. Adopted, not verbatim. 13.-14. Not supported by weight of the evidence. 15. Rejected, unnecessary. 16.-19. Subordinate to HO findings. 20.-23. Rejected, relevance. 24.-26. Rejected, subordinate. Respondent's Proposed Findings. 1.-7. Adopted, but not verbatim. 8. Rejected, unnecessary to result. COPIES FURNISHED: Robert S. Cohen, Esquire Pennington & Haben Post Office Box 10095 Tallahassee, Florida 32302-2095 Allen R. Grossman, Esquire Department of Legal Affairs The Capitol, Plaza Level 01 Tallahassee, Florida 32399-1050 Jerome Hoffman, Esquire Agency for Health Care Administration 2727 Mahan Drive Tallahassee, Florida 32308-5403 Dr. Marm Harris, Executive Director Board of Medicine Agency for Health Care Administration 1940 North Monroe Street Tallahassee, Florida 32399-0750
The Issue Whether Petitioner, the surviving spouse of Ralph Timmerman, is entitled to receive "in line of duty" death benefits?
Findings Of Fact Petitioner is the surviving spouse of Ralph Timmerman, who died on January 23, 1998, at 48 years of age. Petitioner and Mr. Timmerman had been married since September 5, 1981. They had two daughters, who are now four and thirteen years of age. Mr. Timmerman was a member of the Florida Retirement System. At the time of his death, Mr. Timmerman was employed by Martin County as the Assistant Building Maintenance Superintendent. Mr. Timmerman had been Martin County's Building Maintenance Superintendent until December of 1990, when he suffered a heart attack and had five-vessel by-pass surgery. Following his return to work, he was reassigned to the position of Assistant Building Maintenance Superintendent. This was a new supervisory position that had been specifically created for him. By design, it was less demanding than the Building Maintenance Superintendent position he had formerly held. One of Mr. Timmerman's former subordinates, Harold Markey, was tapped to succeed Mr. Timmerman as the Building Maintenance Superintendent, a decision that Mr. Timmerman supported. As the Assistant Building Maintenance Superintendent, Mr. Timmerman worked under Mr. Markey's supervision. Mr. Markey made an effort to avoid assigning Mr. Timmerman any tasks that, given Mr. Timmerman's history of heart problems, might jeopardize Mr. Timmerman's health. Mr. Timmerman's primary duties were to directly supervise the building maintenance staff and to deal with contractors hired by Martin County to perform building maintenance and repair work. Mr. Markey did not ask Mr. Timmerman to attend or make presentations at Martin County Board of County Commissioners meetings because he knew that Mr. Timmerman would feel uncomfortable performing these duties. Neither did Mr. Markey require Mr. Timmerman to do any physically demanding work. In fact, whenever, he saw Mr. Timmerman engaged in such physical labor, he would intervene and instruct Mr. Timmerman to stop. Whenever Mr. Timmerman indicated during the course of the work day that he was tired or not feeling well, Mr. Markey allowed Mr. Timmerman to leave work and go home.7 Notwithstanding these accommodations made for him, Mr. Timmerman, on a number of occasions, complained to Mr. Markey about (what Mr. Timmerman perceived to be) Mr. Markey's lack of understanding and compassion as a supervisor. He expressed these views in a loud and argumentative manner.8 As a general rule, following these outbursts, Mr. Timmerman apologized to Mr. Markey for the manner in which he had acted. It was during such an outburst on January 23, 1998, at his work site and during his normal working hours, that Mr. Timmerman suffered cardiac arrest and subsequently died. The day before, Mr. Timmerman and members of his staff had attended a meeting with Mr. Markey. Among the subjects discussed at the meeting was the response of Mr. Timmerman and his staff to a water main break that had occurred at the Martin County-operated library in Hobe Sound on January 20, 1998. The discussion concerning this subject lasted approximately 15 to 20 minutes. Mr. Markey was not at work on January 20, 1998, and therefore it was Mr. Timmerman's responsibility to coordinate the efforts to repair the break and remedy any water damage that had occurred at the library. Mr. Timmerman was notified of the water main break by Teresa Van Cardo, a Martin County employee occupying the position of Administrator Coordinator II for General Services. After some time had passed, Ms. Van Cardo became concerned