03-000294N Linda J. Davidson Lapp, Individually, And On Behalf Of And As Natural Guardian Of Faith Lapp, A Minor vs. Florida Birth-Related Neurological Injury Compensation Association Status: Closed DOAH Final Order on Friday, April 30, 2004.

Summary: The evidence failed to demonstrate that the infant suffered a brain injury due to oxygen deprivation or mechanical injury during birth or that the infant was substantially physically impaired. It is ordered that the claim is denied.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

LINDA J. DAVIDSON LAPP, )

individually, and on behalf of )

and as natural guardian of )

FAITH LAPP, a minor, )

)

Petitioner, )

)

vs. ) Case No. 03 - 0294N

)

FLORIDA BIRTH - RELATED )

NEUROLOGICAL INJURY )

COMPENSATION ASSOCIATION, )

)

Res pondent, )

)

and )

)

ORLANDO REGIONAL HEALTHCARE )

SYSTEM, INC., )

)

Intervenor. )

)

FINAL ORDER

Pursuant to notice, the Division of Administrative

Hearings, by Ad ministrative Law Judge William J. Kendrick, held

a hearing in the above - styled case on February 16, 2004, by

video teleconference, with sites in Orlando and Tallahassee,

Florida.

APPEARANCES

For Petitioner: Linda J. Davidson Lapp, pro se

9918 Bear Lake Road

Apopka, Florida 32703

For Respondent: Lynn Walker Wright, Esquire

Lynn Walker Wright, P.A.

2716 Rew Circle, Suite 102

Ocoee, Flor ida 34761

For Intervenor: Larry J. Townsend, Esquire

Mateer & Harbert, P.A.

225 East Robinson Street, Suite 600

Post Office Box 2854

Orlando, Florida 32802 - 285 4

STATEMENT OF THE ISSUES

Whether Faith Lapp, a minor, qualifies for coverage under

the Florida Birth - Related Neurological Injury Compensation Plan.

PRELIMINARY STATEMENT

On January 27, 2003, Linda J. Davidson Lapp, individually,

and on behalf of and as natural guardian of Faith Lapp (Faith),

a minor, filed a petition (claim) with the Division of

Administrative Hearings (DOAH) for compensation under the

Florida Birth - Related Neurological Injury Compensation Plan

(Plan).

DOAH served the Florida Birth - Rela ted Neurological Injury

Compensation Association (NICA) with a copy of the claim on

January 28, 2003, and on May 6, 2003, NICA filed a Motion for

Summary Final Order, predicated on the opinion of its experts

that Faith had neither a substantial mental nor motor

impairment, and that her neurologic abnormalities were likely

acquired in utero, rather than from oxygen deprivation or

mechanical injury occurring during labor, delivery or

resuscitation. In the meantime, Orlando Regional Healthcare

Systems, Inc., requested and was accorded leave to intervene.

On November 14, 2003, an Order was entered denying NICA's

Motion for Summary Final Order, and a hearing was scheduled for

February 16, 2004, to resolve whether the claim was compensable.

At hearing, Linda J. Davidson Lapp testified on her own behalf,

and Petitioner's Exhibit 1 was received into evidence. Also

received into evidence were Joint Exhibits 1 - 4, Respondent's

Exhibits 1 and 2, and Intervenor's Exhibits 1 and 2. No other

witnesses were called, and n o further exhibits were offered.

The transcript of the hearing was filed March 8, 2004, and

the parties were accorded 10 days from that date to file

proposed orders. Respondent and Intervenor elected to file such

proposals, and they have been duly conside red.

FINDINGS OF FACT

Preliminary findings

1. Linda J. Davidson Lapp is the natural mother and

guardian of Faith Lapp, a minor. Faith was born a live infant

on January 27, 1998, at Arnold Palmer Hospital for Children &

Women (Arnold Palmer Hospital), a division of Orlando Regional

Healthcare System, Inc., a hospital located in Orlando, Florida,

and her birth weight exceeded 2,500 grams.

2. The physicians providing obstetrical services at

Faith's birth were Penny A. Danna, M.D., and Steven Carlan,

M.D., who, at all times material hereto, were "participating

physician[s]" in the Florida Birth - Related Neurological Injury

Compensation Plan, as defined by Section 766.302(7), Florida

Statutes.

Faith's birth

3. At or about 1:25 a.m., January 27, 1998, Mrs. L app

(with an estimated date of delivery of January 22, 1998, and the

fetus at 40 weeks gestation) presented to Arnold Palmer

Hospital, in labor. At the time, Mrs. Lapp's membranes were

noted as intact, and vaginal examination revealed the cervix at

4 cen timeters dilation, effacement complete, and the fetus at - 1

station. Contractions were noted as mild, at a frequency of 2 - 3

minutes, with a duration of 40 seconds, and fetal monitoring

revealed a reassuring fetal heart rate, with a baseline in the

130 bea t per minute range.

4. From 1:25 a.m. until 5:00 a.m., when her membranes

spontaneously ruptured, Mrs. Lapp's labor progress was steady,

and fetal monitoring continued to reveal a reassuring fetal

heart rate. Thereafter, to 7:05 a.m., when vaginal exami nation

revealed Mrs. Lapp complete, monitoring continued to reveal a

reassuring fetal heart rate, with a baseline in the 150 beat per

minute range, and variable decelerations, with contractions, and

a good return to baseline.

5. At 7:20 a.m., Mrs. Lapp w as noted as pushing, with

contractions, and variable decelerations continued without

significant change until approximately 8:40 a.m., one hour prior

to delivery, when fetal heart rate decelerations became

persistent. Thereafter, at 9:25 a.m., the baby wa s noted to

crown; at 9:34 a.m., the baby was noted as bradycardic with a

fetal heart rate in the 70 beat per minute range; and at

9:36 a.m., the baby's head was noted as delivered, with the

fetal heart rate continuing in the 70 beat per minute range.

