17-000270N Katis D`angelo And Jeffrey D`angelo, On Behalf Of And As Parents And Natural Guardians Of Jeffrey D`angelo, Jr., A Minor vs. Florida Birth-Related Neurological Injury Compensation Association Status: Closed DOAH Final Order on Wednesday, February 6, 2019.

Summary: The infant did not sustain a birth-related neurological injury, and, therefore, Petitioners are not entitled to compensation under the Plan.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

KATIS D'ANGELO AND JEFFREY

D'ANGELO, on behalf of and as

parents and natural guardians of

JEFFREY D'ANGELO, J r., a minor,

Petitioner s ,

vs. Case No. 17 - 0270N

FLORIDA BIRTH - RELATED

NEUROLOGICAL INJURY COMPENSATIO N

ASSOCIATION,

Respondent,

and

HERNANDO HMA, LLC, d/b/a

BAYFRONT HEALTH SPRING HILL; AND

LOUIS J. DIEFFENBACH, M.D.,

Intervenors.

_______________________________/

FINAL ORDER

This cause came before the undersigned upon a Joint Motion

to Submit Factual Record in Lieu of a Contested Hearing, which

was granted on November 26, 2018; a Stipulated Record; and the

P roposed F inal O rders submitted by Petitioner s and Respondent,

Florida Birth - Related Neurological Injury Comp ensation

Association (NICA).

STATEMENT OF THE ISSUE

The issue in this case is whether Jeffrey DÓAngelo, Jr.

(Jeffrey) , suffered a birth - related neurological injury as

defined by section 766.302(2), Florida Statutes (2014) , for

which compensation should be awarded under the Florida Birth -

Related Neurological Injury Compensation Plan (Plan).

PRELIMINARY STATEMENT

On January 9, 2017, Petitioners filed a Petition for

Benefits Pursuant to Florida Statute Section 766.301 et seq.

(Petition) with the Division of Administrative Hearings (DOAH)

for a determination of compensability under the Plan. The

Petition named Louis J. Dieffenbach, M.D. (Dr. Dieffenbach), as

the physician who provided obstetric services at the birth of

Jeffrey on February 23, 2014, at Bayf ront Health Spring Hill

Hospital (Bayfront) in Spring Hill, Florida.

On January 19, 2017, DOAH mailed a copy of the Petition to

NICA by certified mail. The certified receipt indicates the

same was served on January 21, 2017. On January 19, 2017, DOAH

als o mailed copies of the Pe tition by certified mail to

Dr. Dieffenbach and Bayfront.

On February 20, 2017, Hernando HMA, LLC , d/b/a Bayfront

Health Spring HillÓs m otion to i ntervene was granted. On

February 22, 2017, Dr. DieffenbachÓs Motion to Intervene was

granted.

On April 19, 2017, NICA filed its Response to the Petition,

suggesting that the subject claim was not compensable because

Jeffrey had not suffered a birth - related neurological injury and

requesting a final hearing to address said issue. The final

hearing was originally scheduled for September 12, 2017. After

multiple continuances and an Order Denying NICAÓs Motion for

Summary Final Order, the final hearing was ultimately

rescheduled for November 28, 2018.

On November 26, 2018, the parties filed a Motion to Submit

Stipulated Factual Record in Lieu of Contested Hearing. Said

motion was granted on the same date. The partiesÓ Stipulated

Record was timely filed on December 7, 2018, and Exhibits A

through O were thereby admitted into evidence without objection.

On December 17, 2018, the parties timely filed P roposed

F inal O rders. On January 4, 2019, however, the undersigned

issued an O rder requiring the parties to resubmit the proposed

final orders with citations to the Stipulated Record. N ICA

timely resubmitted its P roposed F inal O rder. The parties Ó

P roposed F inal O rders have been considered in preparation of

this Final Order.

FINDINGS OF FACT

1. On February 22, 201 4 , in her 37th week of pregnancy,

Petitioner, Katis DÓAngelo, had a spont aneous rupture of her

membranes. She presented to Bayfront and, at approximately

11:00 p.m., was evaluated in the labor suite. Upon initial

examination, her cervix wa s noted to be Ð1 cm dilated,

50 percent effaced with the vertex at a - 2 station.Ñ The

f etusÓs heart tones were normal; however, Mrs. DÓAngelo was not

having an active labor pattern. Accordingly, Mrs. DÓAngelo was

admitted to the hospital.

2. Dr. Dieffenbach had been Mrs. DÓAngeloÓs obstetrician

throughout her pregnancy and, upon admissio n to Bayfront, was

the primary and attending obstetrician.

3. To assist in th e progression of her labor,

Dr. Dieffenbach ordered a low dose of Pitocin. Mrs. DÓAngeloÓs

labor progress ed and her cervix dilated to about five

centimeters ; however, it Ðgot hung up for about 5 hours.Ñ She

was reexamined about an hour later with no changes noted. Due

to her failure to progress, Dr. Dieffenbach recommended a

Cesarean section delivery. Dr. DieffenbachÓs Clinical and

Operative Notes provide, in pertinent part, as follows:

CLINICAL NOTE: . . . At this point,

cesarean delivery was recommended. Risks

were explained an d accepted. The labor was

dysfunction al. Pitocin was up to about

14 milliunits. The fetal heart tones were

in the normal range, but failed to sh ow a

great deal of variability. No decelerations

were noted. Fluids were changed to D5 and

Ringers to see if that would help stimulate

the baby.

OPERATIVE NOTE: . . . Uterine incision was

extended laterally by stretching. The baby

was noted to be in a ROT position. The

infant was LGA, weighing 7 pounds 14 ounces

at 37 weeks. The extraction was difficult.

This was a male weighing 7 pounds 14 ounces,

3575 grams. Apgars were 2, 6, and 8. The

infant was noted to have cord wrapped around

the legs with several loops and also around

the abdomen, possibly accounting for the

fetal heart rate changes. The nares and

orpharynx were suctioned with bulb syringe.

Cord was clamped and severed. The infant

was given to the nurse for further care at

the isolette . . . . Both mother and baby

did well. The baby is currently in the

NICU, stable.

