01-000993N Angel D. Williams, On Behalf Of And As Parent And Natural Guardian Of Dustin Lance Williams, A Minor vs. Florida Birth-Related Neurological Injury Compensation Association Status: Closed DOAH Final Order on Wednesday, May 21, 2003.

Summary: Proof demonstrated more likely than not, that infant`s brain injury was prenatal in origin, having occurred prior to the onset of labor, and that he was not permanently mentally or physically impaired. Therefore, claim denied.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ANGEL D. WILLIAMS, as parent and )

natural guardian of DUSTIN LANCE )

WILLIAMS, a minor, )

)

Petitioner, )

)

vs. ) Case No. 01 - 0993N

)

FLORIDA BIRTH - RELATED NEUROLOGICAL )

INJURY COMPENSATION ASSOCIATION, )

)

Respondent. )

____________________________________)

FINAL ORDER

Pursuant to notice, the Division of Administrative Hearings,

by Administrative Law Judge William J. Kendrick, held a final

hearing in the above - styled case on April 14, 2003, in

Tallah assee, Florida.

APPEARANCES

For Petitioner: Ken Davis, Esquire

Post Office Box 37190

Tallahassee, Florida 32315

For Respondent: B. Forest Hamilton, Esquire

Rumberger, Kirk & Ca ldwell

108 South Monroe Street

Post Office Box 10507

Tallahassee, Florida 32302 - 2507

STATEMENT OF THE ISSUES

At issue is whether Dustin Lance Williams, a minor, suffered

a "birth - related neurological injury," as defined by Section

766.302(2), Florida Statutes.

PRELIMINARY STATEMENT

On March 9, 2001, Angel D. Williams, individually, and as

parent and natural guardian of Dustin Lance Williams (Dustin), a

minor, filed a petition (claim) wit h the Division of

Administrative Hearings (DOAH) for compensation under the Florida

Birth - Related Neurological Injury Compensation Plan (Plan).

DOAH served the Florida Birth - Related Neurological Injury

Compensation Association (NICA) with a copy of the cla im on

March 12, 2001, and on August 20, 2001, NICA gave notice that it

had "determined that such claim is not a 'birth - related

neurological injury,' within the meaning of Section 766.302(2),

Florida Statutes," and requested that "an order [be entered]

sett ing a hearing in this cause . . . [to resolve such] issue."

Following a period in which the case was in abeyance, such a

hearing was ultimately held on April 14, 2003.

At hearing, Petitioner called Angel D. Williams,

Edward James, and Edith Williams, as w itnesses, and Petitioner's

Exhibits 1 - 3 and Respondent's Exhibits 1 - 3 were received into

evidence, subject to the limitations noted on the record. 1 No

other witnesses were called, and no further exhibits were

offered.

The transcript of the hearing was f iled April 29, 2003, and

the parties were accorded 10 days from that date to file proposed

orders. Respondent elected to file such a proposal, and it has

been duly considered.

FINDINGS OF FACT

Preliminary findings

1. Angel D. Williams, currently Angel Williams James, is

the natural mother and guardian of Dustin Lance Williams, a

minor. Dustin was born a live infant on April 1, 1999, at

Columbia Tallahassee Community Hospital (Tallahassee Community

Hospital), a hospital located in Tallahassee, Florida, and his

birth weight exceeded 2,500 grams.

2. The physician providing obstetrical services at Dustin's

birth was Alex Davenport, M.D., who, at all times material

hereto, was a "participating physician" in the Florida Birth -

Related Neurological Injury Comp ensation Plan.

Dustin's birth and subsequent development

3. At or about 8:50 p.m., March 31, 1999, Ms. Williams

(with an estimated date of delivery of April 3, 1999, and the

fetus at 39 4/7 weeks gestation) was admitted to Tallahassee

Community Hospital for observation. Ms. Williams' membranes were

noted as intact, and mild uterine contractions were noted at a

frequency of 4 minutes, with a duration of 40 - 60 seconds. Fetal

monitoring revealed a baseline fetal heart rate (FHR) of 145

beats per minute, wi th moderate variability and accelerations

noted, and vaginal examination revealed the cervix at 2

centimeters, effacement thick, and the fetus' station as high.