6. D elivery was complicated by a shoulder dystocia, and at

9:38 a.m., the labor and delivery record reveals the baby was

not yet delivered, and the fetal heart rate was persisting in

the 70 beat per minute range. Thereafter, at 9:40 a.m., Faith

was delivered.

7. At delivery, Faith was severely depressed (without

respiratory effort, reflex, or muscle tone; a color consistent

with central cyanosis; and a heart rate under 60 beats per

minute), and required resuscitation (ambu bagging with 100

percent oxygen, car diac compression for 20 seconds, and

intubation). Apgar scores were recorded as 1 and 6, at one and

five minutes, respectively, 1 and cord pH was recorded at 7.28.

8. Following delivery, Faith was transported to the

neonatal intensive care unit (NICU), wh ere she remained until

January 31, 1998, when she was discharged to her parent's care.

Faith's hospital course was summarized in her Clinical Resume

(discharge summary), as follows:

History . . . .

Term newborn female, birth weight 4449 gm,

born on 01/2 7/98 at APHCW. Mother is a 39 -

year - old gravida 2, para 1, 0 positive,

maternal screens negative, uncomplicated

gestation, 40 weeks gestation, rupture of

membranes 4 hr., 40 min. prior to delivery.

Difficult extraction, vaginal delivery,

epidural anesthe sia, nuchal cord times one.

During process of extraction, left fracture

of the humerus. Baby cyanotic and apneic,

heart rate 40 - 60, Ambu bagged with 100%,

cardiac compressions given, intubated at one

to 1 -

PROBLEM LIST:

Problem #1: Post mature, 41 weeks female.

Problem #2: Neonatal depression. Infant

required 100%, pressures of 23/3 and an IMV

of 30; pH 7.4, pCO2 22, PO2 393, base exces s

- 8.1. Weaned and extubated to room air by

day one. No apnea nor bradycardia. Monitor

discontinued.

Problem #3: Rule out sepsiseated with

ampicillin and gentamicin times 72 hr.

Blood culture negative.

Problem #4: Fracture of the left humerus.

Orthopaedic consult obtained, infant was

splinted, now is positioned with left upper

extremity pinned across chest and is

comfortable. For follow - up with Dr.

Topoleski.

Problem #5: Neurologic. A CT scan of the

head shows some central subdural bleedin g

along tentorium and falx cerebri, small

amount, slightly prominent extra - axial space

left temporal region.[ 2 ]

Problem #6: Miscellaneous. Passed ABR

hearing screening exam. Annual follow - up is

recommended. Infant screening was done

01/28/97.

Problem #7: Fluids/electrolytes/nutrition.

Feedings were begun on day 2, and advanced.

Infant is tolerating ad lib feedings of

maternal breast milk or Similac - 20 with

iron, and nippling well.

Physical examination, 01/31/98: Four days

of age. Weight 4555 gm, head circumference

33.25 cm. Pink. Anterior fontanelle soft.

No murmur. Lungs clear. Abdomen soft and

full. Neurologic appropriate. Left arm

positioned as noted above.

* * *

FINAL DIAGNOSIS:

1. Post term, 41 weeks female.

2. Neonatal depres sion.

3. Rule out sepsis.

4. Left fractured humerus.

5. Subdural bleeding.

9. Follow - up CT scan on March 25, 1998, showed resolution

of the subdural hemorrhage. Specifically, the CT scan was read,

as follows:

The ventricles are normal in size and

con figuration. There is no midline shift.

The attenuation characteristics of the brain

are within normal limits for the patient's

age and state of maturity. No extra - axial

fluid collections are identified. The

hemorrhagic changes described on the study

of 01/30 have cleared.

IMPRESSION:

CT appearance of brain within normal limits.

Faith's subsequent development

10. Following discharge from Arnold Palmer Hospital, Faith

was followed for a number of evolving irregularities. Pertinent

to this case, insi ght into the complexity of her presentation

can be gleaned from some observations by a few of Faith's

physicians: Michael Pollack, M.D., a pediatric neurologist;

Eric Trumble, M.D., a pediatric neurosurgeon; and Harry Flynn,

Jr., M.D., an ophthalmologist.

11. Dr. Pollack initially evaluated Faith on March 30,

1998, and described his impressions, as follows:

. . . Parents have observed that the patient

does not follow although she appears to

respond to light. She has been evaluated by

Dr. Gold and Dr Rich mond and apparently has

retinal detachment . . . . A recent film of

the patient's left arm apparently

demonstrated that her humeral fracture is

healing satisfactorily.

* * *

A recent CT scan of the head shows

resolution of posterior fossa hemorrhage .

In addition, the fluid collection over the

left temporal region has largely disappeared

but the left - sided subarachnoid space does

remain larger than the right.

Physical examination includes a weight of 14

pounds and a head circumference of 35.5 cm.

T he forehead appears underdeveloped and the

head is small in relation to the face.

Anterior fontanel is closed. There is

ridging of coronal and sagittal sutures.

Slight flattening of the right occiput is

present and there is corresponding

alopecia . . . .

IMPRESSION:

1. Perinatal craniocerebral trauma and

probable hypoxic ischemic encephalopathy.

2. Retinopathy by history.

3. Evolving microcephaly versus

craniosynostosis: Primary microcephaly

(failure of the head to grow because of poor

brain growt h) appears more likely than

craniosynostosis . . . .

12. Dr. Pollack summarized his September 29, 1998,

evaluation, as follows:

Faith is an 8 - month - old girl who was

initially evaluated in my office 3/98

because of visual impairment and suspected

seizures . Her diagnoses include perinatal

craniocerebral trauma and a possible hypoxic

ischemic encephalopathy. In addition, she

had a congenital retinopathy. Her diagnoses

at Bascom Palmer Institute were: (1)

congenital bilateral retinal detachment and

(2) va riation of persistent hyperplastic

primary vitreous or persistent fetal

vasculature bilaterally. Her MRI scan of

the head showed an abnormality of the

rostrum of the corpus callosum which was

thought to fall in the spectrum of septo -

optic dysplasia. Her condition, therefore,

appears to be due to a combination of

congenital anomalies and perinatal factors

. . . .