that Mr. Timmerman had not yet arrived at the library. She therefore telephoned Mr. Markey at home to express her concerns about Mr. Timmerman's delay in responding to the scene. (Huey Cummings, Martin County's lead plumber, however, was on the scene and assessing the situation.) After speaking with Ms. Van Cardo, Mr. Markey telephoned Mr. Timmerman and told him that "he needed to get to the site and he needed to make an assessment of it." Mr. Timmerman replied that Huey Cummings was already at the library. When Mr. Timmerman came home from work that day he told Petitioner about what had happened at the library and that he was "very pleased at the way the whole situation was handled" by his staff. At the January 22, 1998, staff meeting (which was a regularly scheduled meeting), Mr. Markey voiced his criticism of the manner in which the staff had responded to the water main break at the library two days before,9 and he indicated what improvements the staff needed to make in responding to similar incidents in the future. It should not be necessary, he told his subordinates at the meeting, for anyone to have to bother him at home for guidance in dealing with a situation such as the one that arose at the library. At least one of the employees at the meeting (Patti Smith) could sense (based upon her observations of Mr. Timmerman's body movements as Mr. Markey spoke) that Mr. Markey's comments upset Mr. Timmerman. Indeed, Mr. Timmerman was upset. He felt that Mr. Markey's criticism was unwarranted, and, after Mr. Markey had voiced his criticism, Mr. Timmerman told Mr. Markey and the others at the meeting that, in his opinion, "everybody responded exceptionally." That evening, when he arrived home from work, Mr. Timmerman was still upset about the negative comments that Mr. Markey had made at the staff meeting earlier that day. Mr. Timmerman shared with Petitioner what Mr. Markey had said at the meeting and expressed his disappointment that Mr. Markey had criticized, rather than praised, his subordinates. The following morning (January 23, 1998), Mr. Timmerman woke up at 5:30 a.m. He ate a small breakfast and, after spending time with his youngest daughter, left for work at 6:30 a.m. He appeared to be "very calm" when he left. Mr. Timmerman arrived at work at or about 7:00 a.m. At around 7:30 a.m., Mr. Markey, at the request of another employee, went to Mr. Timmerman's office (which was located in a different building than Mr. Markey's office) and requested that Mr. Timmerman not park his assigned Martin County- vehicle in the staff parking lot (which was reserved for personal vehicles). Mr. Timmerman reacted with displeasure to the request. He told Mr. Markey, "This is bull crap," or at least used words to that effect. Mr. Markey repeated his request and then left Mr. Timmerman's office. Shortly thereafter, Mr. Markey discovered that two expensive vacuum cleaners were missing from the storage area where they were supposed to be kept. A few months earlier, Mr. Markey had instructed Mr. Timmerman to put up a "sign-out" sheet outside the storage area for employees to sign whenever they removed an item from the storage area. After discovering that the vacuum cleaners were missing from the storage area, Mr. Markey looked for, but did not find, such a "sign-out" sheet. When he returned to the building where Mr. Timmerman's office was located, Mr. Markey confronted Mr. Timmerman and asked him where the vacuum cleaners were. Mr. Timmerman told Mr. Markey that it was not his (Mr. Timmerman's) day to watch the vacuum cleaners and that he did not know where they were. Mr. Markey then said to Mr. Timmerman, "We need to get them located today," to which Mr. Timmerman responded, "Well, later on today, I will get somebody on it and we'll try to find them." Mr. Markey was not satisfied with Mr. Timmerman's response. He advised Mr. Timmerman that he wanted Mr. Timmerman, not someone else, to look for the vacuum cleaners and that he wanted Mr. Timmerman to look for them that morning, not later in the day. He also told Mr. Timmerman that he expected Mr. Timmerman to place a "sign-out" sheet outside the storage area before the morning was over. Mr. Markey then walked away and left the building. When Mr. Markey was approximately 30 feet away, Mr. Timmerman yelled out to him, "What do you have up your ass today?" Mr. Markey stopped and replied, "Obviously you." Mr. Markey then continued walking and returned