09-001712N Michelle And Chris Johnston, As Parents And Natural Guardians Of Emma Johnston, A Minor vs. Florida Birth-Related Neurological Injury Compensation Association Status: Closed DOAH Final Order on Friday, April 27, 2012.

Summary: Evidence was insufficient to establish that child had a permanent and substantial mental impairment.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MICHELLE AND CHRIS JOHNSTON, as )

parents and natural guardians )

of EMMA JOHNSTON, a minor , )

)

Petitioners , )

)

vs. ) Case No. 09 - 1712N

)

FLORIDA BIRTH - RELATED )

NEUROLOGICAL INJURY )

COMPENSATION ASSOCIATION , )

)

Respondent, )

)

and )

)

SO UTHERN BAPTIST HOSPITAL OF )

FLORIDA, INC., d/b/a BAPTIST )

MEDICAL CENTER, )

)

Intervenor . )

)

FINAL ORDER

Upon due notice, a final hearing was conducted by Ella Jane

P. Davis, an Administrative Law Judge (ALJ) of the Division of

Administrative Hearings (DOAH) on October 24 and 25, 2011, in

Jacksonville, Florida.

APPEARANCES

For Petitioners: Ronald S. Gilbert, Esquire

Colling, Gilber t, Wright, and Carter, LLC

801 North Orange Avenue

Orlando, Florida 32801

For Respondent: Michael A. Kundid, Esquire

Doran, Sims, Wolfe, Ansay and Kundid

1020 West International Speedway

Boulevard Suite 100

Daytona Beach, Florida 32114

For Intervenor: Earl E. Googe, Jr., Esquire

Smith, Hulsey and Busey

1800 Wachovia Bank T ower

225 Water Street

Jacksonville, Florida 32202

STATEMENT OF THE ISSUE

Whether Emma Johnston, a minor, sustained a n injury which is

compensable under the Florida Birth - Related Neurolo gical Injury

Compensati on Plan .

PRELIMINARY STATEMENT

Procedural history

On April 2, 2009, Michelle Johnston and Chris Johnston,

individually and on behalf of Emma Johnston (Emma), filed a

petition (claim) with the Division of Administrative Hearings

(DOAH) to resolve whether Em ma qualifies for coverage under the

Florida Birth - Related Neurological Injury Compensation Plan

(Plan).

DOAH served the Neurological Injury Compensation Association

( NICA ) wit h a copy of the claim on April 3 , 2009; served Southern

Baptist Hospital of Flori da, Inc., d/b/a Baptist Medical Center

(BMC) on April 6 , 2009; and served Evaleen Caccam, M.D., on

April 6 , 2009. The case file reflects all activity thereafter.

Most notable, however, is that upon appropriate motion and

response, a Summary Final Order w as entered on June 15, 2010 .

That Summary Final Order was subsequently vacated by an Order

entered on July 13, 2010. Thereafter, on September 3, 2010, BMC

was granted Intervenor status , and a motion for intervention on

behalf of Dr. Caccam and others was denied without prejudice to

filing a new motion. H owever, there have been no subsequent

motions for intervention .

Previously, NICA had filed its response required by section

766.305(4), Florida Statutes, on August 26, 2009, and thereby

gave notice that N ICA was of the view that the claim was not

compensable because the injury to Emma failed to meet the

definition of birth - related neurological injury as defined in

section 766.302(2). Petitioners had agreed with NICA's

determination of non - compensability . Upon intervention, BMC

claimed that Emma sustained a birth - related neurological injury

as defined in section 766.302(2).

After a period for discovery, t he case proceeded to final

hearing on October 24 and 25, 2011.

Petitioners , who seek to recover out side the Plan, in

circuit court, have consistently declined to invoke the statutory

presumption in favor of compensability , as is their prerogative .

See § 766.309(1)(a) , Fla. Stat., and Bennett v. St. Vincent's

Med . Ctr. , 71 So. 3d 828 (Fla. 2011 ).

The r ecord

At final hearing, the parties' Prehearing Stipulation was

admitted in evidence as ALJ Exhibit 1. (TR 9 - 10) . Intervenor

BMC presented the oral testimony of Thomas Paul Naidich, M.D.,

Keith Jackson Peevy, M.D., and Ira T. Lott, M.D. Petitioners and

NICA presented no oral testimony. Intervenor BMC's Exhibits 1 -

16, 17A and 17B, 18 - 24, and 27 - 31 were admitted in evidence.

There is no I ntervenor's I - 25 or I - 26. Petitioners' Exhibits 16 -

19 and Respondent NICA's Exhibits 1 and 2 were likewise admitted

i n evidence. 1 /

Post - hearing procedure

The t ranscript of final hearing was filed on Nove mber 8,

2011. Upon stipulations , the parties were granted until

December 15, 2011, in which to file their respective proposed

final orders. All proposals have been co nsidered.

The parties' respective positions and the burden of proof

Notice is not an issue in this case.

Petitioners and NICA take the position that the claim is not

compensable because the injury that Emma sustained was not the

result of oxygen deprivatio n or mechanical injury occurring in

the course of "labor, delivery, or resuscitation in the immediate

postdelivery period in a hospital" (the statutory period ).

Petitioners and NICA further take the position that the claim is

not compensable, because Emma did not sustain a permanent and

substantial mental impairment. S ee § 766.302(2) , Fla. Stat.

Intervenor BMC takes the position that Emma's injury is

compensable, in that she suffered oxygen deprivation to her brain

within the statutory period resulting in a permanent and

substantial mental impairment.

No party contends that Emma did not suffer a permanent and

substantial physical impairment.

As proponents of the issue, the burden of proof as to

compensability is upon BMC. Balino v. Dep't of Health and Rehab.

Servs. , 348 So. 2d 349, 350 (Fla. 1st DCA 1997). Petitioners did

not assert the presumption of compensability , which is provided -

for by section 766.309(1)(a), and which may be exercised by the

Petitioners/claimants only . This presumption is not a vailable to

the other parties. See Bennett , supra .

FINDINGS OF FACT

Stipulated and t hreshold m atters

1. Petitioners, Michelle Johnston and Chris Johnston, are

the parents and natural guardians of Emma Johnston, a minor.

2. BMC is a Florida - licensed hos pital, participating in the

NICA plan.

3 . Emma was born at BMC on June 6, 2007.

4 . Emma was delivered vaginally.

5 . Obstetrical services were delivered by Evaleen Caccam,

M.D., who was a participating physician in the NICA Plan at all

times material.

