08-004814N Keith Allgood And Krystle-Lyn Arens, As Parents And Natural Guardians Of Their Minor And Dependent Son, Logan Allgood vs. Florida Birth-Related Neurological Injury Compensation Association Status: Closed DOAH Final Order on Friday, February 18, 2011.

Summary: Notice at the first opportunity is required of both the physician and hospital; here, a second notice by the physician was impracticable.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

KEITH ALLGOOD AND KRYSTLE - LYN )

ARENS, as parents and natural )

guardians of their minor and )

dependent son , LOGAN ALLGOOD , )

)

Petitioners , )

)

vs. ) Case No. 08 - 4814N

)

FLORIDA BIRTH - RELATED )

NEUROLOGICAL INJURY )

COMPENSATION AS SOCIATION , )

)

Respondent, )

)

and )

)

LAKELAND REGIONAL MEDICAL )

CENTER, INC. ; JEFFREY PURETZ, )

M.D. ; PATRICIA K. RICHEY, MN, )

RN, ARNP/CNM ; and LAKELAND OB - )

GYN, P.A., d/b/a CENTRAL )

FLORIDA WOMEN ' S CARE, )

)

Intervenor s . )

)

FINAL O RDER AWARDING ATTORNEY'S FEES AND OTHER EXPEN SES

Upon due notice , a final hearing was held on November 23,

2010, by video teleconference between Tallahassee and West Palm

Beac h Florida, before Ella Jane P. Davis, a duly - assigned

Administrative Law Judge of the Division of Administrative

Hearings .

APPEARANCES

For Petitioners: Karen E. Terry, Esquire

Brian P. Sullivan , Esquire

Searcy, Denney, Scarola

Barnhart & Shipley ,

2139 Palm Beach Lakes Boulevard

West Palm Beach, Florida 33409

For Respondent: Elizabeth W. Voss, Esquire

Broad & Cassel

390 North Orange Avenue, Suite 1100

Post Office Box 4961 (32802 - 4961)

Orlando, Florida 32801

David W. Black, Esquire

Frank, Weinberg & Blac k, P.L.

7805 Southwest 6th Court

Plantation, Florida 33324

STATEMENT OF THE ISSUE

At issue are the attorney's fees and related expenses owed

by Respondent Birth - Related N eurological Injury Compensation

Assoc iation (NICA) pursuant to s ection 766.31(1)(c), Florida

Statutes.

PRELIMINARY STATEMENT

Petitioners filed a Petition (Claim) for compensation under

the Florida Birth - Related Neurological Injury Compensation Plan

(Plan) on September 26, 2008.

By an Order en tered April 1, 2009, Division of

Administrative Hearings (DOAH) Administrative Law Judge (ALJ)

William J. Kendrick , with the concurrence of all parties,

entered an Order approving Petit ioners' claim as compensable.

See §§ 766.302 (2) and 766.305 (7) Fla. Stat. Th at Order also

provided for the issue of lack of timely notice to be litigated

in a full evidentiary hearing at a later date .

The case proceeded before ALJ Kendrick until September 30,

2009, and thereafter before the undersigned, relative to the

is sue of whether there had been a lack of timely notice by one

or more of the Intervenors . A final hearing , devoted solely to

the issue of lack of timely notice , vel non , was conducted on

March 26, 2010, resulting in a June 11, 2010, Final Order

determining that the Intervenors had provided appropriate

notice . Jurisdiction as to all expenses was retained.

Thereafter, a ll expense issues were resolved informally by

the parties , via their Stipulation and Joint Petition, filed

September 23, 2010, and Addendum thereto filed October 6, 2010,

approved by Order of October 8, 2010, except for attorneys ' fees

and reasonable expenses (costs) . S ee § 766.31(1)(c) , Fla. Stat .

T he case proceeded to final hearing on th ose issues on

November 23, 2010 .

At the November 23 , 2010, fees and costs hearing, the Joint

Pre - Hearing Stipulation was received in evidence as Joint

Exhibit A . Petitioners presented the oral testimony of

Attorneys Karen Terry and Donald Hinkle. The affidavit of

Attorney Brian P. Sullivan , inclusive of time and expense

records , was admitted as Exhibit P - 1. The affidavit of Attorney

James W. Gustafson, inclusive of time and expense records , was

admitted as Exhibit P - 2. The time and expense records of

Attorney Janet Merrill , and the time and expense reco rds of

Attorney Karen Terry and others at Searcy, Denny, Scarola,

Barnhart & Shipley, P.A., were received in evidence as Exhibit

P - 3. An a ffidavit of Attorney Janice Merrill was offered, but

objected - to, which objection was sustained. However,

Petitioner s were permitte d 20 days to take Attorney Merrill's

deposition. Ms. Merrill was deposed on December 3, 2010. At

hearing, Respondent presented the oral testimony of Attorney

John D. Kelner.

The t ranscript of hearing and the transcript of

Ms. Merrill's dep osition were filed on December 22, 2010.

The parties stipulated in a telephonic conference call on

January 13, 2011, that, regardless of the date of filing,

Ms. Merrill's deposition , filed December 22, 2010, and her

A mended A ffidavit as to R easonable A tt orney's F ees and Expenses ,

filed January 4, 2011 , would be considered as evidence. 1

It was further stipulated in the January 13, 2011 ,

conference call that Respondent NICA's P roposed F inal O rder,

filed January 7, 2011, and Petitioners' P roposed F inal O rder ,

filed January 11, 2011, would each be considered without

objection. 2

FINDINGS OF FACT

The Award Provisions of the Plan

1. At all times material to this case, s ection

766.31(1)(c) Fl orida Statutes, set s forth the factors to be

considered by the ALJ f or purposes of attorney's fees and costs

as follows:

766.31 Administrative law judge awards for

birth - related neurological injuries; notice

of award. --

(1) Upon determining that an infant has

sustained a birth - related neurological

injury and that obste trical services were

delivered by a participating physician at

the birth, the administrative law judge

shall make an award providing compensation

for the following items relative to such

injury:

***

(c) Reasonable expenses incurred in

connection with th e 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.

Should there be a final determination of

compensability, and the claimants accept an

award under this section, the claimants

shall not be liable for any expenses,

including attorney's fees, incurred in

connection wi th the filing of a claim under

ss. 766.301 - 766.316 o ther than those

expenses awarded under this section.