to his office. Approximately four or five minutes later, an obviously very upset Mr. Timmerman stormed into Mr. Markey's office, yelling and screaming that Mr. Markey mistreated his staff and lacked understanding and compassion. Mr. Markey told Mr. Timmerman to calm down so that they could discuss what was bothering Mr. Timmerman. Mr. Timmerman, however, continued to yell and scream. In fact, if anything, he became louder. Mr. Markey made further attempts to persuade Mr. Timmerman to sit down and talk calmly about his grievances, but these efforts were to no avail. During his exchange with Mr. Timmerman, Mr. Markey, like Mr. Timmerman, raised his voice. Mr. Timmerman left Mr. Markey's office in a huff. As he was walking down the hallway, he shouted back to Mr. Markey, "I take-up for you all of the time with the guys," and then added, "I treat you like a F-en prince, and this is what I get." Mr. Timmerman then went into another employee's (Sharon Barnes') office and started pacing back and forth. His face was red and he was visibly agitated. Ms. Barnes told Mr. Timmerman to calm down. He replied to her that it was "too late." Mr. Timmerman thereupon returned to Mr. Markey's office and continued his ranting. Mr. Markey shouted back at Mr. Timmerman. When Mr. Markey told Mr. Timmerman to "sit down," Mr. Timmerman said that he "couldn't" and then turned to leave. Mr. Markey asked where Mr. Timmerman was going. Mr. Timmerman responded that he was going to take a ride in his truck. As Mr. Timmerman exited Mr. Markey's office and walked toward his truck, Mr. Markey followed behind him. Mr. Markey believed that, given Mr. Timmerman's agitated emotional state, Mr. Timmerman was in no condition to drive. He urged Mr. Timmerman not to go to his truck. Mr. Markey was ultimately able to convince Mr. Timmerman to sit down on a bench outside the building where Mr. Markey's office was located. Mr. Timmerman remained on the bench, however, for just a couple of seconds before getting up and walking away. As Mr. Timmerman walked away, he continued to yell and scream at Mr. Markey. Mr. Markey shouted back at Mr. Timmerman, repeating his plea that Mr. Timmerman not drive off in his truck. When Mr. Timmerman was approximately 20 feet from the bench, he started breathing heavily and leaned against a wall for support. Mr. Markey ran over to Mr. Timmerman to make sure that he did not fall. Mr. Markey again exhorted Mr. Timmerman to calm down. Mr. Timmerman, as he had done previously, told Mr. Markey that he "couldn't." Mr. Timmerman then collapsed in Mr. Markey's arms. After gently lowering Mr. Timmerman to the ground, Mr. Markey ran to Ms. Barnes' office window, which was approximately ten or 15 feet away. When he got Ms. Barnes' attention, he instructed her to "call 911." Paramedics subsequently arrived on the scene. They were unable to revive Mr. Timmerman. He was pronounced dead at 8:35 a.m. on January 23, 1998. An autopsy was performed the following day by Frederick Hobin, M.D., the Medical Examiner for the 19th Medical Examiner District of Florida. Dr. Hobin is a Florida-licensed physician, who is board-certified in anatomic, clinical, and forensic pathology. Following the completion of the autopsy, Dr. Hobin prepared an autopsy report, which contained the following findings and observations, among others (which the undersigned accepts as accurate): PATHOLOGIST'S OPINION MECHANISM OF DEATH: SUDDEN CARDIAC DEATH DUE TO ISCHEMIC CARDIOMYOPATHY CAUSE OF DEATH: OCCLUSIVE CORONARY ARTERIOSCLEROSIS MANNER OF DEATH: NATURAL . . . GROSS AUTOPSY PROTOCOL EXTERNAL EXAMINATION . . . INTERNAL EXAMINATION . . . CARDIOVASCULAR SYSTEM The heart weighs 680 grams. The increase in weight is attributed to biventricular hypertrophy. All of the chambers are markedly dilated. There is a dense gray scar throughout the posteroseptal myocardium. There are some focal areas of hyperemia in the inferior septum. The cardiac valves appear functionally intact. The coronary arteries have diffuse calcific occlusive arteriosclerosis. There is indication of a double remote bypass coronary graft procedure. There is some sclerosis of both of the grafts and one of the grafts appears to have been occluded by thrombus material throughout its entire length. The thrombus material appears remote in age and it is gray and friable. There is moderate arteriosclerosis of the aorta with some reduced elasticity. . . . FINDINGS AT GROSS AUTOPSY