4. At or about 9:00 a.m., April 1, 1999, Ms. Williams was

examined by Dr. Davenport. At the t ime, Dr. Davenport's

assessment was false labor; however, given earlier evidence of

non - reassuring fetal heart tones (with episodes of decreased

variability and decelerations), Dr. Davenport ordered a nipple

stimulation contraction stress test (CST) and, i f negative,

Cytotec induction.

5. According to the medical records, the contraction stress

test was done at 10:28 a.m., with negative results; an IV was

established at 3:29 p.m.; and Cytotec was placed intravaginally

at 3:45 p.m. Thereafter, Ms. Willia ms' labor slowly progressed;

at 11:55 p.m., Dr. Davenport ruptured her membranes, with clear

fluid noted; and at 11:58 p.m., while Dr. Davenport was out of

the room changing clothes, Dustin was, according to the labor and

delivery summary, delivered "preci pitous[ly]."

6. On delivery, Dustin was accorded positive pressure

ventilation for 1 minute and free flow oxygen for 3 minutes.

"Bruising [was] noted to face, left arm, and leg from precipitous

[delivery]." 2 Apgar scores were 4 and 9 at one and five minutes

respectively. 3

7. Following delivery, Dustin was transferred to the

regular newborn nursery and on April 4, 1999, he and his mother

were discharged. Notably, apart from the bruising noted at

delivery, Dustin's newborn assessments were normal, an d without

evidence of perinatal or postnatal complications.

8. Following discharge, Dustin's development was without

significant complication; however, over time, decreased use of

his right upper extremity was noted, and in December 1999, at 8

months of a ge, Dustin was referred by his pediatrician

(Dr. Joanna Yao) to Dr. Ricardo Ayala, a pediatric neurologist,

for evaluation. The results of that evaluation, which occurred

January 13, 2000, were reported by Dr. Ayala, as follows:

PHYSICAL EXAMINATION

* * *

Head: Normocephalic. No dysmorphic features

Eyes: Pupils equally reactive to light and

accommodation. Isocoric. Funduscopic exam

reveals no evidence of optic nerve edema,

hemorrhages; venous pulsations are well

observed. Extra - ocular movement s are full.

No abnormal nystagmus. No dysconjugate is

observed.

* * *

Oral Cavity: Tongue and uvula are midline.

No naso - labial fold asymmetry.

* * *

Spine: No scoliosis, no scapular winging, no

fasciculations observed.

* * *

Extremi ties: Increased tone on right side.

Pulses: Good brachial and pedal pulses.

Neurologic Examination:

High cortical function: alert

Motor Exam: Patient has good spontaneous

movement of all limbs however decreased right

side

* * *

Deep tendon re flexes: 2/4 in all limbs. No

clonus. Questionable Babinski right side

Cranial nerves exam: II - XII is unremarkable

Cerebella, gait, stance exam: Cortical

posture of the right side

* * *

MEDICAL DECISION MAKING

Differential Diagnosis & Manageme nt Options:

A. Clinical Impression: CP with evidence of

right - sided hemiparesis. No evidence of

microcephaly.

1. Differential Diagnosis: History of

traumatic birth. No indication of

contractures or severe spasms to suggest

spinal cord.

2. D iagnosis: Same

Beatment Plan: Physical therapy

C. Referrals/Consultations: Physical

therapist

Date Reviewed:

A. Diagnostic Services Ordered: MRI of the

brain to rule out left hemispheric injury.

EEG of the brain to rule out epileptic

activi ty . . . .

9. The results of the MRI of the brain, done February 29,

2000, were reported, as follows:

FINDINGS: An area of porencephaly is seen

adjacent to the body of the left lateral

ventricle. There is no evidence of mass

effect, hydrocephalus, or i ntracranial

hemorrhage.

IMPRESSION: Area of porencephaly adjacent to

the body of the left lateral ventricle.

The results of the EEG, done March 9, 2000, were reported as

within normal limits.

