STORAGE NAME: h6015c.JDC
DATE: 4/11/2023
April 11, 2023
SPECIAL MASTER’S FINAL REPORT
The Honorable Paul Renner
Speaker, The Florida House of Representatives
Suite 420, The Capitol
Tallahassee, Florida 32399-1300
Re: CS/HB 6015 - Representative Busatta Cabrera
Relief/Jamiyah Mitchell/South Broward Hospital District
THIS IS A SETTLED CLAIM FOR $795,000 FOR MEDICAL
INJURIES TO JAMIYAH MITCHELL BASED ON TH E
NEGLIGENCE OF THE SO UTH BROWARD HOSPITAL
DISTRICT. RESPONDENT HAS PAID $200,000 PURSUANT
TO THE SOVEREIGN IMM UNITY CAP.
FINDINGS OF FACT: This claim arises out of negligence in the context of the
treatment of a pregnant woman and resulting damages to the
then-unborn child.
On October 8, 2008, around 4:56 p.m., 31-year-old Latricia
Mitchell, who was 41 weeks pregnant with Jamiyah Mitchell
("Claimant"), presented at the Pembroke Pines Memorial
Hospital West emergency room, which is owned and operated
by the South Broward Hospital District ("Respondent"),
complaining of pain and vaginal bleeding.
1
Dr. Sheryl Facey, a
private obstetrician and gynecologist who already had a
physician-patient relationship with Ms. Mitchell and had seen
and examined her a few days prior, was contacted.
2
Ms.
1
Ms. Mitchell was known to be Group B streptococcus positive and positive for herpes simplex.
2
Dr. Facey was a private physician with her own practice, with privileges at Respondent's hospital. Whether Dr. Facey
was an "agent" of Respondent was a crucial matter throughout these proceedings, with the trial court, at one point, ruling
as a matter of law that she was not an agent of Respondent. SPECIAL MASTER’S FINAL REPORT--
Page 2
Mitchell was admitted for an emergency Caesarean section
("C-section"). It appears from the record that Dr. Facey was
present at Ms. Mitchell's bedside by 7:01 p.m., at the latest. A
note from the record indicates that Dr. Facey ordered a C-
section at 8:02 p.m.
The C-section was begun, and Claimant was delivered around
8:44 p.m. and immediately transported to the neonatal
intensive care unit (NICU) for follow-up care. Claimant suffered
a seizure and was later transferred to Joe DiMaggio Children's
Hospital on October 10, 2008. Ms. Mitchell was discharged
from the hospital on October 11, 2008.
On October 15, 2008, Claimant was discharged from the
children's hospital with several diagnoses, including seizures,
respiratory distress, and hypoxic ischemic encephalopathy
(brain damage due to asphyxiation).
3
In 2012, Claimant was diagnosed with mild receptive language
and mild-to-moderate expressive language delays. By June 3,
2015, Claimant's mother reported that Claimant had behavioral
issues and some problems focusing at home, and that
Claimant had hearing problems.
LITIGATION HISTORY: On October 8, 2013, Claimant's parents, Jerald and Latricia
Mitchell, filed a medical malpractice complaint in circuit court
against the South Broward Hospital District ("Respondent") for
the actions of its labor and delivery nurses, Dr. Sheryl Facey,
as the acting obstetrician, and Facey, P.A.
After the lawsuit was filed, Claimant's parents became aware
that Dr. Facey did not have malpractice insurance. She
declared bankruptcy, leaving her essentially judgment-proof.
The case went to trial in the summer of 2018, but a mistrial was
declared because two jurors accused Latricia Mitchell of
misconduct. Accordingly, the case was reset for trial for late
2019.
Prior to trial, on July 3, 2019, Respondent settled its portion of
the case with Claimant for $995,000. The circuit court approved
the settlement on behalf of Claimant as a minor on October 15,
2019.
In its order approving the settlement, the circuit court noted that
Claimant's parents failed to appear at the hearing, despite the
hearing's being rescheduled at their request. The court
removed a portion of the proposed order that would have
allowed any monies remaining in Claimant's special needs trust
to be distributed to Claimant's parents in the event of
Claimant's death.
3
Medscape, Hypoxic-Ischemic Encephalopathy, https://emedicine.medscape.com/article/973501-overview (last visited
July 22, 2020). SPECIAL MASTER’S FINAL REPORT--
Page 3
Respondent subsequently paid Claimant the statutory limit of
$200,000, leaving $795,000 to be recovered in this claim bill.
