03-002213N Natasha Ransom, On Behalf Of And As Parent And Natural Guardian Of Ajah Amiracle Nelson, A Minor vs. Florida Birth-Related Neurological Injury Compensation Association Status: Closed DOAH Final Order on Monday, October 25, 2004.

Summary: Final Order approving the Florida Birth Related Neurological Injury Association`s Acceptance of the claim for Compensation.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

NATASHA RANSOM, on behalf of )

and as parent and natural )

guardian of AJAH AMIRACLE )

NELSON, a minor, )

)

Petitioner, )

)

vs. ) Case No. 03-2213N

)

FLORIDA BIRTH-RELATED NEUROLOGICAL INJURY )

COMPENSATION ASSOCIATION, )

)

)

Respondent. )

)

ORDER ON ATTORNEY'S FEES AND COSTS

Pursuant to notice, the Division of Administrative Hearings,

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

in the above-styled case on September 3, 2004, in Tallahassee,

Florida.

APPEARANCES

For Petitioner: William R. Waters, Jr., Esquire

Pearson & Waters, P.A.

703 North Monroe Street

Tallahassee, Florida 32303

For Respondent: Ronald A. Labasky, Esquire

Landers & Parsons, P.A.

310 West College Avenue

Tallahassee, Florida 32301

STATEMENT OF THE ISSUES

The issues noticed for hearing were the amount and manner of

payment of the parental award, the amount owing for attorney's

fees and costs, and the amount owing for past expenses.

PRELIMINARY STATEMENT

At the hearing held on September 3, 2004, Natasha Ransom;

William R. Waters, Jr., Esquire; and Donald Hinkle, Esquire,

testified on behalf of Petitioner, and Petitioner's Exhibits 1

and 2 were received into evidence. Respondent called Mary Love,

Esquire, and Kenney Shipley, as witnesses, but offered no

exhibits.

The transcript of the hearing was filed September 20, 2004,

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

proposed orders or written argument. The parties elected to file

a proposed order or a post-hearing memorandum, and they have been

duly considered.

FINDINGS OF FACT

Case history

1. On June 12, 2003, Natasha Ransom, on behalf of and as

parent and natural guardian of Ajah Amiracle Nelson (Ajah), a

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

Administrative Hearings (DOAH) for compensation under the

Florida Birth-Related Neurological Injury Compensation Plan

(Plan).

2. DOAH served the Florida Birth-Related Neurological

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

on June 13, 2003, and by letter of February 9, 2004, following a

number of extensions of time to complete its review of the

claim, 1 NICA gave notice to Petitioner that it agreed Ajah

suffered a birth-related neurological injury and offered to

provide Plan benefits. Specifically, the letter provided:

Dear Mrs. Ransom:

Pursuant to Section 766.305(3), Florida

Statutes, the Association agrees that Ajah

Amiracle Nelson suffered a birth-related

neurological injury as defined in Section

766.302(2), Florida Statutes. A copy of

Dr. Duchowny's medical evaluation and

Dr. Willis' medical record review are

attached.

We are prepared to provide medical benefits

as specified in Section 766.31(1)(a), and are

willing to offer the full $100,000 to be used

for the purchase of a home, transportation or

other expenses associated with these

purchases, as provided in Section

766.31(1)(b).

We have enclosed an original Stipulation and

Joint Petition for Compensation. Please

review the form and call us if you have any

questions. Once you have signed the form,

return it to us and we will file it with the

Division of Administrative Hearings.

Sincerely,

Kenney Shipley

Executive Director

3. Ms. Ransom did not respond to NICA's letter of

February 9, 2004, so by letter of February 27, 2004, NICA

requested that Ms. Ransom "[p]lease contact us as to your plans

in regard to this matter." Again Ms. Ransom did not respond, and

on March 26, 2004, NICA filed a Motion for Summary Final Order,

together with supporting affidavits from Doctors Duchowny and

Willis, and requested that a final order be entered "determining

that the claim is compensable under the Plan."

4. Ms. Ransom did not respond to NICA's Motion for Summary

Final Order. Consequently, by Notice of Hearing dated April 8,

2004, a hearing was scheduled for April 30, 2004, to resolve the

following issues

(1) Whether Respondent's proposal to accept

the claim as compensable should be approved;

(2) the amount and manner of payment of the

parental award, the amount owing for

attorney's fees and costs incurred in

pursuing the claim, and the amount owing for

past expenses; and, (3) Respondent's Motion

for Summary Final Order.