4. Jeffrey was born at 1:52 p.m., on February 23, 2014.

At delivery, he was noted to be Ðdepressed.Ñ At one minute of

life, JeffreyÓs Apgar score was a 2. 1/ A Ne onatal Intensive Care

Unit ( NICU ) Registered Nurse (RN) was requested to provide

assistance in the operating room and the RN arrived within four

minutes.

5. Due to his depressed state, resuscitative efforts were

required in the first several minute s of life. These efforts

included positive pressure ventilation (for five minutes),

oxygen, and chest compressions for 30 seconds. It appears the

resuscitative efforts were administered by the respiratory

therapist and operating room nurse prior to the N ICU RNÓs

arrival. 2/

6. The NICU RN documented that, upon arrival, Jeffrey had

poor color and tone. By his tenth minute of life, Jeffrey had

responded well to the oxygen, his color had improved , and he had

spontaneously cried. At 2:10 p.m., Jeffre y was transitioned and

admitted to the Bayfront NICU.

7. At the NICU, Jeffrey was noted to have decreased tone,

facial bruising, petechiae, and a low blood glucose level. He

was noted to have a strong suck (for feeding), however, he had

desaturatio ns during feeding attempts, with a recorded apnea.

At 3:45 p.m., Jeffrey was noted to have a significant apneic

episode (ceased breathing for more than 15 seconds), he became

cyanotic, and Ðvery aggressive stimulation was needed,Ñ in

addition to mask oxyg en. At that time, his oxygen saturation

level was low at 58. At approximately 7:00 p.m., Jeffrey was

placed on a nasal cannula for oxygen (vapotherm 2 LPM 23%).

8. Jeffrey had several additional apneic episodes during

his first day of life. On t hree occasions, the apnea lasted for

more than 15 seconds, he became cyanotic, and required gentle or

vigorous stimulation. Due to these incidents, on February 24,

2014, an echoencephalograph (EEG) was performed. The EEG

finding and impression were as fo llows:

FINDING:

Transcranial head ultrasound was performed

with gray scale imaging via anterior

fontanelle. This demonstrates normal brain

parenchymal echogenicity. There is a normal

germinal matrix and cord plexus. There is

no hydrocephalus or intr aparenchymal

hemorrhage .

Impression:

1. Normal transcranial head ultrasound as

above.

9. Jeffrey remained at the Bayfront NICU until March 5,

2014. During his NICU stay, he had a cranial ultrasound which

was interpreted as normal; he was noted as having frequent

arching and possible posturing; and continued to have poor

feeding coordination. On March 5, 2014, he was transferred to

All ChildrenÓs Hospital to obtain a brain MRI, neurology

consultation , and a speech therapy consultation.

10. On March 6, 2014, the brain MRI was conducted. The

MRI was interpreted as showing a brain with normal signal

intensity , including gray and white matter on multiple

sequences. Ultimately, Jeffrey was discharged from All

ChildrenÓs Hospital after a pproximately three days. 3/

11. Following his discharge, Jeffrey exhibited

developmental delays. When Jeffrey was approximately nine

months old, he was evaluated by Elizabeth Barkoudah, M.D., the

attending physician for the Neurodevelopmental Disab ilities

Department at ChildrenÓs Hospital in Boston, Massachusetts. Her

report documents his post discharge history as follows:

Concerns with Jeffrey were first noted in

the neonatal period given low tone. This

has prompted him to be seen by various

spe cialties in Florida including Neurology,

Neurosurgery, Physiatry, Genetics,

Ophthalmology and Neuro - opthalmology. He

has had a head ultrasound at 5 months of age

which showed increased frontal lobe fluid.

A brain MRI was repeated at 7 months of age

inclu ding a cervical MRI. Again this showed

the increased fluid. He was seen by

Neurosurgery who did not feel that shunting

was needed. His cervical MRI showed some

narrowing with persistent SCF flow around

the spinal cord. This MRI was obtained

after papil lodema was found on his

examination. This examination was

recommended due to Ðchoppy visual tracking.Ñ

Over time it was felt that this was not

truly papilledema and is simply elevated

optic nerves. Visual assessment at the time

showed weaknesses left mo re than right.

In regards to evaluations, he has also been

seen by Genetics who has obtained a

chromosomal microarray which was

unremarkable. He had thyroid testing and

CPK levels which were normal. He has been

seen by Physiatry who recommended ongoin g

therapy. They have provided him with a

Benik trunk brace which now he only uses

with exercises. He has been receiving Early

Interventions services including PT two

times per week, OT one time per week and

speech therapy one time per week.

12. Dr . BarkoudahÓs impression was that JeffreyÓs low

muscle tone was Ðlikely central in origin and related to his

gross motor delays.Ñ She did not recommend any further

assessments. Dr. Barkoudah opined in her report that the

average age for diagnosis of cere bral palsy is two years of age,

and, therefore, Jeffrey did not currently meet the diagnostic

requirement.

13. At approximately 13 months of age, Jeffrey was

referred to Radhakrishna K . Rao, M.D., D.C.H., M.S., at Bay

Regional & International Insti tute of Neurology, for a

neurological evaluation. After conducting an examination of

Jeffrey, Dr. RaoÓs report documented his clinical impression as

follows:

Patient has a complex medico - neurological

condition of severe complexity. Patient had

difficult neonatal period as described

above. Developmentally child is making

progress at a slower pace without any

regression. In my opinion, the loose

umbilical cord wrapped around his legs and

abdomen may have contributed to initially

for persistent transverse lie and later

descent for normal vaginal birth. This also

might have contributed for respiratory

depression and low Apgar score resulting in

intermittent hypoxia. This appears to be

the reason for his development of

generalized hypotonia, gross motor an d fine

motor developmental delay and hypotonic

cerebral palsy.

14. Dr. Rao recommended an additional EEG to document any

underlying neuronal dysfunction and seizure activity. An EEG

was conducted several days later and was interpreted as within

n ormal limits for JeffreyÓs age , and there was no definite

seizure activity seen.

