Motion-Secondary: BURG, DEBORAH A vs. WEST FLORIDA PHYSICIANS NETWORK, LLC

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                                Filing # 135979530 E-Filed 10/05/2021 08:24:26 PM


                                                                                      IN THE CIRCUIT COURT OF THE 20%
                                                                                      JUDICIAL COURT IN AND FOR
                                                                                      CHARLOTTE COUNTY, FLORIDA

         DEBORAH COOPER BURG, by and through her                                      CASE NO.: 2020-000616 CA
         Court-appointed Guardian, RICKY BURG;
          NICOLE BURG, her daughter; and RICKY BURG,
          her spouse,

                  Plaintiffs,
         Vv.


         WEST FLORIDA PHYSICIAN NETWORK, LLC;
         DILENDRA WEERASINGHE; JOHN RIOUX;
          FAWCETT MEMORIAL HOSPITAL, INC. d/b/a
          FAWCETT MEMORIAL HOSPITAL; SUSAN
          BRUNER; ABIGAIL UTECH; NANDINI KIRI, M.D.,
          P.A.; NANDINI KIRI; HARBOR MEDICAL GROUP,
          LLC; AHSAN KAMAL; SOVI JOSEPH, M.D., P.A.;
          SOVI JOSEPH; DOMINGO E. GALLIANO, JR,, P.A.;
          DOMINGO GALLIANO, JR.; ARTURO
          RODRIGUEZ-MARTIN, M.D., P.L.; ARTURO
          RODRIGUEZ-MARTIN; MILLENNIUM
          PHYSICIAN GROUP, LLC d/b/a
          MILLENNIUM PHYSICIAN GROUP; CATHY
          CRISS; LIFE CARE CENTERS OF AMERICA, INC.;
          PUNTA GORDA MEDICAL INVESTORS, LLC
          d/b/a LIFE CARE CENTER OF PUNTA GORDA;
          LIFE CARE PHYSICIAN SERVICES, LLC; and
         VANCE MALONEY, III,

                  Defendants.
                                                                                /
               DEFENDANT, MILLENNIUM PHYSICIAN GROUP, LLC’S RESPONSE IN OPPOSITION
                                                         inre
                                         PLAINTIFFS’ MOTION TO COMPEL AS TO
                         JULY 28, 2021 SUPPLEMENTAL REQUEST FOR PRODUCTION

                  Defendant, MILLENNIUM                  PHYSICIAN          GROUP, LLC, by and through its undersigned

         counsel, hereby opposes in full and responds as follows to “Plaintiffs’ Motion to Compel as to

         Plaintiffs’ July 28, 2021 Supplemental Request for Production ...”, filed September 21, 2021.
                                                               Cole, Scott & Kissane

                          Miami | Fort Lauderdale West | Fort Lauderdale East | West Palm Beach | Orlando | Jacksonville | Tampa
                                          Bonita Springs | Naples | Pensacola | Fort Myers | Tallahassee | Key West
CASE NO.: 2020-000616 CA


As addressed further in Defendant’s corresponding Motion for Protective Order (filed August

27, 2021),    MILLENNIUM             PHYSICIAN            GROUP        is not obligated              to obtain           and   produce

documents the policies, procedures, and protocols of separate entities. There is no dispute

MILLENNIUM      PHYSICIAN           GROUP        was not involved in the patient’s transfer to Life Care

Center or any preceding evaluations or approvals, so the items Plaintiff is demanding—the

policies, procedures, and protocols that would have been                                    implicated        had        MILLENNIUM

PHYSICIAN GROUP been the involved in this transfer—have no conceivable relevance.


       1        Defendant, MILLENNIUM                     PHYSICIAN GROUP, LLC (MPG) is the employer of

Defendant DR. CATHY CRISS, who was mistakenly designated as the attending physician for

purposes of the consultations with Millennium Home Care, a separate entity, on                                                 August 20

 ind August21, 2019.

       2        DEBORAH           BURG’s         actual      admitting/attending                physician         was      Dr. Arturo

Rodriguez-Martin, the patient’s primary care physician who referred her to home care and

signed the order authorizing the same.

       3        Having discovered               DR. CRISS had no physician-patient relationship with

DEBORAH      BURG and no involvement in the patient’s care, Plaintiffs now assert a new basis

for liability, based on DR. CRISS’s execution of the patient plan of care on September 5, 2019.

       4.      As addressed in greater depth in the contemporaneously filed response to

Plaintiffs’ “Amended Motion for Appropriate Relief,” this new angle is inconsistent with the

Complaint and is patently untenable: As the alleged deficiencies in DEBORAH BURG’s care



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                                                     Cole, Scott & Kissane

                Miami | Fort Lauderdale West | Fort Lauderdale East | West Palm Beach | Orlando | Jacksonville | Tampa
                                Bonita Springs | Naples | Pensacola | Fort Myers | Tallahassee | Key West
CASE NO.: 2020-000616 CA


had been remedied          when        DR. CRISS became                   involved and executed the plan of care on

September 5, 2019, a different course of action at that time would have made no difference.