Again, nothing was heard from Petitioner until April 26, 2004,

when counsel, William R. Waters, Jr., filed a Notice of

Appearance on her behalf, as well as a Motion for Continuance of

the hearing. 2 By Order of April 28, 2004, the Motion for

Continuance was granted, and the hearing was re-scheduled for May

19, 2004.

5. At the hearing held on May 19, 2004, the parties agreed

that the claim was compensable, and NICA's Motion for Summary

Final Order was granted. The results of that hearing were

documented by Order of May 20, 2004, as follows:

This cause came on to be heard on

Respondent's Motion for Summary Final Order,

filed March 20, 2004. Also addressed were

various matters relating to the status of the

case, and Petitioner's desire to amend her

petition to raise the issue of notice.

Consistent with the discussion had with the

parties, it is

ORDERED that:

1. Respondent's Motion for Summary Final

Order is granted, and it is resolved that the

subject claim is compensable under the

Florida Birth-Related Neurological Injury

Compensation Plan (Plan). To be resolved is

the award, and whether the physician and

hospital complied with the notice provisions

of the Plan.

2. Petitioner's Amended Petition filed

May 13, 2004, is stricken; however,

Petitioner is accorded leave to file a second

amended petition within 14 days of the date

of this order, and to raise the issue of 3

notice if she be so advised.[ ]

3. Any amended petition raising the issue of

notice together with a copy of this order

shall be served by the Petitioner on the

participating physician and hospital so they

may seek leave, if they be so advised, to

intervene in this proceeding to advance their

own interests.

4. In due course, a hearing will be

scheduled to address the award and, if

necessary, the issue of notice.

6. Petitioner elected to file a Second Amended Petition,

wherein she again averred that she was not provided adequate pre-

delivery notice by the participating physician or hospital and

served a copy of the petition on the participating physician and

hospital. 4 Neither the participating physician nor the hospital

requested leave to intervene, so a hearing was scheduled for

September 3, 2004, to resolve the following issues:

(1) The amount and manner of payment of the

parental award, the amount owing for

attorney's fees and costs incurred in

pursuing the claim, and the amount owing for

past expenses, and, if the parties fail to

agree that the notice provisions of the Plan

were satisfied, (2) Whether notice was

accorded the patient, as contemplated by

Section 766.316, Florida Statutes, or whether

the failure to give notice was excused

because the patient had an emergency medical

condition, as defined by Section

395.002(8)(b), Florida Statutes, or the

giving of notice was not practicable.

Subsequently, by Stipulation dated August 16, 2004, the parties

agreed that the participating physician and hospital complied

with the notice provisions of the Plan, so the only issues that

remained to resolve at hearing related to the award.

Findings related to the parental

award and past expenses

7. On September 23, 2004, following the conclusion of the

hearing related to the award, the parties filed a Stipulation and

Joint Petition for Compensation of Claim (Stipulation), wherein

they agreed the claim was compensable, resolved the issues

related to the parental award and past expenses, and agreed that

the administrative law judge retain jurisdiction to resolve the

issue of attorney's fees and costs. Notably, the Stipulation

was, in all material respects, identical to the stipulation that

had been mailed to Ms. Ransom on February 9, 2004, and,

consequently, contained an incomplete sentence at paragraph 10a,

which created an ambiguity. 5 The Stipulation also failed to

include a provision for periodic payment of the parental award

that had been discussed at hearing.

8. Counsel were advised of the ambiguity and omission, and

on September 28, 2004, they filed an Amendment to Stipulation and

Joint Petition for Compensation of Claim (Amendment to

Stipulation), that addressed the periodic payment and resolved

the ambiguity. Thereafter, on October 14, 2004, the parties

filed a Second Amendment to Stipulation and Joint Petition for

Compensation of Claim (Second Amendment to Stipulation), that

corrected a scrivener's error in paragraph 10b of the

Stipulation. As for the parental award and past expenses, the

parties' Stipulation, as amended, provided:

10. The Claimant and the Association hereby

agree as follows:

a) The Claimant shall receive from the

Association One Hundred Thousand Dollars

($100,000.00) to be used for the purchase of

a home, transportation or expenses related to

these purchases. The Claimant requests that

payments be made as previously stated and if

requested, a periodic payment be paid by the

Association in a sum to be subsequently

established and agreed upon and approved by

the Administrative Law Judge.

b) The Association will pay all benefits,

past and future, as authorized by Section

766.31, Florida Statutes. Payment of past

benefits under Section 766.31(1)(a), Fla.

