Loading...
HomeMy WebLinkAboutExhibitALDO SELVA, individually, and MARIA ALCOBAR, individually and as the natural parent and guardian of KATHERINE SELVA, a minor, Plaintiffs, IN THE CIRCUIT COURT OF THE 11 th JUDICIAL CIRCUIT IN AND FOR DADE BOUNTY, FLORIDA GENERAL TURISDICTION DIVISION CASE NO. 01-19375CA23 vs. THE CITY OF MIAMI, Defendant. PLAINTIFFS' PETITION FOR APPROVAL OF: (A) SETTLEMENT AFFECTING THE INTERESTS OF THE MINOR: AND 18) PLAN OF APPORTIONING SETTLEMENT PROCEEDS AMONG THE 'PLAINTIFFS ANO THE MINOR ALDO SELVA, individually, and MARIA ALCOBAR, individually and as the natural parent and guardian of KATHER1NE SELVA, a minor, by and through undersigned counsel, hereby file the instant Petition, and in support state as follows: +It�trod uvtion In the -early morning hours .of October 19,1999, Katherine Selva, then just four years of age, began having seizure activity. Before this date, Katherine Selva was diagnosed with a seizure disorder from infancy which occurred following a DPT immunization at approximately two :(2) months of age. She had multiple epileptic episodes which required several hospitalizations. However, through the administration of appropriate medication, Katherine's condition was controlled and she was able to live an active and loving life. Indeed, she wasattending pre- kindergarten and, according to physicians and therapists, was only mildly delayed as -a resultofher seizure disorder. After Katherine Selva started seizing on October 19,1999, specifically at about 1:00 a.m., Aldo Selva and Maria Alcobar — then married, sharing thesurname Selva and living together with their two children, Katherine Selva and her younger sister, Karenlyn — called 911 for paramedic assistance. A rescue vehicle initially reported at approximately 1:28 a.m. and found Katherine Selva having active seizures. In particular, two agents of City of Miami arrived, to wit: Ernesto Vila and Gustavo Busse, and advised that they found Katherine Selva actively seizing on a bed. These two fire rescue personnel administered two,(2) milligrarns-OfV aliurn.and requested 5Pco_PciSkITP:41,Pdly better equipped vehicle to transport Katherine Selva to Jackson Memorial Hospital at approximately 1:30am. Rescue Ten (10), which included pararnedic Henry Rodriguez and one to three of iers, subsequently arrived at approximately 1:43 a.m. Reports and testimony, albeit of highly questionable reliability, indicating that Rodriguez and/or other Rescue Ten personnel found Katherine Selva in a catatonic -like state and/or still activelyseizing. They claimed to be unable to obtain symptoms. These reports and testimony indicate that Rescue Ten personnel transported Katherine Selva to Jackson Memorial Hospital immediately upon arrival at the Selva residence or shortly thereafter. During transport, one or more of the personnel claim to have made several attempts to start an intravenous drip, but to no avail. This claim notwithstanding, they did successfully administer at least one (1) additional milligram of Valium via I.V. • Critically, however, the only oxygen said rescue personnel administered to Katherine Selva during transport was via standard mask, instead of a valve mask, and said personnel did not have and/or utilize an 02 saturation monitor. Moreover, it was clear that the rescue personnel did not watch Katherine Selves oxygen intake es they should have. Page -2- Upon arrival al the hospital, Katherine Selva was cyanotic, or oxygen starved, with her skin appearing blue in color. The child's oxygen saturation rates were determined upon admission to be a mere 359% with a heart rate of 210 beats per minute. Immediately, hospital personnel treated the young girl with Ativan and used a ventilation mask to oxygenate her in preparation for intubation. Katherine Selva's oxygen saturation rates improved dramaticall y to $ 5% and her heart rate decreased to 169 beats per minute following initial treatment. Despite the heroic efforts by the hospital personnel, Katherine Selva had already suffered permanent brain damage as a direct result of lack of oxygen. The City of Miami's rescue personnel owed a