On July 08, 101 a
No Value
was filed
involving a dispute between
Burg, Deborah A,
Burg, Nicole,
Burg, Rick,
and
Bruner, Susan,
Criss, Cathy,
Domingo E. Galliano, Jr., P.A.,
Fawcett Memorial Hospital, Inc.,
Galliano, Domingo J,
Harbor Medical Group, Llc,
Joseph, Sovi,
Kamal, Ahsan,
Kiri, Nandini,
Life Care Physician Services, Llc,
Maloney, Vance 3,
Millennium Physician Group, Llc,
Nandini Kiri, M.D., P.A.,
Punta Gorda Medical Investors, Llc,
Rioux, John,
Rodriguez-Martin, Arturo,
Rodriguez-Martin, M.D., P.L., Arturo,
Sovi Joseph, M.D., P.A.,
Utech, Abigail,
Weerasinghe, Dilendra,
West Florida Physicians Network, Llc,
for Medical Malpractice
in the District Court of Charlotte County.
Preview
Filing # 135038804 E-Filed 09/21/2021 05:29:53 PM
IN THE CIRCUIT COURTOF THE
20" JUDICIAL COURT IN AND FOR
CHARLOTTE COUNTY, FLORIDA.
CASE NO. 2020-000616 CA
DEBORAH COOPER BURG, by and
Through her Court-appointed Guardian
RICKY BURG; NICOLE BURG, her
Daughter; and RICKY BURG, her spouse,
Plaintiffs,
Vs.
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.; NANDINI KIRI;
HARBOR MEDICAL GROUP, LLC., AHSAN KAMAL;
SOVI JOSEPH, M.D.; 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 PUNTA GORDA MEDICAL INVESTORS, LLC’S MEMORANDUM
IN OPPOSITION TO PLAINTIFFS’ MOTION FOR PARTIAL SUMMARY
JUDGMENT
Defendant PUNTA GORDA MEDICAL INVESTORS, LLC d/b/a LIFE CARE
CENTER OF PUNTA GORDA, by and through the undersigned counsel respectfully submits
this Memorandum of Law in Opposition to Plaintiffs’ Motion for Partial Summary Judgment
as to this Defendant, and states as follows:
Burg v. West Florida Physician Network, LLC Case No: 2020-000616 CA
Defendants’ Motion for Partial Summary Judgment
Page 2
Plaintiffs ask this Court to enter Partial Summary Judgment on three statements, non
of which form the appropriate basis for entry of a Partial Summary Judgment.
A. Plaintiffs improperly request that the Court enter Summary Judgment on the law as
set forth in Chapter 400, Florida Statutes.
In paragraphs 8 and 9 of Plaintiffs’ Motion, Plaintiffs ask the Court to find that
judgment should be found for Plaintiffs that “[p]ursuant to F.S. 400.023 (2)(a) Defendant Punta
Gorda Medical Investors, LLC, as the licensee, ‘is legally responsible for all aspects of the
operation of Life Care Center of Punta Gorda” and that “[pJursuant to F.S. 400.022(1)(1)
Plaintiff Deborah Burg had ‘the right to receive adequate and appropriate health care’ from
the licensee, Defendant Punta Gorda Medical Investors, LLC.” Plaintiffs cite to multiple
deposition excerpts to support these statements. Each of these statements, however, is nothing
more than a recitation of the law as set forth in the pertinent statutes governing this claim,
found in Chapter 400. Plaintiffs appear to be asking this Court to enter a judgment regarding
the controlling law in this case, which does nothing to further the purpose of a summary
judgment. The purpose of summary judgment is to determine whether a disputed issue of fact
has become so crystallized that the Court may enter judgment on a well pled claim as a matter
of law. Plaintiffs cite no authority to support that summary judgment is the appropriate vehicle
for the Court to recognize the law of the cause of action.
B. Partial Summary Judgment as to a provision of the Code of Federal Regulations is
likewise improper.
The third statement Plaintiffs wants the Court to enter summary judgment on is
“Defendant PUNTA GORDA MEDICAL INVESTORS, LLC had the responsibility not to
neglect Plaintiff DEBORAH COOPER BURG while she was an inpatient at LIFE CARE
Burg v. West Florida Physician Network, LLC Case No: 2020-000616 CA
Defendants’ Motion for Partial Summary Judgment
Page 3
CENTER OF PUNTA GORDA from August 21, 2019 through August 27, 2019, pursuant to
42 CFR 483.5. Neglect is defined as the failure of the facility, its employees or service
providers to provide goods and services to a resident that are necessary to avoid physical harm,
pain, mental anguish, or emotional distress.” Plaintiffs are improperly attempting to get the
Court to conflate this administrative code provision with Florida Statute Chapter 400 which is
actually the basis of their claim.