15. Jeffrey presented to Dr. Rao again on April 21, 2015.

On this occasion, among other medical concerns, Dr. Rao

diagnosed Jeffrey with hypotonic cerebral palsy. Je ffrey

continued to treat with Dr. Rao through August 2015.

16. On June 21, 2017, Jeffrey (at age three years ,

four months) presented to the neurology clinic at All ChildrenÓs

Hospital for follow - up of his history of hypotonia and global

development delay. According to the clinical note, he had been

diagnosed previously with congenital hypotonia, and had

developmental delays including expressive speech delays. It was

further documented that Jeffrey has a history of abnormal signal

intensities on br ain MRI.

17. The clinical note described JeffreyÓs developmental

delays as follows:

Parents relate today that he is making

steady for developmental progress, although

slowly. Parents are very involved with a

home regimen of multiple therapies whi ch

they engage in with him on a daily basis.

Presently, he is able to walk independently.

He continues to be unsteady and falls

frequently. He is not able to stoop to pick

up an object and then stand back up alone

without holding onto something. He is not

yet running. He can pick up a Cheerio or

small object with a pincer grasp: not able

to yet hold onto a crayon and scribble.

Expressive language reveals approximately

15 - 20 independent words, although these are

inconsiste nt. He knows (approximately)

8 signs and uses these appropriately. He is

not able to identify pictures in books; does

not know body parts. He waves Ðbye byeÑ and

initiates some activities. He is not potty

trained. He wears glasses and does vision

therapy. Developmental level at this time

by Denver Developmental Assessment is gross

motor: (approximately) 15 mo.; fine

motor/adaptive: (approximately) 10 mo.;

language: (approximately) 15 mo.;

personal/social: (approximately) 15 mo.

18. The All ChildrenÓs clinical note agai n documented

Jeffrey as having congenital hypotonia and concluded that he is

globally delayed, but making slow gains with Ða lot of

intervention/therapy.Ñ

19. As indicated in the preceding paragraphs, Petitioners

have commendably sought advice, tre atment, and evaluations from

multiple health care providers and specialists in an effort to

care for Jeffrey. At the time of Mrs. DÓAngeloÓs deposition on

September 17, 2018, Jeffrey was four years , seven months old.

Mrs. DÓAngelo credibly testified abou t a Ðday in the lifeÑ of

Jeffrey, his development, and his limitations.

20. Jeffrey is currently receiving multiple therapies on a

daily basis at PetitionersÓ home. Mrs. DÓAngelo credibly

testified that Jeffrey receives physical therapy once per w eek,

occupational therapy twice per week, speech therapy three times

per week, music therapy twice per week, and Applied Behavioral

Analysis therapy for 40 hours per week. His various therapies

essentially begin at 8:00 a.m. , and continue throughout the d ay

until 5:00 p.m.

21. Mrs. DÓAngelo explained that, in physical therapy, the

primary goal at this time is for Jeffrey to be able to

transition stairs. Over the last 4.5 years of physical therapy,

there has been some slight improvement in that 1) he no longer

has to wear a medical helmet; 2 ) he no longer has a walker;

3) his leg braces were previously from the knee down and now

they are only ankle braces; 4) and he can walk independently

1 1

indoors with adult supervision with mats on the floor to prot ect

him from falls. At this time, he does not walk independently

without the mats due to the potential fall risk.

22. Concerning his o ccupational therapy goals,

Mrs. DÓAngelo credibly testified that they are working on his

prewriting skills. The team is working on his ability to draw a

line. At present, he does not have the ability to independently

hold a pencil or a crayon correctly. Mrs. DÓAngelo explained

that he continues to require speech therapy , as he is

functioning at a one - year - old leve l. Although Jeffrey may be

able to say 20 - 25 words, they are approximations. Essentially,

he can say Ðmom,Ñ Ðdad,Ñ and ÐhiÑ clearly.

23. Mrs. DÓAngelo further credibly testified concerning

other limitations. Jeffrey wears diapers and is not pott y -

trained. He can follow very limited one - task directions, but

rarely two - step directions. Jeffrey cannot and does not play

with other children. While he can use a Ðsippy cup , Ñ he cannot

use an open cup to drink and cannot use utensils to feed

himself.

24. In April 2018, Jeffrey was diagnosed with an

undisputedly rare genetic disorder referred to as CHAMP 1. The

undersigned finds that there was insufficient evidence presented

by the parties concerning this disorder to make any findings as

to whe ther JeffreyÓs impairments are caused by genetic or

congenital abnormality.

25. NICA retained Donald C. Willis, M.D., an obstetrician

specializing in maternal - fetal medicine, to review the medical

records of Jeffrey and Mrs. DÓAngelo, and opine as to wh ether

there was an injury to his brain or spinal cord that occurred in

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

postdelivery period due to oxygen deprivation or mechanical

injury. Dr. Willis made the following findings and expresse d

the following opinions in a report , dated March 27, 2017:

I have reviewed [the] medical records for

the above individual. The mother, Katis

DÓAngelo was a 25 year old G1 with a history

of successful treatment for preterm labor at

32 weeks. Prenatal cou rse was otherwise

without complications.

The Mother was admitted at 37 weeks

gestational age with spontaneous rupture of

the membranes. Her cervix was dilated 1 cm.

She was not in labor. Pitocin induction of

labor was initiated for rupture of

membranes .

The fetal heart rate (FHR) monitor tracing

was reviewed. There was no fetal distress.

Cesarean section was done for failure to

progress. Birth weight was 3,575 grams

(7 lbs 14 ozÓs). Extraction of the fetal

head during Cesarean section was described

as difficult. Several loops of umbilical

cord were around the body of the fetus.

Apgar scores were 2/6/8. Positive pressure

ventilation was given for 5 minutes and

chest compressions for 30 seconds. The baby

was taken to the NICU for evaluation and

management.

NICU evaluation noted overall reduced motor

activity and a rapid respiratory rate.

X - ray showed bilateral vascular markings,

compatible with transient tachypnea vs

pneumonia. Several episodes of apnea

occurred. Capillary blood gas at 5 hou rs of

age was normal with a pH of 7.36.

Antibiotics w ere started and continued for

7 days. Blood cultures were negative.