Stat., shall be subject to the provisions of

Paragraph 1 8 of this Stipulation. (Emphasis

added to denote amended provisions.)

The stipulation further provided, with regard to past expenses,

as follows:

18. In order for the Association to carry

out its responsibility as provided in this

Stipulation, the Claimant shall provide

within thirty (30) days of the date of

approval of this Stipulation, the following:

a) A complete list (with copies of invoices

and names and addresses of providers) of all

known past expenses under Section

766.31(1)(a), Fla. Stat., for which the

Claimant seeks reimbursement in accordance

with the terms and provisions of this

Stipulation. The Association is relying upon

the timely submission of such claims and to

the extent that any such claims for past

expenses are not submitted within the afore-

described time period, the Claimant shall

have intentionally and knowingly forever

waived and relinquished her right to submit

any such claims for payment to the

Association . . . .

9. The parties' Stipulation, Amendment to Stipulation, and

Second Amendment to Stipulation were approved by Final Order on

October 25, 2004. Consequently, the issues related to the

parental award and past expenses have been resolved, and need not

be further addressed. Nevertheless, insofar as it may be

relevant to the claim for attorney's fees and costs, a few

observations are appropriate. First, with regard to past

expenses, the only proof Petitioner offered at hearing was a

letter of August 23, 2004, from the Agency for Health Care

Administration (AHCA) claiming a lien for Medicaid benefits AHCA

provided to Ajah. (Petitioner's Exhibit 2; Transcript, page 64

and 65) That letter provided, as follows:

The Agency for Health Care Administration,

Medicaid Third Party Liability Unit, is

responsible for recouping payments made by

third parties for medical services rendered

to beneficiaries of medical assistance. Your

office must make payment to the Agency within

sixty days after receipt of settlement

proceeds. Checks should be made payable to

the Agency for Health Care Administration.

We request that you review the Agency's

rights under Sections 409.901 and 409.910,

Florida Statutes.

Enclosed is a revised summary of claims paid

on behalf of the above captioned medical

services received on and subsequent to the

date of the accident. Please contact this

office prior to settlement for an updated

amount.

Here, it should not be subject to serious debate that the lien

neither represents a medical expense Ms. Ransom is obligated to

pay nor an expense otherwise recoverable in this proceeding. See

§ 766.31(1)(a)1, Fla. Stat; Transcript, page 60. Second, with

regard to the parental award, it is noted that, but for the

provision regarding the periodic payment, which consumed little

more than a ten-minute discussion at hearing, the award is the

same as that contained in the proposed stipulation submitted to

Ms. Ransom on February 9, 2004.

Findings related to attorney's fees and costs

incurred in connection with the filing of the claim

10. To support the claim for attorney's fees, Petitioner

offered the Pre-bill Worksheet (timesheet) of Pearson & Waters,

P.A. (Petitioner's Exhibit 1), which reflects a total of 37 hours

dedicated to the case. According to the timesheet, 36.5 hours

were dedicated to the case by Mr. Waters, for which Petitioner

requests an hourly rate of $225.00 (a total of $8,212.50) and

one-half hour was dedicated to the case by Mr. Waters' partner,

Fred Pearson, for which Petitioner also requests an hourly rate

of $225.00 (a total of $112.50), for a total award of $8,325.00.

11. Petitioner generally described the services for which

compensation was sought through Mr. Waters' testimony, where he

observed that Ms. Ransom sought his assistance to decide whether

to pursue a malpractice case or NICA benefits; to resolve

questions concerning medical bills, what benefits she was

entitled to receive, how those benefits would be paid, and how to

evaluate medically necessary treatment for her child as time went

on; and, if she moved out of state, how that would be handled by

NICA. (Transcript, pages 25-28) Petitioner's proposed order

also suggested that she "was entitled to legal counsel to assist

her in finalizing and forming the parameters of an award" to

preserve her continued eligibility for other state and federal

aid, including Medicaid and housing assistance benefits. In

response, NICA opposed any fee award, being of the view that the

services rendered and the time spent were unnecessary to resolve

the claim. Under the facts of this case, but for time that may

have been spent formulating a parental award that preserved Ms.

Ransom's state and federal aid, as well as time spent to recover

past expenses, NICA's view has merit.

