10-002077N Whitney Conard, On Behalf Of And As Parent And Natural Guardian Of Aiden Taplin, A Minor vs. Florida Birth-Related Neurological Injury Compensation Association Status: Closed DOAH Final Order on Wednesday, January 19, 2011.

Summary: Motion for Summary Final Order is granted where the definition of compensable injury is not met; the infant is not permanently substantially mentally impaired nor permanently and substantially physically impaired.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

WHITNEY CONARD, on behalf of )

and as parent and natural )

guardian of AIDEN TAPLIN , a )

minor , )

)

Petitioner , )

)

vs. ) Case No. 10 - 2077N

)

FLORIDA BIRTH - RELATED )

NEUROLOGICAL INJURY )

COMPENSATION ASSOCIATION , )

)

Respondent . )

)

SUMMARY FINAL ORDER OF DISMISSAL

This cause came on for consideration upon the pending

Motion for Summary Final Order served September 28, 2010 , and

Petitioner havin g offered no reason to postpone consideration of

the Motion for Summary Final Order and no opposition there to ,

the Motion for Summary Final Order is here considered.

STATEMENT OF THE CASE

1. On April 1 6 , 2010, a Petition for Benefits, styled,

"Whitney Con ard on behalf of and as parent and natural guardian

of Aiden Taplin, a minor v. Florida Birth - Related Neurological

Injury Compensation Association," was filed with the Division of

Administrative Hearings (DOAH) for compensation under the

Florida Birth - Rela ted Neurological Injury Compensation Plan

(Plan) for injuries allegedly associated with Aiden's birth on

August 10, 2007.

2. The original Petition named Susan Fair, M.D., and Cape

Canaveral Hospital as the physician rendering obstetrical

services and the hospital associated with Aiden's birth . DOAH

served , by certified mail , the Florida Birth - Related

Neurological Injury Compensation Association (NICA) with a copy

of the claim/original Petition on April 21, 2010; served

Dr. Fair on April 22, 2010; and serv ed Cape Canaveral Hospital

on April 26, 2010 . On May 4, 2010, Petitioner filed an Amended

Petition, substituting Vanessa Dance, M.D., for Susan Fair,

M.D., and adding the name of Deanna Mericle, ARNP, as a provider

of obstetrical services . DOAH served th e Amended Petition upon

Dr. Dance, ARNP Mericle, and Cape Canaveral Hospital by

certified mail on May 10, 2010 .

3. No individual or entity has sought to intervene herein.

4. After ample opportunity for any named individual or

entity to intervene or obje ct, an Order was entered on June 1,

2010, recognizing the Amended Petition , pursuant to Florida

Administrative Code Rule 28 - 106.202; substituting the Amended

Petition for the Petition; striking the Petition; and causing

the case to proceed upon the Amended Petition (that is , without

Dr. Fair , who had been inadvertently named in the Petition and

with Dr. Dance and ARNP Mericle substituted therefor).

5 . Following an extension of time in which to do so, on

July 14, 2010, NICA served its Response to the Petiti on and gave

notice that it was of the view that the minor child,

Aiden Taplin, did not suffer a "birth - related neurological

injury," which renders an infant "permanently and substantially

mentally and physically impaired, " per section s 766.302(2) and

(3), Florida Statutes. NICA requested that a hearing be set to

determine compensability.

6 . Upon the parties' advices, a hearing on compensability

was noticed for October 28, 2010. 1

7 . On September 28, 2010, Respondent NICA served its

Motion for Summary Fina l Order. Petitioner did not timely

respond to the m otion as permitted by Florida Administrative

Code Rules 28 - 106.103 and 28 - 106.204. In an abundance of

caution, on October 1 3 , 2010, an Order to Show Cause why the

Motion for Summary Final Order should no t be granted was

entered . That Order provided:

On September 28, 2010, Respondent served a

Motion for Summary Final Order. To date,

Petitioner has not responded to the motion.

Fla. Admin. Code R. 28 - 106.103 and 28 -

106.204(4). Nevertheless, and

notwithsta nding that she has been accorded

the opportunity to do so, it is

ORDERED that by October 25, 2010, Petitioner

shall show good cause in writing, if any she

can, why the relief requested by Respondent

should not be granted, thereby disposing the

case again st Petitioner .