2. 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 Ins . Co. v.

Quanstrom , 555 So. 2d 828 (Fla. 1990); Fl a. Patient's Comp . Fund

v. Rowe , 472 So. 2d 1145 (Fla. 1985); Fl a. Birth - Related

Neurolo g ical Injury Comp . Ass ' n v. Carreras , 633 S o.2d 1103

(Fla. 3d DCA 1994). "[ U ]nder the 'hour - setting' po rtion of the

lodestar computation, it is 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

t o determine the number of hours

reasonably expended in providing the

service. 'Reasona b ly expended' means the

time that ordinarily would be spen t 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 Estat e 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. Moreover, only time incurred pursuing the claim is

compensable, not time incurred exploring civil remedies or

opportunit ies to opt out of the Plan through lack of notice or

otherwise. Carreras , 633 So. 2d at 1109. See also Braniff v.

Galen of Fl a. , Inc. , 669 So. 2d 1051, 1053 (Fla. 1st DCA

1995)("The presence or absence of notice will neither advance

nor defeat the claim of an eligible NICA claimant who has

decided to invoke the NICA remedy . . .; thus, there is no

reason to inquire whether proper notice was given to an

individual who has decided to proceed under NICA. Notice is

only relevant to the defendants' assertion of NICA exclusivity

where the individual attempts to invoke a civil remedy.").

Accord O'Leary v. Fl a. Birth - Related Neurological Injury Comp .

Plan , 757 So. 2d 624, 627 (Fla. 5th DCA 2000)("We recognize that

lack of notice does not affect a claimant's abil ity to obtain

compensation from the Plan."). 3 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 Ass 'n v. Day , 512 So. 2d 332 (Fla. 3d DCA

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

1999). See also 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

r easonableness of the fee. . . . Expert testimony is required

to determine both the reasonableness of the hours and reasonable

hour rate.").

3 . In applying the statutory factors, Final Orders of DOAH

have consistently based awards of attorney's fees and expenses

(costs) upon the "award under this section" and upon the pursuit

of "expenses, including attorney's fees, incurred in connection

with the filing of a claim under ss. 766.301 - 766.316 . " However,

fees and costs traditionally have not been assessed a gainst NICA

for Petitioners' pursuit of the "opt out" option provided by

proof of lack of timely notice by participating physicians and

hospitals or exploring civil remedies outside the NICA statutory

scheme . See Robles v. Fla. Birth - Related Neuro logical Injury

Comp. Ass 'n , Case No. 07 - 2186N ( Fla. DOAH Dec . 6, 2008 ); Oliver

v. Fla. Birth - Related Neuro logical Injury Comp. Ass 'n , Case No.

06 - 0318N ( Fla. DOAH Dec. 19, 2008 ); Ransom v. Fla. Birth - Related

Neuro logical Injury Comp. Ass 'n , Case No. 03 - 221 3 N ( Fla. DOAH

Oct . 25, 2004); Lendway v. Fla. Birth - Related Neuro logical

Injury Comp. Ass 'n , Case No. 94 - 6088N ( Fla. DOAH Aug . 1, 1996) ;

and Walker v. Fla. Birth - Related Neuro logical Injury Comp. Fund ,

Case No. 94 - 5386N ( Fla. DOAH Nov . 13, 1995) .

4 . Petitioners ' attorneys currently assert an entitlement

to attorney's fees in the amount of $102,656.25, on behalf of

Searcy, Denney, Scarola, Barnhart, & Shipley, P.A., (hereafter,

"the Terry team") , $6,690.72 in expenses for that firm, and

$35,096.00 in fees and $3, 686.63 in expenses on behalf of

Janice Merrill, P.A. (hereafter "the Merrill team") .

5 . There is no serious contention that Ms. Merrill,

Ms. Terry, Mr. Sullivan, or Mr. Gustafson (Messrs. Sullivan and

Gustafson being shareholders , with Ms. Terry, of Searc y, Denney,

Scarola, Barnhart, & Shipley, P.A.) are not highly skilled

medical malpractice attorneys who are both rightfully and

properly respected and successful in their legal and

geographical communities.

6 . These attorneys represent clients in variou s types of

cases, on an hourly basis, but all of them usually charge

clients on a contingency fee basis in circuit court for their

work on several permutations of catastrophic injury claims.

Discussion of their respective qualifications , the

qualification s of others ( lawyers, law clerks, paralegals , etc. ,

within the same firms ) who assisted them , in their

representation of Petitioners are addressed more fully

hereafter .

Attorney's Fees

The Merrill Team

7 . Prior to filing the NICA claim , Attorney Janet Me rr il l

had been representing Petitioners with regard to a circuit court

medical negligence case related to the birth of their child,

Logan, since October 10, 2007 . Ms. Merrill's legal

representation included, but was not limited to , legal and

factual resea rch in preparation for the negligence case,

complying with the statutory pre - suit requirements for that

case , obtaining necessary documents, filing and serving th e

circuit court complaint, and abatement proceedings in the

circuit court case . A batement in that case required prior

resolution of a NICA claim , before the circuit court c a se could

proceed further. Abatement of the circuit court action,

approximately May 2, 2008, precipitated Ms. Merrill filing the

NICA claim herein.

8 . On September 26, 2008, P etitioners , represented by

Attorney Merrill, filed a Petition (Claim) with DOAH to resolve

whether or not Logan Allgood (the injured infant) qualified for

compensation under the NICA Plan, and whether the hospital at

which Logan was born , Lakeland Regional Medical Center , and the

participating physician, Jeffrey Puretz, M.D., who delivered

obstetrical services during the required statutory period, had

complied with the notice provisions of the Plan. This was

Ms. Merrill's first solo NICA claim , although sh e may have had

previous peripheral experience with NICA in connection with

other malpractice cases.

9 . DOAH perfected s ervice of the Petition on NICA on

September 29, 2008 .

10 . An October 21, 2008 , DOAH Order granted Lakeland

Regional Medical Center lea ve to intervene.

11 . A November 3, 2008 , DOAH Order granted Jeffrey Puretz,

M.D.; Patricia K. Richey, MN, RN, ARNP/CNM; Lakeland OB - GYN,

P.A.; and Lakeland OB - GYN, P.A., d/b/a Central Florida Women's

Care leave to intervene.

