HomeMy WebLinkAboutR-92-0716J-92-726
10/15/92
1 LA
RESOLUTION NO.
92- '716
A RESOLUTION AUTHORIZING THE DIRECTOR OF
FINANCE TO PAY TO ALICIA MARILL, WITHOUT THE
ADMISSION OF LIABILITY, THE SUM OF $80,000.00
IN FULL AND COMPLETE SETTLEMENT OF ANY AND
ALL CLAIMS AND DEMANDS AGAINST THE CITY OF
MIAM1, IN CIRCUIT COURT CASE NO. 91-53468 CA
(23), UPON THE EXECUTION OF A GENERAL RELEASE
RELEASING THE CITY OF MIAMI FROM ANY AND ALL
CLAIMS AND DEMANDS, FUNDS TO BE PROVIDED FROM
THE INSURANCE AND SELF-INSURANCE TRUST FUND.
WHEREAS, ALICIA MARILL, through her attorney, filed a claim
and lawsuit against the City of Miami, in the Circuit Court of
Dade County, Florida, Case No. 91-53468 CA (23), for personal
injuries and negligence, arising out of a rear -end automobile
collision with a City of Miami police vehicle occurring at S.W.
37th Avenue and 17th Street on August 23, 1990; and
WHEREAS, the above claim and lawsuit have been investigated
by the Torts Division of the City Attorney's Office and the
Department of Risk Management pursuant to Ordinance No. 8417,
which created the City of Miami's Insurance and Self -Insurance
Program, and said Offices at this time recommend that this claim
and lawsuit be settled; and
WHEREAS, the City Commission deems a settlement in the
amount of $80,000.00 to be in the best interest of the City of
Miami;
CITY COMIVIISSION
MEETING OF
NOV 1 2 1992
Assolution No.
92- 716
NOW, THEREFORE, BE IT RESOLVED BY THE COMMISSION OF THE CITY
OF MIAMI, FLORIDA:
Section 1. The Director of Finance is hereby authorized
to pay ALICIA MARILL, forthwith, without the admission of
liability, the sum of $80,000.00 in full and complete settlement
of any and all claims and demands against the City of Miami, in
Circuit Court Case No. 91-53468 CA (23), upon the execution of a
general release, in a form acceptable to the City Attorney,
releasing the City of Miami from all claims and demands; said
money to be provided from the Insurance and Self -Insurance Trust
Fund, Account No. 620101-651.
Section 2. This Resolution shall become effective
immediately upon its adoption.
PASSED AND ADOPTED this 12th day of Novi ber , 1992.
ATTES
MATTY HIRAI
CITY CLERK
SELF-INSURANC RUST FUND REVIEW:
SUJAN S. CH , DIRE
DEPARTMENT S
BUDGETARY REVIEW:
SURANA
CITY MANAGER
NT
VIER
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92- 716
PREPARED AND APPROVED RYs
tZ'T!rH--ERESA L. GIRTEN
ASSISTANT CITY ATTORNEY
APPROVED AS TO FORM AND CORRECTNESS:
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A .� QU ]?RN J
CITY ATTO
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CITY OF MIAMI, FLORIDA
INTER -OFFICE MEMORANDUM CA=17
tO: Honorable Mayor and Members DATE October 15, 1992 FILE:L-91-377
of the City Commission
SUBJECT : Resolution Authorizing
Settlement with Alicia Marill
Case No. 91-53468 CA (23)
FROM : �!'l REFERENCES
Q i n es, III City Commission Agenda
City At, o ney ENCLOSURES November 12, 1992
(1)
Attached is a proposed Resolution authorizing the Director
of Finance to pay Alicia Marill, without admission of liability,
the sum of $80,000.00, in full and complete settlement of any and
all claims and demands against the City of Miami, upon the
execution of a Release of All Claims, releasing the City of Miami
from any and all claims and demands.
The complete evaluation of this claim is contained in the
Tort Committee settlement memorandum prepared by my assistant,
Theresa L. Girten. In brief, the claimant sustained severe
injuries in an accident involving a rear -end collision with a
City of Miami police vehicle. The plaintiff, a missionary worker
for poor children in Haiti and the Dominican Republic, had
preexisting conditions of. lupus and rheumatoid arthritis. The
impact and trauma of the accident aggravated the condition,
necessitating four surgical procedures to her hands.
