08-002146N Chontee Joyner And David Joyner, Individually And As Parents And Natural Guardians Of Brianna Renee Joyner, A Minor Child vs. Florida Birth-Related Neurological Injury Compensation Association Status: Closed DOAH Final Order on Monday, March 23, 2009.

Summary: The cause of infant`s impairments was most likely a genetic abnormality, as opposed to a "birth-related neurological injury." The claim is denied.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CHONTEE JOYNER AND DAVID )

JOYNER, INDIVIDUALLY AND AS )

PARENTS AND NATURAL GUARDIANS )

OF BRIANNA RENEE JOYNER, A )

MINOR CHILD, )

)

Petitioners, )

)

vs. ) Case No. 08-2146N

)

FLORIDA BIRTH-RELATED )

NEUROLOGICAL INJURY )

COMPENSATION ASSOCIATION, )

)

Respondent, )

)

and )

)

LAWNWOOD REGIONAL MEDICAL )

CENTER, INC., )

)

Intervenor. )

)

FINAL ORDER

With the parties' agreement, this case was resolved on an

agreed record.

STATEMENT OF THE ISSUES

1. Whether Brianna Renee Joyner, a minor, qualifies for

coverage under the Florida Birth-Related Neurological Injury

Compensation Plan (Plan).

2. Whether the hospital and participating physician

provided the patient notice, as contemplated by Section 766.316,

Florida Statutes (2005), or whether notice was not required

because the patient had an "emergency medical condition," as

defined by Section 395.002(9)(b), Florida Statutes (2005), 1 or

the giving of notice was not practicable.

PRELIMINARY STATEMENT

On April 30, 2008, Chontee Joyner and David Joyner,

individually and as parents and natural guardians of

Brianna Renee Joyner (Brianna), a minor, filed a Petition for

Determination of Availability of NICA Coverage with the Division

of Administrative Hearings (DOAH) to resolve whether Brianna

qualified for coverage under the Plan and whether the healthcare

providers complied with the notice provisions of the Plan.

DOAH served the Florida Birth-Related Neurological Injury

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

May 1, 2008, and on September 15, 2008, following an extension

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

and gave notice that it was of the view that Brianna did not

suffer a "birth-related neurological injury," as defined by the

Plan, and requested that a hearing be scheduled to resolve the

issue. In the interim, Lawnwood Regional Medical Center, Inc.

(Lawnwood Regional Medical Center), was granted leave to

intervene.

Given the issues raised, a hearing was scheduled for

January 27, 2009, to resolve whether the claim was compensable

and whether the hospital and the participating physician

complied with the notice provisions of the Plan. Left to

resolve in a separate proceeding was the amount of an award.

§ 766.309(4), Fla. Stat.

In the interim, on January 20, 2009, the parties filed a

Joint Motion to Submit Stipulated Factual Record and Written

Argument in Lieu of a Contested Hearing, together with a Pre-

Hearing Stipulation. That motion was granted by Order of

January 21, 2009, and the hearing scheduled for January 27,

2009, was cancelled. Thereafter, on January 22, 2009, and

February 6, 2009, respectively, the parties filed their

Stipulated Record (Exhibits 1-21) and Supplement to Stipulated

Record (Exhibit 22).

The parties were accorded until February 6, 2009, to file

written argument or proposed orders. Respondent elected to file

a proposed order and it has been duly-considered.

FINDINGS OF FACT

Stipulated facts

1. Chontee Joyner and David Joyner are the natural parents

of Brianna Renee Joyner, a minor. Brianna was born a live

infant on February 16, 2006, at Lawnwood Regional Medical

Center, a licensed hospital located in Fort Pierce, Florida, and

her birth weight exceeded 2,500 grams.

2. Obstetrical services were delivered at Brianna's birth

by William B. King, M.D., who, at all times material hereto, was

a "participating physician" in the Florida Birth-Related

Neurological Injury Compensation Plan, as defined by Section

766.302(7), Florida Statutes.

Coverage under the Plan

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

Plan for infants who suffer a "birth-related neurological

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

oxygen deprivation or mechanical injury occurring in the course

of labor, delivery, or resuscitation in the immediate

postdelivery period in a hospital, which renders the infant

permanently and substantially mentally and physically impaired." 2

4. Here, Petitioners and Intervenor took no position on

whether Brianna suffered a "birth-related neurological injury."

In contrast, NICA was of the view that the record failed to

support the conclusion that Brianna's impairments, admittedly

substantial, were birth-related.

