09-001750N Aurora Bryant And Anthone Bryant, Individualy And As Parents And Next Friends For Brazil Bryant, A Minor vs. Florida Birth-Related Neurological Injury Compensation Association Status: Closed DOAH Final Order on Tuesday, March 23, 2010.

Summary: The statute authorizes an award to the parents or legal guardians of a sum not to exceed $100,000, in total, and not a sum to exceed $100,000, individually.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

AURORA BRYANT and ANTHONE )

BRYANT, individually and as )

parents and next friends for )

BRAZIL BRYANT, a minor, )

)

Petitioners, )

)

vs. ) Case No. 09-1750N

)

FLORIDA BIRTH-RELATED NEUROLOGICAL INJURY )

COMPENSATION ASSOCIATION, )

)

)

Respondent, )

)

and )

)

ST. JOSEPH'S HOSPITAL, INC., )

d/b/a ST. JOSEPH'S WOMEN'S )

HOSPITAL, )

)

Intervenor. )

)

FINAL ORDER

Pursuant to notice, the Division of Administrative

Hearings, by Administrative Law Judge, Ella Jane P. Davis, held

a hearing in the above-styled case on February 19, 2010, by

telephonic conference call.

APPEARANCES

For Petitioners: Allison C. McMillen, Esquire

McMillen Law Firm

390 North Orange Avenue, Suite 140

Orlando, Florida 32801

For Respondent: Robert J. Grace, Jr., Esquire

Stiles, Taylor & Grace, P.A.

Post Office Box 460

Tampa, Florida 33601

For Intervenor: H. Hamilton Rice, III, Esquire

Bush, Grazianno & Rice, P.A.

Post Office Box 3423

Tampa, Florida 33601-3423

STATEMENT OF THE ISSUES

(1) Whether Section 766.31(1)(b)1., Florida Statutes,

authorizes an award to the parents or legal guardians of a sum

not to exceed $100,000, in total, or whether it authorizes an

award to the parents or legal guardians of a sum not to exceed

$100,000, individually.

(2) Whether the Stipulation and Joint Petition for

attorney’s fees and expenses filed January 5, 2010, may be

approved.

PRELIMINARY STATEMENT

On April 3, 2009, Petitioners, Aurora Bryant and

Anthone Bryant, individually, and as parents and next friends of

Brazil Bryant (Brazil), a minor, filed a Petition with the

Division of Administrative Hearings (DOAH) for benefits under

the Florida Birth-Related Neurological Injury Compensation Plan

(Plan).

DOAH served the Florida Birth-Related Neurological Injury

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

April 6, 2009. On July 15, 2009, following an extension of time

within which to do so, NICA responded to the Petition, giving

notice that it was of the view the claim was compensable, and

expressing its willingness to provide benefits as provided by

the Plan.

On October 23, 2009, following an extended period of time

during which the parties attempted to resolve the claim by

stipulation, the parties filed a Stipulation and Joint Petition

for Compensation of Claim Arising Out of Florida Birth-Related

Neurological Injury Pursuant to Chapter 766, Florida Statutes,

whereby they agreed the claim was compensable. That stipulation

also included the following provisions:

12. The Petitioners disagree as to NICA's

interpretation of Section 766.31(1)(b)1.,

Florida Statutes, with respect to the

payment of the parental award. Section

766.31(1)(b)1., Florida Statutes, . . .

[provides that the administrative law judge

shall make an award including]:

'Periodic payments of an award to

the parents or legal guardians of

the infant found to have sustained

a birth-related neurological

injury, which award shall not

exceed $100,000. However, at the

discretion of the administrative

law judge, such award may be made

in a lump sum.'

The Petitioners reserve the right to argue,

at a hearing before the Administrative Law

Judge, the sole issue of the

constitutionality of, and interpretation of

Section 766.31(1)(b)1., Florida Statutes,

and whether such statute authorizes payment

of an award which shall not exceed $100,000

to both parents, combined, or whether that

section authorizes payment of an award which

shall not exceed $100,000 to each parent,

individually.

13. NICA agrees to pay to Petitioners,

contingent upon approval of this Stipulation

by the Administrative Law Judge, the

following:

(a) The Petitioners shall receive from NICA

One Hundred Thousand Dollars ($100,000.00)

to be paid as a lump sum to the parents.

This payment is authorized pursuant to

Section 766.31(1)(b), Florida Statutes.

(b) Payment of benefits up to and including

the effective date of this Stipulation under

Section 766.31(1)(a), Florida Statutes,

subject to the provisions of Paragraph 20 of

this Stipulation.