12 . On February 2, 2009, f ollowing extensions of time

within which to do so, NICA gave notice that it was of the view

that Logan's claim against NICA was compensable, and requested

that a hearing be scheduled to resolve compensability. NICA's

acceptance of compensability equates w ith its " Response "

required by section 766.305(4) , and occurred subsequent to

review of medical records by two NICA - selected physicians and a

medical examination of the child, Logan, by one of those

physicians .

13 . On March 11, 2009, a p rehearing c onfer ence was held.

By letter of March 18, 2009, Petitioners ' counsel advised the

ALJ that the y did not intend to dispute or present evidence

concerning whether the injured infant had sustained a birth -

related neurological injury. By letter to all parties on

March 20, 2009, the ALJ responded to Petitioners' counsel's

letter of March 18, 2009, and advised that it appear ed

appropriate at that time to resolve the claim was compensable,

absent a dispute that obstetrical services were delivered by a

participating p hysician. In response thereto, Petitioners'

counsel wrote the ALJ on March 27, 2009, advising that all

parties ha d agreed that the issue of compensability had been

resolved, and the notice issue could be determined in a one - day

hearing.

1 4 . As a result o f the parties' agreement on

compensability , on April 1, 2009, ALJ Kendrick entered an O rder ,

which provided, in pertinent part :

Respondent's request that issues of

compensability and n otice be bifurcated

from those relating to an award i s granted

§ 766.3 09(4) , Fla. Stat.

Respondent's proposal to accept the claim as

compensable is approved . § 766.305(7) , Fla.

Stat.

By separate Notice of Hearing, a hearing

will be scheduled to resolve whether the

health ca re providers complied with the

n otice provisions of the Plan. Thereafter,

a Final Order will be entered resolving that

the claim is compensable, and whether the

health ca re providers complied with the

n otice provisions of the Plan.

1 5 . Petitioners' position herein is based, in part, on

their suggest ion , for purposes of th e present proceeding , that

compensation was not fully determined by the April 1, 2009 ,

Order . This new position is in direct juxtapos ition to

Petitioners' previous active agreement to compensability,

including informing the ALJ that there was no disagreement that

a NICA - participating physician delivered obstetrical services

and that there had been a qualifying injury to the child, Logan,

during the statutory time period. See Finding of Fact 1 3 .

1 6 . Pertinent to any determination o f compensability are

the statut ory requirements that the ALJ approve N ICA's

acceptance "for compensation" and th e statutory requirements

which define "compensability . " §§ 766 .305(7) and 766.309, Fl a.

Stat .

1 7 . Specifically, the statute provides that i f NICA

determines that the injury alleged in a claim is a compensable

birth - related neurological injury, NICA may award compensation

to the claimant, provided that the award is approved by the ALJ

to whom the claim has been assigned. § 766.305( 7 ) , Fla. Stat .

If, on the other hand, NICA disputes the claim, the dispute must

be resolved by the assigned ALJ in accordance with the

provisions of c hapter 120, F lorida Statutes. §§ 766.304,

766.309, and 766.31, Fla. Stat.

1 8 . In discharging this responsibility, th e ALJ must make

the following determination :

(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 c ord injury caused by oxygen

deprivation or mechanical injury and that

the infant was thereby rendered permanently

and substantially mentally and physically

impaired, a rebuttable presumption shall

arise that the injury is a birth - related

neurological injur y 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 postdelivery

period in a hospital; or by a certified

nurse midwife in a teac hing hospital

supervised by a participating physician in

the course of labor, delivery, or

resuscitation in the immediate postdelivery

period in a hospital.

§ 766.309(1), Fla. Stat. An award may be sustained only if the

ALJ concludes that the " infant h as sustained a birth - related

neurological injury and that obstetrical services were delivered

by a participating physician at birth. " § 766.31(1), Fla. Stat.

1 9 . "B irth - related neurological injury " is defined by

s ection 766.302(2), to mean:

injury to the brain or spinal cord of a live

infant weighing at least 2,500 grams for a

single gestation or, in the case of a

multiple gestation, a live infant weighing

at least 2,000 grams at birth caused by

oxygen deprivation or mechanical injury

occurring in the cou rse 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

dis ability or death caused by genetic or

congenital abnormality.

20 . Therefore, it is clear that the ALJ, in determining

" compensability " on April 1, 2009, simultaneously determin ed

that the infant ha d sustained a brain or spinal cord injury

caused by oxyg en deprivation or mechanical injury during the

statutory period ; that the infant was thereby rendered

permanently and substantially mentally and physically impaired ;

and that obstetrical services had been delivered by a physician

participating in the NICA Plan. Therefore, it cannot reasonably

be found, as Petitioners have suggested anew in the fees and

costs phase of this case , that the issue of the provision of

obstetrical services by a "participating physician" was left

undetermined by the April 1, 2009 , Order ; that the

" compensability " issue encompasse d the " notice " issue; or that

the remaining "notice" issue encompasse d the "compensability"

issue herein. Concomitantly, NICA's suggestion that

compensability was determined by NICA's acceptance/response o r

by various letters of Petitioners' attorney, Ms. Merrill, is

rejected. The ALJ's Order of April 1, 20 09 , was the watershed

mark for the determination of compensability.

21 . Up to the April 1, 2009 , Order determining

compensability , Attorney Merrill 's firm was the only one

representing Petitioners. She currently asserts that up to that

point in time, she and others in her office had expended time on

this claim as follows:

I am seeking an award for my attorney's fees

totaling $18,576.00, reflecting my

r easonable time necessarily expended in

pursuit of NICA benefits (68.80 hours) at

the reasonable rate of $270.00 per hour; my

associate Shannon P. Liatos attorney's fees

totaling $12,165.00 (81.10 hours) at the

reasonable rate of $150.00 per hour; my

parale gal McK enzie Stewart's fees totaling

$3 ,302.00 (50.80 hours ) at the reasonable

rate of $65.00 per hour; my Law Clerk Tina

Mesiboz ' fees totaling $227.50 (3.50 hours)

at the reasonable rate of $65.00 per hour ;

my Law Clerk Chanel Mosley's fees totaling

$825 .50 (12.70 hours) at the reasonable rate

of $65.00 per hour, for a total claim of

Attorney's and Paralegal fees in the amount

of $35,096.00. The reasonable hourly rates

reflect the complexity of the case, the

contingent nature of the fee, the

substantial risk of non - recovery, and the

other factors set forth in section

766.31(1)(c)(1 - 6), Florida Statutes .

