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Filing # 143163310 E-Filed 02/02/2022 03:11:56 PM
IN THE CIRCUIT COURT OF THE
20" JUDICIAL COURT IN AND
FOR CHARLOTTE COUNTY,
FLORIDA
DEBORAH COOPER BURG, by and through GENERAL JURISDICTION DIVISION
her Court-appointed Guardians, WILLIAM
D. PRUITT, CPA and RICKY BURG; CASE NO. 2020-000616 CA
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; ABIGAIL
UTECH; SOVI JOSEPH, M.D., P.A.; SOVI
JOSEPH; 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.
/
PLAINTIFFS’ RESPONSE TO DEFENDANTS CATHY CRISS, D.O. AND
MILLENNIUM PHYSICIAN GROUP, LLC’S MOTION TO CONTINUE EXPERT
DEPOSITION
COME NOW the Plaintiffs, DEBORAH COOPER BURG, by and through her Court-
appointed Guardians, WILLIAM D. PRUITT, CPA and RICKY BURG; NICOLE BURG, her
daughter; and RICKY BURG, her spouse, by and through their undersigned attorneys, and
Deutsch Blumberg
& Catballes , PG,
NEW WORLD TOWER « 100 N. BISCAYNE BOULEVARD, SUITE 2802 - MIAMI, FLORIDA 33132 « TEL (305) 358-6820
Burg v West Florida Physician Network, LLC, et al.
CASE NO. 2020-000616 CA
Page 2
as their response to Defendants CATHY CRISS, D.O. and MILLENNIUM PHYSICIAN GROUP,
LLC'S motion to continue expert deposition dated February 1, 2022, state:
1. As can be seen in the attached Court orders and filings from the parties, Plaintiffs
respectfully assert that Defendants CATHY CRISS, D.O. and MILLENNIUM
PHYSICIAN GROUP, LLC are incorrect in their analysis.
Defendants’ motion concerns the scheduling of the deposition of their expert
witness, Dr. Steven Selznick. DR. STEVEN SELZNICK’S DEPOSITION WAS
SCHEDULED IN COMPLIANCE WITH THE COURT’S ESTABLISHED ROCEDURES IN
THIS CASE:
A. The Defendants’ disclosure of expert witnesses, along with their opinions, was
ordered to occur no later than November 11, 2021. See Case Management Plan
and Order attached hereto as Exhibit A, as well as the Order Granting Motion
for Extension of Time to Disclose Experts attached hereto as Exhibit B.
Plaintiffs complied with the Court's order of disclosing their expert witnesses and
on November 1, 2021, disclosed as its expert witness against Defendants CATHY
CRISS, D.O. and MILLENNIUM PHYSICIAN GROUP, LLC, expert witness Dr.
Arthur Herold.
Further, Plaintiffs, on November 5, 2021, offered to make Dr. Arthur Herold
available for deposition to occur on February 2, 2022. (Exhibit C)
Defendants CATHY CRISS, D.O. and MILLENNIUM PHYSICIAN GROUP, LLC
failed to notice Dr. Arthur Herold for deposition.
Deutsch Blumbarg
& Caballero, PA.
NEW WORLD TOWER - 100 N. BISCAYNE BOULEVARD, SUITE 2802 - MIAMI, FLORIDA 33132 - TEL (305) 358-6329
Burg v West Florida Physician Network, LLC, et al.
CASE NO. 2020-000616 CA
Page 3
E. In an effort to have the Defendants step up and notice Plaintiffs’ experts for
deposition, Plaintiffs moved the Court for instruction as to the scheduling of
depositions, which was heard on November 8, 2021. Pursuant to the Court’s
order dated December 1, 2021 (Exhibit D), Plaintiffs were to provide three (3)
deposition dates for Dr. Herold’s deposition, with the further directive that within
24 hours of December 1, 2021, counsel for each party would respond as to their
availability for those dates and if none of the three dates of availability work for
counsel, then the furthest out date will be the date of the deposition. As can be
seen, counsel for Plaintiffs provided deposition availability dates of January 26,
2022, February 2, 2022 and February 9, 2022 for Dr. Herold.
Further, pursuant to the Court’s order of December 1, 2021, if no defense
counsel seeks a particular deposition, the deposition will be waived.