6 . Emma was the result of a single gestation, and her birth

weight was in excess of 2,500 grams.

7 . Emma is permanently and substantially physically

impaired.

The timing and nature of Emma's i njury

8 . Mrs. Johnston's pregnancy with Emma was essentially

uneventful . S he suffer ed gestational diabetes, controlled by

diet, and slight ly more than average amniotic fluid (mild

polyhydramnios) , neither of which has been linked to an adverse

effect on Emma.

9 . Mrs. Johnston had a reassuring non - stress test on

Ma y 29, 2007, and she was seen at Faben OB/GYN for a routine

appointment on June 5, 2007, at 37 weeks' gestational age. A

non - stress test at that time also was reassuring. At

approximately 9:30 p.m., that night , Mrs. Johns t on experienced a

s pontaneous rupt ure of membranes, with light meconium staining.

10. There is no evidence that Emma inhaled meconium below

the vocal cords or that she suffered meconium aspiration

syndrome.

11 . Shortly before 10:30 p.m., June 5, 2007, Mrs. Johnston

was admitted to BMC. Fetal monitoring by an external belt was

initiated. The initial nursing assessment recorded that

Mrs. Johnston reported normal fetal movement and no problems.

For an hour after admission, the fetal heart rate pattern was

reactive, with no decelerations .

12 . At 12:40 a.m., June 6, 2007, the fetal heart rate

decreased to 50 beats per minute, but quickly returned to

baseline. Nurses' notes reveal that between 12:40 a .m. , and

7:00 a.m., there were variable decelerations in the fetal heart

rate and occasio nal e levations in Mrs. Johnston's blood pressure.

Measures to support the fetal heart rate included IV fluids,

oxygen , and repositioning the mother.

13 . Emma w as delivered vaginally at 1:06 p .m., on June 6,

2007, with the nuchal cord looped around her n eck one time. Her

birth weight was 3,102 grams and her growth was li s ted as

appropriate for her gestational age. However, she was hypotonic

(floppy) and not breathing.

14 . Apgar scores were two at one minute; three at five

minutes; and five at 10 minute s. The barely acceptable "five at

10" score probably was not simultaneous with bag and mask

ventilation , as suggested by some of the examination/cross -

examination of witnesses, but it clearly occurred after mask

ventilation , probably occurred simultaneous ly with blow - by

oxygen, and certainly was achieved only by resuscitative efforts

of medical personnel. Emma's respiration continued t o fail while

in the delivery room and before her admission to the newborn

intensive care unit (NICU) at nine minutes of li fe . On admission

to NICU, Emma was described as cyanotic (blue) and limp , with

poor perfusion and no respiratory effort. Also, intubation and

mechanical ventilation was accomplished immediately upon

admission to the NICU and continued for hours . Thus, i t is clear

that Emma was not stabilized in the delivery room ; that

resuscitation was continuous in various forms for hours after

birth ; that even the depressed Ap gar scores were "assisted" ; and

that there was an extended resuscitative period beyond the

del ivery room . See Orlando Reg. Healthcare Sys., Inc. v. Fla.

Birth - Related Neurological Injury Comp. Ass'n , 997 So. 2d 426

(Fla. 5th DCA 2008).

15 . Emma's arterial cord blood gas showed evidence of

significant acidosis, with a pH of 7.10, HC0 3 of 18, and b ase

excess of minus 13.

16 . At 1:33 p.m., an arterial blood gas showed pH of 7.08,

HC0 3 of 11, and base excess of minus 19. Blood work drawn at

2:03 p.m., show ed a lymphocyte count of 11,266 K per microliter,

and nucleated red blood cells (NRBC s) of 4,7 26 thousand per

microliter. Both readings were elevated, consistent with recent

significant stress.

17 . At 3:00 p.m., June 6, 2007, Emma was noted to have

stiffening of her a rms (posturing), suggestive of seizure.

18 . At 6:00 p.m., Emma was extubated to room air. She was

noted to have a desaturation and apnea. Blow - by oxygen was

administrated. Posturing was again noted. Phenobarbital was

administrated for seizure , but later discontinued .

19 . On June 6, 2007, Emma continued to experience

respiratory depression, metabolic acidosis, possible sepsis,

possible seizures, hypotension, hypoperfusion, and hypoglycemia.

20 . At 1:30 a.m. , on June 7, 2007, Emma's calcium was 5.0

(critically low). Measures of her kidney function were also

abnormal, with her BUN at 22 (high) and her creatinine at 1.2

(high). At 5:00 a.m. , her calcium was 6.3 (critically low), BUN

was 20 (high), cr e atinine was 1.0 (high), AST was 91 (high), and

ALT was 99 (high). At 2:46 p.m., the level of lactic acid in her

blood remained eleva ted at 2.8 (high). At 11:05 p.m. , her

calcium was 6.9 (low).

21 . Emma's lab values on June 8, 9, 10, and 11, show values

reflective of possible hypoxia.

2 2 . Emma remained in the NICU for 56 days. She suffered

feeding difficulties beginning at birth, had difficulty sucking

and swallowing, and ultimately required the insertion of a G - tube

for feeding.

23 . O n June 7, 200 7 , when Emma was 11 hours old, an MRI was

performed. BMC 's reading radiologist reported that:

On diffusion weighted images, the cerebr al

cortex appears more bright than normally

seen. It has dark signal on ADC map images .

On T2 weighted images, no abnormal signal is

seen in the same regions of the cortex. On

T1 weighted images, the cortical signal is

normal. Significance of these fin dings is

not certain . They probably represent normal

variation. Diffuse laminar necrosis or

infarct may produce some of the findings but

felt to be less likely.

The pituitary gland, corpus callosum and

cervicomedullary junction region appear

normal .

A focal blooming artifact is seen in the

superior portion of the right cerebellar

hemisphere on MPGR sequence. No

corresponding signal abnormality is seen at

this level on T1 weighted images to suggest a

hemorrhage. It may represent slow flowing

vessel.

S ize and configuration of the ventricles and

other CSF spaces appear unremarkable

considering patient ' s age.

IMPRESSION

1. Signal changes noted in the cerebral

cortex are difficult to explain. They may

represent normal variation.

2. A blooming artifact seen in the

cerebellar hemisphere of the right side is

probably secondary to slow flowing vessels.

(emphasis added).

