01-002288N Karen Farnum And James Farnum, On Behalf Of And As Parents And Natural Guardians Of Morgan Farnum, A Minor vs. Florida Birth-Related Neurological Injury Compensation Association Status: Closed DOAH Final Order on Friday, January 10, 2003.

Summary: Infant`s brain injury predated the onset of labor. Therefore, claim was not compensable.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

KAREN FARNUM and JAMES FARNUM, )

as parents and natural )

guardians of MORGAN FARNUM, a )

minor, )

)

Petitioners, )

)

vs. ) Case No. 01 - 2288N

)

FLORIDA BIRTH - RELATED )

NEUROLOGICAL INJURY )

COMPENSATION ASSOCIATION, )

)

Respondent, )

)

a nd )

)

MORTON PLANT HOSPITAL, INC., )

)

Intervenor. )

)

FINAL ORDER

Pursuant to notice, the Division of Administrative

Hearings, by Administrative Law Judge Wi lliam J. Kendrick, held

a final hearing in the above - styled case on November 14, 2002,

in Tampa, Florida.

APPEARANCES

For Petitioners: Tony Cunningham, Esquire

Cunningham, Clark & Greiwe

100 Ashley Drive, South, Suite 100

Tampa, Florida 33602 - 5358

For Respondent: B. Forest Hamilton, Esquire

Post Office Box 38454

Tallahassee, Florida 32315 - 8454

For Intervenor: Margaret D. Matthews, Esquire

Akerman, Senterfitt & Eidson, P.A.

Post Office Box 3273

Tampa, Florida 33601 - 3273

STATEMENT OF THE ISSUE

At issue in this proceeding is whether Morgan Farnum, a

minor , qualifies for coverage under the Florida Birth - Related

Neurological Injury Compensation Plan.

PRELIMINARY STATEMENT

On June 6, 2001, Karen Farnum and James Farnum, as parents

and natural guardians of Morgan Farnum (Morgan), a minor, filed

a petition (cl aim) with 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 claim on

June 8, 2001. NICA reviewed the claim, and on August 20, 2001,

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] setting a hearing in this cause on the issue

of . . . compensability." Following a number of continuances,

such a hearing was ultimately held on November 14, 2002.

At hearing, Karen Farnum testified on behalf of

Petitioners, and Re spondent's Exhibit 1 (the medical records

filed with DOAH on June 6, 2001), Exhibit 2 (copies of All

Children's Hospital medical records filed with DOAH by

Intervenor on October 30, 2002), Exhibit 3 (the deposition of

Donald Willis, M.D., filed with DOAH o n July 30, 2002), and

Exhibit 4 (the deposition of Michael Duchowny, M.D., filed with

DOAH on July 30, 2002), were received into evidence. No further

witnesses were called and no further exhibits were offered.

The transcript of hearing was filed on Decemb er 6, 2002,

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

proposed final orders. Petitioners and Respondent elected to

file such a proposal, and they have been duly - considered.

FINDINGS OF FACT

Preliminary findings

1. Petitioners, Karen Farnum and James Farnum, are the

parents and natural guardians of Morgan Farnum. Morgan was born

a live infant on July 30, 1996, at Morton Plant Hospital, a

hospital located in Clearwater, Florida, and her birth weight

exceeded 2,500 grams.

2. The physi cian providing obstetrical services at

Morgan's birth was Patricia St. John, M.D., who, at all times

material hereto, was a "participating physician" in the Florida

Birth - Related Neurological Injury Compensation Plan, as defined

by Section 766.302(7), Flor ida Statutes.

Morgan's birth

3. At or about 10:30 p.m., July 29, 1996, Mrs. Farnum

(with an estimated date of delivery of July 20, 1996, and the

fetus of 41 1/2 weeks gestation) experienced the onset of labor,

and at 2:00 a.m., July 30, 1996, proceeded to Morton Plant

Hospital, where she was admitted at 2:17 a.m. At the time,

Mrs. Farnum reported her membranes had ruptured in route to the

hospital (at 2:15 a.m.), and, following admission, meconium

stained amniotic fluid was noted.

