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IN THE CIRCUIT COURT OF THE TWENTIETH JUDICIAL CIRCUIT
IN AND FOR CHARLOTTE COUNTY, FLORIDA
SALLY SIMON, as Personal Representative
of the Estate of MICHAEL SIMON,
Plaintiff,
vs. CASE NO. 00-120-CA.
MARK ASPERILLA, M.D., MARK ASPERILLA, M.D.,
P.A., a Florida corporation, DALE GREENBERG, M.D.,
RONALD CONSTINE, M.D., LEVY, BAKER,
CONSTINE & GREENBERG, M_D., P.A., a Florida ok
corporation, SAMUEL ESTEPA, M.D., PRIMARY
CARE PHYSICIANS, INC., a Florida corporation,
THOMAS K. WANZY, M.D., THOMAS K. WANZY,
M_D., P.A., a Florida corporation, BALA K, NANDIGAM,
M.D., CHARLOTTE MEDICAL ASSOCIATES, P.A., a
Florida corporation, MOIDEN MOOPEN, M.D., MOIDEN
MOOPEN, M._D., P.A., a Florida corporation, CARLOS E.
MAAS, M.D., CARLOS E. MAAS, M.D., P.A., a Florida
corporation, NASIR KHALIDI, M.D., NASIR KHALIDI &
SAKINA KHALIDI, M.D., P.A., a Florida corporation,
ST. JOSEPHS EMERGENCY MEDICAL PHYSICIANS,
a Florida corporation, FRANK COLUNGA, M.D. and
CHRIS MICKELSON, M.D.,
2SHhY AZ G34 o0d2
Defendants.
ANSWER AND AFFIRMATIVE DEFENSES
COMES NOW the Defendants, FRANK COLUNGA, M.D. and ST. JOSEPHS
EMERGENCY MEDICAL PHYSICIANS, a Florida corporation, by and through their undersigned
counsel and hereby files this their Answer and Affirmative Defenses to the Plaintiff's complaint as
Charlotte County Clerk
1062145 Date : 02/28/00 - 15:14:51 id: 54
Case#: 00000120CA Pages: 0009
+R
follows:ANSWER
JURISDICTION AND PARTIES
1. Denied.
2. Without knowledge and therefore denied.
3. Without knowledge and therefore denied.
4, Without knowledge and therefore denied.
Paragraphs 5 through 21- These allegations do not pertain to these Defendants. To the extent
they may be deemed to pertain to these Defendants they are denied.
22. Denied.
23. Admitted.
24, — These allegations do not pertain to these Defendants. To the extent they may be
deemed to pertain to these Defendants they are denied as without knowledge.
25. Denied.
AGENCY
Paragraphs 26 through 42 - These allegations do not pertain to these Defendants. To the
extent they may be deemed to pertain to these Defendants they are denied.
43. Without knowledge and therefore denied.
44, Denied.
45. | Without knowledge and therefore denied.
FACTS GIVING RISE TO THE CAUSE OF ACTION
46. Denied.CLAIMS AGAINST ASPERILLA & ASPERILLA, P.A.
Paragraphs 47 and 48 - These allegations do not pertain to these Defendants. To the extent
they may be deemed to pertain to these Defendants they are denied.
CLAIMS AGAINST GREENBERG & LEVY BAKER, P.A.
Paragraphs 49 and 50 - These allegations do not pertain to these Defendants. To the extent
they may be deemed to pertain to these Defendants they are denied.
CLAIMS AGAINST CONSTINE & LEVY BAKER, P.A.
Paragraphs 51 and 52 - These allegations do not pertain to these Defendants. To the extent
they may be deemed to pertain to these Defendants they are denied.
CLAIMS AGAINST ESTEPA & PRIMARY CARE
Paragraphs 53 and 54 - These allegations do not pertain to these Defendants. To the extent
they may be deemed to pertain to these Defendants they are denied.
CLAIMS AGAINST WANZY & WANZY, P.A.