2 4 . On July 1 3 , 2007, between 5 and 6 weeks of life, Emma

underwent another MRI. BMC's Christopher Zaleski, M.D.'s

narrative report com pared it to the June 7, 2007 , MRI. His

report reads, in pertinent part:

There are no areas of restricted diffusion

within the brain parenchyma. The midline

structures of the corpus callosum, pituitary

gland and cerebellar vermis are within normal

limits .

No abnormal bright signal in the distribution

of the paranasal sinuses or mastoid air

cells. Orbital structures are symmetric and

within normal limits .

No mass effect or midline shift. The

ventricular system is not dilated. The extra -

axial CSF spaces are symmetric in size and

are appropriate for the patient ' s age.

Myelination pattern is appropriate for the

patient's age as well. No evidence of

breakdown products of hemorrhage within the

ventricular system or within the brain

parenchyma.

No other str uctural anomalies. Thin section

T2 inversion recovery coronal images obtained

through the temporal lobes demonstrate

symmetry of signal intensity and

configuration of the hippocampi.

Axial T1 weighted images demonstrate

appropriate distribution of myelin ati on in

th is patient aged 5 weeks .

CONCLUSION

1. Resolution of scalp soft tissue swelling.

2. Normal myelination with no structural

anomaly or intracranial hemorrhage.

25 . Emma underwent a third MRI on January 14, 2009, at age

19 m onths, which was in terpreted by the same physician (Dr. Gore)

who reviewed her first MRI . He found this MRI to be

"unremarkable."

26 . In initially denying Emma's parents' claim, NICA

relied, in part, upon the opinion of Dr. Donald C. Willis , a

board - certified obstetricia n with special competence in maternal -

fetal medicine. Dr. Willis reviewed only the narrative reports

connected to the MRIs, and did not see or interpret the actual

MRI film s. He reported to NICA that his records review suggested

a birth - related hypoxic i njury, but that the MRI failed to

demonstrate hypoxic ischemic encephalopathy, and that , therefore,

significant hypoxic injury to Emma's brain was unlikely.

However, by a later deposition, Dr. Willis testified, in

pertinent part, as follows:

. . . s pecifi cally in this case I don't have

anything to tell me that when the patient

[Mrs. Johnston] was admitted to the hospital

the baby had any substantial brain injury at

that point. The fetal heart rate tracing had

a normal baseline. Reactivity was

appropriate .

So when the baby was first placed on the

monitor when the mother was admitted to the

hospital in labor I don't have anything there

to suggest that the baby had any suggest ed

brain injury that had occurred prior to that.

(I - 29 ; Willis Depo. p ages 38 - 39 ) .

***

. . . To be honest with you as I was reading

this case I thought this was going to be just

a clear abnormal fetal heart rate tracing,

baby was born depressed. The cord pH was not

quite as acidotic as I was expecting it to be

based on all the oth er information ; but , the

base deficit was high enough to be consistent

with a hypoxic event sufficient to cause

severe brain injury.

T he hospital course for this baby is fairly

characteristic, in my opinion, for a baby

that had oxygen deprivation and br ain injury

during labor and delivery. You have seizures

and feeding disorders. I have been reviewing

these cases for 10 years now and I got used

to the findings the babies have in that

newborn cou r se when they have significant

brain injury, and these are the types of

things we see.

But t he MRI, you know, kept saying normal.

And as you know , without some abnormality on

that MRI consistent with oxygen deprivation I

just could not say that the baby's brain

injury was due to the oxygen deprivation

during labor and delivery. Yes, I think the

baby had oxygen deprivation during labor and

delivery and immediate post delivery period,

but it was the normal MRI that kept me from

saying that was the reason for the baby's

brain injury . (I - 29 ; Willis Depo. p ages 4 3 -

44) . (emphasis added).

***

2 7 . Nonetheless, Dr. Willis deferred to a qualified

neuroradiologist for interpretation of the actual MRIs.

28. In denying the claim, NICA also initially relied on the

opinion of Dr. Michael Duchowny, a pediatric neurologi st who

examined Emma and reported that, in his opinion, Emma did not

suffer oxygen deprivation and damage to her brain during the

statutory period because he did not see any structural damage to

her brain, and further concluded that her problems must be

co ngenital . This portion of his opinion was not significantly

altered in his subsequent two depositions . Dr. Duchowny also

only reviewed the MRI narratives, not the MRI films.

29 . Keith Jackson Peevy, M.D., practices neonatal - perinatal

medicine , as part o f a neonatal intensive care unit with up to

100 infants , which involves care of sick newborns and

consultation with obstetricians and primatologists about in utero

issues. Testifying live at hearing on behalf of Intervenor BMC,

Dr. Peevy concluded that Mr s. Johnston's gestational diabetes,

mild polyhydram ni os, and light meconium staining was immaterial

to Emma's situation . According to him, Emma's abnormal lab

values at birth (cord blood gas, arterial blood gas, NRBCs,

calcium, and lymphocytes) were consi stent with oxygen deprivation

during labor and delivery , and he concluded that Emma suffered

hypoxic ischemic encephalopathy (HIE) between her mother's

hospital admission in labor and her birth. While Dr. Peevy

relied on the fetal monitor strips to conclu de that Emma's HIE

occurred as a result of oxygen deprivation during labor, he

conceded that the fetal monitor strips did not demonstrate, and

therefore he could not conclude that, there had been a sentinel

event of hypoxia during labor. He further conclu ded that it is

more probable than not that Emma suffered subtle , but protracted ,

hypoxic ischemic injury in the period between her mother's

hospital admission and her delivery , an opinion echoed by another

witness, Dr. Pinshaw ( see Finding of Fact 38 ) .

3 0 . Ira T. Lott, M.D. , is a board - certified pediatric

neurologist , with special competence in child neurology, who

testified on Intervenor's behalf, and who also, upon a records

review, was unable to pinpoint a sentinel event during labor,

delivery, or res uscitation in the immediate postdelivery period

when oxygen deprivation to Emma's brain had occurred.

Nonetheless, he concluded that Emma had suffered substantial

permanent neurological injury due to oxygen deprivation during

labor and delivery, based upo n the fetal monitoring strips, Apgar

scores, lab results (especially the acidosis), EEGs , and seizure

activity.