(c) Pursuant to Section 766.31(1)(c),

Florida Statutes, payment of reasonable

expenses to McMillen Law Firm, P.A. incurred

in connection with the filing of a claim

under Sections 766.301-766.316, Florida

Statutes, including reasonable attorney's

fees, to be agreed upon at the resolution of

this claim. At that time, if the Parties

cannot reach an agreement as to the

reasonable expenses to be paid, the Parties

shall request a hearing before the

Administrative Law Judge to resolve such

issue.

14.(a) With the exception of the issue

reserved in Paragraph 12 of this

Stipulation, including any attorney's fees

and costs the Petitioners may be entitled to

as a result thereof, the Petitioners further

agree that upon the making of the payments

outlined in paragraph 13 of this

Stipulation, this shall serve as a full,

complete and absolute discharge of any and

all responsibility and liability NICA and

the persons outlined in Section 766.303(2),

Florida Statutes, may have to the

Petitioners in their capacity as the parents

and legal guardians of Brazil and each

Petitioner in their individual capacity.

(b) The Petitioners and NICA agree that

NICA will pay future expenses as incurred.

See § 766.31(2), Fla. Stat. . . .

15. The Petitioners represent and

acknowledge to the Administrative Law Judge

of the Division of Administrative Hearings

that they understand that this Stipulation

is a complete and final settlement in its

entirety, and further represent and

acknowledge that they have retained legal

counsel which has provided legal advice in

regard to this Stipulation, and the option

of accepting this Stipulation as opposed to

whatever other rights and remedies the

Petitioners otherwise have had, either in

their individual capacity or personal

capacity, and that their legal counsel has

advised them of the legal significance of

each and every part of this Stipulation.

Further, the Petitioners represent and

acknowledge to the Administrative Law Judge

of the Division of Administrative Hearings

that they understand that the Petition which

has been filed seeking compensation from

NICA is hereby deemed to be satisfied in its

entirety, except for the issue of the proper

interpretation of Section 766.31(1)(b)1.,

Florida Statutes, and the payment of

reasonable expenses pursuant to Section

766.31(1)(c), Florida Statutes.

16. The Parties to this Stipulation agree

that they will not appeal any of the issues

specifically resolved by this Stipulation.

However, any Final Order of the

Administrative Law Judge resolving the issue

of the proper interpretation of Section

766.31(1)(b)1., Florida Statutes, may be

subject to appeal as to that issue only.

On November 13, 2009, the Order Approving Stipulation and

Joint Petition for Compensation of Claim Arising Out of Florida

Birth-Related Neurological Injury Pursuant to Chapter 766,

Florida Statutes, was entered, approving the parties' foregoing

Stipulation and Joint Petition. The November 13, 2009, Order

also included the following provisions:

2. Petitioners, Aurora Bryant and

Anthone Bryant, as the parents and legal

guardians of Brazil Bryant, a minor, are

awarded One hundred thousand dollars

($100,000.00), pursuant to Section

766.31(1)(b)1., Florida Statutes, to be paid

in lump sum.

3. Upon payment of the award of One hundred

thousand dollars ($100,000.00), and past

benefits/expenses, the claims of Petitioners

(Claimants) shall be deemed fully satisfied

and extinguished, except for the issues

reserved in paragraph 12 of the parties'

Stipulation, including attorney's fees and

costs the Petitioners may be entitled to as

a result thereof, and Respondent's

continuing obligation under Section

766.31(2), Florida Statutes, to pay future

expenses as incurred.

4. With regard to the issues reserved in

paragraph 12 of the parties' Stipulation,

and with regard to any dispute regarding

past benefits/expenses, and attorney’s fees

and other expenses of the claim, a hearing

will be scheduled by a separate notice of

hearing to address those issues . . . .

Following the parties’ provision of mutually available

dates for hearing, a Notice of Telephonic Final Hearing, dated

December 7, 2009, scheduled a hearing for February 19, 2010,

upon the following issue:

As reserved in Paragraph 12 of the

parties’ Stipulation and Joint Petition for

Compensation, the parties will offer proof

they perceive pertinent to the proper

interpretation of Section 766.31(1)(b)1.,

Florida Statutes, as well as any proof they

perceive pertinent to make a record

regarding their perception of the

constitutionality of Section 766.31(1)(b)1.,

Florida Statutes, with regard to the

parental award; and any remaining dispute

regarding past expenses.

