11-004101CB In Re: Senate Bill 48 (Odette Acanda And Alexis Rodriguez) vs. * Status: Closed Settled and/or Dismissed prior to entry of RO/FO on Monday, April 2, 2012.

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

12/02/11 SM Fav /1 amendment

December 2, 2011

The Honorable Mike Haridopolos

President, The Florida Senate

Suite 409, The Capitol

Tallahassee, Florida 32399 - 1100

Re: SB 48 (2012) Î Senator Bill Montford

Relief of Odette Acanda and Alexis Rodriguez

SPECIAL MASTERÓS FINAL REPORT

THIS IS AN UNOPPOSED EQUITABLE CLAIM FOR

LOCAL FUNDS IN THE A MOUNT OF $799,000 AG AINST

THE PUBLIC HEALTH TR UST OF MIAMI - DADE COUNTY

FOR MEDICAL MALPRACT ICE IN CONNECTION WITH

THE POSTNATAL TREATM ENT OF RYAN RODRIGUE Z,

WHO DIED IN JACKSON MEMORIAL HOSPITAL ON

FEBRUARY 10, 2005, W HICH WAS FIVE DAYS A FTER

HIS BIRTH, FROM A NO SOCOMIAL INFECTION.

FINDINGS OF FACT: On February 5, 2005, Ryan Rodriguez was delivered by

Caesarean section at Jackson Memorial Hospital

("Jackson"), a public facility located in Miami, Florida, which

the Public Health Trust of Miami - Dade County ("Trust") owns

and operates. Ryan's parents are Odette Acanda (mother)

and Alexis Rodriguez (father), an unmarried couple whose

only child together was this one.

Ryan was born prematur ely, at approximately 28 weeks, due

to Ms. Acanda's medical condition; she had developed a

complication of pregnancy known as the HELLP syndrome,

a life - threatening variant of pre - eclampsia, the treatment for

which is prompt delivery of the baby. Although Ryan's

postnatal condition was complicated by his premature birth,

he was relatively healthy upon delivery, with normal Apgar

SPECIAL MASTERÓS FINAL REPORT Î SB 48 (2012)

December 2, 2011

Page 2

scores and an absence of birth trauma or defects. In the

ordinary course of events, his prospects for survival were 90

percent o r better, according to expert testimony which the

undersigned credits.

Because Ryan was premature, the standard of care required

that he be placed in a self - contained incubator often referred

to as an Isolette©. The purpose of the incubator is to keep

th e infant in a controlled environment, so that heat, humidity,

and oxygen levels will be maintained within ranges ideal for

the infant's survival and protective against infection.

Unaccountably, however, no Isolette© was available at

Jackson for Ryan. As a result, the nurses placed Ryan in a

basinet, which was then covered in plastic wrap to create a

makeshift incubator. Use of such a crude substitute for an

Isolette© was plainly a violation of the standard of care.

Ryan's attending physician was Dr. Gerhardt, a professor of

pediatrics at the University of Miami School Medicine. The

infant was also seen by several doctors who were in the

medical school's residency and fellowship programs, which

are operated through J ackson. When they are working at

Jackson, the residents and fellows are regarded as

employees and agents of the Trust.

Ryan's blood was drawn regularly for testing. Initially, the

lab values which returned were within normal limits. As time

passed, how ever, critical lab values began to worsen,

indicating the possibility of infection. For example, Ryan's

white blood cell count and absolute neutrophil count were

normal on February 6. By February 8, 2005, each had

dropped considerably, reflecting a high risk of infection. On

February 9, these values were so low that the risk was

severe. Similarly, the level of C - reactive protein ("CRP") in

Ryan's blood Ï which rises in response to inflammation Ï was

at the upper end of normal on February 6 and became

elevat ed on February 7, 2005. This elevation suggested the

possibility of infection. One of the doctors gave an order to

repeat the CRP test on February 8, but the order was not

followed Ï and Ryan's CRP was never tested again.