Defendants CATHY CRISS and MILLENNIUM PHYSICIAN GROUP, LLC did not
comply with the Court’s order of December 1, 2021, and did not notice Dr.
Herold’s deposition in a timely manner, thereby waiving the taking of the
deposition.
It was not until December 17, 2021 that Defendants CATHY CRISS, D.O. and
MILLENNIUM PHYSICIAN GROUP, LLC tardily noticed Dr. Herold’s deposition and
chose February 9, 2022 at 11:00 a.m. as the date of the deposition. (Exhibit E)
In the interim, a regularly scheduled status conference occurred on December 6,
2021. At that time, as part of the case management process, the Court ordered
Deutsch Blumbarg
& Caballero, PA.
NEW WORLD TOWER - 100 N. BISCAYNE BOULEVARD, SUITE 2802 - MIAMI, FLORIDA 33132 - TEL (305) 358-6329
Burg v West Florida Physician Network, LLC, et al.
CASE NO. 2020-000616 CA
Page 4
that on or before December 16, 2021, Defendants would provide three dates of
availability for the depositions of their expert witnesses. The Court further
ordered that counsel for each party will respond within 24 hours as to their
availability for those dates. It is only if none of the three dates of availability
work for all counsel that the furthest out date will be the date of the deposition.
(Exhibit F)
In accordance with the status conference of December 6, 2021, Defendants
CATHY CRISS, D.O. and MILLENNIUM PHYSICIAN GROUP, LLC provided three
deposition dates for their expert witness, Dr. Steven Selznick, those being
February 7, 2022, February 14, 2022 and February 18, 2022. (Exhibit G)
Plaintiffs waited 24 hours and no counsel responded as to being unavailable or
objected to any of the three dates. Thus, in accordance with the Court's ruling,
Plaintiffs noticed Dr. Selznick for deposition on December 17, 2021 to commence
on one of the offered dates, that being February 7, 2021. (Exhibit H)
3. In Counts XLIX and L of the Amended Complaint, Plaintiffs clearly set forth the
liability as to Defendant CATHY CRISS, D.O., who acted as DEBORAH COPER
BURG'S attending physician on the dates of August 20, 2019 and August 21, 2019,
in pertinent part as follows:
619. Defendant CATHY CRISS, from on or about August 20, 2019
to August 21, 2019, became DEBORAH COOPER BURG'’S attending
physician. Defendant CATHY CRISS assumed the responsibility for the
overall management of care and wellbeing of DEBORAH COOPER
BURG throughout same including, but not limited to proper nutrition
Deutsch Blumbarg
& Caballero, PA.
NEW WORLD TOWER - 100 N. BISCAYNE BOULEVARD, SUITE 2802 - MIAMI, FLORIDA 33132 - TEL (305) 358-6329
Burg v West Florida Physician Network, LLC, et al.
CASE NO. 2020-000616 CA
Page 5
and vitamin intake and the obtaining of proper consults. That
Defendant CATHY CRISS obtained actual and/or constructive
knowledge that postoperatively, DEBORAH COOPER BURG had
become inflicted as a result of her bariatric surgery and its sequelae
with a condition of intractable vomiting to such an intense degree that
she was unable to obtain the necessary nutrition and vitamin
supplementation needed to sustain her proper bodily functioning
including her proper and healthy neurological system.
620. At all pertinent times, the accepted standard of care for health
care providers such as Defendant CATHY CRISS involved in the care
and treatment of patients such as DEBORAH COOPER BURG who
undergo bariatric surgery, included the knowledge that even with
otherwise successful bariatric surgery, patients such as her are well
known, within reasonable medical probability, to have difficulty
sustaining proper nutrition and adequate vitamin intake and thus,
must be carefully monitored postoperatively with a carefully designed
and implemented plan of adequate nutrition and vitamin intake post-
bariatric surgery on a constant prophylactic daily basis for life.
Further, the accepted standard of care of health care providers such
as Defendant CATHY CRISS included the knowledge that if a patient
such as DEBORAH COOPER BURG cannot, because of intractable
vomiting or otherwise, maintain adequate nutrition and adequate
vitamin intake including, but not limited to vitamin B1/Thiamine,
vitamin B12 and Folic Acid, then the neurologic system of the patient
such as DEBORAH COOPER BURG essentially starves leading to the
onset of the above described neurologic conditions called Wernicke
encephalopathy and Korsakoff psychosis.