Claimant filed a claim bill in the Florida Senate for the 2020
legislative session. In anticipation of the 2020 session, a
special master hearing was held on the claim bill on November
8, 2019. Claimant’s attorney and Claimant’s guardian ad litem
appeared on behalf of Claimant, but neither Claimant nor either
of her parents appeared in person or via electronic means.
4
On December 12, 2022, Claimant requested a second special
master hearing, asserting that Claimant’s parents would now
be able to attend the hearing. Special masters for the House
and Senate subsequently granted the new hearing, which was
held on February 28, 2023, for the purpose of hearing
testimony from Claimant or her parents.
CLAIMANT’S POSITION: Claimant argues that Respondent's nursing staff was negligent
in its failure to advocate for a speedy C-section upon
Claimant's mother, causing Claimant to suffer a birth asphyxia
and resulting brain injury around the time of delivery. This brain
injury substantially contributed to Claimant's loss of hearing,
abnormally low IQ, cognitive deficits, learning disability, seizure
disorder, speech delay, and ADHD. Claimant argues that her
brain injury is both significant and permanent, and that she will
have future needs and medical expenses.
Claimant states that another potential defendant, the acting
obstetrician, Dr. Facey, was judgment-proof; accordingly, this
claim bill does not seek compensation for any damages against
Dr. Facey. Claimant states that she would have argued to a
jury that compensatory damages alone should be $15 million.
RESPONDENT’S POSITION : Respondent does not contest the claim bill but makes no
concession as to liability or any other matter. The report of
Claimant's guardian ad litem ("GAL") indicates that during the
litigation, Respondent's position had been that Claimant did not
suffer a birth injury and that any injuries sustained were minor
and not permanent.
CONCLUSIONS OF LAW: Regardless of whether there is a jury verdict or settlement,
each claim bill is reviewed de novo in light of the elements of
negligence.
Duty
In Florida, to prevail on a medical malpractice claim, a plaintiff
4
See Legislative Claim Bill Manual at 8 (2019 ed.),
https://www.myfloridahouse.gov/Sections/Documents/loaddoc.aspx?PublicationType=Committees&CommitteeId=3022&S
ession=2020&DocumentType=General+Publications&FileName=Legislative+Claim+Bill+Manual+August+2019.pdf (last
visited July 22, 2020) ("The claimant must attend the final hearing, preferably in person, though the special masters may
permit appearance by webcam or other means in certain situations"). SPECIAL MASTER’S FINAL REPORT--
Page 4
must show what standard of care was owed by the defendant,
how the defendant breached that standard of care, and that the
breach was the proximate cause of damages.
5
The
professional standard of care is the level of care, skill, and
treatment which, in light of all surrounding circumstances, is
recognized as acceptable and appropriate by reasonably
prudent similar health care providers.
6
Generally, expert
testimony is required to establish the standard of care prevalent
in a particular medical field. The services rendered by a
physician are scrutinized by other physicians in the same field
to determine whether there was a failure to adhere to the
standard of care.
7
Florida law provides guidance with respect to
who may testify as an expert with respect to the relevant
standard of care applicable to a nurse or other medical support
staff.
8
Breach & Causation
Claimant's attorney was asked at the first special master
hearing whether any party other than Respondent contributed
to Claimant's injury. Claimant's attorney admitted that the acting
obstetrician, Dr. Facey, did not have malpractice insurance and
had filed for bankruptcy, making her judgment-proof. In turn,
Claimant sought damages against the nursing staff directly
employed by Respondent.
Claimant argues that Respondent's nursing staff was negligent
in not summoning Dr. Facey urgently enough after Ms. Mitchell
presented on October 8, 2008; and in not strenuously
advocating to Dr. Facey that a C-section should be performed
quickly. Claimant provided testimony from several experts in
support of her argument that Respondent's nursing staff failed
to meet the relevant standard of care, as follows:
Dr. Carolyn Crawford, a neonatologist, testified that
based on Claimant's position as a fetus, Respondent's
nurses should have "fast-tracked" Claimant's mother
and "advocated" for a C-section. According to Dr.
Crawford, had a C-section been performed upon
Claimant twenty minutes before delivery, Claimant
would have, more likely than not, been born
neurologically intact.
