18-002337N Michelle Mark And Juan Payne, As Natural Parents And Guardians Of Ashton Payne, A Minor vs. Florida Birth-Related Neurological Injury Compensation Association Status: Closed DOAH Final Order on Friday, March 29, 2019.

Summary: The infant sustained a "birth-related neurological injury" as defined in section 766.302(2), Florida Statutes. Therefore, the infant is eligible for benefits under the NICA Plan.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MICHELLE MARK and JUAN PAYNE, as

Natural Parents and Guardians of

ASHTON PAYNE, a minor,

Petitioners,

vs. Case No. 18 - 2337N

FLORIDA BIRTH - RELATED

NEUROLOGICAL INJURY COMPENSATION

ASSOCIATION,

Respondent,

and

ADVENTIST HEALTH SYSTEM/SUNBELT,

INC., d/b/a WINTER PARK MEMORIAL

HOSPITAL ; AND ORLANDO HEALTH,

INC., d/b/a WINNIE PALMER

HOSPITAL FOR WOMEN AND BABIES,

Intervenors.

_______________________________/

FINAL ORDER

The f inal hearing in this matter was conducted before

J. Bruce Culpepper, Administrative Law Judge of the Division of

Administrative Hearings, pursuant to sections 120.569, 120.57(1),

and 766.304, Florida Statutes (2018), 1 / on November 14, 2018, in

Orlando, Flo rida.

APPEARANCES

For Petitioner s : Jorge E. Silva, Esquire

Carolina B. Suarez, Esquire

Silva & Silva, P.A.

236 Valencia Avenue

Coral Gables, Florida 33134

For Respondent: David W . Black, Esquire

Frank, Weinberg & Black, P.L.

7805 Southwest 6th Court

Plantation, Florida 33324

For Intervenor Winter Park Hospital:

Travase L . Erickson, Esquire

Taylor A. Morgan, Esquire

Saalfield Shad, P.A.

245 Riverside Avenue, Suite 400

Jacksonville, Florida 32202 - 4926

For Intervenor Winnie Palmer:

Bradley P. Blystone, Esquire

Marshall, Dennehey, Warner,

Coleman & Goggin

315 East Robinson Street, Suite 550

Orlando, Florida 32801

STATEMENT OF THE ISSUE

The issue to determine in this matter is whether Ashton

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

by section 766.302(2), Florida Statutes, for which compensation

should be awarded under the Florida Birth - Related Neurological

Injury Compensation Plan.

PRELIMINARY STATEMENT

On May 8, 2018, Petitio ners Michele Mark and Juan Payne, as

natural parents and guardians of Ashton Payne ( " Ashton " ), a minor,

filed a Petition for Benefits Pursuant to Florida Statute

Section 766.301 et seq. (the " Petition " ) with the Division of

Administrative Hearings ( " DOAH " ) for the determination of

compensability under the Florida Birth - Related Neurological Injury

Compensation Plan (the " Plan " ). (Petitioners submitted their

Petition " under protest " contending that Ashton did not suffer a

birth - related injury that qualifies for an award under the Plan.)

Ashton was born on January 19, 2018, at Adventist Health

System/Sunbelt, Inc., d/b/a Winter Park Memorial Hospital ( " Winter

Park Hospital " ) , in Winter Park, Florida. The Petition identified

Michelle M. Cabrera, M.D., as the p hysician who provided

obstetric al services at Ashton ' s birth.

DOAH served a copy of the Petition on Respondent Florida

Birth - Related Neurological Injury Compensation Association

( " NICA " ) on May 15, 2018. DOAH also served Dr. Cabrera with a

copy of the P etition, as well as Winter Park Hospital on that same

date.

Winter Park Hospital moved to intervene on May 23, 2018,

which was granted. Orlando Health, Inc., d/b/ a Winnie Palmer

Hospital for Women and Babies ( " Winnie Palmer " ) , moved to

intervene on May 25 , 2018, which was also granted.

On July 13, 2018, NICA filed its response to the Petition,

taking the position that Ashton suffered a " birth - related

neurological injury " within the meaning of section 766.302(2).

Accordingly, NICA asserted that Petitioners ' claim is compensable

under the Plan. NICA requested DOAH schedule a hearing to

determine compensability.

NICA also requested that DOAH bifurcate the administrative

proceeding to address the issue of compensability and notice

before determining the amo unt of any award to which Petitioners

might be entitled under section 766.31. In light of NICA ' s

request, the undersigned bifurcates this proceeding. Accordingly,

this Final Order only addresses compensability and notice. See

§ 766.309(4), Fla. Stat.

Th e final hearing was held on November 14, 2018. At the

final hearing, Petitioners ' Exhibits 1 through 22 were admitted

into evidence. NICA ' s Exhibits 1 and 2 were admitted into

evidence. Winnie Palmer ' s Exhibit 1 was admitted into evidence.

Winter Park Hospital did not present any exhibits. No party

presented witnesses at the final hearing. However, by agreement

of the parties, the undersigned admitted the deposition testimony

of the following individuals: Petitioners ' medical experts Jason

James, M.D . (Petitioners ' Exhibit 20) , and Ariel Sherbany, M.D.

(Petitioners ' Exhibit 21); NICA ' s medical experts Donald

Willis, M.D. (Petitioners ' Exhibit 16) , and Laufey

Sigurdardottir, M.D. (Petitioners ' Exhibit 19); and Winnie

Palmer ' s medical experts Donald Nul l, M.D. (Petitioners '

Exhibit 17) , and Harry Farb, M.D. (Petitioners ' Exhibit 18).

A Transcript of the final hearing was filed with DOAH on

November 30, 2018. At the close of the hearing, the parties were

advised of a ten - day deadline after receipt of the hearing

transcript to file post - hearing submittals. The parties jointly

requested a ten - day extension of the filing time frame, which was

granted. 2 / Petitioners, NICA, and Winnie Palmer filed Proposed

Final Orders, which were duly considered in preparin g this Final

Order.

FINDINGS OF FACT

1. Ashton was born on January 19, 2018. Ashton was

delivered at Winter Park Hospital.

2. Petitioner Michele Mark is Ashton ' s mother. Petitioners

are Ashton ' s natural parents and legal guardians.