Whether Brianna suffered a "birth-related

neurological injury"

5. To address whether Brianna suffered a "birth-related

neurological injury," the parties offered a Stipulated Record

(Exhibits 1-22), that included the medical records associated

with Mrs. Joyner's antepartal course, as well as those

associated with Brianna's birth and subsequent development. The

parties also offered the deposition testimony of Donald Willis,

M.D., a physician board-certified in obstetrics and gynecology,

and maternal-fetal medicine, and Raymond Fernandez, M.D., a

physician board-certified in pediatrics and neurology with

special competence in child neurology, who offered opinions as

to the likely etiology of Brianna's impairments.

6. Dr. Fernandez examined Brianna on July 31, 2008, and

obtained the following history from Mrs. Joyner:

Labor was induced at 39 weeks gestation.

Her cervix was 1 cm dilated. She was given

Cytotec and Pitocin, and overall duration of

labor was 31 hours. Epidural anesthesia was

given at 24 hours of labor. Towards the end

of the labor, contractions occurred one

after the other and she pushed for 2 hours.

Vacuum extraction was used, but she was

stuck, and she was then extracted manually.

Brianna was pale and she did not cry after

birth. She was given to Mrs. Joyner for "1

second" and then taken to the nursery

because of breathing problems. She was

transferred to the NICU because of an apneic

spell. Subsequent to discharge she was

referred to several specialist[s]. She was

found to have a small patent ductus

arteriosus that was not felt to be

significant. The neurosurgeons found no

clinically significant spinal abnormalities.

She required PE tubes and tonsillectomy and

adenoidectomy because of recurrent ear

infections and apneic spells. Hearing is

normal. Genetics and neurology have not

arrived at a specific diagnosis. She has

been enrolled in a developmental therapy

program through the Early Steps Program, and

has improved slowly, but she remains

delayed. Brianna sat straight without

support at about 13 months of age. She

ambulates by scooting in the sitting

position, by pulling with her legs and

balancing with her arms. She tries to pull

up, but only if offered assistance and

encouragement by holding her hands. She

reaches for objects, manipulates toys but

does not play with them meaningfully,

although she likes noisy toys. She rarely

puts food in her mouth (Cheerios sometimes).

She babbles, but no words are spoken. She

does not seem to understand spoken language,

but does respond to visual cues. She lifts

her arms when a shirt is about to be put on.

She plays pat-a-cake, but not consistently.

Eye contact is improving. She smiles and is

loving with family members, and tends to be

anxious in the presence of strangers. She

bangs blocks together, but does not stack

them. She does not engage in imaginative

play. She likes to be read to, and helps

turn pages. She watches her younger brother

and follows him around the house, and laughs

when he does funny things.

Physical examination revealed the following:

Recent weight was 27 pounds. Head

circumference 47.25 cm (approximately 20th

percentile). . . . Brianna was alert. She

was anxious when approached, and comforted

by her mother. She did not babble. No

words were spoken. Eye contact was limited.

She did not point. Mainly, she sat on her

mother's lap and stared about the room and

sometimes looked at me. There was no

indication that she understood basic verbal

requests. She did not point to body parts.

She was not interested in toys, and pushed

them away when offered. There were no

specific dysmorphic features. She has 2

hyperpigmented macular-papular skin markings

on her back. One is over the thoracic

spine, and the other is to the right of

midline. Pupils were equal and briskly

reactive to light. Eye movement was full.

She tracked visually, but eye contact was

limited. Face was symmetric. She swallowed

well. Low axial and proximal tone, but

normal tone distally in extremities. No

obvious weakness noted. She sat

independently. She stood and took steps,

but only with both hands held by her mother.

There was no involuntary movement. Deep

tendon reflexes 1 throughout. Liver and

spleen were not enlarged. Funduscopic

examination was limited, only able to note

normal red reflexes and unable to visualize

optic nerves. She inconsistently turned

toward sounds and when her name was called.

7. Based on his evaluation of July 31, 2008, as well as

his review of the medical records, Dr. Fernandez was of the

opinion that Brianna was permanently and substantially mentally

and physically impaired. However, with regard to etiology,

Dr. Fernandez was of the opinion that Brianna's impairments

were, more likely than not, caused by a genetic abnormality, as

opposed to a brain injury caused by oxygen deprivation or

mechanical injury. In so concluding, Dr. Fernandez observed

that the record did not provide evidence of an acute brain

injury due to hypoxia or mechanical trauma during labor and

delivery. Rather, he noted:

There was mild shoulder dystocia but no

evidence of upper extremity weakness. There

was some medical instability after delivery

but no evidence for an acute encephalopathy.

