05-000881N Tissany Standley, On Behalf Of, And As Parent And Natural Guardian Of Davante Smith, A Minor, vs. Florida Birth-Related Neurological Injury Compensation Association Status: Closed DOAH Final Order on Tuesday, January 31, 2006.

Summary: The infant`s impairment, an ERB palsy (right brachial plexus palsy), was not caused by an injury to the brain or spinal cord, and the infant was not substantially mentally impaired. The claim is denied.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

TISSANY STANDLEY, on behalf of, )

and as parent and natural )

guardian of DAVANTE SMITH, a )

minor, )

)

Petitioner, )

)

vs. ) Case No. 05 - 0881N

)

FLORIDA BIRTH - RELATED )

NEUROLOGICAL INJURY )

COMPENSATION ASSOCIATION, )

)

Respondent, )

)

and )

)

JOHN V. PARKER, M.D. and )

ADVANCED WOMEN'S HEALTH )

SPECIALIST S , )

)

Intervenor s . )

)

FINAL ORDER

With the parties' agreement, the Division of A dministrative

Hearings, by Administrative Law Judge William J. Kendrick, held

a hearing in the above - styled case on December 16, 2005, by

teleconference.

APPEARANCES

For Petitioner: Tricia A. Madden, Esquire

Tricia A. Madden, P. A.

500 East Altamonte Drive, Suite 200

Altamonte Springs, Florida 32701

For Respondent: Wendell B. Hays, Esquire

Broad & Cassel

390 North Orange Avenue, Suite 1 100

Orlando, Florida 32801

For Intervenors: Ruth C. Osborne, Esquire

McEwan, Martinez & Dukes, P.A.

Post Office Box 753

Orlando, Florida 32802 - 0753

STATEMENT O F THE ISSUES

1. Whether Davante Smith, a minor, qualifies for coverage

under the Florida Birth - Related Neurological Injury Compensation

Plan (Plan).

2. Whether the hospital and the participating physician

complied with the notice provisions of Section 7 66.316, Florida

Statutes.

PRELIMINARY STATEMENT

On March 9, 2005, Tissany Standley, on behalf of, and as

parent and natural guardian of Davante Smith (Davante), a minor,

filed a petition (claim) with the Division of Administrative

Hearings (DOAH) to resolv e whether Davante qualified for

coverage under the Plan and whether the healthcare providers

complied with the notice provisions of the Plan. 1

DOAH served the Florida Birth - Related Neurological Injury

Compensation Association (NICA) with a copy of the cl aim on

March 9, 2005, and on July 29, 2005, following a number of

extensions of time within which to do so, NICA responded to the

claim and gave notice that it was of the view that Davante did

not suffer a "birth - related neurological injury," as defined by

Section 766.302(2), Florida Statutes, and that, given the

provisions of Section 766.313, Florida Statutes, and Davante's

date of birth (June 27, 1996), the claim was time - barred.

Nevertheless, since Plan immunity may be a viable defense to a

civil suit , and the administrative law judge has exclusive

jurisdiction to resolve whether a claim is compensable, NICA

requested that a hearing be scheduled to resolve whether the

claim was compensable. See §§ 766.301(1)(d), 766.303(2), and

766.304, Fla. Stat .; O'Le ary v. Florida Birth - Related

Neurological Injury Compensation Association , 757 So. 2d 624

(Fla. 5th DCA 2000). In the interim, John V. Parker , M.D., and

Advanced Women's Health Specialists were granted leave to

intervene.

At the hearing held on December 16, 2005, to address the

issues of compensability and notice, no testimony was offered.

However, the parties stipulated to the factual matters set forth

in paragraphs 1 and 2 of the Findings of Fact, and Joint

Exhibits 1 - 3 and Intervenors' Exhibits 1 - 7 w ere received into

evidence. 2

The transcript of the hearing was filed January 10, 2006,

and the parties were initially accorded until January 20, 2006,

to file written argument or proposed orders. However, at

Petitioner's request, the time for filing was e xtended to

January 30, 2006. The parties' proposals have been duly -

considered.

