07-004288CB In Re: Senate Bill 46 (Marissa Amora) vs. * Status: Closed DOAH Final Order on Friday, May 2, 2008.

Summary: The claim bill to compensate claimant for servere traumatic brain and spinal cord injuries as a result of negligence of the Department of Children and Family Services is amended for the sum of $26,849.849.08, recommended favorably.

SPECIAL MASTER’S FINAL REPORT – SB 46 (2008)

February 2, 2008

Page 2

After an MRI showed a spinal cord mass that was possibly malignant, Marissa was transferred to Miami Children's

Hospital ("MCH") for further tests. During the following

month, Marissa underwent a bi opsy of the spinal mass, a

bone marrow biopsy, an MRI of her brain, and infectious

disease tests, all of whic h were negative and showed no

malignancy. A bone scan reve aled a healing fracture of he

r

collarbone.

While Marissa was at MCH, nurses and social workers

documented incidents that gave ri se to concerns of possible

neglect and abuse by her mother. Marissa was to have been discharged on December 8, but her mother failed to

come to get her. On the following day, a hospital social worker made an abuse hotline report to the Department o

f

Children and Families ("DCF"). During a subsequent investigation, grand jurors, w ho reviewed this case and two

other cases in which children with open abuse cases died, questioned the hospital's delay in reporting signs of abuse,

as possibly being timed to coincide with a utilization review committee determination that there was no continuing medical necessity for hospitali zation and, therefore, no

further Medicaid reimbursements. The hospital then sought

to shift financial responsibilit y to DCF for keeping Marissa in

the hospital longer.

On December 10, 2000, the abuse report was assigned to Shirley Arias, a DCF Protective Investigator for District 11,

Miami-Dade County. Ms.

A rias immediately began gathering

information from nurses, social workers, and reviewed Marissa's medical records. She was informed that Marissa's

mother seldom visited her, incl uding failing to come to sign

necessary medical consent forms even after a social worke

r

learned that she had no car and gave her money to pay fo r

transportation; that families of other children in the same

hospitalroom reported that Marissa's mother had spanked

her in the hospital bed and, when confronted by a hospital

social worker, her mother said it was because Marissa was "hard-headed”; that Marissa cr ied when her mother visited

and was apparently not bonded with her; that doctors were

concerned that the mother woul d not or could not follow up

with physical therapy and other outpatient appointments; and

that the mother failed to come and get Marissa on the

original discharge date because she needed to get her live-

in boyfriend out of jail. Ms. Arias called the mother's

SPECIAL MASTER’S FINAL REPORT – SB 46 (2008)

February 2, 2008

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residence in Lake Worth and a male who answered the telephone told her that the mot her was in the Miami area but

he was not sure where she was staying or how to contact her.

At Ms. Arias' request, the hospita l staff notified her when the

mother next arrived on Dece mber 11, 2000, 3days afte r

Marissa's original discharge date. Ms. Arias and Jeffry

Biehler, M.D., interviewed the mother, with a hospital case manager and social worker present. Amongthei

r

observations were that the mo ther took an inordinate amount

of time to respond when asked whether she wanted to take her child home, hesitated when asked about domestic

violence, and had no explanation for her child's collarbone fracture. Dr. Biehler, noting the mother's apparent lack o

f

concern and emotionally flat affect, asked her whether she

was under the influence of drugs or alcohol, which she denied.

A n Initial Child Safety Asse ssment (ICSA) was required

within 24 hours of an abuse hot line report. The ICSA was

completed 3 days late on Decem ber 14, 2000, by Ms. Arias,

and signed by her supervisor, Robert Boyack, on

December 15, 2000. In the ICSA, Ms. Arias identified a

number of risk factors indicati ve of physical abuse, including

the following facts: the 2-year-old was non-communicative; the mother lived with a person who was biologically not

related to the child; nurses reported and Ms. Arias witnessed

the child's crying in response to her mother's visit and being

calmed when taken out of her mo ther's presence; the child

did not attend daycare resulting in limited community

visibility with no opportunity for outsiders to observe he

r

condition regularly; and the absence of any explanation fo r

the collarbone fracture. Ms. Arias and Dr. Biehler agreed

that Marissa should not be allowed to go home until a

complete home study was conducted. Someone on the

hospital staff also asked Ms. Ar ias to determine if DCF would

pay the hospital. When Ms. Arias later asked Mr. Boyack about placing a hold on Marissa and assuming responsibility for her hospital expenses, he to ld her erroneously that DCF

District 9 that includes the fa mily's Lake Worth residence, not

DCF District 11 that includes MCH, had jurisdiction.