The cause of action against a nursing home lies in Florida Statute 400.023 which
provides the exclusive remedy for a cause of action for violation of rights or for negligence
against a nursing home. The statutory scheme creates the civil cause of action against the
licensee for negligence or a violation of rights, sets forth the elements of such a cause of action,
including duty, as well as the standard of care. It is this statute that creates the cause of action
against PUNTA GORDA MEDICAL INVESTORS, LLC in this case.
There is no private cause of action created by the Code of Federal Regulations regarding
nursing homes. The Chapter cited by Plaintiffs, 42 CFR 483, is part of the “Part 483
Requirements for States and Long Term Care Facilities.” The regulations therein contain the
requirements that an institution must meet in order to qualify to participate as a Skilled Nursing
Facility in the Medicare program, and as a nursing facility in the Medicaid program. See 42
CFR 483.1 (b) These regulations also serve as a basis for survey activities for the purposes of
determining whether a facility meets the requirements for participation in Medicare and
Medicaid. Jd. This section does not give the Plaintiffs a private cause of action against a
nursing home. See, Villazon v. Prudential Health Care, 843 So 2d 842 (Fla. 2003)(absent an
expression of legislative intent to create a private right of action to enforce regulatory statutes,
Burg v. West Florida Physician Network, LLC Case No: 2020-000616 CA
Defendants’ Motion for Partial Summary Judgment
Page 4
a private right of action is not implied.”); Murthy v. Sinha Corp, 644 So. 2d (Fla.
1994)(regulatory and penal statutes governing construction industry licensing procedures and
regulatory duties did not create private right of action). Accordingly, because these regulations
do not form the basis for Plaintiffs’ claim against this Defendant, partial summary judgment
applying the regulation to this case would be improper.
For the above-stated reasons, Defendant PUNTA GORDA MEDICAL INVESTORS,
LLC., respectfully requests that Plaintiffs’ Motion for Partial Summary Judgment be denied.
CERTIFICATE OF SERVICE
WE HEREBY CERTIFY that a true and correct copy of the foregoing was e-filed with the
Clerk of Court through the E-Filing Portal on September 21, 2021 and is to be e-served by the
Court Clerk to: ALL COUNSEL LISTED ON THE ATTACHED SERVICE LIST.
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, IIT
150 S. Pine Island Road, Suite 510
Plantation, FL 33324
Telephone: 954-463-0033 / Fax: 954-463-9562
/s/ Susanne Riedhammer
By:
JAY P. CHIMPOULIS, ESQ.
Florida Bar No: 561533
JChimpoulis@ChimpoulisHunter.com
SUSANNE E. RIEDHAMMER, ESQ.
Florida Bar No: 159638
SRiedhammer@ChimpoulisHunter.com
Burg v. West Florida Physician Network, LLC Case No: 2020-000616 CA
Defendants’ Motion for Partial Summary Judgment
Page 5
SERVICE LIST
COUNSEL FOR PLAINTIFFS
Edward R. Blumberg, Esq.
Deutsch Blumberg & Caballero, P.A.
100 N Biscayne Boulevard, Suite 2802
Miami, FL 33132
ERB@DeutschBlumberg.com
RMitchell@DeutschBlumberg.com
ccaballero@deutschblumberg.com
hcastillo@deutschblumberg.com
bblumberg@deutschblumberg.com
CO-COUNSEL FOR PLAINTIFFS
Michael J. Swan, Esquire
Rossway Swan Tierney Barry & Oliver, P.L.
jstewart@rosswayswan.com; mswan@rosswayswan.com; cdelo@roswayswan.com
COUNSEL FOR DEFENDANT, DR. JOHN RIOUX AND GULF POINTE SURGICAL
Victoria N. Ferrentino, Esq.
Natalie J. Davy, Esq.
Bush, Graziano, Rice & Platter, P.A.
100 S. Ashley Drive, Suite 1400
Tampa, FL 33602-3423
VFerrentino@BGRPlaw.com
NDavy@BGRPlaw.com
COUNSEL FOR DEFENDANTS. DR. NANDINI_KIRI AND NANDINI KIRI, M.D., P.A.
AND HARBOR MEDICAL GROUP, LLC
Richard B. Mangan, Esq.
Rissman, Barrett, Hurt, Donahue, McLain & Mangan, P.A.