( P - 5: Merrill's Amended Affidavit as to Reasonable Attorney's

Fees and Expenses . )

2 2 . NICA dispute s fees claimed by the Merrill team for any

time b illed by either Ms. Merrill or her support staff that

related to the circuit court action or the issue of lack of

notice by the Intervenors.

2 3 . The time sheets originally provided by Ms. Merrill

total ed 216.90 hours worked by all firm personnel . Atto rney

Donald Hinkle, testifying as an expert witness on behalf of

Petitioners , and basing his opinion on the factors to be

considered under section 766.31 (1) (c) of the NICA Plan,

eliminated hours related to the circuit court case and arrive d

at the conclusi on that only 146.30 hours of the Merrill team's

time , up to April 1, 2009 , had been necessary and reasonable in

achieving the compensability ruling of April 1, 2009. However,

Mr. Hinkle was less than precise in explaining which of the

hours listed by Ms. Merrill and her team might be included in

his 146.3 0 hours figure . Mr. Hinkle's testimony in response to

questions of whether or not any work performed by any lawyer

with regard to the notic e issue is to be compensated by NICA ,

may be characterized as, "I f it isn't, it should be." 4

2 4 . NICA's expert witness, Attorney John D. Kelner,

concurred with Mr. Hinkle that the circuit court work should be

eliminated from consideration of fees in the NICA case . He also

testified , in line with the case law , that NI CA owes no fees for

work on establishing lack of notice by the healthcare providers.

Unfortunately, Mr. Kelner's vagueness rivaled Mr. Hinkle's

concerning which of the Merrill team 's charges might be valid

( that is, directed to the NICA compensability iss ue as opposed

to the circuit court malpractice issues , NICA notice by the

health care providers , or peripheral services , such as

communication with various agencies ) . Initially, Mr. Kelner

attempted to parse out each time and expense entry of the

Merrill team 's records ; gave up ; and finally opined that

al though Ms. Merrill was a highly skilled and respect ed

attorney, even a moderately - skilled attorney could have

completed the NICA compensability case ( by itself ) in 20 - 30

hours . In his opinion, the only a ttorney time required to

pursue the NICA compensability issue in this case would have

been spent communicating with the parent - clients on a variety of

levels ; obtaining medical releases ; obtaining medical records ;

assembling the medical records ; analyzing the medical records ;

being certain the medical records were complete ; determining

which type of health care professional might be needed to

analyze the medical records ; possibly consulting appropriate

health care professionals to make a more in - depth asses sment of

the medical records ; and drafting and submitting the claim to

NICA.

2 5 . It does not appear that Mr. Kelner viewed as valid , or

took into consideration , the time , if any, devoted to the NICA

claim by M s. Merrill's team . Mr. Hinkle viewed all th e Terry

team as appropriately skilled, reasonably priced, and as having

devoted the necessary and reasonable time to th is case.

2 6 . A s testified and as provided by statute and case law ,

it is found that Ms. Merrill (and derivatively, her team) is not

enti tled to fees from NICA for time not reasonably devoted to

the compensability issue in the NICA case . Specifically,

Ms. Merrill (and derivatively her team) is not entitled to be

paid in this forum for time or expenses related solely to her

circuit court wo rk or to advancing the notice issue before DOAH.

In accord with the statute, the case law, and both experts'

testimony, the undersigned has devoted c o nsiderable time to

assessing which of the ho urs listed for her team , as part of

Ms. Merrill's Amended Aff idavit , actually went into advancing

the NICA claim, as opposed to the circuit court case . Also , i n

accord with the statute, the case law , and Mr. Kelner's

testimony, time exclusively devoted to advancing the notice

issue before DOAH has been subtract e d.

2 7 . C onsidering all the evidence and giving Ms. Merrill

the benefit of the doubt that lack of NICA experience required

time devoted to greater detailed research than a NICA claim

"form" would prov ide, it is determined that 36.7 hours were

reasonably expen ded by the Merrill team on the NICA claim.

28 . In reaching the foregoing determination, the

undersigned has relied in large part on the elements emphasized

by Mr. Kelner , including the need to repeatedly expl a in all

elements of the case to the parent - clie nts . See Finding of Fact

24.

29 . T he following facts have been considered of more

weight than others in reducing the hou r s accepted from the hours

claimed : The Merrill team spent significant time pursuing the

medical malpractice claim . Mixed issues (no tice and

compensability or compensability and circuit court work) could

not always be separated out. There was much duplication of

research effort (such as multiple revisions of letters and legal

documents), and except for Ms. Merrill and another attorney , the

team's work was more in the nature of clerical work than legal

practice (predominantly assembling medical, legal and trial

notebooks) . Ms. Merrill testified that she was able to multi -

task while do i ng some of her legal research and that parts of

her research, of necessity, addressed both notice and

compensability issues. Exhibit P - 4A : Merrill Deposition page

30 .

30. Also, e xcept for the notice issue, this was a

straightforward claim. The P etition was very professionally

drafted by Ms. Merrill t o protect the medical malpractice case ,

and the Petition explicitly set forth all aspects of the notice

issue. However, "b ut for" the notice aspects , a petition form

downloaded from NICA's internet site would have sufficed. T he

medical aspects of the NIC A case also were relatively

strai ghtforward, and the earliest medical records revealed the

birth - related neurological injury. Therefore, NICA was able to

make a decision to accept the claim, based, in large part, on

the same medical records submitted with the Petition . Even so,

where the undersigned could determine from the fee and expenses

exhibits that NICA had requested additional records, that time

has been considered herein in the Merrill team's favor.

31. Petitioners also did not have to locate, consult, or

hire, expert medical witnesses of their own to refute NICA's

physicians or for any other reason related to a compensability

determination . On the other hand, where the records suggest

that the Merrill team consulted medical personnel in relati on to

presuit requirements in circuit court or the notice issue , those

hours have not been totaled in their favor . Medical

examinations were rapidly scheduled by NICA, and c ompensability

was readily agreed - to, once NICA's exper t s had examined Logan.