Ms. Arias contacted the Lake Wo rth office which would not assign the case to an invest igator until Ms. Arias entered

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more information into the computer database. She

completed the necessary data entry, then erroneously

requested an out-of-town inquiry (OTI) or home visit rathe r

than a home study. Evelyn Diez Collins, a protective

investigator for District 9, was assigned the case and

conducted the OTI, a home visit for the limited purpose o f

determining if the mother c ould meet the medical needs o f

the child. Ms. Collins met wit h the mother at the family's

apartment and noted that it wa s clean but had no baby toys

or furniture, just one adult bed. She told the mother that she

needed to purchase a crib and that there w ould be a follow-

up visit to check for the crib the following week. There was

no subsequent visit and no co mplete home study. A home

study would have included an evaluation of the family's

finances, criminal background investigations, child abuse

registry checks, and interviews with all adults in the home

and part-time caregiversin the maternal grandfather's home

where the mother claimed she left the child while she worked, and checks on other si blings, including another child

who was living in another state with the natural father.

Hospital social workers repeatedly called Ms. A rias to find

out what DCF was doing. They obtained Ms. Collins’ name

from Ms. Arias, and called her at the Lake Worth office to

express concern. They al so called the matter to the

attention of DCF program admi nistrator, Stephen Estes, who

supervised Mr. Boyack, and contacted Mr. Estes’supervisor,

Doris Pitts. Mr. Estes told Ms . Arias that DCF District 11

could, in fact, place a hold on the child and instructed her to

review the case with DCF's lawy ers for further instructions.

After her consultation with a me mber of the legal staff on

December 13, 2000, Ms. Aria s developed a plan of action

that required, prior to Marissa 's release from the hospital,

four tasks had to be performed: (1) conduct a home study;

(2) staff the case with the child protection team to review the

medical records for evidence of child abuse; (3)contact the

child's natural father in another state; and (4)conduct

criminal background investigations of the mother and he r

boyfriend. When a hospital social worker did not receive a return telephone call from Mr. Estes, she called his

supervisor, Ms. Pitts di rectly who called Ms.

A rias. Ms. Arias

told her that Mr. Estes had already directed her to talk to a staff attorney.

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February 2, 2008

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A t 3:30 P.M., on December 13, 2000, Ms. Arias received a

telephone call from Ms. Collins, who had visited the family

home, reporting that Ms. Collin s believed the mother would

be able to take care of the ch ild with the outpatient services

in place. Ms. A rias notified the hospital of the report.

Although Ms. Collin's notes indicate that she knew that the

mother's boyfriend was in jail, she later testified that she ran

the criminal background investig ations and found no criminal

records for either the mother or her boyfriend. There is no

evidence that any other tasks outlin ed in the plan of action

were undertaken.

On December 14, 2000, Ms. Arias began contacting the

natural mother for the purpose of having the child picked up

from the hospital, but the mother said she had a headache

and was not feeling well. Ms. Arias also sensed that the

mother was concerned about her losing her job at a

restaurant. Ms. Arias talked to the mother's brother, who

said that the mother cares about the child but does not show

emotions, and that he would bring her to get the child the

following day. He added that, if the mother was not there the

following day, the state could take the child into custody.

Marissa was discharged from the hospital to go home with

her mother on December 15, 2000, while MCH social

workers were making telephone calls to DCF to protest that

decision.

On the following day, Mr. Boyack attempted to transfer the case for follow-up to make sure the mother complied with

medical referrals, noting in an e- mail that "Evelyn's [Collins']

home study did not reveal any threat to the child." The e- mail was sent to District 9 supervisor, Eleanor Parker, but

there is no evidence that s he ever responded or that she

adequately supervised the work of Ms. Collins so that she

would know that the assumption that a home study had been

conducted was incorrect. Marissa's mother did keep most o

f

the scheduled outpatient appoi ntments until she missed one

at MCH on January 8, 2001. Ms. Collins was notified by Mr. Estes and asked to visit the home to investigate whethe

r

the services had been provided at another closer hospital,

but she never did.

On January 11, 2001, Marissa's mother left her in the

custody of her boyfriend while she was working. The

boyfriend called her at work to tell her the child was ill.