Initial platelet count was low at 84,000. A

short tongue frenulum, Ankyloglossia was

present. This birth defect was later

surgical [ly] corrected.

Orogastric tube feedings were required for

poor feeding coordination. Frequent body

arching and posturing episodes developed.

EEG on DOL 2 was normal. Head ultrasound

was also normal. The baby was transferred

to All ChildrenÓs Hospital due to possible

seizure activity and poor feeding.

Genetic testing, including microarray

studies were negative.

The child continue[d] to have hypotonia

after hospital discharge. Neurology

evaluation for hypotonia and motor

developmental delay was done with the

impression of a Ðcomplex medico - neurological

condition of severe complexity.Ñ EEG at

about one year of age was normal. Sleep

studies suggested upper airway obstruction.

MRI found mild cervical spine narrowing, but

no brain injury.

There was no apparent obstetrical event that

resulted in loss of oxygen or mechanical

trauma to the babyÓs brain or spinal cord

that resulted in injury during labor,

delivery and the immediate post delivery

period.

26. Dr. WillisÓ s findings and opinions were confir med and

verified in an affidavit dated September 1, 2017. At his

deposition, Dr. Willis testified, in pertinent part, as

follows:

Q. Okay. What is your opinion as to

whether or not Jeffrey DÓAngelo suffered a

birth - related neurological injury?

A. I do not believe that there was any

apparent obstetrical event that resulted in

loss of oxygen or mechanical trauma to the

babyÓs brain during labor, delivery, or the

immediate post - delivery period.

* * *

Q. Would you briefly summarize your

findings and ba sis for your opinion?

A. Yes.

Q. And refer to the report if necessary.

A. Yeah. The mother was admitted to the

hospital at 37 weeks gestational age with

spontaneous rupture of the membranes. Labor

was induced. She progressed to about 5

centimeters dilation and then had failure to

dilate after that point.

Cesarean section was then done for failure

to dilate. And the Î let me back up a

moment. I did see the fetal heart rate

tracings. And there was a nice set of fetal

heart rate tracings during la bor. I

reviewed those. The fetal heart rate

tracing did not show anything to me that

suggested fetal distress during labor. It

appeared to be a reassuring fetal heart rate

pattern. Delivery was done by Cesarean

section. Delivery was stated to be

compl icated or difficult because the

umbilical cord was around the babyÓs body.

And the Î and the delivery was stated to be

difficult.

When the baby was born, it was depressed.

Apgar sc ores were 2 at 1 minute, 6 at

5 minutes, and 8 at 10 minutes. The baby

d id require positive - pressure ventilation

for approximately 5 minutes. And chest

compressions were approximately 30 seconds.

The baby was taken to the neonatal intensive

care unit. Chest x - ray showed Î had some

bilateral vascular markings which were

comp atible with transient tachypnea of the

newborn.

Shortly after birth the baby had some

episodes of apnea. A capillary blood gas

was done about 5 hours after birth, and it

was normal. The pH was 7.36. EEG was done

on day of life two, which was normal. H ead

ultrasound was also normal. The baby was

transferred to All ChildrenÓs Hospital

because Î from what I gather from the

records because they wanted to do an MRI.

The MRI was done about two weeks after birth

and was Î and was normal.

27. With respec t to JeffreyÓs Apgar scores, Dr. Willis

testified, in relevant part, as follows:

Q. What did those Apgar scores mean or

indicate to you in the context of your

review of this case?

A. Right. Well, usually we say that the

one Apgar Î the 1 - minute Apgar s core tells

you what resuscitation is required. So

Apgar score of 2 would be a low Apgar score.

And that would mean that some resuscitation

would be required after birth. The 5 - minute

Apgar score tells you a little bit more

about what the babyÓs acid bas e status,

oxygen deprivation status would be. And

that was 6. We consider the Apgar to be low

if it is below 7. So the 5 - minute Apgar was

slightly lower than expected. By 10 minutes

it was 8. So that would be within normal

limitsÓ score for an Apgar .

28. With respect to the diagnostic studies performed

during the newborn period, Dr. Willis testified, in relevant

part, as follows:

Q. What is the purpose of an EEG?

A. Purpose of the EEG is to determine if

thereÓs any electrical brain injury .

Q. Okay, and thatÓs a diagnostic study to

determine if the brain is functioning

properly?

A. Correct.

Q. And in this case on the second day of

life an EEG was done and it was read as

normal?

A. Correct.

Q. If J.D. in this case had suffered oxygen

de privation significant enough to cause

brain damage in the course of labor and

delivery, would you expect an EEG on day of

life two to be normal?

A. No. You would expect some abnormalities

in that EEG.

Q. So this EEG, correct me if I am wrong,

would be inconsistent with . . . J.D. having

suffered oxygen deprivation significant

enough to cause brain injury at the time of

labor and delivery in this case?

A. Correct.

* * *

Q. And then you mentioned that an MRI was

done at approximately 2 weeks of age?

A. Correct.

Q. And are you referring to the MRI that

was dated March 6, 2014?

A. Correct.

Q. And what did that MRI reflect?

A. That MRI was read as normal. So nothing

on that MRI that suggested hypoxic or

ischemic brain injury. And I felt that was

very important in my Î in my final

disposition of this case because the

delivery was somewhat difficult. And the

baby was depressed at birth and required

resuscitation. So that made me somewhat

concerned about oxygen deprivation at birth.

However, if the baby has oxygen deprivation

at birth enough to cause brain injury, then

the EEG will be abnormal and for sure the

MRI at two weeks is going to show

abnormalities.

With a normal MRI at two weeks after birth,

it really confirms that there was no oxyg en

deprivation during labor or delivery or the

immediate post delivery period that was

substantial enough to cause identifiable

brain injury.

Q. Okay. Is it fair to say, just to follow

up on that MRI at two weeks, that the

findings on that MRI are incon sistent with

J.D. in this case having suffered oxygen

deprivation significant enough to cause

brain injury at the time of labor and

delivery?

Q. Correct.

29. Dr. WillisÓs findings and opinion that there was not a

brain injury caused by oxygen d eprivation or mechanical injury

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

immediate postdelivery period in a hospital are credited.