Paragraphs 55 and 56 - These allegations do not pertain to these Defendants. To the extent
they may be deemed to pertain to these Defendants they are denied,
CLAIMS AGAINST NANDIGAM & CHARLOTTE MEDICAL
Paragraphs 57 and 58 - These allegations do not pertain to these Defendants. To the extent
they may be deemed to pertain to these Defendants they are denied.
CLAIMS AGAINST MOOPEN & MOOPEN, P.A.
Paragraphs 59 and 60 - These allegations do not pertain to these Defendants. To the extent
they may be deemed to pertain to these Defendants they are denied.CLAIMS AGAINST MAAS & MAAS, P.A.
Paragraphs 61 and 62 - These allegations do not pertain to these Defendants. To the extent
they may be deemed to pertain to these Defendants they are denied.
CLAIMS AGAINST KHALIDI & KHALIDI, P.A.
Paragraphs 63 and 64 - These allegations do not pertain to these Defendants. To the extent
they may be deemed to pertain to these Defendants they are denied.
CLAIMS AGAINST COLUNGA & ST. JOSEPHS
65. Denied.
66. Denied.
CLAIMS AGAINST MICKELSON & ST. JOSEPHS
67. These allegations do not pertain to these Defendants. To the extent they may be
deemed to pertain to these Defendants they are denied.
68. These allegations do not pertain to these Defendants. To the extent they may be
deemed to pertain to these Defendants they are denied.
LEGAL CAUSATION
69. Denied.
CLAIM OF THE ESTATE OF MICHAEL SIMON
70. Denied.
CLAIM OF SALLY SIMON
71. Denied.
CLAIM OF DANIEL SIMON AS SURVIVOR
72. Denied.All allegations not specifically responded to above are denied.
AFFIRMATIVE DEFENSES
Defendants, FRANK COLUNGA, M.D. and ST. JOSEPHS EMERGENCY MEDICAL
PHYSICIANS, a Florida corporation, having specifically answered each paragraph of the complaint,
now alleges as separate and affirmative defenses the following:
1 Plaintiff herein has received benefits from collateral sources.
2. That at the time and place and under the circumstances set forth in the complaint, the
Plaintiff was careless and negligent and said carelessness and negligence was the sole and proximate
cause of the occurrence complained of any injury, damage or loss allegedly sustained therein.
3. The consent obtained for medical treatment from the Plaintiff was in accordance with
an accepted standard of medical practice among members of the medical profession with similar
training and experience.
4. The Plaintiff would reasonably, under all surrounding circumstances, have undergone
such treatment or procedure had she been advised by the Defendants and in accordance with the
accepted standard of medical practice by members of the medical profession.
5, At all times material hereto the Defendants, FRANK COLUNGA, M.D. and ST.
JOSEPHS EMERGENCY MEDICAL PHYSICIANS, a Florida corporation, acted in good faith and
with due regard for the prevailing professional standard of care.
6. Defendants, FRANK COLUNGA, M.D. and ST. JOSEPHS EMERGENCY
MEDICAL PHYSICIANS, a Florida corporation, affirmatively allege that Plaintiff wholly failed
to comply with the mandatory requirements of Chapter 766 and 768, Florida Statutes, and that her
failure to comply grants this Court no jurisdiction over the Plaintiffs or the claims herein.
57. That such injury as Plaintiff may have suffered was solely the result of the natural and
inexorable process of human disease and condition, and of recognized risks of therapy to treat the
same.
8. That such injury as the Plaintiff may have suffered was solely the result of the
recognized risk of the care or treatment provided.
9. Defendants, FRANK COLUNGA, M.D. and ST. JOSEPHS EMERGENCY
MEDICAL PHYSICIANS, a Florida corporation, affirmatively allege that Plaintiff failed to comply
with the mandatory provisions of Chapter 766 and particularly the requirements during the
statutorily mandated screening period so that the complaint represents a legal nullity.
10. Defendants, FRANK COLUNGA, M.D. and ST. JOSEPHS EMERGENCY
MEDICAL PHYSICIANS, a Florida corporation, are entitled to the applicable provisions of Florida
Statutes §766.102, §768.103, §766.104, §768.76, §768.78 and §768.81.