On January 5, 2010, the parties filed a Stipulation and

Joint Petition for Resolution of Reasonable Expenses Incurred by

Petitioners in Connection with Filing of Claim, agreeing thereby

to attorney's fees of $10,000.00 and costs of $1,290.48, to be

awarded in connection with the filing of the claim, and waiving

any appeal with respect to those sums for past fees and costs.

The parties have orally stipulated that, for the sake of

convenience, these amounts may be addressed in the instant Final

Order. 1

At the telephonic hearing, held February 19, 2010, Joint

Exhibits 1-10, as identified in the Stipulated Composite of

Exhibits filed February 18, 2010, 2 were received into evidence,

as well as the parties’ Joint Pre-Hearing Stipulation, marked as

Joint Exhibit 11. No witnesses were called, and no further

exhibits were offered.

A Transcript of the February 19, 2010 hearing was filed on

March 15, 2010.

The parties filed their respective memoranda of law before

the hearing, and waived the opportunity to file post-hearing

proposed final orders.

FINDINGS OF FACT

Stipulated Facts addressing the issue of statutory

interpretation reserved in Paragraph 12 of the Stipulation and

Joint Petition for Compensation of Claim Arising Out of Florida

Birth-Related Neurological Injury filed October 23, 2009 3

1. "Once NICA ascertains that a claim is covered, NICA

frequently offers a lump sum payment of a parental award

totaling $100,000, regardless of whether there are one or two

parents involved in the claim. Such offer is subject to the

subsequent approval of the ALJ."

2. "Pursuant to Section 766.309, Florida Statutes, the ALJ

must make all NICA awards, which includes the parental award

pursuant to Section 766.31(1)(b)1., Florida Statutes. An ALJ

has never ordered NICA to pay a parental award in excess of

$100,000, regardless of whether there was one parent or two

parents involved in the claim."

3. "In a typical covered claim, NICA does not customarily

argue that the parental award should be less than the full

$100,000 authorized."

4. "Once the ALJ has ordered payment of a parental award

in the amount of $100,000, NICA pays the $100,000 parental award

by check made payable to both parents jointly, unless otherwise

ordered by the ALJ."

5. "In the past, when there was a dispute between the

parents with respect to the amount of the parental award to go

to each parent, the ALJ has specified in the Final Order how

much of the parental award would be paid to the mother and how

much would be paid to the father. In those instances, the

combined parental award was typically for the full $100,000." 4

6. "Aurora Bryant and Anthone Bryant have requested that

NICA pay a parental award of $100,000 for each parent, but NICA

has declined, based on legal interpretations of Section

766.31(1)(b)1., Florida Statutes, which limits the parental

award to $100,000 for both parents, combined."

7. "Pursuant to paragraph 13(a) of the parties'

Stipulation filed in this case and pursuant to the Order

approving such Stipulation dated November 13, 2009, NICA issued

a check made payable to Aurora Bryant and Anthone Bryant,

jointly, for $100,000. This payment was made and accepted,

subject to a stipulation that the Bryants’ claim for a larger

parental award would be preserved."

Additional Facts Found as to Section 766.31(1)(b)1., Florida

Statutes, award to the parents or legal guardians

8. Section 766.31(1), Florida Statutes, provides that upon

determining a claim is compensable, the Administrative Law Judge

must make an award providing compensation for a number of items,

as prescribed by subparagraphs (a)-(c). Pertinent to this case,

Subsection 766.31(1)(b)1., Florida Statutes, provides that such

an award shall include:

(b)1. Periodic payments of an award to the

parents or legal guardians of the infant

found to have sustained a birth-related

neurological injury, which award shall not

exceed $100,000 . However, at the discretion

of the administrative law judge, such award

may be made in a lump sum. (Emphasis

added.)

9. In the present hearing, Petitioners contended that

Subsection 766.31(1)(b)1. is ambiguous; should be interpreted as

authorizing an award of up to $100,000 for each parent or

guardian, independent of the other; and that if the statute only

authorizes an award of $100,000 for both parents in the

aggregate, it raises equal protection concerns under state and

federal law, by discriminating against two-parent families

making claims. Petitioners further asserted that because

Section 766.31(1)(b)1. can be read to authorize an award of

$100,000 for each parent, then it should be read that way to

preserve the statute’s constitutionality. See St. Mary's Hosp.,

Inc. v. Phillipe , 769 So. 2d 961 (Fla. 2000).

