07-004297CB In Re: Senate Bill 68 (Tyler Giblin) vs. * Status: Closed DOAH Final Order on Friday, May 2, 2008.

Summary: Unoppposed claim bill for $700,000 based upon settlement agreement. Recommend favorably, with amendment to adjust allocation of payment and to clarify payor.

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been delivered at a tertiary facility such as Shands Hospital in Gainesville rather than at a community hospital. There is

no evidence that the failur e to diagnose the condition

prenatally was a violation of the standard of care.

Dr. Yves Lande-Pierre, the physi cian who delivered Tyler,

detected a heart murmur in Tyler within an hour of his birth.

A ccording to one of the claim ants’ experts, pediatric

cardiologist Dr. William Hellenbrand, the heart murmur was a “red flag” that should have caused Dr. Pierre to request an

immediate cardiac consultation for Tyler even though he did

not exhibit any other symptoms indicative of a heart problem.

On the evening of December 14, Tyler’s parents reported to the nurses that Tyler turned bluish or purplish when he was

crying. This is referred to as a cyanotic episode and can be

indicative of a heart problem. The nurses did not document

this episode in Tyler’s chart or report it to Dr. Pierre, even

though Dr. Pierre’s notes from her initial evaluation of Tyle

r

requested “close observation” of Tyler because of the heart

murmur. The nurses’ failure to document and report this

episode to Dr. Pierre was a viol ation of the standard of care.

Dr. Pierre examined Tyler on t he morning of December 15.

She noted an increase in t he heart murmur and, therefore,

ordered a chest x-ray and a four-extremity blood pressure test. This is the proper pr ocedure when a heart problem is

indicated.

The nurse who administered the four-extremity blood pressure test reported result s that were generally within

normal limits, but according to Dr. Hellenbrand, there were

several anomalies in the resu lts that should have indicated

to Dr. Pierre that Tyler ma y have a heart condition that

warranted a cardiac consultation. More significantly, according to another expert fo r the claimants, pediatric

cardiologist Dr. Charles Kleinman, the test could not have been administered correctly because the reported results

were not possible in a child that had hypoplastic left heart

syndrome.

Tyler had another cyanotic episode where he turned bluish or purple when crying on t he morning of December 15.

Tyler’s parents reported the episode to the nurses, but the nurses did not document the episode in Tyler’s chart o

r

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report it to Dr. Pierre. The nurses’ failure to document and

report this episode to Dr. Pie rre was a violation of the

standard of care.

Dr. Pierre scheduled a cardiac consultation for Tyler at Shands on December 16. She di d not schedule it on a “stat”

or emergency basis because she did not believe that Tyler’s

condition was serious based upon the information that she

had at the time.

Tyler’s condition worsened sign ificantly between midnight

and 5:00 a.m. on December 16. The nurses called

Dr. Pierre at 5:15 a.m. that morning and told her that Tyle r

was “pale and dusky” and having difficulty breathing and that

she needed to come in to the hos pital. By the time that

Dr. Pierre got to the hospita l at 6:45 a.m., Tyler was

cyanotic, his oxygen level was 70-80 percent, and his blood

gas pH level was an alarmingly low 6.6. The experts referred to this event as a “crash.”

After conferring with a pediatric cardiologist at Shands, Dr. Pierre administered medication to stabilize Tyler’s heart

condition and put Tyler on a ventilator. Thereafter, Tyler was

transferred to Shands by helicopter for further treatment.

On December 22, Tyler was transferred from Shands to

Miami Children’s Hospital for open heart surgery. He

successfully underwent the first stage of the Norwood

procedure, but he was unable to undergo the second and

third stages of the surgery bec ause of the damage to the

right side of his heart that wa s caused by the “crash” on December 16. As a result, Tyler was transferred back to

Shands to await a heart transplant.

Tyler received a heart transplant on June 3, 2005. He is now almost 3years old, and he is doing well physically. His

treating physician, Dr. Jay Frickl er, a pediatric cardiologist at

Shands, characterized Tyler as a “medical miracle.”