8 . On October 13, 2010, NICA filed a "Response to Order of

Prehearing Instructions Dated August 3, 2010," representing, in

pertinent part:

Petitioner and NICA jointly request that the

trial date be reset until the Court has had

opportunit y to rule on NICA's pending Motion

for Summary Final Order and request that all

other matters held [sic] in abeyance until

that time.

9 . Accordingly, an Order Granting Continuance was entered

on October 18, 2010, which read, in pertinent part:

1. The he aring now scheduled for

October 28, 2010, is hereby canceled.

2. In the event Petitioner needs time

beyond October 25, 2010, in which to respond

to the pending Motion for Summary Final

Order, her request/motion must be made in

writing, filed with the Di vision before

October 25, 2010.

3. Another order will be entered to select

new final hearing dates, if appropriate.

10 . Petitioner filed no response in opposition to the

Motion for Summary Final Order and no response in opposition to

the October 18, 2 010, Order Granting Continuance.

11. Affidavits and reports of Donald C. Willis, M.D., and

Michael S. Duchowny, M.D., were attached to NICA's Motion for

Summary Final Order. 2

1 2 . Again, in an abundance of caution, on November 8,

2010, an Order and Notice was entered, providing, in pertinent

part, as follows:

This cause came on for consideration sua

sponte . Some of the documents submitted in

support of NICA's Motion for Summary Final

Order recit e that the infant, Aiden Taplin,

was seen at "APH" (presumabl y Arnold Palmer

Hospital), while others recite that he was

seen at Winnie Palmer Hospital. One

physician apparently believes the parents

are separated, yet there is a history of the

child crawling into bed with the "parents,"

(plural).

1 3 . A telephonic hearing to resolve the forego ing

discrepancies was scheduled, noticed, and held on December 14,

2010. Petitioner did not appear. Oral argument by Respondent

was heard , and an Order was entered the same date , providing as

follows:

. . . Petitioner did not appear and

Respondent was instructed to file additional

written argument with regard to the issue of

which medical records were reviewed by the

various affiant physicians.

It is ORDERED that either party may, within

20 days, file any additional written

a rgument or documentation as to their

position for or against the pending Motion

for Summary Final Order.

1 4 . On December 30, 2010, Respondent filed a Supplemental

Argument and Exhibit in Support of Respondent's Motion for

Summary Order. Petitioner filed nothing. Oral argument on

December 14, 2010, had pointed to portions of Dr. Duchowny's

report, showing that the biological father is not involved in

Aiden's life and that Aiden lives with his mother and

stepfather. Although Dr. Willis stated in his repo rt that there

were no records from APH [Arnold Palmer Hospital] available for

him to review, Respondent's Supplemental E xhibit , filed

December 30, 2010, clarified that Aiden was not transferred to

Arnold Palmer Hospital, but was instead transferred to Wi nn ie

Palmer Hospital.

1 5 . On January 4, 2011, an Order was entered, providing:

By January 18, 2011, Petitioner shall show

good cause, in writing, filed with the

Division of Administrative Hearings, why

Respondent's Supplemental Argument and

Exhibit should n ot be considered and/or why

a Summary Final Order of Dismissal should

not be entered, thereby disposing this case

against Petitioner . (emphasis added).

1 6 . Petitioner filed no timely response in opposition to

the Motion or the January 4, 2011 Order.

1 7 . There are two theories upon which Respondent NICA's

Motion for Summary Final Order are based. First, Respondent

contends that there was no apparent obstetrical event which

resulted in loss of oxygen or mechanical trauma to Aiden's brain

during labor, de livery, or the immediate postdelivery period,

i.e., Respondent suggests that there is no record evidence of an

injury during labor, delivery or the immediate postdelivery

period. Second, Respondent contends that Aiden is not

permanently and substantially mentally impaired and permanently

and substantially physically impaired.