3. Michele M. Cabre ra, M.D., delivered Ashton at Winter Park

Hospital. Dr. Cabrera was a " participating physician " in the Plan

at the time she rendered obstetrical services on January 19, 2018.

See § 766.302, Fla. Stat. Dr. Cabrera provided her obstetrical

services in the course of Ashton ' s delivery, and the resuscitation

in the immediate post - delivery period.

4. Ashton weighed 3310 grams at birth.

5. The parties do not dispute that Ashton has suffered an

injury to his brain due to oxygen deprivation which has left him

permanently and substantially mentally and physically impaired.

6. The parties do not dispute that the NICA notice

requirements, as set forth in section 766.316, were met.

7. Ashton was born under very challenging circumstances.

At approximately 1:11 a .m. on January 19, 2018, Ms. Mark appeared

at Winnie Palmer. 3 / Ms. Mark, who was at 37 weeks ' gestation,

complained of contractions and severe pain.

8. At Winnie Palmer, a triage nurse evaluated Ms. Mark.

The examination revealed that Ms. Mark was exp eriencing

intermittent contractions. The nurse also recorded that

Ms. Mark ' s cervix was one centimeter dilated and 100 percent

effaced. Ms. Mark informed the nursing staff that an ultrasound

two days earlier revealed that the fetus was breech. However,

apparently because the birth was not imminent, Ms. Mark was

discharged from Winnie Palmer at 2:33 a.m.

9. Back at her home, at approximately 3:19 a.m., Ms. Mark

experienced a spontaneous rupture of her fetal membranes (her

" water broke " ) . The rupture imm ediate resulted in an umbilical

cord prolapse. A cord prolapse means that the umbilical cord

dropped down through the cervix before the baby. This

complication can cause the umbilical cord to be occluded, or

squeezed, which can severely diminish the flow of oxygen to the

fetus. Later, Ms. Mark relayed that she felt her baby ' s foot in

her vagina (a " footling " breech).

10. Sitting on her bathroom floor, with the umbilical cord

protruding from the birth canal, Ms. Mark called 911.

11. At 3:30 a.m., Emer gency Medical Service personnel

( " EMS " ) responded to Ms. Mark ' s home. When EMS reached Ms. Mark,

they found her seated with approximately 15 inches of umbilical

cord exposed. Initially, EMS was unable to feel a pulse in the

umbilical cord. Once Ms. Mark was lifted and repositioned onto a

stretcher, however, EMS was able to detect a faint pulse in the

cord. EMS also noted that Ms. Mark was experiencing contractions

" 2 minutes apart. "

12. EMS transported Ms. Mark, in an ambulance, to Winter

Park Hospit al. EMS departed Ms. Mark ' s home at 3:41 a.m., and

arrived at Winter Park Hospital at 3:53 a.m.

13. At 3:58 a.m., Ms. Mark reached the Labor and Delivery

Operating Room. There, she underwent an emergency C - section.

Prior to the operation, the triage n urse palpated pulsation in

the prolapsed cord. Ms. Mark was still experiencing contractions

at two to three minutes apart.

14. Dr. Cabrera conducted the emergency C - section. Ashton

was delivered at 4:04 a.m. Dr. Cabrera ' s notes record " fetal

distress cord prolapse, fetal malposition footling breech. " A

" footling breech " indicates that one or both of the baby ' s feet

were positioned in the birth canal instead of the pelvis.

15. Upon Ashton ' s delivery, Winter Park Hospital initiated

a " Code Blue. " Dr. Cabrera immediately started emergency

resuscitative measures. At delivery, Ashton was not breathing,

with a recorded heart rate of only 30 beats per minute. Ashton

required full cardiorespiratory resuscitation. Ashton was

emergently intubated at 4:06 a .m. Chest compressions were

initiated " @ 20 - 30 seconds of life " and stopped at 4:08 a.m. At

4:08 a.m., Ashton ' s heart rate had reached 104 beats per minute.

16. The Code Blue lasted from 4:04 a.m. to 4:29 a.m. By

4:29 a.m., Ashton ' s heart rate had rise n to 144 beats per minute.

The last oxygen saturation level recorded during the Code Blue

was 77 percent at 4:19 a.m., indicating severe hypoxia.

( " Hypoxia " means partial loss of oxygen to the fetus. " Anoxia "

means total loss of oxygen to the fetus. Th e normal oxygen

saturation range is 97 - 100 percent .) Ashton ' s APGAR

( " Appearance, Pulse, Grimace, Activity, Respiration " ) scores

following delivery were 1/2/4/4 at 1, 5, 10, and 15 minutes,

respectively. (Scores of 7 to 10 are considered normal.)

17. At 4:29 a.m., Ashton was transferred to the Neonatal

Intensive Care Unit ( " NICU " ). Ashton was still unable to breath

on his own. NICU noted " no respiratory effort and seizures. "

NICU placed Ashton on a mechanical ventilator in a continued

effort to resus citate him.

18. At 4:41 a.m., the initial Arterial Blood Gas ( " ABG " )

Report showed that Ashton was experiencing severe metabolic

acidosis. The ABG Report recorded a pH level of 6.809 (critical)

with a base excess of negative 25. This score signified a

severely acidotic child with both a metabolic and respiratory

acidotic condition. The acidotic condition required immediate

medical treatment to correct.

19. At 5:14 a.m., approximately 70 minutes after Ashton ' s

birth, a second ABG Report showed a pH le vel of 7.034 (critical)

with a base excess of negative 19. These values indicated that

Ashton was continuing to experience severe metabolic acidosis.

20. At 7:15 a.m., Ashton was transferred to the NICU at

Florida Hospital Orlando. Although Ashton ' s oxygen saturation

level had reached 99 percent, he was still unable to breathe on

his own. He remained on a ventilator. Ashton also experienced

repeated seizure activity. A progress report on January 21, 2018

(two days after his delivery) , noted two epi sodes of seizures on

that day.

21. Ashton remained on a ventilator until January 26, 2018

(seven days after his delivery), when he was extubated.

22. Petitioners argue that Ashton did not suffer a " birth -

related neurological injury " which would entitle h im to an award

under the Plan. Section 766.302(2) defines the term to mean:

[I] njury to the brain or spinal cord of a

live infant weighing at least 2,500 grams for

a single gestation . . . caused by oxygen

deprivation or mechanical injury occurring in

the course of labor, delivery, or

resuscitation in the immediate postdelivery

period in a hospital, which renders the

infant permanently and substantially mentally

and physically impaired.