       5         Plaintiffs’      references           to     false       statements       derive      from       a     very   strained

interpretation of the plan of care and DR. CRISS’s deposition testimony, but, regardless, these

claims can be disregarded entirely, as DEBORAH BURG is suing DR. CRISS (and MPG, as her

employer) for medical malpractice, not improper billing practices.

       6         Despite the substantial space Plaintiffs dedicate to their arguments, none of

the points raised actually addresses the objections raised in the corresponding Motion for

Protective Order.

       7.        As an initial matter, MILLENNIUM                          PHYSICIAN GROUP, LCC is not obligated to

obtain and produce          documents           from        Millennium        Home       Care or Millennium                Healthcare,

which are independent entities.

       8         Having served             Millennium           Home        Care with a separate presuit notice and

deposed an Millennium Home Care employee (who was represented by separate counsel),

Plaintiffs are aware that Millennium                        Home      Care is an entity distinct from MILLENNIUM

PHYSICIAN       GROUP,      as    is   Millennium            Healthcare        LLC     (to    the    extent       the     reference   to

“Millennium Health Care” is intended to refer to the same).

       9.        Limiting the Requests in accordance with these settled principles, Plaintiffs

are seeking the following:

            a    All policies and procedures in effect in August 2019 concerning Millennium
                 Physician Group as to the process for a Millennium Physician Group patient
                 being identified as eligible for home skilled nursing facility admission and the

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                                                       Cole, Scott & Kissane

                 Miami | Fort Lauderdale West | Fort Lauderdale East | West Palm Beach | Orlando | Jacksonville | Tampa
                                 Bonita Springs | Naples | Pensacola | Fort Myers | Tallahassee | Key West
CASE NO.: 2020-000616 CA


               process that Millennium Physician Group follows to have a patient admitted to
               askilled nursing facility such as Life Care Center of Punta Gorda.

               All   Beneficiary          and/or        Admission           Protocols         in    effect      in August     2019
               concerning the evaluation and approval                               of a Millennium              Physician   Group
               patient to be admitted to a skilled nursing facility such as Life Care Center of
               Punta Gorda.

               All policies, procedures, and protocols in effect in August 2019 which were
               followed by Millennium Physician Group, LLC, as to the transfer of Plaintiff
               Deborah Cooper Burg from Millennium Home Care to Life Care Center of Punta
               Gorda.

        10.    Again, there is no dispute that DEBORAH BURG came to Life Care Center from

Millennium Home Care, that transfer decision being made by the patient and/her husband,

with the assistance of her primary care physician, Dr. Rodriguez-Martin.

        11.    DR. CRISS had not been the patient's primary care physician since 2015, and

neither she, nor     MILLENNIUM             PHYSICIAN           GROUP        had     any    involvement           in this transfer

decision.

        12.    Compelling MILLENNIUM                      PHYSICIAN           GROUP to produce documents which

indisputably   address       a purely        hypothetical           scenario       that is blatantly             contrary    to the

established facts of what actually occurred, represents an undue burden, not justified by any

reasonable discovery interests articulated by Plaintiffs’ counsel.

       WHEREFORE,          Defendant, Millennium Physician Group, LLC, requests this Honorable

Court deny Plaintiffs’ Motion to Compel, grant its corresponding Motion for Protective Order,

and afford such other relief as the Court deems proper under the circumstances.




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                                                    Cole, Scott & Kissane

               Miami | Fort Lauderdale West | Fort Lauderdale East | West Palm Beach | Orlando | Jacksonville | Tampa
                               Bonita Springs | Naples | Pensacola | Fort Myers | Tallahassee | Key West
CASE NO.: 2020-000616 CA


                                           CERTIFICATE
                                                  OF SERVICE
       I HEREBY CERTIFY that on this 5th day of October, 2021, a true and correct copy of

the foregoing was filed with the Clerk of Charlotte County by using the Florida Courts e-Filing

Portal, which will send an automatic e-mail message all attorneys of record.


                                                         COLE, SCOTT & KISSANE, P.A.
                                                         Counsel for Defendant Millennium Physician Group, LLC
                                                         Cole, Scott & Kissane Building
                                                         27300 Riverview Center Boulevard, Suite 200
                                                         Bonita Springs, Florida 34134
                                                        Telephone (239) 690-7924
                                                         Facsimile (239) 738-7778
                                                         Primary e-mail: ron.campbell@csklegal.com
                                                         Secondary e-mail: daniel.calvert@csklegal.com
                                                        Alternate e-mail; juliette.heller@csklegal.com



                                                By:     s/ Daniel Calvert
                                                         RON M. CAMPBELL
                                                         Florida Bar No.: 827061
                                                         DANIEL C. CALVERT
                                                         Florida Bar No.:           116544




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                                                      Cole, Scott & Kissane

               Miami | Fort Lauderdale West | Fort Lauderdale East | West Palm Beach | Orlando | Jacksonville | Tampa
                               Bonita Springs | Naples | Pensacola | Fort Myers | Tallahassee | Key West