Time that Ms. Merrill attributed to obtaining a copy of one or

both NICA physicians' reports was excessive. No depositions of

any experts were necessary to persuade NICA to accept the claim .

32. Finally, t he statute aspires for every administrative

case to go to hearing within 120 days of the filing of the

Petition. § 766.307 , Fla. Stat. Here , NICA accepted

compensability within approximately 126 days without an

adversarial evidentiary hearing, and NICA's acceptance was

confirmed by an Order of the ALJ wit hin approximately 18 1 days.

3 3 . That said, Respondent's assertions that no fees or

costs can be owed for legal work accomplished by Petitioners'

counsel after NICA's filing of the Response or, alternatively,

after the filing of Petitioners' acceptance let ter , are rejected

based on s ections 766.304 and 766.305 (7) , which provide that a

claim is not compensable until approved by the ALJ. See Finding

of Fact 20. Therefore, Ms. Merrill's and her firm's time and

activity up to the April 1, 2009 , Order has all been considered

in reaching the foregoing finding of 36.7 hours expended by the

Merrill team on the compensability claim .

3 4 . Mr. Hinkle opined that Ms. Merrill's claimed rate of

$270.00 per hour was more "low" than "reasonable , " but was

certainly "reaso nable" as that term is commonly understood in

fees and costs proceedings, and that the respective hourly rates

of Ms. Merrill's staff were also reasonable.

3 5 . Mr. Kelner, while conceding that $200 .00 - $ 300 .00 per

hour might be a reasonable rate for Ms. Merrill's services,

initially viewed $200 .00 to be a more reasonable rate per hour

for Ms. Merrill's services, based on all factors to be

considered under the statute, particularly her education,

training, and lesser experience in NICA cases at the times

r elevant to her NICA work in this case. He ultimately settled

on $250 .00 per hour as a reasonable rate for her legal efforts

in the instant case, opining that less experienced lawyers

should charge less for more hours and more experienced lawyers

can do th e same work at a higher fee per hour, while expending

less time doing it.

3 6 . Given the closeness of the hourly fee claimed by

Ms. Merrill and those hourly fee rates respectively assigned by

the two experts, NICA urges that the "average" of $260 .00 per

h our should be assigned to Ms. Merrill's work in this case.

However, considering the evidence as a whole, including but not

limited to Mr. Kelner's testimony that he has not personally

handled a NICA case limited to compensability issues in

approximately 1 3 years, it is found that Ms. Merrill's requested

hourly rate of $270.00 per hour is reasonable.

3 7 . Therefore, having considered Mr. Hinkle's 146.30 hours

figure, Mr. Kelner's 2 0 - 30 hours figure, the records themselves,

such as they are, and giving Ms. Merrill every benefit of the

doubt tha t her lack of NICA experience required greater and more

detailed research and petition - drafting time than might be

utilized by a more experienced attorney, it is concluded that

strictly in pursuing the NICA compensabi lity claim, Attorney

Merrill is entitled to 36.7 hours at $2 7 0.00 per hour for a

total of $ 9,909.00 as attorney's fees from NICA . This finding

subsumes all fees allegedly owed on behalf of the remainder of

the Merrill team.

Expenses

The Merrill Team

3 8 . NICA does not object to the following expenses

incurred by the Merrill team:

1/23/08 Medical Records $24.00

2/7/08 Medical Records (Dr. Arasu) $ 8.21

9/23/08 DOAH filing fee $15.00

$47.21

3 9 . The undersigned has made a careful assessment of the

costs /expenses documented by the Merrill team, and finds no

further expenses to be recoverable as limited solely to the NICA

claim. In making this finding, the undersigned has been guided

by Ocean Club C ommunity Ass 'n , Inc. v. Curtis , 935 So. 2d 513

(Fla. 3d DCA 2006), holding that the party seeking costs has the

burden to show that all requested costs were reasonably

necessary either to defend or prosecute the case at the time the

action precipitating the cost was taken. Furthermore, the

general rule is that certain costs and expenses such as copies,

scans, and online research are not taxable costs because they

are considered overhead . Accord Landmark Winter Park LLC v.

Colman , 24 So. 3 d 787, (Fla. 5th DCA 2009); Robbins v. McGrath ,

955 So. 2d 633 (Fla. 1st DCA 2007) . Moreover, the Statewide

Uniform Guidelines for Taxation of Costs in Civil Actions , as

Amended November 17, 2005, effective January 1, 2006 (915 So. 2d

612 at 616 ) , provide s that the following litigation costs should

not be taxed as costs: long distance telephone calls with

witnesses; expenses related to consulting but no n - testifying

witnesses; costs incurred in connection with any matter which

was not reasonably calculated to lead to the discovery of

admissible evidence; travel time of attorneys or exper t s; and

travel expenses of attorneys. See also Miller v. Hayman , 766

So. 2d 1 116 (Fla. 4th DCA 2000); Dep ' t of Transp. v . Skidmore ,

720 So. 2d 1125 (Fla. 4th DCA 1998).

4 0 . T he Merrill team did not prove all expenses claimed

but is entitled to an award of $47.21 in expenses .

Attorney's F ees

The Terry Team

41 . Ms. Merrill could not take this case with her to a new

firm she was joining, so on or about April 27 , 2009, aft er the

ALJ had already ruled the claim compensable on April 1, 2009,

Attorney Karen Terry of the law firm of Searcy, Denney, Scarola,

Barnhart & Shipley, P.A., replaced the Merrill team in

representation of Petitioners .

42 . After significant further dis covery, much of which was

acrimonious as between Petitioners ' new legal representatives

and one or more of Intervenors, Intervenors' legal

representatives , or Intervenors' witnesses , a final hearing on

the sole issue of notice was held on March 26, 2010 .

4 3 . NICA had no obligation at law to address the notice

issue. Intervenors bore the burden of proving timely and

appropriate notice had been given, and they met their burden.

On June 11, 2010, a Final Order was entered , determining that

there had been no lack of notice by any Intervenor . The Terry

team never established "lack of timely notice" by any

Intervenor , so Petitioners cannot be said to have prevailed on

th e notice issue.