23. Petitioners do not dispute that Ashton ' s case presents

an inju ry to the brain of a live infant weighing at least 2,500

grams. Neither do Petitioners contest that Ashton ' s injury was

caused by oxygen deprivation which renders him permanently and

substantially mentally and physically impaired. What Petitioners

challe nge is whether Ashton ' s injury occurred " in the course of

labor, delivery, or resuscitation in the immediate postdelivery

period. "

24. Petitioners assert that Ashton ' s neurological

impairment directly resulted from the umbilical cord prolapse in

Ms. Mar k ' s home at 3:19 a.m. Petitioners contend that Ashton ' s

brain injury (due to oxygen deprivation) manifested before the

time Ms. Mark reached Winter Park Hospital (3:53 a.m.).

Consequently, Ashton ' s injury did not develop during his delivery

at 4:04 a.m. or any subsequent postdelivery resuscitation

efforts. Petitioners further argue that Ms. Mark was never in

labor at any point during Ashton ' s birth. Therefore, they

contend that Ashton ' s brain injury did not occur " in the course

of labor, delivery, or re suscitation, " and Ashton does not

qualify for coverage under the Plan.

25. To support their argument, at the final hearing,

Petitioners presented the (deposition) testimony of Jason James,

M.D., and Ariel Sherbany, M.D.

26. Dr. James is a b oard - c ertified o bstetrician/

g ynecologist. Dr. James testified that, in his opinion, Ashton

did not sustain a qualifying " birth - related " injury because

Ms. Mark was not in labor at any point prior to Ashton ' s delivery

at 4:04 a.m.

27. Initially, Dr. James commented th at it is " impossible to

say " with any certainty whether Ms. Mark was in labor at the time

of the umbilical cord prolapse at her home or prior to Ashton ' s

delivery. Dr. James defined labor as " progressive cervical change

in response to contractions. " He r elayed that, " In order for me

to say a patient ' s in labor, I would need to see progressive

cervical change in the presence of contractions, and we don ' t see

that. " Dr. James explained that, even with Ms. Mark dilated at

one centimeter at Winnie Palmer, he saw " no documentation of any

cervical change, whether by the EMS or by the hospital staff at

Winter Park. "

28. Dr. James further expounded that the 100 percent

effacement observed at Winnie Palmer was not necessarily related

to labor. " Effacement is o ne of the cervical changes that we do

see, but there are things that can cause cervical effacement that

are not associated with labor. " Accordingly, Dr. James did not

see sufficient evidence to conclude that Ms. Mark was in labor

before Ashton ' s delivery.

29. Regarding the exact time Ashton ' s brain injury occurred,

Dr. James testified that Ashton ' s brain injury resulted from

oxygen deprivation due to the umbilical cord prolapse. He opined

that the majority of the oxygen deprivation occurred during the

34 minutes from the " moments . . . the cord prolapse occurred "

(3:19 a.m.) to the time Ms. Mark arrived at Winter Park Hospital

(3:53 a.m.). Dr. James stated that:

[T] he amount of brain damage that occurred

prior to even the patient arriving at the

hospit al was substantial and permanent, and I

think that the die was cast. . . . Was there

ongoing and further damage? Yes. . . . I

will agree that there was ongoing and further

damage, but I think that to say that that was

the portion that resulted in perman ent

impairment is a mischaracterization.

Accordingly, Dr. James supported Petitioner s ' position that

Ashton ' s brain injury did not occur in the course of labor,

delivery, or resuscitation in the immediate postdelivery period

because " this baby already had substantial and permanent brain

damage on arrival. "

30. Despite this assertion, Dr. James conceded that Ashton

did suffer oxygen deprivation during the 11 minutes between the

time Ms. Mark was admitted to Winter Park Hospital (3:53 a.m.) and

his deliver y at 4:04 a.m. Dr. James also accepted that Ashton

continued to incur brain damage through the one hour and 10 - minute

time frame after his birth. 4 / Dr. James further acknowledged that

the hypoxia (partial lack of oxygen) Ashton experienced after

3:53 a.m . could have resulted in significant brain impairment.

31. Finally, Dr. James disclosed that, in his opinion,

Ashton was never anoxic (total lack of oxygen to the fetus) during

the 34 minutes prior to Ms. Mark ' s arrival at Winter Park

Hospital.

32. Dr. S herbany is a pediatric neurologist. Dr. Sherbany

offered no opinion as to whether Ms. Mark was actually in labor

at the time of the umbilical cord prolapse.

33. Regarding the time period during which Ashton ' s brain

injury due to oxygen deprivation occurr ed, Dr. Sherbany testified

that Ashton ' s " brain - damaged fate was already predetermined

before he arrived. " Dr. Sherbany believed that the umbilical

cord prolapse caused anoxia, or complete loss of oxygen to the

fetus. Dr. Sherbany opined that this period of anoxia lasted

11 minutes until EMS repositioned Ms. Mark on a stretcher.

Thereafter, the fetus experienced hypoxia (partial loss of

oxygen) until Ms. Mark was admitted to the hospital.

Dr. Sherbany explained that the " bulk of [Ashton ' s] oxygen

depriv ation really occurred " during the 34 - minute time period

before Ms. Mark presented at Winter Park Hospital. Dr. Sherbany

expressed that, " The damage was determined at the time of that

anoxic event . . . . In those 34 minutes, basically, this

unfortunate ch ild suffered his fate. " In Dr. Sherbany ' s opinion,

Ashton sustained the " majority of the insult to the brain

stem . . . during that anoxic period. "

34. Like Dr. James, however, Dr. Sherbany conceded that

Ashton continued to suffer oxygen deprivation, whi ch resulted in

additional brain injury, in the first 11 minutes after Ms. Mark

arrived at Winter Park Hospital up to and through the four

minutes of cardiac massage administered to Ashton after his

delivery. Although Dr. Sherbany limited the immediate

pos tdelivery resuscitation period to four minutes after birth,

he acknowledged that Ashton was not medically stable until he

was transported to the NICU unit at Florida Hospital Orlando

at 7:15 a.m., three hours and 11 minutes after delivery.

