Photo of Allan and Marilyn Navarro by Hugh Williams.
Magazine Feature: A misdiagnosed stroke left Allan Navarro disabled. After gutting out six years of litigation, his lawsuit made history.
The jurors observed the spent form of Allan Navarro only intermittently during three weeks of testimony about the destruction of his life.
He was absent most days as his lawyer, Steven Yerrid, took the jury through the course of alleged medical neglect and malfeasance that caused the former basketball standout to lose his ability to move, have sex, lift his son, eat. Navarro didn’t attend much because he cannot control his bowels or bladder and needs his diaper changed.
But he was there in his wheelchair as Yerrid, a standout in his own right among Florida’s plaintiffs’ lawyers, made the final plea for compensation for the Navarro family.
Though he had practiced for 30 years and won about 75 verdicts and settlements exceeding $1 million, Yerrid’s final question during Navarro’s testimony a week earlier had thrown the Tampa courtroom for a loop.
“What animal do you admire most?” Yerrid asked his client.
“Lion,” Navarro responded.
“That’s all,” Yerrid said to the court, and returned to his seat.
Yerrid’s face is weathered by four decades in the Florida sun and a deep passion for sailing. His smile contains more than a mischievous trace of the actor James Caan. Yerrid told courthouse employees to bolt down the corners of the building when he started this trial: He was going to blow the roof off.
During closing arguments on Sept. 29, the day before his 57th birthday, Yerrid reminded the jurors about Navarro’s favorite animal by telling an anecdote from his own life. When he was a kid, Yerrid told jurors, his father took him to the zoo and pointed to an enormous beast.
"What are those?" his father asked him.
“I said, ‘Well, those are lions, Dad,’” Yerrid recounted for the jury. “‘I saw pictures of them in the book. They’re walking around. They’ve got the manes, and look at the sign on the cage. It says lions.’”
No, Yerrid's father told him. Lions live on the Serengeti, where they are free.
“‘Once they cage him in the zoo, he’s not a lion anymore.’” Yerrid repeated the lesson to the jury. “‘He doesn’t have the ability to protect those family members he loved so much. He cannot play and roar and be the king. No. They feed him with a bucket … And he knows one thing for sure; he can never leave that cage.’”
That was now Navarro, once a proud athlete, husband and father, who had to live “in that vomit, that pee, the smell, in the soiled diapers.”
“If red ants were eating him alive, [he] couldn’t even roll three inches to get away from the ant bite,” Yerrid told jurors.
Only justice — in the form of monetary damages — could free Navarro, Yerrid said. “Allan Navarro, the old lion that’s locked up forever, just in that prison you see right there,” he said.
“The lion needs to be set free,” he told jurors. “You have the keys. You know what his cage looks like.”
SIX WEEKS AFTER THE TRIAL, Navarro rests in a mechanized wheelchair in his living room in Land O’ Lakes, Fla., a town north of Tampa perhaps most notable as the filming site of the movie “Edward Scissorhands.” Behind a set of gates securing a development known as Lake Talia, a Virgin Mary statue greets visitors as they head to the Navarros’ front door.
Navarro is surrounded by his wife, Marilyn, and his sister and brother-in-law, Susan and Ed Bilbao. Also present is one of his original attorneys, David Dickey, who has become a close friend of the family in the six years he and his longtime law partner, Richard Gilbert, have represented the Navarros.
Navarro recently went to see his 10-year-old son, Scottie, play in a basketball game — which Dickey thinks is terrific. Dickey has long been concerned about his client’s mental health.
Navarro, 50, played professional basketball in the Philippines before coming to America in 1995. His hero is Michael Jordan. It depresses him that he can’t play ball with his son.
Tonight, he says he’s upset that Scottie didn’t get much playing time. Marilyn and Ed have to translate. Navarro can speak only in short and slow gasps that can be hard to understand.
Navarro has no use of his limbs, except for limited use of his right arm. Thanksgiving is a week from this evening, but Navarro won’t be able to eat the mashed potatoes he loves so much. His repeated choking has caused respiratory problems. Doctors have now forbidden him from eating, his last remaining pleasure.
As the family reminisces about the trial, Dickey asks for the poster-sized blown-up photos from the good days — parties with friends in the local Filipino community, poses with family members.
They are more lifelike than Navarro himself, particularly when placed at the feet of his wheelchair.
These were courtroom exhibits, and one shows Navarro holding his son, then 4, and wearing a wry, satisfied smile and the blazing white suit later selected for his funeral.
The family began planning Navarro’s funeral days after his emergency surgery on Aug. 10, 2000, when doctors said he would not awake from the coma brought on by a stroke.
The family are devout Catholics and listened to their priests. Sitting on the couch next to her husband’s wheelchair, Marilyn recounts how they told her he was suffering and should be set free.
The family scheduled their last goodbyes and agreed to have Navarro’s respirator removed. That day, a family friend who worked as a nurse at the University Community Hospital in Tampa stopped by to try to communicate with Navarro. He blinked. She called in the neurologist, who decided Navarro should remain alive.
That was a close call — so close that the funeral home called the family and asked where the body was.
“I said ‘There’s no body,’” Ed cries out with a gasp. “‘He woke up!’”
The living room erupts in laughter. They laugh often when discussing details of this six-year ordeal, as hard as their lives have been. Navarro slowly emerged from the coma. He was in care facilities for six years before moving back with his wife and son in January 2006. The family members believe Navarro’s life is a miracle.