10. On October 11, 2000, Dustin was seen by Dr. Donald

Dewey for an orthopedic examination. Dr. Dewey reported the

results of that examination, as follows:

HISTORY: This young man is eighteen months

of age. History of pregnancy complicated at

delivery by a diagnosis of porencephalic

cyst. His neurologic exam by Dr. Ayala

suggested rightsided hemiparesis without

substantial hemiatrophy.[ 4 ] He has been

followed by Dr. Yao and by Dr. Ayala since

birth. MRI of 02/29/00 suggest porencephaly

adjacent to the body of left lateral

ventricle with low lying cerebellar to nsils.

This young man now has independent sitting

and stands and cruises on furniture. He has

been undertaking physical therapy with

Regional Therapy Services and has improved

steadily. Mom indicates that when she holds

both his hands he walks well with her

assistance but when she holds only the left

hand he becomes quite ataxic.

PHYSICAL EXAMINATION: Reveals a well

developed small white male with thick - rimmed

glasses. Cervical spine motion is full,

upper extremity shows no obvious deformity or

abnorm al motor tone. No joint instability is

noted. Spine shows normal alignment without

asymmetry or buttock cleft. Lower extremity

exam shows mild decrease in thigh and calf

circumference on the right as compared to the

left. Limb lengths appear to be gros sly

equal. Slight increased motor tone of both

lower extremities noted more on the right

than the left. No evidence of joint

instability or deformity noted. Observed him

walking with an ataxic type gait. Babinski's

downgoing at this point. There is no

evidence of sustained clonus . . . .

IMPRESSION: Right hemiparesis secondary to

encephalopathy and porencephalic

cyst . . . .

11. Notably, of those physicians who have treated Dustin,

and whose observations are of record, none expressed an opinion

re garding the cause or timing of his brain injury; none expressed

an opinion that his mental status was less than age appropriate;

and none expressed an opinion that his physical impairment was

substantial.

Coverage under the Plan

12. Pertinent to this cas e, coverage is afforded by the

Plan for infants who suffer a "birth - related neurological

injury," defined as an "injury to the brain . . . caused by

oxygen deprivation or mechanical injury occurring in the course

of labor, delivery, or resuscitation in the immediate post -

delivery period in a hospital, which renders the infant

permanently and substantially mentally and physically impaired."

Section 766.302(2), Florida Statutes. See also Section 766.309

and 766.31, Florida Statutes. Here, Respondent is of the view

that Dustin did not suffer an injury to the brain caused by

oxygen deprivation or mechanical injury in the course of labor,

delivery, or resuscitation, and whatever the cause of Dustin's

injury he was not rendered permanently and substantially men tally

and physically impaired. Petitioner is apparently of a contrary

opinion; however, no competent or compelling proof was offered to

support a contrary conclusion.

The cause and significance of Dustin's neurologic impairment

13. To address the cause and significance of Dustin's

impairment, Petitioner offered selected medical records relating

to Dustin's birth and subsequent development, relevant portions

of which have heretofore been addressed, as well as the testimony

of Dustin's mother (Angel Willia ms), stepfather (Edward James),

and grandmother (Edith Williams). In turn, Respondent offered

the deposition testimony of Michael Duchowny, M.D., including the

results of Dr. Duchowny's neurologic evaluation of Dustin.

14. Dr. Duchowny is board - certified in pediatrics,

neurology with special competence in child neurology, and

clinical neurophysiology, and performed a neurology evaluation of

Dustin on August 7, 2001. Based on that evaluation, Dr. Duchowny

concluded that Dustin's mental status was age appr opriate, and

that while Dustin evidenced a mild right hemiparesis, his

neurologic functioning was otherwise fully preserved. The

results of the evaluation were reported, as follows:

Dustin's NEUROLOGIC EXAMINATION reveals him

to be socially adept and enga ging. He speaks

fluently with well developed sentence

structure. He obeys commands readily and is

quite cooperative. The cranial nerve

examination reveals full visual fields to

direct confrontation testing and no

fundoscopic abnormalities. The pupils a re 3

mm and briskly reactive to direct and

consensually presented light. There are no

significant facial asymmetries. The tongue

and palate move well, with the uvula being in

the midline. Motor examination reveals

evidence of a mild right hemiparesis

af fecting the arm and leg. There is an

asymmetry of arm movement. The right leg is

externally rotated at the hip, with eversion

of the foot. There is an asymmetry of the

Achilles' tendons with dorsiflexion being

possible only with extra relaxation on the

right. There is also reflex asymmetry with

relatively brisker deep tendon reflexes at 3

on the right lower extremity, as compared to

2 on the left. The upper extremity deep

tendon reflexes are symmetric. There is a

right Babinski response. The left t oe is

downgoing. Sensory examination is grossly

intact to sensation. Dustin's gait reveals

mild to moderate hemiparetic posturing. He

is able to grasp a cube with either hand,

although his grip is more dexterous on the

left with better individual finger motility.

In contrast, Dustin's grip strength on the

right is slightly reduced with a palmar

accentuation to his grasp and mirror

movements from right to left. Dustin can

elevate both arms above his shoulders. The

neurovascular examination reveals no

c ervical, cranial or ocular bruits and no

temperature or pulse asymmetries.

In SUMMARY, Dustin's neurologic examination

reveals evidence of a mild right hemiparesis

affecting leg greater than arm. There is

also a reflex asymmetry, but no evidence of

an he mianopic field cut. His verbal

abilities are well preserved and he seems

cognitively intact.

15. Dr. Duchowny also reviewed the medical records

associated with Dustin's birth and subsequent development, and

concluded that, more likely than not, Dustin's brain injury was

prenatal (developmental) in origin, having occurred prior to the

onset of labor, and did not result from oxygen deprivation or

trauma during labor, delivery, or resuscitation. Dr. Duchowny

explained the basis for his conclusions, as foll ows:

Q. . . . I'm sure that you reviewed this

thick volume of medical records which we put

together and filed.

It's basically more or less the complete

medical records on Dustin Williams.

A. Yes, I did.

Q. Okay. Have you had occasion to review

the M RI which was conducted. It's an MRI of

the head on 2/29/2000.

I believe the film was read and a report was

written by Steven G. Ostroff.

A. Yes.

Q. I believe his findings are an area of

porencephaly, that is seen adjacent to the

body of the left lat eral ventricle. No

evidence of massive hydrocephaly or

intracranial hemorrhage.

Impression, area of porencephaly adjacent to

the body of the left later ventricle, is that

correct?

A. Yes.

Q. Do you agree with that interpretation of

the film?

A. Yes .

* * *

Q. Now, what are the causes of porencephaly?

A. Cerebral vascular accident, either

embolic stroke or ischemic stroke, possibly

infectious basis. Most we don't even really

know.

Q. Okay. When you say "most you don't

really know," expl ain it, please.

A. They are acquired in utero and we can

only speculate as to the cause.

Q. Can you say to the extent that "most

don't really know," you can't really give[]

an opinion within reasonable medical

probability of . . . [the cause], can you?

A. Well, you can give an opinion in terms of

the timing of it, but you can't say exactly

what caused it.

Q. So, you're telling us that your

impression and opinion here is not based upon

the cause of it, but more or exclusively on

the timing of the eve nt?

A. Yes.

* * *

Q. Now, when you say that your opinion is

based upon the point in time when it

occurred, tell us what factors went into that

conclusion.

A. The fact that the deficit was present

after birth, that there were no risk factors

as sociated with labor and delivery that might

contribute to that, and that the [infant's]

course was simply not consistent with

acquisition during labor or delivery or the

immediate period thereafter.

Q. You're basically saying this by exclusion

as opposed to directly cause and effect?

A. That is correct.

* * *

Q. You're not telling us that you know what

caused it? You're just saying that you think

it was[n't] caused during the course of

birth?

A. Well, I'm saying -- I'm saying what I

think cause [d] it, but I'm more clear about

the timing then I am about the cause.

* * *

Q. Okay. Now, you indicated that there were

basically three categories CVA, infection and

idiopathic.