FINDINGS OF FACT

Stipulated facts

1. Tissany Standley is the natural mother and guardian of

Davante Smith, a minor. Davante was born a live infant on

June 27, 1996, at Flori da Hospital Altamonte, a hospital located

in Altamonte Springs, Florida, and his birth weight exceeded

2,500 grams.

2. The physician providing obstetrical services at

Davante's birth was John V. Parker, M.D., who, at all times

material hereto, was a "part icipating physician" in the Florida

Birth - Related Neurological Injury Compensation Plan, as defined

by Section 766.302(7), Florida Statutes.

Coverage under the Plan

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

Plan for infants who suffer a "bi rth - related neurological

injury," defined as an "injury to the brain or spinal cord . . .

caused by oxygen deprivation or mechanical injury occurring in

the course labor, delivery, or resuscitation in the immediate

postdelivery period in a hospital, which renders the infant

permanently and substantially mentally and physically impaired."

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

Stat.

4. Here, Petitioner and Respondent were of the view that

Davante did not suffer a "birth - related neur ological injury," as

that term is defined by the Plan. In contrast, Intervenors

harbored a contrary opinion , but failed to produce compelling

proof to support their position .

Davante's birth and immediate

postnatal course

5. The medical records related to Davante's birth reveal

that at or about 3:25 p.m., June 26, 1996, with an estimated

delivery date of July 8, 1996, and the fetus at 38 2/7 weeks

gestation, Ms. Standley presented to Florida Hospital Altamonte

for induction of labor. Notably , Ms. Stand ley was not in labor 3

when admitted, and fetal monitoring revealed a reassuring fetal

heart rate.

6. With regard to Ms. Standley's labor and Davante's

delivery, the records reveal that Pitocin induction started at

or about 6:00 p.m.; Ms. Standley's membra nes were artificially

ruptured at 7:00 p.m., with clear fluid noted; and evidence of

regular uterine contractions was documented at 8:30 p.m.

Thereafter, Ms. Standley's labor slowly progressed, and at

4:35 a.m., June 27, 1996, Davante was delivered with A pgars of 7

and 9, at one and five minutes, respectively. 4 According to

Dr. Parker's Clinical Resume, Davante's vacuum - assisted delivery

was without complication.

7. Following delivery, Davante was bulb suctioned, given

tactile stimulation and blow - by oxy gen by mask for five minutes,

and transferred to the newborn nursery. There, initial newborn

examination was normal except for evidence of tachypnea and

decreased movement of the right arm. Davante's history from

admission until discharge on June 30, 199 6, was documented in

his Clinical Resume, as follows:

PROBLEMS

ansient tachypnea of the newborn. The

infant did not require oxygen therapy.

Tachypnea resolved by 24 hours. The chest

x - ray was unremarkable. Findings were

consistent with transient tachypnea of the

newborn. An arterial blood gas was normal

in room air and transient tachypnea

resolved.

2. Patent ductus arteriosus. The infant

was noted to have a heart murmur on day #1.

An echocardiogram was done on June 28, 1996,

and showed a sma ll patent ductus arteriosus.

The remaining cardiac structures were

normal.

3. Sepsis ruled out. The infant received

three days of ampicillin and gentamicin. A

blood culture was drawn on July 27, 1996,

and was negative. A urine wellcogen was

done and was negative. The infant remained

clinically stable with normal complete blood

count (CBC). Antibiotics were discontinued

after three days. Blood culture remained

negative and sepsis was ruled out.

4. Right brachioplexus injury, Erb - Duchenne

palsy. T he infant does not move the right

arm. Right hand exhibits good grasp and

movement. Occupational therapy and physical

therapy evaluated the infant and instructed

the mother in passive range of motions. The

mother is to do passive range of motion

exercis es five to six times a day and the

baby is to be followed up on an outpatient

basis with Osteen Kimberly for physical

therapy and the infant is also to see

Dr. Borrero in one month for evaluation.