In the past few months, the patient has

undergone . . . [repair of metopic

synostosis]. Although the shape of her head

has improved, her head circumference has

remained below the 5th percentile,

supporting the view that primary

microcephaly rather than craniosynostosis

was responsible for the small head size in

this patient. In addition, ptosis of the

right upper lid developed postoperatively.

* * *

PHYSICAL EXAMINATION: Includes a length of

26.5 inches, weight 18 - 3/4 pounds, head

circumference 38.5 cm. The head appears

small in relation to the face. There is

unilateral occipital flattening . . . .

IMPRESSION: Severe nonprogressive

en cephalopathy due to perinatal factors as

outlined above and a congenital anomaly of

the central nervous system. There is severe

visual impairment which is due to a retinal

anomaly . . . .

Her residual microcephaly suggests that

deficient brain growth r ather than

craniosynostosis was responsible for her

small head size . . . . Development is

globally delayed. The combination of

microcephaly, congenital CNS anomalies,

visual impairment and global developmental

delay in this patient suggests that she is

likely to function in the trainable mentally

handicapped range. Her motor attainment to

date implies that she will walk

independently.

13. Following September 29, 1998, Faith was seen by

Dr. Pollack on July 21, 1999; April 3, 2000; and July 17, 2001,

du ring which there was no apparent change in Dr. Pollack's

impression. Thereafter, the record suggests that following

Faith's last visit with Dr. Pollock, her neurology issues were

followed in Miami; however, there is no evidence of record

regarding those e valuations, if any. 3

14. Following discharge from Arnold Palmer Hospital, Faith

was also seen by Drumble and had serial workups for

craniosynostosis. That diagnosis was rejected July 9, 1998,

when "a head CT with 3 - D reconstruction . . . revealed all

sutures to be open with the exception of her metopic suture,

which was supposed to be closed at this age." Faith did,

however, have "metopic synostosis with a small palpable ridge,"

which was repaired on July 29, 1998. Faith apparently did well

post - ope ratively, with the exception of right eye ptosis. Of

note, an uncontrasted CT scan was reviewed by Dr. Trumble in

March 1999, which he noted: "identifies normal morphology

without evidence of increased CSF spaces or definite atrophy."

15. On April 2 0, 1998, Faith's ophthalmologic problems

were evaluated by Dr. Flynn, professor of ophthalmology at

Bascom Palmer Eye Institute, Miami, Florida. Dr. Flynn

described his impressions as follows:

. . . [Faith] was examined on 4/20/98

regarding her retinal de tachments in both

eyes. . . . [The patient] had a traumatic

delivery that involved extensive facial,

cranial and subconjunctival hemorrhages.

The patient has brought with her multiple

studies including X - rays, CT scans and other

studies that have been re viewed and are

present on the chart. The patient is being

referred regarding the possibility of any

surgical therapy for this patient with

bilateral retinal detachments. The ocular

examination showed no recordable visual

acuity although there did appear to be a

response to light in each eye. The

pupillary reaction showed a 1 response to

direct light in each eye. The tension by

palpation was normal in both eyes.

The anterior segment examination showed a

white plague - like structure on the back

surface o f the lens in both eyes. The

vitreous cavity was clear with no visible

hemorrhage in either eye. The posterior

segment examination showed total retinal

detachment with dragging of the retina

toward the inferior temporal quadrant in

both eyes. The retina l folds were drawn

forward as well to fibrous tissue inserting

on the back surface of the lens.

IMPRESSION:

1. Congenital bilateral retinal detachment

both eyes.

2. Variation of persistent hyperplastic

primary vitreous or persistent fetal

vasculature both eyes.

RECOMMENDATION:

I discussed my findings with the patient

[sic] and husband. I indicated that the

retinal detachments were inoperable. I

indicated that the changes present in the

back of the eye could not have taken place

in 2 1/2 months in s pite of the extent of

the trauma at delivery.[ 4 ]

16. Apart from the impressions of Faith's treating

physicians, some insight into Faith's development may also be

gleaned from certain evaluations and testing by the Seminole

County Public Schools; includ ing a Report of Adoptive Behavior

Testing, dated August 21, 2003. On that test, administered at

age 5 years, 7 months, Faith's ability to care for herself and

interact with others ("Broad Independence") was measured based

on an average of four areas of ad aptive functioning: motor

skills, social interaction and communication skills, personal

living skills, and community living skills. There, Faith's

motor skills, which included gross and fine motor proficiency

tasks involving mobility, fitness, coordinati on, eye - hand

coordination, and precise movements were said to be comparable

to an individual at age 3 - 1 (3 years, one month). However, the

examiner noted the basis for such conclusion, as follows:

When presented with age - level tasks, Faith's

gross - motor s kills are age - appropriate.

Age - level tasks involving balance,

coordination, strength, and endurance will

be manageable for her.

When presented with age - level tasks, Faith's

fine - motor skills are very limited. Age -

level tasks requiring eye - hand coordina tion

using the small muscles of the fingers,

hands, and arms will be extremely difficult

for her. (Emphasis added.)

(Intervenor's Exhibit 4.)

17. Faith's motor skills were also evaluated by the

Seminole Public County Schools, and noted in a Physical Th erapy

Assessment/Evaluation report, dated October 2, 2003, as follows:

OBSERVATIONS : Faith was evaluated in a

variety of educational settings. She was

observed in the classroom, during an

obstacle course in another classroom, on the

playground and around the school campus.

During the obstacle course observation,

Faith was participating in tunnel creeping,

rockerboard activities, basketball and

balance beam walking. Throughout the

evaluation, it appeared that Faith had

difficulty with some motor tasks du e to body

and spatial awareness as well as with her

speed and intensity of her movements. With

this evaluator, Faith followed all

directions and seemed eager to please.

* * *

FUNCTIONAL MOBILITY : Faith ambulates

indepen[den]tly in all directions

de monstrating a forward lurch, hiking type

of gait pattern, head is bent forwards. She

is able to walk in the halls, on ramps and

on sand on the playground without falling.