30. NICA also retained Laufey Y. Sigurdardottir, M.D., a

pediatric neurologist, to review JeffreyÓ s medical records,

conduct an independent medical examination (IME), and opine as

to whether he suffers from a permanent and substantial mental

and physical impairment as a result of a birth - related

neurological injury. Dr. Sigurdardottir reviewed Jeffrey Ós

medical records and performed an IME on March 29, 2017.

Dr. Sigurdardottir made the following findings and summarized

her evaluation as follows:

Pregnancy and Birth Summary: Jeffrey was

born at 37 weeks 3 days to a 25 - year - old G1,

P0 serology negative mother after normal,

noncomplicated, pregnancy. She did have

premature labor at 32 weeks that resolved

and then spontaneous rupture of membranes at

11 p.m. on 02/22/2014. JeffreyÓs mother

presented shortly before midnight to

Bayfront Health Labor and De livery Ward, was

found to have 1 cm cervical dilation and was

admitted. She was not felt to be in active

labor at that time. Labor was augmented

with Pitocin but an emergent C - section was

performed at 1 p.m. on 02/23/2014 due to

failure to progress and a rrested of fetal

head. Fetal heart rate strips are available

for our review and no fetal heart

decelerations are noted. During the

Cesarean section, the infant was found to be

in a ROT position and large for gestational

age. The extraction was difficult . The

umbilical cord was noted to be wrapped

around the legs with several loops and also

around the abdomen. The infant was

depressed at birth with Apgars of 2, 6 and 8

at 1,5 and 10 minutes. The infant was

delivered at 1352 on 02/23/2014 weighing

3570g , length 51 cm and head circumference

of 33cm. The infant did receive chest

compressions for 30 seconds and positive

pressure ventilation. Infant was noted to

have respiratory distress and was admitted

to Bayfront NICU for further evaluation.

Infant had initial exam on admission

suggestive of perinatal depression. His

neurologic examination on admission revealed

decreased muscle tone, decreased motor

activity, symmetric Moro reflex, response to

stimuli and no tremor. The infant had

recovery of neurolog ic status apart from

continued hypotonia and difficulty feeding.

Infant was worked up with labs including a

capillary blood gas at 5 hours of life

showing a pH of 7.36 and a base excess of -

0.6. PCo2 was 48. Initial creatinine

measurement was 1 and had a steady decline

after t hat. AST and ALT were found to be

normal. Initial platelets were found to be

84,000 with recovery to 165,000 by 6 a.m. on

02/24/201[4]. EEG performed on day of life

2 was found to be normal with no indication

of a lowered seizure threshold and no

abnormality on background activity. Head

ultrasound was also performed and found to

be normal. Infant had transient tachypnea,

tongue ankyloglossia, possible sepsis and

was treated with antibiotics. Nutritional

status was found to incl ude initial low

blood glucose and episodes of arching with

feeding. The patient did require partial

gavage feeding prior to discharge.

Discharge was on 03/05/201[4].

Developmental and Medical History: Jeffrey

continued to exhibit delays in neurologic

d evelopment. Per parentsÓ report, he had

poor feeding abilities, was found to have

low muscle tone and required therapies,

occupational, physical, and speech therapy,

from a ve ry early age. He sat around

14 months, crawled at 15 months and walked

unassist ed at 22 months. He has had

significant language delays, although at

this time he has 20 - 25 words. He has been

found to have apraxia of speech. The

patient has had ophthalmologic abnormality

including a downward eye deviation that the

parents report and was seen at Boston

ChildrenÓs Hospital at the age of 9 months

for a second opinion of the underlying

etiology for his delays. He has had genetic

workup including microarray and Prader - Willi

has also been ruled out. Patient has had

multiple neuro radiolo gic evaluations of

brain and spinal cord. The initial MRI was

performed on 03/06/2014 and found to have a

brain that seems normal in signal intensity

including gray and white matter on multiple

sequences. Vascular structures appear

grossly normal. The s econd evaluation is a

brain ultrasound on 07/29/2014 which shows

mild increased CSF fluid spaces. A second

MRI was performed in September 2014 and

showed increased bifrontal temporal

extraaxial convexity, effusion and mild

ventricular dilation as compared to study

from 03/06/2014. This was considered to be

suggestive of a communicating hydrocephaly

with impaired drainage at the level of the

arachnoid granulations. An MRI of the

cervical spine was also performed and showed

mild C3 - C5 spinal canal stenosis . A follow

up MRI was then performed on 01/26/2015 with

no interval change in the spinal stenosis at

C3 - C5 and no significant change in

appearance of the extraaxial fluid or

ventricular size. A 3rd follow up MRI then

performed in May 2015 which showed po ssible

increased in kyphosis of cervical region but

no clear change in ventricular size and

possible decrease in amount of extraaxial

CSF spaces. Final MRI was then performed o n

July 2016 which continues to show mild

bilateral and lateral ventricular dila tion

and bifrontal temporal convexity, extraaxial

fluid. This was deemed to be stable. In

the final MRI there are noted small foci of

bifrontal white matter increased FLAIR

signal without associated mass effect.

Jeffrey has been treated with vigorous

th erapy, both with therapy providers as well

as with his parents and has undergone

hyperbaric oxygen therapy. Parents feel

that he continues to be significantly

delayed as compared to his peers. But now

he is more responsive to them. He has been

evaluated for possible autism and found to

be negative for such symptoms on

3 occasions, as per parentsÓ report.

* * *

Physical Examination: Jeffrey is 17.7 kg,

91.4 cm and his head circumference is 51 cm.

This places his growth parameters to be at

the 95th per centile for weight, at the 13th

percentile for length and his head

circumference to be at the 59th percentile.

His general exam is as follows: Head and

Neck: There are no obvious dysmorphic

features, although mouth tends to be open.

He does have conjug ate eye movement. Lungs:

Clear to auscultation. Cardiovascular exam

reveals first and second heart tones, no

noted heart murmurs, no rhythm

abnormalities. Abdomen is soft, no

hepatosplenomegaly. GU normal.

