12-001534N Tyler Dyal, Individually And As Parent Of Oliver Bender, A Minor vs. Florida Birth-Related Neurological Injury Compensation Association Status: Closed DOAH Final Order on Thursday, March 6, 2014.

Summary: Child is not substantially and permanently mentally and physically impaired.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

TYLER DYAL, individually and as

parent of OLIVER BENDER, a

minor,

Petitioner,

vs. Case No. 12 - 1534N

FLORIDA BIRTH - RELATED

NEUROLOGICAL INJURY COMPENSATION

ASSOCIATION,

Respondent,

and

ORANGE PARK MEDICA L CENTER,

INC., ERIC EDELENBOS, D.O., AND

NORTH FLORIDA OB/GYN,

Intervenors.

_______________________________/

FINAL ORDER

Pursuant to notice, a final hearing was held in this case on

January 16, 2014, in Jacksonville, Flor ida, before Susan Belyeu

Kirkland, an Administrative Law Judge of the Division of

Administrative Hearings (DOAH).

APPEARANCES

For Petitioner: Vaness Brice, Esquire

Colling, Gilbert, Wright and Carter, LLC

801 N orth Orange Avenue, Suite 830

Orlando, Florida 32801

For Respondent: M. Mark Bajalia, Esquire

Brennan, Manna and Diamond, P.L.

800 West Monroe Street

Jacksonville, Florida 32202

For Intervenor Orange Park Medical Center, Inc.:

Travase Erickson, Esquire

Saalfield, Shad, Stokes, Inclan,

Stoudemire and Stone, P.A.

245 Riversid e Avenue, Suite 400

Jacksonville, Florida 32202

For Intervenors Eric Edelenbos, D.O. , and North Florida

O B /G YN :

Richard E. Ramsey, Esquire

Alexis Oles, Esquire

Wick er, Smith, OÓHara,

McCoy and Ford, P.A.

50 North Laura Street, Suite 2700

Jacksonville, Florida 32202

STATEMENT OF THE ISSUE

The issue in this case is whether Oliver Bender has suffered

an injury for which compensation should be awarded under the

Florida Birth - Related Neurological Injury Compensation Plan

(Plan).

PRELIMINARY STATEMENT

On May 15, 2012, Tyler Dyal, individually and as parent of

Oliver Bender (Oliver), a minor, filed a Peti tion for

Determination of Compensability Pursuant to Florida Statute

Section 766.301 - 766.316 (Petition) with DOAH. The Petition

alleged that Oliver suffered permanent and substantial physical

and mental impairment due to lack of oxygen resulting in a birt h -

related neurological injury.

DOAH served the Florida Birth - Related Neurological Injury

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

June 1, 2012; served Orange Park Medical Center on June 4, 2012;

and served Eric Edelenbos, D.O., on Jun e 4, 2012. The case was

placed in abeyance.

On November 14, 2012, NICA filed a response to the Petition,

giving notice that the alleged injury did not "meet the definition

of a 'birth - related neurological injury' as defined in section

766.3021(2), Florid a Statutes, which specifically requires that

the injury render 'the infant permanently and substantially

mentally and physically impaired.'" NICA requested that a hearing

be scheduled to resolve whether the claim was compensable.

On February 1, 2013, Ora nge Park Medical Center filed Orange

Park Medical Center, Inc.Ós Petition for Leave to Intervene, which

was granted by Order dated February 11, 2013. On March 25, 2013,

Dr. Eric Edelenbos and North Florida OB/GYN filed their Petition

for Leave to Interven e, which was granted by Order dated April 2,

2013.

On October 1, 2013, Intervenors, Dr. Edelenbos and North

Florida OB/GYN filed a Motion for Partial Summary Judgment on the

issue of whether Dr. Edelenbos and North Florida OB/GYN gave

notice pursuant to s ection 766.316. On November 13, 2013, a

Partial Summary Final Order on Notice was entered, finding that

Dr. Edelenbos and North Florida OB/GYN provided sufficient notice.

Jurisdiction was retained to determine whether statutory notice

was provided by Ora nge Park Medical Center and whether Oliver

sustained permanent and substantial mental and physical

impairments. The parties agreed that Oliver had suffered a brain

injury as a result of oxygen deprivation during labor and

delivery, and continuing into the immediate post - delivery period.