10. Conversely, NICA put forth that Subsection

766.31(1)(b)1. is not ambiguous, and NICA interprets the

subsection as authorizing an award (one award) to the parents in

a total amount not to exceed $100,000, regardless of whether

there are one or two parents filing the claim. Thus, if there

are two parents involved in the NICA claim, then a maximum award

of $100,000, is authorized to be awarded to both parents,

combined. Moreover, NICA is of the view that the Administrative

Law Judge is without authority to address the constitutionality

of Subsection 766.31(1)(b)1., Florida Statutes.

11. The statutory provision at issue was first enacted

during a special session in 1988, as part of Chapter 88-1, Laws

of Florida. At that time, Section 766.31(1)(b), Florida

Statutes (1988 Supp.), provided:

(b) Periodic payments of an award to the

parent or legal guardian of the infant found

to have sustained a birth-related

neurological injury, which award shall not

exceed $100,000. However, at the discretion

of the deputy commissioner, such award may

be made in a lump sum.

12. During the 1989 regular session, Section 766.31(1)(b),

Florida Statutes, 5 was amended, as follows:

(b) Periodic payments of an award to the

parents parent or legal guardians guardian

of the infant found to have sustained a

birth-related neurological injury, which

award shall not exceed $100,000. However,

at the discretion of the deputy

commissioner,[ 6 ] such award may be made in a

lump sum.

Ch. 89-186, § 5, at 768, Laws of Fla. The stated reason for the

amendment was "to clarify the fact that the maximum award of

$100,000 is for both parents or legal guardians and is not

intended to award up to $100,000 for each parent or legal

guardian." Florida House of Representatives, Insurance

Committee, Final Staff Analysis & Economic Impact Statement

(June 30, 1989), p. 3. (Joint Exhibit 2).

Facts Found as Addressing the Stipulation and Joint Petition for

Resolution of Reasonable Expenses, filed January 5, 2010

13. The parties agree in their Stipulation and Joint

Petition with regard to fees and expenses, that NICA will pay

Petitioners’ attorneys, the McMillen Law Firm, attorney’s fees

of $10,000 and costs of $1290.48. This resolution is reasonable

and appropriate, but the Stipulation and Joint Petition requires

approval by the Administrative Law Judge.

CONCLUSIONS OF LAW

Jurisdiction

14. The Division of Administrative Hearings has

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

these proceedings. See § 766.301 et seq.

Interpretation of Subsection 766.31(1)(b)1.

15. The ultimate goal in construing a statutory provision

is to give effect to legislative intent. BellSouth Telecomm.,

Inc. v. Meeks , 863 So. 2d 287 (Fla. 2003). "In attempting to

discern legislative intent, we first look to the actual language

used in the statute." Id. at 289. "If the statutory language

used is unclear, we apply rules of statutory construction and

explore legislative history to determine legislative intent."

Id. "Ambiguity suggests that reasonable persons can find

different meanings in the same language." Forsythe v. Longboat

Key Beach Erosion Control Dist. , 604 So. 2d 452, 455 (Fla.

1992). "[I]f the language of the statute under scrutiny is

clear and unambiguous, there is no reason for construction

beyond giving effect to the plain meaning of the statutory

words." Crutcher v. School Bd. of Broward County , 834 So. 2d

228, 232 (Fla. 1st DCA 2002).

16. Herein, Petitioners do not contend that the language

of Subsection 766.31(1)(b)1. clearly provides for $100,000 to be

paid to each parent individually. Rather, Petitioners contend

that the language of Subsection 766.31(1)(b)1., Florida

Statutes, may be interpreted in two ways. (Transcript, pg. 18.)

Petitioners assert that it may be interpreted as authorizing an

award of up to $100,000 for each parent or guardian, independent

of the other parent or guardian, or an award to the parents or

legal guardians of up to $100,000, in total.

17. Perceiving ambiguity, Petitioners reason the statute

should be interpreted to authorize an award of up to $100,000

for each parent or guardian, independent of the other, since to

do otherwise would raise equal protection concerns under federal

and Florida law. St. Mary's Hosp. , 769 So. 2d at 972 ("It is a

fundamental rule of statutory construction that, if at all

possible, a statute should be construed to be constitutional.").

18. Here, it is unnecessary to address Petitioners'

constitutional concerns since, given the legislative history of

the subsection, the legislature clearly intended that the

maximum award of $100,000 was for both parents or legal

guardians, and not for each parent or legal guardian,

individually. State v. Elder , 382 So. 2d 687, 690 (Fla.