Did you see any evidence of infection . . .

[?]

A. No.

Q. And so because of the location you

concluded that it was CVA?

A. Yes.

* * *

Q. . . . As I understand what you said, it .

. . occur[ed] prior to labor and delivery?

A. That is correct.

Q. Now, at what point in time did it occur?

A. I don't know.

Q . Is it possible that hypoxic - type injury

which is caused by oxygen deprivation or

mechanical trauma can cause porencephaly?

A. Not in the way it appears with Dustin.

Q. Explain why.

A. Because his damages are limited to one

cerebral hemisphere and it would be extremely

unlikely for hypoxic ischemic encephalopathy

to act in that fashion.

Q. It is possible, however, for a person to

have hypoxic ischemia as a result of oxygen

deprivation where it does go, it may be rare,

where it occurs only in one h emisphere?

A. No. Hypoxia generally does not work that

way.

Q. How does it generally work?

A. Both cerebral hemispheres are affected.

Q. And that is based upon the idea that it's

diffuse or multifocal, as opposed to focal -

type lesion?

A. Yes.

* * *

Q. . . . Can trauma be the cause of

porencephaly?

A. Yes.

Q. Are you aware that in the process of

delivery that Dustin Williams struck his head

on the delivery table?

A. Yes.

Q. Is that not also a possible for the

porencephaly?

A. No t for Dustin?

* * *

Q. How do you [know] that?

A. Because of the anatomic location.

Q. What about the blow to the --

A. It wouldn't matter because the damage is

deep. It's not superficial.

Q. How do you know that the magnitude of the

trauma that he sustained wasn't sufficient?

Do you have any description?

A. Well, you just would not see a

porencephaly such as what Dustin has on his

MRI from trauma to the skull.

Q. How do you know that?

A. Because you couldn't get the deep area of

po rcencephaly without having something more

superficial.

It just doesn't anatomically work that way.

16. Apart from the medical records heretofore discussed,

and contrasted with the medical testimony offered by Respondent,

Petitioner offered the lay tes timony of Angel Williams and

Edith Williams, as to their observations regarding Dustin's birth

and subsequent development, and the testimony of Mr. James, as to

his observations regarding Dustin's development. Notably, the

lay testimony of Angel Williams and Edith Williams regarding

their perception of a causal relationship between the events

surrounding Dustin's birth and his neurologic impairment is

speculative, and legally insufficient to support a finding

regarding the cause or timing of Dustin's brain injury. See Vero

Beach Care Center v. Ricks , 476 So. 2d 262, 264 (Fla. 1st DCA

1985)("[L]ay testimony is legally insufficient to support a

finding of causation where the medical condition involved is not

readily observable.") Moreover, Petitioner's witn esses offered

no compelling proof that Dustin's mental presentation was less

than age appropriate, and their observations regarding his

physical impairment were less than compelling (compared with

those expressed by Dr. Duchowny) and do not support a concl usion

that Dustin is substantially physically impaired. Consequently,

it must be resolved that, more likely than not, Dustin's brain

injury did not occur "in the course of labor, delivery, or

resuscitation," and that Dustin's injury did not render him

"pe rmanently and substantially mentally and physically impaired."

See Thomas v. Salvation Army , 562 So. 2d 746, 749 (Fla. 1st DCA

1990)("In evaluating medical evidence, a judge of compensation

claims may not reject uncontroverted medical testimony without a

reasonable explanation.")

CONCLUSIONS OF LAW

17. The Division of Administrative Hearings has

jurisdiction over the parties to, and the subject matter of,

these proceedings. Section 766.301, et seq. , Florida Statutes.

18. The Florida Birth - Related Neur ological Injury

Compensation Plan was established by the Legislature "for the

purpose of providing compensation, irrespective of fault, for

birth - related neurological injury claims" relating to births

occurring on or after January 1, 1989. Section 766.303 (1),

Florida Statutes.