11. Pursuant to Florida Statute 768.28 Defendants, FRANK COLUNGA, M.D. and ST.
JOSEPHS EMERGENCY MEDICAL PHYSICIANS, a Florida corporation, are entitled to
sovereign immunity, including but not limited to the limits on monetary liability contained within
Florida Statute 768.28.
12. Plaintiff has failed to comply with the notice provisions of Florida Statute 768.28.
13. Plaintiff has failed to comply with the presuit screening requirements of Florida's
Medical Malpractice Reform Act.
14. Defendants, FRANK COLUNGA, M.D. and ST. JOSEPHS EMERGENCY
MEDICAL PHYSICIANS, a Florida corporation, affirmatively allege that Plaintiff's damages, if
any, were caused wholly or in part by third persons over whom Defendants, FRANK COLUNGA,
6M.D. and ST. JOSEPHS EMERGENCY MEDICAL PHYSICIANS, a Florida corporation, had no
custody or control and, therefore, Defendants, FRANK COLUNGA, M.D. and ST. JOSEPHS
EMERGENCY MEDICAL PHYSICIANS, a Florida corporation, cannot be held liable, or their
liability should be reduced proportionately. Moreover, in the event that any or all other co-
Defendants are dismissed from this case, Defendants, FRANK COLUNGA, M.D. and ST. JOSEPHS
EMERGENCY MEDICAL PHYSICIANS, a Florida corporation, would simultaneously specifically
identify those individuals and/or entities as non-party or "Fabre" Defendants.
WHEREFORE, Defendants, FRANK COLUNGA, M_D. and ST. JOSEPHS EMERGENCY
MEDICAL PHYSICIANS, a Florida corporation, request the award of attorneys’ fees pursuant to
Florida Statute 57.105, together with costs, and any other such relief as this Court deems proper,
including entitlement to attorneys’ fees for the filing of a Proposal of Settlement pursuant to Florida
Statute 768.79 and Florida Rules of Civil Procedure 1.442.
DEMAND FOR JURY TRIAL
Defendants, FRANK COLUNGA, M.D. and ST. JOSEPHS EMERGENCY MEDICAL
PHYSICIANS, a Florida corporation, demand a jury trial on all triable issues.
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a copy of the foregoing has been furnished by U.S. Mail to the
following:
THOMAS A. CULMO, Esquire
2950 S.W. 27th Avenue
Suite 100
Miami, FL 33133
Counsel for PlaintiffDENNIS A. KOLTUN, Esquire
7101 S.W. 102nd Avenue
Miami, FL 33173
Co-Counsel for Plaintiff
KENNETH C. DEACON, JR., Esquire
P.O. Box 16607
St. Petersburg, FL 33733
Counsel for Defendants/MOOPEN and MAAS
BENITO H. DIAZ, Esquire
2912 Douglas Road
Coral Gables, FL 33134
Counsel for Defendants/ESTEPA and PRIMARY CARE
ROSS L. FOGLEMAN, III, Esquire
3400 South Tamiami Trail
Suite 302
Sarasota, FL 34239
Counsel for Defendants/NANDIGAM and CHARLOTTE MEDICAL ASSOCIATES
LYNN H. GROSECLOSE, Esquire
100 Wallace Avenue
Suite 240
Sarasota, FL 34237
Counsel for Defendant/ASPERILLA
JOHN C. HAMILTON, Esquire
P.O. Box 2152
Tampa, FL 33601
Counsel for Defendant/KHALIDI
RONALD H. JOSEPHER, Esquire
100 South Ashley Street
First Union Plaza, Suite 1190
Tampa, FL 33602
Counsel for Defendan/WAZNY
on this z l day of February, 2000.By:
DICKINSON & GIBBONS, P.A.
PH L. MARCHBANK, JR.