1 N. Dale Mabry Hwy, 11th Floor,
Tampa, FL 33609-2764
Richard. Mangan@Rissman.com
Stephanie. Doyle@Rissman.com
COUNSEL FOR DR. WEERASINGHE
Richard Bowers , Esquire RBowers@BankerLopez.com
Richard M. Sebek, Esquire RSebek@BankerLopez.com
Banker Lopez Gassler P.A.
501 E. Kennedy Boulevard, Suite 1700
Tampa, FL 33602
Service-rbowers@bankerlopez.com
Service-bscheele@bankerlopez.com
Burg v. West Florida Physician Network, LLC Case No: 2020-000616 CA
Defendants’ Motion for Partial Summary Judgment
Page 6
COUNSEL FOR DR. SOVI JOSEPH
Jeffrey Goodis, Esquire
Brett Gliosca, Esquire
La Cava Jacobson
150 2nd Avenue North, Suite 1500
St. Petersburg, FL 33701
Ss -pleadings: liglegal.com
bgliosca Ijglegal.com:
mmorgan@ljglegal.com
COUNSEL FOR FAWCETT MEMORIAL HOSPITAL & ABIGAIL UTECH MD
Ronald E. Bush, Esq.
Bush, Graaziano, Rice & Platter PA
100 So. Ahsley Drive, #1400
Tampa, FL 33602
serve@bgrplaw.com
bconde b law.com
COUNSEL FOR SUE BRUNER
R. Ryan Rivas, Esq.
Hall Booth Smith, P.C.
2701 N. Rocky Point Drive, Suite 400
Tampa, Florida 33607
Office: 813.329.3880 ext. 4102
Direct: 813.329.3882
rrivas@hallboothsmith.com
NContreras@hallboothsmith.com
COUNSEL FOR CATHY CRISS AND MILLENIUM PHYSICIAN GROUP, LLC
Ron M. Campbell, Esq.
Daniel C. Calvert, Esq.
Cole, Scott & Kissane, P.A.
27300 Riverview Center Blvd., Suite 200
Bonita Springs, FL 34134
Telephone: (239)690-7924
Telefax: (239)738-7778
Ron.campbell csklegal.com
Daniel.calvert@csklegal.com
Krystal.perez@csklegal.com
Daniela.perez@csklegal.com
Preview
Filing # 135038804 E-Filed 09/21/2021 05:29:53 PM IN THE CIRCUIT COURTOF THE 20" JUDICIAL COURT IN AND FOR CHARLOTTE COUNTY, FLORIDA. CASE NO. 2020-000616 CA DEBORAH COOPER BURG, by and Through her Court-appointed Guardian RICKY BURG; NICOLE BURG, her Daughter; and RICKY BURG, her spouse, Plaintiffs, Vs. 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.; NANDINI KIRI; HARBOR MEDICAL GROUP, LLC., AHSAN KAMAL; SOVI JOSEPH, M.D.; 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 PUNTA GORDA MEDICAL INVESTORS, LLC’S MEMORANDUM IN OPPOSITION TO PLAINTIFFS’ MOTION FOR PARTIAL SUMMARY JUDGMENT Defendant PUNTA GORDA MEDICAL INVESTORS, LLC d/b/a LIFE CARE CENTER OF PUNTA GORDA, by and through the undersigned counsel respectfully submits this Memorandum of Law in Opposition to Plaintiffs’ Motion for Partial Summary Judgment as to this Defendant, and states as follows: Burg v. West Florida Physician Network, LLC Case No: 2020-000616 CA Defendants’ Motion for Partial Summary Judgment Page 2 Plaintiffs ask this Court to enter Partial Summary Judgment on three statements, non of which form the appropriate basis for entry of a Partial Summary Judgment. A. Plaintiffs improperly request that the Court enter Summary Judgment on the law as set forth in Chapter 400, Florida Statutes. In paragraphs 8 and 9 of Plaintiffs’ Motion, Plaintiffs ask the Court to find that judgment should be found for Plaintiffs that “[p]ursuant to F.S. 400.023 (2)(a) Defendant Punta Gorda Medical Investors, LLC, as the licensee, ‘is legally responsible for all aspects of the operation of Life Care Center of Punta Gorda” and that “[pJursuant to F.S. 400.022(1)(1) Plaintiff Deborah Burg had ‘the right to receive adequate and appropriate health care’ from the licensee, Defendant Punta Gorda Medical Investors, LLC.” Plaintiffs cite to multiple deposition excerpts to support these statements. Each of these statements, however, is nothing more than a recitation of the law as set forth in the pertinent statutes governing this claim, found in Chapter 400. Plaintiffs appear to be asking this Court to enter a judgment regarding the controlling law in this case, which does nothing to further the purpose of a summary judgment. The purpose of summary judgment is to determine whether a disputed issue of fact has become so crystallized that the Court may enter judgment on a well pled claim as a matter of law. Plaintiffs cite no authority to support that summary judgment is the appropriate vehicle for the Court to recognize the law of the cause of action. B. Partial Summary Judgment as to a provision