FINAL DIAGNOSES :

1. A 38 - WEEK, LARGE FOR GESTATIONAL AG E,

MALE INFANT.

2. TRANSIENT TACHYPNEA OF A NEWBORN,

RESOLVED.

3. SEPSIS RULED OUT.

4. RIGHT BRACHIOPLEXUS INJURY, ERB - DUCHENE

PALSY.

5. SMALL PATIENT DUCTUS ARTERIOSUS.

The baby's physical exam was within normal

limits on the day of disc harge except for

palsy of the right arm . . . . The baby was

discharged home with the mother on June 30,

1996, on ad lib formula feedings and is to

see Dr. Iyer for routine well baby care.

Appointment to be made this week. The baby

is also to see Dr. Os teen Kimberly for

pediatric HCC - FU for physical therapy and

occupational therapy followup. The mother

is to do passive range of motion exercises

five to six times a day and she is

instructed to call Dr. Borrero's office in

one month for an appointment to evaluate

brachioplexus palsy.

Davante's current presentation

8. Currently, Davante presents with a right brachial

plexus palsy (an Erb - Duchenne palsy), with substantial

impairment of the right upper extremity, that is likely to be

permanent. 5 However, apart from that physical impairment,

Davante is otherwise neurologically sound, without evidence of

impairment in his left upper extremity or lower extremities.

9. Regarding Davante's mental status, there was some

disagreement. Dr. Robert Cullen, a pedia tric neurologist

associated with Miami Children's Hospital, who examined Davante

on June 3, 2004, was of the opinion that Davente evidenced a

cognitive disorder (an auditory memory, sequencing and retention

disorder ), which wa s likely permanent in nature. However, he

did not , at the time, consider it substantial , and Davante's

subsequent development does not suggest otherwise .

(Intervenors' Exhibit 1, page 22). In contrast, Dr. Michael

Duchowny, also a pediatric neurologist associated with Miami

Children 's Hospital, who examined Davante on July 11, 2005 , was

of the opinion that Davante's mental status was age appropriate

or, stated otherwise, normal. Here, given the absence of any

proof that Davante suffers a substantial mental impairment, it

is unnecess ary to resolve any conflict that may exist between

the opinions of Doctors Cullen and Duchowny , since absent

evidence of a substantial mental impairment Davante does not

qualify for coverage under the Plan. Florida Birth - Related

Neurological Injury Compen sation 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 physical impairment.).

Similarly, it is unnecessary to resolve whether, if mentally

impaired, such impairment is related to birth trauma, as opposed

to another etiology.

The cause and timing of Davante's physical impairment

10. As for the etiology of Davante's physical impairment

(a brachial plexus palsy of the upper right extremity), the

proof is compelling that such impairment was the product of a

right brachial plexus injury (a stretch injury to the brachial

plexus) Davante suffered during the course of delivery, and was

not the product of a brain or spin al cord injury. In so

concluding, it is noted that a brachial plexus injury, such as

that suffered by Davante, refers to damage to a network of

nerves (a "plexus") that lies outside the spinal cord, and does

not involve the brain or spinal cord (or, as th ey are commonly

referred to , the "central nervous system " ) . 6 (Joint Exhibit 2,

page 7 and 10; Joint Exhibit 3, page 17 and 18. See also

"plexus," and "brachial p." under "plexus," Dorland's

Illustrated Medical Dictionary, 28th Edition , 1994 .)

Consequent ly, Davante's injury is not compensable under the

Plan.