P.O. Box 3979
Sarasota, FL 34230
Florida Bar No. 305571
(941) 366-4680
Counsel for Defendants/COLUNGA and
ST. JOSEPHS EMERGENCY MEDICAL PHYSICIANS
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IN THE CIRCUIT COURT OF THE TWENTIETH JUDICIAL CIRCUIT IN AND FOR CHARLOTTE COUNTY, FLORIDA SALLY SIMON, as Personal Representative of the Estate of MICHAEL SIMON, Plaintiff, vs. CASE NO. 00-120-CA. MARK ASPERILLA, M.D., MARK ASPERILLA, M.D., P.A., a Florida corporation, DALE GREENBERG, M.D., RONALD CONSTINE, M.D., LEVY, BAKER, CONSTINE & GREENBERG, M_D., P.A., a Florida ok corporation, SAMUEL ESTEPA, M.D., PRIMARY CARE PHYSICIANS, INC., a Florida corporation, THOMAS K. WANZY, M.D., THOMAS K. WANZY, M_D., P.A., a Florida corporation, BALA K, NANDIGAM, M.D., CHARLOTTE MEDICAL ASSOCIATES, P.A., a Florida corporation, MOIDEN MOOPEN, M.D., MOIDEN MOOPEN, M._D., P.A., a Florida corporation, CARLOS E. MAAS, M.D., CARLOS E. MAAS, M.D., P.A., a Florida corporation, NASIR KHALIDI, M.D., NASIR KHALIDI & SAKINA KHALIDI, M.D., P.A., a Florida corporation, ST. JOSEPHS EMERGENCY MEDICAL PHYSICIANS, a Florida corporation, FRANK COLUNGA, M.D. and CHRIS MICKELSON, M.D., 2SHhY AZ G34 o0d2 Defendants. ANSWER AND AFFIRMATIVE DEFENSES COMES NOW the Defendants, FRANK COLUNGA, M.D. and ST. JOSEPHS EMERGENCY MEDICAL PHYSICIANS, a Florida corporation, by and through their undersigned counsel and hereby files this their Answer and Affirmative Defenses to the Plaintiff's complaint as Charlotte County Clerk 1062145 Date : 02/28/00 - 15:14:51 id: 54 Case#: 00000120CA Pages: 0009 +R follows:ANSWER JURISDICTION AND PARTIES 1. Denied. 2. Without knowledge and therefore denied. 3. Without knowledge and therefore denied. 4, Without knowledge and therefore denied. Paragraphs 5 through 21- These allegations do not pertain to these Defendants. To the extent they may be deemed to pertain to these Defendants they are denied. 22. Denied. 23. Admitted. 24, — These allegations do not pertain to these Defendants. To the extent they may be deemed to pertain to these Defendants they are denied as without knowledge. 25. Denied. AGENCY Paragraphs 26 through 42 - These allegations do not pertain to these Defendants. To the extent they may be deemed to pertain to these Defendants they are denied. 43. Without knowledge and therefore denied. 44, Denied. 45. | Without knowledge and therefore denied. FACTS GIVING RISE TO THE CAUSE OF ACTION 46. Denied.CLAIMS AGAINST ASPERILLA & ASPERILLA, P.A. Paragraphs 47 and 48 - These allegations do not pertain to these Defendants. To the extent they may be deemed to pertain to these Defendants they are denied. CLAIMS AGAINST GREENBERG & LEVY BAKER, P.A. Paragraphs 49 and 50 - These allegations do not pertain to these Defendants. To the extent they may be deemed to pertain to these Defendants they are denied. CLAIMS AGAINST CONSTINE & LEVY BAKER, P.A. Paragraphs 51 and 52 - These allegations do not pertain to these Defendants. To the extent they may be deemed to pertain to these Defendants they are denied. CLAIMS AGAINST ESTEPA & PRIMARY CARE Paragraphs 53 and 54 - These allegations do not pertain to these Defendants. To the extent they may be deemed to pertain to these Defendants they are denied. CLAIMS AGAINST WANZY & WANZY, P.A. Paragraphs 55 and 56 - These allegations do not pertain to these Defendants. To the extent they may be deemed to pertain to these Defendants they are denied, CLAIMS AGAINST NANDIGAM & CHARLOTTE MEDICAL Paragraphs 57 and 58 - These allegations do not pertain to these Defendants. To the extent they may be deemed to pertain to these Defendants they are denied. CLAIMS AGAINST MOOPEN & MOOPEN, P.A. Paragraphs 59 and 60 - These allegations do not pertain to these Defendants. To the extent they may be deemed to pertain to these Defendants they are denied.CLAIMS AGAINST MAAS & MAAS, P.A. Paragraphs 61 and 62 - These allegations do not pertain to these Defendants. To the extent they may be deemed to pertain to these Defendants they are denied. CLAIMS AGAINST KHALIDI & KHALIDI, P.A. Paragraphs 63 and 64 - These allegations do not pertain to these Defendants. To the extent they may be deemed to pertain to these Defendants they are denied. CLAIMS AGAINST COLUNGA & ST. JOSEPHS 65. Denied. 66. Denied. CLAIMS AGAINST MICKELSON & ST. JOSEPHS 67. These allegations do not pertain to these Defendants. To the extent they may be deemed to pertain to these Defendants they are denied. 68. These allegations do not pertain to these Defendants. To the extent they may be deemed to pertain to these Defendants they are denied. LEGAL CAUSATION 69. Denied. CLAIM OF THE ESTATE OF MICHAEL SIMON 70. Denied. CLAIM OF SALLY SIMON 71. Denied. CLAIM OF DANIEL SIMON AS SURVIVOR 72. Denied.All allegations not specifically responded to above are denied. AFFIRMATIVE DEFENSES Defendants, FRANK COLUNGA, M.D. and ST. JOSEPHS EMERGENCY MEDICAL PHYSICIANS, a Florida corporation, having specifically answered each paragraph of the complaint, now alleges as separate and affirmative defenses the following: 1 Plaintiff herein has received benefits from collateral sources. 2. That at the time and place and under the circumstances set forth in the complaint, the Plaintiff was careless and negligent and said carelessness and negligence was the sole and proximate cause of the occurrence complained of any injury, damage or loss allegedly sustained therein. 3. The consent obtained for medical treatment from the Plaintiff was in accordance with an accepted standard of medical practice among members of the medical profession with similar training and experience. 4. The Plaintiff would reasonably, under all surrounding circumstances, have undergone such treatment or procedure had she been advised by the Defendants and in accordance with the accepted standard of medical practice by members of the medical profession. 5, At all times material hereto the Defendants, FRANK COLUNGA, M.D. and ST. JOSEPHS EMERGENCY MEDICAL PHYSICIANS, a Florida corporation, acted in good faith and with due regard for the prevailing professional standard of care. 6. Defendants, FRANK COLUNGA, M.D. and ST. JOSEPHS EMERGENCY MEDICAL PHYSICIANS, a Florida corporation, affirmatively allege that Plaintiff wholly failed to comply with the mandatory requirements of Chapter 766 and 768, Florida Statutes, and that her failure to comply grants this Court no jurisdiction over the Plaintiffs or the claims herein. 57. That such injury as Plaintiff may have suffered was solely the result of the natural and inexorable process of human disease and condition, and of recognized risks of therapy to treat the same. 8. That such injury as the Plaintiff may have suffered was solely the result of the recognized risk of the care or treatment provided. 9. Defendants, FRANK COLUNGA, M.D. and ST. JOSEPHS EMERGENCY MEDICAL PHYSICIANS, a Florida corporation, affirmatively allege that Plaintiff failed to comply with the mandatory provisions of Chapter 766 and particularly the requirements during the statutorily mandated screening period so that the complaint represents a legal nullity. 