The claimants experts’ testified in deposition that the “crash”

could have been avoided if Tyler’s had been properly

diagnosed on December 14 or 15. They further testified that

but for the “crash” on Decem ber 16 and the damage that it

did to the right side of Tyler’s heart, it is more likely than not

that Tyler would have been able to undergo all three stages

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of the Norwood procedure. St ated another way, but for the

“crash,” Tyler likely would not have required a heart

transplant.

There are concerns about Ty ler’s developmental delay,

which the claimants’ experts attribute to brain damage

caused by oxygen deprivation a ssociated with the “crash” on

December 16. Dr. Robert B aumann, a pediatric neurologist,

reported that “Tyler show s major delays in important

cognitive functions evidenced by deficits in speech and in imaginative plan” and that Tyler’s motor skills “are probably

mildly impaired.” Tyler is currently in speech therapy twice a

week.

It is likely that Tyler will requ ire additional heart transplants

as he gets older because th e average life span of a

transplanted heart is 12-13 year s. Tyler may have required

a heart transplant even if he was able to undergo all three

stages of the Norwood procedure, but the life span of that

procedure is longer -- 20 years -- and that procedure

generally has fewer long-term side effects than a heart

transplant.

It is expected that Tyler will have the cognitive capacity to live independently as an adult and, with therapy, he will

reach or come close to reaching normal developmental levels. One of the claimants’ experts, certified rehabilitation

counselor Dr. Paul Deutsch, opined that Tyler’s chronic

medical condition will not be co nducive to his participation in

gainful employment. However, as noted by Tyler’s treating cardiologist, Dr. Frickler, Tyler is too young make such a

determination at this time.

The report prepared by the clai mants’ expert economist,

Dr. F.A. Raffa, estimated that Tyler’s economic damages

were between $22.3 m illion and $22.6 million. Those figures

were based upon a comparison between a healthy child and a child with Tyler’s medical conditions. The claimants’

attorney acknowledged at th e Special Master hearing that

those figures would not have been presented at trial and that

a more accurate comparison would be between a child with

hypoplastic left heart syndrome who was able to undergo the

Norwood procedure and a child,like Tyler, who had that

condition but had to undergo a heart transplant.

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MRHS is self-insured up to $2 million. It has an excess insurance policy over that amount, but that policy is not

implicated because this clai m was settled against MRHS fo

r

$900,000. MRHS reports that the claim will be paid from the

general revenues of the hospita l, and that "the hospital has

the ability to pay the claims bill without detrimental impact to

hospital operations or provis ion of any service at the

hospital."

Dr. Pierre is not an employee of the hospital. She had staf f

privileges at Monroe Regional M edical Center at the time o f

Tyler’s delivery. She no lon ger has staff privileges because

she is not board certified, wh ich the hospital now requires.

A special needs trust has been established for Tyler. The trust provides that, consistent with federal law (e.g., 42 USC

§ 1396p(d)(4)(A)), any funds remaining in the trust at Tyler’s death must first be used to reim burse the State for benefits

provided to Tyler under theMed icaid program. Then, if any

funds are remaining, they will go to Tyler’s parents. Tyler’s

grandmother is the tr ustee of the trust.

Tyler’s father is employed by th e State as a forest ranger at

the Tomoka State Park in Ormond Beach. Tyler is covered

by the Blue Cross and Blue Shield (BC/BS) insurance that

his father has through his em ployment with the State.

Tyler’s mother is not been able to work full-time outside o f

the home because Tyler cannot to go to daycare as a result

of his medical conditions. She works about one day a week

at Disney as a server and she also works as a bartende r

during Bike Week. Tyler’s grandmother watches Tyler when his mother is at work.

LEGAL PROCEEDINGS: In March 2006, the claimants f iled a medical malpractice suit

against MRHS, the hospital di strict, and several of the

physicians involved in the diagn osis and treatment of Tyler,

including Dr. Pierre. The suit was filed in circuit court in

Marion County.

