Answer: BURG, DEBORAH A vs. WEST FLORIDA PHYSICIANS NETWORK, LLC

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                                Filing # 118809161 E-Filed 12/29/2020 10:17:34 AM



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


         DEBORAH COOPER BURG, by and through her                  CIRCUIT CIVIL DIVISION
         court-appointed  guardian, RICKY  BURG;
         NICOLE     BURG, her daughter and RICKY                  CASE NO. 20-000616 CA
         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.; NANDINIKIRI;
         HARBOR MEDICAL GROUP, LLC; AHSAN
         KAMAL; SOVI JOSEPH, M.D., P.A.; SOVI
         JOSEPH DOMINGO E. GALLIANO, JR., P.A.;
         DOMINGO     GALLIANO,     IR;  ARTURO
         RODRIGUEZ-MARTIN, M.D., P.L.! ARTURO
         RODRIGUEZ-MARTIN, M.D.; 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 AHSAN KAMAL’S
               ANSWER, AFFIRMATIVE DEFENSES AND DEMAND FOR JURY TRIAL TO
                             PLAINTIFFS’ AMENDED COMPLAINT

                  Defendant, AHSAN KAMAL, by and through the undersigned attorneys, hereby

        responds to Plaintiffs’ Amended Complaint as follows:
CASE NO, 20-000616 CA


                            COUNT I THROUGH           COUNT XxVII

       Paragraphs 1-342. These allegations do not pertain to Defendant, AHSAN KAMAL. To

the extent they may be deemed to pertain to this Defendant, they are denied.

         COUNT XXVIII- CLAIM ON BEHALF OF DEBORAH COOPER BURG
                     AGAINST DEFENDANT AHSAN KAMAL

       343.    Admitted for jurisdictional purposes only. Otherwise, denied.

       344     Without knowledge. Therefore, denied.

       345     Without knowledge. Therefore, denied.

       346.    Without knowledge. Therefore, denied.

       347     Without knowledge. Therefore, denied.

       348.    Admitted that Ahsan Kamal was a medical doctor doing business in Florida and

was a resident of the State of Florida. Otherwise, denied.

       349,    Denied.

       350.    Denied

       351     Denied.

       352.    Denied

       353     Denied.

       354.    Denied

       355     Denied.

                         COUNT XXIX- CLAIM OF NICOLE BURG
                         AGAINST DEFENDANT AHSAN KAMAL

       356.    Admitted for jurisdictional purposes only. Otherwise, denied.

       357     Without knowledge. Therefore, denied.
CASE NO, 20-000616 CA


       358.    Without knowledge. Therefore, denied.

       359.    Without knowledge. Therefore, denied.

       360.    Admitted that Ahsan Kamal was a medical doctor doing business in Florida and

was a resident of the State of Florida. Otherwise, denied.

       361.    Denied.

       362.    Denied

       363     Denied.

       364.    Denied

       365     Denied.

       366.    Denied

       367     Denied.


                          COUNT XXX- CLAIM OF RICKY BURG
                          AGAINST DEFENDANT AHSAN KAMAL

       368     Admitted for jurisdictional purposes. Otherwise, denied.

       369.    Without knowledge. Therefore, denied.

       370     Without knowledge. Therefore, denied.

       371     Without knowledge. Therefore, denied.

       372.    Admitted that Ahsan Kamal was a medical doctor doing business in Florida and

was a resident of the State of Florida. Otherwise, denied.

       373.    Denied.

       374.    Denied.

       375.    Denied.
CASE NO, 20-000616 CA


       376     Denied.

       377     Denied

       378     Denied.

       379.    Denied

                               COUNT XXXI THROUGH                  LXVI

       Paragraphs 380-838. These allegations do not pertain to Defendant, AHSAN KAMAL.

To the extent they may be deemed to pertain to this Defendant, they are denied.

                                  AFFIRMATIVE DEFENSES

       Defendant,   AHSAN      KAMAL,      having   specifically    answered   each   paragraph   of the

Amended Complaint, now alleges as separate and affirmative defenses, the following:

                               FIRST AFFIRMATIVE DEFENSE

       Defendant states that the Plaintiff's damages, if any, are the result of an act or omission of

another, whose act or omission is not the responsibility of this Defendant.

                             SECOND AFFIRMATIVE DEFENSE

       Plaintiff herein has received benefits from collateral sources and Defendant is entitled to

an offset to the extent of any amount that has been paid, payable, or contributed pursuant to Florida

Statutes §768.76 and Thyssenkrupp Elevator Corp. v. Lasky, 29 Fla. L. Weekly D103 (4"" DCA

December 31, 2003).