4 4 . The notice issue herein was complicated , and , to a

degree, novel , but not such that "the compensation issue

encompassed the notice issue , " or that the "notice issue

encompassed the compensation issue , " as currently suggested by

Petitioners . See Finding of Fact 20. At all times material to

the instant case , "compensab ility" and "notice" have been

separate issues within the NICA statutory scheme . At all times

material, the opportunity of proving lack of appropriate notice

represented only the potentiality of Petitioners being able to

exercise an "opt out" of NICA, so t hat they could pursue a

recovery against one or more health care providers in circuit

court.

4 5 . After determining that the notice requirements of the

s tatute had been complied with, t he Final Order of June 11,

2010, reserved j urisdiction to schedule fur ther hearings on the

following terms:

4. The parties are accorded 45 days from

the date of this Order to resolve, subject

to approval by the Administrative Law Judge,

the amount and manner of payment of an award

to the parents, the reasonable expenses

in curred with the filing of the claim,

including reasonable attorneyÓs fees, and

the amount owing for expenses previously

incurred. If not resolved within such

period, the parties shall advise the

administrative law judge, and a hearing will

be scheduled to address these remaining

issues.

4 6 . Petitioners and NICA avoided further litigation by

enter ing into a Stipulation and Joint Petition, filed

September 23, 2010 , and an Addendum to Stipulation, filed

October 6, 2010 . 5 These were approved by an October 8 , 2010,

Order, resolving all issues relat ed to the parental award and

paym ent of past benefits/expenses ( s ee sections 766.31(1)(a) and

(b) ) , but leaving open for resolution by the ALJ the amount

owing for reasonable attorney's fees and expenses related

the reto . The final hearing on reasonable attorney's fees and

expenses was held November 23, 2010.

4 7 . Attorney Terry and her firm currently c laim ( through

her testimony , her firm's time and expense records, and Messrs.

Sullivan's and Gustafson's affidavit s ) attorney's fees and

expenses in relationship to their entire representation of

Petitioners since April 27 , 2009 , as follows: Attorney Karen

Terry: 110 hours at $500.00 per hour ; Attorney Brian P.

Sullivan: 40 hours at $350.00 per hour ; Attorney James W.

Gustafson: 22.9 hours at $500.00 per hour ; 6 Attorney William

King : 43 hours at $450.00 per hour ; 7 Paralegal Bonnie Stark :

4.20 hours at $175.00 per hour; Paralegal Vince Leonard : 2.75

hours at $175.00 per hour; and the firm's research associates

for 5.3 hours at $300.00 per hour.

4 8 . Mr. Hinkle testified that upon his knowledge of usual

rates and court awards, together with his personal knowledge of

the qualifications and reputation of most of the Searcy, Denny &

Associates firm members in their P alm Beach and Tallahassee

offices, the hourly rates for the foregoing persons were

reasonable.

4 9 . Petitioners now seek only the foregoing hourly rates,

despite having also presented evidence that much higher hourly

fees recently have been awarded by the circuit courts in Palm

Beach and Leon counties for allegedly "similar" or "comparable"

medical malpractice legal work by Ms. Terry, some of her

attorney associates, some of her non - attorney associates, and

one of her firm's senior partner s and another law yer outside the

firm. Without "enhancement," which does not apply in this case,

the amount per hour claimed prevails over comparisons with

attorneys of comparable skill, Linton v. Birth - Related

Neuro logical Injury Compensation Fund , Case 05 - 2210N ( Fla. DO AH

Feb . 15, 2007). This is especially true where the comparison is

made to legal work in other forums in other types of cases.

50 . That said, it is indisputable that all DOAH litigation

between April 1, 2009, and the June 11, 2010 Final Order was

clearl y directed toward attempts by Petitioners to opt - out of

NICA. The 15 months of litigation following the April 1, 2009

Order on compensability , including all discovery and

depositions, were directed toward the notice issue and to

otherwise avoid ing NICA. T he notice issue is irrelevant to

whether or not Logan Allgood qualified for coverage under the

NICA Plan. Petitioners' decision to pursue the notice issue and

all time devoted to that issue , including review of the June 11,

2010 , Final Order , is not time for which NICA is legally

responsible to pay attorney 's fees. It is irrelevant to the

legal issue of compensation from NICA whether notice was

provided by a health care provider or why it was excused .

Therefore, all the Terry team hours and expenses up to the

June 11, 2010 , Final Order on notice , plus any time thereafter

reviewing that Final Order, are clearly irrelevant to the fees

and costs issues now under consideration , and no fees or costs

related thereto should be awarded .

51 . However, Petitioners next submit that the Terry team's

time spent in determining the dollar amounts of the items

reserved in the June 11, 2010 , Final Order (the parental award

and award of past expenses) and their time spent negotiating and

presenting the largely formulaic Se ptember 23, 2010, Stipulation

and Joint Petition and the October 6, 2010, Addendum thereto

( see Finding of Fact 4 6 ) entitle them to some limited fees and

costs.

52 . Mr. Kelner, testifying on behalf of NICA , first

represented that these were ministerial ma tters, not worthy of

attorney's fees, but upon cross - examination, conceded that he

did not know if these hours were worthy of fees . TR - 139 .

5 3 . Ms. Terry and Mr. Hinkle testified globally that the

foregoing were not merely "ministerial" acts on the par t of the

Terry team and that clients in these situations both expect, and

require, assistance with these issues. Mr. Hinkle considered

the total time claimed to be "reasonable." The affidavits of

Attorneys Sullivan and Gustafson support this global view.

5 4 . By r eferral to the testimony of Attorney Terry, all

time and expense records, and the affidavits of Messrs. Sullivan

and Gustafson , the undersigned has been able to determine that ,

strictly in th e time period between the June 11, 2010 , Final

Order and the October 8, 2010, approval of the parties'

Stipulation and Addendum , 1.5 hours were exclusively expended on

this by Attorney Terry, mostly in phone calls to NICA and to

Petitioners and in drafting lien letters; 2.6 hours of

Mr. Gustafson's time was utilized in researching Medicaid

setoffs, and 29.30 hours of Attorney Sullivan 's time was devoted

to researching Medicaid issues and to the following general

categories: calculating and documenting Logan's past hospital

and doctor visits ; calculating and documenting mileage to and

from these visits; calculating and documenting time Logan's

parents had spent over the five years since Logan's birth

providing him with custodial care; and addressing some undefined

issues with regard to Medicaid setoffs and a p roposed

irrevocable trust for Logan. 8 The undersigned reached the

foregoing finding in accord with the body of case law and the

Guidelines , as follows: T ime the attorneys spent talking to

each other (per the timesheets) have been credited only once.