621. That Defendant CATHY CRISS breached the accepted
standard of care she owed to DEBORAH COOPER BURG in that she
had actual and/or constructive knowledge that DEBORAH COOPER
BURG was not obtaining necessary nutrition and vitamin intake to
maintain proper neurologic functioning, failed to timely evaluate,
obtain proper consults, assess, test, recognize, prevent and treat the
known postoperative bariatric surgical complications including but not
limited to, vitamin B1/Thiamine deficiency. In light of DEBORAH
COOPER BURG'’S post bariatric surgery presentation of persistent and
ongoing vomiting and poor oral intake, all of which Defendant CATHY
CRISS knew or should have known of, she further breached the
accepted standard of care she owed to DEBORAH COOPER BURG by
failing to anticipate and recognize the likelihood of vitamin
Deutsch Blumbarg
& Caballero, PA.
NEW WORLD TOWER - 100 N. BISCAYNE BOULEVARD, SUITE 2802 - MIAMI, FLORIDA 33132 - TEL (305) 358-6329
Burg v West Florida Physician Network, LLC, et al.
CASE NO. 2020-000616 CA
Page 6
B1i/Thiamine deficiency occurring, by failing to take the necessary
steps known and needed to prevent the occurrence of vitamin
Bi/Thiamine deficiency by prophylactically providing DEBORAH
COOPER BURG adequate amounts of vitamin B1/Thiamine
replacement, and by failing to alert and inform DEBORAH COOPER
BURG'S various current and subsequent health care providers of the
necessity of providing replenishment of nutrition and vitamin
B1/Thiamine on a daily ongoing basis which was of critical and
necessary importance because without doing so, DEBORAH COOPER
BURG, within reasonable medical probability, was known or should
have been known to Defendant CATHY CRISS, to be doomed to
develop the catastrophic neurologic disease known as Wernicke
encephalopathy and its sequela, Korsakoff psychosis. As a result of
Defendant CATHY CRISS’ above breaches of the accepted standard of
care, the neurologic system of DEBORAH COOPER BURG has been
catastrophically injured and damaged on a permanent basis rendering
DEBORAH COOPER BURG totally disabled, through the onset of
Wernicke encephalopathy and Korsakoff psychosis.
622. That Defendant CATHY CRISS had the duty to address
DEBORAH COOPER BURG'S _ nutritional starvation and vitamin
insufficiency as set forth above and her failure to do so represents a
breach of that duty and demonstrates conduct below the accepted
standard of care and professional prevailing practices that she had the
duty to provide to DEBORAH COOPER BURG. With further
particularity, she had actual and/or constructive knowledge that
beginning on or about July 10, 2019, DEBORAH COOPER BURG began
suffering from near constant vomiting and the inability to keep down
food, nutrition, and vitamins including vitamin B1/Thiamine, resulting
in multiple trips to the Fawcett Memorial Hospital emergency room
and as an inpatient. Further, Defendant CATHY CRISS failed to order
a simple blood test to determine DEBORAH COOPER BURG'S vitamin
B1/Thiamine level and other vitamin levels or alternatively, to take
steps to provide oral or intravenous vitamin infusion to her or to alert
her other health care providers as to the necessity of replenishing
vitamin B1/Thiamine to DEBORAH COOPER BURG so that she would
be assured that DEBORAH COOPER BURG would receive the proper
nutrition and vitamin B1/Thiamine intake. Defendant CATHY CRISS
knew or should have known that vitamin B1/Thiamine and other
vitamins and nutrients were critical to DEBORAH COOPER BURG
maintaining a properly functioning neurologic system. Defendant
CATHY CRISS knew or should have known that without proper vitamin
Deutsch : Blumberg
&: Caballero, PA,
NEW WORLD TOWER - 100 N. BISCAYNE BOULEVARD, SUITE 2802 - MIAMI, FLORIDA 33132 - TEL (305) 358-6329
Burg v West Florida Physician Network, LLC, et al.
CASE NO. 2020-000616 CA
Page 7
B1/Thiamine and other vitamin and nutrient infusion, DEBORAH
COOPER BURG would, within reasonable medical probability, sustain
Wernicke encephalopathy and Korsakoff psychosis and yet deviated
from the accepted standard of care by failing to provide this
nutritional and vitamin support to DEBORAH COOPER BURG. The
above conduct of Defendant CATHY CRISS represents deviations from
the accepted standard of care and prevailing professional practices
owed to DEBORAH COOPER BURG, which were a legal cause of the
catastrophic injuries and damages that befallen DEBORAH COOPER
BURG.