3 1 . Intervenor B MC also presented at hearing the live

testimony of Thomas Paul Naidich , M.D., a board - certified

pediatric neuroradiologist. Dr . Naidich is the Director of

Neuroradiology at Mount Sinai Medical Center and the Albert

Einstein School of Medicine, where he is vice - chairman of

radiology for academic affairs, professor of radiology and

neurosurgery, and endowed chair for research in ne uroscience and

neuroimaging. He is a founding member and p a st - president of the

America n Society of Pediatric s and Neuroradiology and helps

administer board certification examinations for radiologists and

neuroradiologists. Dr. Naidich compared Emma's thr ee MRI film s

with those of healthy babies of similar age . He testified that ,

in his expert opinion, and contrary to the reports of all BMC

personnel who contemporaneously reviewed her MRIs, Emma had

suffered progressive hypoxic ischemic brain damage as ev idenced

by the abnormal brightness seen initially on the MRI taken the

day after her birth. ( See Finding of Fact 23. )

3 2 . In Dr. Naidich's opinion, based on the type of damage

to Emma's brain , th e damage to her brain had occurred during " the

perinatal period , " which period he considered to be in the course

of labor and/or delivery. That said, Dr. Naidich also was unable

to point to any indication of fetal distress on the fetal monitor

strips or to any sentinel hypoxic event identifiable by any

means , i ncluding MRI, which had occurred during labor, delivery,

or resuscitation in the immediate post delivery period.

Nonetheless, he noted that MRIs do not necessarily pinpoint , in

time , hypoxic events, ischemic damage, or even births.

3 3 . The early MRIs we re, at best , inconclusive , and

Dr. Naidich's testimony is persuasive to the effe ct that Emma's

brain suffered injury at some point at or around birth. However,

in addition to Dr. Naidich's testimony, the undersigned

attributes considerable weight to the r eassuring stress test the

morning before labor began and to the several records, as

explained by various witnesses, which show no signs of fetal

damage or of maternal symptoms preced ing Mrs. Johnston's

admission to the hospital and the commencement of labo r , and to

the encephalograms ( EEGs ) and other tests described hereafter

which likewise suggest that, more likely than not, an hypoxic

brain injury occurred during labor, delivery, or resuscitation.

3 4 . Indeed, Emma had under gone an EEG on June 7, 2007 , th e

second day of life . It was abnormal and compatible with a

diffuse multifocal encephalopathy, which could be caused by

hypoxia or hypoperfusion (abnormally low blood flow). Later that

day, Dr. Islam, a pediatric neurologist , suggested that Emma

could ha ve an underlying infectious, metabolic or hypoxic injury.

However, records show t he EEG on June 12, 2007 , was "suggestive

of an immature or dismature state, most likely seen secondary to

global hypoxia, ischemia, infection, metabolic abnormali ties or

othe r global insults."

3 5 . Evidence further persuasive to a finding that Emma

suffered oxygen deprivation during labor, delivery, and /or the

immediate postdelivery resuscitative period is the evidence that

on June 14, 2007, Dr. Anthony Perszyk from the Geneti cs service

of Nemours Children's Clinic examined and tested Emma, reviewed

her MRIs, and concluded that the MRIs showed "diffuse hypodensity

suggesting hypoxic ischemic changes, acute more likely but

subacute possible," and was unable to identify a genetic or

metabolic cause for Emma's problems.

3 6 . A chromosome analysis also has disclosed no genetic

disorder.

3 7 . Emma was subsequently seen at the Genetics Clinic at

Nemours by Laura Marin, M.D. , on March 20, 2008 , and May 16,

2008. Testing and extensive inquiry into family history did not

identify a specific genetic or metabolic problem.

3 8 . Alan Pinshaw is a board - certified obstetrician -

gynecologist , 2/ with a 40 - year career in all phases of pregnancy,

labor, and delivery. He is a Harvard Medical Schoo l p rofessor,

teaching obstetrics and gynecology to residents and medical

students . Dr. Pinshaw t estified by deposition , and among the

witnesses , most clearly explained what probably happened to Emma .

He found no abnormalities to have occurred during Mrs. Johnston's

pregnancy to account for Emma's condition, observing that the

non - stress tests showed that the baby was in good condition at

those points in time and receiving adequate oxygenation; the

meconium staining , polyhydramnios , and gestational diabete s were

not significant; and the initial fetal heart tracings were

initially reassuring. Although Dr. Pinshaw gave prenatal

acquisition of Emma's condition a one percent chance, he believed

prenatal acquisition of it to be improbable and not within a

reaso nable medical probability.

3 9 . In Dr. Pinshaw's opinion, t he later deep, persistent

decelerations and fetal tachycardia observed on the fetal heart

rate monitor strips demonstrated that the baby was "stressed" and

was attempting to compensate for the de celerations. The

decreased beat - to - beat variability on the fetal heart rate

monitor strips was another adverse sign. Together , these factors

evidenced decreased oxygenation to the baby during labor. Based

upon the subsequent course of labor, delivery, a nd particularly

Emma's condition at birth and her worsening condition immediately

thereafter , plus the EEG evidence, it was Dr. Pinshaw's view that

Emma's situation is consistent with her having suffered a n

hypoxic brain injury during the statutory period .

40 . Specifically, Dr. Pinshaw testified:

. . . Firstly, duri n g every labor, there's a

decrease in oxygen delivery during uterine

contractions. That -- that is normal

physiology. There will be reduced oxygen

delivery to the fetus during uterine

contract ions. And before the next uterine

contraction occurs, ther e is recovery of that

relative oxygen deprivation so that y o u go

back to baseline; you don't incur an oxygen

debt.

It's only when with recurrent small

oxygen debts that are not paid back that you

incur an overall oxygen deprivation resulting

in the formation of the acid products that I

was talking about in a baby being born in an

oxygen - deprived state or in a -- hypoxic

state. But it is quite normal for many

episodes of oxygen deprivation. T hat's quite

normal during labor. But the point is, is

this oxygen debt or this oxygen deprivation

corrected after the uterine contraction, and

under normal circumstances it is.

So if you're asking me whether during

these variable decelerations there was

relative hypoxia, the answer's yes, you would

expect it. But if you look at the fetal

heart rate tracing thereafter, it starts to

look -- look fairly reassuring, suggestive of

the fact that whatever hypoxia did occur

during that variable deceleration is

temporary.

L ater in this fetal heart rate tracing,

the baby loses that ability to recover to a

fetal heart rate tracing that is normal. And

the fetal heart rate tracing at that point

exhibits a tachycardia, fetal tachycardia,

which is not normal , so you can conclude that

the baby at that stage has hypoxia. (I - 18 ;

I - 28; P - 19 , pages 66 - 67) .