Ryan had other clinical signs of infection. On February 7 he

started having low oxygen saturation (meaning that there

was too little dissolved oxygen in his blood) and episodes of

apnea, i.e., suspension of breathing. This resulted in the

SPECIAL MASTERÓS FINAL REPORT Î SB 48 (2012)

December 2, 2011

Page 3

use of continuous positive airway pressure ("CPA P")

ventilation to assist Ryan's breathing. Such ventilation is

accomplished by placing a mask over the infant's face to

deliver a constant airstream against the nose and mouth.

On February 8, Ryan continued to have low oxygen

saturation and apnea, an d his heart rate dropped to an

abnormally slow pace, a condition referred to as

bradycardia. A doctor ordered that he be weaned off the

CPAP mask and placed in an oxy hood, which would cover

his entire head and allow him to breathe in an oxygen -

enriched e nvironment. For some reason, this order was not

followed; the nursing staff inexplicably weaned Ryan off the

CPAP mask to room air.

On February 8, a culture was taken from Ryan's

nasopharynx. Upon testing, this culture revealed a growth of

pseudomonas a eruginosa, a common bacterium that thrives

on many surfaces, including medical equipment. Based on

credible expert testimony, the undersigned finds that the

standard of care required the administration of antibiotics at

this point. Antibiotic therapy was not initiated on or before

February 8, 2005, however, and this omission constituted

negligence.

After February 8, Ryan's condition steadily worsened. On

February 9, the nurses began "bagging" Ryan, meaning that

they used a handheld device known as a bag valve mask (or

Ambu bag) to manually ventilate the infant. The next day,

his color was gray, and he began to bleed heavily from the

nose and mouth because his lungs were hemorrhaging due

to acute infection. Finally, at 1:00 p.m. on February 10,

2005 , antibiotics were given to Ryan for the first time. By

then it was much too late, as the P. aeruginosa infection

had already spread throughout his body, leading to a

condition known as sepsis. At about that time, Ryan went

into septic shock, and his organs began to fail. Efforts to

revive him were not successful. He passed away on the

afternoon of Febru ary 10, around 5:00 p.m.

Ryan died from a P. aeruginosa infection, which he acquired

in the hospital after birth, most likely from contaminated

medical equipment. Ryan's death was preventable. Had the

doctors and staff at Jackson timely administered antibiotics

on or before February 8, 2005, as the standard of care

SPECIAL MASTERÓS FINAL REPORT Î SB 48 (2012)

December 2, 2011

Page 4

clearly required given the many signs pointing to the

likelihood of infection, Ryan likely would have survived.

LEGAL PROCEEDINGS: In 2006, Ms. Acanda, as personal representative of Ryan' s

estate, brought suit against the Trust. The action was filed in

the Circuit Court in and for Miami - Dade County, Florida.

The case proceeded to trial in 2007. On August 10, 2007 ,

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

the Trust, awarding a total of $2 million in damages. This

award consisted of compensation for past and future pain

and suffering by Ms. Acanda in the amount $600,000 for

each component; Ryan's father, Alexis Rodriguez, was

awarded $400,000 for past suffering and $400,000 for future

suffering. The resulting judgment was affirmed by the Florida

Fourth District Court of Appeal. See Public Health Trust of

Miami - Dade Cnty. v. Acanda , 23 So. 3 d 1200 (Fla. 3d DCA

2009). In June 2011, the Florida Supreme Court affirmed

the district court's decision. See Public Health Trust of

Miami - Dade Cnty. v. Acanda , 6 Fla. L. Weekly S 289 (Fla.

June 23, 2011).

In December 2010, while the appeal was pending before the

Florida Supreme Court, the parties agreed to settle the case

for $999,000, of which the Trust has paid $200,000. The

Trust further agreed to support a claim bill in the amount of

$799.000. Out of the $200,000 recovery, $50,000 was

applied to attorneys' fees and $61,088.48 to costs. The

parents received $78,411.52, which was split 60%

(mother)/40%(father) in accordance with the jury's allocation

of the damages.