623. Further, Defendant CATHY CRISS assumed the responsibility
and duty of providing proper postoperative care, assessment,
evaluation, testing, treatment and communication with DEBORAH
COOPER BURG'S present and subsequent health care providers.
Defendant CATHY CRISS breached that duty by failing to properly so
communicate to ensure that DEBORAH COOPER BURG would receive
the proper nutrition and vitamin support including vitamin
B1/Thiamine, including the communication that without such
nutritional and vitamin support, within reasonable medical probability,
DEBORAH COOPER BURG would be doomed to develop neurologic
dysfunction including Wernicke encephalopathy and_ Korsakoff
psychosis. Such conduct as stated above of Defendant CATHY CRISS
represents conduct below the accepted standard of care and
professional prevailing practices that she had the duty to provide to
DEBORAH COOPER BURG. She breached that duty with the result
being that DEBORAH COOPER BURG, within reasonable medical
probability, is catastrophically injured and damaged on a permanent
basis, with the onset of Wernicke encephalopathy and Korsakoff
psychosis and related maladies and sequelae therefrom including but
not limited to, hallucinations, the inability to clearly think, the inability
to demonstrate emotional control, the inability to properly walk, talk
and otherwise have full motor and sensory function.
4. Discovery has revealed, including the taking of Defendant CATHY CRISS’ deposition
on June 4, 2021, that Dr. Criss acted as an attending physician for the purpose of
billing DEBORAH COOPER BURG'S insurance company. Further, Dr. Criss approved
a clearly false Plan of Care claiming to have evaluated Mrs. Burg on August 11, 2019
Deutsch Blumbarg
& Caballero, PA.
NEW WORLD TOWER - 100 N. BISCAYNE BOULEVARD, SUITE 2802 - MIAMI, FLORIDA 33132 - TEL (305) 358-6329
Burg v West Florida Physician Network, LLC, et al.
CASE NO. 2020-000616 CA
Page 8
when such did not occur, and approved a Plan of Care for home health nurses and
home therapy when in fact, the history and symptomatology set forth on the Plan of
Care was such that Mrs. Burg required immediate evaluation in an acute hospital
setting as she was experiencing the signs of Wernicke Encephalopathy. Dr. Criss
executed this falsified Plan of Care knowing that to do so potentially gives rise to
criminal or civil penalties.
Contrary to Defendants’ assertions in their motion (Exhibit I), there is no
procedure established in this case that Plaintiffs’ expert witnesses would be deposed
prior to Defendants’ expert witnesses.
Moreover, Plaintiffs received a monetary request from Dr. Steven Selznick in the
amount of $1,500.00 as a precondition for his sitting for his deposition on February
7, 2021. Plaintiffs, in fact, have paid the requested $1,500.00 to Dr. Selznick.
WHEREFORE, Plaintiffs respectfully request the Court to deny Defendants CATHY
CRISS, D.O. and MILLENNIUM PHYSICIAN GROUP, LLC’S Motion to Continue Expert
Deposition.
Deutsch Blumberg
& Caballero, PA.
NEW WORLD TOWER - 100 N. BISCAYNE BOULEVARD, SUITE 2802 - MIAMI, FLORIDA 33132 - TEL (305) 358-6329
Burg v West Florida Physician Network, LLC, et al.
CASE NO. 2020-000616 CA
Page 9
CERTIFICATE OF SERVICE
WE HEREBY CERTIFY that a true and correct copy of the foregoing has been
furnished by e-service this 2" day of February, 2022 to: see attached service list.
DEUTSCH BLUMBERG & CABALLERO, P.A.
Attorneys for Plaintiffs
New World Tower, Suite 2802
100 North Biscayne Boulevard
Miami, Florida 33132
(305) 358-6329
(305) 358-9304 (facsimile)
Email — erb@deutschblumberg.com;
mitchell hblum!| : m
By: _s/Edward R. Blumberg
EDWARD R. BLUMBERG, ESQ.
Florida Bar No. 190870
Deutsch Blumberg
& Caballero, PA.