Following a single fluid bolus she was then

medically stable and began feeding well by

the end of day 1. Hypotonia was noted

initially and it has persisted without

evolution or evidence of spasticity or

involuntary movement. The initial brain CT

scan [of February 20, 2006] showed no

hemorrhage and later brain MRI [of May 18,

2006] was normal.

Finally, Dr. Fernandez pointed to the report of

Charles Williams, M.D., a geneticist associated with Shands

Children's Hospital at the University of Florida, Division of

Pediatric Genetics, where Brianna had been seen because of her

developmental delay and austic-like features. That report,

following chromosome analyses, identified a chromosome deletion,

a genetic abnormality, that in Dr. Fernandez's opinion likely

explains Brianna's global delay and physical findings.

8. Dr. Willis reviewed the medical records associated with

Mrs. Joyner's antepartal course; those associated with

Mrs. Joyner's labor and delivery, including the fetal heart rate

monitor strips; and those associated with Brianna's newborn

course. Based on that evaluation, Dr. Willis was of the opinion

that Brianna did not suffer a brain injury caused by oxygen

deprivation or mechanical injury during labor, delivery, or the

immediate postdelivery period. In so concluding, Dr. Willis

observed there was no significant fetal distress on the fetal

heart monitor during labor; the baby's Apgar scores were normal

(8 at one and five minutes); the baby did not require any

significant resuscitation at birth (only suctioning and blow-by

oxygen); and CT scan of the head on February 20, 2006, was

negative, without evidence of hypoxic changes.

9. When, as here, the medical condition is not readily

observable, issues of causation are essentially medical

questions, requiring expert medical evidence. See , e.g. , Vero

Beach Care Center v. Ricks , 476 So. 2d 262, 264 (Fla. 1st DCA

1985)("[L]ay testimony is legally insufficient to support a

finding of causation where the medical condition involved is not

readily observable."); Ackley v. General Parcel Service , 646 So.

2d 242, 245 (Fla. 1st DCA 1994)("The determination of the cause

of a non-observable medical condition, such as a psychiatric

illness, is essentially a medical question."); Wausau Insurance

Company v. Tillman , 765 So. 2d 123, 124 (Fla. 1st DCA

2000)("Because the medical conditions which the claimant alleged

had resulted from the workplace incident were not readily

observable, he was obligated to present expert medical evidence

establishing that causal connection."). Here, the opinions of

Doctors Fernandez and Willis were not controverted or shown to

lack credibility. Consequently, it must be resolved that the

cause of Brianna's impairments was most likely a developmentally

based genetic abnormality, as opposed to a "birth-related

neurological injury." See Thomas v. Salvation Army , 562 So. 2d

746, 749 (Fla. 1st DCA 1990)("In evaluating medical evidence, a

judge of compensation claims may not reject uncontroverted

medical testimony without a reasonable explanation.").

The notice issue

10. Apart from issues related to compensability,

Petitioners have sought an opportunity to avoid a claim of Plan

immunity in a civil action, by requesting a finding that the

notice provisions of the Plan were not satisfied by the

Stat. 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 reasonable time prior to

delivery."). Consequently, it is necessary to resolve whether

the health care providers complied with the notice provisions of

the Plan. § 766.309(1)(d), Fla. Stat.; Florida Birth-Related

Neurological Injury Compensation Association v. Florida Division

of Administrative Hearing , 948 So. 2d 705, 717 (Fla.

2007)("[W]hen the issue of whether notice was adequately

provided pursuant to section 766.316 is raised in a NICA claim,

we conclude that the ALJ has jurisdiction to determine whether

the health care provider complied with the requirements of

section 766.316.").

The notice provisions of the Plan

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

Statutes (2005), prescribed the notice requirements of the Plan,

as 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 Neurological Injury Compensation

Plan shall provide notice to the obstetrical

patients 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

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 condition as defined in

s. 395.002(9)(b) or when notice is not

practicable.

12. Section 395.002(9)(b), Florida Statutes (2005),

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 contractions or

rupture of the membranes.

13. The Plan does not define "practicable." However,

"practicable" is a commonly understood word that, as defined by

Webster's dictionary, means "capable of being done, effected, or

performed; feasible." Webster's New Twentieth Century

Dictionary, Second Edition (1979). See Seagrave v. State , 802

So. 2d 281, 286 (Fla. 2001)("When necessary, the plain and

ordinary meaning of words [in a statute] can be ascertained by

reference to a dictionary.").

