Dead, wounded kids at center of Medicaid lawsuit reforms

BY MARC CAPUTO

HERALD/TIMES TALLAHASSEE BUREAU


TALLAHASSEE -- A baby’s brain is damaged in a botched surgery. A 10-year-old in Florida’s child-welfare system is
tortured and killed as her helpless brother listens in torment.

These ripped-from-the-headlines cases are recipes for easy lawsuits – but that could change if Republican
lawmakers get their way.

In the midst of expanding HMO-style management in Medicaid, the Legislature is passing a raft of proposals that limit
the liability of Medicaid doctors, hospitals, nursing homes and private community-based care companies.
Backers of the legislation include doctors and hospitals. They say the underlying logic is simple: Give Medicaid
providers and child-welfare companies lawsuit protections because they’re acting on behalf of the state, which is
shielded from lawsuits.

But opponents – Democrats and trial attorneys – say the Legislature is letting bad actors off the hook while
protecting the profits of the insurance industry.

“This bill is affecting the most vulnerable and needy people in the state of Florida – those are disabled children,”
Maria Tejedor, an Orlando trial attorney, told lawmakers last week. “It creates two doors to the courthouse: One for
the haves. And one for the have-nots.”

But Sen. Joe Negron, a Stuart Republican and chair of the Senate’s health budget committee, said lawmakers are
trying to strike “a delicate balance.. .We want to protect access to the courts. But we have to make sure that, with the
public funds we’re spending, there’s insurance available to pay these claims.”

Under the House Medicaid bill, a Medicaid recipient is limited to receiving a maximum of $300,000 in malpractice and
other tort cases for so-called “non economic damages,” such as pain-and-suffering awards. Current law, generally
limits medical-malpractice awards to $500,000 – except in egregious cases.

Tejedor said the stricter cap on the state’s 3 million Medicaid recipients, who are poor and disabled, would make it
nearly impossible for attorneys such as her to shoulder the expense of investigating a case, gathering evidence and
hiring expert witnesses.

Citing statistics from the state agency overseeing Medicaid, Tejedor said trial attorneys have returned $20 million to
the state since 2003 in medical-malpractice cases. She said the lawsuit settlements have also helped the injured
parties get off Medicaid and, therefore, spare taxpayers from expensive treatments.

Case in point: Isaac Rosario, a 3-year-old boy whom she said was injured when medical staff at Orange County’s
Winnie Palmer Hospital accidentally injected food into his head and “blew the child’s brain out.” She said Medicaid
has paid for $715,000 worth of treatment in two years.

A Winnie Palmer spokesman confirmed the case, which was recently settled, but declined further comment.
The House Medicaid bill sponsor, Republican Rob Schenck of Spring Hill, downplayed the lawsuit caps and said trial
attorneys would have to be guided by their own “morals” in deciding whether to take a case. He also cast doubt on
the statistics cited by Tejedor.

“"I find it hard to believe we would take a trial attorney’s opinion on what costs the state and what doesn’t cost the
state," Schenck said.

Tejedor noted that medical-malpractice insurance rates are down, profits are up and the number of doctors have
increased in Florida since it reformed liability laws in 2003.

But Rep. Mike Horner, R-Kissimmee, pointed to other statistics noting other problems with Florida’s health market.
“We have the lowest ratio of doctors per senior. We have the lowest ratio of surgeons. And we’re at half the national
average for emergency room residents,” he said. “Does that sound like, perhaps, we have a shortage of physicians?”
Another House bill caps liability for community-based care providers. It passed Monday in a committee. The House
Medicaid bill was debated Tuesday on the full floor and is scheduled for a vote Thursday.

The Senate’s Medicaid bill, which will be heard Wednesday in the Senate’s Health Regulation Committee, caps some
nursing home damages at $250,000, gives robust legal protections to doctors at teaching hospitals such as Miami’s
Jackson Memorial Hospital and also limits liability of community-based care providers.

The proposal was filed before the grisly death in February of 10-year-old Nubia Barahona, who was stuffed in a
garbage bag, in the back of her adoptive father’s pickup truck. Her twin brother, Victor, was poisoned with pesticides
and near death.

Trial attorney Gary Farmer said Victor’s treatment won’t be cheap.

“This little boy,” he said, “has spent more than a week in Miami Jackson’s burn unit, he was soaked head to toe in
chemicals…. He’s going to be dealing with a lifetime of care, just to the injuries to his skin.”

Our Kids, the Miami-based community-based care agency overseeing Victor and Nubia’s care, acknowledged it
made mistakes. But CEO Frances P. Allegra took issue with the trial-lawyer description of the bill as the “Barahona
Relief Act.’’
Allegra said the bill isn’t retroactive, so the agency can still be sued under existing tort laws. She said insurance rates
are rising, leaving a little less money for child-welfare services.

“The people in this business care about children,” Allegra said. “The debate makes it sound like there are bad
people out there serving kids – and that’s just not true.”

Marc Caputo can be reached at mcaputo@MiamiHerald.com


Read more: http://www.miamiherald.com/2011/03/29/v-fullstory/2140322/dead-wounded-kids-at-center-of.
html#ixzz1I6zQ6Acn
In their efforts to reform Medicaid,
lawmakers also want to limit the
rights of poor people to sue
doctors, hospitals and
child-welfare companies.
10-year-old Nubia
Barahona, beaten to death
by foster parents