07-004287CB In Re: Senate Bill 42 (Rhonda A. Hughes) vs. * Status: Closed DOAH Final Order on Friday, May 2, 2008.

Summary: Unopposed claim bill for $100,000 based upon settlement agreement. Recommend unfavorably

SPECIAL MASTER’S FINAL REPORT – SB 42 (2008) T

February 5, 2008

Page 2

The EMT mistakenly gave Ms. Hughes an injection o f

Mivacron, which is a paralyt ic agent. The EMT initially denied giving Ms. Hughes the wrong medication, but he late

r

admitted his mistake. The EM T was subsequently fired by

the County.

The Mivacron injection caused Ms. Hughes to go into full cardiopulmonary arrest. She wa s transported to the hospital

emergency room, and CPR was administered. She was

diagnosed with a possible anoxic or hypoxic brain injury

because she apparently stopped breathing for some period

of time during the incident, which deprived her brain o

f

oxygen.

Ms. Hughes testified at the S pecial Master hearing that she has constant problems with her memory since the incident.

She had memory and other cogn itive problems prior to the

incident, buther treating physicians attribute her current memory problems to the brain injury rather than her pre-

existing condition of dysautonomia because cognitive

problems are typically transitory, not constant, when related

to dysautonomia.

Neuropsychological testing of Ms. Hughes corroborates he r

claims of memory problems. The tests indicate that he r

memory functioning is in the “mildly impaired range” and that

she has other cognitive deficiencies.

The professionals who conduc ted the tests --Dr. Brett

Turner and Dr. Kevin Groom --attributed Ms. Hughes’

memory and cognitive problems to her brain injury, even

though they did not review Ms. Hughes’ extensive history o f

medical and psychological problems. By contrast, the County’s expert, Dr. Barbara Stein, reviewed Ms. Hughes’

history and was of the opini on that “numerous non-claim-

related factors are contributin g to [Ms. Hughes’] ongoing

symptom presentation.” Dr. St ein was also of the opinion

that Ms. Hughes’ “extensive medi cal and psychiatric history

are contributing to her mild cognitive dysfunction,” although she did acknowledge that Ms. Hughes has “

some claim-

related permanent impairment ” (emphasis supplied).

Dr. Stein did not quantify “some” or opine as to how much o f

Ms. Hughes’ permanent impairment is attributable to the

SPECIAL MASTER’S FINAL REPORT – SB 42 (2008) T

February 5, 2008

Page 3

brain injury. Ms. Hughes’ treating psychiatrist, Dr. Michael Conrad, was of the opinion that “at least half or more” of he

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depression and anxiety symptoms are related to the brain

injury, rather than the dysautonomia.

Ms. Hughes is on a number of daily medications for he r

medical and psychological problems. Most of the

medications are for problems un related to the brain injury,

such as her depression and “chronic pain.” For example,

she takes 60 mg of Methadone daily for pain.

In November 2006, Ms. Hughes was referred to a specialist, Dr. Rick Beach, for recommendations regarding pain

management. Dr. Beach identifi ed a number of factors that

complicate the implementati on of a pain management plan that is less dependent on medications, including

Ms. Hughes’ history of psychological problems.

Dr. Beach pointed out that Ms . Hughes “appears to have all

the risk factors for personality or characterological disorde r

prior to brain injury,” and he identified several issues that

warranted further examination, including the possibility that

Ms. Hughes was using her condition for “avoidance (of life

responsibilities and stresses)”, “attention (continued care-

taking by family),” and “continued opiate doses (patient with history of opiate abuse in pas t).” Dr. Beach concluded that

until Ms. Hughes resolved her la wsuit with the County, “there

may not be much incentive for Ms. Hughes to actively participate in a program that is focuse[d] on wellness and

personal responsibility and a program that is designed to reverse any rolls as a victim that a patient may have unknowingly fallen into secondary to their long-term pain

condition.”