The notice issue

11 . In addition to Petitioner's claim that Davante does

not qualify for coverage under the Plan, Petitioner also sought

to avoid Plan immunity by averring , and requesting a finding

that, the hospital and the participating physician who delivered

obstetrical services at Davante's birth (Dr. Parker) failed to

comply with the notice provisions of the Plan. 7 See Galen of

Florida, Inc. v. Braniff , 696 So. 2d 308, 309 (Fla. 1997)("[A]s

a condition precedent to invoking the Florida Birth - Related

Neurological Injury Compensation Plan as a patient's exclusive

remedy, health care providers must, when practicable, give their

obstetrical patients notice of their participation in the plan a

reas onable time prior to delivery."); Board of Regents v. Athey ,

694 So. 2d 46 (Fla. 1st DCA), aff'd 699 So. 2d 1350 (Fla. 1997);

Schur v. Florida Birth - Related Neurological Injury Compensation

Association , 832 So. 2d 188 (Fla. 1st DCA 2002 ). However, since

t he claim is not compensable, it is unnecessary for Petitioner

to have a favorable resolution of the notice issue to proceed

with her civil suit. Nevertheless, to avoid any further delay

should the conclusion regarding compensability be disturbed, and

to a llow contemporaneous review of the conclusion regarding

notice, the issue will be addressed.

The notice provisions of the Plan

12 . At all times material hereto, Section 766.316, Florida

Statutes (1995), 8 prescribed the notice requirements of the Plan,

a s follows:

Each hospital with a participating physician

on its staff and each participating

physician, other than residents, assistant

residents, and interns deemed to be

participating physicians under s.

766.314(4)(c), under the Florida Birth -

Related Neur ological Injury Compensation

Plan shall provide notice to the obstetrical

patients thereof as to the limited no - fault

alternative for birth - related neurological

injuries. Such notice shall be provided on

forms furnished by the association and shall

includ e a clear and concise explanation of a

patient's rights and limitations under the

plan.

13 . Pertinent to this case, the Florida Supreme Court

described the legislative intent and purpose of the notice

requirement, as follows:

. . . the only logical readi ng of the

statute is that before an obstetrical

patient's remedy is limited by the NICA

plan, the patient must be given pre - delivery

notice of the health care provider's

participation in the plan. Section 766.316

requires that obstetrical patients be give n

notice "as to the limited no - fault

alternative for birth - related neurological

injuries." That notice must "include a

clear and concise explanation of a patient's

rights and limitations under the plan."

§ 766.316. This language makes clear that

the pur pose of the notice is to give an

obstetrical patient an opportunity to make

an informed choice between using a health

care provider participating in the NICA plan

or using a provider who is not a participant

and thereby preserving her civil remedies.

Turn er v. Hubrich , 656 So. 2d 970, 971 (Fla.

5th DCA 1995). In order to effectuate this

purpose a NICA participant must give a

patient notice of the "no - fault alternative

for birth - related neurological injuries" a

reasonable time prior to delivery, when

pract icable.

Galen of Florida, Inc. v. Braniff , 696 So. 2d 308, 309 (Fla.

1997). The C ourt further observed:

Under our reading of the statute, in order

to preserve their immune status, NICA

participants who are in a position to notify

their patients of the ir participation a

reasonable time before delivery simply need

to give the notice in a timely manner. In

those cases where it is not practicable to

notify the patient prior to delivery, pre -

delivery notice will not be required.

Whether a health care prov ider was in a

position to give a patient pre - delivery

notice of participation and whether notice

was given a reasonable time before delivery

will depend on the circumstances of each

case and therefore must be determined on a

case - by - case basis.

Id. at 31 1. Consequently, the C ourt held:

. . . as a condition precedent to invoking

the Florida Birth - Related Neurological

Injury Compensation Plan as a patient's

exclusive remedy, health care providers

must, when practicable , give their

obstetrical patients not ice of their

participation in the plan a reasonable time

prior to delivery.

Id. at 309.

Findings related to Ms. Standley's

prenatal care and notice

1 4 . Ms. Standley received her prenatal care at Advanced

Women's Health Specialists (AWHS), Altamonte Springs, Florida,

where she was first seen with regard to the pregnancy at issue

on December 14, 1995. At that time, the AWHS group practice

included at least three physicians: Edward S. Guindi, M.D.,

Jon F. Sweet, M.D., and Eileen F. Farwick, D.O. (Join t Exhibit

1 - 7). Whether Dr. Parker was also associated with the practice

at that time is not apparent from the record; however, according

to AWHS' records, he was associated with the practice by

January 4, 1996. (Joint Exhibit 1 - 7).