Dr. Sherbany al so recognized that Ashton did not breath e on his

own, without the assistance of a mechanical ventilator, for six

days after his birth.

35. Upon receiving Petitioners ' Petition for NICA benefits,

NICA conducted an evaluation to determine whether Petition ers '

claim was compensable under the Plan. Unlike Petitioners,

however, NICA concluded that Ashton did suffer a " birth - related

neurological injury " within the meaning of section 766.302(2) and

should be covered by the Plan.

36. NICA does not dispute Peti tioners ' claim that Ashton

suffered oxygen deprivation beginning as early as 3:19 a.m. (the

moment of the umbilical cord prolapse) through 3:53 a.m. (All

medical experts agree that Ashton experienced oxygen deprivation,

as well as brain injury, between 3: 19 a.m. and 3:53 a.m.)

However, NICA asserts that Ms. Mark was in labor at the time of

the cord prolapse. NICA also argues that Ashton continued to

experience oxygen deprivation (which resulted in brain injury)

through his delivery and postdelivery resus citation at Winter

Park Hospital. Therefore, NICA contends that Ashton ' s medical

condition meets the statutory definition of " birth - related

neurological injury " because his neurological injury occurred

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

37. To support its position, NICA presented the

(deposition) testimony of Donald C. Willis, M.D., and Laufey Y.

Sigurdardottir, M.D.

38. Dr. Willis is b oard - c ertified in both o bstetrics and

m aternal f etal m edicine. Dr. Willis opined, within his medica l

expertise, that Ms. Mark went into labor shortly before or just

after 3:19 a.m. Dr. Willis explained that " when EMS came [at

3:30 a.m.], [Ms. Mark] was having regular contractions, so I would

assume that she was either in labor before that time or labor

initiated with rupture of the membranes . . . . I would assume

that her labor began somewhere right around 3:19 a.m. "

39. Dr. Willis concurred with Petitioners ' medical experts

that oxygen deprivation occurred at the moment of the umbilical

cord prolapse at 3:19 a.m. Dr. Willis explained that " oxygen

deprivation can lead to brain injury. " Accordingly, Dr. Willis

agreed that " there was some degree of brain injury [to Ashton]

during that time period [3:19 a.m. through 3:53 a.m.]. "

40. However, unlike Dr. James and Dr. Sherbany, Dr. Willis

declared that Ashton experienced an ongoing and continuing injury

from the cord prolapse through at least 70 minutes after he was

delivered at 4:04 a.m. Dr. Willis explained that oxygen

deprivation continues until the o xygen returns to the bloodstream

and reaches the organs and tissues. Consequently, Ashton ' s

neurological injury progressed through his delivery and into the

immediate postdelivery resuscitation period, at least through the

time that Ashton continued to ex perience metabolic acidosis

(5:14 a.m.). Accordingly, in Dr. Willis ' opinion, Ashton ' s brain

injury due to oxygen deprivation undoubtedly occurred during the

labor, delivery, and the immediate postdelivery resuscitation

period.

41. However, while agree ing that Ashton began experiencing

oxygen deprivation with the umbilical cord prolapse (3:19 a.m.),

Dr. Willis testified that he did not " have any way to gauge " the

amount of oxygen deprivation between 3:19 a.m. and 3:53 a.m.

Therefore, he would not quant ify when exactly Ashton ' s brain

injury reached the level of permanent and substantial mental and

physical impairment. On the other hand, Dr. Willis was certain

Ashton continued to suffer brain injury due to oxygen deprivation

during the resuscitation effo rts in the immediate postdelivery

period.

42. Finally, Dr. Willis refuted Dr. Sherbany ' s statement

that Ashton experienced complete anoxia for any prolonged period

(11 minutes) after the umbilical cord prolapse. Dr. Willis did

not believe that Ashton wou ld have l ived through that situation.

43. Dr. Sigurdardottir is a pediatric neurologist. Alone

among the expert witnesses, Dr. Sigurdardottir performed an

independent medical evaluatio n of Ashton on June 27, 2018.

44. Similar to Dr. Willis, Dr. Sigurdar dottir testified that

the " very, very substantial part " of Ashton ' s brain injury

occurred at Winter Park Hospital in the final couple of minutes

just prior to his delivery. Dr. Sigurdardottir declared that

Ashton endured a continuum of brain injury due to oxygen

deprivation. Dr. Sigurdardottir explained that brain injuries

from oxygen deprivation occur exponentially, with the most

critical period of injury " at the tail end of the hypoxic ischemic

event. " Dr. Sigurdardottir opined that the most severe par t of

Ashton ' s neurological injury occurred in the few minutes right

before his delivery, and extended through the immediate post

resuscitative period when Ashton experienced metabolic acidosis.

Dr. Sigurdardottir further stated that Ashton ' s brain injury

continued to evolve " within the first week " of his life, when he

was most unstable.

45. Dr. Sigurdardottir also commented that, given that

hypoxia existed for some undetermined time prior to Ms. Mark ' s

arrival at a hospital, it is difficult, if not imposs ible, to

determine the full extent of the oxygen deprivation that occurred

prior to 3:53 a . m . Therefore, it is difficult, if not impossible,

to conclude that Ashton incurred a permanent and substantial brain

injury prior to his delivery. Accordingly, Dr. Sigurdardottir

concluded that Ashton ' s irreversible brain injury occurred during

the final minutes prior to his birth at Winter Park Hospital, and

in the hours and days after his delivery.

46. In addition, contrary to Dr. Sherbany and similar to

Dr. Wil lis, Dr. Sigurdardottir unequivocally stated that Ashton

did not experience complete lack of oxygen (anoxia) prior to his

delivery. Dr. Sigurdardottir rejected any suggestion that the

fetus had no heartbeat from 3:19 a.m. until EMS felt a pulse

around 3:3 1 a.m. Dr. Sigurdardottir explained that if Ashton had

no heartbeat for 12 minutes prior to his birth, then relieving

pressure on the umbilical cord would not have made a difference;

Ashton would have been dead at his delivery. However, because EMS

was a ble to detect a pulse after repositioning Ms. Mark on the

stretcher, Dr. Sigurdardottir believed that Ashton ' s heart was

beating between 3:19 a.m. and 3:31 a.m.