4. Mrs. Farnum rapidl y progressed through labor, and

Morgan was born at 2:42 a.m. Apgar scores were noted as 2, 5,

and 7, at one, five, and ten minutes, respectively, and

umbilical cord p H was reported as normal (7.4).

5. The Apgar scores assigned to Morgan are a numerical

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

sum points gained on assessment of heart rate, respiratory

effort, muscle tone, reflex irritation, and skin 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, Morgan's Apgar score totaled 2, with heart rate being

graded at 2, and respiratory effort, muscle tone, reflex

irritation, and skin color being graded at 0. At five minutes,

Morgan's Apgar scores t otaled 5, with heart rate and respiratory

effort being graded at 2 each, skin color being graded at 1, and

muscle tone and reflex irritation being graded at 0. At ten

minutes, Morgan's Apgar score totaled 7, with heart rate and

respiratory effort being gr aded at 2 each, and muscle tone,

reflex irritation and skin color being graded at 1 each. Such

scores are abnormal, and consistent with severe depression at

birth.

6. Following resuscitation, Morgan was transferred to the

neonatal intensive care unit, where she remained until

1:10 p.m., when she was transferred to All Children's Hospital

for further evaluation and monitoring. The circumstances of

Morgan's birth and subsequent course at Morton Plant Hospital

are summarized in the Neonatal Transfer Summa ry, as follows:

HISTORY: Baby Girl Farnum was born on

7/30/1996 with an estimated gestational age

of 41 weeks and a birth weight of 3670 grams

. . . . There was spontaneous rupture of

membranes at 27 minutes prior to delivery

with some meconium stained a mniotic fluid

noted. Labor was noted to be rapid with

some variables. The infant was suctioned by

the obstetrician prior to delivery. There

was a true kno[t] in the cord noted, as well

as the cord around the neck X 2 and around

the arm X 1. The infant was suctioned below

the cord for a small amount of meconium

fluid. She required positive pressure

ventilation with a Fi02 of 100% X 1 minute

to initiate respiratory effort. She then

required whiffs of oxygen until

approximately 5 minutes of age. Her Apg ars

were 2, 5 and 7 at 1, 5 and 10 minutes

respectively. The infant was noted

initially to be hypotonic. She was

transferred to the Neonatal Intensive Care

unit for further evaluation and management.

On admission to the intensive care unit her

vital sig ns revealed a temperature of 97.2,

pulse of 138, respiratory rate of 52 and

blood pressure of 56/24. Her saturations

were 80% in room air. She was placed in

Fi02 of 100%, keeping saturations between 96

- 98%. Her physical exam was remarkable for

hypoton icity. HEENT: pupils were

constricted bilaterally, responding to

light. Lungs: breath sounds were equal but

coarse. Rhythm: normal heart sounds, no

murmur was noted. Abdomen was soft.

Impression at that time was term female

infant, respiratory dist ress, perinatal

depression and to rule out sepsis . . . .

PROBLEM #1 Respiratory: The infant was

maintained in an oxyhood of 100%. Her blood

gases revealed a progressive respiratory

acidosis. Prior to intubation the pH was

7.09, PC02 was 74, P02 was 68 , bicarb was

22, basex was - 9.3. Following intubation

the pH was 7.29, PC02 was 35, P02 was 186,

bicarb was 17, basex was - 8.4. Chest x - rays

are consistent with some mild transient

tachypnea. The x - rays following intubation

are pending at this time.

PR OBLEM #2 Metabolic Acidosis: The infant's

initial blood gas following admission to the

nursery with a Fi02 of 100% revealed a pH of

7.15, PC02 of 37, PO2 of 142, bicarb of 13.1

and basex of - 50.1 (the core pH was reported

7.4). The infant has required 3 doses of

sodium bicarb for correction of metabolic

acidosis. The most recent bicarb is 17 with

basex of - 8.4. The electrolytes this

morning revealed a bicarb of 16.