Dr. Stein expressed similar op inions. For example, she

opined in her report that Ms. Hughes “is misattributing many

of her symptoms to the [County] ’s alleged conduct” and that

“secondary gain including avoid ance of responsibility and

stress, attention from careta kers and potential financial

remuneration is also present.” Dr. Stein also pointed out that

Ms. Hughes had no problem remembering many things and that she had “selective recall.”

The assessments of Ms. Hughes by Dr. Beach and Dr. Stein

are consistent with my observation of her at the Special

SPECIAL MASTER’S FINAL REPORT – SB 42 (2008) T

February 5, 2008

Page 4

Master hearing. Her testim ony and the testimony of he r

mother regarding the extent of her memory problems were

generally unpersuasive. Indee d, notwithstanding the fact

that the neuropsych ological testing showed no signs o f

malingering (i.e., faking) by Ms. Hughes, I wasnot persuaded that Ms. Hughes’ me mory problems and cognitive

deficits are as severe as she says they are.

Ms. Hughes lives with her mother, who is a retired school teacher. Ms. Hughes depends upon her mother to oversee

her medications, but Ms. H ughes acknowledged that she is

capable of performing most activities of daily living (e.g., grooming, cooking, cleaning). Additionally, Ms. Hughes has

no problems driving.

Ms. Hughes has not worked si nce September 2001, which is

prior to the incident giving rise to this claim. She stopped

working because of her d ysautonomia, and she has been

declared permanently and totally disabled by the U.S. Social Security Administration. She receives disability payments o

f

approximately $700 per month, wh ich is her only source o f

income other than the support that she receives from he r

mother.

Ms. Hughes is eligible for Medicare as a result of he r

permanently disabled status, and Medicare is her primary

insurance. Ms. Hughes is not currently eligible for Medicaid

because she lives with and re ceives support from he r

mother.

Ms. Hughes testified that sh e is still in therapy for he r

neuropsychological problems, and that she goes to therapy

“every 2 or 3weeks.” However, she has not made a serious

effort to follow up with Dr . Beach regarding a pain

management plan that is less dependent on Methadone.

Dr. Conrad testified in deposition that Ms. Hughes will

require daily supervision and care to ensure that she is

taking her medications corre ctly. Ms. Hughes’ mothe r

currently performs that role , but Ms. Hughes may have to

hire someone to take over that role as her mother gets older.

The present value cost of the daily care that Ms. Hughes will

need over the course of her life was estimated to be in excess of $300,000.

SPECIAL MASTER’S FINAL REPORT – SB 42 (2008) T

February 5, 2008

Page 5

Dr. Conrad stated in an affidav it provided at the Special

Master hearing that Ms. Hughes will life-long psychiatric

care, medication, and counseling due to her brain injury. He

also stated that t he amount of care and treatment could

increase as she aged. The cost s of this care and treatment

are not included in the $300,000 referenced above.

Payment of the claim bill will not adversely affect the County

or its emergency medical services program. The County

provided a letter from its Risk Manager, which states that “at

least $100,000 has been set aside in reserve for payment o f

a claims bill in favor of Rhonda Hughes.”

LEGAL PROCEEDINGS: In August 2005, Ms. Hughes file d suit against the County in

circuit court in Escambia Coun ty. In its answer to the

complaint, the County admitted that the EMT was negligent,

but denied that Ms. Hughes su ffered any permanent injuries

as a result of the negligence.

In August 2007, Ms. Hughes and the County entered into a

settlement agreement in which the County agreed to pay Ms. Hughes a total of $200,000. The agreement

contemplated an immediate pay ment of $100,000, which is

the maximum allowed under the sovereign immunity cap,

and then a claim bill for t he remaining $100,000. The

County agreed not to oppose the cl aim bill. A Final Consent

Judgment incorporating the settlement agreement was

entered by the circuit court on August 21, 2007.

The County paid $100,000, as r equired by the Final Consent

Judgment. Ms. Hughes received $60,941.53 of that amount; the remainder went to atto rney’s fees and costs.