19. The injured "infant, her or his personal

representative, parents, dependents, and next of kin," may seek

compensation under the Plan by filing a claim for compensation

with the Division of Administrative Hearings. Sections

766. 302(3), 766.303(2), 766.305(1), and 766.313, Florida

Statutes. The Florida Birth - Related Neurological Injury

Compensation Association, which administers the Plan, has "45

days from the date of service of a complete claim . . . in which

to file a response to the petition and to submit relevant written

information relating to the issue of whether the injury is a

birth - related neurological injury." Section 766.305(3), Florida

Statutes.

20. If NICA determines that the injury alleged in a claim

is a compensab le birth - related neurological injury, it may award

compensation to the claimant, provided that the award is approved

by the administrative law judge to whom the claim has been

assigned. Section 766.305(6), Florida Statutes. If, however,

NICA disputes the claim, as it has in the instant case, the

dispute must be resolved by the assigned administrative law judge

in accordance with the provisions of Chapter 120, Florida

Statutes. Sections 766.304, 766.307, 766.309, and 766.31,

Florida Statutes.

21. In disc harging this responsibility, the administrative

law judge must make the following determination based upon the

available evidence:

(a) Whether the injury claimed is a birth -

related neurological injury. If the claimant

has demonstrated, to the satisfact ion of the

administrative law judge, that the infant has

sustained a brain or spinal cord injury

caused by oxygen deprivation or mechanical

injury and that the infant was thereby

rendered permanently and substantially

mentally and physically impaired, a

re buttable presumption shall arise that the

injury is a birth - related neurological injury

as defined in s. 766.303(2).

(b) Whether obstetrical services were

delivered by a participating physician in the

course of labor, delivery, or resuscitation

in the immediate post - delivery period in a

hospital; or by a certified nurse midwife in

a teaching hospital supervised by a

participating physician in the course of

labor, delivery, or resuscitation in the

immediate post - delivery period in a hospital.

Section 766.309(1), Florida Statutes. An award may be sustained

only if the administrative law judge concludes that the "infant

has sustained a birth - related neurological injury and that

obstetrical services were delivered by a participating physician

at birth." Section 766.31(1), Florida Statutes.

22. Pertinent to this case, "birth - related neurological

injury" is defined by Section 766.302(2), Florida Statutes, to

mean:

. . . injury to the brain or spinal cord of a

live infant weighing at least 2,500 grams at

b irth caused by oxygen deprivation or

mechanical injury occurring in the course of

labor, delivery, or resuscitation in the

immediate post - delivery period in a hospital,

which renders the infant permanently and

substantially mentally and physically

impaired . This definition shall apply to

live births only and shall not include

disability or death caused by genetic or

congenital abnormality.

23. As the claimant, the burden rested on Petitioner to

demonstrate entitlement to compensation. Section 766.309(1) (a),

Florida Statutes. See also Balino v. Department of Health and

Rehabilitative Services , 348 So. 2d 349, 350 (Fla. 1st DCA 1977)

("[T]he burden of proof, apart from statute, is on the party

asserting the affirmative issue before an administrative

tribu nal.")

24. Here, given that the proof demonstrated, more likely

than not, that Dustin's brain injury predated the onset of labor,

and that Dustin's brain injury did not render him permanently and

substantially mentally and physically impaired, it must be

resolved that the record developed in this case failed to

demonstrate that Dustin suffered a "birth - related neurological

injury," within the meaning of Section 766.302(2), Florida

Statutes. Sections 766.302(2), 766.309(1), and 766.31(1),

Florida Statutes . See also Florida Birth - Related Neurological

Injury Compensation Association v. Florida Division of

Administrative Hearings , 686 So. 2d 1349 (Fla. 1997)(The Plan is

written in the conjunctive and can only be interpreted to require

both substantial physic al and mental impairment.); Humana of

Florida, Inc. v. McKaughan , 658 So. 2d 852, 859 (Fla. 5th DCA

1995)("[B]ecause the Plan . . . is a statutory substitute for

common law rights and liabilities, it should be strictly

construed to include only those subje cts clearly embraced within

its terms."), approved , Florida Birth - Related Neurological Injury

Compensation Association v. McKaughan , 668 So. 2d 974, 979 (Fla.