1 5 . Pertinent to the notice issue, Ms. Standley's patient

chart at AWHS include d a Notice to Our Obstetric Patients form,

ostensibly signed by Ms. Standley on December 14, 1995. The

notice form provide d , as follows:

NOTICE TO OUR OBSTETRIC PATIENTS

I have been furnished inf ormation by

Advanced Women's Health Specialists prepared

by the Florida Birth Related Neurological

Injury Compensation Association, and have

been advised that Jon F. Sweet, M.D. is a

participating physician in that program,

wherein certain limited compensa tion is

available in the event certain neurological

injury may occur during labor, delivery or

resuscitation. For specifics on the

program, I understand I can contact the

Florida Birth Related Neurological Injury

Compensation Association (NICA), Barnett

B ank Building, 315 South Calhoun Street,

Suite 312, Tallahassee, Florida 32301,

(904) 488 - 8191. I further acknowledge that

I have received a copy of the brochure by

NICA.

Dated this _____ day of _____________, 19 __.

__________________________________

Si gnature

__________________________________

Name of Patient

__________________________________

S S#

Attest:

__________________________________

( Nurse or Physician )

Date: ____________________________

1 6 . Notably, the notice form does not advise Ms. S tandley

that any AWHS physician , other than Dr. Sweet, was a

participating physician in the Plan, although it had a

reasonable opportunity to do so , if any were , and the record is

devoid of any proof to suggest or support a conclusion that

notice was provi ded by Dr. Parker or that it was not practicable

for Dr. Parker to provide Ms. Standley notice during her

prenatal care at AWHS . § 766.316, Fla. Stat. ("[E]ach

participating physician . . . shall provide notice to the

obstetrical patients thereof as to t he limited no - fault

alternative for birth - related neurological injures."); Schur v.

Florida Birth - Related Neurological Injury Compensation

Association , 832 So. 2d 188, 192 (Fla. 1st DCA 2002)("The plain

language of this section shows an intention that the NICA plan

immunizes a physician only when he or she provides notice.")

Findings related to Davante's

birth and notice

1 7 . A s for Ms. Standley's admission to Florida Hospital

Altamonte on June 26, 1996, for Davante's birth, there is no

proof that either Dr. Parker or Florida Hospital Altamonte

provided Ms. Standley notice , although they had a reasonable

opportunity to do so . There is likewise no proof to support a

conclusion that there was a medical emergency or other reason

that rendered it not practica ble for them to have done so.

CONCLUSIONS OF LAW

1 8 . The Division of Administrative Hearings has

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

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

1 9 . In resolving whether a claim is compensab le, the

administrative law judge must make the following determination

based upon the available evidence:

(a) Whether the injury claimed is a

birth - related neurological injury. If the

claimant has demonstrated, to the

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 shal l

arise that the injury is a birth - related

neurological injury as defined in s.

766.302(2).

(b) Whether obstetrical services were

delivered by a participating physician in

the course of labor, delivery, or

resuscitation in the immediate post - delivery

p eriod 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 awar d 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." § 766.31(1), Fla. Stat.

20 . Pertinen t to this case, "birth - related neurological

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

(1995) , 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 in jury occurring in the course of

labor, 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.

21 . Here, the proof demonstrated, that Davante's

neurologic impairment (a right brachial plexus palsy) was not

caused by "an injury to the brain or spinal cord caused by

oxygen deprivation or mechanical injury occurring in the course

of labor, delivery, or resuscitation" and that Davante was not

" permanently and substantially mentally . . . impaired." 9

Consequently, given the provisions of Section 766.302(2),

Florida S tatutes, Davante does not qualify for coverage under

the Plan. See also Humana of Florida, Inc. v. McKaughan , 652

So. 2d 852, 859 (Fla. 2d DCA 1995)("[B]ecause the Plan . . . is

a statutory substitute for common law rights and liabilities, it

should be st rictly 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); Florida Birth -

Related Neurological Injury Comp ensation 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 physical

impairment.). Moreover, for reasons appeari ng more fully in the

Findings of Fact, the proof failed to demonstrate that the

hospital and the participating physician complied with the

notice provisions of the Plan.