Navarro is proud of that anecdote. They couldn’t pull the plug. He’s a fighter.
ALLAN AND MARILYN NAVARRO MET in the early 1980s in Cebu City, Philippines, a city of about 2 million people. They were neighbors. Each had a young child from a past relationship. As a professional basketball player, Navarro was quite famous in the area. He also coached basketball at the University of Cebu and served as a neighborhood councilman.
Marilyn’s father was a U.S. citizen who sponsored her to come to America in 1989. She lived in Stockton, Calif., while Allan stayed in the Philippines. They got married in Cebu in 1992. After Marilyn became a citizen, she sponsored her husband’s move to Stockton in 1995. The following year, Scottie was born. He was the first child they had together, and his birth made Navarro enormously proud.
The family moved to Tampa in 1998. Navarro continued to play basketball in local leagues and with friends. A machine operator for Time Warner, he was an active and caring father. He did all the cooking for the family. He loved picking up Scottie and holding him in the air. Navarro’s first child, Vanessa, and Marilyn’s first, Archie, are in their 20s and no longer live at home.
Archie was still at home on Aug. 9, 2000. That Wednesday morning, he woke up his mom to tell her that dad was very sick. Marilyn found her husband on the couch, holding his head in his hands. Navarro had felt a pop in his head earlier in the morning and now had an excruciating headache. He told Marilyn to call in sick for him. Later, she called their primary care physician, but he was at lunch. When she finally reached him, he told her to take Navarro to the emergency room.
Marilyn took Navarro to the emergency room at the University Community Hospital’s Carrollwood campus at around 2:30 p.m.
Examined by a man Marilyn believed to be a physician’s assistant, Navarro complained of headache, nausea, dizziness and double vision. Navarro also recounted a medical history that included high blood pressure, high cholesterol, diabetes and a family history of strokes.
Later, the attending physician in the emergency room that day, Michael Austin, met with the Navarros for a few minutes and ordered computerized tomography, or CT, scans of Navarro’s brain. When the tests came back negative, Navarro was sent home. His diagnosis: sinusitis. Painkillers were prescribed.
The painkillers didn’t work. That night, Marilyn tried rubbing her husband’s head with holy water because he believed it had healing powers. She woke up at 4 a.m. to find Navarro pacing around their home in confusion and pain, bumping into walls, vomiting occasionally and slurring his speech.
Marilyn has worked as a nurse for most of her adult life, both in the Philippines and the United States. But she didn’t need her training to tell her something was seriously wrong with her husband.
The Navarros returned to the Carrollwood emergency room at 6 a.m. on Aug. 10. New CT scans showed that Navarro had suffered a stroke. He was transferred from the Carrollwood to the Fletcher campus of the University Community Hospital, about 15 minutes away. Before the transfer, Navarro was able tell Marilyn that he loved her. He told her to take care of Scottie and to send his body back to the Philippines if he died.
Marilyn was in the waiting room at Fletcher when a patient-affairs counselor came to tell her that her husband was in critical condition and might not survive. Navarro went into surgery at about 2 p.m. A shunt was inserted into his brain to relieve intracranial pressure, but the damage to his brain was irreversible. He lingered in a coma for several weeks.
Since then, Navarro has been a prisoner in his own body and an immeasurable burden to his family.
The Navarros and the Bilbaos didn’t know whether they should file any malpractice claims. Marilyn says she was reluctant. The family has friends who are doctors, and they didn’t want to be viewed as the type of people who would file a malpractice lawsuit.
They prayed about it. Ed Bilbao did some research on the Internet, looking for board-certified civil-trial lawyers in Florida. They looked at the list and prayed some more. Richard Gilbert’s name was on that list. Ed called a few firms and spoke mostly to secretaries. When he called de la Parte & Gilbert, he got the name partner on the line.
Gilbert, 58, has been practicing in Florida since 1974. He is the senior partner in the firm founded by Louis de la Parte, a well-known political figure who was in the state legislature for many years. De la Parte is retired.
Colleagues call Gilbert “the medicine man” for his ability to present complex medical evidence to jurors — a skill developed over 30 years in practice. Gilbert handles complex commercial litigation in addition to personal injury and medical malpractice cases.
Dickey, also a partner at de la Parte & Gilbert, is newer to the profession, having had a career in the military before passing the Bar Exam in 1992. He was a U.S. Naval Officer from 1981 to 1989 and flew fighter planes. He graduated from TOPGUN, the Naval Fighter Weapons School, in 1986, the same year of the movie “Top Gun” starring Tom Cruise. Dickey later worked for the Defense Intelligence Agency. Many people in that type of position end up finding a job somewhere in the military-industrial complex. But that didn’t interest Dickey, who wanted to get out of the war business and make a difference in a positive way.
After meeting with the Navarros, getting the medical records and consulting with experts, Gilbert and Dickey believed their new clients had compelling legal claims.
Most important, Gilbert concluded, Austin had ordered only CT scans for Navarro. The problem was that such scans are only effective at ruling out a hemorrhagic stroke — which involves bleeding in the brain — not an ischemic stroke, which involves the blockage of an artery to the brain.
On the morning of Aug. 9, Navarro had suffered an ischemic stroke in the cerebellum, which is the smaller and less important portion of the brain, located below the main part, the cerebrum. The cerebellum is responsible for posture, balance and coordination.