                              THIRD AFFIRMATIVE DEFENSE

       That at the time and place and under the circumstances set forth in the Amended Complaint,

the Plaintiff was careless and negligent and said carelessness and negligence was the sole
CASE NO, 20-000616 CA


proximate    cause of the occurrence complained       of and any injury, damage     or loss allegedly

sustained therein.

                              FOURTH AFFIRMATIVE DEFENSE

        Defendant asserts that the incident or damages complained of by Plaintiff was caused by

conditions beyond the control of the Defendants and, accordingly, Plaintiff is precluded from

recovery for the alleged damages.

                               FIFTH AFFIRMATIVE DEFENSE

        That such injury as Plaintiff may have suffered was solely the result of the natural and

inexorable process of human disease and condition of recognized risks of therapy to treat the same.

                               SIXTH AFFIRMATIVE DEFENSE

        Defendant is entitled to the applicable provisions of Florida Statutes §768.13, §768.76,

§768.78, and §768.81.
        Defendant is entitled to the applicable provisions of Florida Statutes §766.102 et. seq.

                             SEVENTH AFFIRMATIVE DEFENSE

        Defendant asserts that the incident or damages complained of by Plaintiff was caused by

conditions   and/or   independent   intervening   acts beyond   the control   of the Defendant     and,

accordingly, Plaintiff is precluded from recovery for the alleged damages.

                              EIGHTH AFFIRMATIVE DEFENSE

        Defendant affirmatively alleges that the actions of other persons or parties contributed to,

or caused, in whole or in part, the damages alleged by Plaintiff, and any said negligence of other

persons or parties should be apportioned accordingly.
CASE NO, 20-000616 CA


                                     NINTH AFFIRMATIVE DEFENSE

          Plaintiff has failed to mitigate her damages as is required by law.

                                     TENTH AFFIRMATIVE DEFENSE

          Defendant affirmatively alleges that Plaintiff's damages, if any, were caused by forces

and/or independent intervening acts, for which this Defendant had no control or responsibility.

                                ELEVENTH          AFFIRMATIVE DEFENSE

          To the extent applicable, the Defendant is entitled to the provisions of §766.118, and its

subparts.

                                    TWELFTH AFFIRMATIVE DEFENSE

          Plaintiff failed to comply with the conditions precedent to the institution and maintenance

of this action in failing to comply with the provisions of Florida Statute, §766.106 and §766.203.

                                     THIRTEENTH AFFIRMATIVE DEFENSE

          Defendant further affirms that the cause of action, claim or item of damages did not accrue

within the time prescribed by law before this action was brought.

                              FOURTEENTH AFFIRMATIVE DEFENSE

          The injury was within the necessary or reasonably foreseeable results of the surgical,

medicinal, or diagnostic procedure constituting the medical intervention, and the intervention was

carried     out   in   accordance    with   the   prevailing   professional   standard   of care.   Fla.   Stat.

766.102(2)(a).
                                FIFTEENTH AFFIRMATIVE DEFENSE
CASE NO, 20-000616 CA


        To the extent applicable, Defendant affirmatively alleges that he is entitled to a set-off for

any sums paid by any other Defendants, or any other joint tort-feasors, as payment or settlement

in this cause, if any.

                            SIXTEENTH AFFIRMATIVE DEFENSE

        Defendant affirmatively alleges that the actions of third persons, other persons or parties,

contributed to, or caused in whole or in part, the injury and damages alleged by Plaintiff, and any

said negligence of other persons or parties should be apportioned accordingly pursuant to the

Fabre doctrine and Florida Statute Section 768.81.       Based on the allegations contained in the

Amended Complaint, if deemed true by the jury, Defendant lists the following as Fabre Defendants

in   this   matter:      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; 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,               M.D.;   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. Defendant

reserves the right as discovery progresses to place any party, person, healthcare provider, or other

entity, etc., who may be determined to be liable on the verdict form at the time of trial.

                           SEVENTEENTH       AFFIRMATIVE DEFENSE

        Plaintiff's damages,    if any, were brought   about   as a direct and proximate       result of
CASE NO, 20-000616 CA


independent, unforeseeable and intervening causes over which this Defendant had no control or

responsibility and, therefore, this Defendant cannot be held liable to the Plaintiff for damages, if

any.

                              EIGHTEENTH        AFFIRMATIVE DEFENSE

       At all times material hereto, the Defendant acted in good faith and with due regard for the

prevailing professional standard of care.