This claim has been investigated by the Tort Committee and
the Department of Risk Management, and is hereby recommended by
this office.
AQJ:TLG/lb/M445
92- 716
CAA
TO. Members of the Tort Committee DATE October 9, 1992 FILE
Law Department
sUWECT Alicia Marill vs. City
Case No. 91-53468 CA (23)
Claim No. 017/V-90270
FR0�.1 Theresa L. Girten REFERENCES .D/A: 8/23/90
Assistant City Attorney L/I3 S.W. 17th St. & 37 Ave.
ENCLOSURES:
SUPPLEMENTAL TORT MEMORANDUM
After three hours of intense negotiation, the mediation was
called an impasse with the demand by plaintiff at $82,500.00 and
the City's offer at $70,000.00. The Tort Committee previously
authorized settlement in the amount of $75,000.00. It is my firm
belief that the bottom line to settle this case is $80,000.00.
Because it is also my belief for the reasons outlined in my
original Tort Memorandum that the likely jury verdict will be far
in excess of the statutory cap, I request an additional $5,000.00
authority to settle this case for a total of $80,000.00.
This case is presently set to go to trial October 26, 1992.
UPDATE
I spoke at length with Dr. Elaine Tozman, a rheumatology and
lupus expert who performed an IME, regarding her examination and
evaluation of the plaintiff. Her findings are that the type of
deformity found in both the plaintiff's right and left wrists are
not the usual type of deformities found in lupus patients and
therefore it is conceivable that the identical deformities found
in the wrists which necessitated four surgical procedures were
related to the trauma received in the accident. j
92- %6
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Al. QU7TqN JONE t_CITY ATTORNEY
ij
CHARLES C. MAYS, CHPEF ASSISTT CITY ATTORNEY
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CHRISTOMIrF. KURTZF ASS;/STANT tITY ATTORNEY
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Vd REN R. BITTNER, ASSIS ANC
TYATTORNEY
LEON MJ� PFRTBLr ASSISTANT. CITY ATTORNEX
HUMBERTO HERNAN r JR.r ASSISTANT CITY
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DAV
SUJAN S. CH BRA, ,IRECT
RISK MANAG T DI IS ION
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ORNEY
92- 1,16
TO: Members of the Tort Committee
Law Department 4F
FROM: Theresa L. Girten
Assistant City Attor e
DATE : October 6, 1992 FCLE :
SU13JECT Alicia Marill vs. City
Case No. 91-53468 CA (23)
Claim No. 017/v-90270
REFERENCES' D/A: 8/23/90
L/I: S.W. 17th St. & 37 Ave.
ENCLOSURES:
FACTUAL BACKGROUND
This case involves a rear -end automobile collision between
the plaintiff, Alicia Marill, and a CITY OF MIAMI (CITY] police
vehicle on Southwest 37th Avenue and approximately 17th Street
(Madeira on the Coral Gables side of 37th Avenue). The case is
presently set for trial for the three week trial period beginning
October 12, 1992. Mediation is Thursday, October 8, 1992.
FACTS OF ACCIDENT:
City of Miami police officer Eugene F. Edwards was driving a
City police vehicle Southbound on S.W. 37th Avenue on
• August 23, 1990 at approximately 2:00 in the afternoon. He was
in uniform, however, he was on approved leave to run a personal
errand. While moving in moderate traffic, the officer was
distracted for a moment by an individual running from a hardware
store which raised his suspicion that criminal activity had
occurred. As a result of this momentary distraction, the police
cruiser struck the back of plaintiff's vehicle. Plaintiff
contends that the force of the impact propelled her into the car
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92
in front of her. Ms. Marill had her seat belt on at time of
impact. Pictures taken at the scene show minimal damage to the
rear of plaintiff's vehicle.
Plaintiff is a 43 year old Hispanic female who has been
employed by the Archdiocese of Miami for eleven years as a
coordinator for mission programs for poor children in the
Dominican Republic and Haiti through an organization called Amor
En Accion.