1980)("In construing [a statute], we are mindful of our

responsibility to resolve all doubts as to the validity of a

statute in favor of its constitutionality, provided the statute

may be given a fair construction that is consistent with the

federal and state constitutions as well as with the legislative

intent . . . . This Court will not, however, abandon judicial

restraint and invade the province of the legislature by

rewriting its terms."). Moreover, an Administrative Law Judge

does not have jurisdiction to consider or resolve constitutional

issues. Fla. Hosp. v. Agency for Health Care Admin. , 823 So. 2d

844, 849 (Fla. 1st DCA 2002). Nevertheless, since Petitioners

may challenge the constitutionality of Subsection

766.31(1)(b)1., Florida Statutes, on appeal, they have the

right, as they have been accorded here, to build their record

for appeal. Anderson Columbia v. Brown , 902 So. 2d 838, 841

(Fla. 1st DCA 2005).

Stipulation and Joint Petition as to fees and costs/expenses

19. Petitioners’ and Respondent’s Stipulation and Joint

Petition for Resolution of Reasonable Expenses Incurred by

Petitioners in Connection with Filing of Claim, filed January 5,

2010, provided for Respondent to pay the McMillen Law Firm

$10,000.00 in attorney’s fees and $1,290.48 in costs/expenses up

to that point in time. Those amounts address Paragraph 13 (c)

of the parties’ Stipulation and Joint Petition for Compensation

of Claim Arising Out of Florida Birth-Related Neurological

Injury Pursuant to Chapter 766, Florida Statutes, filed

October 23, 2009, and are unaffected by the reservations of

Paragraphs 12 and 13(a) thereof, which paragraphs gave rise to

the instant proceeding and the issues of statutory

interpretation and constitutionality of Section 766.31(1)b.1.,

Florida Statutes.

20. The agreed fees and costs/expenses are reasonable and

appropriate and should be approved now, in this Final Order,

pursuant to the parties' further oral stipulation.

CONCLUSION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is ORDERED:

(1) That Petitioners' claim for additional compensation (a

second $100,000.00) under the provisions of Subsection

766.31(1)(b)1., Florida Statutes, is denied; and

(2) That Petitioners’ and Respondent’s Stipulation and

Joint Petition for Resolution of Reasonable Expenses Incurred by

Petitioners in Connection with Filing of Claim, filed January 5,

2010, providing for an award of attorney’s fees of $10,000.00

and for costs/expenses of $1,290.48, for past work, is approved,

and Respondent shall pay those sums to the McMillen Law Firm

forthwith.

(3) Jurisdiction is retained as previously provided-for in

the November 13, 2009 Order Approving Stipulation and Joint

Petition for Compensation of Claim.

DONE AND ORDERED this 23rd day of March, 2010, in

Tallahassee, Leon County, Florida.

S

ELLA JANE P. DAVIS

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone]

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 23rd day of March, 2010.

ENDNOTES

1/ A hearing by telephonic conference call was held on

February 2, 2010, and the parties’ several oral stipulations

were memorialized by an Order entered February 3, 2010.

2/ Joint Exhibit 1: Chapter 89-186, Laws of Florida (1989);

Joint Exhibit 2: Florida House of Representatives Insurance

Committee Final Staff Analysis & Economic Impact Statement of

CS/CS/HB 339 (1989); Joint Exhibit 3: Academic Task Force for

Review of the Insurance and Tort Systems, “Preliminary Fact-

Finding Report on Medical Malpractice,” August 14, 1987, Joint

Exhibit 4: Academic Task Force for Review of the Insurance and

Tort Systems, “Medical Malpractice Recommendations,” November 6,

1987; Joint Exhibit 5: Academic Task Force for Review of the

Insurance and Tort Systems, “Final Fact-Finding Report on

Insurance and Tort Systems, March 1, 1988; Joint Exhibit 6:

Academic Task Force for Review of the Insurance and Tort

Systems, “Final Recommendations,” March 1, 1988; Joint Exhibit

7: Governor’s Select Task Force on Health Care Professional

Liability Insurance, “Report and Recommendations,” January 29,

2003 (excerpts pertaining to NICA—pages 301-308), Joint Exhibit

8: Final Order in Angela Samples and Kenneth Ray Samples,

Individually and as Parents and Next Friends of MacKenzie

Samples, a Minor, v. Florida Birth-Related Neurological Injury

Compensation Association , DOAH Case No. 08-5147N (Final Order:

September 1, 2009) currently on appeal before Florida’s Fifth

District Court of Appeals; Joint Exhibit 9: Final Order in

Sarah Wojtowicz as Parent and Natural Guardian of Levi Wojtowicz

and James M. Wojtowicz v. Florida Birth Related Neurological

Injury Compensation Association , DOAH Case No. 93-4268N (Final

Order: July 22, 1994); Joint Exhibit 10: Crystal Waddell as

Parent and Natural Guardian of Chelsey Davis, a Minor v. Florida

Birth Related Neurological Injury Compensation Association and

William Davis , DOAH Case No. 98-2991N, (Final Order: May 11,

1999); Joint Exhibit 11: Joint Prehearing Stipulation. (It is

also noted that the parties’ Joint Prehearing Stipulation

contemplated the admission of the Petition in the instant

cause.)