A CT scan is only able to reveal that type of stroke many hours later, which is why the tests were positive on Aug. 10.
The ischemic stroke in the cerebellum was an evolving condition. Earlier discovery and treatment on Aug. 9 could have prevented Navarro from becoming seriously and permanently injured, his attorneys believed. If properly diagnosed, they believed, the damage to the cerebellum would have left Navarro with only some coordination problems. Timely surgery could have prevented the swelling that irreversibly damaged Navarro’s brainstem — the portion that controls vital bodily functions — and left him permanently disabled.
Given the symptoms he presented the afternoon of August 9, Navarro should have received a thorough neurological examination and consultation to test the function of his cerebellum, Gilbert says. Those tests would not have come out normal, and Navarro would have been admitted for observation.
Instead, Austin discharged Navarro even though he was unsteady on his feet.
The attorneys knew they faced a high hurdle to show that the attending staff deviated from a reasonable standard of care. After all, emergency rooms are busy and treat lots of patients. And Navarro was, in fact, evaluated and tested over a period of several hours. In addition, ischemic strokes in the cerebellum are extremely rare. The vast majority of strokes are hemorrhagic strokes that affect the cerebrum.
Though it was clear Navarro and his family had suffered, the lawyers knew one of the golden rules of medical malpractice: To suffer is human; to be liable, the exception. Bad things happen to people, including strokes. Even with exemplary care, strokes can cause lasting damage.
THE NAVARROS FILED THEIR LAWSUIT in 2002 against Austin and the medical group Franklin, Favata & Hulls, which was Austin’s employer and was under contract with University Community Hospital to run the Carrollwood emergency room. (Other defendants in the case, including the hospital and the doctors who treated Navarro on Aug. 10, settled before trial.) The suit was filed in Florida’s 13th Judicial District, Hillsborough County, which includes the Tampa area.
As Gilbert and Dickey began discovery, they were still missing the name of the staff member who examined Navarro before Austin ordered the CT scans. Austin tested only Navarro’s reflexes and hand grip — nothing that would detect the stroke. Marilyn didn’t recall the staff member’s name, though she remembered that he identified himself as a physician’s assistant.
Gilbert deposed Austin in April 2003, and the doctor couldn’t recall who had evaluated Navarro before him. He didn’t recognize the handwriting on the examination sheet, called a “T sheet,” other than his own signature at the bottom.
It would have been his “pattern and practice” to repeat any medical history and examination done by certain types of people who assisted in the emergency room, such as medical students and interns, Austin testified at his deposition. But he didn’t know who had filled out the sheet.
Gilbert and Dickey sought the identity of the employee through a discovery request to Franklin Favata, but the group claimed it couldn’t find the staff member’s name. Eventually, the group provided a calendar list of physician’s assistants who worked that day, but the document was of little help.
Gilbert and Dickey decided to depose a corporate representative from Franklin Favata.
The group produced Pam Hall, an administrator, who told the plaintiffs that Franklin Favata used “expediters” who served as note takers or scribes for doctors to help the emergency room run more efficiently. Gilbert and Dickey then requested the names of all the expediters. Sixteen months after they first asked for the staff member’s name, Franklin Favata finally told them who had filled out Navarro’s sheet: Mark Herranz.
Gilbert deposed Herranz in June 2004. He testified that he had failed the state’s test to become a licensed physician’s assistant. However, Herranz said, in his role as an expediter, he merely served as a scribe for doctors and did not perform any official clinical duties, such as patient exams.
Gilbert and Dickey turned their sights to the trial, scheduled for March 7, 2005. They were set to square off against Louis LaCava, a well known defense attorney from Stephens Lynn Klein LaCava Hoffman & Puya in Tampa. LaCava represented both Austin and Franklin Favata, paid for by their medical liability insurer, ProNational Insurance Co.
Four days before trial, LaCava wanted out of the case. He filed an emergency motion to withdraw, saying that Austin had provided new information that created “an irreconcilable conflict.” Citing attorney-client privilege, LaCava did not reveal the nature of the conflict.
Hillsborough County Judge James Arnold, who was presiding over the case, held a hearing on the matter and met privately with LaCava. Arnold granted the withdrawal motion and postponed the trial.
The plaintiffs suspected something big.
“They had been representing both Austin and the medical group for two years without a relational conflict,” Gilbert says of LaCava’s team. “We knew this had to have something to do with one of those parties intending to testify or make comments that the other party felt incorrect or inaccurate.”
Gilbert responded with a motion titled unlike any in his long career: “Plaintiff’s motion to prevent the presentation of perjured testimony and to prevent the perpetration of a fraud on the court.”
In short, Gilbert wanted to re-depose the key witnesses to learn what had caused the bump in the defendants’ case. Arnold granted the motion.
Gilbert deposed Austin a second time, on June 13, 2005.
By now, Austin had learned that Herranz was the person who had conducted the medical history and examination of Navarro. In his second deposition, Austin testified that he thought Herranz was a licensed physician’s assistant. As a result, he did not redo the medical history and examination conducted by Herranz.
The plaintiffs believed they now had a strong case against Franklin Favata for allowing the unlicensed practice of medicine. It was no surprise Herranz had missed Navarro’s stroke; he was untrained and had no idea what to look for.
To nail down their theory, the plaintiffs pursued a second deposition of Herranz, who had to be threatened with jail time and found in contempt by the new judge on the case, Judge Sam Pendino, before he would be examined.
