08-004305CB In Re: Senate Bill 46 (Otero) vs. * Status: Closed DOAH Final Order on Friday, May 8, 2009.

THE FLORIDA SENATE

SPECIAL MASTER ON CLAIM BILLS

Location

402 Senate Office Building

Mailing Address

404 South Monroe Street

Tallahassee, Florida 32399 - 1100

(850) 487 - 5237

DATE COMM ACTION

2/12/09 SM Fav/1 amendment

March 10 , 2009

Th e Honorable Jeff Atwater

President, The Florida Senate

Suite 409, The Capitol

Tallahassee, Florida 32399 - 1100

Re: SB 46 (2009) Î Senator Jeremy Ring

HB 647 (2009) Î Representative Rick Kriseman

Relief of Raul Otero

SPECIAL MASTERÓS FINAL REPORT

THIS IS AN UNOPPOSED EQUITABLE CLAIM FOR $2

MILLION AGAINST THE SOUTH BROWARD HOSPITAL

DISTRICT FOR MEDICAL MALPRACTICE IN THE

COURSE OF TREATING RAUL OTERO AT MEMORIAL

REGIONAL HOSPITAL IN 2003, WHICH CAUSED A

CATASTROPHIC BRAIN INJURY RENDERING MR.

OTER O A COGNITIVELY IMPAIRED QUADRIPLEGIC.

FINDINGS OF FACT: On March 28, 2003, Raul Otero sustained serious bodily

injuries in a motorcycle accident, during which he was run

over by a tow truck. Mr. Otero was taken to Memorial

Regional Hospital (MRH), a pu blic facility located in

Hollywood, Florida, which the South Broward Hospital

District owns and operates. At the hospital, Mr. Otero's

spleen was surgically removed and his lef t leg amputated

above the knee.

One of the physicians who treated Mr. Otero at MRH was

Michael Langone, M.D. Dr. Langone ordered a m agnetic

resonance imaging ( MRI ) scan for Mr. Otero, in hopes of

determining the cause of a loss of function that the patient

was experiencing in his left arm. The MRI was medically

SPECIAL MASTERÓS FINAL REPORT Î SB 46 (2009)

March 10, 2009

Page 2

necessary Ï but did n ot need to be done on an emergency

basis. On April 16, 2003, at about 10:00 p.m., Mr. Otero was

taken from the intensive care unit (ICU) to the MRI suite.

Although he was intubated and breathing with the help of a

ventilator, Mr. Otero was awake and aler t that evening. A

registered nurse and a respiratory therapist accompanied

him to the MRI suite. While Mr. Otero was away from the

ICU, the respiratory therapist used an ambu bag manually to

pump oxygen into the patient's lungs.

From the MRI suite, the nurse, Eileen Humphreys, R.N.,

called Dr. Langone, to ask whether Mr. Otero, who had a

metal pin in one of his fingers, should be placed in the MRI

scanner. Dr. Langone informed the nurse that the metal

would not interfere with the scan, and he directed that the

MRI be completed as soon as possible.

Mr. Otero was placed into the MRI scanner at about 10:35

p.m. Although he had been sedated with 2 milligrams of

Versed (midazolam), Mr. Otero immediately panicked and

became frightened. The nurse gave him two boluses,

amounting to 5 cubic centimeters apiece, of the sedative

Diprivan (propofol), and Mr. Otero was again placed into the

scanner. He became frantic and started thrashing about,

pulling at his tubes. At 10:45 p.m., the nurse, Ms.

Humphreys, plac ed a telephone call to Dr. Lawton W. Tang,

a surgical resident at MRH, and informed him that the patient

was in the scanner and highly agitated.

Dr. Tang was an employee of Mount Sinai Medical Center

(Mount Sinai). At the time of the subject incident, Dr . Tang

was in residency at MRH pursuant to an Affiliation

Agreement between Mount Sinai and MRH, under which

MRH operated a Surgical Residency Program. While

working at MRH, Dr. Tang was under the direct supervision

and control of the attending physicians at MRH. The

Affiliation Agreement between Mount Sinai and MRH

provided that while resident physicians such as Dr. Tang

were on the premises of MRH, they would be agents of

MRH, exclusively.

When Dr. Tang received Ms. Humphreys' telephone call,

therefor e, he did so within the scope and course of his

agency relationship with MRH. Upon hearing the nurse's

summary of the situation, Dr. Tang concluded that the

SPECIAL MASTERÓS FINAL REPORT Î SB 46 (2009)

March 10, 2009

Page 3

highest priority was to calm the patient down, to prevent him

from hurting himself. Accordingly, Dr. Tang directed Ms.