She is able to creep and knee walk

independently. Rises from the floor using a

hal f kneel pattern or through a backwards

crab type of pattern. Lowers self to floor

with controlansfers in/out of all

chairs independently but teacher reports she

often trips over her own feet. Ascends the

stairs using a reciprocal pattern without

hol ding the rail, descends using step to

step pattern holding the rail.

GROSS MOTOR : Faith sits on the floor with

good balance in a criss cross position or

sidesit position. She low kneels but weight

bears on her right side more than her left

and high knee ls with good balance. She

squats to pick an item up off the floor. Is

able to jump off the floor and jumps on the

trampoline at least 5 times in a row. She

is able to walk on the balance beam taking 3

steps independently and attempts to walk

backwards o n it. On the playground, she is

able to climb all structures independently

with supervision. Within the school

environment, Faith is able to push/pull her

exterior doors and turn knobs of all

interior doors.

FINE MOTOR/VISUAL MOTOR : . . . According

to notes from OCPS records, Faith may

exhibit some visual motor issues as well as

the visual impairment already noted.

(Intervenor's Exhibit 4.)

Coverage under the Plan

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

Plan for infants who suffer a "birth - related neurological

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

oxygen deprivation or mechanical injury, occurring in the course

of labor, delivery, or resuscitation in the immediate

postdelivery period in a hospital, which rende rs the infant

permanently and substantially mentally and physically impaired."

§ 766.302(2), Fla. Stat. See also §§ 766.309 and 766.31, Fla.

Stat.

19. In this case, Petitioner and Intervenor are of the

view that Faith suffered a "birth - related neurologi cal injury,"

as defined by the Plan. In contrast, NICA is of the view that

Faith did not suffer a "birth - related neurological injury" since

her neurologic impairments are, more likely than not, prenatal

(developmental) in origin, and resulted from cerebra l

malformation, as opposed to brain injury caused by oxygen during

labor, delivery, or resuscitation. Moreover, NICA is of the

view that Faith is not permanently and substantially mentally

and physically impaired.

The cause and timing, as well as the si gnificance

of Faith's impairment

20. To address the cause and timing of Faith's

impairments, as well as their significance, the parties offered

the records related to Faith's birth and subsequent development,

portions of which have been addressed supra ( Joint Exhibits 1 - 4,

and Intervenor's Exhibit 2); a color photograph of Faith taken

several hours after her birth (Petitioner's Exhibit 1); the

deposition of Leon Charash, M.D., a physician board - certified in

pediatrics, who practices pediatric neurology (I ntervenor's

Exhibit 1); the deposition of Donald Willis, M.D., a physician

board - certified in obstetrics and gynecology, as well as

maternal - fetal medicine (Respondent's Exhibit 1); and the

deposition of Michael Duchowny, M.D., a physician board -

certified in pediatrics, neurology with special competence in

child neurology, and clinical neurophysiology. (Respondent's

Exhibit 2.)

21. Dr. Willis, whose deposition was offered on behalf of

NICA, was of the opinion that the birth records failed to

support a c onclusion that Faith suffered a brain injury from

oxygen deprivation during labor or delivery, but offered no

opinion regarding the likelihood of brain injury from oxygen

deprivation during the course of resuscitation or from trauma

associated with Faith's delivery. Dr. Willis expressed the

basis for his opinions, as follows:

BY MS. WRIGHT:

* * *

Q. After reviewing the records in this

case, do you have an opinion within a

reasonable degree of medical probability as

to whether or not Faith Lapp quali fies for

compensation under the NICA criteria you

just described?

* * *

A. Yes, it was my opinion that there did

not appear to be a loss of oxygen that

occurred during labor or delivery that would

result in this child's injury.

* * *

Q. Doc tor, would you tell us how it is that

you reached such an opinion as that?

A. Yes. I reviewed the fetal heart rate

monitor strips, which do show fetal heart

rate decelerations during the latter few

hours of labor. Although they're not

persistent decele rations until about the

last hour before delivery, and then the

fetal heart rate tracing does show

persistent variable decelerations . . . .

The Apgar scores that the baby had were low,

the Apgar score was one and six. Of course,

the baby had -- there was a shoulder

dystocia at birth resulting in a very

difficult delivery. However, the umbilical

cord blood gas was normal with a pH of 7.28.

And the baby had a course in the hospital

that did not suggest an ischemic event

during labor or delivery. In other words,

did not have seizures in the post - delivery

period, no other organ failure like renal

failure, hypotension, those types of things,

and was discharged home on the fourth day.

So looking at all of that, I felt there was

not oxygen deprivation during labor or

delivery.

Q. . . . What is the significance of the

fetal heart rate monitoring strips?

A. Well, the fetal heart rate monitor

strips are consistent with some degree of

umbilical cord compression or variable

decelerations prior to delivery, and all

fetuses react differently to that. But

certainly if the fetal heart rate

decelerations persist and are significant,

then it can lead to a baby that has lack of

oxygen at birth.

* * *

Q. Dr. Willis, can you tell us the

significance of the cord b lood pH which you

referenced earlier as being normal at 7.28?

A. Right. Well, if a baby is born with a

lack of oxygen, then they will have lack of

oxygen and acidosis, which the two go

together. And if the baby has lack of

oxygen acidosis, then the cor d pH should be

low. If the umbilical cord blood pH is

within normal limits, it would suggest that

for whatever fetal heart rate decelerations

or whatever Apgar scores that were present,

that that wasn't a result of or did not

cause or was not a result of lack of oxygen

to the baby.

* * *

Q. Would you anticipate the pH to be

abnormal if the deceleration that you saw on

the fetal heart monitoring strips had

continuously occurred?

A. Well, the fetal heart rate monitor strip

shows you that in a way tha t the baby is

being stressed, but it doesn't really tell

you if the baby is in distress. So

different babies tolerate different amounts

of fetal heart rate deceleration. So the

bottom line here was the umbilical cord pH

being normal. I felt that I could not say

that those fetal heart rate decelerations

that were present in that hour prior to

birth really resulted in lack of oxygen to

the baby.

