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Seeking legislative relief

A doctor's mistake left her unable to walk. A jury said she should get $8.5-million. But that can't be claimed unless lawmakers consent, and that hasn't happened.

By TAMARA LUSH
Published April 13, 2005

	[Times photo: Willie J. Allen Jr.]
	Above, 17-year-old Minouche Noel sits in the wheelchair she has had since she was 11. Below, her hands show the scars and callouses she has endured from the chair and her attempts to maneuver around her home, with and without the chair.

FORT LAUDERDALE -- Every morning at 5:30, 17-year-old Minouche Noel crawls down a narrow hallway to the bathroom.

Dragging her lifeless legs behind her, she struggles to lift herself into the tub. Her hands are scarred from pulling herself around.

Minouche (pronounced ma-noosh) has been paralyzed from the waist down since she was 6 months old, the victim of a botched surgery.

Doctors say she will never walk again.

Still, life would be easier if her wheelchair fit through her family's tiny bathroom door. Or if they had a handicap-accessible van. Or if she got physical therapy.

But her family can't afford such luxuries, despite a jury verdict that she is owed $8.5-million as compensation for medical malpractice.

Minouche hasn't seen a dime.

Her case illustrates the limits of justice when the government is to blame. Because she was treated by doctors working for a state-run, low-income medical program, Minouche cannot collect more than $200,000 unless the Florida Legislature consents. It's the law.

Five years of pleading, lobbying and legal maneuvering have done no good. In the corridors of the state Capitol, a paralyzed teenager seeking justice is easily ignored.

But Minouche has not given up hope. Today she flies to Tallahassee to plead her case in person.

Minouche's mother, Flora, marvels at attention legislators paid to Terri Schiavo, and wonders.

"Look at the way people fought for her life and she didn't even know what was going on," she says. "I want to ask all of them: Why are you punishing my daughter?"

* * *

It's last period at Dillard High and the two dozen teenagers in Emmitt Green's American history class are squirming, dozing, whispering. Some are even listening.

Like Minouche.

She's a little sleepy because she just had lunch. American history isn't her favorite, not like physical education, where she pushes her wheelchair with one arm and dribbles a basketball with the other.

Minouche is a giggling, excitable, whip-smart high school junior with almond-shaped brown eyes and a sleek ponytail. She has no feeling in her hips, legs or feet. Her legs tremble uncontrollably, something that could be calmed by physical therapy.

Minouche tries to ignore the spasms and the undersized wheelchair she got when she was in middle school. The paint is peeling and the seat is ripped.

Minouche is well-known and well-liked at Dillard. Her friends sometimes wheel her to the library or fetch her book bag. They yell "MINOUCHE!" when they see her in the halls. Tabatha Clark, an aide provided by the school district, is always at her side. Clark empties Minouche's bladder twice a day.

But right now Minouche has to focus on history. She has a B average but wants A's so she can go to college next year. She wants to be a nurse, or maybe a lawyer.

Minouche opens her textbook to the War of 1812. The teacher wants to make a point about regionalism and needs some class participation.

"Let's play a little geography," Green says. "What's the capital of Florida?"

Everyone calls out in singsong: "Tall-a-hassee."

"What happens in the capital?"

While other kids yell out answers, Minouche is silent. She rests her elbow on the arm of her wheelchair and lets out a sigh.

Does anything good happen in Tallahassee?

* * *

Getting money out of the Florida Legislature for someone like Minouche requires the passage of something called a claims bill.

If Minouche had been treated at a private hospital, she'd probably already have the money the jury said she is owed.

But her family was poor, so they took her to Children's Medical Service, a state-run program administered at Broward County's public hospitals. Like municipalities and state agencies, the program and its doctors enjoy sovereign immunity. That means claims cannot exceed $200,000 unless the Legislature says otherwise.

Up to a dozen claims bills are filed each year. Few are approved.

Last year, Gov. Bush signed a $3.8-million claims bill for the family of a man who died after he was misdiagnosed with a brain tumor at a public hospital in Broward; he actually had an an aneurysm.

Legislative leaders are sympathetic to Minouche's plight, but their sympathy has limits.

"I've probably never been a huge fan of claims bills in general," said House Speaker Allan Bense, R-Panama City. "In all of the claims bills that come before us, there are some very bad things that occurred. Unfortunately, if we fund every one of them, I'm afraid that the state and county and local governments will eventually not be able to survive because of all of the claims. That's why we have sovereign immunity."

To Senate President Tom Lee, R-Brandon, the problem with claims bills is that the ones that pass "have the right lobbyist with the right connections."

"They end up getting a bill through the legislature to make a particular individual whole while a litany of other people out there are unable to access this Legislature," Lee said.

"I don't like claims bills."

* * *

To Minouche and her family, it's a matter of justice: The state is responsible and should pay for the doctors' mistakes.

Minouche's father, Jean, is a cook. Her mother is a nurse's assistant. They came to Florida from Haiti about six years before Minouche was born.

Minouche was born with spina bifida, a neural tube defect that affects the spine. A doctor at Children's Medical Services also found a small lesion on her back.

Doctors removed the lesion, but her spine became infected during surgery. As Minouche slowly became paralyzed from the waist down, doctors assured her parents she would recover. But they failed to detect the infection, and many doctors didn't even give her a neurological exam, which would have uncovered the problem.

A jury concluded Minouche was the victim of medical malpractice. Doctors should have diagnosed the infection, and they never should have operated on the lesion in the first place.

The state, which owns the clinic, never appealed the verdict but maintains that $1.7-million would cover Minouche's lifetime needs.

Today, a House committee will take up Minouche's claim. Stephanie Birtman, a special master asked by the committee to review the case, recommended the state use general revenue to pay the $8.5-million claim because the clinic was run by the state Department of Health.

She has made the same recommendation the past four years.

Minouche's lawyer, Sheldon Schlesinger, plans to fly her to Tallahassee for today's hearing. It will be her first trip to the state capital.

By law, Schlesinger and Donnie Lamonica, the lobbyist he hired to help pass the bill, cannot collect more than 25 percent of the claim.

"The process itself is extremely burdensome, delicate and coupled with political considerations that transcend anything we know of in the legal field," Schlesinger said. "It's politics."

* * *

Minouche is punished every day she goes to school, her mom says. First she crawls on the floor to get to the bathroom, and then she can't even get to her school bus alone.

Mrs. Noel flings open the front door to the family's apartment to make a point.

There is no a wheelchair ramp, only an uneven, rocky driveway. Sometimes, Minouche has to sit at the curb after school because no one is home to push her inside.

"If they can put my daughter on her two feet, they can keep the money," Mrs. Noel says. "But if they can't put her on her two feet, then she's going to need money to survive."

--Times staff writers Lucy Morgan and Steve Bousquet and researcher Cathy Wos contributed to this report. Tamara Lush can be reached at lush@sptimes.com or 727 893-8612.

[Last modified April 13, 2005, 06:10:58]