Arteriosclerotic cardiovascular disease. Occlusive coronary artery disease. Remote coronary artery bypass graft. Remote thrombosis of coronary artery graft. Ischemic cardiomyopathy. Healed posteroseptal myocardial infarction. . . . MICROSCOPIC EXAMINATION HEART There is marked hypertrophy of the myocardium as well as very extensive scarring. This is associated with sclerosis of the coronary artery bypass grafts and they are occluded by degenerated thrombus material. There appears to be minimal fibrosis of the mitral valve. Appended to Dr. Hobin's autopsy report were the written results of laboratory tests that had been conducted in conjunction with the autopsy. Such testing, according to the written results, revealed the presence of cannabinoids (cannabis metabolites) in Mr. Timmerman's blood.10 Although at the time of his death, Mr. Timmerman (as the autopsy reflected) was suffering from a chronic, degenerative, life-threatening cardiovascular disease that had evolved over a prolonged period of time, he was able to, and did in fact, lead a relatively normal life notwithstanding his disease. He was still able to work, and he continued his employment with Martin County11 until his death. Mr. Timmerman, however, because of his disease, was vulnerable to sudden cardiac death. Sudden cardiac death is a term the medical profession uses to indicate that a person has undergone a rapid, fatal deterioration as a result of an adverse cardiac event. In most, but not all, instances, the adverse cardiac event is an arrhythmia (as was the situation in Mr. Timmerman's death). Emotional stress and excitement can produce physiological changes that increase cardiac demand and consequently may precipitate an arrhythmia that leads to sudden cardiac death. Whether a particular incident or situation will produce such a result depends, not only on the individual's physical health, but on his or her emotional makeup as well. In the instant case, it appears, within a reasonable degree of medical probability, that work-related emotional distress (which manifested itself during the confrontations Mr. Timmerman had with Mr. Markey immediately preceding Mr. Timmerman's death) aggravated Mr. Timmerman's preexisting cardiovascular disease and thereby precipitated his demise.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Division of Retirement issue a final order finding that Petitioner is qualified to receive "in line of duty" death benefits from the account of her late husband, Ralph Timmerman. DONE AND ENTERED this 13th day of August, 1999, in Tallahassee, Florida. STUART M. LERNER 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 13th day of August, 1999.
Findings Of Fact On July 13, 2011, a "Petition Under Protest" styled "Milvia Najera and Marvin Chavarria, on behalf of and as parents and natural guardians of Marvin Chavarria, a minor v. Florida Birth-Related Neurological Injury Compensation Association," was filed with the Division of Administrative Hearings (DOAH). Pertinent to the pending motions are the allegations of paragraphs 3, 4, 5, 6, and 7 of the petition: * * * Name and Address of Physician The physicians providing obstetrical services who were present at the birth are Resident Lucia Gaitan, M.D. and Attending Samir N. Beydoun, M.D. . . . Description of Disability It is alleged that Marvin Chavarria currently suffers from developmental delay. Time and Place of Birth Jackson Memorial Hospital,[2/] 1611 N.W. 12th Avenue, Miami, FL 33136 on February 5, 2005. Time and Place of Injury Jackson Memorial Hospital, 1611 N.W. 12th Avenue, Miami, FL 33136 on February 5, 2005. Statement of the Facts This claim is not compensable under NICA as Marvin Chavarria's injury does not meet the definition of a birth-related neurological injury as defined in Florida Statute 766.302(2). The reasons for non- compensability are as follows: The child does not have substantial physical and mental impairments as defined by Florida Statutes 766.302(2). * * * The Petition does not allege a lack of notice by the healthcare providers.3/ DOAH served the Florida Birth-Related Neurological Injury Compensation Association (NICA) with a copy of the claim on July 5, 2011; served Dr. Beydoun and Jackson Memorial Hospital, respectively, on July 16, 2011; and served Dr. Gaitan on or about July 21, 2011. Upon appropriate petition and an August 16, 2011 Order, Samir Beydoun, M.D., was granted Intervenor status. On October 13, 