Q. In other words, you would have

anticipated the pH score to be abnormal if

the infant had been severely affe cted by the

deceleration?

A. That is correct.

* * *

Q. And the significance of the Apgar

scores?

A. Well, the Apgar score at one minute

tells you how much resuscitation is going to

be required for the newborn, and the one was

simply one point fo r fetal heart rate. The

baby at birth had no spontaneous

respiration, it was pale and it was not

moving, and the only points that the baby

got -- therefore, was depressed at that

time, and the Apgar score was one. The one -

minute Apgar score is not a very good

indicator of long - term neurologic

development though. The five - and the 10

minute Apgar scores are better indicators

for that. The Apgar score at five minutes

was listed at six. That's still low.

We consider Apgar score to be low if it is

under s even. So a six is just under the

cut - off. If the baby had an Apgar score of

seven at five minutes, then it would have

been considered a normal score . . . .

* * *

BY MS. LAPP:

Q. [D]o you normally . . . [limit yourself

as you did in this case]?

A. Normally -- normally, in most cases, I

don't limit myself as much as I am with your

case.

Q. You found that my case was --

A. I found it a little bit confusing. If I

saw the fetal heart rate tracing that I saw

here and the Apgar scores that I sa w and if

the cord pH was abnormal, or I didn't see a

cord pH, then I would have assumed that

there would have been hypoxia to this baby

at birth. But the fact that the cord pH was

so normal, I really have to stop and

question that. So then with that -- a nd

this happens in other cases.

So with that then, I have to look and see

what else. And from doing this for several

years and practicing in my subspecialty, I

know that babies that have hypoxic injury to

the brain at time of birth or during labor

freque ntly have seizures during the first

hour or two after birth and many of the

other things that we've talked about. So,

for instance, if your baby would have had a

seizure disorder an hour or two hours after

birth and would have been hypotensive, I

might ha ve in that circumstance decided that

I would have simply ignored the cord pH

result because it wouldn't have fit

everything that I see.

Q. Could it be possible that . . . [it was]

human error . . . ?

A. That is why I look at many different

things. Ag ain, if I would have seen other

things that would have been consistent with

hypoxic injury to the brain at birth, then I

would have said I am going to discard this

cord pH because it just doesn't fit the rest

of the picture. And so that is the reason I

ki nd of limited myself to labor and

delivery, because the baby is depressed

after birth, and I really can't explain

that.

* * *

Q. . . . When would she have had these

seizures?

A. It would have been after birth,

relatively in a short period after bi rth. I

guess what I'm trying to say is from a

maternal fetal standpoint, the medicine that

I practice, if I see a poor fetal heart rate

tracing and a baby with low Apgars and then

seizures two hours after birth and then a CT

scan done at five or six days of life which

shows a cystic structure -- shows maybe

brain edema consistent with hypoxic injury,

then that all becomes a very, very clear

picture for me.

In this case, unfortunately, the picture

just was not so clear. Because of that, I

wanted to limit myself to labor and delivery

because I could not make such a clear

picture of what happened after that.

(Respondent's Exhibit 1.)

22. Dr. Duchowny, whose deposition was also offered on

behalf of NICA, was of the opinion, based on his review of the

recor ds and his neurologic evaluation of Faith on March 12,

2003, that Faith's impairments, more likely than not, resulted

from cerebral malformation, as opposed to brain injury caused by

oxygen deprivation during labor, delivery, or resuscitation, and

that, re gardless of the cause, Faith was not permanently and

substantially mentally and physically impaired. Dr. Duchowny

expressed the basis for his opinions, as follows:

BY MS. WRIGHT:

* * *

Q. Could you tell me, after reviewing the

records concerning th e records of both Linda

Lapp and also Faith Lapp, your review of all

the records you've just named and your

examination of Faith Lapp, if you have

reached an opinion which is in the

reasonable degree of medical probability as

to whether or not Faith Lapp s ustained

permanent mental and physical impairment as

a result of her labor and delivery?

A. Yes. I believe that Faith does not have

a substantial mental or motor impairment and

that her neurologic disabilities were

acquired in utero and not the result o f a

birth related neurological injury that

occurred during labor, delivery or

resuscitation in the immediate post delivery

period.

Q. Could you tell me what you base that

opinion on, Doctor?

A. That opinion is based on the medical

records which indi cated that Faith's labor

and delivery were complicated by a fractured

left humerus, but that her cord blood pH was

normal; her Apgar scores of 1 and 6 were

reasonably good; that she did not have

findings in the post natal period which are

consistent with e ither mechanical injury or

severe hypoxia; and that her evaluations,

including my examination, all suggested that

the types of neurologic disabilities that

she has resulted from developmental

abnormalities which occurred during the time

that the brain was forming in interuterine

life.

Q. Doctor, in examining Faith's records,

would you comment on the blood cord results?

A. Well, her cord pH of the blood gas was

7.28, which is essentially normal. There is

no indication of any hypoxia at that point

in t ime when the blood gases were drawn from

the cord.

Q. Would you comment -- you said earlier that

her Apgar was relatively normal at 1 and 6.

What did you mean by that?

A. An Apgar score of 1 at one minute is not

an unusual finding in normal deliveries. It

reflects obstetrical medication; and I think

the important Apgar score is at five

minutes, which for Faith was 6. While not

being perfect, it certainly is a decent

Apgar score and inconsistent with asphyxia.

* * *

Q. Well, you indicated after that, if I

heard you correctly, that you didn't see any

post delivery signs of hypoxia.

A. That's correct. Faith did require some

ventilatory support for the first day, but

she never developed systemic signs of

hypoxia, which might produce abnormalities

of her heart, liver, kidney, lungs, or

cardiovascular system.

* * *

Q. You indicate further that there was no

evidence of mechanical injury. Could you

tell us for the record what you mean by

"mechanical injury?"