Plaintiff has a masters degree in Theology from Barry
University and teaches there part time. She also has
certifications in Caribbean Studies and Advanced Theological
Studies.
She is very intelligent and articulate and presents herself
extremely well. Ms. Marill appeared at her deposition with a
removable cast on her left hand and wrist.
CLAIMED DAMAGES
Plaintiff claims a soft tissue injury to her neck; a
meniscus tear in her left knee possibly requiring surgery and a
fractured big right toe. She has been treated conservatively for
these injuries.
Plaintiff is also claiming an aggravation of a pre-existing
condition of lupus and rheumatoid arthritis. Plaintiff has had
these illnesses for 12 years and claims the aggravation
necessitated surgery on both her right and left wrists and thumbs
to fuse the joints.
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9?- 716
Systemic Lupus Erythematosus [SLE] is an inflammatory
connective tissue disorder of unknown causes occuring
predominantly in young women. Rheumatoid arthritis [RA] is a
chronic syndrome characterized by inflammation of the joints.
While the two diseases are unrelated, they both attack the joints
and cause instability.
Regarding the plaintiff's wrists and thumbs, she appears to
be more symptomatic of a lupus condition. The literature seems
to support that trauma can aggravate the lupus to the point of
destroying the supporting or connective tissue.
Plaintiff is generally in poor health and suffers from
numerous serious pre-existing health problems including a heart
condition, kidney problems, osteomyelitis and other foot
problems, lung problems, and has had a rheumatoid nodule in the
cocyx area surgically removed.
Plaintiff's other prior surgeries include renal artery
surgery in 1970 and toe surgery for osteomyelitis (left foot) in
1986 or 1987. Plaintiff has taken anti-inflammatory medications,
including Predisone and Voltaren, over the past 12 years.
As a result of the accident plaintiff is claiming that her
knee is constantly swollen and inflamed and that her neck
continues to be painful. Plaintiff stated in her deposition that
she had no problems with her wrists or thumbs prior to the
accident and that the diseases had been under control for ten
years. Ms. Marill now complains that her hands do not function
normally and that she needs assistance dressing and carrying
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92- 716
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books, etc. She further feels that the emotional stress of the
accident has brought on the full symtoms of her lupus and
arthritis.
MEDICAL BILLS
Plaintiff has provided bills for approximately $8000 in
medical expenses related to her orthopedic injuries (neck, knee,
right toe) and approximately $45,000.00 for medical expenses
related to the aggravation of her pre-existing lupus and
rheumatoid arthritis. PIP coverage has paid $10,000.00 and
plaintiff's group health insurance has paid benefits. Plaintiff
has yet to provide the amount her group health has paid, and the
amount, if any, of her out-of-pocket expenses. Her group health
insurance has filed a subrogation lien.
MISCELLANEOUS
Plaintiff claims $3,366.41 for repairs to her car from
Braman Honda and $285.56 for car rental for ten days. No lost
wages are claimed.
IME RESULTS
r 3
Dr. Carlos Azar, Board certified in hand surgery, examined
7,
the plaintiff and reviewed her extensive medical history.
[Report attached) Dr. Azar determined that because of the
progression and duration of her Lupus and Rheumatoid arthritis,
e
the condition which plaintiff claims necessitated the surgery
would have occurred anyway. '
Dr. Elaine Tozman, specialist in Lupus and Rheumatology, has
also examined the plaintiff. Her report is pending.
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ANALYSIS
Liability is adverse to the CITY, with no apparent issue of
comparative negligence. This is purely a case of damage control. <<
s
Plaintiff will obviously make a tremendous impression on the
jury.
I plan to attack the case by separating the injuries between
her orthopedic injuries and the injuries plaintiff claims are an
aggravation of her lupus, etc. The orthopedic injuries, i.e.,
neck (soft tissue), knee (possible torn meniscus) and toe
fracture, are not serious injuries and are the only injuries
claimed that can reasonably be attributed to the accident. As to
the hand and wrist injuries, because of the progression and
extent of her pre-existing condition of lupus and rheumatoid
arthritis having been afflicted for ten years prior to the
accident, it is possible that the condition she now relates to
the accident would have occurred anyway.