P ho ne calls to unidentified persons o r in connection with the

irrevocable trust issue have not been credited. Phone calls or

discussions with more than one attorney participating have been

credited only once. However, although Ms. Stark's memorandum on

Medi caid reimbursements has not been separately catalogued, the

time devoted by the three attorneys, and possibly Ms. Stark , to

discussing her memorandum or the Medicaid issue is included.

Time spent pursuing attorney's fees and costs has not been

credited.

5 5 . However, examination of the time and expense records

and of the affidavits provides little concrete information about

either the need or the success of the se efforts . T here is

nothing to show that NICA ever denied any requests for payment

during thi s period or did more than requ ire adequate

documentation in order to reimburse Logan's parents for the

"actual expenses" provided for under section 766.31(1)(a) and

(b). There were no hearings to address any entitlement or

payment issues and no pleadings other than the Stipulation and

Joint Petition and its Addendum. 9

5 6 . In Ransom v. Fl orida Birth - Related Neuro logical Injury

Comp ensation Ass 'n , supra , NICA opposed a similar fee claim.

The Final Order did not resolve whether or not attorney's fees

and costs might be owed, upon proper documentation of time

incurred by counsel , for exploring the issue of unpaid expenses

or for fi nalizing the parental award, stating, " . . . but for

the time that may have been spent formulating a parental award

that preser ved [the mother's] state and federal aid, as well as

time spent to recover past expenses, NICA's view [that fees were

not owed] has merit ."

57. However, after subtracting attorney time with regard

to opting out of NICA, the Final Order in Ran s om added t he

following:

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 aw ard be

finalized and any unpaid expenses be

identified. See §766.31(1) Fla. Stat.,

which specifies the items includable in the

award.

( Emphasis added. )

In Ransom , no unpaid expenses were identified, and the manner of

payment of the parental award was finalized without difficulty.

The same is true here.

5 8 . There is, however, case law rejecting certain items as

not supporting an award of attorney's fees or costs. Time

devoted to securing a special needs trust was not awarded fees

and costs in Robles v. Fl orida Birth - Related Neuro logical Injury

Comp ensation Ass 'n , supra . Pursuit of a life care plan was

ruled irrelevant in Oliver v. Fl orida Birth - Related Neuro logical

Injury Comp ensation Ass ' n , supra . These cases would seem to

militate against awarding fees based on the irrevocable trust

issue explored by counsel herein .

5 9 . Absent there being proof of disputed items, sections

766.31(1) (a) and (b) set out what is to be paid. Upon the

evidence as a whole, and in the absence of any proof of

resistance b y NICA to any specific submission by the Terry team

of any bill or proposal for reimbursement, it is determined that

Petitioners did not prove an entitlement to attorney's fees

based on activities in the period after the Final Order of

June 11, 2010 . Howe ver, r ejection of these fees claims should

not in any way be construed adversely to the fine reputations of

Ms. Terry's team, nor reflect adversely on any witness to this

proceeding. There is just insufficient evidence herein to show

entitlement to fees a nd expenses on the basis of Petitioners'

lawyers' activities in the post - F inal O rder phase.

Expenses:

The Terry Team

60 . Petitioners assert that $6,690.79 is owed to the Terry

team as expenses (costs) reasonably related to prosecution of

the NICA claim .

61 . NICA contends it owes nothing by way of expenses to

the Terry Team, both on the theory that nothing is owed by NICA

for costs incurred in pursuing the notice issue or with regard

to recovering expenses not specifically provided for and/or

never denie d or litigated. T he undersigned concurs.

62 . Mr. Hinkle's testimony as an expert attorney's fee and

cost witness in this cause was billed to Ms. Terry's firm at

$475.00 per hour for a total of $2,875.52. Ms. Terry's firm

incurred a court reporter and tr anscript cost of $629.00 for the

attorney's fee and expenses hearing on November 23, 2010. Since

Petitioners have not prevailed on those issues, they are not

entitled to reimbursement for these items .

CONCLUSIONS OF LAW

63 . The Division of Administrativ e Hearings has

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

cause. § 766.301 , et seq. , Fla. Stat.

6 4 . Although the undersigned accepts both the adage that

attorney's fees and costs constitute the average citizen's " key

to the cou rthouse , " and further accepts the assertion of

Petitioners' attorneys' and e xpert w itness ' contention that it

would not have serve d the claimants' best interest s for their

attorneys to have i gnore d the issue of notice (i ndeed, there was

testimony that under the stat e of the law at all times material

to this case it bordered on legal malpractice to not pursue, or

at least to not thoroughly examine, the issue of notice before

DOAH) , those sentiments do not establish a legal requirement

that NICA "pay the freight" for P etitioners' counsel to pursue

the notice issue in the administrative forum .

65. It is also noted that the Intervenors, as the

proponents of a finding that proper notice had been given , bore

the burden of proving that proper notice had been given. Using

P etitioners' analogy comparing the similarities of NICA

litigation to medical malpractice litigation, it is clear that

attorneys for a p etitioner who raise and prevail on a " lack of

notice " issue in a NICA case before DOAH do so in anticipation

of having th e opportunity to elect NICA payments or to reject

NICA and take their chances on recovering probably greater

damages for Petitioners , and a contingency fee for themselves ,

by way of a circuit court award. However, t hat opportunity for

ultimate choice does not mean that NICA should owe a fee to

Petitioners in respect to the notice issue, particularly when

Petitioners do not prevail before DOAH on that notice issue.

See Fl a. Birth - Related Neurological Injury Comp . Ass ' n v.

Carreras , supra .

6 6 . NICA was enacted by the Florida Legislature with the

intent to stabilize and reduce malpractice insurance premiums

for physicians practicing obstetrics. § 766.301(1)(c) , Fla.

Stat . A fund was created by the Legislature to provide

compensation, on a no - fault basi s, for birth - related

neurological injuries. Fla. Birth - Related Neurological Injury

C omp. Ass'n v. Dep't. of Admin. Hear . , 29 So. 3d 992, 995 (Fla.