duty to Katherine Selva to respond appropriately and render medical treatment in accordance with the generally accepted standard of care. The City's personnel, notably the one or more paramedics in Rescue Ten, breached this duty by failing to respond in a timely and appropriate fashion and by failing specifically to treat the oxygen -starved condition of Katherine Selva en route to the hospital. This breach caused or substantially contributed to the devastating injuries suffered by Katherine Selva, which are uncontested as being permanent and irreversible. This breach also caused Katherine Se]va to incur past and future expenses, including, without limitation, hospitalization, daily medical and nursing care and/or treatment, transportation, tutoringor teaching, and child care or supervision, for which expenses Aldo Se]va and/or Maria Alcobar have been and will be responsible. Indeed, it has been determined that Medicaid alone has paid nearlyS900,000O0 for medical expenses incurred for the care and/or treatment of the incapacitated rninorehild-and that the Agency for Health Care Administration ("AHCA"), through its contract representative, Health Management Systems, inc. ("HMS"), has filed or will fide a § 409.10 Fla:Stat. Medicaid Casualty Lien associated with these payments. These economic lossesare permanent and continuing. Finally, Page -3- both parents have suffered and will continue to suffer the loss ofsociety, companionship and comfort of their daughter, Katherine Selva. Katherine was born May 3, 1995. She presentlyresides with her mother, Plaintiff Maria Alcobar. the Settlement Plaintiffs have reached a conditional settlement with Defendant, theCityof Miami, to settle this case for the gross amount of 2.625 million dollars. The Plaintiffs are permitted under the terms of the settlement to propose a plan to allocate the settlement funds as they deem .appropriate, subject, of course, to the approval of the guardian ad litem, Victor H. Womack, Esq.... this ...----.._ ., and Honorable Court. The settlement is, furthermore, subject to the approval by the City Commissionand theState legislature for a claims bill representing the sum above the S200,00.00 sovereign immunity limit amount. Further still, the City of Miami's representative, as part.of the settlement, has agreed to actively support the claims bill. Florida law mandates that Plaintiffs seek and obtain this Court's approval of this settlement. See, e.g., FLA.PROB.R. 5.636, and Committee Notes to FLA.PROB.R. 5.636. ( 'When a civil action is pending, the petition for approval of settlement should be filed in that action."). Because the settlement terns do not address how the settlement proceeds should be allocated amongthe Plaintiffs and the minor, the Court must consider and rule on that matter as well. Plaintiffs' Joint elan of Allocation The Plaintiffs have jointly developed what they submit is a just plan of -apportioning the settlement proceeds in a manner that would be in the best interest of -all concerned and specifically the minor child: Relative to the first S200,000.00, which amount requires CityCommission approval but not require approval by the Legislature: (1) per the Retainer Agreement between Plaintiff Aldo Selva and his undersigned law firm, Downs Brill Whitehead & Sane, which is a contingency fee Page -4- I agreement that comports with Florida Bar Rules' governing such agreements: $88,897.03 as costs shall be paid to the firm of Downs Brill Whitehead & Sage; (2) per the Retainer Agreement between Plaintiff Maria A]cobar and her undersigned law firm, Friedland Associates, which is a contingency fee agreement that comports with the Florida Bar Rules governing such agreements: $33,802.37 as costs shall be paid to Friedland & Associates; (3) $5,000.00 as a reserve for future costs to be incurred by Downs Brill Whitehead .