12. To calculate a reasonable attorney's fee, the first

step is to determine the number of hours reasonably expended

pursuing the claim. See Standard Guarantee Insurance Co. v.

Quanstrom , 555 So. 2d 828 (Fla. 1990); Florida Patient's

Compensation Fund v. Rowe , 472 So. 2d 1145 (Fla. 1985); Florida

Birth-Related Neurological Injury Compensation Association v.

Carreras , 633 So. 2d 1103 (Fla. 3d DCA 1994). Notably, while

counsel may have expended 37 hours representing Ms. Ransom, it

is, "[u]nder the 'hour-setting' portion of the lodestar

computation, . . . important to distinguish between 'hours

actually worked' versus 'hours reasonably expended.'" Carreras ,

633 So. 2d at 1110.

. . . "Hours actually worked" is not the

issue. The objective instead is for the

trier of fact

to determine the number of hours

reasonably expended in providing the

service. 'Reasonably expended' means the

time that ordinarily would be spent by

lawyers in the community to resolve this

particular type of dispute. It is not

necessarily the number of hours actually

expended by counsel in the case. Rather,

the court must consider the number of hours

that should reasonably have been expended

in that particular case. The court is not

required to accept the hours stated by

counsel.

In re Estate of Platt , 586 So. 2d 333-34

(emphasis in original). The trier of fact

must determine a reasonable time allowance

for the work performed—which allowance may be

less than the number of hours actually

worked. Such a reduction does not reflect a

judgment that the hours were not worked, but

instead reflects a determination that a fair

hourly allowance is lower than the time put

in.

Id. at 1110. Moreover, only time incurred pursuing the claim is

compensable, not time incurred exploring civil remedies or

opportunities to avoid Plan exclusivity, such as lack of notice.

Carreras , 633 So. 2d at 1109. Additionally, block billing, the

practice of recording the gross number of hours each day for

multiple tasks, as practiced by Petitioner's counsel, makes it

difficult to identify time that may have been associated with

pursuing the claim, as opposed to some unrelated activity, and

may result in a reduction in hours. See Florida Patient's

Compensation Fund v. Rowe , 472 So. 2d at 1150 ("Inadequate

documentation may result in a reduction in the number of hours

claimed . . . ."); Lubkey v. Compuvac Systems, Inc. , 857 So. 2d

966, 968 (Fla. 2d DCA 2003)("[T]he party seeking fees has the

burden to allocate them to the issues for which fees are

awardable or to show that the issues were so intertwined that

allocation is not feasible.") Finally, a fee award must be

supported with expert testimony, and cannot be based entirely on

the testimony of the claimant's attorney. Palmetto Federal

Savings and Loan Association v. Day , 512 So. 2d 332 (Fla. 3d DCA

1987); Fitzgerald v. State of Florida , 756 So. 2d 110 (Fla. 2d

DCA 2000). See Nants v. Griffin , 783 So. 2d 363, 366 (Fla. 5th

DCA 2001)("To support a fee award, there must be evidence

detailing the services performed and expert testimony as to the

reasonableness of the fee . . . . Expert testimony is required

to determine both the reasonableness of the hours and a

reasonable hourly rate.")

13. Here, counsel spent at least 12.5 hours, that can be

identified from the time sheet, and likely more, on matters

associated with a possible civil action or opportunities to avoid

Plan exclusivity, that are not recoverable. 6 As for the

remaining time, which was generally incurred to address

Ms. Ransom's concerns, it was unnecessary to the resolution of

the claim, which, at the time counsel was employed, only required

that the manner of payment of the parental award be finalized and

any unpaid expenses be identified. See § 766.31(1), Fla. Stat.,

which specifies the items includable in the award. Notably, no

unpaid expenses were identified, and the manner of payment of the

parental award was finalized without difficulty. Moreover, any

time counsel incurred on the issue of unpaid expenses or

finalizing the parental award, was not quantified. 7 Finally,

Petitioner failed to offer any expert testimony to support the

reasonableness of the hours claimed or, stated differently, "the

time that ordinarily would be spent by lawyers in the community

to resolve this particular type of dispute." 8 Carreras , 633 So.

2d at 1110. Such failure is fatal to Petitioner's claim for an

award of attorney's fees.

14. Lastly, Petitioner's counsel incurred certain expenses

in his representation of Petitioner for which he seeks recovery.