PROBLEM #3 Sepsis: Blood cultures were

obtained and then the infant was placed on

antib iotics. Admission white count was

26,300 with 60 polys, 3 bands, 31 lymphs, 6

monos with an I/T ratio 0.5. HCT was 42,

platelet count was 224,000. The infant is

currently on ampicillin and gentamicin.

PROBLEM #4 Metabolic Disorder: The infant's

ALT is 601, AST is 1210. The blood ammonia

level is 104. The questions of metabolic

disease versus a viral infection versus

perinatal depression as to the etiology for

the derangements is in process right now.

PROBLEM #5 Hypotension: The infant was

started o n 5 mcg of dopamine. The infant's

blood pressure is with a systolic of 56 with

a diastolic of 38.

* * *

IMPRESSION: At this time is a term female

infant.

1. Perinatal depression

2. Respiratory distress (suspect transient

tachypnea)

3. Hypo tension

4. Rule Out Sepsis

5. Metabolic Acidosis

6. Rule Out Metabolic Disease

7. Morgan remained at All Children's Hospital until

August 16, 1996, when she was discharged to her parent's care.

Morgan's course at All Children's was summarized in her Neonatal

Discharge Summary, as follows:

DISCHARGE DIAGNOSIS:

1. Perinatal Depression

2. Respiratory Distress

3. HSV Infection; Ruled Out

4. Increased Liver Function Tests -

Resolved

5. Acute Renal Failure Resolved

6. Metabolic Acidosis

7. Stat us Epilepticus

8. Pulmonary Hypertension

icuspid Regurgitation

10. Diffuse Encephalopathy

* * *

RESPIRATORY/APNEA: The infant was admitted

on 60% oxygen, rate of 35, and pressures of

17/5. The initial chest x - ray, at Morton

Plant Hospital, wa s consistent with mild

TTN. The first x - ray, at All Children's,

showed the lungs well aerated.

days, however, due to the risk of HSV

infection the Acyclovi r was continued for 7

days until the PCRs were negative.

* * *

HEMATOLOGY: The infant had a low fibrinogen

on newborn day of age. This was treated

with one unit of cryoprecipitate. This was

felt to be due to perinatal asphyxia and it

returned to n ormal by one day of age.

RENAL: The baby developed oliguria on the

first day of life. This was felt to be

secondary to the perinatal depression. She

was treated with dopamine, dobutamine, and

fluid restriction. Urine output returned to

normal by 3 day s . . . .

METABOLIC: The infant had persistent

metabolic acidosis at newborn day of age

felt to be secondary of perinatal

depression. This responded to treatment

with sodium bicarbonate and intubation.

The infant later developed a transient

alkalosis s econdary to aggressive management

of the acidosis. This resolved by 2 days of

age.

* * *

CENTRAL NERVOUS SYSTEM: A CT scan done at

newborn day of age for perinatal depression

showed generalized low attenuation of

supratentorial brain parenchymal, e specially

the white matter tracts, most pronounced

frontally and a questionable association of

edema as the ventricles were small but the

basilar cisterns were widely patent. This

was thought to be secondary to a previous

ischemic event.

Follow up CT sca n at 6 days of life revealed

diffuse cerebral edema slightly improved,

but suspicious for a hypoxic event. Follow

up CT at 16 days of life revealed continued

diffuse severe low density brain with

evidence of encephalomalacia or edema with

good evidence of improvement not identified.

This was thought to have a poor prognostic

appearance and may result in severe cerebral

deficiency.