SPECIAL MASTER’S FINAL REPORT – SB 46 (2008)

February 2, 2008

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Marissa, unresponsive and in a coma when her mothe r

arrived home, was transported by paramedics to the

emergency room at Bethesda Hospital. She had a severe

brain (subdural hematoma) and spinal injuries and lesions

on her legs that appeared to be cigarette burns.

A nurse calledthe Lake Worth Police Department but there

was apparently another delay in relaying information to the abuse hotline, while the boy friend disappeared and was

never charged. Even after Marissa received her severe injuries with knowledge that two other children had died due

to confusion regarding transfers among DCF Districts 9, 10,

and 11, District 9 Su pervisor, Patti Mattison, attempted to

transfer Marissa’s case to a diffe rent investigat ive unit within

District 9. She was told by Ms. Parker that her unit, in which

Ms. Collins worked and which had all of the information on Marissa's case, had never actually accepted the transfe

r

from Mr. Boyack.

Marissa was transferred to the trauma center at Delray Medical Center for surgery to relieve the bleeding and

swelling in her brain, placed on a mechanical ventilator, had

a tracheotomy to open her airways. She also had a Foley

catheter and an abdominal feeding tube inserted.

Subsequently, Marissa has had leg and hip surgeries, is

expected to need additional su rgeries, and to require an

intense level of care thr oughout her life. Due to he

r

permanent brain damage, Mari ssa cannot walk without

assistance, cannot communicate verbally, suffers from leg

weakness and hip dysplasia, an d will never be able to care

for herself.

Grand Jury Report and Recommendations

The grand jury supported DCF’s decision to terminate the

employment of Supervisor Patti Mattison and made the

following additional recommendat ions: (1) that Superviso r

Eleanor Parker and Investi gator Evelyn Collins be

terminated from employment; (2) that Steve Estes be placed

on a performance improvement plan; (3) that Superviso r

Robert Boyack be reassigned to the position of investigato r

and trained appropriately; (4) that Investigator Shirley Arias

receive remedial training; (5) that Dr. Biehler at MCH not

serve as a member of both t he child advocacy team and the

child protection team, so that two separate groups could

meet the statutory requirem ent of providing independent

SPECIAL MASTER’S FINAL REPORT – SB 46 (2008)

February 2, 2008

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reviews of cases; (6) that internal operational procedures

and communications between districts be improved; and (7)

that then DCF Secretary Kear ney publicize the abuse hotline

by following specific steps outlined by the grand jury.

Claimant's Current Living Situation

After the termination of the pa rental rights of her natural

parents, Marissa was adopted by Dawn and Rick Amora,

who formerly operated Kid's Sanctuary, a licensed foste r

care home in Palm Beach County. The Amoras have

adopted other children with special needs, and the family has now moved to Marianna.

Compensation Estimates

The life care plan for Marissa, prepared by Certified Life

Care Planner Lawrence Forman, M.Ed., has a present value

cost of $20,600,000.00. DCF's experts, Habilitationist Sharon Griffin, M.Ed. and Econom ist Bernard F. Pettingill,

Jr., Ph.D.,developed a life care plan for Marissa with a present value cost of $19,7 67,867.00. Marissa's past

medical care and expenses , including liens, total

$458,719.89.

LITIGATION HISTORY: Civil Litigation

The Amoras, as Marissa's parents and guardians, filed a civil tort action alleging negligence against DCF. A juryawarded

them over $35 million doll ars and held DCF 75 percent

negligent in causing Marissa's injuries. A final judgment was

entered ordering DCF to pay $26,849,849.06. DCF

appealed the judgment and the District Court of Appeal

affirmed the lower court, noting t he extent of Marissa's injurie

s

and DCF's failure to protect her, in a written opinion that stated, in

relevant part:

Under the facts of this case, the jury could

conclude that DCF’s inaction unreasonably

exposed Marissa to physical abuse leading to traumatic brain and spin al injury requiring

dependency on caregivers for the rest of her life. Dr. Miller, DCF’s own expert, agreed that a CPT review of Marissa’s available charts and

medical history would hav e shown that Marissa

more likely than not was the victim of abusively-inflicted injuries. Furthermore,

Dr. Miller agreed that medical information was

SPECIAL MASTER’S FINAL REPORT – SB 46 (2008)

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available before December 15, 2000 that could have allowed the health care professionals to

determine that this ch ild had suffered physical

injuries of a fractured left clavicle and left scapula due to abuse. This evidence could

lead a jury to reasonably conclude that it was foreseeable to DCF that if Marissa was

released to her mother without further

investigation, she could sustain more abuse.