1996).

25. Where, as here, the administrative law judge determines

that ". . . the injury allege d is not a birth - related

neurological injury . . . he [is required to] enter an order [to

such effect] and . . . cause a copy of such order to be sent

immediately to the parties by registered or certified mail."

Section 766.309(2), Florida Statutes. Such an order constitutes

final agency action subject to appellate court review. Section

766.311(1), Florida Statutes.

CONCLUSION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

ORDERED that the petition for compensation filed by Angel D.

Williams, individually, and as parent and natural guardian of

Dustin Lance Williams, a minor, be and the same is hereby denied

with prejudice.

DONE AND ORDERED this 21st day of May, 2003, in Tallahassee,

Leon County, Florida.

__________________________________

WILLIAM J. KENDRICK

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Buil ding

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675 SUNCOM 278 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 21st day of May, 2003.

ENDNOTES

1/ Petitioner's Exhibit 2 and Respondent's Exhibits 2 and 3 are

hearsay, and their evidentiary value in this proceeding is

circumscribed by Section 120.57(1)(c), Florida Statutes

(2002)("Hearsay evidence may be used for the purpose of

supplementing or explaining other evidence, b ut it shall not be

sufficient in itself to support a finding unless it would be

admissible over objection in civil actions.") Otherwise, the

value of Petitioner's Exhibit 2 is circumscribed by Section

90.706, Florida Statutes, regarding the use of authori tative

literature in cross - examination of an expert witness.

2/ When delivered, Dustin landed on the delivery table.

3/ The Apgar scores assigned to Dustin are a numerical

expression of the condition of a newborn infant, and reflect the

sum points gain ed on assessment of heart rate, respiratory

effort, muscle tone, reflex response, and color, with each

category being assigned a score ranging from the lowest score of

0 through a maximum score of 2. As noted, at one minute,

Dustin's Apgar score totaled 4 , with heart rate being graded at

2, respiratory effort and reflex response being graded at 1 each,

and muscle tone and color being graded at 0. At five minutes,

Dustin's Apgar score totaled 9, with heart rate, respiratory

effort, muscle tone, and reflex response being graded at 2 each,

and color being graded at 1.

4/ "Hemiatrophy" is commonly understood to mean "atrophy of one

side of the body or one half of an organ or part." Dorland's

Illustrated Medical Dictionary, Twenty - sixth Edition (1985).

C OPIES FURNISHED:

(By certified mail)

Ken Davis, Esquire

Post Office Box 37190

Tallahassee, Florida 32315

B. Forest Hamilton, Esquire

Rumberger, Kirk & Caldwell

108 South Monroe Street

Post Office Box 10507

Tallahassee, Florida 32302 - 2507

Kenney Shiple y, Executive Director

Florida Birth - Related Neurological

Injury Compensation Association

Post Office Box 14567

Tallahassee, Florida 32317 - 4567

Alex Davenport, M.D.

2711 Capital Medical Boulevard

Tallahassee, Florida 32308

Columbia Tallahassee Communi ty Hospital

2626 Capital Medical Boulevard

Tallahassee, Florida 32317 - 4266

Ms. Charlene Willoughby

Department of Health

4052 Bald Cypress Way, Bin C - 75

Tallahassee, Florida 32399 - 3275

NOTICE OF RIGHT TO JUDICIAL REVIEW

A party who is adversely affect ed by this final order is entitled

to judicial review pursuant to Sections 120.68 and 766.311,

Florida Statutes. Review proceedings are governed by the Florida

Rules of Appellate Procedure. Such proceedings are commenced by

filing the original of a notic e of appeal with the Agency Clerk of

the Division of Administrative Hearings and a copy, accompanied by

filing fees prescribed by law, with the appropriate District Court

of Appeal. See Section 766.311, Florida Statutes, and Florida

Birth - Related Neurolog ical Injury Compensation Association v.

Carreras , 598 So. 2d 299 (Fla. 1st DCA 1992). The notice of

appeal must be filed within 30 days of rendition of the order to

be reviewed.