11-000115CB In Re: Senate Bill 306 (Denise Gordon Brown And David Brown) vs. * Status: Closed DOAH Final Order on Tuesday, February 1, 2011.

THE FLORIDA SENATE

SPECIAL MASTER ON CLAIM BILLS

Location

40 2 Senate Office Building

Mailing Address

404 South Monroe Street

Tallahassee, Florida 32399 - 1100

(850) 487 - 5237

DATE COMM ACTION

2 / 1 /11 SM Favorable

February 1, 2011

The Honorable Mike Haridopolos

President, The Florida Senate

Suite 409, The Capitol

Tallahassee, Florida 32399 - 1100

Re : SB 306 (2011) Î Senator Nan H. Rich

Relief of Denise Brown and David Brown, for the benefit of their son,

Darian Brown

SPECIAL MASTERÓS FINAL REPORT

THIS UNOPPOSED EQUIT ABLE CLAIM AGAINST T HE

NORTH BROWARD HOSPIT AL DISTRICT, WHICH I S FOR

$2 MILLION IN LOCAL FUNDS, ARISES FROM T HE BIRTH

OF DARIAN BROWN, A C HILD WHO SUFFERED A

CATASTROPHIC BRAIN I NJURY IN UTERO DUE T O THE

HOSPITAL STAFF'S NEG LIGENT DELAY IN

RECOGNIZING THE SIGN S OF FETAL DISTRESS,

WHICH RESULTED IN AN UNTIMELY DELIVERY BY C -

SECTION.

FINDINGS OF FACT: On January 10, 2000, Denise Brown's obstetrician, Dr.

Danoff, discovered that the fetal heart rate of the baby she

was carrying was elev ated. Because Mrs. Brown, who was

then about 33 weeks pregnant, had delivered prematurely in

the past, Dr. Danoff sent her to Broward General Hospital for

observation and to rule out preterm labor. Mrs. Brown was

admitted to the hospital at 11:30 a.m. D r. Danoff directed

that Mrs. Brown have continuous fetal heart monitoring and

gave standing orders that the nurse on duty was to notify the

obstetrician if the baby's heart rate ever exceeded 160 beats

per minute.

SPECIAL MASTERÓS FINAL REPORT Î SB 306 (2011)

February 1, 2011

Page 2

From January 10 through January 14, 2000 , Mrs. Brown

remained stable, and her baby's heart rate stayed within

normal limits. At about 5:00 p.m. on January 14, 2000,

however, the fetal monitoring strips (printed graph paper

showing displaying "tracings" of both the fetal heart rate and

uterine c ontractions) began disclosing an accelerated heart

rate (a condition known as tachycardia). The nursing staff

did not notify the obstetrician of this development, despite

the standing order to do so.

Over the next few hours, the fetal monitoring strips showed

increasingly worrisome signs, namely consistent fetal

tachycardia and loss of fetal heart rate variability. (A healthy

fetal heart beats at varying rates, creating a tracing that

looks like a jag ged line. Loss of fetal heart rate variability

produces a smooth line.) Variability indicates fetal wellbeing.

The absence of variability may indicate fetal distress. At

11:00 p.m., the baby's heart rate started to slow periodically

after uterine contr actions. When this occurs, it is called a

"late deceleration." Late decelerations are an ominous sign,

especially in conjunction with tachycardia and loss of

variability. The nursing staff, however, did not notify the

obstetrician, or any other physicia n, that Mrs. Brown's baby

might be in trouble.

The fetal tachycardia, loss of variability, and late

decelerations continued throughout the night. At about 5:15

a.m., the attending nurse finally called an obstetrician, Dr.

Vasanti Puranik, who was an empl oyee of North Broward

Hospital District. At Dr. Puranik's request, the fetal

monitoring strips were faxed to her for review. Upon receipt,

the doctor discovered that the graph paper had been fed into

the electronic fetal monitor upside down. The strips,

therefore, were not readily interpretable, although it could be

seen that the baby's heart rate lacked variability.

Dr. Puranik consulted by telephone with another obstetrician,

Laurie Scott, M.D., and they agreed that it was time to

deliver Mrs. Brown's baby. Neither doctor rushed to the

hospital, however. Dr. Puranik arrived on the obstetrical unit

at 6:27 a.m., where she ordered a routine Caesarian section.

Mrs. Brown was prepared for surgery. Dr. Puranik began

the C - section at 7:24 a.m., and Daria n was born at 7:27 a.m.

SPECIAL MASTERÓS FINAL REPORT Î SB 306 (2011)

February 1, 2011

Page 3

Darian had been oxygen - deprived in his mother's womb for

hours before his birth. As a result, he was born with

numerous complications, including respiratory distress

syndrome, cystic kidney disease, neonatal jaundice,

neonatal hy poglycemia, and newborn intraventricular

hemorrhage. He required aggressive resuscitation.

Eventually, Mrs. Brown and Darian were discharged from the

hospital. The Browns were not told, however, that Darian

might have suffered a serious brain injury.

I n October 2000, Mrs. Brown became concerned that her

son was not meeting developmental milestones. Her

inquiries to the pediatrician resulted in a computed

tomography (CT) scan of Darian's brain being ordered. The

CT scan showed that Darian's brain had b een seriously and

irreversibly damaged by partial prolonged hypoxia (oxygen

deprivation) in the hours before his birth.