Humphreys to administer 3 milligrams of Versed and 100

milligrams of succinylcholine , which latter is a paralytic

agent. The dosage of succinylcholine that Dr. Tang ordered

for Mr. Otero was sufficient to paralyze the patient

complet ely, making him unable to move or breathe on his

own.

At 10:58 p.m., Mr. Otero was given the medications that Dr.

Tang had prescribed. Within minutes, Mr. Otero's heart went

into ventricular fibrillation, meaning that the heart was

essentially trembling, rather than beating properly. This in

turn caused a cardiac arrest. A Code Blue was announced,

and CPR started promptly. A defibrillator was used to

administer an electric shock to Mr. Otero's heart. Dr. Tang

and his team arrived and continued the eff orts to resuscitate

Mr. Otero. These efforts succeeded in saving Mr. Otero's

life.

Unfortunately, however, during the period that Mr. Otero's

heart was not beating, he suffered from anoxia, which

means that too little oxygenated blood was being delivered

to his brain and other vital organs. The result was severe Ï

and permanent Ï brain damage.

This catastrophic injury has rendered Mr. Otero a

quadriplegic who is unable to speak or understand even the

simplest communications, in need of continuous, total car e.

He is incontinent and cannot feed himself. Mr. Otero will

never be able to work or perform any activities of daily living

on his own. His mother is currently Mr. Otero's fulltime

caregiver. She is pa id a salary of $3,000 per month out of a

special n eeds trust which was established for Mr. Otero.

Sharon Griffin & Associates, Inc., prepared a Life Care Plan

for Mr. Otero, which quantifies the future medical expenses

that will be incurred over the course of his lifetime. The

report prepared by Mr. Ote ro's expert economist, Merle F.

Dimbath, Ph.D., which takes into account the Life Care Plan,

concludes that Mr. Otero's total economic loss, reduced to

present value, falls within the range of approximately $12

million to $12.5 million, the lion's share of which is

attributable to future medical expenses.

SPECIAL MASTERÓS FINAL REPORT Î SB 46 (2009)

March 10, 2009

Page 4

LEGAL PROCEEDINGS: In 2005, Ana Delgado, the mother and legal guardian of Mr.

Otero, brought suit on her son's behalf against the South

Broward Hospital District, Mount Sinai, and several

physicians, i ncluding Doctors Langone and Tang, who

participated in the care and treatment of Mr. Otero. The

action was filed in the Broward County Circuit Court.

Dr. Tang and Mount Sinai settled with the plaintiffs for $2

million. The South Broward Hospital Distr ict entered into a

mediated settlement agreement with the plaintiffs pursuant

to which the district agreed, in exchange for a release of

further liability, to the entry of a Consent Judgment in the

plaintiffs' favor, and against the district, in the sum of $2.2

million. The district agreed to pay (and has paid) the plaintiffs

$200,000 ($100,000 to Mr. Otero and a like sum to his

mother) under the sovereign immunity cap. (Each plaintiff's

net recovery from this payment was slightly less than

$15,000.) The district agreed to support the passage of a

claim bill for the remaining $2 million.

The settlement funds that Mr. Otero has received to date

have been placed in a special needs trust. In accordance

with federal law, see 42 U.S.C. § 1396p(d)(4)(A), any m oney

remaining in the trust at the time of Mr. Otero's death must

first be used to reimburse the State for any benefits he has

received under the Medicaid Program. As of the final

hearing, Mr. Otero had discharged a Medicaid lien in the

amount of approxim ately $140,000, which the State had

placed on the previously realized settlement proceeds that

were attributable to medical expenses. See Arkansas Dep't

of Health and Human Services v. Ahlborn , 547 U.S. 268, 126

S. Ct. 1752, 164 L. Ed. 2d 459 (2006). The re are currently

no outstanding Medicaid liens relating to benefits provided to

Mr. Otero.

The plaintiffs' lawsuit is still pending in the Broward County

Circuit Court against Dr. Langone (in his individual capacity),

whose medical malpractice insurance p olicy limit is

$200,000.

CLAIMANTÓS POSITION: The South Broward Hospital District is vicariously liable for

the negligent acts of its employees and agents, including but

not limited to:

SPECIAL MASTERÓS FINAL REPORT Î SB 46 (2009)

March 10, 2009

Page 5

Taking Mr. Otero for a non - emergent MRI scan at night

when he was n ot medically stable.