On January 9, 2014, the parties filed a Joint Pre - hearing

Stipulation, in which they agreed to certain facts as set forth in

section D of the Joint Pre - hearing Stipulation. These facts have

been incorporated into this Fina l Order.

At the final hearing, the parties agreed that the only issue

to be determined was whether OliverÓs injury resulted in a

substantial and permanent mental and physical impairment.

At the final hearing, Joint Exhibits A through DD were

admitted in evidence. Neither Petitioner nor Respondent called

any live witnesses. Intervenors called Trevor Resnick, M.D., and

James B. Ball, M.D., as witnesses.

The Transcript of the final hearing was filed on January 30,

2014. On February 10, 2014, the parties f iled their proposed

final orders, which have been carefully considered in the drafting

of this Final Order.

FINDINGS OF FACT

1. Tyler Dyal is the natural mother of Oliver Bender.

2. Oliver was born a live infant at Orange Park Medical

Center in Orange Park, Florida, on September 26, 2011. Orange

Park Medical Center was a hospital licensed in Florida on

September 26, 2011.

3. The physician providing obstetrical services at the time

of OliverÓs birth was Dr. Edelenbos. At all material times,

Dr. Eric Edelenbos, North Florida Obstetrical and Gynecological

Associates, P.A., was a participating physician in the Plan.

4. Oliver weighed in excess of 2,500 grams at birth.

5. None of the parties dispute that Oliver sustained an

injury to the brain caused by oxygen deprivation during

resuscitation in the immediate post - delivery period. Donald C.

Willis, M.D., NICA's expert, opined:

In summary, labor was complicated by an

abnormal FHR pattern and resulted in a

depressed newborn. Umbilical cord blood gas

w as consistent with birth hypoxic with a pH of

6.87. The newborn hospital course was

complicated by respiratory depression, apnea

episodes and seizures. MRI identified hypoxic

ischemic encephalopathy.

There was an apparent obstetrical event that

resulted in loss of oxygen to the babyÓs brain

during labor, delivery, and continuing into

the immediate post delivery period. The

oxygen deprivation resulted in brain injury.

I am not able to comment about the extent of

the brain injury.

6. At the time of Oli verÓs birth, his Apgar scores were 3

at one minute, 6 at five minutes, and 8 at ten minutes, and he

required resuscitation in the delivery room. His arterial cord

gas pH was 6.872 with a base deficit of over 20, indicating that

he had metabolic acidosis a nd had experienced hypoxia during

labor and delivery. Intubation was attempted but was not

successful; however, Oliver improved and did not require

intubation thereafter.

7. Oliver began having dusky spells around 24 hours of age

with reported ÐstaringÑ and tight tone. He also demonstrated

jitteriness and irritability.

8. By September 28, 2011, Oliver had begun to have

seizures, which were treated with Phenobarbital. Oliver was

transferred to WolfsonÓs ChildrenÓs Hospital, where he continued

to have s tiffening of his extremities with arching and eye

staring.

9. On September 29, 2011, Oliver had an MRI which showed

the following:

FINDINGS: There are felt to be diffusion

abnormalities present. These are more

conspicuous on the B200 (more heavily

diff usion weighted) images. These involve

predominantly the gray matter involving the

left frontoparietal region and the left MCA

distribution. In addition there is slight

restricted diffusion in the basal ganglia

bilaterally. There is restricted diffusion

along the calcarine fissures greater on the

right than the left. There is a small amount

of restricted diffusion in the right frontal

lobe along the inferior aspect of the sylvian

fissure and extending slightly superiorly.

There is also slight restricted diffusion

bilaterally felt to localize to the gray

matter along in the gray matter of the

occipital tips. The cerebellum appears

preserved.

These diffusion abnormalities are accompanied

by subtle T2 prolongation of FLAIR images as

well.

There is otherw ise no space - occupying lesion,

mass effect or midline shift. There is no

hydrocephalus.

The corpus callosum appears well formed.

The intracerebral flow voids on the T2 cube

images appear preserved and symmetric. The

patient appears to have a complete c ircle of

Willis.