In late July 2005, Herranz was deposed again. He admitted that he conducted examinations but insisted that they were never the examinations of record.
He asserted his Fifth Amendment right when asked how many times he failed the state’s physician’s assistant exam. The plaintiffs’ attorneys surmised that Herranz may have feared that he could someday face criminal charges for practicing medicine without a license.
The next month, Navarro’s lawyers amended their complaint, adding new negligence claims against Franklin Favata to push the theory of “profits over patient care.” Austin remained negligent as the physician with ultimate responsibility for Navarro’s care and for discharging him with the wrong diagnosis, the lawyers contended, but Herranz’s unlicensed status made the case far worse than mere negligence.
To bolster their point, the plaintiffs detailed a series of alleged failures by the medical provider: Franklin Favata never had a written job description for Herranz that limited his role in the emergency room; Franklin Favata never alerted its employees that Herranz was unlicensed and should not perform any clinical duties; Franklin Favata billed for Herranz’s work as if he were a doctor; and though officially Herranz’s role was as an expediter or scribe, Franklin Favata had no policies or procedures that stopped Herranz from engaging in the unlicensed practice of medicine.
On August 9, when Navarro walked through the doors of the emergency room, he was snared by a trap laid by a health care provider, his lawyers contended.
“The case had taken on a punitive nature,” Gilbert says. “We were able to argue that the medical group had created a system that placed profits over patient care.”
In his order allowing the plaintiffs to amend their complaint, Judge Pendino found “evidence of active concealment” on the part of Franklin Favata when it came to identifying the people who provided care to Navarro on Aug. 9, 2000.
As the plaintiffs got their feet under them, the defense continued to falter. In September 2005, Austin filed a complaint against the liability insurer, ProNational, with the civil remedy section of Florida’s Department of Financial Services. He claimed that ProNational never conducted a reasonable investigation at the outset of the case to see if Navarro’s claims were valid. He accused the company of having a policy of refusing to settle even valid claims.
“Had I known this at the time I went to work for Franklin, Favata & Hulls,” Austin writes in the complaint, “I would have purchased insurance with another carrier.”
He also claimed that he felt pressured to commit perjury by his attorney when he told LaCava in a March 2005 pretrial meeting that he did not re-examine Navarro after Herranz examined him. He said that LaCava told him to testify as he did during his April 2003 deposition — that it would have been his customary practice to redo the exam. He also claimed that after LaCava withdrew, ProNational Vice President Tony DaPore gave him a similar instruction at a March 24 meeting.
LaCava denies pressuring his client to testify one way or the other. He says he merely asked Austin to choose which version was accurate — whether he did or did not redo the examination. Once Austin made clear that he did not redo the exam, LaCava says, he had no choice but to withdraw from the case because the testimony was not favorable to his other client, Franklin Favata.
Frank O’Neil, a spokesperson for ProNational, says that the company categorically denies all of Austin’s assertions. ProNational filed its own declaratory judgment lawsuit against Austin, claiming that the doctor violated the terms of his professional liability policy. ProNational has continued to pay for Austin’s defense, as those claims are pending.
Austin’s complaint against ProNational and the perjury allegations underscored the plaintiffs’ belief that ProNational and Franklin Favata had been trying to hide Herranz’s involvement all along.
In March 2006, they filed a motion asking the judge then presiding over the case, Ralph Stoddard, to enter a judgment of liability against the defendants for a pattern of discovery abuses and misdeeds.
Stoddard took a day to hear their claims. He ruled the matter should be decided at trial, by a jury.
THE WITHDRAWAL OF LACAVA brought new legal teams: one for Austin, the other for Franklin Favata. Jeffrey Goodis, a partner at Thompson, Goodis, Thompson, Groseclose & Richardson in St. Petersburg, Fla., represented Austin at trial while Brian Stokes, a partner from The Unger Law Group in Orlando, defended the medical group. (Stokes also defended Carrollwood Emergency Physicians, the group set up by Franklin Favata to run the ER. The two entities were treated as the same defendant throughout the case.)
The delay also brought a new lawyer on the plaintiffs’ side, Steven Yerrid. In early 2006, as Gilbert and Dickey prepared the case for trial, Gilbert broke his hip in a bike-riding accident. Unsure of how well or quickly he would heal, the lawyers decided to get some help.
Yerrid was a natural choice. He and Gilbert practice in the same downtown Tampa building and have been friendly for years. Yerrid also has a reputation for bringing in the biggest wins.
Though Yerrid trusted Gilbert on the merits of the case, he wanted to meet the family before fully signing on.
“I was struck by their sincerity and integrity. They are really top-drawer people,” says Yerrid, who joined the team in April and tried the case with the two original lawyers.
The trial of Navarro v. Austin began on Sept. 11 before Judge Gregory Holder. It took two days to pick a jury of six people, as required for Florida civil cases.
Yerrid and Gilbert tag-teamed for opening statements. Yerrid laid out the tragedy that had wrecked the Navarro family while Gilbert outlined the medical missteps of Aug. 9, focusing on the failure to perform a neurological test of Navarro’s cerebellum.
The defense told the jury that Navarro’s brainstem injury resulted from the stroke itself — not from delays in treatment. And strokes happen, they said.
Goodis and Stokes also highlighted the difference in Navarro’s condition between August 9 and 10, hoping to show the standard of care was met on the first day, when Navarro was alert, oriented and communicative. It wasn’t until the next day that his symptoms had worsened to include slurred speech, facial drooping, nystagmus (involuntary eye movement) and eventually the respiratory distress that almost killed him.