Proceeding with the MRI scan after the initial attempt had

failed due to the patient's agitation and panic, which

persisted despite sedation.

Ordering (and permitting) a registered nurse to

administer succinylcholine, which is tantam ount to a

general anesthetic.

Failing to have in place policies precluding the

administration of succinylcholine by unqualified

personnel.

THE DISTRICTÓS POSITION: The South Broward Hospital District supports the bill. The

district is self - insured and has set aside funds to pay the bill

should it be enacted. Payment of the bill will not impair the

district's abili ty to provide normal services.

CONCLUSIONS OF LAW: As provided in s. 768.28, F.S., (2008), sovereign immunity

shields the South Broward Ho spital District against tort

liability in excess of $200,000 per occurrence. See Eldred v.

North Broward Hospital District , 498 So. 2d 911, 914 (Fla.

1986)(§ 768.28 applies to special hospital taxing districts);

Paushter v. South Broward Hospital District , 664 So. 2d

1032, 1033 (Fla. 4th DCA 1995). Unless a claim bill is

enacted, therefore, Mr. Otero will not realize the full benefit

of the settlement agreement he has made with the district.

Under the doctrine of respondeat superior, the South

Broward Ho spital District is vicariously liable for the negligent

acts of its agents and employees, when such acts are within

the course and scope of the agency or employment. See

Roessler v. Novak , 858 So. 2d 1158, 1161 (Fla. 2d DCA

2003).

The nurse and respirato ry therapist who were involved in

carrying out the order to have an MRI scan performed on Mr.

Otero were employees of the district acting within the scope

of their employment on the night of April 16, 2003. Though

not an employee of the district, Dr. Tang , on the night in

question, was an agent of MRH pursuant to an express

agreement. He, too, was acting in the course and scope of

SPECIAL MASTERÓS FINAL REPORT Î SB 46 (2009)

March 10, 2009

Page 6

the agency when treating Mr. Otero. Accordingly, the

negligence of these actors is attributable to the district.

Each of the referenced individuals had a duty to provide Mr.

Otero with competent medical care. There is no genuine

dispute in this case that such duty was breached, with tragic

consequences . Had the MRI procedure been aborted after

the initial, failed attempt, as i t reasonably should have been,

(or not carried out until after Mr. Otero's condition had

stabilized), had Dr. Tang not directed Ms. Humphreys to

administer succinylcholine, or had the nurse refused to give

the succinylcholine, Mr. Otero would not have suff ered a

catastrophic brain injury on April 16, 2003. The negligence

of the district's employees and agents was a direct and

proximate cause of Mr. Otero's substantial damages.

The sum that the South Florida Hospital District has agreed

to pay Mr. Otero ($ 2.2 million) amounts to approximately 18

percent of Mr. Otero's total damages. Although there are

other parties whose negligence contributed to the injury

(some of whom already have settled with Mr. Otero), there is

no persuasive basis in the record for f inding that the district's

share of the fault should be fixed at less than 18 percent;

rather, the record supports the conclusion, which the

undersigned reaches, that the district's fault is at least that

much. The undersigned concludes that the settlemen t at

hand is both reasonable and responsible.

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

legislature.

ATTORNEYSÓ FEES AND Section 768.28(8), Florida Statutes, provides that "[n] o

LOBBYISTÓS FEES: attorney ma y charge, demand, receive, or collect, for

services rendered, fees in excess of 25 percent of any

judgment or settlement." The law firm that the Otero family

retained, Winston & Clark, P.A., has submitted a proposed

closing statement showing that, if Mr. Otero were awarded

$2 million under the claim bill at issue, the attorneys' fees

and lobbying fees would be limited to $500,000, or 25

percent of the compensation being sought. The Claimant's

attorneys urge, however, that $5,974 in costs be reimbursed

out side the 25 percent cap, which would leave the Claimant

with a net recovery of $1.49 million Ï about 74.7 percent of

the total proposed award.

SPECIAL MASTERÓS FINAL REPORT Î SB 46 (2009)

March 10, 2009

Page 7

In its current form, the instant claim bill provides that the

"total amount paid for attorney's fees, lobbying fee s, costs ,

and other similar expenses relating to the adoption of this act

may not exceed 25 percent of the total amount awarded

under this act." (Emphasis added). Unless the bill were

amended to remove costs from the foregoing limitation,

therefore, the costs (about $6,000) would need to be paid

out of the $500,000 earmarked for attorneys' and lobbying

fees.