Musculoskeletal: He does have some

increased joint laxity. Skin is without

abnormal markings. Neurologic Examination:

Mental status: The patient is interactive

with his parents often needing multiple

requests to comply with their requests for

him. He does wave bye - bye. He does clap

and does ha ve occasional words that are

difficult for this examiner to understand.

His eye contact seems at times to be poor.

No repetitive behavior is noted. Cranial

nerves: His pupils are equal, reactive to

light. He has full visual fields.

Extraocular moveme nts are conjugate. His

facial expression is somewhat diminished.

His hearing seems intact to voice. Motor

exam reveals generalized hypotonia with some

increased joint laxity, but full strength.

Reflexes are difficult to elicit but

present. Balance and coordination is

delayed for age, although fine motor skills

assessment is not performed.

Summary: Jeffrey is a 3 - year 1 - month - old

boy with motor and speech delays from birth.

There is documented fetal depression but no

clear documented fetal heart rate

disturbance after the onset of active labor.

His current status is improved from early in

life and he is now able to ambulate without

support and has started speaking in single

words. There are no signs of autistic

features.

Result as to question 1: J effrey is not

found to have a substantial physical

impairment at this time. He is found to

have a substantial language impairment at

this time.

Result as to question 2: In review of

available documents, although having

neurologic depression requiring so me

resuscitation at birth, there is no clear

acute hypoxic event, and fetal heart rate

strips were relatively benign. MRI

performed in the neonatal period, EEG

performed in the neonatal period did not

support an acute encephalopathy. No

laboratory eviden ce of multisystem hypoxic

changes were noted in postnatal period.

Result as to question 3: The prognosis for

full motor and mental recovery is guarded

but his life expectancy is full.

Due to absence of evidence of hypoxic event

during active labor, abse nce of secondary

findings supportive of a hypoxic

encephalopathy (MRI, laboratory or EEG) and

his ongoing motor and cognitive progress, I

do not feel that he should be included in

the NICA program. (JE I, P. 1 - 3).

31. Dr. Sigurdardottir confirmed a nd verified her opinions

in an affidavit dated August 31, 2017. Dr. Sigurdardottir also

testified, in relevant part, during her deposition on

February 14, 2018, as follows:

Q. And what were your conclusions to those

questions (asked by NICA)?

A. The co nclusions are the following:

Jeffrey is not found to have a substantial

physical impairment at this time. He is

found to have a substantial language

impairment at this time. That is question

one. So question one, he does not fulfill

the criteria having both a substantial

physical impairment and mental impairment.

Result of the question two, that although

having neurologic depression requiring some

resuscitation at birth there is no clear

precipitating acute hypoxic event that we

can establish with the available records

that we have, including fetal heart

restrict, as well as in the neonatal post

natal period there was no evidence of multi -

system organ failure that often goes along

with hypoxic ischemic events. So there was

an MRI performed within the f irst two weeks,

an EEG that was performed in a neonatal

period, and then no laboratory evidence of

multisystem hypoxic injury.

32. On cross e xamination by Mr. DÓAngelo,

Dr. Sigurdardottir further explained her opinions and analysis

as follows:

Q. So what do you personally think was just

the resuscitation he needed at birth likely?

And I understand weÓre not dealing in terms

of absolutes, but was the likely cause of my

sonÓs injury due to low amounts of oxygen at

birth?

A. Well, I would say itÓs clear he had

neurologic depression at birth. Then, we

start looking for signs that would indicate

that that would happen, such as the fetal

heart rate [t]racing, that was benign.

There was nothing in that that indicated

there was lack of oxygen. And th en after

birth, even though he had neurologic

depression, we did not have any of the hard

evidence that he had significant hypoxic

ischemic encephalopathy, is what we call it,

and thatÓs when you have other systems

involved, like the liver test becomes

abn ormal, the creatine continues to rise,

his active base balance at the age of

five hours looked fairly good, did not show

a metabolic acidosis. And then an MRI that

was performed, I believe, on day of life 10

or 11, that did not show any abnormality at

tha t point that indicated an acute ischemic

injury. So we have little that supports it

from all of the laboratory results that we

have and the fetal heart rate [tracing].

33. Dr. SigurdardottirÓs findings and opinion that Jeffrey

has a substantial lan guage impairment is undisputed and

credited. Her opinion that Jeffrey does not have a substantial

physical impairment is not credited for the reasons discussed

below in the Conclusions of Law. Dr. SigurdardottirÓs opinion

that there is evidence of fetal depression, but insignificant

evidence (at birth) to establish significant hypoxic ischemic

encephalopathy is supported by the evidence and is credited.

34. Petitioners submitted a notarized statement from

Jeffrey Huber in support of their position that Jeffrey

sustained a birth - related neurological injury. It appears that

Mr. Huber was the respiratory therapist in the operating room at

the time of delivery. Mr. HuberÓs statement provides, inter

alia, that Jeffrey had a Ðlack o f ventilation for lo nger than

2 minutes.Ñ Although Mr. HuberÓs statement has been considered,

it constitutes hearsay and cannot support independently any

finding of fact.

35. Additionally, Dr. Willis and Dr. Sigurdardottir, the

only qualified medical experts who have testified in this

matter, both represented that Mr. HuberÓs statement was duly

considered by them and did not change any of their opinions and

ultimate conclusions. Specifically, Dr. Willis testified, in

relevant part, as follows:

Q. Did that report [an d] statement from

Mr. [H]uber have any impact on your ultimate

opinions and conclusions?

A. No. No, it did not. Most of the things

that he Î that he talked about in there were

part of the medical records. The fact that

the baby required resuscitation, required

chest compressions was all in the medical

records. So nothing new there. He does not

state exactly what his position is, but I

assume from what IÓve read he must be

somehow involved with respiratory therapy.

So nothing new as far as what was i n the

medical records in his report.

CONCLUSIONS OF LAW

36. DOAH has jurisdiction over the parties to and the

subject matter of these proceedings. §§ 766.301 - 766.316,

Fla. Stat.

37. The Plan was established by the Legislature "for the

purpose of pr oviding 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.

38. 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 DOAH. §§ 766.302(3), 766.303(2), and 766.305(1), Fla.