***

. . . you have a series of variable

decelerations, and it's during those variable

decelerations that there's decreased oxygen

delivery, which eventually, in my opinion,

outstrips the ability of the baby to

compensate to a normal fetal heart rate

tracing, and it develops a tachycardia.

***

. . . There's a debt that's accumulated and,

in a healthy situation, paid off immediately,

so that you restore the ox ygen status. But

too many variables, too -- if they're too

long or too deep or too many, it gets beyond

the ability of the fetus to compensate, and

that's when you'll get a tachycardia. And

that's what eventually, in my opinion,

happens in this case. ( I - 18 ; I - 28; P - 19,

p ages 70 - 71) .

4 1 . Having considered and weighed all the testimony and

exhibits, it is found that Dr. Pinshaw's explanation is credible

and fits all of the facts as estab lished by the other credible

competent evidence.

4 2 . Finally, t he credible, competent evidence as a whole

supports a finding that Emma's brain suffered injury from oxygen

deprivation occurring in the course of labor, delivery, or

resuscitation in the immediate postdelivery period in the

hospital.

Permanent and substant ial mental impairment

4 3 . In initially denying the claim, NICA relied on the

opinion of Dr. Duchowny, who examined Emma on August 5, 2009,

when she was two years old . At that time , Dr. Duchowny rend ered

an opinion by contemporaneous letter . The portion thereof

addressing Emma's mental status reads:

In SUMMARY, Emma's neurological examination

reveals evidence of cognitive delay together

with generalized hypotonia and congenital

nystagmus and an alternating esotropia.

[cross - eye] In addition, Emma demons trates

somatic abnormalities including epicanthal

folds and a high arched p a late. These

findings are consistent with a diagnos i s of

hypotoni a ataxic cerebral palsy.

4 4 . Thereafter, Dr. Duchowny was deposed, on November 12,

2009, and testified in pertine nt part:

Q: Following your examination and review of

the records that were provided you, did you

formulate an opinion as to whether or not

Emma Johnston has permanent and substantial

mental or cognitive impairment .

A: [Dr. Duchowny] I think that is more

difficult to say. She clearly is delayed

with respect to her speech. But in truth, I

think it is too soon to say that she has a

permanent and substantial cognitive

impairment. I guess I'm stopping short of

saying that ultimately it will be

substantial .

Q: Okay. At what age would you anticipate

that you would be able to reach an opinion

that a cognitive impairment is both permanent

and substantial, if it ultimately is such?

A: The best time would be age six. You

could probably come close to that by age

four. But to be definitive, age six years.

(emphasis added). (I - 30 ; Depo. page 24).

4 5 . Dr. Trevor Resnick , another board - certified pediatric

neurologist and a colleague of Dr. Duchowny, examined Emma on

December 10, 2010, when she was three an d a half - years - old.

Dr. Resnick prepared a December 14, 2010, letter opinion largely

directed to Emma's physical impairments. However, by this l etter

opinion , dated December 14, 2010, and stipulated in evidence

(Intervenor's Exhibit 17A) , Dr. Resnick sta ted, in relationship

to Emma's mental status :

***

PHYSICAL EXAMINATION: Emma was interactive

and demonstrated good eye contact during the

examination. . . . Head shape was

normal. . . .

NEUROLOGICAL EXAMINATION: She was alert

during the evaluation . She smiled

interactively occasionally. She did not make

sounds or say any words. She did not

demonstrate any comprehension. . . .

ASSESSMENT: Emma's neurological status is

characterized by marked and diffuse

hypotonia, cognitive impairment and

nysta gmus. She also has a high arched plate

and epicanthic folds. Her neurological

deficits are permanent in nature . (I - 17A).

4 6 . Hypotonia (floppiness) and nystagmus (rapid eye

movement) have not been shown to be prognosticators of mental

impairment, nor are a high - arched palate and ep ic anthic folds

(extra creases in the eyelid) significant in assessing cognition .

4 7 . At the request for greater detail from Intervenor 's

counsel , Dr. Resnick issued the same letter later the same day

with a little more detai l , and includ ed an opinion with regard to

permanency and substantial ity of Emma's mental and physical

impairments. This item was designated Exhibit I - 17B.

Dr. Resnick was never deposed and did not testify at hearing.

4 8 . Dr. Willis had no independent op inion on the impairment

issue.

4 9 . Dr. Naidich conceded that he was not qualified to

render any opinion with regard to whether or not Emma had

suffered a permanent and substantial impairment , mental or

physical.

50 . Dr. Pinshaw also had no opinion as to whether or not

Emma had suffered a permanent and substantial impairment.

5 1 . Dr. Peevy first stated that he had no independent

opinion as to whether or not Emma had suffered a permanent and

substantial impairment , mental or physical, but u pon cross -

examin ation, he conceded that, to the extent that he had such an

opinion, that opinion was not based upon any examination or tests

of his own and that he had merely accepted the opinions of

Drs. Duchowny and Resnick.

5 2 . Dr. Lott also stated that he had no in dependent opinion

on the impairment issue, but had relied on the opinions of

Drs. Duchowny, Willis, and Resnick .

5 3 . To one degree or another, any opinion by Drs. Peevy and

Lott, as to whether or not Emma has a mental impairment and

whether or not Emma's mental impairment, if any, rises to the

level of being permanent and substantial , was dependent upon

Intervenor's Exhibit 17B, the second letter - opinion of Drevor

Resnick. Dr. Resnick's second letter was objected - to and

admitted over objection as is a ppropriate in chapter 120

proceedings , but it has not been considered as evidence for

purposes of making a finding of fact , and the following findings

of fact reflect that situation . 3/

5 4 . On March 29, 2011, Dr. Duchowny was deposed a second

time . At tha t date, in reliance on Exhibit I - 17B , he testified

substantially differently than he had in his previous deposition .

Accordingly, t hat altered testimony of Dr. Duchowny also may not

be used for a f inding of f act. 4/

5 5 . The undersigned has carefully perus ed the record for

any objective evidence of Emma's mental state at the present

time. Such evidence is slim. The record as a whole reveals that

h er head size at birth and at various stages of growth has been

measured and found to be within normal limits. In other words,

she is not microcephalic, and her head may be expected to grow to

accommodate her brain as her brain grows. She has a high arched

palate , her eyelids have epicanthal folds, and she has nystagmus ,

but up to 30 percent of the normal populat ion may have one or

more of these variations.