The infant developed seizures on newborn day

of life. An EEG showed continuous seizure

activity in both the left and right

h emispheres. Follow up EEG at 1 day of life

showed background slowing which is

suggestive of a diffuse encephalopathic

process and also repetitive discharge which

was significant for subclinical

electrographic seizures. The seizures were

secondary to peri natal depression and were

finally controlled with phenobarbital and

Dilantin. A 24 hour continuous video EEG

was started on the first day of life which

initially had multiple clinical and

subclinical seizures indicating the patient

was in status epileptic us which decreased in

frequency toward the end of the monitoring,

revealing mostly severely depressed

background without evidence of authentic or

subclinical seizure activity. The dilantin

was weaned and discontinued at 9 days of

life. The phenobarbital was weaned but the

patient will continue phenobarbital at

discharge.

Follow up EEG at 16 days of life was

abnormal secondary to attenuation of the

background voltage with also excessive

activity of sharp transients, especially in

the left frontal tempora l region, but also

seemed to occur in the right temporal

region. This EEG was felt to be consistent

with a diffuse encephalopathic process with

an area of additional superimposed cerebral

dysfunction, most predominantly in the left

frontal temporal region , but also in the

right temporal regions and these areas were

felt to be potentially epileptogenic. This

EEG, though, was improved from the previous

tracing.

* * *

PHYSICAL EXAM AT DISCHARGE: Significant for

a term female infant with generalized

hyp otonia, especially in the upper

extremities . . . . Patient is slow to

Moro, has a weak grasp . . . .

8. On August 8, 2001, following the filing of the claim

for compensability, Morgan was examined by Michael Duchowny,

M.D., a physician board - certified in pediatrics, neurology with

special competence in child neurology, and clinical

neurophysiology. Dr. Duchowny reported the results of his

evaluation, as follows:

PHYSICAL EXAMINATION reveals Morgan to be

wheelchair bound. Her weight is estimated

at 35 - pounds. The skin is warm and moist.

Her hair is brown and of normal texture.

Her head circumference measures 46.7 cm,

which is well below standard percentiles for

age. There is a backward sloping to her

forehead. The fontanelles are closed.

There ar e no dysmorphic features and no

facial asymmetries. She has frequent tongue

protrusions and drooling almost constantly.

There is some gingival hypertrophy. The

neck is supple without masses or

thyromegaly. The cardiovascular examination

is unremarkable . She has a clean indwelling

G - tube in the left upper abdominal quadrant.

There is no palpable organomegaly. The

peripheral pulses are 2 and symmetric.

Morgan's NEUROLOGIC EXAMINATION is

significant for a severe degree of

neurologic impairment. Morga n does not make

good eye contact. There are conjugate eye

movements with left esotropia. She has both

kyphosis and thoracolumbar scoliosis. This

is mild. A brief fundoscopic examination is

unremarkable. There is no persistent

central gaze fixation and she does not

conjugately follow. Morgan does brighten in

response to music. Her pupils are 3 mm and

react briskly to direct and consensually

presented light.

Motor examination reveals double

hemiparesis, with flexion postures of the

upper extremities a nd bilateral fisting of

the thumbs, greater on the right side. She

has marked spasticity of all extremities,

but no fixed contractures. Her feet can be

dorsiflexed just to neutrality. Morgan's

spasticity is prominent in all four

extremities. In vertica l suspension she

tends to maintain a plantar grade attitude,

with slight scissoring. In the supine

position she demonstrates bilateral tonic

neck responses which are obligate. There is

significant head lag on pull - to - sit

maneuver. Hoffmann signs are pos itive

bilaterally and she has bilateral Babinski

signs. The deep tendon reflexes are 3 in

the upper extremities and 4 in the lowers,

with bilateral crossed adductor responses

and Babinski signs. There is withdrawal of

all extremities to touch. Morgan has

frequent tongue thrusting and an overactive

gag response. She did not speak in words at

anytime during the evaluation and it was not

clear that she understood simple commands.