2011, after one extension of time in which to do so, NICA filed its response required by section 766.305(4), titled "Notice of Non-Compensability and Request for Evidentiary Hearing." On October 24, 2011, Respondent NICA filed its Motion for Summary Final Order, with supporting affidavits. The thrust of Respondent's motion is that the petition for benefits was filed with DOAH on July 13, 2011, which is more than five years past the birth of the child, Marvin Chavarria, who was born on February 5, 2005. The motion states, "Accordingly, the claim is barred as a matter of law, and cannot qualify for an Award under the NICA Plan. . . . Notwithstanding, the issue of compensability must be addressed." Respondent also submitted, with its Motion for Summary Final Order, two medical affidavits to the effect that the claim is not compensable. On October 24, 2011, Petitioners filed a Notice of Joinder in Respondent's Motion for Summary Final Order. On October 27, 2011, Intervenor Samir Beydoun, M.D., filed a Response in Opposition to Respondent's Motion for Summary Final Order. On October 26, 2011, Intervenor Samir Beydoun, M.D., also filed a Motion for Summary Final Order, asserting that the Administrative Law Judge has jurisdiction to enter a summary final order solely determining that Petitioners' claim is barred by section 766.313, the statute of limitations for NICA claims. On October 28, 2011, Petitioners filed a Response and Objection to Intervenor's [Beydoun's] Motion for Summary Final Order, to which Response and Objection, Intervenor Beydoun filed an unauthorized Reply, on November 8, 2011. By Order of November 18, 2011, a pending Petition to Intervene, filed on October 24, 2011, by Public Health Trust of Miami was granted,4/ and, in an abundance of caution, this new Intervenor was given until November 30, 2011, to file a response to the two pending motions for summary final order. Public Health Trust of Miami filed no timely response(s), but joined in Dr. Beydoun's Motion by an untimely and unauthorized "Notice of Joinder" filed December 13, 2011; a Response Opposing [NICA's] Motion for Summary Final Order, filed December 13, 2011; and an "Amended" Motion for Summary Final Order filed December 14, 2011. All of the pleadings have been considered. NICA's Motion for Summary Final Order alleged that the claim against NICA is barred by the statute of limitations for NICA claims.5/ The birth certificate, which was filed with the Petition, confirms Marvin's date of birth as alleged in the Petition as February 5, 2005. No party has asserted otherwise. There also is no dispute that the Petition (claim) was filed on July 13, 2011. Therefore, there can be no reasonable debate that the NICA claim was filed more than five years beyond Marvin's birth date, and so, the claim is barred as a matter of law, and cannot qualify for an award under the NICA Plan. NICA's Motion for Summary Final Order further alleged that Marvin's claim is not compensable because he did not suffer a "birth-related neurological injury" as defined in section 766.302(2), first, because there was no apparent obstetrical event that resulted in loss of oxygen or mechanical trauma to the baby's brain or spinal cord during labor, delivery, or the immediate postdelivery period, and secondly, because Marvin does not suffer from a substantial motor (physical) impairment, both of which are elements of the definition of a compensable injury, at section 766.302(2). (See Conclusion of Law 32). Attached to NICA's Motion for Summary Final Order was an affidavit by Donald C. Willis, M.D., a board-certified obstetrician with special competence in maternal-fetal medicine. Dr. Willis rendered the following opinion within a reasonable degree of medical probability: * * * In summary, baby was delivered with some mild respiratory distress that required bag and mask ventilation for about 30 seconds. Arterial blood gas was normal. The respiratory distress resolved without the need for intubation or mechanical ventilation. A tight Nuchal cord was present at birth, but did not result in oxygen deprivation. There was no apparent obstetrical event that resulted in loss of oxygen or mechanical trauma to the baby's brain during labor, delivery or the immediate post delivery period. As such, it is my opinion that there was no oxygen deprivation or mechanical injury occurring in the course of labor, delivery or resuscitation in the immediate post- delivery [sic] in the Hospital that resulted in loss of oxygen or mechanical trauma to the baby's brain or spinal cord. Accordingly, there was no causal event which would have rendered MARVIN CHAVARRIA permanently and substantially mentally and physically impaired as a result of same. (emphasis added). Also attached to NICA's Motion for Summary Final Order was the affidavit of Michael S. Duchowny, M.D., a board- certified pediatric neurologist, who rendered the following opinion within a reasonable degree of medical probability: * * * The Florida Birth-Related Neurological Injury Compensation Association retained me as its expert in pediatric neurology in the above-styled matter to examine the minor child, MARVIN CHAVARRIA, and review the medical records from both MARVIN CHAVARRIA and his mother, MILVIA NOTERA. [sic] The purpose of my review of the medical records and evaluation of MARVIN CHAVARRIA was to determine whether he suffers from an injury which rendered him permanently and substantially mentally and physically impaired, and whether such injury is consistent with an injury caused by oxygen deprivation or mechanical injury occurring during the course of labor, delivery, or the immediate post-delivery period in the hospital. I evaluated MARVIN CHAVARRIA on October 5, 2011. A true and accurate copy of my Evaluation and Opinion is attached hereto as Exhibit 1. . . . My Opinion is reflected in my Report and is as follows: In SUMMARY, Marvin's neurological examination today reveals findings consistent with autism and pervasive developmental disorder (PDD). He has severe social and behavioral problems and also manifests expressive language delay, generalized hypotonia and has a history of a sleep disorder. There are no focal or lateralizing findings noted. I reviewed medical records that were sent on August 16, 2011. The records do not contain information that points to either an hypoxic event or mechanical injury in the course of labor or delivery. Marvin was born at term at Jackson Memorial Hospital and had Apgar scores of 9, 9 and 9 at 1, 5 and 10 minutes. Although he did have a tight nuchal cord, it was removed immediately. The postnatal course was unremarkable. Marvin's diagnostic studies further confirm that his neurological disabilities are developmentally based and likely the result of problems in brain maturation which began in utero. The physical examination today provides additional confirmation that Marvin does not suffer from a substantial motor impairment. For the above reasons, I do not believe that Marvin should be considered for compensation under the NICA statute. [6/] (emphasis added). Intervenor Beydoun's Response to NICA's Motion for Summary Final Order urges the granting of NICA's motion to the extent the claim is barred by the statute of limitations, but also urges denial of NICA's motion "because the ALJ cannot reach the question of compensability where, as here, the claim is barred by the statute of limitations.7/ Intervenor Beydoun has also filed a Motion for Summary Final Order asserting the same arguments in favor of dismissal under the statute of limitations and against dismissal upon grounds of non-compensability, because, he argues, once the statute has run, the Administrative Law Judge is without jurisdiction to determine either compensability or notice. Intervenor Public Health Trust has joined in Dr. Beydoun's Motion for Summary Final Order, and filed a Response to Motion for Summary Judgment and an Amended [sic] Motion for Summary Final Order.8/ Petitioners joined in NICA's Motion for Summary Final Order and oppose Intervenor Beydoun's Motion for Summary Final Order. It may be assumed they also oppose the Public Health Trust's late-filed items. Despite both Intervenors' opposition upon the issue of the Administrative Law Judge's jurisdiction to enter a summary final order regarding compensability where the statute of limitations for the filing of a NICA claim has run, no one has posed a challenge concerning the sufficiency of NICA's Motion for Summary Final Order's factual allegations or supporting affidavits. Given the record and the medical affidavits, there is no genuine issue of material fact that Marvin, the child named in the Petition, did not suffer a birth-related neurological injury as defined in section 766.302(2). Accordingly, NICA's Motion for Summary Final Order is, for reasons appearing more fully in the Conclusions of Law, well- founded.9/