A Satisfaction of Judgment has been filed in the civil action.

Ryan's parents r eached a separate agreement with the

University of Miami, pursuant to which the latter settled the

claims against it for $462,500. From this amount, the

claimants paid their attorneys $185,000. In addition, they

paid (or put funds in trust for) costs tot aling $ 17,500. Thus,

the claimants' net recovery from this settlement was

$260,000, which they divided equally between themselves.

CLAIMANTS' ARGUMENTS: The Trust is vicariously liable for the negligent acts of its

employees and agents, including but no t limited to:

SPECIAL MASTERÓS FINAL REPORT Î SB 48 (2012)

December 2, 2011

Page 5

Failing timely and accurately to discover Ryan's P.

aeruginosa infection, despite numerous warning signs.

Failing to promptly initiate antibiotic therapy once it

became apparent Ï no later than February 8, 2005 Ï that

Ryan was likely suffering from an infection.

Failing to follow physician's orders, including the

directives that Ryan's CRP level be re - tested, and that he be

weaned from the CPAP mask to an oxy hood.

Failing to put Ryan in an actual incubator, instead of

using a shabby substit ute made by covering a basinet with

plastic wrap.

RESPONDENT'S POSITION: The Trust supports the bill. If the bill is enacted, the Trust,

which is self - insured, will use Jackson's funds to satisfy the

claim.

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

immunity shields the Trust against tort liability in excess of

$200,000 per occurrence. See Eldred v. N. Broward Hosp.

Dist. , 498 So. 2d 911, 914 (Fla. 1986)(§ 768.28 applies to

special hospital taxing districts) ; Paushter v. S. Broward

Hosp. Distr. , 664 So. 2d 1032, 1033 (Fla. 4th DCA 1995).

Under the doctrine of respondeat superior, the Trust is

vicariously liable for the negligent acts of its agents and

employees, when such acts are within the course and sco pe

of the agency or employment. See Roessler v. Novak , 858

So. 2d 1158, 1161 (Fla. 2d DCA 2003).

The nurses who were involved in Ryan's treatment were

employees of the Trust acting within the scope of their

employment, as were the residents and fellows hip

physicians. Accordingly, the negligence of these actors is

attributable to the Trust.

Each of the referenced individuals had a duty to provide

Ryan with competent medical care. Such duty was

breached. The negligence of the Trust's employees and

age nts was a direct and proximate cause of Ryan's death.

SPECIAL MASTERÓS FINAL REPORT Î SB 48 (2012)

December 2, 2011

Page 6

The sum that the Trust has agreed to pay, which is half the

judgment, both reasonable and responsible and fully

supported by the evidence in the record.

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

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

services rendered, fees in excess of 25 percent of any

judgment or settlement. " The law firm that the claimants

have retained, Diez - Arguelles & Tejedor, P.A., would receiv e

$199,750 in fees if this bill were enacted.

SPECIAL ISSUES: The claim bill requires a technical amendment to conform to

the parties' settlement agreement. On page 3, at line 59, the

amount of the claim should be $799,000, rather than

$799,999.

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

Bill 48 (2012) be reported FAVORABLY , as amended.

Respectfully submitted,

John G. Van Laningham

Senate Special Master

cc: Senator Bill Montford

Debbie Brown, Interim Secretary of the Senate

Counsel of Record

Attachment

Florida Senate - 2012 SPECIAL MASTER AMENDMENT

Bill No. SB 48

Ì635024yÎ 635024

LEGISLATIVE ACTION

Senate . House

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The Special Master on Claim Bills recommended the following:

1 Senate Amendment

2

3 Delete line 59

4 and insert:

5 warrant in the sum of $799,000, payable to Odette Acanda and

6

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