3/ Joint Exhibit 11: Joint Pre-Hearing Stipulation, Paragraph

E, Admitted Facts.

4/ Such a dispute has been raised on two occasions, and

memorialized in Final Orders entered in Wojtowicz and Waddell,

supra , at n.2.

5/ In 2001, Section 766.31(1)(b), Florida Statutes, was amended

to provide for the payment of funeral expenses not to exceed

$1,500, and renumbered as Section 766.31(1)(b)1. and 2., with

Subsection 1. addressing the parental award and Subsection 2.

addressing payment of funeral expenses. Ch. 01-277, § 150, at

3154, Laws of Fla. Then, in 2003, Section 766.31(1)(b), Florida

Statutes, was amended to substitute a death benefit for the

infant in the amount of $10,000, for an award of funeral

expenses, with Subsection 1. addressing the parental award and

Subsection 2. addressing the death benefit. Ch. 03-416, § 78,

at 4118, Laws of Fla.

6/ In 1993, jurisdiction to resolve claims under the Plan was

transferred to the Division of Administrative Hearings, and in

1994 the provisions of Section 766.31(1)(b), Florida Statutes,

were amended to substitute "hearing officer" for "judge of

compensation claims," previously titled "deputy commissioner."

Ch. 93-251, § 3, at 2477, Laws of Fla.; Ch. 94-106, § 4, at 345,

Laws of Fla. Thereafter, in 1996, following a title change of

"hearing officer" to "administrative law judge," Section

766.31(1)(b), Florida Statutes, was amended to substitute

"administrative law judge" for "hearing officer." Ch. 96-410,

§ 313, at 3104, Laws of Fla.

COPIES FURNISHED :

(Via Certified Mail)

Allison C. McMillen, Esquire

McMillen Law Firm

390 North Orange Avenue, Suite 140

Orlando, Florida 32801

(Certified Mail No. 7008 3230 0001 6307 9951))

Kenney Shipley, Executive Director

Florida Birth Related Neurological

Injury Compensation Association

2360 Christopher Place, Suite 1

Tallahassee, Florida 32308

(Certified Mail No. 7008 3230 0001 6307 9968)

Robert J. Grace, Jr., Esquire

Stiles, Taylor & Grace, P.A.

Post Office Box 460

Tampa, Florida 33601

(Certified Mail No. 7008 3230 0001 6307 9975))

H. Hamilton Rice, III, Esquire,

Bush, Grazianno & Rice, P.A.

Post Office Box 3423

Tampa, Florida 33601-3423

(Certified Mail No. 7008 3230 0001 6307 9982)

Mark Davis, M.D.

4321 North MacDill Avenue, Suite 407

Tampa, Florida 33607

(Certified Mail No. 7008 3230 0001 6307 9999)

Amy Rice, Acting Investigation Manager

Consumer Services Unit

Department of Health

4052 Bald Cypress Way, Bin C-75

Tallahassee, Florida 32399-3275

(Certified Mail No. 7008 3230 0001 6308 0001)

Elizabeth Dudek, Deputy Secretary

Health Quality Assurance

Agency for Health Care Administration

2727 Mahan Drive, Mail Stop 3

Tallahassee, Florida 32308

(Certified Mail No. 7099 3400 0010 4404 3671)

NOTICE OF RIGHT TO JUDICIAL REVIEW

A party who is adversely affected by this Final Order is

entitled to judicial review pursuant to Sections 120.68 and

766.311, Florida Statutes. Review proceedings are governed by

the Florida Rules of Appellate Procedure. Such proceedings are

commenced by filing the original of a notice of appeal with the

Agency Clerk of the Division of Administrative Hearings and a

copy, accompanied by filing fees prescribed by law, with the

appropriate District Court of Appeal. See Section 766.311,

Florida Statutes, and Florida Birth-Related Neurological Injury

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

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

rendition of the order to be reviewed.