07-004285CB In Re: Senate Bill 38 (Shakima Brown And Janaria Miller) vs. * Status: Closed DOAH Final Order on Friday, May 2, 2008.

Summary: The Hospital District was liable for the injuries to Janaria Miller and it is recommended that the unopposed claim bill for $300,000 be reported favorably.

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nurse with responsibility for c hecking the heart rate monitor, Nellie Miller, turned off the alar m. The monitor continued to

only intermittently record a heart rate for the next hour and a

half. Although Ms. Miller m ade a written notation of "poo

r

tracing" at 1:00 a.m. and agai n at 2:00 a.m., she took no

action to make certain that t he fetus was not in distress.

A t 2:24 a.m., the monitor began to record a heart rate below

safe levels or no heart ra te. Despite the negative

indications, Ms. Miller did nothing. There is no notation from her to show that she even checked the heart rate monito

r

during this critical period of ti me. Ms. Miller did not intervene

to resuscitate the fetus nor did she contact the doctor. Finally, at about 3:15 a.m., she called the doctor. He

immediately ordereda caesar ian section and Janaria was

delivered about an hour later.

A fetus obtains oxygen from the blood supplied through the

umbilical cord. A low fetal heart rate threatens asphyxiation.

A test of Janaria's blood following her birth showed

metabolic acidosis, which is consistent with asphyxia.

Janaria suffered irreversible brain damage as a result of lack

of sufficient oxygen to her br ain. She has cerebral palsy,

partial paralysis, and cognitive impairment. Now 4 years old,

Janaria has never sp oken. She has weakness on her left

side and 60 percentdeafness in her left ear. She has had

delayed cognitive development throughout her life. Although

her life expectancy is normal, Janaria is unlikely to eve r

attend a regular school or hold a regular job.

The Medicaid lien that resulted from Janaria's medical costs

has been satisfied.

Janaria receives Medicaid payments of $626 per month,

which will continue until she is 18 years old. She also

receives Medicare payments of $623 each month, which she

should be eligible for the rest of her life.

The Claimants' attorney inve stigated and made tentative

arrangements for using the pr oposed claim bill proceeds

(after fees are deducted) to fund an annuity for the benefit o f

Janaria. Under one option, the annuity could pay Janaria

$1,981.18 each month for her ent ire life and terminate upon

her death. Under a second opt ion, the annuity would pay

Janaria $1,939.59 each month fo r her entire life and, if she

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died before the 40th year of the annuity, the monthly

payment would go to her estate until the end of the 40th

year. Under either option , the payments would not begin

until Janaria's 18th birthday.

LITIGATION HISTORY: Ms. Brown sued the South Broward Hospital District in circuit

court in Broward County, alleging negligence. The District agreed to a Consent Final Judgment in the amount o

f

$500,000. The District has already paid the Claimants

$200,000, exhausting the sovere ign immunity cap. Of this amount, the Claimant netted $80,000. This claim bill seeks

the balance of $300,000.

CLAIMANTS’ POSITION: Ms. Miller was negligent in failing to take appropriate action in response to Janaria's abnormally low heart rate as

reported by the heart rate monitor.

Because Ms. Miller was acting within the course and scope

of her employment by Memori al Regional Hospital, the

Hospital is equally liable for the negligence and for the

injuries that were proximat ely caused by the negligence.

The settlement agreement is fa ir and reasonable, but the

amount of the settlement does not fully compensate the

Claimants for their damages.

THE DISTRICT’S POSITION: The District does not oppose the claim bill in the amount o f

$300,000.

CONCLUSIONS OF LAW: The attending nurse's actions and inactions fell below the standard of professional ca re applicable under the

circumstances. The consequences of a below normal fetal heart rate are so critical that, even if the nurse was

suspicious that the monito r was not working properly, he

r

proper response should have been to take immediate steps to determine whether the fetus was in distress, to intervene

with resuscitation measures if needed, and to alert a doctor.

Her failure to take appropr iate action was negligence and

was the proximate cause of the injuries suffered by Janaria.

South Broward Hospital Distr ict, doing business as Memorial

Regional Hospital, is liable as the nurse's employer.

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There are many reasons for entering into a settlement agreement other than the perce ived merits of the claim and,

therefore, I am not precluded from reviewing the terms of the

parties' settlement agreement in this matter and determining

whether they are reasonable under the totality of the

circumstances. In this case, the settlement amount is fa

r

less than the usual jury verdict for injuries of thisnature.

Had this case involved a private hospital, the settlement

amount would probably have been much larger. Therefore, I

believe it would be fair and r easonable for the Senate to pay

an award of $550,000 (or 50 pe rcent more than the agreed

settlement amount).

ATTORNEY’S FEES AND In compliance with s. 768. 28(8), F.S., the Claimants'

LOBBYIST’S FEES: attorneys will limit their fees to 25 percent of any amount

awarded by the Legislature. However, Claimants’ attorneys

did not acknowledge their awarene ss of the provision of the

bill that limits attorney’s fees, lobbyist’s fees, and costs to 25 percent of the award. They propose a lobbyist's fee that

would be an additional 6 per cent of any award.

OTHER ISSUES: The bill should be amended to correct the name of the defendant to South Br oward Hospital District. Of the two

annuity options presented by the Claimants' attorney, I believe the option that guarant ees payment for 40 years is

the better option. In addition, because Shakima Brown received nothing in the settlem ent, I believe the bill should

specify that, in the event that Janaria dies before the trust

fund is exhausted, t he balance in the trust fund should go to

Ms. Brown.

The District stated that pay ing a claim in the amount o f

$300,000 would not impair its ability to provide normal

services.

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RECOMMENDATIONS: For the reasons set forth above, I recommend that Senate Bill 38 (2008) be report ed FAVORABLY, as amended.

Respectfully submitted,

Bram D. E. Canter

Senate Special Master

cc: Senator Ted Deutch

Representative Kelly Skidmore

Faye Blanton, Secr etary of the Senate

House Committee on Constitution and Civil Law

Tony DePalma, House Special Master

Counsel of Record