56. There is no anecdotal evidence from parents or teachers

in this record by which one might assess the ability or lack of

ability to learn .

57 . The stipulated paper record is extensive but mostly

direct ed to physical improvement strateg ies . It reveals that

Emma has undergone occupational therapy, speech therapy, and

physical therapy, but precisely what these therapies entail ed and

how successful or unsuccessful they were is not clear . There

also do not seem to be any standardized test results.

58 . Reports in evidence suggest that a t least up until her

third year , Emma was meeting her developmental milestones, but

meeting them late. There is evidence that she is sometimes

hysterical when in groups of people or with her brother. There

is evidence that she has developmental delays, but there is no

clear assessment of the degree or nature of those delays .

59 . A July 19, 2011, report by David Childers, M.D., of the

University of Florida Developmental Pediatric Program states Emma

had no communication at age four and was only able to smile or

cry to express emotions. However, his report adds that she is

making only slow progress with the help of speech therapy,

physical therapy, and occupational therap y, so apparently at that

time , at least, she was making some progress. There is no

qualified expert opinion to the effect that Emma cannot translate

her cognitive capabilities into adequate learning or social

development. Emma has cerebral palsy but many children with

cerebral palsy are capable of learning. 5 /

60 . Given the foregoing and the absence of any presumption

of permanent and substantial mental impairment , Intervenors have

failed to meet their burden to establish that Emma's mental

impairment i s permanent and substantial.

CONCLUSIONS OF LAW

61 . The Division of Administrative Hearings has

jurisdiction of the parties and subject matter of this cause.

§§ 766.301 - 766.316, Fla. Stat.

62 . The Florida Birth - Related Neurological Injury

Compensation P lan was established by the Legislature "for the

purpose of providing compensation, irrespective of fault, for

birth - related neurological injury claims" relating to births

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

63 . The injured infant, her or his personal representative,

parents, dependents, and next of kin, may seek compensation under

the plan by filing a claim for compensation with the Division of

Administrative Hearings. §§ 766.302(3), 766.303(2), and

766.305(1), Fla. Stat. The Flor ida 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 submit relevant

written information relating to the issue of whether the injury

is a birth - related neurological injury." § 766.305(4), Fla.

Stat.

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

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

compensation to the claimant, provid ed that the award is approved

by the Administrative Law Judge to whom the claim has been

assigned. § 766.305(7), 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 Admini strative Law Judge in

accordance with the provisions of chapter 120, Florida Statutes.

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

65 . In discharging this responsibility, the ALJ must make

the following determinations based upon all 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 mec hanical

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. 766.302(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 teaching hospital supervised by a

participating phy sician in the course of

labor, delivery, or resuscitation in the

immediate postdelivery period in a hospital.

§ 766.309(1), Fla. Stat.

66. An award may be sustained only if the ALJ concludes

that the "infant has sustained a birth - related neurologica l

injury and that obstetrical services were delivered by a

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

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

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

Injury to the brain or spin al 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 an infant

permanently and substantially mentally and

physically impaired. This definition shall

apply to live births only and shall not

include disability or deat h caused by genetic

or congenital abnormality.

6 8 . Both the brain injury and the oxygen deprivation that

renders the child permanently and substantially mentally and

physically impaired must occur during the statutory period. See

§ 766.302(2), Fla. St at. See also Bennett v. St. Vincent's Med.

Ctr., Inc. , 71 So. 3d 828 (Fla. 2011); Nagy v. Fla. Birth - Related

Neurological Injury Comp. Ass'n , 813 So. 2d 155 (Fla. 4th DCA

2002). Cf. Orlando Reg. Healthcare Sys., Inc. v. Fla. Birth -

Related Neurological In jury Comp. Ass'n , 997 So. 2d 426 (Fla. 5th

DCA 2008).

6 9 . Herein, t he parties have stipulated that a physician

participating in NICA delivered services in the statutory period,

and that Emma is permanently and substantially physically

impaired . G iven the evidence, it is not reasonably debatable

that Emma suffered oxygen deprivation to her brain in the

statutory period described in section 766.302(2). Still,

inasmuch as both physical and mental impairments are required to

establish compensability , the ALJ must address whether or not

that oxygen deprivation during the statutory period has produced

in Emma a permanent and substantial mental impairment. Fla.

Birth - Related Neurological Injury Comp. Ass'n. v. Fla. Div. of

Admin. Hearings , 686 So. 2d 1349, 1356 (Fla. 1997); Masterton v.

Fla. Birth - Related Neurological Injury Comp. Ass'n. Case 08 -

6032N (Fla. DOAH FO Jan. 29, 2010) (Corrected Final Order).

70 . Herein, Petitioners declined to take advantage of the

rebuttable presumption found at section 766.309(1 )(a), and a s the

proponent of the issue, the burden rested on Intervenor to

demonstrate that Emma suffered a "birth - related neurological

injury." § 766.309(1)(a), Fla. Stat. See also Balino v. Dep't

of Health and Rehab. Servs. , 348 So. 2d 349, 350 (Fla. 1st DCA

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

asserting the affirmative of an issue before an administrative

tribunal.").

71 . Herein, t he proof supported a finding of brain injury

by oxygen deprivation during the statutory peri od , and the

parties stipulated that Emma was permanently and substantially

physically impaired, but the proof fell short of establishing

that Emma has sustained a permanent and substantial mental

impairment. Consequently, given the provisions of section

7 66.302(2), Emma does not qualify for coverage under the NICA

Plan. See also §§ 766.309(1) and 766.31(1), Fla. Stat. Humana

of Fla., Inc. v. McKaughan , 652 So. 2d 852, 859 (Fla. 5th DCA

1995)("[B]ecause the Plan . . . is a statutory substitute for

common law rights and liabilities, it should be strictly

construed to include only those subjects clearly embraced within

its terms."), approved, Fla. Birth - Related Neurological Injury

Comp. Ass'n v. McKaughan , 668 So. 2d 974, 979 (Fla. 1996).

72 . It may be "int uitive" that with her severe physical

impairments, Emma's intellect is not "normal , " but these

proceedings require proof of the impairment, if any, and the

measure of an impairment under the Plan is not how a normal child

behaves or competes, but rather, w hether his mental and physical

injuries are "substantial," a benchmark far below the norm. 6 /

"Intuition" is insufficient , and affirmative proof of substantial

mental impairment is required. See also Bennett , supra .