A. Well, there was no evidence of

mechanical injury to the central nervous

system, meaning there was no trauma to the

brain or spinal cord. Faith did have a left

Erb's palsy, which indicates dysfunction in

the brachial plexus. I believe this was

mechanically induced, but it was outside the

central nervous system.

* * *

Q. Let's now turn to your opinion that

Faith does not suffer from a substantial and

permanent mental or physical impairment.

Could you comment on the reasons why you

believe that to be your opinion?

A. Yes. At t he time that I evaluated Faith

last March, she was five years old. She did

have a short attention span, and she was an

overactive child, but she was able to talk.

Albeit with a speech delay, she was able to

talk. In fact, could speak in short

phrases. She seemed to be socially

appropriate. And with some effort, one

could actually complete the examination

because there would be some interaction

between Faith and myself. She wouldn't

cooperate for all testing but much of the

testing did in fact get done .

* * *

BY MR. THOMPSON:

* * *

Q. . . . [Y]ou . . . [agree] that you

believe there are neurologic abnormalities.

Correct?

A. Yes.

Q. When you say that they were acquired in

utero, you think that those were something

that developed prior to the birthing

process?

A. Yes.

Q. Is that what you mean?

A. Yes.

Q. Do you have a name for whatever that

process was that caused that?

A. I believe it is cerebral malformation.

Q. And is that a chromosomal problem?

A. Not usually.

Q. What 's usually the cause of that?

A. Unknown interuterine acquired factors.

Q. You have stated that you agree that

there were mechanical injuries to this child

during the labor and delivery process,

correct?

A. Yes.

Q. You said one evidence of that was the

fractured humerus. Correct?

A. Yes.

Q. She had some abnormalities on CT scan, I

believe, some sort of -- I can look for it,

but you may remember what it was. I've got

it right here. "A central subdural bleeding

along the tentorium and faux cereb rum of a

small amount." Do you recall that CT scan

of the head that was taken shortly after her

birth?

A. Yes.

Q. Would you agree that that was the result

of a mechanical injury to her head?

A. Yes.

* * *

Q. Would you agree that the pH of 7.2 8 in

the cord blood may not represent what her

true level of acidosis was?

A. No, I wouldn't agree with that

statement.

Q. Could that be a lab error?

* * *

A. Well, anything is possible; but given

the Apgar score and given her ultimate

clinical findings, I regard that cord blood

pH as being accurate.

Q. What do you account for her being

cyanotic?

A. She already had brain dysfunction in

utero. So, if you take a newborn, whose

brain is not normal, and you provide stress,

their response is of ten abnormal.

Q. . . . Would you agree that Faith's

laboratory work after her birth did show

evidence of problems with her liver?

A. No.

Q. Are you familiar with what her LDH was?

A. Yes. It was elevated, but the rest of

her liver functions were n ormal.

Q. Was her AST normal?

A. I would have to check. I don't believe

it was significantly elevated.

Q. Was her ALT abnormal?

A. Again, there were mild elevations that I

don't think were significant, as I recall.

Q. I may have asked you this. I apologize

if I have. You do agree that her

hydrocephaly is a result of secondary

atrophy, as opposed to some other reason?

A. No, I don't agree with that.

Q. But you disagree with Drumbull [sic]

when he said that in his report of July 9th,

1998 ?[ 5 ]

A. Well, you would have to ask Drumbull

[sic] what he meant by that. But my

understanding is that there were findings,

there were abnormalities, but they would not

be classified as atrophy. It would really

be failure to develop, which is diffe rent.

Q. How can you distinguish between atrophy

and failure to develop?

A. Well, atrophy implies at one point all

the brain structures were normal, and then

something happened to damage those

structures.

Developmental problems imply that they never

d eveloped correctly in the first place so

they never assumed normal proportions.

The findings that Faith had on her MRI are

more consistent with developmental

abnormalities to her brain, so I would not

classify them as atrophy.

(Respondent's Exhibit 2.)

23. Dr. Charash, whose deposition was offered by

Intervenor, and whose testimony was supportive of Petitioner's

claim, did not examine Faith, although he was accorded the

opportunity to do so, 6 but based on the records, he was of the

opinion that Faith s uffered a "birth - related neurological

injury."

24. With regard to brain injury, Dr. Charash was of the

opinion that Faith's injury had two components, lack of oxygen

and trauma (mechanical injury). As for oxygen deprivation being

a likely course of brain injury, Dr. Charash noted Faith's

one - minute Apgar score, which reflected severe depression; the

need for resuscitation; an increased number of nucleated red

cells; a low bicarb; a likely false pH, since Faith was given a

bolus of sodium bicarb on deli very without adverse effect; and

evidence of kidney malfunction, with transient abnormalities in

her liver enzymes. As for trauma, Dr. Charash noted the

subdural hemorrhage (cephalohematoma), observed on CT scan at 3

days of age, a likely result of trauma during delivery, as well

as the severe bruising of the head documented following

delivery. Finally, as further evidence of likely brain injury,

Dr. Charash noted that on delivery, Faith's head, at 33 1/4

centimeters, was normal, but within a matter of mo nths failed to

grow as one would expect, and that she is now microcephalic.

Consequently, Dr. Charash concluded that Faith likely suffered

brain injury during labor, delivery, and resuscitation caused by

oxygen deprivation and mechanical injury. (Interve nor's Exhibit

1, page 18.)

25. As for the neurological consequences associated with

such injury, Dr. Charash offered the following observations:

EXAMINATION BY

MR. TOWNSEND:

* * *

Q. Did . . . the lack of oxygen or the

trauma affect her mentally in any way?

A. Yes. I think it has left her with

certain physical stigmata and certain

intellectual stigmata. She has certain

physical injuries based upon her birth

difficulties and she's been left with

behavioral and cognitive and learning

difficulties; yes.

Q. And that's clearly set forth in the

records that you've reviewed, the cognitive

and the physical problems?

A. Yes. Let me deal with them one at a

time, if I may.