CONCLUSION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

ORDE RED that the claim for compensation filed by

Tissany Standley, on behalf of, and as parent and natural

guardian of Davante Smith, a minor, is dismissed with prejudice.

DONE AND ORDERED this 31st day of January, 2006 , 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 .doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 31st day of January, 2006 .

ENDNOTES

1/ The circumstances giving rise to the filing of the claim, as

well as Petitioner's position on compensability and request for

relief, were set forth in the petition, as follows:

Circumstances Getting Raised to the Filing of This Claim:

5. A medical malpractice suit was filed by

the parents as the mother and father and

natural guardians of, and on behalf of

DAVANTE SMITH in the Circuit Court of the

Eighteenth Judicial Circuit in and for

Seminole County, Florida, case number 98 -

1990 - CA - 09, on September 25, 1998.

6. On November 16, 2004, Defendants, by and

through their counsel filed a Motion to

Amend Answer and Affirmative Defenses to

include that this matter was subject to the

Neurological Injury Compensation Act (NICA),

and on December 17, 2004, Defendants filed a

Motion to Abate the Civil Action and

requested referral to NICA .

7. An Order granting Defendants' Motion to

Amend Answers to Affirmative Defenses and

Defendants' Motion to Abate was entered by

the Honorable Judge Debra Nelson in the

circuit civil action on February 7, 2005, on

the basis that compensability and notice

issues were to be resolved by an

Administrati ve Law Judge and were not within

the circuit court jurisdiction, and

Plaintiffs' were directed to file this

petition.

8. Plaintiffs, TISSANY STANDLEY and DAVANTE

SMITH deny that this matter meets the

requirements of NICA.

* * *

The Request for Bifu rcation:

10. The claimant requests that the

Administrative Law Judge assigned to this

matter bifurcate the proceedings, addressing

compensability and notice pursuant to

§766.316 at the first proceeding and the

award pursuant to §766.31 at the second

proc eeding if it is determined DAVANTE SMITH

incurred a birth related neurological injury

subject to §766.301 et seq.

2 / The Joint Exhibits were, as follows: Joint Exhibit 1,

medical records filed with DOAH on December 14, 2005, and

identified in the Notic e of Filing Medical Records as items 1 - 7,

herein marked Joint Exhibit 1 - 1 through 1 - 7; Joint Exhibit 2,

the deposition of Michael Duchowny, M.D.; and Joint Exhibit 3,

the deposition of Donald Willis, M.D. Intervenors' exhibits

were, as follows: Exhibit 1 , the deposition of Robert Cullen,

M.D.; Exhibit 2, medical records of Davante Smith from Florida

Hospital for June 27, 1996 to June 30, 1996; Exhibit 3, medical

records of Davante Smith from John Grossman, M.D.; Exhibit 4,

psychological evaluation of Dava nte Smith from Deborah Day,

Psy.D.; Exhibit 5, report of neurological consultation of

Davante Smith from Robert Cullen, M.D.; Exhibit 6, deposition of

John Grossman, M.D.; and Exhibit 7, Notice to Our O bstetric

Patients, dated December 14, 1995.

3/ The f irst stage of "labor" is commonly understood to

"begin[] with the onset of regular uterine contractions."

Dorland's Illustrated Medical Dictionary, 28th Edition , 1 994.

"Regular," is commonly understood to mean "[o]ccurring at fixed

intervals, periodic." The American Heritage Dictionary of the

English Language, New College Edition (1979). Similarly,

"persistent , " as that term is used in Section 395.002(9)(b)3,

Florida Statutes ( Supp. 1998) , discussed infra at Endnote 8 , is

commonly understood to mean "[i ]nsistently repetitive or

continuous." Id.