Stat. NICA, 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(4), Fla. Stat.

39. If NICA determines that the injury alleged is a claim

that 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 (ALJ) to whom the claim

has been assigned. § 766.305(7), Fla. Stat. If, on the other

hand, NICA disputes the claims, as here, the dispute must be

resolved by the assigned ALJ in accordance with the provisions

of chapter 120, Florida Statutes. §§ 766.304, 766.309, and

766.31, Fla. Stat.

40. In discharging this responsibility, the ALJ is

required to make the following threshold determinations 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

neuro logical 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 postdelivery

period in a hospita l; 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 postdelivery

period in a hospital.

§ 766.309(1), Fla. Stat.

41. The term "birth - relate d neurological injury" is

defined in section 766.302(2) as follows:

"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 an d

substantially mentally and physically

impaired.

42. In Bennett v. St. VincentÓs Med ical C enter , Inc. ,

71 So. 3d 828, 837 (Fla. 2011), the court summarized the

determination of a birth - related neurological injury as follows:

Thus, based on the la nguage of the statute,

a birth - related neurological injury has four

components: (1) an injury to the brain or

spinal cord; (2) which is caused by oxygen

deprivation or mechanical injury; (3) during

labor, delivery, or resuscitation in the

immediate postde livery period; and (4) which

renders the infant permanently and

substantially impaired.

43. As set forth above, section 766.309(1)(a) provides for

a rebuttable presumption. Where, as here, the claimants are

seeking benefits under the Plan, to obt ain the rebuttable

presumption they do not have to establish that the incident

occurred during labor, delivery, or resuscitation in the

immediate postdelivery period, assuming the other statutory

prerequisites have been met. Bennett , 71 So. 3d at 844. Th e

statutory presumption is the type described in section

90.302(1) , Florida Statutes , also known as the Ðbursting bubbleÑ

presumption. Id . at 846.

44. Here, the evidence establishes that Jeffrey was a

single gestation, born in a hospital, and weig hed over 2 , 500

grams at birth. Based on the medical records and testimony, the

better evidence supports the conclusion that he has suffered an

injury to his brain caused by oxygen deprivation. It appears to

be undisputed from the medical records that Jef frey has been

diagnosed with cerebral palsy. 4/

45. Prior to addressing whether Jeffrey is Ðpermanently

and substantially mentally and physically impaired,Ñ it is

noteworthy that Ðthe legislature chose not to define the terms

used in the test fo r NICA qualification.Ñ Adventist , 865 So. 2d

at 568. These terms are to be given their ordinary meaning.

Id . In Adventist , the Fifth Circuit provided the following

limited directive:

The legislature left the application of the

terms they used to the ad ministrative law

judges designated by statute to hear these

claims and to apply the expertise they

develop in carrying out this task to

determine from the evidence adduced in each

case whether the test for NICA is met.

* * *

In cases such as the one befo re us, the ALJ,

as fact finder, brings his own background,

training, experience and expertise to the

task of weighing and evaluating very

sophisticated evidence. The childÓs

advocate likewise brings his own

communication and strategic skills to the

fact - f inding process; and finally, the

evidence in each case will vary in its power

to persuade. This will be especially true

in cases where the opinions of experts are

considered.

Id . at 568 - 69.

46. Petitioners contend that Jeffrey is permanently an d

substantially mentally impaired. NICA concedes, in its proposed

final order that Jeffrey has a permanent and substantial mental

impairment. The undersigned concurs and concludes that Jeffrey

is permanently and substantially mentally impaired.

47. Petitioners further aver that Jeffrey sustained a

brain injury caused by oxygen deprivation and that he was

thereby rendered permanently and substantially physically

impaired. Under the Plan, a Ðphysical impairmentÑ relates to

the infantÓs Ðmotor abnorm alitiesÑ or impairment of his

Ðphysical functions.Ñ Matteini v. Fla. Birth - Related

Neurological , 946 So. 2d 1092, 1095 (Fla. 5th DCA . 2006). In

support of this contention, Petitioners testified as to their

daily observations of JeffreyÓs physical impairm ents and

limitations, as set forth in the above Findings of Fact.

48. On behalf of NICA, Dr. Sigurdardottir examined Jeffrey

on March 29, 2017. The motor examination revealed generalized

hypotonia with some increased joint laxity, but full strengt h.

She further found his reflexes difficult to elicit, but present.

Additionally, she found that his balance and coordination were

delayed for his age; however, she did not perform a fine motor

skill assessment. As not ed in the Findings of Fact,

Dr. Sig urdardottir concluded that Jeffrey did not have a

substantial physical impairment and that his prognosis for full

motor recovery was Ðguarded.Ñ

49. While it is without question that Dr. Siguardottir

possesses the requisite education, training, skil l, and

background to credibly opine on the issues presented, her

opinion on whether Jeffrey has sustained a substantial physical

impairment is of limited valu e here. In her deposition,

Dr. Siguardottir explained that she utilizes the NICA statuteÓs

refere nce to Ðcatastrophic injuriesÑ as a reference or benchmark

in formulating her opinion as to whether a particular examinee

has sustained a substantial physical impairment. For all that

appears , she also utilizes a qualitative approach in reaching

said opin ion, often referencing Jeffrey in relation to where he

exists, developmentally, on a continuum of other examinees

previously determined entitled to compensation under the Plan.

50. Dr. Siguardottir was examined concerning the findings

contained in the most recent examination contained in the

Stipulated Record. This examination was conducted on June 21,

2017 (when Jeffrey was four years , three months old), at All

ChildrenÓs Hospital. The findings of that examination document

that JeffreyÓs gross mo tor skills were equivalent to a 15 - month

old; his fine motor skills were that of a 10 - month old; his

muscle tone was low throughout; and his coordination was

developmentally delayed. Dr. Siguardot tir opined that Jeffrey,

a 4.25 - year - old, is Ðsomewhere bet ween two and three years

delayed,Ñ but that, Ðthose developmental numbers are much higher

than the developmental age equivalence that we are typically

seeing in the NICA program.Ñ

51. Dr. SiguardottirÓs reference to catastrophic injuries

appears to originate from section 766.301(2), which sets forth

the legislative intent of the NICA program, 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 unu sually high costs for

custodial care and rehabilitation.