IMPRESSION

Areas of restricted diffusion in distribution

as described above. The study discussed with

Dr. Driscoll and overall the findings are

felt to be consistent with hypoxic ischemic

encephalopathy. No obvious focal vascular

abnorm alities are seen on the T2 cube images.

As such this is likely secondary to somewhat

global ischemic etiology rather than embolic

phenomenon. There is no evidence of

hemorrhage.

10. Oliver was discharged from WolfsonÓs Chi l drenÓs

Hospital on October 5, 2011, with no further seizure activity

being noted. He was continued with Phenobarbital and still

remains on the medication.

11. When Oliver was five weeks old, he was seen by

Dr. Alana Salvucci at Nemours. Dr. SalvucciÓs assessment of

Oliver revealed the following:

Since Oliver has been at home, he has made

good developmental progress. He is making

eye contact and tracks. He startles to loud

sounds. He moves both of his extremities

equally and spontaneously. He smiles.

Overall, his grandmother des cribes him as

stiff, tending to hold his hands in a fisted

position, but will open and grasp objects.

He is on phenobarbital 2 mL twice a day,

which is approximately 3.5 mg/kg per day. He

has had no further events of stiffening

concerning for seizure. H owever, he does

have episodes where he stares off, typically

to the right with no change in tone, lasting

1 to 2 minutes, occurs at least once a day.

There are several times where caretakers can

get his attention; however, most of the time,

he will not re spond to tactile or verbal

stimuli. There are no associated oral

automatisms or eye flutter.

* * *

Oliver has overall been doing well with no

stiffening or jerking episodes, he has been

smiling, and tracking and milestones have

been appropriate fo r his age.

12. Dr. Salvucci recommended that OliverÓs mother and

grandmother videotape OliverÓs episodes of staring off and send

the tape to Nemours for review. She arranged for a prolonged, at

least four - hour, video EEG in hopes of capturing the starin g

episodes described by OliverÓs mother and grandmother. On

December 29, 2011, Oliver had a four - hour, sleep - deprived EEG,

which was normal with no clinical events during the EEG

recording. No evidence was presented that established OliverÓs

mother follo wed Dr. SalvucciÓs recommendation to videotape one of

OliverÓs staring episodes.

13. On March 22, 2012, Oliver returned to Nemours and was

seen by Dr. Harry Abrams. Dr. Abrams noted that Oliver had made

good developmental progress since his discharge fro m WolfsonÓs

ChildrenÓs Hospital. Oliver had begun sitting up in a tripod

position. He used both hands equally, reaching for objects and

transferring objects. According to his mother, OliverÓs

stiffness had significantly improved, but Oliver still had ti ght

heel cords, making him tend to stand on his toes when bearing

weight. Although not babbling, Oliver was making good eye

contact, smiling , and tracking. During the visit, OliverÓs

mother reported that at least twice a day Oliver had episodes

where his arms stiffened and flex ed at the elbow and that he was

having jerking movements. She indicated that Oliver had been

staring off, and there appeared to be transient episodes of

unresponsiveness that lasted several seconds.

14. Dr. Abrams recommended that an eight - hour video EEG be

done in hopes of capturing one of the events with the upper

extremity jerking. This recommendation was not followed.

15. On January 17, 2013, Oliver was admitted to WolfsonÓs

ChildrenÓs Hospital for seizures accompanying a fev er and cough.

The seizure was a single episode in which Oliver was unresponsive

for one minute and nonresponsive to verbal or tactile

stimulation. The seizure caused grogginess, and Oliver slept

afterwards. The seizure was characterized as generalized a nd

staring. The postical symptom was confusion. His mother

reported that this was the first seizure that Oliver had had

since he was an infant. Oliver was treated with Klonopin and

discharged the next day in stable condition.

16. Oliver visited Dr. Abr ams on April 16, 2013.

Dr. Abrams noted that Oliver was doing well. Oliver had no

significant evidence of delay. OliverÓs family advised that

Oliver had done well, but at times Oliver would stare off and at

other times, when he was drowsy or sleepy, he would put his

fingers in his ears and shake his head back and forth.

Dr. Abrams recommended that OliverÓs dosage of Phenobarbital

begin to be tapered.