47. Dr. Sigurdardottir further posited that, if Ashton had

been utterly deprived of oxygen ( anoxic) prior to 3 :53 a.m., some

meconium would have been present in the amniotic fluid. However,

the EMS personnel who first treated Ms. Mark did not document any

meconium from the rupture of membranes. In addition, the

operative report from Ashton ' s de livery at Winter Park Hospital

noted that the amniotic fluid was " clear. " Therefore,

Dr. Sigurdardottir refuted Dr. Sherbany ' s conclusion that Ashton

experienced anoxia (total loss of oxygen) rather than hypoxia

(partial loss of oxygen).

48. Winnie Palme r joined NICA in arguing that Ashton

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

section 766.302. Winnie Palmer presented the expert (deposition)

testimony of Donald Null, M.D., and Harry Farb, M.D.

49. Dr. Null is a b oard - c ertified n eon atologist. In his

practice, Dr. Null provides care and treatment to critically ill

infants just after delivery.

50. In Dr. Null ' s opinion, Ms. Mark was experiencing some

form of labor, though not " active " labor, when she visited Winnie

Palmer at 1:11 a .m. on January 19, 2018. Dr. Null based his

opinion on the fact that Ms. Mark was noted to have contractions

and " minor " changes in her cervix. Dr. Null explained that active

labor is when contractions start happening at a regular and

consistent basis, a nd there is a change in the cervix. Dr. Null

believed that Winnie Palmer released Ms. Mark at 2:33 a.m. because

her contractions and cervical changes were not progressing.

Dr. Null further remarked that Ms. Mark was clearly in labor at

the time she prese nted to Winter Park Hospital at 3:53 a.m.

However, Dr. Null qualified his comment by conceding that " I don ' t

really have an opinion of when [Ms. Mark] was or wasn ' t in labor. "

51. Regarding the timing of Ashton ' s neurologic injury, in

Dr. Null ' s opinion, Ashton had only suffered " mild insult " when

Ms. Mark arrived at Winter Park Hospital. Dr. Null explained that

a footling breech typically does not result in " total occlusion "

of the umbilical cord, only " partial occlusion. " In other words,

Ashton only e xperienced hypoxia (partial loss of oxygen to the

fetus) not anoxia (total loss of oxygen to the fetus) prior to

3 :53 a.m. Dr. Null further opined that the hypoxia was not as

severe before Ms. Mark ' s admission to the hospital as it was

during the delivery and resuscitation efforts.

52. Dr. Null testified that Ashton suffered a continuing

brain injury from the time of the cord prolapse (3:19 a.m.) until

his metabolic acidosis was rectified approximately 70 minutes

after his delivery (5:14 a.m.). Dr. Nul l concluded that Ashton

suffered a profound neurological injury, which he referred to as

hypoxic ischemic encephalopathy ( " HIE " ), from the time Ms. Mark

arrived at Winter Park Hospital until the time the postdelivery

resuscitation efforts concluded. Dr. N ull based his opinion on

the fact that Ashton ' s heartrate was measured at 30 beats per

minute at delivery, and was most likely at that level at the time

Ms. Mark arrived at the hospital. Dr. Null also referred to the

fact that Ashton required continuing r esuscitation to correct his

metabolic acidosis. Dr. Null opined that the HIE was significant

enough to cause Ashton ' s substantial brain injury.

53. Agreeing with Dr. Willis, Dr. Null testified that it is

" impossible to quantify " the extent of the oxyge n deprivation

Ashton suffered between 3:19 a.m. and 3:53 a.m. However, agreeing

with Dr. Sigurdardottir, Dr. Null testified that if Ashton had

experienced " profound " oxygen deprivation (anoxia) or " a very

profound injury prior to arrival " at Winter Park H ospital, he

" probably would not have survived the rest of the labor and the

resuscitation. " Therefore, in concert with Dr. Sigurdardottir ' s

opinion, Dr. Null believed that Ashton sustained the " more

substantial portion of his brain injury " after the time Ms. Mark

presented at the hospital (3:53 a.m.) and during delivery and

postdelivery resuscitation.

54. Dr. Farb is b oard - c ertified in both o bstetrics and

m aternal f etal m edicine. In Dr. Farb ' s opinion, the vast majority

of Ashton ' s brain injury occurred after Ms. Mark arrived at Winter

Park Hospital.

55. Initially, Dr. Farb testified that Ms. Mark was in

labor, " with a qualifier, " when she arrived at Winter Park

Hospital at 3 :53 a.m. Dr. Farb defined labor as " contractions in

association with cervical d ilation [or change]. " Dr. Farb

commented that Ms. Mark ' s " contractions every two minutes could

certainly be consistent with labor. " However, he did not have any

information on the presence of cervical change. Therefore,

Dr. Farb issued a " qualified " con clusion that, if Ms. Mark was not

in the active phase of labor, then she was at least in the " latent

phase of labor. "

56. Regarding when Ashton ' s neurological injury occurred,

Dr. Farb acknowledged that some hypoxia occurred prior to

Ms. Mark ' s arrival at the hospital. However, Dr. Farb agreed with

the assessments of Dr. Willis, Dr. Sigurdardottir, and Dr. Null

that the actual amount of oxygen deprivation cannot be determined.

That being said, Dr. Farb, again agreeing with Dr. Willis,

Dr. Sigurdardottir, and Dr. Null, believed that " the substantial

part of the injury occurred after arrival [at 3 :53 a.m.] and into

the immediate neonatal resuscitation period. "

57. Dr. Farb estimated that " 90 percent of the injury at

least occurred at and after admission to the hospital. " Dr. Farb

based his opinion on several factors, including: a footling

breech does not cause total umbilical cord occlusion; Ashton ' s

condition worsened from the time of his presentation to the

hospital ( 3 :53 a.m.) until delivery (4:04 a. m.); and Ashton

experienced " continuous seizure activity " for at least 70 minutes

after delivery (through 5:14 a.m.). Dr. Farb further commented

that the second ABG draw at 5:14 a.m. showed that Ashton was still

severely acidotic, which meant that his bra in injury was still

progressing.

58. Dr. Farb also explained that a fetus does not

immediately suffer a neurological injury at the moment of an

umbilical cord prolapse. A fetus has a reserve of oxygen th at

must be de p leted before injury to the brain o ccurs. Dr. Farb

explained that oxygen deprivation (and any resulting brain injury)

may not ha ve commenced in Ashton until 10 to 18 minutes after the

ruptured membranes and prolapsed cord.