Q. All right, sir.

A. The Orange County Public Schools have

evaluated her and they find her functioning

at percentiles which are far below age

expectations. For example, there's a report

of the Highland Elementary School in

kindergarten described on 8/21/03, it's one

of many reports, but this brings us up to

five years and seve n months . . . . At this

point in time she's five years and seven

months old. Her ability for functional

independence is that of a three - year old

which puts her in the lower one tenth of one

percent of the population, 0.1, which means

that 99 people out of a hundred outscore her

in that area. They give her a rating for

motor skills. They think her motor skills

are three years and one month at an age of

five years and seven months, which, again,

puts her in the profoundly retarded area in

terms of her mo tor skills, precise

movements, coordination, fitness, etc. They

have another score of social interaction and

communication. Again, she's equivalent in

one area to a three year one month old,

another area she can pass tests at two years

and two months, sh e has great difficulty

with tasks that approach four years and

eight months. And so it goes. They

basically conclude that in every area she

averages out three years and no months.

She's five years and seven months. This

gives her a quotient of an aggre gate of all

other adaptive performance in the range of

retardation . . . . There is a

psychoeducational evaluation done at the

Seminole County Public Schools. This is

carried out when she's five years and seven

months. . . . The conclusion he re . . . is

. . . that the child is performing in areas

that range from the very low category in the

WJ - 111 cognitive battery. She's considered

to be significantly deficient. She's in the

second percentile in the Bracken, B - R - A - C - K -

E - N, basic concept sca le. She's in the

fourth percentile in some other test. On

the Stanford Binet, in her verbal ability

she does better, she's at the 12th

percentile, and that's not retarded.

. . . Now, her physical problems are of

great significance here and, frankly, I

t hink they relate to what I've mentioned

before, her problems with balance,

equilibrium, coordination, some of which may

be tangentially a consequence of her visual

impairments, but it is my opinion within a

reasonable degree of medical certainty that

her m ajor physical problem aside from the

structural change in her brain which makes

it abnormally very, very small is her

blindness or her severe visual impairments.

26. As noted, Dr. Charash was of the opinion that Faith's

principal physical injury was he r visual impairment, which

rendered her substantially physically impaired, and that Faith's

visual impairment resulted from bilateral retinal detachment

that was caused by mechanical injury during delivery. 7

(Intervenor's Exhibit 1, pages 21 - 31.) Consequ ently, if

credited, Dr. Charash's testimony would support the conclusion

that Faith suffered bilateral retinal detachment caused by

mechanical injury that rendered her substantially physically

impaired, and that such impairment did not result from a brain

injury. Notably, other physicians who have examined Faith, as

well as the Seminole County School System, have concluded that

Faith's gross and fine motor skills, except to the extent they

may be diminished because of her visual impairment, are age

appropr iate. Consequently, given the record, there is no

competent proof to support a conclusion that Faith is

permanently and substantially physically impaired, because of a

brain injury.

27. Here, the opinions of the experts offered by the

parties, as well as the other proof of record, have been

carefully considered. So considered, it must be resolved that,

while Faith's delivery was traumatic and there is evidence to

suggest that she may have suffered oxygen deprivation during

labor, delivery and resuscita tion, as well as mechanical injury,

as evidenced by the cephalhematoma, the proof fails to support

the conclusion that, more likely than not, any oxygen

deprivation or mechanical injury she may have suffered resulted

in significant brain injury, or that sh e is permanently and

substantially physically impaired. In so concluding, it is

noted that Faith's hospital course post - delivery was not

consistent with Faith having suffered an acute brain injury;

that the imaging studies do not reveal brain injury, ( i.e . ,

evidence of atrophy) and are therefore most consistent with

cerebral malformation; that Faith's current deficits have a

congenital basis, at least in part; that Dr. Duchowny, as

opposed to Dr. Charash, examined Faith, and based on his

training and exper ience is most qualified to address the

neurologic issues in this case; and that Dr. Duchowny, as

opposed to Dr. Charash, was most candid, and his opinions were

most consistent with the other proof of record. Consequently,

it is resolved that the more cred ible proof demonstrates that

Faith's impairment, more likely than not, resulted from cerebral

malformation, as opposed to brain injury caused by oxygen

deprivation or mechanical injury during labor, delivery or

resuscitation, and that, regardless of the ca use, Faith is not

permanently and substantially physically impaired.

CONCLUSIONS OF LAW

28. The Division of Administrative Hearings has

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

these proceedings. § 766.301, et seq , Fla. Stat .

29. T he Florida Birth - Related Neurological 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 Janu ary 1, 1989. § 766.303(1), Fla. Stat.

30. 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 . §§ 766.302(3),

766.303(2), 766.305(1), and 766.313, Fla. Stat. 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 respon se to

the petition and to submit relevant written information relating

to the issue of whether the injury is a birth - related

neurological injury." § 766.305(3), Fla. Stat.

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

is a compensable birth - r elated 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. § 766.305(6), Fla. Stat. 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 accordance with the provisions of C hapter 120, F lorida

Statutes. §§ 766.304, 766.309, and 766.31, Fla. Stat.

32. In discharging this responsibility, the adm inistrative

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

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 tha t 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.

§ 766.309(1), Fla. Stat. An award may be su stained 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." § 766.31(1), Fla. Stat.

33. Pertinent to this c ase, "birth - related neurological

injury" is defined by Section 766.302(2), 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

labo r, delivery, or resuscitation in the

immediate postdelivery 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.

34. As the proponents of the issue, the burden rested on

Petitioner and Intervenor to demonstrate that Faith suffered a

"birth - related neurological injury." § 766.309(1)(a), Fla.

Stat. See also Balino v. Department of Health and

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

1997)("[T]he burden of proof, apart from statute, is on the

party asserting the affirmative issue before an administrative

tribunal.").

35. Here, the proof failed to su pport the conclusion that,

more likely than not, Faith suffered an "injury to the brain

. . . caused by oxygen deprivation or mechanical injury

occurring in the course of labor, delivery, or resuscitation . .