In SUMMARY, Morgan's neurologic examination

is significant for a severe de gree of mental

and motor impairment. She is functioning at

approximately age 2 to 3 months which puts

her in the profoundly retarded range. She

additionally demonstrates evidences of

spastic tetraparesis, cortical

inattentiveness and has a history of

sei zures, with startle myoclonus. Morgan

additionally demonstrates microcephaly.

Coverage under the Plan

9. Pertinent to this case, coverage is afforded by the

Plan for infants who suffer a "birth - related neurological

injury," defined as an "injury to t he 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 physicall y impaired."

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

766.309(1)(a), Florida Statutes.

10. Here, it is undisputed that Morgan suffered a injury

to the brain, which rendered her permanently and substantially

mentally and physically impaire d. Consequently, with regard to

the issue of compensability, what remains to resolve is whether

the proof supports the conclusion that, more likely than not,

Morgan's brain injury was "caused by oxygen deprivation or

mechanical injury occurring in the cou rse of labor, delivery, or

resuscitation in the immediate post - delivery period," as

required for coverage under the Plan.

The cause and timing of Morgan's brain injury

11. To address the cause and timing of Morgan's brain

injury, the parties offered the medical records relating to

Mrs. Farnum's antepartum course, as well as those associated

with Morgan's birth and subsequent development. Additionally,

Mrs. Farnum testified on her own behalf, and Respondent offered

the deposition testimony of Dr. Donald W illis, a physician

board - certified in obstetrics and gynecology, as well as

maternal - fetal medicine, and the deposition testimony of

Dr. Michael Duchowny, whose qualifications were previously

discussed.

12. As for the timing of Morgan's brain injury, it was

Dr. Willis' opinion, based on his review of the medical records,

that Morgan's brain injury occurred prior to the onset of labor.

In so concluding, Dr. Willis noted that the time between the

onset of labor and Morgan's delivery was brief; that follow ing

admission to the hospital, the fetal monitor strips did not

reveal any significant abnormalities; the umbilical cord pH (a

pH of 7.4, with a base excess of - 4) was well within normal

limits; and the CT scan, at approximately 15 hours of birth,

already revealed evidence of hypoxic changes (damage).

Consequently, Dr. Willis resolved that the most likely

explanation for Morgan's depression at birth was a injury that

predated the onset of labor. 1

13. Also speaking to the timing of Morgan's brain injury

wa s Dr. Duchowny who, based on his review of the medical records

was likewise of the opinion that the injury Morgan suffered was

attributable to events which occurred prior to labor. In

reaching such conclusion, Dr. Duchowny noted that, based on his

review of the CT scan done on July 30, 1996, at 5:30 p.m., the

amount of edema evident would take a minimum of 24 hours, and as

long as 48 hours, to develop. As for the cause of Morgan's

injury, Dr. Duchowny noted the possibility of infection (since

Mrs. Farnum was febrile on admission to the hospital), as well

as the possibility of hypoxia (as a result of the tight nucal

cord, and true knot), but did not express an opinion, within

reasonable medical probability, as to the likely cause of

Morgan's injury.

14. In contrast to the proof offered by Respondent

regarding the timing of Morgan's injury, Petitioners and

Intervenor offered no expert testimony regarding the timing of

Morgan's injury or its cause. Consequently, given that the

opinions of Doctors Willis and Duchowny are logical and

consistent with the other proof, it must be resolved that

Morgan's injury occurred prior to the onset of labor. See ,

e.g. , 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 ."). Moreover, given

the lack of medical evidence as to causation, it must be

resolved that the proof failed to demonstrate that Morgan's

brain injury was caused by oxygen deprivation or mechanical

injury, as required for coverage under the Plan. See , e.g. ,

Thomas v. Salvation Army , supra , at page 749 ("It is an

established rule that a workers' compensation claimant must

prove the existence of a causal connection between the

employment and injury for which benefits are sought, and the

existence of causation must be based upon reasonable medical

probability.")