52. As discussed above, the NICA statute does not

statutorily define the terms used to determine NICA

qualification. While section 766.301(2) documents legislative

intent, it does not set f orth the standard for compensation

eligibility. The phrase Ðsubstantial physical impairmentÑ is to

be given its ordinary meaning. Without question, there will be

infants whose substantial physical impairments are catastrophic;

however, it does not follow that a physical impairment must be

catastrophic to be considered substantial. As Dr. Siguardottir

appears to have utilized a heightened standard beyond that

required by section 766.302(2) in reaching her opinion on

substantial physical impairment, the sa me is not credited in

this matter.

53. Having considered the entirety of the Stipulated

Record, the undersigned concludes that Petitioners have met

their burden of showing that Jeffrey is substantially and

permanently physically impaired. Accordin gly, the undersigned

concludes that Jeffrey sustained a brain injury caused by oxygen

deprivation that rendered Jeffrey permanently and substantially

mentally and physically impaired. Accordingly, Petitioners are

entitled to the rebuttable presumption the injury is a birth -

related neurological injury as defined in section 766.303(2).

54. While Petitioners are entitled to the rebuttable

presumption, that does not end the inquiry. It is undisputed

that, at the time of JeffreyÓs birth, there was an inc ident of

oxygen deprivation that required resuscitation in the immediate

postdelivery period in the hospital. The medical records

further document that Jeffrey had several additional apneic

episodes on his first day of life. Additionally, the medical

rec ords from Dr. Rao provide some evidence of a potential

causative link between JeffreyÓs depressed state at birth and

his ensuing physical and mental impairments. The undersigned

finds, however, that the better evidence was presented by NICAÓs

credible med ical expert witnesses who uniformly testified that,

despite his depressed state at birth, there was not an injury to

JeffreyÓs brain caused by oxygen deprivation during labor,

delivery, or resuscitation in the immediate postdelivery period.

Accordingly, i t is concluded that Jeffrey did not sustain a

birth - related neurological injury, and, therefore, is not

entitled to compensation under the Plan.

CONCLUSION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is ORDERED that the Petition is dismissed with

prejudice.

DONE AND ORDERED this 6th day of February , 2019 , in

Tallahassee, Leon County, Florida.

S

TODD P. RESAVAGE

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 A palachee 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 6th day of February , 2019 .

ENDNOTE S

1/ An Apgar score is a numerical e xpression of the condition of

the newborn and reflects the sum total of points gained on an

assessment of heart rate, respiratory effort, muscle tone,

reflex irritability, and color. See Bennett v. St. VincentÓs

Med. Ctr., Inc. , 71 So. 3d 828, 848 n.2 (Fl a. 2011).

2/ The discharge summary from Bayfront provides that Ð[i]nfant

received PPV x 5 min, oxygen, and chest c ompressions for

30 seconds per RT notes.Ñ The respiratory therapy records,

however, are not included in the Stipulated Record.

3/ The Stipulated Record does not include all of the records

from JeffreyÓs admission at All ChildrenÓs Hospital . T he

results from the MRI of March 6, 2014 , are not included .

4/ Although the Stipulated Record lacks a clear definition of

cerebral palsy, it is understood that cerebral palsy refers to a

group of motor disorders caused by an injury to the developing

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

Related Neurological Injury , 865 So. 2d 561, 563 (Fla. 5th DCA

2004).

COPIES FURNIS HED:

(via certified mail)

Kenney Shipley, Executive Director

Florida Birth Related Neurological

Injury Compensation Association

Suite 1

2360 Christopher Place

Tallahassee, Florida 32308

(eServed)

(Certified Mail No. 7012 1640 0000 7869 7860)

Katis D'A ngelo

1367 Whitewood Avenue

Spring Hill, Florida 34609

(Certified Mail No. 7012 1640 0000 7869 7877)

Justine D. Adamski, Esquire

La Cava & Jacobson, P.A.

Suite 1250

501 East Kennedy Boulevard

Tampa, Florida 33602

(eServed)

(Certified Mail No. 7012 1640 0000 7869 7884)

Scott B. Albee, Esquire

Fulmer Leroy Albee, PLLC

Suite 100

11300 Fourth Street North

St. Petersburg, Florida 33716

(Certified Mail No. 7015 6040 0001 2706 8894)

Jeffery Dean D'Angelo

1367 Whitewood Avenue

Spring Hill, Florida 34609

(eS erved)

(Certified Mail No. 7015 6040 0001 2706 8900)

Craig D. Miller, Esquire

Rutledge Ecenia, P.A.

Suite 202

119 South Monroe Street

Tallahassee, Florida 32301

(eServed)

(Certified Mail No. 7015 6040 0001 2706 8917)

M. Mark Bajalia, Esquire

Bajalia La w

Suite 301

11512 Lake Mead Avenue

Jacksonville, Florida 32256

(eServed)

(Certified Mail No. 7015 6040 0001 2706 8924)

John David Gallagher, Esquire

Fulmer, Leroy & Albee, P.L.L.C.

Suite 100

11300 4th Street North

St. Petersburg, Florida 33716

(eServed)

(Certified Mail No. 7015 6040 0001 2706 8931)

Amie Rice, Investigation Manager

Consumer Services Unit

Department of Health

4052 Bald Cypress Way, Bin C - 75

Tallahassee, Florida 32399 - 3275

(Certified Mail No. 7015 6040 0001 2706 8948)

Mary C. Mayhew , Se cretary

Agency for Health Care Administration

2727 Mahan Drive, Mail Stop 1

Tallahassee, Florida 32308

(eServed)

(Certified Mail No. 7015 6040 0001 2706 8955)

Spring Hill Regional Hospital

Attention: Risk Management

10461 Quality Drive

Spring Hill, Flor ida 34609

(Certified Mail No. 7015 6040 0001 2706 8962)

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. R eview proceedings are governed

by the Florida Rules of Appellate Procedure. Such proceedings

are commenced by filing the original notice of administrative

appeal with the a gency c lerk 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, with 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).