NEW WORLD TOWER - 100N. BISCAYNE BOULEVARD, SUITE
2802 « MIAMI, FLORIDA 33132 - TEL (305) 358-6329
BURG v. WEST FLORIDA PHYSICIAN NETWORK, LLC, et al.
CASE NO. 2020-000616 CA
SERVICE LIST
Michael J. Swan, Esquire
Rossway Swan Tierney Barry & Oliver, P.L.
Co-Counsel for PLAINTIFFS
2101 Indian River Boulevard, Suite 200
Vero Beach, Florida 32960
Telephone: (772) 231-4440
E-Mails: mswan@rosswayswan.com; cdelo@rosswayswan.com
Richard K. Bowers, Esquire
Brandon R. Scheele, Esquire
Bankers Lopez Gassler, P.A.
Attorneys for DILENDRA WEERASINGHE
501 East Kennedy Boulevard, Suite 1700
Tampa, FL 33602
Telephone: 813-221-1500
Fax: 813-222-3066
bowers@bankerlopez.co
Email: service-rbowers@bankerlopez.com ; service-bscheele@bankerlopez.com
Jay P. Chimpoulis, Esquire
Susanne E. Riedhammer, Esquire
Chimpoulis & Hunter, P.A.
Attorneys for Defendants PUNTA GORDA MEDICAL INVESTORS, LLC d/b/a LIFE CARE
CENTER OF PUNTA GORDA; LIFE CARE PHYSICIAN SERVICES, LLC; and VANCE MALONEY,
III
150 S. Pine Island Road, Suite 510
Plantation, FL 33324
Telephone: 954-463-0033
Fax: 954-463-9562
Email: JCHimpoulis@ChimpoulisHunter.com
Victoria N. Ferrentino, Esq.
Erin B. Reynolds, Esq.
Bush Graziano Rice & Platter, P.A.
Attorneys for Defendants WEST FLORIDA PHYSICIAN NETWORK, LLC and JOHN RIOUX
100 S. Ashley Drive, #1400
Tampa, FL 33602
Telephone: 813-228-7000
Fax: 813-273-0091
Emails: vferrentino@bgrplaw.com;eserve@barplaw.com; and dhensley@bgrplaw.com
ereynolds@barplaw.com
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Brett P. Gliosca, Esq.
Jeffrey M. Goodis, Esq.
LA CAVA JACOBSON & GOODIS, P.A.
Attorneys for Defendants SOVI JOSEPH and SOVI JOSEPH, M.D., P.A.
200 Central Avenue, Suite 250
St. Petersburg, FL 33701
Office: 727-477-1013
Fax: 727-550-0811
Emails: li liglegal.com; mmorgan@liglegal.com
Ronald E. Bush, Esq.
Frances G. Prockop, Esq.
Alexandra S. Farren, Esq.
Gavrila A. Brotz, Esq.
Bush Graziano Rice & Platter, P.A.
Attorneys for Defendant FAWCETT MEMORIAL HOSPITAL, INC. and ABIGAIL UTECH
100 S. Ashley Drive, Suite 1400
Tampa, FL 33602
Office: 813-228-7000
Fax: 813-229-6316
Emails: eserve@bgrplaw.com; |Iplyushko@bgrplaw.com; bconde@barplaw.com;
m r n rplaw.com; gbri rplaw.com
Barry A. Postman, Esq.
Ron M. Campbell, Esq.
Daniel C. Calvert, Esq.
Cole, Scott & Kissane, P.A.
Attorneys for CATHY CRISS and MILLENNIUM PHYSICIAN GROUP, LLC d/b/a
MILLENNIUM PHYSICIAN GROUP
27300 Riverview Center Boulevard, Suite 200
Bonita Springs, FL 34134
Telephone: 239-690-7925
Facsimile: 239-738-7778
Emails: barry.postman@csklegal.com; ron.campbell@csklegal.com;
daniel.calvert@csklegal.com; krystal.perez@csklegal.com; daniela.perez@csklegal.com
John D. Emmanuel, Esq.
Buchanan Ingersoll & Rooney, PC
401 East Jackson Street, Suite 2400
Tampa, Florida 33602
Telephone: (813) 222-8180
Fax: (813) 222-8189
Emails: john.emmanuel@bipc.com, rin torn
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