& Sage; (4) $10,000.00 as a reserve for future costs to be incurred by Friedland •& Associates; (5) $5,000.00 .as a reserve for future fees and costs due Pau} Berman, Esq., of Berman & Berman, for his legal work in establishing and maintaining a guardianships for the minor child;,(6) One half ofthe remaining balance to AHCA for the percentage amount the Agency is due, per Chapter 409, Florida Statutes, of this first S200,000.00; and (7) the second half of the remaining balance of the settlement amount for the benefit of the minor child, placed in an appropriate special needs trust with a provision that any money left in the trust in the event of the child° s demise -shall be poured into a trust for the child's younger sister, Karenlyn. The Plaintiffs have each agreed to waive any claim that each may individually have to any portion 'of the settlement proceeds, including any claim based on pain and suffering that each may have suffered or will suffer. The Plaintiffs have each agreed to instead have all of the net settlement proceeds allocated to the special needs trust for the benefit of their minor child, Katherine, with the aforesaid provision for the Katherine's sister, Karenlyn. In the event that the legislature indeed passes into law an amount over S200,000.00, then relative to any such amount: (]) per the aforesaid Retainer Agreement between Plaintiff Aldo Selva and his undersigned law firm, Downs Brill V,Thitehead.& Sage, and the aforesaid Retainer Agreement between Maria Alcobar and her firm, Friedland & Associates, $50,000.00 as fees due the two "firrrrs from 25% of the first $200,000.00, split, per separate agreement between the two firms, 52.5% to Page -5- I Mly Downs Brill Whitehead & Sage and 4 .5 °/a to Friedland ,& Associates; (2) per the aforesaid Retainer Agreement between Plaintiff Aldo Selva and his undersigned law #`inn, Downs Brill Whitehead& Sage, and the aforesaid Retainer Agreement between Maria Alcobar and her firm, Friedland & Associates, 25% of any amount above S200,000.00 as fees due the two firms, split, per separate agreement between the two firms, 52.5% to Downs Brill Whitehead &'Sage and 47.5% to Friedland & Associates; (3) the appropriate dollar amount to ARCA for the share the Agency is .due, per Chapter 409, Florida Statutes; for any amount above the first S200,000.00, minus the prior payment to the Agency; and (4) the balance of any amount over the first S200,000.00, for the benefit of the minor child, all placed in an appropri ate separate needstrust. Again, the Plaintiffs have each .agreed to have all of the net settlement proceeds allocated to the special needs trust for the benefit oftheir minor child, Katherine, with a provision that any money left in the trust in the event .ofKatherine's demise shall be poured into a trust for Karenlyn. Any money left over from proceeds left in trust for lawyers' costs, nominal as it may be, shall also be paid to the benefit Of Katherine's sister, Karenlyn. WHEREFORE, Plaintiffs request the Court approve the Settlement and the Plan of Apportioning Settlement Proceeds as set out herein Respectfully submitted, Lee Friedland, Esquire Friedland & Associates Attorney for Plaintiff Maria Alcobar 44'86 Davie Read Davie, FL 33314 Telephone: (954 32128810 BY . " "Y Lee Friedland, Esq. Florida Bar No.: 991163 -AND- Page -6- • DOWNS BRILL WHITEHEAD&'SAGE Attorneys for Plaintiff Aldo Seiva Mercantile Bank Building One' Southwest 129th Avenue, Suite 305 Pemb • "fines, F 33027 ephone: (95 447-3556 Facsimile: - 4) 447-3557 .: 9595'6'0 . age, Esq. Fla. Bar No.: 928577 The below guardian ad litem, pursuant to FLA.PRoB.R. 5.636, signs belowto signify: (1) that he adopts this instant Petition as his report; (2) that theinstant Petition adequately presents a statement of the facts of the minor's claims and the terms of the proposed settlement, including any benefits to any persons or parties with related claims; (3) in evaluating the claim of the minor for whom the guardian ad litem has been appointed and th•e proposed settlement, the below guardian ad litem has reviewed relevant materials in this case and/or intervi ewed witnesses and/or consulted with Plaintiffs' and/or Defendant's counsel; and, (4) the ,guardian ad litem has determined that the proposed settlement will be in the best interest of the minor for whom the guardians ad titem has been appointed. Page -7- Victor H. Womack Esq.