59. Like Dr. Sigurdardottir, Dr. Farb explained that oxygen

depriv ation is progressive in nature and exacerbates over time.

Accordingly, " the severity of the oxygen deprivation was much

worse at [Ms. Mark ' s] admission and [Ashton ' s] delivery. " There

was no question in Dr. Farb ' s mind " that the severity of the

oxygen de privation and the brain injury . . . occurs much closer

to the time of delivery because things are progressive and as well

as continuing in the immediate resuscitation period. "

Specifically, Ashton ' s brain injury continued to occur up to an

hour and 10 mi nutes after his delivery as revealed by his severe

metabolic acidosis at 5:14 a.m. In addition, Dr. Farb stated that

Ashton ' s brain was also injured due to constant seizure episodes

after his delivery while he was still being resuscitated.

60. Based on the competent substantial evidence in the

record, the preponderance of the evidence establishes that Ashton

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

section 766.302(2). The evidence demonstrates that Ashton began

experiencing oxygen d eprivation at the time of the umbilical cord

prolapse which continued through delivery and immediate

postdelivery resuscitation. This oxygen deprivation caused Ashton

to sustain a brain injury which has rendered him permanently and

substantially mentally and physically impaired.

61. The evidence does not prove that Ms. Mark was in labor

prior to Ashton ' s birth. However, based on the more persuasive

medical testimony, the evidence establishes that Ashton suffered

injury to his brain, caused by oxygen de privation, in the course

of his delivery and resuscitation in the immediate postdelivery

period at Winter Park Hospital. Accordingly, Ashton is eligible

for an award of compensation under the Plan .

CONCLUSIONS OF LAW

62. The Division of Administrative He arings has jurisdiction

over the parties and the subject matter of this proceeding

pursuant to sections 766.301 through 766.316. The undersigned, as

an Administrative Law Judge, has " exclusive jurisdiction to

determine whether a claim filed under [NICA] i s compensable. "

§§ 766.301(1)(d), 766.304, and 766.311(1), Fla. Stat. 5 /

63. In 1988, the Florida Legislature created the Plan as a

means to alleviate the high costs of medical malpractice

insurance for physicians practicing obstetrics. Bennett v.

St. Vincent ' s Med. Ctr., Inc. , 71 So. 3d 828, 836 (Fla. 2011);

and Univ. of Miami v. Ruiz , 164 So. 3d 758, 764 (Fla. 3d

DCA 2015). Specifically, the Legislature established the Plan

" to provide compensation, on a no - fault basis, for a limited class

of catastr ophic [birth - related neurological] injuries that result

in unusually high costs for custodial care and rehabilitation. "

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

of Admin. Hearings , 686 So. 2d 1349, 1354 (Fla. 1997), and

§ 766.301(2) , Fla. Stat. The Plan ' s purpose is to " provid[e]

compensation, irrespective of fault, for birth - related

neurological injury claims. " § 766.303(1), Fla. Stat.

64. To seek compensation under the Plan, a legal

representative on behalf of an injured infant files a claim with

DOAH. §§ 766.302(3) and 766.305(1), Fla. Stat.

65. In reviewing the compensability of a claim,

section 766.309(1) directs the Administrative Law Judge to make

the following determinations based upon the available evidence:

(a ) Whether the injury claimed is a birth -

related neurological injury;

(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 physician in the course of

labor, delivery, or resuscitation in the

immediate postdelivery period in a hospital;

and

(c) How much compensation, if any, is

awardable pursu ant to s. 766.31.

66. The term " birth - related neurological injury " is defined

in section 766.302(2) as:

[I] njury to the brain or spinal cord of a live

infant weighing at least 2,500 grams for a

single gestation . . . caused by oxygen

deprivation or mecha nical injury occurring in

the course of labor, delivery, or

resuscitation in the immediate postdelivery

period in a hospital, which renders the infant

permanently and substantially mentally and

physically impaired.

Stated another way, a " birth - related neu rological 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

postdelivery period; and (4) which renders the infant permanently

and substantially impaired. Bennett , 71 So. 3d at 837.

67. The burden of proof in this matter falls on NICA (and

the Intervenors) to prove that Petitioners ' claim is covered by

the NICA statute. Petitioners initiated this matter. Ho wever,

they are not seeking compensation under the Plan. Instead,

Petitioners seek a determination that Ashton does not fall within

the scope of the NICA statute. See Bennett , 71 So. 3d at 846.

See also N.R. v. Fla. Birth - Related Neuro . Injury Comp. Ass ' n ,

143 So. 3d 463, 465 (Fla. 5th DCA 2014), and Balino v. Dep ' t of

Health & Rehab. Servs. , 348 So. 2d 349, 350 (Fla. 1st

DCA 1977) ( " The general rule is, that as in court proceedings, the

burden of proof, apart from statute, is on the party asserting the

a ffirmative of an issue before an administrative tribunal. " ) .

68. The preponderance of the evidence standard is applicable

to this matter. See § 120.57(1)(j), Fla. Stat.

69. The Plan provides limited remedies as a statutory

substitute for common law righ ts and liabilities. Therefore, the

NICA statute " should be strictly construed to include only those

subjects clearly embraced within its terms. " Bennett , 71 So. 3d

at 836; and Fla. Birth - Related Neuro. Injury Comp. Ass ' n , 686 So.

2d at 1354.

70. Turnin g to the injury in this matter, the competent

substantial evidence in the record establishes that Ashton

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

section 766.302(2). The parties do not dispute, and the available

facts establish, the fo llowing:

a. Ashton was born a live infant, weighing at least

2,500 grams;

b. Ashton suffered a brain injury;

c. Ashton ' s brain injury was caused by oxygen deprivation;

d. Ashton ' s brain injury rendered him permanently and

substantially mentally and phy sically impaired;

e. The obstetrical services at Winter Park Hospital were

delivered by a " participating physician " (Dr. Cabrera); and

f. The NICA notice requirements under section 766.316 were

met.