The defense strategies diverged when it came to Herranz, however, who, in another strange twist to the case, died five months before trial at age 37.
Goodis said that Austin didn’t redo the medical history and examination of Navarro because his client thought Herranz was a licensed physician’s assistant and capable of performing exams.
Stokes maintained that Herranz never conducted an exam on Navarro or any other patient because Franklin Favata limited the duties of the expediters. He told the jury the evidence in the case would back up what Herranz had testified to in his depositions: He was merely an expediter or scribe for emergency room doctors, including Austin.
In his opening statement for the medical group, Stokes also talked about Rebecca Barkhurst, a nurse who worked at the hospital on Aug. 9. In her nursing chart for Navarro that day, Barkhurst wrote “Exam by Dr.”
Stokes told jurors that during her June 2003 deposition Barkhurst testified that her notes meant exactly what they said: A doctor had examined Navarro.
Of course, that deposition had taken place before the plaintiffs had learned Herranz’s name.
Stokes gave his opening statement unaware that in March 2005, Dickey called Barkhurst and told her they had found the missing staff member who saw Navarro that day, and that Herranz was the missing link. Like Austin, once Barkhurst knew the missing man’s identity, her testimony changed.
After Stokes thanked the jury for their attention, the courtroom watched a videotape of Herranz’s second deposition. Then Gilbert called his first witness: Rebecca Barkhurst.
“I witnessed Mr. Herranz examining patients, obtaining histories, and doing examinations,” Barkhurst testified, directly contradicting Stokes’ opening points. “I never witnessed him serving as a scribe.”
Gilbert asked her why she wrote “Exam by Dr.”
“Because I knew that Mr. Herranz was not a licensed physician’s assistant, but I wasn’t sure what he should be — what his title should be documented as, and I was not comfortable writing PA,” Barkhurst said.
Stokes was outraged. After the jury was excused for the day, he requested that Judge Holder declare a mistrial. The plaintiffs’ attorneys had engaged in “blatant sandbagging” by not informing him of Barkhurst’s changed testimony, he argued.
But Holder noted that attorneys only have to let opposing counsel know about changed testimony when it relates to expert witnesses, not factual witnesses like Barkhurst. He denied the motion.
Holder told Stokes he could try to find some case law to support his view, but he doubted the lawyer would come up with anything.
“Again, I’ve only been doing this for 25 years or so,” Holder remarked.
The plaintiffs were off and running as Yerrid began to score similar points with other key witnesses. Austin testified as he did in his second deposition, that he would not have repeated Herranz’s examination.
“Mark Herranz was acting, walking, talking, dressing, and doing everything that a physician’s assistant would be expected to do in that environment that was created by the defendant corporation, correct?” Yerrid asked him.
“That is correct,” Austin replied.
Howard Franklin, the president and chief executive officer of Franklin Favata, also admitted on the stand that his group never wrote out job duties or limitations for Herranz and other expediters. He believed “word of mouth” was an efficient means to pass this information along.
A huge part of the plaintiffs’ claims lay in persuading the jurors that the medical group created a situation ripe for mishap and patient tragedy.
Still, Franklin was able to place the group’s use of expediters in a broader context. He testified that he came up with the idea in 1999 after reading about the use of expediters or scribes in medical publications. Patients often complain about emergency rooms being too busy or too slow, and doctors have trouble writing legibly, Franklin explained. Expediters could serve as information processors by gathering basic information from patients, taking notes for doctors and coordinating lab and test results.
Under questioning by Stokes, Franklin testified the goal was not increased profits but improved efficiency. And, he explained, the Navarro examination was billed as a doctor’s work because Austin’s signature appeared at the bottom. He also denied trying to hide Herranz from the plaintiffs. He said that it took a long time to figure out whose handwriting appeared on the “T sheet” because Herranz worked for Franklin Favata for only about a year and few people remembered him.
Franklin testified that when he hired Herranz, he was aware the staff member had not passed the physician’s assistant exam. But he hired him specifically as an expediter, not as a physician’s assistant. Some of the emergency room doctors chose not to use the expediters, and the group eventually stopped using them.
Stokes asked Franklin what he would tell a new expediter if he was hiring him in August 2000.
“You don’t examine the patient,” Franklin said. “You’re not involved in the treatment of the patient. And you’re not involved with making diagnoses … or the final disposition of the patient.”
On the critical issue of the acceptable standard of care, both Austin and Franklin contradicted their attorneys’ opening statements. Both attorneys told jurors that the evidence would show that Navarro received a reasonable standard of care. But on the witness stand, Austin and Franklin admitted that if an unlicensed staff member was the first to examine Navarro, Austin’s limited re-examination of him fell below an acceptable standard.
Each blamed the other for this deviation.
Austin claimed he had no idea Herranz wasn’t a physician’s assistant because Franklin Favata never told him. Had he known, Austin said, he would have done a full repeat examination.
Franklin testified that it was the physician’s responsibility to ask a person like Herranz about his role. The physician, Franklin pointed out, is ultimately responsible for the patient’s care.
The victim himself came to testify on Sept. 22.
It was an uncomfortable scene. Navarro sat in his wheelchair by the witness stand. Yerrid questioned him for just a few minutes. Ed Bilbao, the brother-in-law, translated most of Navarro’s words for the courtroom.