4 / The Apgar scores assigned to Davante are a numerical

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

points gained on assessment of heart rate, respiratory effort,

muscle tone, reflex irritatio n, and skin color, with each

category being assigned a score ranging from the lowest score of

0 to a maximum score of 2. As noted, at one minute, Davante's

Apgar score total ed 7, with heart rate, respiratory effort, and

reflex irritation being graded at 2 each, muscle tone being

graded at 1, and skin color being graded at 0. At five minutes,

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

effort, muscle tone, and reflex irritation being graded at 2

each, and color being graded at 1.

5 / Mic hael Duchowny, M.D., a physician board - certified in

pediatrics, neurology with special competence in child

neurology, and clinical neurophysiology, examined Davante on

July 11, 2005, and noted the following physical limitations:

Devante's NEUROLOGICAL EXA MINATION reveals a

striking asymmetry of the right shoulder,

dorsal region and upper extremity. There is

widespread atrophy of the shoulder, arm and

forearm compartments with a prominent

flexion contracture of the right elbow.

Devante has very limited su pination. The

pectoralis major and minor musculature is

clearly diminished on the right compared to

the left and there is prominent scapular

winging with loss of musculature of the

serratus anterior, the rhom b oids, and teres

musculature. The deltoid regi on is also

small and there is hollowing of the

suprascapular region. Devante is unable to

elevate the right arm to the horizontal

position and cannot move the right arm

vertically without pulling on it with his

left arm. He has diminished arm swing while

walking and has an unsteady motion due to

the right flexion contracture. There is

sensory loss in the C4, 5 and C6 dermatomal

distributions. The right triceps and biceps

reflexes are absent compared to 1 - 2 on the

left and the brachial radialis is trace

compared to 1 on the left. In contrast,

the deep tendon reflexes in the lower

extremity are 2 and symmetric and both

plantar responses are downgoing. Devante

also manifests a mild scoliosis, which is

convex to the left.

(Joint Exhibit 2).

6 / The "central nervous system" is commonly understood to mean

"that portion of the nervous system consisting of the brain and

spinal cord." See "central nervous s." under "system,"

Dorland's Illustrated Medical Dictionary, 28th Edition , 1994.

7 / O'Leary v. Florida Birth - Related Neurological Injury

Compensation Association , 757 So. 2d 624, 627 (Fla. 5th DCA

2000)("All questions of compensability, including those which

arise regarding the adequacy of notice, are properly decided in

the administrative forum.") Accord University of Miami v. M.A. ,

793 So. 2d 999 (Fla. 3d DCA 2001); Tabb v. Florida Birth - Related

Neurological Injury Compensation Association , 880 So. 2d 1253

(Fla. 1st DCA 2004). See also Gugelmin v. Division of

Administrative Hearings , 815 So. 2d 7 64 (Fla. 4th DCA 2002);

Behan v. Florida Birth - Related Neurological Compensation

Association , 664 So. 2d 1173 (Fla. 4th DCA 1995). But see All

Children's Hospital, Inc. v. Department of Administrative

Hearings , 863 So. 2d 450 (Fla. 2d DCA 2004)( certifying

conflict ); Florida Health Sciences Center, Inc. v. Division of

Administrative Hearings , 871 So. 2d 1062 (Fla. 2d DCA

2004)(same); Florida Birth - Related Neurological Injury

Compensation Association v. Ferguson , 869 So. 2d 686 (Fla. 2d

DCA 2004)(same); and, Bayfront Medical Center, Inc. v. Florida

Birth - Related Neurological Injury Compensation Association , 893

So. 2d 636 (Fla. 2d DCA 2005).