Ms. Hughes testified at the S pecial Master hearing that she

put $50,000 of the initial paym ent into a “safe” investment

account, and that she intends to put “at least $50,000” of the proceeds of the claim bill into t hat account. She testified that

she intends to use the funds in the account for her future medical needs. She also testif ied that she intends to use a

portion of the claim bill proceeds to buy a car and pay fo

r

dental work that she and her mother need.

It is noteworthy that Dr. B each stated in his report that

Ms. Hughes “went down a list” of things that she and he r

mother were going to do with the settlement proceeds from

SPECIAL MASTER’S FINAL REPORT – SB 42 (2008) T

February 5, 2008

Page 6

the County, including opening an art studio and buying some

land in Destin. In her test imony at the Special Maste r

hearing, Ms. Hughes deniedmaking those statements to

Dr. Beach.

CLAIMANT’S POSITION: The negligence of the County ’s EMT was the direct and

proximate cause of the Ms. Hughes’ current memory problems and cognitive deficiencies.

The settlement agreed to by the parties is reasonable

under the circumstances and it s hould be given full effect by

the Legislature.

COUNTY’S POSITION: The County does not oppose the bill.

CONCLUSIONS OF LAW: The EMT owed a duty of care to Ms. Hughes. The EMT

breached that duty of care by administering the wrong

medication to Ms. Hughes.

The EMT was employed by the County and acting within the

scope of his employment at the time of the incident. As a

result, the EMT’s negligence is attributable to the County.

Ms. Hughes was injured as a resu lt of the negligent medical

care provided by the EMT. T he medication caused her to go

into respiratory arrest, and it is undisputed that at least “some” of Ms. Hughes’ memory problems and cognitive

deficiencies are attributable to the negligent medical care

provided by the EMT. Howeve r, Dr. Conrad’s opinion that

“at least half or more” of Ms . Hughes deficie ncies are due to

the negligent medical care was unpersuasive in light of he

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extensive history of psychological and physical problems.

The $200,000 settlement agreed to by the County was not

unreasonable in light of Dr. St ein’s opinion that “some” o f

Ms. Hughes’ current condition is attributable to the negligent

medical care provided by t he EMT. A jury award could

easily have exceeded that amount.

That said, in my view, the $100,000 already paid by the County more than adequately compensates Ms. Hughes fo

r

the injuries that she suffer ed and that she may continue to

suffer in the future as a direct result of the negligent medical

care provided by the EMT. Si mply put, I was not persuaded

that the negligent medical care provided by the EMT is a

SPECIAL MASTER’S FINAL REPORT – SB 42 (2008) T

February 5, 2008

Page 7

material contributing cause to Ms. Hughes’ current condition in light of her ext ensive history of medi cal and psychological

problems or that her memory problems and cognitive deficiencies are as bad as she says they are.

LEGISLATIVE HISTORY: This is the first year that this claim has been presented to the

Legislature.

ATTORNEYS’ FEES AND The attorney’s fees are less than the 25 percentallowed by Section 768.28(8), F.S. The claimant’s attorney took only

LOBBYIST FEES: $20,000 in fees from the initial $100,000 payment, and she

represented at the Special Ma ster hearing that she intends

to take no more than $10,000 in a ttorney’s fees for the claim

bill. The lobbyist’s fees – 5 perc ent of the final claim --are in

addition to the attorney’s f ee. There are no outstanding

costs.

If the claim is paid at $100,000, Ms. Hughes will receive

$85,000, her attorney will receive $10,000, and the lobbyist will receive $5,000.

RECOMMENDATIONS: For the reasons set forth above, I recommend that Senate

Bill 42 (2008) be reported UNFAVORABLY.

Respectfully submitted,

T. Kent Wetherell

Senate Special Master

cc: Senator Tony Hill

Representative Dave Murzin

Faye Blanton, Secr etary of the Senate

House Committee on Constitution and Civil Law

Karen Camechis, House Special Master

Counsel of Record