“What do you wish for yourself?” Yerrid asked.
“To be free, to be set free,” Navarro responded.
He testified that he felt like less of a man because he couldn’t play with his son or provide for his wife.
“I wish I could give them a good living,” Navarro said. Ed repeated his painful admission.
Yerrid asked him what he wanted his son to be.
“I want him to be a doctor some day,” Navarro responded.
A powerful point: Navarro trusts and admires the medical establishment. He is angry only at the defendants in the case.
“Are you scared?” Yerrid continued.
“Why are you scared?”
“My wife will leave me if I can’t do anything.”
Goodis and Stokes chose not to cross examine Navarro. One week later, all the evidence had been submitted and the witnesses heard. Only final arguments stood between Navarro and a verdict from his jury.
So effectively had the plaintiffs exposed the role of Herranz that Austin’s attorney sounded more than a bit like his colleagues on the plaintiff side. Navarro wasn’t alone in walking into a trap, he claimed. So did Austin.
“He reasonably relied on [Franklin Favata] to put qualified people in because it’s a team practice,” Goodis told jurors. “You got to rely on people. You can’t do it all yourself. He thought this guy was a PA.”
Stokes, in turn, continued to insist that Herranz did not do the examination.
Stokes pointed to the fact that, unlike Austin and Barkhurst, Herranz’s testimony remained consistent throughout the litigation: He did not do patient examinations.
Stokes told the jurors that Austin, who resigned from Franklin Favata in 2001, had done the exam.
“I have not been able to provide you with evidence as to why [Austin is] saying the things that he’s saying, why he won’t own up to the fact that he did the exam,” Stokes said. “But common sense, reasonableness, deductions that you draw from the evidence, lead you to conclude his fingerprints are all over the [examination sheet].”
Yerrid has a reputation for needing only a tiny crack in the door to kick it down. But the squabbling defendants, the great groundwork laid by his colleagues and the progress of proceedings had him sensing once-in-a-lifetime magic.
He knew the jury felt something big was happening, and he told them to not hold back.
“Look, folks, I don’t know where the money is going,” Yerrid said. “You ought to just jack this case — you ought to jack this case to the moon.”
And they did.
The jurors deliberated for just three hours on a Friday afternoon, Sept. 29, 2006. When they returned to the jury box, they awarded the Navarros $116.7 million in compensatory damages, with the liability divided between Austin at 25 percent, Herranz at 25 percent and Franklin Favata at 50 percent.
The jurors also found that Franklin Favata had tried to conceal Herranz’s involvement from the plaintiffs. They decided that punitive damages were warranted against the medical group.
THE PUNITIVE TRIAL WAS SCHEDULED for the following Tuesday. On Monday, Franklin Favata filed for bankruptcy in federal court, which put an immediate stay on the Navarros’ case. Gilbert says that he learned about the petition in an e-mail from one of the group’s lawyers at 9:30 p.m. Monday. He and other lawyers at his firm put together a motion to lift the stay, and they filed it by 3 a.m.
U.S. Bankruptcy Judge Paul Glenn held a hearing on the matter that morning. He sided with the Navarros, lifting the stay. The parties were back in Hillsborough County before Holder by about 1 p.m. Franklin Favata had succeeded in delaying the punitive trial by only a half day. The group later filed a motion to have its bankruptcy case dismissed. Glenn signed the order, stating that the petition was “initiated in bad faith, and for improper purposes.”
The punitive case took up only Tuesday afternoon. Franklin, the CEO, testified that Franklin Favata was no longer a functioning medical group. Though it still exists on paper as a corporation, the partners merged their practice into a larger group called Tampa Bay Emergency Physicians in 2004. This move was unrelated to the Navarros’ case, Franklin testified. He said they made the move to a bigger group because the Carrollwood hospital wanted a larger practice to run the emergency room.
Then Yerrid took the floor one last time.
It was time to send a message to emergency rooms across the country, he said. The Friday verdict had given the Navarros their just restitution. Now the jurors had to hand down a deterrent.
This was not a time for mercy, Yerrid said. It was time for the sword.
“We cannot undo what’s been done, but the final chapter is yours,” he said. “Write the ending the way you want it written. That way you will be proud of what happens today.”
In his closing, Stokes told jurors that Franklin Favata’s assets were worth between $50,000 and $100,000.
“That’s all they’re ever going to have,” Stokes said. “If you determine that an amount of punitives should be assessed, I submit to you that’s the appropriate figure.”
Less than an hour later, the jury gave the Navarros the $100,000 that Stokes had suggested.
Plus another $100 million.
Outside the courthouse, Navarro and his family were surrounded by a caucus of the media. They pledged the entire $100,100,000 in punitive damages to medical research related to stroke and brain injuries.
The total verdict of nearly $217 million set a record for medical malpractice cases in the state of Florida. It’s one of the largest medical-malpractice verdicts in U.S. history.
Ten months earlier, the plaintifs had offered to settle with the defendants for $3 million each. The last settlement offer the family received, about six weeks before the trial, was for $300 — $100 each for Navarro, Marilyn and Scottie.
THE NAVARRO CASE MAY BE "the last of the big ones" in Florida medical malpractice litigation, according to Dickey. In 2003, the state legislature passed tort-reform legislation capping noneconomic damages in emergency room cases at $150,000. The caps are higher in non-emergency room cases: $500,000 in most cases against individual doctors and $1 million in cases against multiple doctors. These caps did not apply retroactively to existing cases, such as the suit filed in 2002 by the Navarros.