Such expenses are set forth on pages 4 and 5 of the Pre-bill

Worksheet of Pearson & Waters, P.A. (Petitioner's Exhibit 1).

Such costs total $3,243.41, and include a number of claims for

"Postage," "FexEx" and "Copying cost," not otherwise explained,

totaling $85.95; a claim bearing a date of 6/7/04, for "Copying

cost for medical files," totaling $279.50; a claim bearing a date

of 7/1/04, for "Review of records by Nurse Sharon P. Hall,"

totaling $1,200.00; and a claim bearing a date of 7/30/04, for

"Copying cost and medical records," totaling $1,677.96.

15. Petitioner's claim for "Postage," "FedEx" and "Copying

cost," not otherwise explained, totaling $85.95 is denied. See

State, Department of Transportation v. Skidmore , 720 So. 2d 1125,

1130 (Fla. 4th DCA 1998)("[P]ostage, long distance calls, fax

transmissions, and delivery services are office expenses that

should not have been taxed as costs.") Moreover, given the

limited issues that remained to resolve the claim, and Petitioner

having failed to demonstrate any need for the medical records to

resolve such issues, Petitioner's claim for the copying costs,

totaling $1,957.46, is denied. Finally, for like reason,

Petitioner's claim for Nurse Hall's review of records, totaling

$1,200.00, is denied, and for the further reason that Petitioner

failed to present competent evidence of the services performed by

Nurse Hall and the reasonable value of those services. Gray v.

Bradbury , 668 So. 2d 296, 298 (Fla. 1st DCA 1996)("The prevailing

party's burden at an evidentiary costs hearing, to recover an

expert witness fee is 'to present testimony concerning the

necessity and reasonableness of the fee.'")

CONCLUSIONS OF LAW

16. The Division of Administrative Hearings has

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

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

17. Pertinent to this case, Section 766.31(1), Florida

Statutes (2002), provides that where, as here, a claim for

compensation has been approved, "the administrative law judge

shall make an award providing compensation for the following

items relative to such injury:"

(a) Actual expenses for medically necessary

and reasonable medical and hospital,

habilitative and training, family residential

or custodial care, professional residential,

and custodial care and service, for medically

necessary drugs, special equipment, and

facilities, and for related travel. However,

such expenses shall not include:

1. Expenses for items or services that the

infant has received, or is entitled to

receive, under the laws of any state or the

Federal Government, except to the extent such

exclusion may be prohibited by federal law.

* * *

Expenses included under this paragraph shall

be limited to reasonable charges prevailing

in the same community for similar treatment

of injured persons when such treatment is

paid for by the injured person.

(b)1. Periodic payments of an award to the

parents or legal guardians of the infant

found to have sustained a birth-related

neurological injury, which award shall not

exceed $100,000. However, at the discretion

of the administrative law judge, such award

may be made in a lump sum.

* * *

(c) Reasonable expenses incurred in

connection with the filing of a claim under

ss. 766.301-766.316, including reasonable

attorney's fees, which shall be subject to

the approval and award of the administrative

law judge. In determining an award for

attorney's fees, the administrative law judge

shall consider the following factors:

1. The time and labor required, the novelty

and difficulty of the questions involved, and

the skill requisite to perform the legal

services properly.

2. The fee customarily charged in the

locality for similar legal services.

3. The time limitations imposed by the

claimant or the circumstances.

4. The nature and length of the professional

relationship with the claimant.

5. The experience, reputation, and ability

of the lawyer or lawyers performing services.

6. The contingency or certainty of a fee.

18. Here, the parties have resolved by stipulation the

issues related to the parental award and past expenses. Left to

resolve were the reasonable attorney's fees and other expenses

incurred in pursing the claim.

19. As the claimant, Petitioner had the burden to

demonstrate that the expenses claimed, including attorney's fees,

were reasonable. 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 of an issue before an administrative

tribunal.") Here, for reasons appearing in the Findings of Fact,

Petitioner failed to sustain her burden.

CONCLUSION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

ORDERED that Petitioner's claim for expenses incurred in

connection with the filing of a claim, including reasonable

attorney's fees, is denied.

DONE AND ORDERED this 25th day of October, 2004, in

Tallahassee, Leon County, Florida.

WILLIAM J. KENDRICK

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone] SUNCOM 278-9675

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 25th day of October, 2004.