CONCLUSIONS OF LAW

15. The Division of Administrative Hearings has

jurisdiction over the partie s to, and the subject matter of,

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

16. The Florida Birth - Related Neurological Injury

Compensation Plan was established by the Legislature "for the

purpose of providing compensation, irrespectiv e of fault, for

birth - related neurological injury claims" relating to births

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

Florida Statutes.

17. 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 A ssociation, 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 ne urological injury." Section 766.305(3),

Florida Statutes.

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

is a compensable 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, on

the other hand, NICA disputes the claim, as it has in the

instant case, the dispute must be resolved by the assigned

administrative law judge in ac cordance with the provisions of

C hapter 120, F lorida Statutes. Sections 766.304, 766.307,

766.309, and 766.31, F lorida Statutes.

19. In discharging this responsibility, the administrative

law judge must make the following determination based upon the

ava ilable evidence:

(a) Whether the injury claimed is a

birth - related neurological injury. If the

claimant has demonstrated, to the

satisfaction 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 rebuttable 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.

20. 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 birth caused by oxygen deprivation or

mechanical injury occurring in the course of

labor, delivery, or resuscitatio n 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.

21. As the claimants, the burden rested on Petitioners 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

tribunal").

22. Here, since the proof demonstrated, more likely than

not, that Morgan's neurologic impairment resul ted from an injury

to the brain that predated the onset of labor, and failed to

demonstrate that Morgan's brain injury was caused by oxygen

deprivation or mechanical injury, it must be resolved that

Morgan was not shown to have suffered a "birth - related in jury,"

within the meaning of Section 766.302(2), Florida Statutes, and

the claim is not compensable. See also Humana of Florida, Inc.

v. McKaughan , 652 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 subjects clearly embraced within its terms."), approved ,

Florida Birth - Related Neurological Injury Compensation

Association v. McKaughan , 668 So. 2d 974, 979 (Fla. 1996).

23. Wh ere, as here, the administrative law judge

determines that ". . . the injury alleged 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 par ties 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 C onclusions of

Law, it is

ORDERED that the petition for compensation filed by

Karen Farnum and James Farnum, as parents and natural guardians

of Morgan Farnum, a minor, is hereby denied with prejudice.

DONE AND ORDERED this 10th day of January, 2003, in

Ta llahassee, Leon County, Florida.

___________________________________

WILLIAM J. KENDRICK

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

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 10th day of January, 2003.

ENDNOTE

1/ Dr. Willis expressed no opinion as to the likely cause of

Morgan's brain injury.

COPIES F URNISHED :

(By certified mail)

Tony Cunningham, Esquire

Cunningham, Clark & Greiwe

100 Ashley Drive, South, Suite 100

Tampa, Florida 33602 - 5358

B. Forest Hamilton, Esquire

Post Office Box 38454

Tallahassee, Florida 32315 - 8454

Kenney Shipley, Executive Director

Florida Birth - Related Neurological

Injury Compensation Association

1435 Piedmont Drive, East, Suite 101

Post Office Box 14567

Tallahassee, Florida 32312

Kirk S. Davis, Esquire

Akerman, Senterfitt & Eidson, P.A.

Post Office Box 3273

Tampa, Flor ida 33601 - 3273

Patricia St. John, M.D.

1055 South Fort Harrison Avenue

Clearwater, Florida 34616 - 3905

Morton Plant Hospital

300 Pinellas Street

Clearwater, Florida 33756

Ms. Charlene Willoughby

Agency for Health Care Administration

Consumer Services Unit

Post Office Box 14000

Tallahassee, Florida 32308

Mark Casteel, General Counsel

Department of Insurance

The Capitol, Lower Level 26

Tallahassee, Florida 32399 - 0300

NOTICE OF RIGHT TO JUDICIAL REVIEW

A party who is adversely affected by this fina l 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 notice of appeal wit h 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 Neurological Injury

Com pensation 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.