The numbers are startlingly small when measured against the Navarro verdict. In economic damages, the jurors awarded the Navarros about $15.6 million in past and future medical expenses and $615,000 in past and future lost wages.
The real meat of the $116.7 million in compensatory damages came in noneconomic form: $46.5 million for Navarro’s pain and suffering and $52..5 million for Marilyn’s loss of her husband’s comfort and attentions. Scottie received $1.5 million for the loss of his father’s companionship.
In sum, the jury determined that the Navarros deserved $100.5 million in noneconomic damages.
If Navarro had gone to the emergency room three years later, it wouldn’t matter what a jury thought after sitting through a three-week trial and sifting through the evidence. With the same parties and the same set of facts, $100.5 million becomes less than $1 million.
Regardless of whether the Navarros deserve $100.5 million, what attorney would take them to court in a post-cap world?
Medical malpractice cases are expensive to litigate. A trial alone can easily cost hundreds of thousands of dollars. And taking a case is risky when noneconomic damages are minimized at the outset by caps.
“We’re just not going to see these types of cases anymore,” Dickey says.
(Dickey left de la Parte & Gilbert in January to join Yerrid’s firm. He made the move to focus more exclusively on personal injury and medical malpractice trial work. “We talked about it, and it’s a good move for him,” Gilbert says.)
The Tampa Tribune published several responses to the verdict. One was an opinion piece by Richard Paula, an emergency room doctor at Tampa General Hospital who was critical of the verdict.
“Do you want your doctor thinking about how he can help you, or do you want him thinking about how not to get sued?” Paula wrote. “Every time one of these outrageous verdicts is rendered another great physician puts down his stethoscope for the last time.”
Yerrid responded, writing that Paula and other physicians “should indeed put down [their] stethoscopes for the last time” if the standard of reasonable care is too overwhelming.
THE YERRID LAW FIRM’S downtown Tampa office contains a mini-museum of sorts called “The Wall of Shame.” On both sides of the main hallway are framed newspaper stories and jury verdict forms from some of his most notable cases. It’s a little depressing: burn victims, highway deaths, surgeries gone wrong, people disfigured or killed.
Yerrid’s biggest case came in the mid-1990s, when he was part of the Big Tobacco “Dream Team” — the group of plaintiffs’ lawyers that represented the State of Florida in reaching a record $13.6 billion settlement with tobacco companies over the negative health effects of cigarettes.
Getting to that 1997 settlement was tough, and a gamble. Yerrid’s firm had only five lawyers. His team worked on holidays and had countless sleepless nights. Money was pouring out of the firm, with very little coming in. Tears were shed and emotions were at their limits, according to Ralph Gonzalez, one of the attorneys at the firm. Yerrid drives hard, and he got them to the other side of that battle.
“I think he’s what Alexander the Great must have been like,” Gonzalez says. Yerrid used his bite of the tobacco settlement to create The Yerrid Foundation, which works with a wide range of charities, most for sick kids. This work has added to Yerrid’s prominence and lent itself to a fun story or two from his office high above downtown Tampa.
After Yerrid won the Ted Williams Award in 1999 for his work with cancer-stricken children, he was able to meet with the Boston Red Sox legend.
“It was supposed to be a short meeting, but we ended up talking for three hours,” Yerrid says with a wide grin. “He loved fishing, too.”
Yerrid’s jaw sets when he starts talking about damages caps. He says he’s sick of doctors and insurance companies holding the general public hostage with threats about quitting or states losing doctors.
He finds three fundamental flaws with caps: One, they give doctors more legal protection than the rest of society; two, they interfere with a plaintiff’s access to the civil justice system; and three, they remove an important regulatory tool for medical negligence.
“They’re morally wrong, ethically wrong, legally wrong, constitutionally wrong — as wrong as wrong can be,” Yerrid says.
Though the caps didn’t apply to the Navarro case, Yerrid believes that the medical profession and its insurers have succeeded in prejudicing juries against trial lawyers and big awards. This is a challenge that lawyers face in all cases in the tort-reform era, he says, regardless of jurisdiction or caps.
Medical associations and insurance companies say that the Navarro verdict proves the opposite point — that greater tort reform is still needed, especially in states that don’t have caps.
Yerrid wanted to give the jury a window into Navarro’s hell. His hypothetical about Navarro being eaten alive by red ants was a good one. Navarro is paralyzed, but he has sensation all over his body. He feels pain. In fact, he’s in almost constant pain as a result of lying on his back all the time. His taste buds still work. That’s why he loved eating so much. But now he can’t eat because of the respiratory problems.
The emotional pain is worse. He can’t hold his son. He can’t make love to his wife. He can’t visit family in the Philippines. He will be imprisoned until he dies.
Juries can’t bring people back to life; they can’t return limbs, heal wounds or make the disabled walk. Maybe the victim or the family won’t be able to use all the money won in a big award. And maybe the person or company that’s liable for the injury can’t afford to pay big damages. Even if they can, they’ll just appeal whatever verdict comes down. This is what Yerrid calls “the preordained logic” that juries bring to a case.
“It’s true, all the money in the world is not going to change a man’s life,” Yerrid says. “But I impress upon people that you’re not giving them money to allow them to do certain things. As a jury, your only requirement is to determine the magnitude of the loss in a dollars sense. And I have to convey that magnitude. I want them to know what I already know.”