1 8 . Donald C. Willis, M.D., is an obstetrician

specializing in maternal - fetal medicine. He reviewed the

medical records of both the child, Aiden Taplin, and his mother,

Whitney Cona rd, for the purpose of determining whether an injury

had occurred to Aiden due to oxygen deprivation or mechanical

injury occurring in the course of labor, delivery or

resuscitation in the immediate postdelivery period in the

hospital. He summarized in hi s affidavit that:

* * *

5. In summary, fetal heart rate monitor

tracing was not available for review during

labor, but the hospital records did not

describe any abnormal fetal rate heart [sic]

patterns during labor. Spontaneous vaginal

birth was acc omplished. No forceps or

vacuum were required, and birth weight was

3,110 grams (6 lbs. 13 ozs.). The newborn

was not depressed and no resuscitation was

required. The baby went to the normal

newborn nursery.

Seizure activity occurred within 24 hours of

birth. The baby was in the mother's room

when abnormal movements of the extremities

were noted. The EEG was abnormal, but the

head ultrasound was normal. Sepsis

evaluation was done with negative cultures.

MRI on DOL2 was abnormal with "multiple foci

w ith cortical restricted diffusion" ,

consistent with ischemic insult or acute

encephalitis. The baby was transferred to

Arnold Palmer Hospital for further

evaluation of the seizures .

There was no documented or suspected fetal

distress during labor. The n ewborn was not

depressed. The baby was in the mother's

room when seizure activity occurred.

There was no apparent obstetrical event that

resulted in loss of oxygen or mechanical

trauma to the baby's brain during labor,

delivery or immediate post - delivery period.

6. As such, it is my opinion that there was

no oxygen deprivation or mechanical injury

occurring in the course of labor, delivery

or resuscitation in the immediate post -

delivery period in the hospital. Further,

in that there was no oxygen depri vation or

mechanical injury occurring in the course of

labor, delivery or resuscitation in the

immediate post - delivery period in the

hospital, then accordingly, there was no

causal event which could have rendered AIDEN

TAPLIN permanently and substantially

mentally and physically impaired (which

conditions I am not even implying exist) as

a result of same.

1 9 . Dr. Michael S. Duchowny is a pediatric neurologist

who, after a review of the medical records of both Aiden Taplin

and Whitney Conard, and an evalua tion of Aiden Taplin on

June 30, 2010, opined in his affidavit, within a reasonable

degree of medical probability that:

* * *

5. In summary, AIDEN TAPLIN's neurological

examination discloses no specific focal or

lateralizing features. He evidences mi ld

generalized hypotonia, and expressive

language delay, speech disfluency, and has a

history of neonatal seizures.

6. I am familiar with the Florida Birth -

Related Neurological Injury Compensation

Plan (the "Plan") and the standards imposed

by the Plan f or compensability of potential

claims. Based upon my review of the medical

records as described herein and in my

report, and further based upon my evaluation

of AIDEN TAPLIN, I have formed an opinion as

to whether AIDEN TAPLIN qualifies for

compensation u nder the plan.

7. It is my opinion that AIDEN TAPLIN is

not compensable under the NICA statute. I

have reviewed medical records that were

mailed on May 20, 2010. They do not provide

convincing evidence of acquisition of

neurological damage during labor and

delivery or during resuscitation in the

immediate post - delivery period. AIDEN

TAPLIN's most recent MRI scan of the brain,

performed in December 2009, demonstrated

several discreet areas of increased signal

in both frontal regions and the left

tempera l [sic] and right parietal lobes

through to present gliosis. Although review

of the MRI images will provide a more

complete picture of AIDEN's brain

involvement, his examination does not

demonstrate a substantial mental or motor

impairment.

20 . Dr. Duch owny's affidavit also adopts the more complete

written report of his evaluation dated June 30, 2010, which

states, in pertinent part:

I evaluated Aiden Taplin on June 30, 2010.

Aiden is a 2 year, 10 - month - old boy who is

brought by his mother and stepfathe r for

evaluation. The maternal grandmother was

also present and supplied additional

historical information.

MEDICAL HISTORY: Aiden's mother explained

that Aiden experienced seizures within six

hours of life. He was born at Cape

Canaveral Hospital and t ransferred to Winnie

Palmer Children's Hospital where he remained

for two weeks. Apparently, he had "constant

seizures for two days" which were terminated

with p henobarbital and other antiepileptic

medications. Aiden subsequently experienced

no seizures, although his family regards his

initial course as stormy.