2010). Financing for the fund was provided through assessments

made again st hospital s and physicians , secti on 766.314 , and

limitations were placed on amounts recoverable by claimants ,

section 766.31. In essence, NICA was intended to establish a

limited system of com pensation irrespective of fault, section

766.301(1)(d ) , and to operate in the least litigious ma nner

possible. Because NICA's remedies are limited, obstetric

patients subject to limited compensation under NICA are entitled

to receive pre - delivery notice of their rights and limitations

under the Act .

67. It is useful to reiterate that "the Legisl ature v iewed

[the Plan] as a relatively simple no - fault process for the care

of infants with very se vere , very expensive permanent

disabilities . " Carreras . As a no - fault process, the Plan

"contemplates routine claim processing where eligi b ility

determina tions should ordinarily be straightforward. Id. at

1106 . As a creature of statute, NICA cannot be stretched beyond

its legislative intent.

6 8 . Following the Order of April 1, 2009, the majority of

all further actions of Petitioners' counsel were directe d toward

avoiding being foreclosed from a civil lawsuit against the

healthcare providers by the exclusivity of the NICA Plan. O nly

those actions and expenses directed to the claim itself are

subject to assessment against NICA. Actions and expenses

direct ed toward the circuit court action, toward the notice

issue befo r e DOAH, or toward never - contested bills are not

subject to an award of fees or costs.

CONCLUSION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is ORDERED:

Petitioners are awarded $9,909.00 in attorney's fees and

$47.21 in expenses related thereto.

DONE AND ORDERED this 18th day of February , 201 1 , in

Tallahassee, Leon County, Florida.

S

ELLA JANE P. DAVIS

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 18th day of February , 2 011 .

ENDNOTES

1 / Upon reading the copy of Ms. Merrill's deposition which was

filed on December 22, 2010, it became obvious that Ms. Merrill's

original, unnotarized affidavit had been intended to be attached

as Exhibit 1 to this deposition, but that the unnotarized

affidavit had not been physically attached to the copy of the

deposition mailed to the ALJ . However, a copy of this

unnotarized affidavit had been filed with the Division on

November 17, 2010, prior to the final hearing on fees and

expense s, and that copy has been marked and utilized as "Exhibit

1 to Merrill Depo. of 12/3/2010" . T o preserve a comprehensive

record of the se proceedings , the undersigned has designated

Ms. Merrill's after - filed deposition and the unnotarized

affidavit as Petit ioners' "Composite Exhibit P - 4 , parts A and

B ". The unnotarized affidavit is superceded by Ms. Merrill's

notarized " Amended Affidavit as to Reasonable Attorney's Fees

and Expenses , " dated December 22, 2010, and filed January 4,

2011, which Amended Affidav it has been marked as "P - 5".

2 / Petitioners attached to their P ropos ed Final Order the bill

of Mr. Donald Hinkle, their attorney's fees and expenses expert,

and the bill of the court reporter for services with regard to

the November 23, 2010, fees and expenses hearing and with regard

to Ms. Merrill's after - filed deposition.

3 / At all times material to the instant case, jurisdiction of

the notice issue has resided in DOAH, but Petitioners and their

expert witness asserted that Carreras and all similar cases

should not be considered because they allegedly pre - date

statutory amendments , which removed the notice determination

from the jurisdiction of the circuit court and placed it within

DOAH, and because prior to certain amendments, Petitioners had

been permitted to pay their own attorneys. This argument is

unpersuasive.

4/ See n. 3.

5/ T he Addendum was only filed at the suggestion of the

undersigned to clarify that the parties had not yet resolved the

issue of entitlement to attorney's fees and exp enses.

6 / Mr. Gustafson's affidavit (P - 2) also attests to the nature

and time of Paralegal Stark's participation .

7 / This new hourly rate is apparently in response to

Mr. Hinkle's testimony that he would accept as reasonable the

other Terry team member s' claimed ho urly rates but would assign

$450 per hour to Mr. King because of the short time Mr. King had

been practicing in Florida , instead of Ms. Terry's originally -

claimed amount of $600 per hour for Mr. King's work,

8/ Ms. Terry also testified that at some point she re q uested

that the Director of NICA phone Logan's mother directly , without

going through the Terry team attorneys, to determine Logan's

eligi bi lity for a van .

9/ See n. 5.

COPIES FURNISHED :

(Via Certified Mail)

Kenney Shipley, Execu tive Director

Florida Birth Related Neurological

Injury Compensation Association

2360 Christopher Place, Suite 1

Tallahassee, Florida 32308

(Certified Mail No. 7010 1670 0000 3097 0621 )

George W. Tate, III, Esquire

Broad & Cassel

390 North Orange Avenu e, Suite 1100

Post Office Box 4961 (32802 - 4961)

Orlando, Florida 32801

(Certified Mail No. 7010 1670 0000 3097 0638)

Roland J. Lamb, Esquire

Morgan, Lamb, Goldman & Valles, P.A.

500 North Westshore Boulevard, Suite 820

Tampa, Florida 33609

(Certified Ma il No. 7010 1670 0000 3097 0645)

Ronald H. Josepher, Esquire

Josepher & Batteese, P.A.

First Union Center, Suite 1190

100 South Ashley Drive

Tampa, Florida 33602 - 5300

(Certified Mail No. 7010 1670 0000 3097 0652)

Karen E. Terry, Esquire

Searcy, Denney, Scarola

Barnhart & Shipley

2139 Palm Beach Lakes Boulevard

West Palm Beach, Florida 33409

(Certified Mail No. 7010 1670 0000 3097 0669)

David W. Black, Esquire

Frank, Weinberg & Black, P.L.

7805 Southwest 6th Court

Plantation, Florida 33324

(Certified Mail No. 7010 1670 0000 3097 0676) )

Amy Rice, Acting Investigation Manager

Consumer Services Unit

Department of Health

4052 Bald Cypress Way, Bin C - 75

Tallahassee, Florida 32399 - 3275

(Certified Mail No. 7010 1670 0000 3097 0683) )

Elizabeth Dudek, Deput y Secretary

Health Quality Assurance

Agency for Health Care Administration

2727 Mahan Drive, Mail Stop 3

Tallahassee, Florida 32308

(Certified Mail No. 7010 1670 0000 3097 0690) )

NOTICE OF RIGHT TO JUDICIAL REVIEW

A party who is adversely affected by t his 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 original of a notice of ap peal 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 In jury

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.