71. The disputed issue in this matter concerns whethe r

Ashton ' s brain injury " occur[ed] in the course of labor, delivery,

or resuscitation in the immediate postdelivery period in a

hospital. "

72. Initially, the undersigned finds that the facts and

testimony produced at final hearing do not establish that Ms. Mark

was not in labor prior to Ashton ' s birth. The consensus among

the medical experts is that " labor " requires two criteria,

( 1) contractions and ( 2) cervical change or dilation. Ample

evidence demonstrates that Ms. Mark was experiencing contraction s

prior to Ashton ' s birth. She went to Winnie Palmer at 1:11 a.m.

complaining of contractions. At 3:31 a.m., the EMS recorded

contractions at " 2 minutes apart. " Finally, Winter Park Hospital

noted contractions at two to three minutes apart just prior to

Ashton ' s delivery.

73. The preponderance of the evidence, however, does not

establish cervical change. Winnie Palmer recorded that Ms. Mark ' s

cervix was one centimeter dilated and 100 percent effaced. The

medical expert testimony d oes not provide firm, unqualified

support for a conclusion that the Winnie Palmer medical records,

alone, prove that Ms. Mark experienced cervical change associated

with active labor at some point prior to Ashton ' s delivery at

4:04 a.m.

74. On the contrary, Petitioners ' witne sses (Dr. James and

Dr. Sherbany) offer the more persuasive testimony that Ms. Mark

was not in labor before Ashton ' s birth at Winter Park Hospital.

Dr. James specifically explained that effacement is not

necessarily associated with labor. Accordingly, ba sed on the

medical testimony and available records in evidence, the

undersigned finds that Ms. Mark was not in labor during the time

Ashton suffered oxygen deprivation prior to delivery.

75. Despite finding that Ms. Mark was not in labor during

Ashton ' s d ifficult birth, the undersigned determines that Ashton

did sustain an injury to his brain, caused by oxygen deprivation,

which occurred " in the course of . . . delivery, or resuscitation

in the immediate postdelivery period in a hospital. " 6/ The

preponder ance of the evidence and testimony establishes that

Ashton suffered neurological injury after Ms. Mark was admitted

to Winter Park Hospital. And, Ashton continued to suffer injury

to his brain during the ongoing efforts of postdelivery

resuscitation. Acc ordingly, the evidence in the record shows

that oxygen deprivation, as well as Ashton ' s resulting brain

injury, occurred within the time period contemplated by

section 766.302(2).

76. The parties ' medical experts present opposing views on

exactly when, ov er the course of Ashton ' s birth, he sustained a

brain injury significant enough to render him " permanently and

substantially mentally and physically impaired. " The experts all

agree that oxygen deprivation start ed as early as 3:19 a.m., the

moment of the umbilical cord prolapse. The experts disagree on

the degree of brain injury, due to oxygen deprivation, Ashton

experienced before, and then after, Ms. Mark arrived at Win ter

Park Hospital at 3:53 a.m.

77. The undersigned finds that Ashton ' s brain injury was not

isolated to the 34 - minute window prior to Ms. Mark ' s admission to

Winter Park Hospital. On the contrary, the more persuasive

medical testimony supports the finding that Ashton suffered the

majority of his neurological injury (due to oxygen depriva tion)

during the moments after Ms. Mark reached the hospital at

3 :53 a.m., and this injury progressed and exacerbated through the

time of his deliver y (4:04 a.m.) and resuscitation in the

postdelivery period (through at least 5:14 a.m.).

78. This finding is supported by two points. First, no

evidence establishes the exact level of oxygen deprivation (or

brain injury) Ashton experienced prior to 3:53 a.m. Every medical

expert, except Dr. Sherbany, agreed that the amount of oxygen

deprivation that occurred between 3:19 a.m. and 3:53 a.m. cannot

be known for certain. (On the other hand, every medical expert,

including Dr. Sherbany, agreed that oxygen deprivation, which led

to additional brain injury, took place after Ms. Mark was admitted

to the hospital.) The preponderance of the evidence does not

support a finding that the " bulk " or " majority " of Ashton ' s oxygen

deprivation occurred in the 34 - minute time period before Ms. Mark

reached Winter Park Hospital.

79. Second, Dr. Willis, Dr. Sigurdardottir, Dr . Null, and

Dr. Farb convincingly testify that the most significant portion of

Ashton ' s brain injury occurred " much closer to the time of

delivery . . . as well as continuing in the immediate

resuscitation period. " These medical experts ably explain that

Ashton suffered an ongoing and continuing injury following the

cord prolapse. Oxygen deprivation began at 3:19 a.m., and

progressed, unabated, until oxygen returned to Ashton ' s

bloodstream during postdelivery resuscitation efforts.

Resuscitation efforts started immediately after Ashton ' s delivery

at 4:04 a.m. and lasted until 4:08 a.m. However, because Ashton

still could not breath on his own, suffered from multiple

seizures, and was not stabilized, he required active medical care

for approximately six d ays until he was taken off a mechanical

ventilator. The oxygen deprivation after Ms. Mark reached Winter

Park Hospital caused Ashton ' s permanent and substantial mental

and physical impairment. See Bennett , 71 So. 3d at 842

( " resuscitation in the immediat e postdelivery period " includes

circumstances involving " a continuous, ongoing need of

resuscitation from the time of birth to the time of the injury

that resulted in the severe impairment " ) .

80. The undersigned notes that the oxygen deprivation that

led to Ashton ' s brain injury was not caused by any medical

personnel who were directly involved in Ashton ' s birth in Winter

Park Hospital. Neither was the oxygen deprivation due to any

obstetrical services Ashton received, or failed to receive, at

Winter Park Hospital. Instead, the genesis of the oxygen

deprivation was the umbilical cord prolapse that occurred

approximately 45 minutes earlier in Ashton ' s mother ' s home (when

Ms. Mark was not shown to be in labor). The evidence shows,

however, that Ashton cont inued to experience oxygen deprivation

(which resulted in the qualifying neurological injury) into and

throughout the course of his delivery and resuscitation.

This conclusion is well - supported by the testimony of

Dr. Sigurdardottir who stated that the " v ery, very substantial

part " of Ashton ' s brain injury occurred at Winter Park Hospital.

Dr. Farb also opined that " 90 percent of the injury at least "

occurred at or after Ms. Mark was admitted to Winter Park

Hospital.