In July 2007, the claimant s entered into a mediated

settlement agreement with MRHS pursuant to which MRHS

agreed to the entry of a Consent Final Judgment against it in

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the amount of $900,000 and the claimants agreed to

voluntarily dismiss with prejudi ce their claims against the

hospital district. MRHS agr eed to pay the claimants

$200,000 under the sovereign i mmunity cap and furthe r

agreed to support a claim bill for the remaining $700,000.

On July 25, 2007, the circuit court entered an Orde r

approving the settlement between MRHS and the claimants.

An amended Order was enter ed on November 7, 2007,

approving the allocation of the net settlement proceeds

between Tyler’s special needs trust (75%) and his parents

(25%). The Orders authorized the reservation of $1,838.09

for an outstanding Medicaid lien and the reservation o f

$645,401.76 for an outstanding BC/BS lien. (The claimants’

attorney reported at the Spec ial Master hearing that he is

working to get the BC/BS lien discharged in full.)

MRHS paid the claimants $200,000 under the sovereign

immunity cap. The claimants received $100,000 of that amount, with $75,000 going into Tyler’s special needs trust

and $25,000 going to his parents. The other $100,000 went

to the claimants’ attorney, with $50,000 going to attorney’s

fees and $50,000 being applied to costs. There are still

outstanding costs of approxim ately $135,000, which will be

paid from the proceeds of the claim bill.

The claimants voluntarily dismissed their claims against

Dr. Pierre and the other physicians. As to Dr. Pierre, the

claimants were concernedthat if they had gone to trial and

lost, then they would have been required to pay Dr. Pierre’s costs and the costs of their attorneys, which wouldhave

reduced the amount of the money from the settlement with

MRHS that would have gone to Tyler. As explained by

Tyler’s father at the hearing, th ey dismissed the suit against

Dr. Pierre because they “were not willing to gamble with Tyler’s money.”

CLAIMANT’S POSITION: The nurses were negligent in their care of Tyler because,

among other things, they failed to report the cyanotic episodes to Dr. Pierre and they failed to correctly perform

the four-extremity blood pressure test.

The nurses’ negligence contributed to the delayed

diagnosis of Tyler’s heart condi tion, and if the condition had

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been timely diagnosed, Tyler wo uld have not have suffered

the “crash” on December 16 wh ich damaged the right side o f

his heart and caused brain damage and required him to undergo a heart transplant rat her than open heart surgery.

The amount of the mediated settlement in this case is

reasonable in light of the signi ficant life-long medical care

that Tyler will need.

HOSPITAL’S POSITION: MRHS supports the bill.

CONCLUSIONS OF LAW: Sovereign immunity extends to “corporations primarily acting

as instrumentalities . . . of the state, county, o r

municipalities.” See § 68.28(2), F.S.; Pagan v. Sarasota

County Public Hospital Board , 884 So.2d 257 (Fla. 2d DCA

2004). MRHS was deemed to be an instrumentality of the

hospital district by the Attorney General in an opinion dated

December 8, 2006 and the circui t court in Marion County has

reached the same conclusion in se veral cases. As a result,

MRHS is entitled to sovereign immunity under § 768.28, F.S.

The public policy basis for ex tending sovereign immunity to

private entities such as MRHS has recently been questioned

by two appellate courts. See University of Florida Board o f

Trustees v. Morris , 32 Fla. L. Weekly D1803 (Fla 2d DCA

July 27, 2007) (Altenbernd, J., concurring), rev. denied , 2008

Fla LEXIS (Fla. Jan. 7, 2008); A ndrews v. Shands at

Lakeshore, Inc. , 33 Fla. L. Weekly D30 (Fla 1st DCA Dec.

20, 2007).

The nurses are employees of MRHS and they were acting

within the scope of their em ployment when providing

services to Tyler. As a re sult, the nurses’ negligence is

attributable to MRHS.

The nurses had a duty to provi de competent medical care to

Tyler. They breached this dut y and violated the standards o f

care for nursing personnel by failing to report the cyanotic episodes to Dr. Pierre and by failing to properly perform the

four-extremity blood pressure test.