17. In May 2013, Oliver had another seizure. Again, this

seizure was accompanied by a high fever. Hi s mother was about to

give him Tylenol when Oliver suddenly stiffened and jerked for

several minutes. The episode stopped spontaneously. As a

result, OliverÓs dosage of Phenobarbital was increased.

18. Oliver has not had another episode similar to the one

he had in May 2013. His mother and grandmother report that he

continues to have episodes in which he stares off and becomes

confused. However, he returns to baselines after the staring

episodes.

19. Oliver is an active child; he can run, walk, and p lay.

He is able to throw a ball and can drive a power - wheel car by

pushing the pedal to drive it. He plays with other children.

Oliver likes to play with his Hot Wheels cars. He can pull off

his hats, sock s , and clothes. He is able to turn pages in a

book, and he can stack blocks. Oliver scribbles on paper with

pens, pencils, and crayons. He can feed himself with utensils

and drinks from a sippy cup. He can also drink from a straw. He

can put his arms inside his sleeves when he is being dressed.

20 . When asked to point to his body parts, including his

eyes, ears, hair, feet, hands, and belly button, he is able to do

so. As of October 15, 2013, Oliver could speak approximately

eight single words meaningfully and had not spoken any two - word

phrases. His speech development at that time was not age

appropriate. However, Oliver is able to use nonverbal

communications effectively. When he is hungry, he smacks his

lips and holds out his hands, indicating that he wants something

to eat. He is able to u nderstand and carry out verbal requests.

He makes good eye contact. He can identify objects in pictures

such as a ball, airplane, and ice cream cone by pointing to the

objects. He is not receiving any type of therapy, such as

physical, occupational, or speech therapy.

21. Respondent retained Raymond Fernandez, M.D. , to

evaluate Oliver. Dr. Fernandez is board - certified in pediatrics

and neurology together with child neurology and has been

practicing pediatric neurology for 37 years. Dr. Fernandez

revie wed OliverÓs medical records and performed independent

medical examinations on Oliver on September 25, 2012, and

October 15, 2013. After Dr. FernandezÓs examination on

September 25, 2012, he felt that it would be appropriate to

reexamine Oliver in six to nine months in order to track his

developmental progress before coming to a final conclusion.

After his second evaluation, Dr. Fernandez summarized his

evaluation as follows:

There is no evidence at this time, of

substantial mental and motor impairment due

to oxygen deprivation sustained during labor

and delivery.

Oliver has made good progress with his fine

and gross motor skills and at this time,

there is no convincing evidence for

spasticity or cerebral palsy that was noted

earlier. There is no reaso n to an ticipate

any reversal or regression in his motor

skills, strength, or coordination.

Expressive speech development has been

delayed, but he is improving at a steady pace

and this trend should continue. Receptive

language skills are also improving s teadily.

Delay in speech and language skills, even

when improving, is sometimes an early

indicator of later learning difficulty in the

classroom setting. Whether or not this will

prove to be a problem for Oliver remains to

be determined. It is a potenti al problem

that should not be insurmountable with

appropriate input from his teachers.

22. At the time of Dr. FernandezÓs examination on

October 15, 2013, Oliver was able to run without falling and had

no abnormality in his gait.

23. Intervenor, Orange Park Medical Center, retained

Trevor Resnick, M.D. , to evaluate Oliver. He is board - certified

in pediatrics and neurology with a special competence in child

neurology. Dr. Resnick reviewed OliverÓs medical records and

examined Oliver. He opined OliverÓs staring spells and resulting

confusion were partial complex seizures. These seizures have not

been confirmed with a video EEG and have been witnesse d only by

his family. However, given the long history of these episodes,

more likely than not, the episod es are partial complex seizures.

24 . When Oliver experiences a staring episode and resulting

confusion, he will return to his baseline condition and is able

to carry on with the activities previously described. The

episodes are transient in nature; thus, any physical or mental

impairment that occurs during the episode is not permanent.

25. Dr. FernandezÓs opinion that Oliver does not have a

substantial, permanent physical and mental impairment is

credited.

CONCLUSIONS OF LAW

26. The Division of Adminis trative Hearings has jurisdiction

over the parties to and the subject matter of this proceeding.

