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  • BURG, DEBORAH A vs. WEST FLORIDA PHYSICIANS NETWORK, LLCMedical Malpractice document preview
  • BURG, DEBORAH A vs. WEST FLORIDA PHYSICIANS NETWORK, LLCMedical Malpractice document preview
  • BURG, DEBORAH A vs. WEST FLORIDA PHYSICIANS NETWORK, LLCMedical Malpractice document preview
  • BURG, DEBORAH A vs. WEST FLORIDA PHYSICIANS NETWORK, LLCMedical Malpractice document preview
  • BURG, DEBORAH A vs. WEST FLORIDA PHYSICIANS NETWORK, LLCMedical Malpractice document preview
  • BURG, DEBORAH A vs. WEST FLORIDA PHYSICIANS NETWORK, LLCMedical Malpractice document preview
  • BURG, DEBORAH A vs. WEST FLORIDA PHYSICIANS NETWORK, LLCMedical Malpractice document preview
  • BURG, DEBORAH A vs. WEST FLORIDA PHYSICIANS NETWORK, LLCMedical Malpractice document preview
						
                                

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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 1|Page 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 2|Page