Plaintiff's own testimony also indicates that she maintains
a normal to rigorous schedule. Therefore, despite the severity
w
of the injury claimed and her numerous other health problems, her
condition does not appear to have affected plaintiff to any major
degree.
Notwithstanding the above, this is a case of clear liability
against the CITY, with major damages being claimed by a "Mother
Teresa" like plaintiff. This case should be settled.
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ANALYSIS
Liability is adverse to the CITY, with no apparent issue of
comparative negligence. This is purely a case of damage control.
Plaintiff will obviously make a tremendous impression on the
jury.
I plan to attack the case by separating the injuries between
her orthopedic injuries and the injuries plaintiff claims are an
aggravation of her lupus, etc. The orthopedic injuries, i.e.,
neck (soft tissue), knee (possible torn meniscus) and toe
fracture, are not serious injuries and are the only injuries
claimed that can reasonably be attributed to the accident. As to
the hand and wrist injuries, because of the progression and
extent of her pre-existing condition of lupus and rheumatoid
arthritis having been afflicted for ten years prior to the
accident, it is possible that the condition she now relates to
the accident would have occurred anyway.
Plaintiff's own testimony also indicates that she maintains
a normal to rigorous schedule. Therefore, despite the severity
w
of the injury claimed and her numerous other health problems, her
condition does not appear to have affected plaintiff to any major
degree.
Notwithstanding the above, this is a case of clear liability
against the CITY, with major damages being claimed by a "Mother
Teresa" like plaintiff. This case should be settled.
716
CONCLUS ION s
Plaintiff's demand is $100,000.00.
authority to settle this case for $75,000.00.
M. QUINN 7
ES, CITY AT'.
CHARLES7 C. MAYS, CHIEF i
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CHRISTOPHER F. KURTZ, AS
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'ANT CIT4f ATTORNEY
SISTANT Y ATTORNEY
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FLORIDA CENTER FOR SURGERY AND
REHABILITATION OF THE HAND AND
UPPER EXTREMITY
,�• HIALEA14 MEDICAL PLAZA DADELAND MEDICAL BLDG.
771 EAST 23TH STREET N420 7400 N. KENDALL DRIVE #405
HIALEAH. FLORIDA 33013 MIAMI, FLORIDA 33156
PHONE: 13031 835.7300
FAX: (303) 696-3128
CARLos A. AzARO M.D., P.A., .A.C.S., F.A.A.O.S., A.S.S.H.
r 1, 1992
RE: MARRILL, ALICIA
SS #262 92 6259
Dade County Circuit Court Case 91-53468 CA(23)
Review of file_of_459_Pages
HAND SURGICAL INDEPENDENT_ MEDICAL EVALUATION
HISTORY:
This is a 42 year old right-handed white male church coordinator.
Present working condition: the patient continues working as a
church coordinator.
PAST MEDICAL HISTORY:
Rheumatoid arthritis and lupus erythematosus of 12 years duration
under the care of a rheumatologist, Dr. Rovira.
Allergies: Cephalosporin.
Present Medications:
Prednisone 50 mg. daily.
Vol taren
Ativan
prescribed by Dr. Rovira, who is the present rheumatological
• treating physician.
CHIEF COMPLAINT:
Bilateral hand stiffness, weakness, and soreness.
PRESENT ILLNESS:
I must say that this patient has a 12 year history of rheumatoid
arthritis and lupus erythematosus with a history of great deal of
joint instability, especially in the carpo-metacarpal joints of
both thumbs. Clinically, she is more of a rheumatoid patient, but
with regard to both hands and wrists, I think she looks more like
a lupus erythematosus patient.
The patient stated that on 8/23/90 she was driving a car and she
was hit from behind by a police car and her car struck another
92- 716
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Page 2
RR: MARRILL, ALICIA
September 11 1992
0
car, causing an injury of both hands and wrists, as well as the
left knee and multiple contusions. For this condition the patient
had been seen and treated by several doctors. I reviewed the
complete file of the patient, consisting of 459 pages, and the
most remarkable aspect from the hand surgical standpoint is that
the patient was seen first by Dr. Gavech, who has been treating
the patient conservatively with wrist splinting and bracing, anti-
inflammatory medications, and physical therapy. Then the patient
was referred to Dr. Burkholter at the University of Riami, who
examined the patient, and his impression was that the patient has
rheumatoid arthritis and lupus erythematosus involving mainly both
hands and wrists, and he recommended surgery of both hands and
wrist which was performed by Dr. Bitz on the right hand in Septem-
ber, 1991. This surgery consisted of a fusion, distal radial
ulnar joint and proximal ostectomy of the ulna, as well as anchovy
CMC joint arthroplasty with ligament reconstruction of the thumb.