Aiden now has developmental delay. He does

not speak clearly and all speech sounds are

particularly difficult to understand. He

can put two words together and rarely three

words into phrases but does not make

sentences. His hearing has been screened

and is normal. Aiden is not in speech

therapy and receives no other therapies.

There has been no language regression.

Aiden's motor development is behind age

level . . . .

Aiden's behavior is fel t to be appropriate,

although he does not play well with other

children . . . .

Aiden's vision and hearing are good . . . .

* * *

PHYSICAL EXAMINATION today reveals an alert,

cooperative and well - developed 2 year and

10 - month - old toddler. The hair i s blond and

of normal texture. The skin is warm and

moist. The weight is 28 pounds. His head

circumference measures 47.6 centimeters.

There are no cranial or facial anomalies or

asymmetries. The spine is straight without

dysmorphism. The neck is supp le without

masses, thyromegaly or adenopathy. The

heart sounds are strong and the lung fields

are clear. The abdomen is soft and non -

tender. There are no palpable liver,

spleen, or masses. Peripheral pulses are 2

and symmetric.

Aiden's NEUROLOGICAL E XAMINATION reveals him

to be alert and cooperative. He is slightly

impulsive but easily participates in the

examination. He knows body parts and

primary colors. His attention span is

appropriate for age. He is socially

engaged. He answered simple ques tions and

seemed interested in the evaluation. His

speech reveals dysarthric lingual, labial

and guttural sounds. It was often difficult

to understand what he was saying. His

attention span seemed appropriate for age.

There is no drooling. The tongue moves

well. The cranial nerve examination reveals

full visual fields to direct confrontation

testing. Examination of the ocular fundi

disclosed sharply demarcated optic disc

margins without pallor and no evidence of

abnormal retinal findings. The facial

movements are symmetric. The tongue

protrudes in the midline. The pharyngeal

folds are symmetric. The uvula is midline.

Motor examination reveals mild generalized

h ypotonea which is symmetrically distributed

in all four limbs. There is full range of

motion and no adventitious movements, focal

weakness, or atrophy. He walked and ran in

a stable fashion and could get up from the

floor easily without holding onto furniture

with no significant motor asymmetries. The

deep tendon reflexes age 2 and symme tric.

Plantar responses are downgoing. His

coordination appeared age appropriate by

observation. Sensory examination is intact

to withdrawal of all extremities to

sti m ulation. The neurovascular examination

reveals no cervical, cranial or ocular

bruits and no temperature or pulse

asymmetries.

In SUMMARY, Aiden's neurological examination

discloses no specific focal or lateralizing

features. He evidences mild generalized

hypotonia, an expressive language delay,

speech disfluency, and has a history of

neo natal seizures.

I have also reviewed medical records that

were mailed on May 20, 2010. They do not

provide convincing evidence of acquisition

of neurological damage during labor and

delivery. Aiden's most recent MRI scan of

the brain, performed in Decem ber of 2009,

demonstrated several discrete areas of

increased signal in both frontal regions and

the left temporal and right parietal lobes

thought to represent gliosis. Although,

review of the MRI images would provide a

more complete picture of Aiden's b rain

involvement, his examination does not

demonstrate a substantial mental or motor

impairment. I therefore do not believe that

Aiden is compensable under the NICA statute.

2 1 . In light of St. Vincent's Med ical Center , Inc. v.