THE NAVARROS’ CASE REMAINS an extremely complex piece of litigation. Both defendants appealed the verdict to the state’s 2nd District Court of Appeal. In addition, the defendants have filed a separate motion seeking relief from the judgment based on alleged juror misconduct, claiming one of the jurors was convicted of a crime in another state and should not have been on the jury.
The Navarros will have to fight for their money even if they overcome these challenges. ProNational has a declaratory judgment action pending against both Austin and Franklin Favata, claiming that it is not responsible for paying damages awarded in the case because the defendants violated their professional liability policy.
Among other allegations, ProNational claims that Austin and Franklin Favata allowed Herranz to practice medicine without a license — a criminal or fraudulent act that is excluded from policy coverage. The Navarros, as third-party beneficiaries of the policy, also were named as defendants. Gilbert, Dickey and Yerrid responded with counterclaims, alleging insurer bad faith against ProNational and pointing out that the company refused settlement offers throughout the litigation.
Because of defendants who settled out early, the Navarros have regained some comfort from their burden. The hospital settled out of the case in 2004. The doctors who rendered care on August 10 — when about eight hours lapsed before Navarro finally made it into surgery — settled in 2005. The settlements were confidential but have been paid. (The doctor who performed the life-saving surgery was not named as a defendant.)
After the stroke, Marilyn sold the family home, and she and Scottie lived with Ed and Susan Bilbao in Tampa while Navarro remained in a nursing home. The settlement money enabled the Navarros to buy their house in Land O’ Lakes. Ed and Susan Bilbao have since sold their Tampa home and moved to a new place in Land O’ Lakes so they can continue to help out as much as possible. Throughout the ordeal, the Bilbaos have been a second set of parents to their Godson, Scottie.
The settlement money bought Navarro’s mechanized wheelchair, which is the size of a dentist’s chair and allows him to raise or lower himself with a control used by his right hand. The money pays for a caretaker during the day so Navarro can live at home instead of at a facility. Navarro was not able to live at home until the settlement money came in, allowing the family to retain extra help.
After he awoke from his coma in 2000, Navarro had a private room at the facility where Marilyn worked as a nurse. But he eventually lost his room and was transferred to a lower-quality care facility where he shared a room with other patients. He didn’t like it there. The crowded room stank, and nurses failed to answer his call button. He tried to kill himself by wrapping a call cord around his neck. Briefly, he was placed in the psychiatric ward.
Navarro likes being home. His wheelchair is stationed in front of a large screen television. He watches a lot of sports and has access to Filipino channels.
“I am happier being closer to my wife,” he says, slowly, clearly.
Marilyn is happy to have him home, as well. But she is exhausted.
The caretaker they’ve hired is not a nurse, which would be too expensive. Before going to her nursing job each day, Marilyn tends to her husband, changing his diaper and preparing his feeding tube before the help arrives. She faces trouble at work because she’s been late. She fears getting fired.
Whenever the litigation over the compensatory damages concludes, they will apply the money to pay for a full-time nurse.
Marilyn also misses the man she fell in love with.
She was nervous to testify because she has a noticeable accent and occasional difficulty finding the right words in English. When questioned by Yerrid, she said that she and her husband were like a pair of birds.
“He is my — he is my — just like a bird, you know, you have to fly together,” she testified. “And then just like, you know, we have the same plans and dreams and then we have — we just like to soar, you know, here and there were plans and dreams to be fulfilled.”
Marilyn told jurors that she misses the strong, vibrant, “always smiling” husband who had boundless energy for playing with Scottie, walking on the beach and engaging in late-night talks. When she’s not working, she tends to what remains of him.
Sometimes, he’s bitter. He can be paranoid and angry. If she takes too long at the store, he might accuse her of having an affair. He’s tried to run her over in his wheelchair when she hasn’t done what he’s told her to.
Navarro’s physical and mental anguish is also Marilyn’s.
“Every time he suffers, I suffer, too,” she testified.
Navarro is expected to have a normal life span. The jurors awarded the same amount — $37.5 million — for his future pain and suffering and for Marilyn’s future loss of her husband’s services, care and affection.
Still, Susan says her brother is lucky, and so is the family.
“So many people have been through something like this and don’t have what he has now,” she says.
In the days after the stroke, when family members held a meeting to decide whether to remove Navarro from life support, Susan alone opposed the idea. She wanted to pray more, and harder, because she believed in miracles.
The Navarros’ story may be a testament to the power of the civil justice system. It’s just one case, one family. But what happened to them could happen to any of us. Despite the delays and pending appeals, the family is happy with the result. And, whether you cheer or deride the jury’s verdict, their case sent a message to anyone interested in medical malpractice and tort reform. For the Navarros, the system worked. Asked whether he still wants Scottie to become a doctor, as he testified in court, Navarro nods his head affirmatively.
“Or a lawyer,” he adds from his wheelchair.
Above all, the Navarros’ story is a testament to the powers of family and faith. Family kept Navarro alive. Faith has kept them strong. Even Navarro, who was never that religious himself, has become more so.
Navarro even had a vision. He told it to his brother-in-law, and now Ed shares the story.
Navarro was running in a field when Jesus approached him and asked him if they could talk. Navarro stopped, and Jesus gave him a message: Keep living.
“Your time is not yet up,” Jesus told him.