Resolution of the notice issue

14. When, as here, the Petitioners dispute that the

healthcare providers complied with the notice provisions of the

Plan, "the burden rest[s] on the health care providers to

demonstrate, more likely than not, that the notice provisions of

the Plan were satisfied." Tabb v. Florida Birth-Related

Neurological Injury Compensation Association , 880 So. 2d 1253,

1260 (Fla. 1st DCA 2004). Here, the parties' Pre-Hearing

Stipulation and Stipulated Record (Exhibits 1-22) provide no

such evidence. Consequently, it must be resolved that Lawnwood

Regional Medical Center and William B. King, M.D., failed to

establish they complied with the notice provisions of the Plan,

or that any such failure was excused because the patient

presented in an "emergency medical condition" or the giving of

notice was otherwise "not practicable." 3

CONCLUSIONS OF LAW

Jurisdiction

15. The Division of Administrative Hearings has

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

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

Compensability

16. The Florida Birth-Related Neurological Injury

Compensation Plan was established by the Legislature "for the

purpose of providing compensation, irrespective of fault, for

birth-related neurological injury claims" relating to births

occurring on or after January 1, 1989. § 766.303(1), Fla. Stat.

17. The injured "infant, her or his personal

representative, parents, dependents, and next of kin," may seek

compensation under the Plan by filing a claim for compensation

with the Division of Administrative Hearings within five years

and 766.313, Fla. Stat. The Florida Birth-Related Neurological

Injury Compensation Association, which administers the Plan, has

"45 days from the date of service of a complete claim . . . in

which to file a response to the petition and to submit relevant

written information relating to the issue of whether the injury

is a birth-related neurological injury." § 766.305(3), Fla.

Stat.

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

is a compensable birth-related neurological injury, it may award

compensation to the claimant, provided that the award is

approved by the administrative law judge to whom the claim has

been assigned. § 766.305(6), Fla. Stat. If, on the other hand,

NICA disputes the claim, as it has in the instant case, the

dispute must be resolved by the assigned administrative law

judge in accordance with the provisions of Chapter 120, Florida

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

19. In discharging this responsibility, 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 shall

arise that the injury is a birth-related

neurological injury as defined in s.

766.303(2).

(b) Whether obstetrical services were

delivered by a participating physician in

the course of labor, delivery, or

resuscitation in the immediate post-delivery

period in a hospital; or by a certified

nurse midwife in a teaching hospital

supervised by a participating physician in

the course of labor, delivery, or

resuscitation in the immediate post-delivery

period in a hospital.

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

administrative law judge concludes that the "infant has

sustained a birth-related neurological injury and that

obstetrical services were delivered by a participating physician

at birth." § 766.31(1), Fla. Stat.

20. Pertinent to this case, "birth-related neurological

injury" is defined by Section 766.302(2), to mean:

injury to the brain or spinal cord of a live

infant weighing at least 2,500 grams 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 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 failed to demonstrate that Brianna's

impairments were, more likely than 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 in the immediate postdelivery period in a

hospital." Indeed, the compelling proof established that the

cause of Brianna's impairments was most likely a genetic

abnormality, as opposed to a "birth-related neurological

injury." Consequently, given the provisions of Section

766.302(2), Florida Statutes, Brianna 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 strictly construed to include only

those subjects clearly embraced within its terms."), approved ,

Florida Birth-Related Neurological Injury Compensation

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

22. Where, as here, the administrative law judge

determines that ". . . the injury alleged is not a birth-related

neurological injury . . . he [is required to] enter an order [to

such effect] and . . . cause a copy of such order to be sent

immediately to the parties by registered or certified mail."

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

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

Stat.

Notice

23. Pertinent to this case, the Florida Supreme Court

described the legislative intent and purpose of the notice

requirement, as follows:

. . . the only logical reading 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 given 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 purpose 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. Turner 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

practicable.

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

1997). The Court 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 their 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 provider 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 311. Consequently, the Court concluded:

. . . 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

notice of their

participation in the plan a reasonable time

prior to delivery.

Id. at 309.

24. Also speaking to the issue, the Court in Weeks v.

Florida Birth Related Neurological Injury Compensation

Association , 977 So. 2d 616, 619 (Fla. 5th DCA 2008), concluded:

In summary, we hold that the NICA notice

must be given within a reasonable time after

the provider-obstetrical patient

relationship begins, unless the occasion of

the commencement of the relationship

involves a patient who presents in an

"emergency medical condition," as defined by

the statute, or unless the provision of

notice is otherwise "not practicable." When

the patient first becomes an "obstetrical

patient" of the provider and what

constitutes a "reasonable time" are issues

of fact. As a result, conclusions might

vary, even where similar situations are

presented. For this reason, a prudent

provider should furnish the notice at the

first opportunity and err on the side of

caution.