                               NINETEETH AFFIRMATIVE DEFENSE

       Defendant is entitled to present evidence and argument at trial that Plaintiffs future

damages      should be reduced by her future Social Security disability and Medicare payments.

Further, the Court should set off these payments against any future damages awarded to Plaintiff

to prevent a windfall. Florida Physicians Reciprocal v. Stanley, 452 So.2d 514 (Fla. 1984). See

also State Farm Mutual Auto. Insur. Co. v. Joerg, 2013 Fla. App. Lexis 9840 (Fla. 2d DCA 2013),

Fence Wholesalers of America, Inc. v. Beneficial Commercial Corp., 465 So.2d 570 (Fla. 4th DCA

1985) and State Marine Patrol v. Clifton, 959 So.2d 1262 (Fla. 1st DCA 2007). Plaintiffs’ failure

to comply with the Patient Protection and Affordable Care Act’s mandate to obtain health

insurance constitutes a failure to mitigate damages and, thus, Plaintiffs’ recovery must be reduced

proportionately to the amount attributable to such failure.

                              TWENTIETH AFFIRMATIVE DEFENSE

       The collateral source rule is no longer applicable because the Patient Protection and

Affordable     Care   Act   mandates   that all persons   obtain   health   insurance.   Therefore,   evidence

relating to collateral source benefits received in the past and available in the future to Plaintiff is

admissible and such collateral source benefits shall offset and reduce any past or future economic
CASE NO, 20-000616 CA


damages awarded.

                        TWENTY-FIRST AFFIRMATIVE DEFENSE

        Plaintiff's failure to comply with the Patient Protection and Affordable Care Act’s mandate

to obtain health insurance constitutes a failure to mitigate damages, and thus, Plaintiffs recovery

must be reduced proportionately to the amount attributable to such failure.

                       TWENTY-SECOND           AFFIRMATIVE DEFENSE

        This Defendant is entitled to indemnification and/or contribution and reimbursement of

attorney’s fees and costs, for any liability on its part, due to the alleged negligent acts of co-

defendants.

                                 DEMAND      FOR JURY TRIAL

        Defendant herein demands a trial by jury of any and all issues so triable.

                                 CERTIFICATE OF SERVICE

        WE HEREBY       CERTIFY that a copy hereof has been electronically served via Florida
ePortal    to:    Edward      R.   Blumberg,      Esquire,     erb@deutschblumberg.com,
ccaballero@deutschblumberg.com,                         bblumberg@deutschblumberg.com,
rmitschel@deutschblumberg.com, hcastillo@deutschblumberg.com; John M. Stewart, Esquire,
jstewart@rosswayswan.com, mswan@rosswayswan.com, cdelo@rosswayswan.com; Richard K.
Bowers,      Jr.,    Esquire,    service-rbowers@bankerlopez.com   and     service-
bscheele@bankerlopez.com; Jay Chimpoulis, Esquire,            JChimpoulis@ChimpoulisHunter.com,
SRiedhammer@ChimpoulisHunter.com,;        Victoria            N           Ferrentino,      Esquire,
vferrentino@bgrplaw.com,                ereynolds@bgrplaw.com,               eserve@bgrplaw.com,
dhensley@bgrplaw.com;    Richard       B. Mangan, Jr., Esquire,         rbm.service@rissman.com,
stephanie.doyle@rissman.com,     ktc.service@rissman.com; Ralph L. Marchbank, Jr., Esq.,
RMarchbank@dglawyers.com,        MBurnham@dglawyers.com; Frances G. Prockop, Esquire,
eserve@bgrplaw.com,        Iplyushko@bgrplaw.com;     Brett  P.  Gliosca,  Esquire,  stp-
pleadings@ljglegal.com;    bgliosca@ljglegal.com;    nkovy:    @ljglegal.com on this 29" day of
December, 2020.

                                              4s/ Douglas B. Lumpkin
                                              Douglas B. Lumpkin, Esquire
                                              Florida Bar No. 860700
CASE NO, 20-000616 CA


Summer E. Harcup, Esquire
Florida Bar No. 0118787
WICKER SMITH O'HARA MCCOY & FORD, P.A.
Attorneys for Defendants Ahsan Kamal, MD and
Harbor Medical Group, LLC
1819 Main Street., Suite 910
Sarasota, FL 34236
Phone: (941) 366-4200
Fax: (941) 366-4227
Service: SARertpleadings@wickersmith.com
Atty Email: dlumpkin@wickersmith.com
Atty Email: sharcup@wickersmith.com
Assistant Email: jstjohn@wickersmith.com