73 . The Legislature has expressed its intent in section

766.301(2), as follows:

It is the intent of the Legislature to

provide compensation, on a no - fault basis,

for a limited class of catastrophic injuries

that result in unusually high costs for

custodial care and rehabilitation. This

plan s hall apply only to birth - related

neurological injuries. (emphasis added).

74 . Given the Legislature's intent to restrict no - fault

coverage under the Plan to "a limited class of catastrophic

injuries," it is concluded that the word "substantially," as us ed

in the statutory phrase "permanently and substantially mentally

and physically impaired," denotes a "catastrophic" mental and

physical injury, as opposed to one that might be described as

"mild" or "moderate."

75 . Applying the foregoing standards to t he facts of this

case, it must be concluded that Intervenor has not borne its

burden to show that Emma is permanently and substantially

mentally impaired . T herefore , she cannot be said to have

suffered a "birth - related neurological injury" as defined by

s tatute.

CONCLUSION

Based upon the foregoing Findings of Fact and Conclusions of

Law, it is

ORDERED that t he claim for compensation filed by

Michelle Johnston and Chris Johnston , on behalf of and as parents

and natural guardians of Emma Johnston , a minor , is hereby

dismissed with prejudice.

DONE AND ORDERED this 27th day of April , 2012 , in

Tallahassee, Leon County, Florida.

S

ELLA JANE P. DAVIS

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Buildi ng

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 27th day of April , 2012 .

ENDNOTE S

1 / Many exhibits in evidenc e are somewhat duplicative or

redundant of the live testimony a nd are more fully described as:

ALJ Exhibit 1 : The Prehearing Stipulation - - interlineated by

ALJ to conform to the parties' oral representations at hearing;

I - 1: Obstetrical Records of Mich elle (Ball a rd) Johnston from

Faben OB/GYN, Inc. , A00001 - 000150; I - 2: 6/5/07 Baptist Medical

Center (BMC) Delivery Admission Records of Michelle Johnston,

Including Fetal Monitoring Strips; I - 3: 6/6/07 to 7/22/07 BMC

Visit List for Emma Johnston (single p age); I - 4: Seven

photographs of Emma; I - 5: 6/6/07 to 7/22/07 BMC Birth Records on

Emma Johnston B000244 - 000834, B000835 - 0001399; I - 6: Two BMC

Radiology Records (CDs) and Studies/CVs - MRI June 2007, July 2007,

January 2009; I - 7: Genetic Consultation Report pre pared by

Dr. Persyk B000898 - 900; I - 8: 7/31/07 to 12/22/10 Medical Reports

of Baptist Pediatrics C000001 - C000349; I - 9: 7 /5/07 to 9/9/10

Medical Records of Children's Clinic C000243 - 348 ; I - 10: 2/23/10

to 6/1/10 Medical Records of New Heights of Northeas t Florida

C000350 - 357; I - 11: 6/7/07 to 2/11/10 Medical Records of

Dr. Monica Islam C000358 - 399; I - 12: 8/6/09 to 1/28/11 Medical

Records of Florida School for the Deaf & Blind C000400 - 615; I - 13:

11/8/07 to 7/11/08 Medical Records of A Children's Therapy,

Inc., C000616 - 627 ; I - 14: 8/6/07 to 2/11/11 Medical Records of

Early Steps C000628 - 935; I - 15: 7/17/08 to 8/18/10 Medical

Records of PhysioPower, Inc., LLC C000936 - 1200; I - 16: 10/12/10 to

2/28/11 Therapeutic Learning Center C001201 - 1252; I - 17A: Medical

R ecords and Reports Regarding Examination of Emma Johnston by

Dr. Trevor Resnick 12/14/2010 (2 pages); I - 17B: Letter of

Dr. Trevor Resnick 12/14/2010; I - 18: Documents attached to th e

video depositions of Dr. Alan Pinshaw including his report (11

pages); I - 1 9: Documents attached to the deposition of Dr.

Michael Duchowny 11/12/2009 (8 pages & 4 - page report); I - 20:

Documents attached to the deposition of Dr. Donald C. Willis and

report; I - 21: CV of Dr. Alan Pinshaw (4 pages); I - 22: CV of

Dr. Ira Lott (22 pa ges); I - 23: CV of Dr. Thomas Naidich (65

pages); I - 24: CV of Dr. Keith Peavy (17 pages) ; I - 25: None ; I - 26:

None ; I - 27: University of Florida Pediatric Multispecialty

Center reports; (Composite) I - 28: Pinshaw Deposition Video; I -

29: Deposition of Dr. Wil lis ( Intervenor's designations); I - 30:

11/12/2009 Deposition of Dr. Duchowny ( Intervenor's

designations); I - 31: 3/21/2011 Deposition of Dr. Duchowny

( Intervenor's designations); P - 16: 10 /13/09 Deposition of

Dr. Willis (Petitioners' designation s ); P - 17: 11 /12/09

Deposition of Dr. Duchowny ( Petitioners' designation s ); P - 18:

3/29/11 Deposition of Dr. Duchowny ( Petitioners' designation s );

P - 19: 3/15/11 Deposition of Dr. Pinshaw ( Petitioners'

designations); R/ NICA - 1: CV of Dr. Duchowny; R / NICA - 2: CV of

Dr. W illis.

2/ Dr. Pinshaw testified by video deposition (I - 18 ; I - 28 ) and

via transcribed deposition designations of Petitioners (P - 19).

3 / The arguments for and against admission of I - 17B (a second

letter - opinion of Drevor Resnick dated the same day as his

letter - opinion designated and admitted without objection as I -

17A), are set out at TR 309 - 403. This second letter - report was

not admitted by stipulation ; is not sworn testimony ; and

Dr. Resnick did not testify live or by deposition. T herefore,

Exhib it I - 17B is "hearsay . "

Despite being hearsay, the second report was subject to

being admitted pursuant to section 120.5 7(1) , which provide s , in

pertinent part:

(c) Hearsay evidence may be used for the

purpose of supplementing or explaining other

evid ence, but it shall not be sufficient in

itself to support a finding unless it would

be admissible over objection in civil

actions.

A dmitting the second Resnick report under the foregoing

statutory authority peculiar to this type of administrative

procee ding does not convert the second Resnick report (Exhibit I -

17B) from hearsay to reliable evidence for purposes of a finding

of fact. Likewise, the consideration and reliance of several

physicians upon the second Resnick report does not convert the

second Resnick report from hearsay to reliable evidence.

