07-004294CB In Re: Senate Bill 60 (Adrian Fuentes) vs. * Status: Closed DOAH Final Order on Friday, May 2, 2008.

Summary: Unopposed claim for $1.6 million based on court-approved settlement for the South Broward Hospital District to compensate Petitioner for cerebral palsey by failure to diagnose and properly treat intrauterine growth ristriction is recommended favorably.

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measured and was normal, indicating that Adrian’s brain and

kidneys were functionin g normally on that day.

Dr. Rosendorf directedthat the report be "STAT faxed" to the

ordering midwife, Ms. Harrison, at the clinic. There is no

evidence that the report was ever faxed. There is no fa x

number for the clinic listed on the report and no record to confirm

either its transmission or receipt. A ccording to the undisputed

report by Counsel for the Claimant, various hospital employees

testified that they were unaware of a "STAT fax" policy and staf f

at the clinic testified that t hey have never before received a

report labeled "STAT fax," but they did know that an ultrasound

report with results similar to those in the Fuentes report were,

according to clinic policy, to be brought immediately to the

attention of a nurse midwife or doctor.

Two days later, on April 25, 2002, Mrs. Fuentes came to the

clinic. Her counsel reported that she wa s there for a regularl y

scheduled appointment, but the re port of Sharon Griffin, a

disability analyst, indicates that Mrs. Fuentes went to the clini c

because she did not feel the baby moving that morning. At the

clinic, she was examined by a midwife and was about to leave

when she was rushed back into the examining room afte r

someone at the clinic apparently noticed the ultrasound report.

Following additional testing, the staff called fire rescue to

transport Mrs. Fuentes to Memo rial Hospital for an emergenc y

caesarean section. Adrian Fuentes was born within 32

minutes of his mother'sarrival at the hospital with abnormall y

low Apgar scores and no amniotic fluid. Apparently, no follo w

up tests for neurological deficits we re performed. After a sta y

in theneonatal intensive ca re unit for hypoglycemia, an

abnormally fast respiratory rate , jaundice and IU GR, Adrian was

discharged home with his parents.

During his first year, Adrian wa s diagnosed and hospitalized

for gastroesophageal reflux, fe ver and thyroid abnormalities.

When he was approximately a y ear old, and still unable to

crawl, sit up on his own, or hold his bottle, an MRIconfirmed

that Adrian has cerebralpalsy, characterized by spastic

triplegia (three severely im paired limbs, his right arm and

both legs).

Physically, Adrian is still unable to walk on his own and uses

a wheelchair. He is unable to perform most acti vities of dail y

living including bathing, brushing his teeth, dressing, and using

the bathroom without assistan ce. Cognitive ly, he shows

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Page 3

significant pervasive develo pmental delays. Given his

handicaps, Adrian is expected never to be mainstreamed in a

regular classroom, to achi eve independent ambulation, to

have any earning capacity, or to live independently.

The life care plan projects a cost of $9,096 ,782 for Adrian's

medical care, therapies, surger ies, transportation, supplies,

medications, equipm ent, residential m odifications, and

attendant care.

LITIGATION HISTORY: In 2004, a civil suit for damages was filed on behalf of Adrian in

Broward County circuit court. In a 2005 partial settlement, the

employer for the midwife agr eed to pay $250,000. In a

subsequent partial settlement, in 2006, the radiologist and his

group agreed to pay $2,000,000 into a special needs trus t

created for the benefit of Adrian. In July 2007, the court entered

a consent final judgment approv ing the settlement with the

SBHD for $1,800,000. Of that amount, $200,000 was paid,

leaving the remaining balance of $1,600,000 subject to this

claim bill. All Medicaid liens were paid from the proceeds of the

settlements.

CLAIMANT’S POSITION: The claim bill should be approved. Liability is admitted. I f

approved, the total recovery from all parties will be $4,050,000, approximately half of the projected life care plan

cost.

SBHD’S POSITION: SBHD'S counsel conceded that eith er its employee at the hospital

who was given the "STAT fax" order, or its employee at the clini c

who failed to alert a nurse midwif e or doctor of its receipt mus t

have been negligent.

CONCLUSIONS OF LAW: Competent substantial evidence supports the conclusion that

Adrian Fuentes disabilities are the result of the failure to

deliver him before his mother loss amniotic fluid, or up to an

estimated 12hours earlier. An earlier delivery was the

standard of care expected in a case of IUGR. His

permanent and severe disabilities were directly and

proximately caused by the failu re of SBHD employees to

handle an ultrasound repor t expeditiously as directed and as

their policy provided.

ATTORNEYS’ FEES AND In compliance with s. 768.28(8), F.S., but not with Section 3

LOBBYISTS’ FEES: of this claim bill, Claimant's attorneys' fees are set at 25

percent. There is no lobbyist for the bill at this time. As o f

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October 9, 2007, the attorn eys reported having incurred

costs of $115,246.02 for representing the Claimant. The

Claimants entered into an agreement to pay attorneys’ fees

and costs.

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

Senate Bill 60 (2008) be reported FAVORABLY.

Respectfully submitted,

Eleanor M. Hunter

Senate Special Master

cc: Senator Jeremy Ring

Representative Evan Jenne

Faye Blanton, Secr etary of the Senate

House Committee on Constitution and Civil Law

Tom Thomas, House Special Master

Counsel of Record