81. In sum, the evidence in the recor d establishes that,

more likely than not, Ashton ' s brain injury derived from the

oxygen deprivation he experienced during the period of time

encircling his delivery in Winter Park Hospital. Furthermore,

given that medical records report that Ashton was se verely

acidotic at 5:14 a . m . and remained on a respirator for six days

thereafter, the oxygen deprivation, as well as the resulting brain

injury, continued, uninterrupted, for a period of up to six days

after Ashton ' s birth. The brain injury Ashton endure d over this

period of time led to his permanent and substantial mental and

physical impairment. Therefore, based on this factual

circumstance, Ashton suffered a " birth - related neurologic injury "

which occurred " in the course of labor, delivery, or resusci tation

in the immediate postdelivery period in a hospital. " Accordingly,

Ashton is eligible for compensation under the NICA Plan.

DISPOSITION

Based upon the foregoing Findings of Fact and Conclusions of

Law, it is ORDERED:

1 . Petitioners ' Petition for co mpensation under the NICA

Plan is APPROVED.

2 . NICA shall make immediate payment of all expenses

previously incurred, and shall make payment for future expenses as

incurred pursuant to section 766.31(1)(a).

3 . Michele Mark and Juan Payne, as the parent s and legal

guardians of Ashton, are entitled to an award pursuant to

section 766.31(1)(b)1. The parties are accorded 45 days from

the date of this Final Order to resolve, subject to approval by

the Administrative Law Judge, the amount and manner in which the

award should be paid. If not resolved within such period, the

parties will so advise the Administrative Law Judge, and a hearing

will be scheduled to resolve such issue.

4 . Petitioners are entitled to an award of reasonable

expenses incurred in conn ection with the filing of the

claim, including reasonable attorney ' s fees, pursuant to

section 766.31(1)(c). The parties are accorded 45 days from the

date of this O rder to resolve, subject to approval by the

Administrative Law Judge, the amount of such a ward. If not

resolved within such period, the parties will so advise the

Administrative Law Judge, and a hearing will be scheduled to

resolve such issue.

5 . Pursuant to section 766.312, the Division of

Administrative Hearings retains jurisdiction over th is matter to

address the amount of an award pursuant to section 766.31, as

well as to resolve any disputes regarding the parties ' compliance

with the terms of this Final Order.

DONE AND ORDERED this 2 9 th day of March , 2019 , in

Tallahassee, Leon County, Florida.

S

J. BRUCE CULPEPPER

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675

Fax Filing (850) 921 - 6847

www.doah.stat e.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 2 9 th day of March , 2019 .

ENDNOTE S

1/ All statutory references are to Florida Statutes (2018),

unless otherwise noted.

2/ By requesting a deadline for filing post - hearing su bmissions

beyond ten days after the final hearing, the 30 - day time period

for filing the Final Order was waived. See Fla. Admin. Code

R. 28 - 106.216.

3/ Documents in the record indicate that Winnie Palmer (Orlando

Health, Inc.), as well as " its employed physicians , residents,

mid - wives and physic i a n assistan ts " participated in the NICA Plan

on January 19, 2018.

4/ Dr. James, Dr. Null, and Dr. Farb all agreed that

" resuscitation " can be defined as " the process of sustaining the

vital functions of a pers on in respiratory or cardiac failure,

while reviving him or her by using techniques of artificial

restoration and cardiac massage, correcting acid based imbalance,

and treating the cause of failure. " See Mosby ' s Medical

Dictionary , Ninth Edition (2009).

5/ Pursuant to section 766.309(4), in the interest of judicial

economy, this proceeding is bifurcated to address compensability

first. The issue of the amount of an award pursuant to

section 766.31 may be addressed in a separate proceeding.

6/ The word " or " is " generally construed in the disjunctive when

used in a statute or rule. The use of this particular

disjunctive word in a statute or rule normally indicates that

alternatives were intended. " Fla. Pulp & Paper Ass ' n Envtl.

Affs., Inc. v. Dep ' t of Envtl. Prot. , 223 So. 3d 417, 420

(Fla. 1st DCA 2017) .

COPIES FURNISHED:

(via certified mail)

Jorge E. Silva, Esquire

Silva & Silva, P.A.

236 Valencia Avenue

Coral Gables, Florida 33134

(eServed)

(Certified Mail No. 7016 2710 0000 4544 8380 )

Carolina B . Suarez, Esquire

Silva & Silva, P.A.

236 Valencia Avenue

Coral Gables, Florida 33134

(Certified Mail No. 7016 2710 0000 4544 8397 )

David W. Black, Esquire

Frank, Weinberg & Black, P.L.

7805 Southwest 6th Court

Plantation, Florida 33324

(eServed)

(Cert ified Mail No. 7016 2710 0000 4544 8403 )

Travase L. Erickson, Esquire

Saalfield Shad, P.A.

245 Riverside Avenue, Suite 400

Jacksonville, Florida 32202 - 4926

(eServed)

(Certified Mail No. 7016 2710 0000 4544 8410 )

Taylor A. Morgan, Esquire

Saalfield Shad, P.A.

245 Riverside Avenue, Suite 400

Jacksonville, Florida 32202 - 4926

(Certified Mail No. 7016 2710 0000 4544 8427 )

Bradley P. Blystone, Esquire

Marshall, Dennehey, Warner,

Coleman & Goggin

315 East Robinson Street , Suite 550

Orlando, Florida 32801

( eServed)

(Certified Mail No. 7016 2710 0000 4544 8434 )

Kenney Shipley, Executive Director

Florida Birth - Related Neurological

Injury Compensation Association

2360 Christopher Place , Suite 1

Tallahassee, Florida 32308

(eServed)

(Certified Mail No. 7016 2 710 0000 4544 8441 )

Amie Rice, Investigation Manager

Consumer Services Unit

Department of Health

4052 Bald Cypress Way, Bin C - 75

Tallahassee, Florida 32399 - 3275

(Certified Mail No. 7016 2710 0000 4544 8458 )

Mary C. Mayhew , Secretary

Health Quality Assu rance

Agency for Health Care Administration

2727 Mahan Drive, Mail Stop 1

Tallahassee, Florida 32308

(eServed)

(Certified Mail No. 7016 2710 0000 4544 8 465 )

NOTICE OF RIGHT TO JUDICIAL REVIEW

Review of a final order of an administrative law judge shal l

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

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 C ourt of

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

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

DCA 1992).