The insult to Darian's brain has left him suffering from

cerebral palsy, spastic quadriplegia, and developmental

delay. He is unable t o talk but smiles at family members and

communicates basic needs by gesturing (e.g., pointing to his

stomach when hungry or to his head when he has a

headache). Darian has no bladder or bowel control, cannot

feed himself, and is unable to perform any acti vities of daily

living. He will be totally dependent on others for care and

treatment for the rest of his life.

Paul M. Deutsch, Ph.D., performed a comprehensive

evaluation of Darian and prepared Life Care Plan, which

quantifies the future medical expenses that will be incurred

over the course of Darian's lifetime. The report prepared by

the plaintiffs' economist, Raffa Consulting Economists, Inc. ,

which takes into account Dr. Deutsch's Life Care Plan,

concludes that the present value of Daran's f uture medical

needs is between $11.5 and $13.6 million, and that his

estimated lost earning capacity, reduced to present value, is

approximately $0.68 million.

LEGAL PROCEEDINGS: In 2003, Mr. and Mrs. Brown brought suit on their son's

behalf, and in the ir respective individual capacities, against

the North Broward Hospital District and others. The action

was filed in the Circuit Court in and for Broward County,

Florida.

SPECIAL MASTERÓS FINAL REPORT Î SB 306 (2011)

February 1, 2011

Page 4

While the lawsuit was pending, the Browns settled with Dr.

Scott and Parinatal As sociates, P. A. for a confidential

amount. The case proceeded to trial in 2008 against the

North Broward Hospital District as the sole remaining

defendant. On June 13, 2008, after four weeks of trial, the

jury rendered a verdict in favor of the plaintiff s and against

the district, awarding a total of $35.2 million in damages.

The resulting judgment was appealed. In June 2010, the

Florida Fourth District Court of Appeal affirmed.

The hospital district sued its insurers seeking a declaration

of coverage for the damages awarded to the Browns. The

coverage lawsuit led to a global settlement under which the

district's insurers paid the Browns $10.35 million, the district

paid its sovereign immunity limit of $200,000, and the parties

agreed that the plaintif fs could seek an additional $2 million

through an uncontested claim bill in that amount.

Under the settlement agreements, the plaintiffs' net recovery

to date (after satisfying medical and legal expenses and

attorneys' fees) is approximately $8.5 million. They have

paid roughly $3.3 million to their attorneys.

CLAIMANTS' ARGUMENTS: The North Broward Hospital District is vicariously liable for

the negligent acts of its employees and agents, including but

not limited to:

Failing timely to alert Mrs. Bro wn's obstetrician, or any

medical doctor, of the onset of fetal tachycardia, despite a

standing order to do just that.

Failing timely to notify a physician of the loss of fetal

heart rate variability and subsequent onset of late

decelerations, which (the nurses should have known)

indicated that the baby was likely in distress.

Failing to notice, for hours, that the graph paper in the

electronic fetal monitor had been inserted upside down,

producing tracings that were not readily interpretable.

F ailing to order an emergency C - section immediately

upon discovery that the baby's fetal heart signals were non -

reassuring.

SPECIAL MASTERÓS FINAL REPORT Î SB 306 (2011)

Febr uary 1, 2011

Page 5

RESPONDENT'S POSITION : The North Broward Hospital District does not oppose the bill.

The Chief Executive Officer of the district has attes ted that if

the claim bill were enacted, the $2 million award would be

paid out of the district's general operating account, and that

the payment of this sum would not in any way detrimentally

impact the district's ability to provide medical services to th e

people of Broward County.

CONCLUSIONS OF LAW: As provided in s ection 768.28, Florida Statutes (2010),

sovereign immunity shields the North Broward Hospital

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, Darian an d his parents will

not realize the full benefit of the settlement agreement they

have made with the district.

Under the doctrine of respondeat superior, the North

Broward Hospital District is vicariously liable for the negligent

acts of its agents and emp loyees, 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 nurses and obstetrician who were involved in Mrs.

Brown's treatment were employees of the district acting

within the scope of their employment. Accordingly, the

negligence of these actors is attributable to the district.

The district's employee's each had a duty to provide Mrs.

Brown and Darian with competent medical care. Such duty

was breached, wit h tragic consequences: Had Darian been

delivered shortly after his fetal heart signals became

ominous late in the evening on January 14, 2000, as he

reasonably should have been, rather than 8 or 9 hours later,

as in fact he was, Darian likely would not ha ve suffered a

catastrophic brain injury before birth. The negligence of the

district's employees and agents was a direct and proximate

cause of Darian's substantial damages.

The sum that the North Florida Hospital District has agreed

to pay Darian ($2.2 million in the aggregate) is a relatively

SPECIAL MASTERÓS FINAL REPORT Î SB 306 (2011)

February 1, 2011

Page 6

small percentage of Darian's total economic losses. If this

claim bill is enacted, the Brown family's recovery, including

the funds previously received from other sources, should be

adequate to cover Darian's futu re medical needs. The

undersigned concludes that the settlement at hand is both

reasonable and responsible.

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

attorney may charge, demand, receive, or collect, for

services rendere d, fees in excess of 25 percent of any

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

retained, Clark, Fountain, La Vista, Prather, Keen & Littky -

Rubin, LLP, has submitted the affidavit of Nancy La Vista,

Esquire, attesting that, if the clai mants were awarded $2

million under the claim bill at issue, the attorneys' fees would

be limited to $500,000, or 25 percent of the compensation

being sought.

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

Bill 306 (2011) be reported FAVORABLY.

Respectfully submitted,

John G. Van Laningham

Senate Special Master

cc: Senator Nan H. Rich

R. Philip Twogood , Secretary of the Senate

Counsel of Record