OTHER ISSUES: At the hearing, the parties acknowledged that certain

language in the "whereas" clauses of the bill should be

amended to conform to t he parties' settlement agreement.

The revisions discussed were not material to the substance

of the bill.

As mentioned above, the bill would need to be amended if

costs were to be excluded from the 25 percent cap on fees.

Although s.768.28(8), F.S., doe s not require that fees and

costs be capped at 25 percent, the legislature is free to place

conditions on the amount of costs payable from the

appropriation, should the bill be approved. The undersigned

expresses no opinion on whether the Claimant's attor neys

and lobbyist, rather than the Claimant himself, should absorb

the litigation expenses incurred in prosecuting the Claimant's

case.

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

Bill 46 (2009) be reported FAVORABLY, with a technical

amendment to conform the "whereas" clauses to the parties'

agreement.

Respectfully submitted,

John G. Van Laningham, Esq.

Senate Special Master

cc: Senator Jeremy Ring

Philip Twogood, Secretary of the Senate

Counsel of Record

Attachment

Florida Senate - 2009 SPECIAL MASTER AMENDMENT

Bill No. SB 46

Ì813810tÎ 813810

LEGISLATIVE ACTION

Senate . House

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The Special Master on Claim Bills recommended the following:

1 Senate Amendment

2

3 In title, delete lines 17 - 81

4 and insert:

5 WHEREAS, on April 16, 2003, while in the trauma intensive

6 care unit at Memorial Regional Hospital, Mr. Otero was taken

7 during the night shift to the MRI laboratory for a scan to rule

8 out a nonemergency shoulder injury. Mr. Otero was accompanied by

9 a nurse and a respiratory therapist to th e MRI laboratory, but

10 was removed from his ventilator at the time he was transported

11 to the MRI during the night shift when the hospital operates

12 using significantly fewer staff. He was alert and oriented. Mr.

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Florida Senate - 2009 SPECIAL MASTER AMENDMENT

Bill No. SB 46

Ì813810tÎ 813810

13 Otero became panicky during the scan and was g iven several doses

14 of a narcotic sedative, Versed, in addition to the narcotic

15 medication he was already receiving intravenously. Because of

16 his panicked thrashing, an order for a paralytic drug was also

17 given. Lawton Tang, M.D., a surgical resident employ ed by Mt.

18 Sinai Medical Center and working under the supervision of

19 attending physicians of the South Broward Hospital District on a

20 rotation through Memorial Regional Hospital, was not present and

21 gave the medication orders by telephone, and

22 WHEREAS, the nurse administered the paralytic drug, which

23 was inappropriate under the circumstances. When the drug was

24 given to Mr. Otero, it caused his heart to stop beating

25 properly, and

26 WHEREAS, shortly thereafter Raul Otero went into cardiac

27 arrest, a code was call ed, and, after a relatively extended

28 process, Mr. Otero was successfully resuscitated. However, he

29 was found to be suffering from anoxic encephalopathy, and

30 WHEREAS, several physicians, including the trauma resident

31 on duty at the time, testified that Mr. Otero was not stable

32 enough to be taken from intensive care during the midnight shift

33 for an elective MRI. In fact, the very next day this practice

34 was expressly forbidden by then Chief of Trauma, Lawrence

35 Lottenberg, M.D., and

36 WHEREAS, Raul Otero is compl etely incontinent, is

37 quadriplegic, and cannot speak, and is unable to consistently

38 follow simple one - step commands. Mr. Otero's life - care plan was

39 drafted by Sharon Griffin, Ph.D., and was originally valued in

40 excess of $20 million. Now that his feeding t ube and ventilator

41 have been removed, the cost of his future care has been revised

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Florida Senate - 2009 SPECIAL MASTER AMENDMENT

Bill No. SB 46

Ì813810tÎ 813810

42 to approximately $12 million, and

43 WHEREAS, the surgical resident, Lawton Tang, M.D., the

44 resident who gave the telephonic medication orders, and Mt.

45 Sinai Medical Center, hi s employer, have settled for $2 million,

46 and

47 WHEREAS, the South Broward Hospital District has agreed to

48 pay $100,000 to Raul Otero and $100,000 to his mother and

49 primary caregiver, Ana Otero, pursuant to s. 728.28, Florida

50 Statutes. In addition, the distri ct has agreed to the passage of

51 a claim bill in the amount of $2 million, NOW, THEREFORE,

52

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