Bennett , 27 So. 3d 65 (Fl a. 1st DCA 2009), Orlando Regional

Health Care System, Inc. v. Fl orida Birth - Related Neurological

Injury Ass ociation , 997 So. 2d 426 (Fla. 5th DCA 2007) and Nagy

v. Florida Birth - Related Neurological Injury Comp ensation

Ass ociation , 813 So. 2d 155 (Fla. 4t h DCA 2002), it may be

fairly debated whether Dr. Willis' affidavit and report rule out

a possible birth - related neurological injury occurring during

" resuscitation in the immediate postdelivery period in a

hospital," but Dr. Duchowny's affidavit clearly s how s that Aiden

suffered no permanent and substantial mental or motor

impairment, and given Dr. Duchowny's undisputed and thorough

assessment of Aiden's current problems after his personal

medical examination/evaluation of Aiden, it is clear that even

if A iden's problems are the result of oxygen deprivation or

mechanical injury in the statutory period, a situation not ruled

out but also not proven, Aiden's problems do not amount to

permanent and substantial mental impairment and permanent and

substantial ph ysical impairment, both of which are required by

the statute for compensability. Consequently, for reasons

appearing more fully in the following Conclusions of Law, NICA's

Motion for Summary Final Order is well - founded. 3

CONCLUSIONS OF LAW

2 2 . The Divisi on of Administrative Hearings has

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

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

2 3 . The Florida Birth - Related Neurological Injury

Compensation Plan was established by the Legislature " for t he

purpose of providing compensation, irrespective of fault, for

birth - rel ated neurological injury claims" relating to births

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

2 4 . The injured " infant, her or his personal

representative, par ents, dependents, and next of kin, " may seek

compensation under the Plan by filing a claim for compensation

with the Division of Administrative Hearings. §§ 766.302(3),

766.303(2), 766.305(1), and 766.313, Fla. Stat. The Florida

Birth - Related Neurologica l Injury Compensation Association,

which administers the Plan, has " 45 days from the date of

service of a complete claim . . . in which to file a response to

the petition and to submit relevant written information relating

to the issue of whether the injur y is a birth - related

neurological injury. " § 766.305( 4 ), Fla. Stat.

2 5 . If NICA determines that the injury alleged in a claim

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

compensation to the claimant, provided that the award is

approv ed by the administrative law judge to whom the claim has

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

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

dispute must be resolved by the assigned administrative law

judge in accor dance with the provisions of c hapter 120, F lorida

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

2 6 . In discharging this responsibility, the administrative

law judge must make the following determination based upon the

available evidence:

(a) W hether the injury claimed is a

birth - related neurological injury. If the

claimant has demonstrated, to the

satisfaction of the administrative law

judge, that the infant has sustained a brain

or spinal cord injury caused by oxygen

deprivation or mechanical injury and that

the infant was thereby rendered permanently

and substantially mentally and physically

impaired, a rebuttable presumption shall

arise that the injury is a birth - related

neurological injury as defined in

s. 766.303(2).

(b) Whether obstet rical services were

delivered by a participating physician in

the course of labor, delivery, or

resuscitation in the immediate post - delivery

period in a hospital; or by a certified

nurse midwife in a teaching hospital

supervised by a participating physicia n in

the course of labor, delivery, or

resuscitation in the immediate post - delivery

period in a hospital.

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

administrative law judge concludes that the " infant has

sustained a birth - related n eurological injury and that

obstetrical services were delivered by a participating physician

at birth. " § 766.31(1), Fla. Stat.

2 7 . Pertinent to this case, " birth - related neurological

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

injury to the brain or spinal cord of a live

infant weighing at least 2,500 grams for a

single gestation or, in the case of a

multiple gestation, a live infant weighing

at least 2,000 grams at birth caused by

oxygen deprivation or mechanical injury

occurring in the course of labor, delivery,

or resuscitation in the immediate

postdelivery period in a hospital, which

renders the infant permanently and

substantially mentally and physically

impaired . This definition shall apply to

live births only and shall not include

disabilit y or death caused by genetic or

congenital abnormality. (Emphasis added).

2 8 . Here, indisputably, Aiden Taplin 's problems, although

birth - related and neurologic in nature, do not render him both

"permanently and substantially mentally impaired" and

"per manently and substantially physically impaired."

Consequently, given the provisions of s ection 766.302(2),

Florida Statutes, Aiden Taplin does not qualify for coverage

under the Plan. See Fla. Birth - Related Neurological Injury

Comp. Ass'n v. Fla. Div. of Admin. Hearings , 686 So. 2d 1349

(Fla. 1997)(The Plan is written in the conjunctive and can only

be interpreted to require both substantial mental and physical

impairment.). See also Humana of Fl a. , Inc. v. McKaughan , 652

So. 2d 852, 859 (Fla. 2d DCA 199 5)( " [B]ecause the Plan . . . is

a statutory substitute for common law rights and liabilities, it

should be strictly construed to include only those subjects

clearly embraced within its terms. " ), approved , Fla . Birth -

Related Neurological Injury Comp . Ass 'n v. McKaughan , 668 So. 2d

974, 979 (Fla. 1996).