. which render[ed] . . . [her] permanently and substantially

mentally and physically impaired." Consequently, the record

developed in this case failed to demonstrate that Faith suffered

a "birth - related neurological injury," within the meaning of

Section 766.302(2), and the claim is not compensabl e. §§

766.302(2), 766.309(1), and 766.31(1), Fla. Stat. 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 mental

and substantial physical impairment.); 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 liab ilities, it should be strictly constructed 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).

36. Where, 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 parties by regis tered or certified mail."

§ 766.309(2), Fla. Stat. Such an order constitutes final agency

action subject to appellate court review. § 766.311(1), Fla.

Stat.

CONCLUSION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

ORDERED that the claim for compensation filed by Linda J.

Davidson Lapp, individually, and on behalf of and as natural

guardian of Faith Lapp, a minor, is dismissed with prejudice.

DONE AND ORDERED this 30th day of April, 2004, in

Tallahassee, Leon County, Florida.

S

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.d oah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 30th day of April, 2004.

ENDNOTES

1/ The Apgar scores assigned to Faith are a numerical

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

sum points g ained on assessment of heart rate, respiratory

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

category being assigned a score of 0 through a maximum score of

2. As noted, at one minute Faith's Apgar score totaled 1, with

heart rate being g raded at 1, and respiratory effort, reflex

irritability, muscle tone, and color being graded at 0 each. At

five minutes, Faith's Apgar score totaled 6, with heart rate

being graded at 2, and respiratory effort, reflex irritability,

muscle tone, and color being graded at 1 each. Faith's one -

minute Apgar score was clearly depressed, and her five - minute

Apgar score was slightly depressed, being just below a normal

score of 7.

2/ The CT scan, done January 30, 1998, was reported, as

follows:

There is blood along the inner hemispheric

fissure adjacent to the falx cerebrum

posteriorly. There probably is also some

blood adjacent to the tentorium in the

posterior fossa. There is slight prominence

of the subarachnoid spaces over the anterior

and left temporopar ietal region, but these

are relatively low density. The ventricles

show no midline shift, and no

intraventricular hemorrhage is present.

IMPRESSION:

1. There is some central subdural bleeding

along the tentorium and falx cerebrum of a

small amount.

2. Slightly prominent extra - axial space in

the left temporal region, but this may still

be a variation of normal. No large hematoma

or mass effect is seen.

3/ Of record, the only subsequent evaluation was one by Ronald

Davis, M.D., who reported the resul ts of his evaluation to

Faith's pediatrician (Jennifer Thielhelm, M.D.), by letter of

March 28, 2003. In that letter, Dr. Davis reported his

impression, as follows:

IMPRESSION: Faith is a 5 - year - old with

traumatic brain injury with resultant

microcephal y, behavioral discontrol issues,

cognitive difficulties, near - complete visual

blindness likely as a result of cortical

blindness and the possibility of an abnormal

EEG given her behavioral outbursts.

* * *

It is clear that her traumatic brain injury

has left her with these resultant cognitive

and behavioral issues, which do need fairly

close attention and likely intervention

. . . .

Notably, Dr. Davis does not explain the basis for his opinion;

does not disclose the records on which he bases his opinion; and

offers no new data or imaging studies to support his impression

that Faith suffered traumatic brain injury that resulted in

cognitive and behavioral issues. Consequently, there being no

new information mentioned to support Dr. Davis' impress ion, and

since his impression is contrary to the imaging studies of

record, Dr. Davis' impression is rejected as unpersuasive.

4/ Faith's retinal detachments were inoperable; however, she

subsequently had surgery on the right eye to remove a cataract

and perform a lens implantation. That surgery apparently

improved Faith's ability to appreciate images and colors.

5/ In his report of July 9, 1998, Drumble did not say that

Faith's "hydrocephaly is a result of secondary atrophy, as

opposed to some oth er reason." Rather, his statement was Faith

was "clearly microcephalic on numbers although does not have

craniosynostosis and this is probably secondary to atrophy."

(Emphasis added.) Moreover, in his report of March 8, 1999,

Dr. Trumble reported his re view of a current CT scan, which he

noted "identifies normal cerebral morphology without evidence of

increased CSF spaces or definite atrophy."

6/ On November 7, 2003, Intervenor filed a Motion to Allow IME,

whereby it requested authorization for Dr. Cha rash to examine

Faith. That motion was granted by Order of November 21, 2003.

Why Intervenors elected not to proceed with the examination is

not of record.

7/ Dr. Charash was under the erroneous belief that if he could

demonstrate that Faith's blindnes s was caused by a traumatic

detachment of the retinas during delivery, as opposed to a

congenital basis, the claim would be covered. (Intervenor's

Exhibit 1, pages 27 - 31.) Here, whether the retinal detachments

were of a congenital origin or resulted from a mechanical injury

at birth, would not affect the decision in this case; however,

Dr. Charash's conclusion, that the retinas were detached during

delivery is rejected, and it is resolved that Faith's

ophthalmologists were more qualified to speak to that issue.

COPIES FURNISHED:

(By certified mail)

Linda J. Davidson Lapp

9918 Bear Lake Road

Apopka, Florida 32703

Larry J. Townsend, Esquire

Mateer & Harbert, P.A.

225 East Robinson Street, Suite 600

Post Office Box 2854

Orlando, Florida 32802 - 2854

Lyn n Walker Wright, Esquire

Lynn Walker Wright, P.A.

2716 Rew Circle, Suite 102

Ocoee, Florida 34761

Kenney Shipley, Executive Director

Florida Birth - Related Neurological

Injury Compensation Association

1435 Piedmont Drive, East, Suite 101

Post Office Box 14567

Tallahassee, Florida 32308 - 4567

Arnold Palmer Hospital for Children & Women

92 West Miller Street

Orlando, Florida 32806 - 2039

Stephen Carlan, M.D.

92 West Miller Street

Orlando, Florida 32806 - 2039

Penny A. Danna, M.D.

Physician Associates

21 West Columbia Street

Orlando, Florida 32806

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 affected by this final order is entit led

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 with the Agency Cle rk

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

Compensation Associ ation 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.