Dept. of Children and Family Services v.

Amora , 944 So. 2d 431 (2007).

Guardianship Arrangements

The probate division of the Circuit Court for Jackson County,

Florida, has designated Dawn Amora as guardian over the

person and property of Marissa. Of the funds previously

received, $100,000 has been pl aced in the Marissa Lynn

A mora Guardianship account. Mrs. Amora’s applications fo r

disbursements from that account have to be reviewed and approved by the court. It is appropriate for the state to pay

claim bill funds into the sa me account to care for and

compensate Marissa.

CLAIMANT’S POSITION: Dawn and Rick Amora, as paren ts and guardians of Marissa,

support the passage of the claim bill. They agree that the bill

requires amending to direct the payment of $26,849,849.08,

based on allocation of negligence in the jury verdict, not the

total for damages that is over $35 million. Twenty percent o f

the fault was allocated to MCH, and 5 percent to the mother.

RESPONDENT’S POSITION: In a letter dated November 9, 2007, and at the hearing held

on November 27, 2007, DCF repo rted to the special masters

that it would, hopefully by t he time of the 2008 legislative

session, negotiate a settlement providing Marissa with just

compensation, so that DCF couldsupport a bill providing a reasonable settlement given her medical condition, and curren

t

and future needs.

Based on the evidence pr esented at the hearing, DCF

apparently intended to enter into negotiations to reduce the

amount of the claim bill, assu ming that the Amoras could

continue to get services from Medicaid and/or the Medicaid

Waiver Program. Although DCF has not reported the results

of any such negotiations to t he special masters, Ms. Amora

testified that Medicaid has terminated the services and

SPECIAL MASTER’S FINAL REPORT – SB 46 (2008)

February 2, 2008

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required reapplications six time s, and it does not cover many

essentials, including behav ior therapy, diapers, a

handicapped equipped van, r ehabilitation case manager,

and nursing after she reaches age 21. The Amoras waited

9 months to get Medicaid to provide the appropriate

wheelchair for Marissa, and the re sulting scoliosis will likely

cause her to need surgery to im plant additional spinal cord

rods.

The Medicaid Waiver Program has also proved unsatisfactory to the Amoras. A contractor paid through the

Waiver to make modifications to the home in Marianna to accommodate Marissa’s disabilities, inexplicably, left the job

unfinished with a bath tub in Ma rissa’s bathroom installed in

front of a door leading to her brothers’ adjacent bedroom.

On November 16, 2007, the Am oras received notice that

Marissa was eligible for the Waiver enrollment on

February 22, 2006, when she was diagnosed with cerebral

palsy, but that she must rema in on a waiting list with

approximately 15,000 people, unl ess she has a crisis, such

as becoming homeless or dangerous.

OTHER ISSUES: In addition to the amendment regarding the amount of the

claim, amendments to the w hereas clauses are intended to

reflect the facts more accura tely and to conform to the

wording in companion House Bill 443.

CONCLUSIONS OF LAW: A s the District Court of Appeal held, in affirming the lower cour t

judgment and the jury verdict, there was unquestionabl y

"competent substantial evidence that DCF was neg ligent and tha t

the negligence was the proximate cause of the injuries sustained

by 2-year-old Marissa Amor a.” Id. 944 So.2d 431.

ATTORNEYS’ FEES AND A ttorneys’ fees are limited to 25 percent as required b y

LOBBYIST’S FEES: s. 768.28(8), F.S., and have been completely deferred pending

passage of the bill. Costs of $102 ,837.79 were incurred during th e

preparation and 2-week civil trial of the case and the appeal to th e

district court, and those costs have also been deferred. Theentire $100,000 that has been re covered was transferr ed to the Marissa

Lynn Amora Guardianship , subject to the jurisdiction of the Circui

t

Court in Jac kson County.

The lobbyist fee is an additional 6 percent of the final claim bill,

contrary to the provisions of section 3 of the bill.

SPECIAL MASTER’S FINAL REPORT – SB 46 (2008)

February 2, 2008

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RECOMMENDATIONS: For the reasons set forth in this report, I recommend that

Senate Bill 46 (2008) be reported FAVORABLY, as

amended.

Respectfully submitted,

Eleanor M. Hunter

Senate Special Master

cc: Senator Al Lawson

Representative Marti Coley

Faye Blanton, Secr etary of the Senate

Stephanie Birtman, House Committee on Constitution and Civil Law

Counsel of Record