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Hospital bears brunt of suit settlement

Seven Rivers Community has agreed to pay $6-million in the case of boy who suffered brain damage during birth.

Published September 20, 2003

Joseph and Rebecca Davis will celebrate their son's third birthday on Sunday.

Celebration is a relative term, of course. Cody Davis has progressed since his tragic first day, but he can't walk or talk and must take medication to ward off seizures. He gets nourishment from a tube to his stomach.

He suffered permanent brain damage during his mother's labor and delivery on Sept. 21, 2000, at Seven Rivers Community Hospital in Crystal River.

In a lawsuit filed in Citrus County, the parents blamed the hospital, doctors and nurses for negligent care. The medical professionals denied all wrongdoing.

But in an agreement reached April 11, just one month before the suit was set for trial, the parties settled the case for $6.65-million. Seven Rivers must pay $6-million of the total settlement.

After attorney's fees and expenses, the Davis family will receive about $3.3-million. The money will provide for the child's medical, therapeutic and nursing care, which his lawyer said could have been avoided if physicians had performed a Caesarean section sooner.

"It's absolutely tragic what happened with this child and absolutely preventable," said Rebecca L. Larson, the West Palm Beach lawyer who represented the Davises. Her firm received nearly $2.7-million, 40 percent of the settlement, for its services.

Like many medical malpractice lawsuits, this one was never reported in the newspapers. But recently, a Times reporter was looking through the professional liability closed claims records on the Florida Department of Financial Services Web site and noticed a particularly large claim made against Seven Rivers.

The case's court file revealed an extensive complaint that accused two doctors, three nurses and the hospital of negligence. The 13 volumes also included adamant defenses and expert opinions that framed the allegations as unfounded.

The lawyers representing the involved parties were reluctant to discuss the suit's outcome, having been under the impression that details of the settlement were confidential.

However, motions to seal the settlement documents were not granted by Circuit Judge Patricia Thomas until Friday morning, after a Times reporter began asking questions about the case.

The file provides a glimpse at the kinds of costly medical malpractice lawsuits Florida legislators, doctors, lawyers and insurance companies spent much of this year debating. Some physicians, particularly obstetricians, complained that large jury awards were driving up their malpractice insurance rates and forcing them out of business.

Gov. Jeb Bush has signed a bill that will cap pain and suffering awards in egregious cases at $1-million for doctors and $1.5-million for hospitals.

In their complaint, filed in August 2001, the Davises accused Dr. Jose R. Fernandez, an obstetrician and gynecologist in Crystal River, of failing to recognize and treat cephalopelvic disproportion. The condition, according to the National Library of Medicine's MEDLINEplus Web site, occurs when a mother's pelvis is too small for her infant's head to pass through.

It is a common reason for doctors to perform a Caesarean section, which eventually happened in Rebecca Davis' case. But it was ordered too late, Larson said. The baby had been deprived of oxygen too long.

Fernandez's lawyers disputed this version of events.

"The injuries or damages alleged by Plaintiffs are the sole result of the natural and inexorable process of human disease and/or an act of God, and not the result of any act or omission by this Defendant," stated the doctor's legal response, submitted in September 2001.

The couple and its attorney also argued Dr. Leonard Calodney, an anesthesiologist, and C.R. Anesthesia did not properly research the fetal status before inducing Rebecca Davis' anesthesia.

Finally, the suit accused three registered nurses - Katia P. Bowden, Dorothea J. Lombardi and Carol F. Durden - of negligence. It said they inappropriately monitored the mother's labor, failed to report signs of abnormal labor associated with fetal distress or intervene when there was evidence of fetal distress and did not make timely preparations for an emergency Caesarean section.

None of the medical professionals admitted negligence as part of the settlement.

"It's an unfortunate incident," said Thomas Saieva, one of the hospital's Tampa-based attorneys. "Nothing's going to be done to reverse that. The settlement has been done to provide the care."

Seven Rivers is owned by Tenet Health Corp. However, Health Management Associates Inc. announced in August that it would buy the hospital.

Fernandez's lawyer, Michael Minkin of Tampa, said expert reviews of the birth process bolstered the doctor's assertion that he was not negligent. This is the first time the doctor has been sued since he began practicing in 1960, Minkin said.

Neither Fernandez nor Calodney has been disciplined by any medical board for this case or any others during the past 10 years, according to Florida Department of Health records.

"The decision to settle the case was primarily an economic one more than anything else," Minkin said.

The settlement requires Calodney and C.R. Anesthesia to pay $400,000; Fernandez will be responsible for the remaining $250,000.

The Davis family will get most of its money by way of monthly payments from annuities purchased by the hospital, according to court records.

A $2-million annuity package will provide Cody Davis with $6,302 each month for at least the next 40 years. His parents, who moved away from Crystal River to the Florida Panhandle, will receive $2,944 monthly for the next 15 years through a separate annuity. Both payments began this summer, court documents show.

Rebecca Davis, now 24, provides around-the-clock care for her son, the family's lawyer said. She intends to always do so.

"This child will never be in an institution," Larson said. "He is very much loved. They have built their entire world around him."

- Colleen Jenkins can be reached at 860-7303 or

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