Dr. Robert Cullen, a pediatric neurologist, stated that
Claimant suffered an injury just prior to being delivered.
Dr. Laura Mahlmeister, who has a doctorate in nursing,
and Dr. Martin Gubernick, an obstetrician, stated that
Respondent's nursing staff failed to understand the
need for an emergency C-section and the need to
summon Dr. Facey.
5
Gooding v. Univ. Hosp. Bldg., Inc., 445 So. 2d 1015, 1018 (Fla. 1984).
6
S. 766.102(1), F.S.
7
Moisan v. Frank K. Kriz, J.K., M.D., P.A., 531 So. 2d 398, 399 (Fla. 2d DCA 1988).
8
See s. 766.102(6), F.S. SPECIAL MASTER’S FINAL REPORT--
Page 5
According to the medical records, Dr. Facey was present at Ms.
Mitchell's bedside by 7:01 p.m., at the latest. Claimant was
delivered by C-section around 8:44 p.m. Two of Claimant's
experts indicated that simply performing the C-section just a
few minutes earlier, would have led to a better, or even
excellent, outcome.
This is a difficult case involving speculative medical causes and
effects. Further complicating this case is the fact that
Respondent is required, pursuant to the settlement agreement,
to "not oppose" the claim bill. Even though Respondent did not
concede any of the elements of negligence, Respondent did
not actively contest Claimant's arguments and submissions of
evidence at the final hearing. Therefore, I find that Claimant
has carried her burden to demonstrate that Respondent's
nursing staff breached the duty of care and is at least partly to
blame for this incident.
Damages
Claimant's expert, Dr. Nancy Parsons, a licensed psychologist,
opined that Claimant suffered a brain injury that will likely cause
her to have poor adaptive functioning, difficult social
functioning, difficulty living independently, and difficulty solving
problems. Dr. Parsons opined that Claimant will likely require
special educational accommodations, language therapy, and
speech therapy.
Moreover, Claimant's guardian ad litem ("GAL") attended the
first special master hearing and was helpful to the special
masters in assessing the claim bill. The GAL concluded that he
believed the settlement and allocation of recovery are "fair,
reasonable[,] and in the best interest of [Claimant]."
Claimant's GAL also testified that Claimant does not have any
trouble moving around, although she does use hearing aids
and lags behind other children her age developmentally.
Claimant has attention deficit hyperactivity disorder (ADHD) but
is otherwise able to function in most aspects of everyday life.
Claimant is now 14 years old. At the second special master
hearing, Claimant’s father, Jerald Mitchell, provided helpful and
credible testimony as to Claimant’s current condition. Mr.
Mitchell stated that Claimant’s IQ is below 60, and she is in
special needs classes. Further, according to Mr. Mitchell,
Claimant has ADHD, speech impairment, hearing loss, bipolar
disorder, and a seizure disorder. Mr. Mitchell believes that
Claimant is not likely to be able to ever live independently, even
when she becomes an adult.
The claim bill includes a provision requiring that the funds from
the bill must be paid to a special needs trust for the benefit of
Jamiyah Mitchell. SPECIAL MASTER’S FINAL REPORT--
Page 6
ATTORNEY/
LOBBYING FEES:
If the claim bill passes, the attorney fee will not exceed
$143,100, and the lobbying fee will not exceed $55,650.
Outstanding costs total $35,240.66.
COLLATERAL SOURCES : At the original claim bill hearing, it appeared that Claimant had
private insurance. At the time, she was not receiving Medicaid,
but it appeared likely she would be eligible for Medicaid in the
future.
RESPONDENT’S ABILITY
TO PAY:
Respondent states that it has claim bill insurance, but the
deductible is $2 million, which is more than the amount sought
in this claim bill. Accordingly, if this claim bill is passed,
Respondent is prepared to pay the amount directly out of its
own funds.
LEGISLATIVE HISTORY: This is the third session this claim bill has been presented to
the Legislature. Last session, 2022 HB 6519 was not agendaed
in any committee of reference.
RECOMMENDATION : Based on the foregoing, I respectfully recommend that this
claim bill be reported FAVORABLY.
Respectfully submitted,
JORDAN JONES
House Special Master
cc: Representative Busatta Cabrera, House Sponsor
Senator Joe Gruters, Senate Sponsor
Nathan Bond, Senate Special Master