ENDNOTES

1/ In reviewing the claim, NICA requested that Michael Duchowny,

M.D., a pediatric neurologist, examine Ajah and review his

medical records, and that Donald Willis, M.D., a physician

practicing maternal fetal medicine also review Ajah's medical

records, and offer their opinions as to whether Ajah suffered a

birth-related neurologist injury. Following a current MRI exam

(completed January 8, 2004), Dr. Duchowny was of the opinion Ajah

had suffered a birth-related neurological injury. Dr. Willis'

opinion also supported the conclusion that the claim was

compensable.

2/ According to counsel's time record (Petitioner's Exhibit 1),

Ms. Ransom first met with counsel on April 12, 2004.

3/ On May 13, 2004, without having requested leave to do so,

Petitioner had filed an Amended Petition, wherein she alleged,

for the first time, that she was not provided adequate pre-

delivery notice by the participating physician or the hospital,

and requested that her petition be dismissed for lack of pre-

delivery notice. NICA responded to the Amended Petition on

May 17, 2004, and admitted the claim was compensable, suggested

dismissal for lack of pre-delivery notice was not appropriate,

and requested that the hearing scheduled for May 19, 2004, be

continued "to allow the doctor and/or hospital involved to be

advised of the ongoing proceeding, to consider their possible

intervention and the protection of their rights before this

matter proceeds to Final Hearing for determination of notice as

provided under the provisions of the NICA plan."

At the hearing of May 19, 2004, noting that notice was a new

issue, and that the participating physician and hospital had not

been noticed of the issue in the initial petition or served with

a copy of the Amended Petition, it was resolved that the Amended

Petition be stricken, Petitioner be accorded leave to file a

second amended petition to raise the issue of notice, and that if

Petitioner elected to file an amended petition, she serve a copy

of the petition, as well as a copy of the Order of May 20, 2004,

on the participating physician and the hospital.

4/ A copy of Petitioner's Second Amended Petition, as well as a

copy of the Order of May 20, 2004, was also served by DOAH on the

participating physician and the hospital.

5/ The Stipulation was the same as that submitted to Ms. Ransom

on February 9, 2004, except the new Stipulation included (at

paragraphs 7 and 8) reference to the Order that resolved the

claim was compensable, the parties' agreement that notice was

given and an agreement that the administrative law judge retained

jurisdiction to resolve the issue of attorney's fees and costs.

6/ Entries of 5/19/04 (3.00 hours), 5/19/04 (.75 hours), 5/19/04

(1.00 hours), 5/20/04 (.50 hours), 6/1/04 (.25 hours), 6/1/04

(.50 hours).

7/ In so concluding, the entries of 5/19/04 for 3.00 hours

(which noted "Conferences with client re: ID of past expenses

she incurred," among other activities that day) and 7/19/04 for

2.00 hours (which noted "research Medicare requirements and

payment options," among other activities that day) have not been

overlooked. However, since counsel block-billed his time those

days, and did not otherwise identify the time associated with

those activities, it is not possible, absent speculation, to

ascribe a value to those services.

8/ In so concluding, the testimony of Donald Hinkle, Esquire,

who was called as expert by the Petitioner, has not been

overlooked. However, Mr. Hinkle's testimony was limited to

whether, in his opinion, it was reasonable for an attorney to

expend time to review the case "to advise [the client] as to

whether proceeding with NICA is a good idea or bad idea [compared

with a malpractice action] or at least give the client the option

to do that." (Transcript, pages 35 and 36) Mr. Hinkle expressed

no opinion as to the reasonableness of the hours expended.

Moreover, while it may be reasonable for the client to consider

the relative merits of Plan coverage versus a civil suit, and

seek to avoid NICA coverage, attorney time dedicated to those

efforts is not compensable. Carerras , supra .

COPIES FURNISHED :

(via certified mail)

William R. Waters, Jr., Esquire

Pearson & Waters, P.A.

703 North Monroe Street

Tallahassee, Florida 32303

Ronald A. Labasky, Esquire

Landers & Parsons, P.A.

310 West College Avenue

Tallahassee, Florida 32301

Kenney Shipley, Executive Director

Florida Birth-Related Neurological

Injury Compensation Association

1435 Piedmont Drive, East, Suite 101

Tallahassee, Florida 32308

Tara Louise Wah, M.D.

1219 Hodges Drive

Tallahassee, Florida 32308

Tallahassee Memorial Hospital

1300 Miccosukee Road

Tallahassee, Florida 32308-5054

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 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 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 Neurological 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.