The nurses’actions and inactions contributed to the delayed

diagnosis of Tyler’s heart condi tion. However, Dr. Pierre’s

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failure to order an immediate cardiology consultation when

she detected a heart murmur shortly after Tyler’s birth also

contributed to the delayed diagnosis of Tyler’s heart

condition.

The delayed diagnosis of Tyle r’s heart condition led to his

“crash” on December 16 because it is more likely than not that Tyler would have been tr ansferred to Shands or anothe

r

tertiary facility had his cond ition been diagnosed sooner.

Tyler was not a candidate for t he second and third stages o f

the Norwood procedure becaus e of the damage caused by

the “crash,” and he also suffered brain damage during the “crash” that caused his developmental delay.

The amount of damages agreed to by MRHS is reasonable,

even though Dr. Pierre likely shares some of the responsibility for Tyler’s conditi on. Indeed, the life care plan

prepared for Tyler reflects that the cost of a transplant is

between $650,000 and $700,000 and Tyler is expected to

require multiple transplants ov er the course of his life.

Moreover, the non-economic damages (e.g., pain and suffering) of Tyler and his parents could very well have

exceeded the settlement amount had the case gone to jury

trial.

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

Legislature.

ATTORNEYS’ FEES AND The claimants’ attorney provi ded an affidavit stating that that

LOBBYIST’S FEES: attorney’s fees will be capped at 25 percent of the amount

awarded by the claim bill in accordance with §768.28(8),

F.S.

Lobbyist’s fees are not included in the 25 percentattorney’s fees. Lobbyist’s fees will be an additional 4 percentof the

amount awarded by the claim bi ll, which would be $28,000

based upon the $700,000 claim.

The Legislature is free to limit the fees and costs paid in

connection with a claim bill as it sees fit. See Gamble v.

Wells , 450 So. 2d 850 (Fla. 1 984). The bill does so by

stating that “[t]he total amount paid for attorney’s fees,

lobbying fees, costs and other similar expenses relating to

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this claim may not exceed 25 percent of the amount

awarded [by the bill].”

If this language remains in the bill (and the bill is amended as recommended below to reflect the allocation approved by

the circuit court), the claimants will receive a total o

f

$525,000, with $393,750 going in to Tyler’s special needs

trust and $131,250 going to his parents. The remaining

$175,000 will go to attorney’s f ees, costs, and lobbyist’s

fees.

If this language was not in the b ill (and the bill is amended as

recommended below to reflect the allocation approved by

the circuit court), the claim ants would receive approximately

$362,000, with approxim ately $271,500 going into Tyler’s

special needs trust and approx imately $90,500 going to his

parents. The claimants’ atto rney would receive a total o f

approximately $310,0 00 ($175,000 for attorney’s fees and

approximately $135,000 for cost s), and the lobbyist would

receive $28,000.

OTHER ISSUES: The bill identifies the Marion Co unty Hospital District as the

entity responsible for payment of the claim. The parties

agree, and I recommend that th e bill be amended to reflect

MRHS as the entity responsible for payment because it is

responsible for operating the ho spital pursuant to a lease

from the hospital district.

The bill requires the entire cl aim to be paid into Tyler’s

special needs trust. The parties agree, and I recommend

that the bill be amended to require payment of the claim in

accordance with the allocation approved by the circuit court,

i.e. , 75 percent into Tyler’s special needs trust and 25

percent to his parents.

The bill requires any funds re maining in Tyler’s special needs trust upon his death torevert to the General Revenue

Fund. The parties agree, and I recommend that the bill be

amended to remove this langua ge because the bill is being

paid from the hospital’s funds, not State funds.

The bill should be also amended to include the standard

language requiring payment of Medicaid liens prior to

disbursing any funds to the claimants. See § 409.910, F.S.

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RECOMMENDATIONS: For the reasons set forth above, I recommend that Senate Bill 68 (2008) be reported FAVORABLY, as amended.

Respectfully submitted,

T. Kent Wetherell

Senate Special Master

cc: Senator Charlie Dean

Representative Marcelo Llorente

Faye Blanton, Secr etary of the Senate

House Committee on Constitution and Civil Law

Tony DePalma, House Special Master

Counsel of Record