8 / Section 766.316, Florida Statutes, was amended by Chapter

98 - 113, Section 4, Laws of Florida, to read as follows:

766.316 Notice to obstetrical patients of

participation in the plan. -- Each hospital

with a participating physician on his staff

and each participating physician, other than

residents, assistant residents, and interns

deemed to be participating physicians under

s. 766.314(4)(c), under the Florida Birth -

Related Neurological Injury Compensation

Plan shall provide notice to the obstetrical

patients as to the limited no - fault

alternative for birth - related neurological

injures. Such notice shall be provided on

forms furnished by the association and shall

include a clear and concise explanation of a

patient's rights and limitations under the

plan. The hospital or the participating

physician may elect to have the patient sign

a form acknowledging receipt of the notice

form. Signature of the patient

acknowledging receipt of the notice form

raises a rebuttable presumption that the

notice requirements of this section have

been met. Notice need not be given to a

patient when the patient has an emergency

medical con dition as defined in s.

[ 395.002( 9 )(b)] or when notice is not

practicable . (Amendment underlined).

A nd, Section 395.002(9)(b), Florida Statutes ( Supp. 1998)

defined "emergency medical condition" to mean:

(b) With respect to a pregnant woman:

1. That there is inadequate time to effect

safe transfer to another hospital prior to

delivery;

2. That a transfer may pose a threat to the

health and safety of the patient or fetus;

or

3. That there is evidence of the onset and

persistence of uterine contract ions or

rupture of the membranes.

However, Chapter 98 - 113, Section 7, Laws of Florida, provided

that "[a]mendments to section 766.316, Florida Statutes, shall

take effect July 1, 1998, and shall apply only to causes of

action accruing on or after that dat e." Consequently, since

Davante was born June 27, 1996, neither the amendments to

Section 766.316, Florida Statutes, nor the definition of

"emergency medical condition," as it appears in Section

395.002(9)( b), Florida Statutes, are applicable to this case .

Nevertheless, were the amendments applicable it would not change

the result reached , since there was no proof that on admission

to Florida Hospital Altamonte on June 26, 1996, at 3:25 p.m., or

thereafter, until 7:00 p.m., when her membranes were rupture d ,

Ms. Standley had an "emergency medical condition," as defined by

Section 395.002(9)(b), Florida Statutes ( Supp. 1998), or the

giving of notice was otherwise not practicable.

9 / Given Davante's failure to otherwise qualify for coverage

under the Plan, it is unnecessary to resolve whether, although

Davante evidences a substantial impairment to his upper right

extremity, Davante is substantially "physically impaired," as

that term is used in the Plan.

COPIES FURNISHED :

(Via certified mail)

Tricia A. Ma dden, Esquire

Tricia A. Madden, P.A.

500 East Altamonte Drive, Suite 200

Altamonte Springs, Florida 32701

(Certified Mail No. 7003 1010 0001 2044 4777)

Kenney Shipley, Executive Director

Florida Birth Related Neurological

Injury Compensation Associatio n

2360 Christopher Place, Suite 1

Tallahassee, Florida 32308

(Certified Mail No. 7003 1010 0001 2044 4784)

Ruth C. Osborne, Esquire

Thomas E. Dukes, III, Esquire

McEwan, Martinez & Dukes, P.A.

Post Office Box 753

Orlando, Florida 32802 - 0753

(Certified M ail No. 7003 1010 0001 2044 4791)

Wendell B. Hays, Esquire

George W. Tate, III, Esquire

Broad & Cassel

390 North Orange Avenue, Suite 1100

Orlando, Florida 32801

(Certified Mail No. 7003 1010 0001 2044 4807)

John V. Parker, M.D.

Advanced Women's Health Specialists, P.A.

Altamonte Drive, Suite 326

Altamonte Springs, Florida 32701

(Certified Mail No. 7003 1010 0001 2044 4814)

Florida Hospital Altamonte

601 East Altamonte Drive

Altamonte Springs, Florida 32701

(Certified Mail No. 7003 1010 0001 2044 48 21)

Charlene Willoughby, Director

Consumer Services Unit - Enforcement

Department of Health

4052 Bald Cypress Way, Bin C - 75

Tallahassee, Florida 32399 - 3275

(Certified Mail No. 7003 1010 0001 2044 4838)

NOTICE OF RIGHT TO JUDICIAL REVIEW

A party who is adversely affected by this F inal O rder 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 or iginal 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.