§§ 766.301 - 766.316, Fla. Stat. (2011).

27. The Plan was established by the Legislature "to provide

compensation on a no - fault basis, for a limited class of

c atastrophic injuries that result in unusually high costs for

custodial care and rehabilitation." § 766.301 , Fla. Stat . The

Plan applies only to a birth - related neurological injury, which is

defined in section 766.302(2) as follows:

'Birth - related neurol ogical injury' means

injury to the brain or spinal cord of a live

infant weighing at least 2,500 grams for a

single gestation or, in the case of a multiple

gestation, a live infant weighing at least

2,000 grams at birth caused by oxygen

deprivation or mech anical 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 bir ths only and shall not

include disability or death caused by genetic

or congenital abnormality. (emphasis added).

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

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

the plan by filing a claim for compensation with DOAH.

§§ 766.302(3), 766.303(2), and 766.305(1) , Fla. Stat . The Florida

Birth - Related Neurological Injury Compensation Association, which

administers the Plan, has "45 days from the date of service of a

complete claim . . . in which to file a response to the petition

and submit relevant written information relating to the issue of

whether the injury is a birth - related neurological injury."

§ 766.305(4) , Fla. Stat .

29. 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 approved

by the Administrative Law Judge to whom the claim has been

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

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

must be resolved by the assigned Administrative Law Judge in

accordance with the provisions of chapter 120, Florida Statutes.

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

30. In discharg ing this responsibility, the Administrative

Law Judge must make the following determinations based upon all

available evidence:

(a) Whether the injury claimed is a birth -

related neurological injury. If the claimant

has demonstrated, to the satisfaction of the

administrative law judge, that the infant has

sustained a brain or spinal cord injury caused

by oxygen deprivation or mechanical injury and

that the infant was thereby rendered

permanently and substantially mentally and

physically impaired, a rebutt able presumption

shall arise that the injury is a birth - related

neurological injury as defined in s.

766.302(2).

(b) Whether obstetrical services were

delivered by a participating physician in the

course of labor, delivery, or resuscitation in

the imme diate 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.

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

Administrative Law Judge concludes that the "infant has sustained

a birth - related neurological injury and that obstetrical services

were delivered by a participating physician at birth."

§ 766.31(1) , Fla. St at .

31. The parties have stipulated that a participating

physician provided obstetric services at OliverÓs birth in a

hospital licensed in Florida. Oliver was born a live infant and

weighed more than 2,500 grams. NICA agrees that Oliver sustained

an in jury to the brain caused by oxygen deprivation during labor,

delivery, and resuscitation in the immediate post - delivery

resuscitation period. The issue to be determined is whether the

injury resulted in a permanent and substantial mental impairment

and a permanent and substantial physical impairment, inasmuch as

both are required to establish compensability. Fla. Birth - Related

Neurological Injury Comp. Ass'n v. Div. of Admin. Hearings , 686

So. 2d 1349 (Fla. 1997)(the Ð Birnie " decision).

32. Petitioner ha s the burden to establish that the injury

Oliver sustained resulted in h im being rendered permanently and

substantially mentally and physically impaired.

§ 766.309(1)(a) , Fla. Stat . See also Balino v. Dep't of Health &

Rehab. Servs . , 348 So. 2d 349, 350 (Fla. 1st DCA 1977)("[T]he

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

affirmative of an issue before an administrative tribunal.").

33. The Legislature did not define "permanently and

substantially mentally and physically impaire d." However, those

terms should be read in the context of the legislation creating

the Plan. The Legislature intended that only a limited class of

catastrophic injuries be compensable under the Plan.

34. In Matteini v. Florida Birth - Related Neurologica l Injury

Compensation Association , 946 So. 2d 1092, 1095 (Fla. 5th DCA

2006), the court discussed the criteria for a physical impairment.

Under the Plan, a "physical impairment"

relates to the infant's impairment of his

"motor abnormalities" or "physical functions,"

which along with the brain injury

significantly affects the infant's mental

capabilities so that the infant will not be

able to translate his cognitive capabilities

into adequate learning or social development

in a normal manner.