10. Defendants, FRANK COLUNGA, M.D. and ST. JOSEPHS EMERGENCY MEDICAL PHYSICIANS, a Florida corporation, are entitled to the applicable provisions of Florida Statutes §766.102, §768.103, §766.104, §768.76, §768.78 and §768.81. 11. Pursuant to Florida Statute 768.28 Defendants, FRANK COLUNGA, M.D. and ST. JOSEPHS EMERGENCY MEDICAL PHYSICIANS, a Florida corporation, are entitled to sovereign immunity, including but not limited to the limits on monetary liability contained within Florida Statute 768.28. 12. Plaintiff has failed to comply with the notice provisions of Florida Statute 768.28. 13. Plaintiff has failed to comply with the presuit screening requirements of Florida's Medical Malpractice Reform Act. 14. Defendants, FRANK COLUNGA, M.D. and ST. JOSEPHS EMERGENCY MEDICAL PHYSICIANS, a Florida corporation, affirmatively allege that Plaintiff's damages, if any, were caused wholly or in part by third persons over whom Defendants, FRANK COLUNGA, 6M.D. and ST. JOSEPHS EMERGENCY MEDICAL PHYSICIANS, a Florida corporation, had no custody or control and, therefore, Defendants, FRANK COLUNGA, M.D. and ST. JOSEPHS EMERGENCY MEDICAL PHYSICIANS, a Florida corporation, cannot be held liable, or their liability should be reduced proportionately. Moreover, in the event that any or all other co- Defendants are dismissed from this case, Defendants, FRANK COLUNGA, M.D. and ST. JOSEPHS EMERGENCY MEDICAL PHYSICIANS, a Florida corporation, would simultaneously specifically identify those individuals and/or entities as non-party or "Fabre" Defendants. WHEREFORE, Defendants, FRANK COLUNGA, M_D. and ST. JOSEPHS EMERGENCY MEDICAL PHYSICIANS, a Florida corporation, request the award of attorneys’ fees pursuant to Florida Statute 57.105, together with costs, and any other such relief as this Court deems proper, including entitlement to attorneys’ fees for the filing of a Proposal of Settlement pursuant to Florida Statute 768.79 and Florida Rules of Civil Procedure 1.442. DEMAND FOR JURY TRIAL Defendants, FRANK COLUNGA, M.D. and ST. JOSEPHS EMERGENCY MEDICAL PHYSICIANS, a Florida corporation, demand a jury trial on all triable issues. CERTIFICATE OF SERVICE I HEREBY CERTIFY that a copy of the foregoing has been furnished by U.S. Mail to the following: THOMAS A. CULMO, Esquire 2950 S.W. 27th Avenue Suite 100 Miami, FL 33133 Counsel for PlaintiffDENNIS A. KOLTUN, Esquire 7101 S.W. 102nd Avenue Miami, FL 33173 Co-Counsel for Plaintiff KENNETH C. DEACON, JR., Esquire P.O. Box 16607 St. Petersburg, FL 33733 Counsel for Defendants/MOOPEN and MAAS BENITO H. DIAZ, Esquire 2912 Douglas Road Coral Gables, FL 33134 Counsel for Defendants/ESTEPA and PRIMARY CARE ROSS L. FOGLEMAN, III, Esquire 3400 South Tamiami Trail Suite 302 Sarasota, FL 34239 Counsel for Defendants/NANDIGAM and CHARLOTTE MEDICAL ASSOCIATES LYNN H. GROSECLOSE, Esquire 100 Wallace Avenue Suite 240 Sarasota, FL 34237 Counsel for Defendant/ASPERILLA JOHN C. HAMILTON, Esquire P.O. Box 2152 Tampa, FL 33601 Counsel for Defendant/KHALIDI RONALD H. JOSEPHER, Esquire 100 South Ashley Street First Union Plaza, Suite 1190 Tampa, FL 33602 Counsel for Defendan/WAZNY on this z l day of February, 2000.By: DICKINSON & GIBBONS, P.A. PH L. MARCHBANK, JR. P.O. Box 3979 Sarasota, FL 34230 Florida Bar No. 305571 (941) 366-4680 Counsel for Defendants/COLUNGA and ST. JOSEPHS EMERGENCY MEDICAL PHYSICIANS