Finally, the opinion s of the several physicians ( Pe evy ,

Lott, and Duchowny ) , who relied upon the second Resnick report ,

may not provide a conduit for consideration of Dr. Resnick's

opinion on permanent and substantial mental impairment. Although

expert s can base an opinion on evidence that is not otherwise

admissible (in this case , Dr. Resnick's second letter - report )

those expert s' reliance is not sufficient to transform

Dr. Resnick's second letter - repo rt into substantive evidence.

The great impediment to consideration of Dr. Resnick's

second letter - report (I - 17B) , or any opinion arising from it, is

that Dr. Resnick did not testify at trial and therefore, could

not be cross - examined. Likewise, he wa s never deposed.

Accordingly, neither I - 17B nor the opinions based on I - 17B can

support a finding of fact. See Linn v. Fossum , 946 So. 2d 452

(Fla. 2006); Mc K eithan v. HCA Health Servs . of Fl a. , Inc. , 879

So. 2d 47 (Fla. 4th DCA 2004); McElroy v. Perry , 753 So. 2d 121

(Fla . 2d DCA 2000).

For all of the foregoing reasons, the second unsworn letter

of Dr. Resnick, (Exhibit I - 17B) can neither directly nor

indirectly constitute the type of evidence upon which a finding

of fact can be made to the effect t hat Emma has sustained a

permanent and substantial mental impairment. All findings of

fact herein with regard to permanent and substantial mental

impairment are based upon other evidence.

4/ To the extent that Dr. Duchowny's second deposition opinion

wa s based on Dr. Resnick's second letter (I - 17B) , it may not form

the basis of a finding of fact. See n.3. Moreover, inasmuch as

Dr. Duchowny previously testified that no determination as to

permanency of mental impairment can reasonably be made until a

ch ild is approximately six years of age, ( see Finding of Fact 44 )

his later reliance on Dr. Resnick's permanency determination made

when Emma was only three and - a - half years of age is not credible.

5/ "Under the Plan, a 'physical impairment' relates to the

infant's impairment of his 'motor abnormalities or physical

functions,' which along with the brain injury, significantly

affects the infant's mental capabilities so that the infant will

not be able to translate his cognitive capabilities into adequate

lea rning or social development in a normal manner." Matteini v.

Fla. Birth - Related Neurological Injury Comp. Ass'n , 946 So. 2d

1092, 1095 (Fla. 5th DCA 2006). See also Fla. Birth - Related

Neurological Injury Comp. Ass'n v. Fla Div. of Admin. Hearings ,

686 So . 2d 1349, 1356 (Fla. 1997).

"Under the Plan, a 'birth - related neurological injury' is an

injury to the brain or spinal cord of an infant caused by oxygen

deprivation or mechanical injury during labor or delivery, which

renders the infant both 'perma nently and substantially mentally

and physically impaired.' § 766.302(2), Fla. Stat. (2005). . . .

[T]he ALJ was required to determine whether Sierra's [the

child's] brain injury was the likely cause of her current

impairments and whether Sierra is subst antially and permanently

physically and mentally impaired." Matteini v. Fla. Birth -

Related Neurological , 946 So. 2d 1092, 1094 (Fla. 5th DCA 2006).

See Adventist Health Sys./Sunbelt, Inc. v. Fla. Birth -

Related Neurological Injury Comp. Ass'n , 865 S o. 2d 561 (Fla. 5th

DCA 2004), explaining that under the Plan, " the identification of

a substantial mental impairment may include not only significant

cognitive deficiencies but can include, in a proper case,

additional circumstances such as significant ba rriers to learning

and social development " ; that parental observations are useful ;

that cerebral palsy is generally understood to be a group of

motor physical disorders ; and that the statute is written in the

conjunctive and can only be interpreted to requ ire permanent and

substantial impairment that has both physical and mental

elements.

6/ See McNally v. Fla. Birth - Related Neurological Injury Comp.

Ass'n , DOAH Case No. 09 - 5623 (FO March 7, 2012).

COPIES FURNISHED:

( V ia certified mail)

Ronald S. Gilbe rt, Esquire

Colling, Gilbert, Wright and Carter, LLC

Suite 830

801 North Orange Avenue

Orlando, Florida 32801

(Certified Mail No. 7011 1570 0001 1540 5482)

Michael A. Kundid, Esquire

Doran, Sims, Wolfe, Ansay and Kundid

1020 West International Speedway

Boulevard Suite 100

Daytona Beach, Florida 32114

(Certified Mail No. 7011 1570 0001 1540 5499)

Earl E. Googe, Jr., Esquire

Smith, Hulsey and Busey

1800 Wachovia Bank Tower

225 Water Street

Jacksonville, Florida 32202

(Certified Mail No. 7011 1570 0001 1 540 5505)

Evaleen H. Caccam, M.D.

836 Prudential Drive, Suite 1506

Jacksonville, Florida 32207

(Certified Mail No. 7011 1570 0001 1540 5512)

Kenney Shipley, Executive Director

Florida Birth Related Neurological

Injury Compensation Association

2360 Chr istopher Place, Suite 1

Tallahassee, Florida 32308

(Certified Mail No. 7011 1570 0001 1540 5529)

Amie Rice, Investigation Manager

Consumer Services Unit

Department of Health

4052 Bald Cypress Way, Bin C - 75

Tallahassee, Florida 32399 - 3275

(Certified Mail No. 7011 1570 0001 1540 5536)

Elizabeth Dudek, Secretary

Health Quality Assurance

Agency for Health Care Administration

2727 Mahan Drive, Mail Stop 3

Tallahassee, Florida 32308

(Certified Mail No. 7011 1570 0001 1540 5543)

NOTICE OF RIGHT TO JUDICIAL REVIEW

Review of a final order of an administrative law judge shall be

by appeal to the District Court of Appeal pursuant to section

766.311(1), Florida Statutes. Review proceedings are governed by

the Florida Rules of Appellate Procedure. Such proceed ings are

commenced by filing the original notice of administrative appeal

with the agency clerk of the Division of Administrative Hearings

within 30 days of rendition of the order to be reviewed, and a

copy, accompanied by filing fees prescribed by law, wi th the

clerk of the appropriate District Court of Appeal. See

§ 766.311(1), Fla. Stat., and Fla. Birth - Related Neurological

Injury Comp. Ass'n v. Carreras , 598 So. 2d 299 (Fla. 1st DCA

1992).