35. In Adve ntist Health System/Sunbelt, Inc. v. Florida

Birth - Related Neurological Injury Compensation Association , 865

So. 2d 561, 567 (Fla. 5th DCA 2004), the court in explaining the

Birnie decision stated: "[U]nder NICA, the identification of a

substantial mental impairment may include not only significant

cognitive deficiencies but can include, in a proper case,

additional circumstances such as significant barriers to learning

and social development."

36. The child in the Birnie decision was found to have both

permanent and substantial mental and physical impairments,

although tests indicated that he was average or above average in

his cognitive skills and preacademic skills. The child in Birnie

is described as follows:

At the time of the hearing in this case, Eric

was 4 1/2 years old. He was unable to stand

up, walk, or crawl. His only method of

independent mobility was to roll over. The

use of his hands and arms was very limited.

He also had great difficulty talking and/or

communicating and he must take l ong pauses to

formulate a response to any inquiry.

Eric's brain dysfunction is permanent.

Because Eric's speech is greatly impacted by

his condition, it is virtually certain that he

will always be severely limited in his verbal

expression and other commu nication skills.

While continued therapy may help him to

communicate better and to become somewhat more

mobile, he will almost certainly never be able

to walk, feed, groom or toilet himself.

* * *

As a direct result of his injury, Eric will

not be a ble to communicate, attend school or

otherwise learn and develop intellectually

without substantial accommodation. His social

and vocational development have unquestionably

been significantly impaired.

688 So. 2d at 1352.

37. There is a sharp contrast between Oliver and the child

in the Birnie decision. Oliver is able to walk, run, feed

himself, use his hands, and talk. Oliver should be able to

attend school and should be able to learn and to communicate.

38. Petitioner has failed to establish that Oliver has a

permanent and substantial mental and physical impairment. Thus,

Oliver is not entitled to benefits under the Plan.

CONCLUSION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is ORDERED that the petition filed by Tyler Dyal,

individually, and as parent of Oliver Bender, is dismissed with

prejudice.

DONE AND ORDERED this 6th day of March , 2014 , in

Tallahassee, Leon County, Florida.

S

SUSAN BELYEU KIRKLAND

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.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 6th day of March , 2014 .

COPIES FURNISHED:

(via certified mail)

Ronald S. Gilbert, Esquire

Vaness Brice, Esquire

Colling, Gilbert, Wright and Carter, LLC

801 North Orange Avenue , Suite 830

Orlando, Florida 32801

(Certified Mail No. 7013 2630 0000 4175 3387)

Kenney Shipley, Executive Director

Florida Birth Related Neurological

Injury Compensation Association

2360 Christopher Place, Suite 1

Tallahassee, Florida 32308

( Certified Mail No. 7013 2630 0000 4175 3394)

M. Mark Bajalia, Esquire

Brennan, Manna and Diamond

800 West Monroe Street

Jacksonville, Florida 32202

( Certified Mail No. 7013 2630 0000 417 6 5779 )

Travase Lloyd Erickson, Esquire

Saalfield, Shad, Stokes, Inclan,

Stoudemire and Stone, P.A.

245 Riverside Avenue , Suite 400

Jacksonville, Florida 32202

( Certified Mail No. 7013 2630 0000 4175 3400 )

Richard E. Ramsey, Esquire

Alexis Oles, Esquire

Wicker, Smith, O ' Hara,

McCoy and Ford, P.A.

50 North Laura Street , Suite 2700

Jacksonville, Florida 32202

( Certified Mail No. 7013 2630 0000 4176 5786 )

Amie Rice, Inve stigation Manager

Consumer Services Unit

Department of Health

4052 Bald Cypress Way, Bin C - 75

Tallahassee, Florida 32399 - 3275

(Certified Mail No. 7013 2630 0000 4176 5793)

Elizabeth Dudek, Secretary

Health Quality Assurance

Agency for Health Care Admini stration

2727 Mahan Drive, Mail Stop 3

Tallahassee, Florida 32308

(Certified Mail No. 7013 2630 0000 4176 5809)

NOTICE OF RIGHT TO JUDICIAL REVIEW

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

by appeal to the District Court of Appea l 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 o f Administrative Hearings

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

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

clerk of the appropriate District Court of Appeal. See

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

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

1992).