2 9 . Where, as here, the administrative law judge

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

neurological injury . . . she or he shall enter an order [to

such effect] and shall cause a co py of such order to be sent

immediately to the parties by registered or certified mail. "

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

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

Stat.

CONCLUSION

Based on the foregoi ng Statement of the Case and

Conclusions of Law, it is

ORDERED : Respondent Florida Birth - Related Neurological

Injury Compensation Association's Motion for Summary Final Order

is granted, and the Petition for Compensation filed herein, be

and the same is d ismissed with prejudice.

DONE AND ORDERED this 19th day of January, 2011 , in

Tallahassee, Leon County, Florida.

S

ELLA JANE P. DAVIS

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Ap alachee 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 19th day of January, 2011 .

ENDNOTE S

1/ Compensability, to wit: Whether the injury claimed is a

birth - related neurological injury and whether obstetrical

services were delivered by a participating physician in the

course of labor, delivery, or resuscitation in the immediate

post - delivery period in the hospital.

2/ See , e.g. , Vero Beach Care Ctr v. Ricks , 476 So. 2d 262, 264

(Fla. 1st DCA 1985)("Lay testimony is legally insufficient to

support a finding of causation where the medical condition

involved is not readily observable."); Ackley v. Gen. Parcel

Servs. , 646 So. 2d 242 , 245 (Fla. 1st DCA 1994)("The

determination of the cause of a non - observable medical

condition, such as a psychiatric illness, is essentially a

medical question."); Wausau Ins. Co. v. Tillman , 765 So. 2d 123,

124 (Fla. 1st DCA 2000)("Because the medical c onditions which

the claimant alleged had resulted from the workplace incident

were not readily observable, he was obligated to present expert

medical evidence establishing that causal connection.").

3/ When, as here, the "moving party presents evidence t o

support the claimed non - existence of a material issue, he . . .

[is] entitled to a summary judgment unless the opposing party

comes forward with some evidence which will change that result;

that is, evidence to generate an issue of a material fact. It

i s not sufficient for an opposing party merely to assert that an

issue does exist." Turner Produce Co., Inc. v. Lake Shore

Growers Coop. Ass'n , 217 So. 2d 856, 861 (Fla. 4th DCA 1969).

Accord , Roberts v. Stokley , 388 So. 2d 1267 (Fla. 2d DCA 1980);

Perry v. Langstaff , 383 So. 2d 1104 (Fla. 5th DCA 1980).

COPIES FURNISHED :

(Via Certified Mail)

Kenney Shipley, Executive Director

Florida Birth Related Neurological

Injury Compensation Association

2360 Christopher Place, Suite 1

Tallahassee, Florida 32308

(Certified Mail No. 7010 1670 0000 3105 9837) )

Whitney Conard

165 Oak Grove Lane

Merritt Island, Florida 32952

(Certified Mail No. 7010 1670 0000 3105 9844 )

Martin P. McDonnell, Esquire

Rutledge, Ecenia, Purnell & Hoffman, P.A.

109 South Monroe Street

Post Office Box 551

Tallahassee, Florida 32302

(Certified Mail No. 7010 1670 0000 3105 9851)

Cape Canaveral Hospital

701 West Cocoa Beach Causeway

Cocoa Beach, Florida 32931

(Certified Mail No. 7010 1670 0000 3105 9868 )

Vanessa Dance, M.D.

8245 Deve reux Drive

Melbourne, Florida 32940

(Certified Mail No. 7010 1670 0000 3105 9875 )

D eanna Mericle, ARNP

699 West Cocoa Beach Causeway

Suite 404

Cocoa Beach, Florida 32931

(Certified Mail No. 7010 1670 0000 3105 9882 )

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. 7010 1670 0000 3105 9899 )

Elizabeth Dudek, Deputy Secretary

Health Quality Assurance

Agency for Health Care Administr ation

2727 Mahan Drive, Mail Stop 3

Tallahassee, Florida 32308

(Certified Mail No. 7010 1670 0000 3105 9905 )

NOTICE OF RIGHT TO JUDICIAL REVIEW

A party who is adversely affected by this F inal O rder is entitled

to judicial review pursuant to Sections 12 0.68 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

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

rendition of the order to be reviewed.