25. Here, for reasons appearing in the Findings of Fact,

it has been resolved that the hospital (Lawnwood Regional

Medical Center) and the participating physician (Dr. King)

failed to comply with the notice provisions of the Plan.

CONCLUSION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

ORDERED that the claim for compensation filed by

Chontee Joyner and David Joyner, individually, and as parents

and natural guardians of Brianna Renee Joyner, a minor, is

denied with prejudice.

It is FURTHER ORDERED that Lawnwood Regional Medical Center

and William B. King, M.D., failed to comply with the notice

provisions of the Plan.

DONE AND ORDERED this 23rd day of March, 2009, in

Tallahassee, Leon County, Florida.

WILLIAM J. KENDRICK

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone]

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 23rd day of March, 2009.

ENDNOTES

1/ Section 766.316, was amended, effective July 1, 2007, by

Chapter 2007-230, Section 205, Laws of Florida, to substitute a

reference to Section 395.002(8)(b) for the reference to Section

395.002(9)(b) because the definition of "emergency medical

condition" was moved to that subsection.

2/ In its entirety, Section 766.302(2), Florida Statutes,

provides:

(2) Birth-related neurological injury means

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 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.

Here, there is no proof to support a conclusion that Brianna

suffered an injury to the spinal cord that rendered her

permanently and substantially mentally and physically impaired.

Consequently, that alternative need not be addressed.

3/ Although Petitioners raised the notice issue in their

petition, and preserved the issue in the parties' Pre-Hearing

Stipulation, neither NICA nor the hospital addressed the issue

in the Pre-Hearing Stipulation or thereafter. Nevertheless, the

Stipulated Record (Exhibits 1-22) has been reviewed, including

the most likely repositories of such information, if it existed

(Exhibit 1, Medical Records from Dr. William King for

Mrs. Joyner's antepartal care, and Exhibit 2, Medical Records

from Lawnwood Regional Medical Center for Mrs. Joyner's

admission for Brianna's birth). However, that record fails to

contain any evidence that the hospital or Dr. King provided

notice of their participation in the Plan, or that they provided

notice "on forms furnished by the association . . . [that]

include a clear and concise explanation of a patient's rights

and limitations under the plan." The record also fails to

support the conclusion that such failure was excused because the

patient presented in an "emergency medical condition" or the

giving of notice was otherwise "not practicable."

COPIES FURNISHED :

(Via Certified Mail)

Kenney Shipley, Executive Director

Florida Birth Related Neurological

Injury Compensation Association

2360 Christopher Place, Suite 1

Tallahassee, Florida 32308

(Certified Mail No. 7008 3230 0001 6307 8916)

James W. Gustafson, Esquire

Searcy Denney Scarola Barnhart & Shipley P.A.

517 North Calhoun Street

Tallahassee, Florida 32301

(Certified Mail No. 7008 3230 0001 6307 8923)

Adam W. Rhys, Esquire

Wicker, Smith, O'Hara, McCoy & Ford, P.A.

Post Office Box 2508

West Palm Beach, Florida 33402

(Certified Mail No. 7008 3230 0001 6307 8930)

M. Mark Bajalia, Esquire

Brennan, Manna & Diamond

800 West Monroe Street

Jacksonville, Florida 32202

(Certified Mail No. 7008 3230 0001 6307 8947)

Charlene Willoughby, Director

Consumer Services Unit - Enforcement

Department of Health

4052 Bald Cypress Way, Bin C-75

Tallahassee, Florida 32399-3275

(Certified Mail No. 7008 3230 0001 6307 8954)

William B. King, M.D.

1401 North Lawnwood Circle

Fort Pierce, Florida 34950

(Certified Mail No. 7008 3230 0001 6307 8961)

NOTICE OF RIGHT TO JUDICIAL REVIEW

A party who is adversely affected by this Final Order is entitled

to judicial review pursuant to Sections 120.68 and 766.311,

Florida Statutes. Review proceedings are governed by the Florida

Rules of Appellate Procedure. Such proceedings are commenced by

filing the original of a notice of appeal with the Agency Clerk

of the Division of Administrative Hearings and a copy,

accompanied by filing fees prescribed by law, with the

appropriate District Court of Appeal. See Section 766.311,

Florida Statutes, and Florida Birth-Related Neurological Injury

Compensation Association v. Carreras , 598 So. 2d 299 (Fla. 1st

DCA 1992). The notice of appeal must be filed within 30 days of

rendition of the order to be reviewed.