This was performed in September, 1991, for the right hand, and the
same operation was done in February, 19921 for the left hand and
wrist. Following these operations, the patient received therapy
on a daily basis for several months, with different types of
splinting and immobilizations.
At the present time the patient is complaining that she has a
bilateral hand weakness, stiffness, and decreased range of motion,
and she has some degree of difficulty in handling things.
There are no other complaints in the upper extremities.
EXAMINATION:
Physical examination of both hands revealed sensation and circula-
tion are good. The intrinsics and extrinsics are working well.
The left long finger revealed the presence of a boutonniere de-
formity.
Scars_ are located in the right'and left wrists, one at the CMC
joint of the thumb, and the second one in the ulnar aspect of the
wrist, which seem to be well healed, and each scar measures about
4 cm. The range of motion of the wrist is as follows:
Extension to flexion is 30 to 25 degrees bilaterally.
Pronation to supination is 75 to 75 degrees bilaterally.
Ulnar to radial deviation is 40 to 0 degrees bilaterally.
The grip in the right hand is 20 lb. and in the left hand is 15
lb. The pinch in the right is 6 lb. and in the left is 6 lb.
The rest of the physical examination of both upper extremities is
within normal limits, and there are no other complaints.
92- 71.6
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Page I
RE: MARRILLt ALICIA
September It 1992
X-RAY EXAMINATION:
MRI of the neck dated 4/26/92, performed at Baptist Hospital was
read as within normal limits.
X-rays were taken of both hands and both wrists in the AP, later-
al, and oblique views and revealed the presence of bilateral wrist
distal radial ulnar joint fusion, and proximal to the fused area
about 1 inch, there is an area of about .2 cm ostectomy of the
distal ulna. There is also the presence of an anchovy interposi-
tion arthroplasty of the CMC joint of the right and left thumbs.
There is also the presence of chronic changes of the DISI pattern
of both wrists, bone osteoporosis and chronic carpal instability
with carpal bone collapse and shortening of the normal carpal
height.
IMPRESSION:
1. S-Pt bilateral distal radial ulnar joint fusion.
2. S-P anchovy interposition arthroplasty, CMC joints of both
thumbs.
3. Chronic rheumatoid arthritis involving both hands and wrists.
4. Chronic lupus erythematosus involving both hands and wrists.
RECOMMENDATIONS:
At the present time from the hand surgical standpoint, the hands
seem to be functioning quite well and she does not require any
further treatment.
COMMENTS:
I must say that this patient has a 12 year history of rheumatoid
arthritis and lupus erythematosus and this type of surgery sooner
or later requires the type of treatment that the patient did
receive. The patient states that her complaints and her bilateral
hand condition are related to the' injuries that she sustained on
8/23/90. However, as per the review of the records and as also
well d(;umented by Dr. Burkholter, this patient has a long-
standing history of about 12 years of rheumatoid arthritis and
lupus erythematosus, which is a condition well known to have the
kind of problems of which the patient complains and is associated
with. It is my feeling that this patient has sustained an injury
overlapping the serious underlying medical_ problem of rheumatoid
arthritis and lupus erythematosus involving both hands and wrists.
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Page 4
RE: MARRILL, ALICIA
September 1, 1992
Work Status;, At the present time the patient can continue doing
the same type of work that she has done in the past, which is a
church coordinator and I think that she can continue that.
c
Sincerely yours,
CARLOS A. AZAR,—M.D.—
Clinical Asst. Professor of Orthopedic Surgery and Hand Surgery
University of Miami
CAA:QQ1
cc: City of Miami
Attn: Theresa L. Girten
Assistant City Attorney
Dupont Flaza Center
Suite 300
300 Biscayne Blvd. Way
Miami, FL 33131
C 'W
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