of the Code of Federal Regulations is likewise improper. The third statement Plaintiffs wants the Court to enter summary judgment on is “Defendant PUNTA GORDA MEDICAL INVESTORS, LLC had the responsibility not to neglect Plaintiff DEBORAH COOPER BURG while she was an inpatient at LIFE CARE Burg v. West Florida Physician Network, LLC Case No: 2020-000616 CA Defendants’ Motion for Partial Summary Judgment Page 3 CENTER OF PUNTA GORDA from August 21, 2019 through August 27, 2019, pursuant to 42 CFR 483.5. Neglect is defined as the failure of the facility, its employees or service providers to provide goods and services to a resident that are necessary to avoid physical harm, pain, mental anguish, or emotional distress.” Plaintiffs are improperly attempting to get the Court to conflate this administrative code provision with Florida Statute Chapter 400 which is actually the basis of their claim. The cause of action against a nursing home lies in Florida Statute 400.023 which provides the exclusive remedy for a cause of action for violation of rights or for negligence against a nursing home. The statutory scheme creates the civil cause of action against the licensee for negligence or a violation of rights, sets forth the elements of such a cause of action, including duty, as well as the standard of care. It is this statute that creates the cause of action against PUNTA GORDA MEDICAL INVESTORS, LLC in this case. There is no private cause of action created by the Code of Federal Regulations regarding nursing homes. The Chapter cited by Plaintiffs, 42 CFR 483, is part of the “Part 483 Requirements for States and Long Term Care Facilities.” The regulations therein contain the requirements that an institution must meet in order to qualify to participate as a Skilled Nursing Facility in the Medicare program, and as a nursing facility in the Medicaid program. See 42 CFR 483.1 (b) These regulations also serve as a basis for survey activities for the purposes of determining whether a facility meets the requirements for participation in Medicare and Medicaid. Jd. This section does not give the Plaintiffs a private cause of action against a nursing home. See, Villazon v. Prudential Health Care, 843 So 2d 842 (Fla. 2003)(absent an expression of legislative intent to create a private right of action to enforce regulatory statutes, Burg v. West Florida Physician Network, LLC Case No: 2020-000616 CA Defendants’ Motion for Partial Summary Judgment Page 4 a private right of action is not implied.”); Murthy v. Sinha Corp, 644 So. 2d (Fla. 1994)(regulatory and penal statutes governing construction industry licensing procedures and regulatory duties did not create private right of action). Accordingly, because these regulations do not form the basis for Plaintiffs’ claim against this Defendant, partial summary judgment applying the regulation to this case would be improper. For the above-stated reasons, Defendant PUNTA GORDA MEDICAL INVESTORS, LLC., respectfully requests that Plaintiffs’ Motion for Partial Summary Judgment be denied. CERTIFICATE OF SERVICE WE HEREBY CERTIFY that a true and correct copy of the foregoing was e-filed with the Clerk of Court through the E-Filing Portal on September 21, 2021 and is to be e-served by the Court Clerk to: ALL COUNSEL LISTED ON THE ATTACHED SERVICE LIST. 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, IIT 150 S. Pine Island Road, Suite 510 Plantation, FL 33324 Telephone: 954-463-0033 / Fax: 954-463-9562 /s/ Susanne Riedhammer By: JAY P. CHIMPOULIS, ESQ. Florida Bar No: 561533 JChimpoulis@ChimpoulisHunter.com SUSANNE E. RIEDHAMMER, ESQ. Florida Bar No: 159638 SRiedhammer@ChimpoulisHunter.com Burg v. West Florida Physician Network, LLC Case No: 2020-000616 CA Defendants’ Motion for Partial Summary Judgment Page 5 SERVICE LIST COUNSEL FOR PLAINTIFFS Edward R. Blumberg, Esq. Deutsch Blumberg & Caballero, P.A. 100 N Biscayne Boulevard, Suite 2802 Miami, FL 33132 ERB@DeutschBlumberg.com RMitchell@DeutschBlumberg.com ccaballero@deutschblumberg.com hcastillo@deutschblumberg.com bblumberg@deutschblumberg.com CO-COUNSEL FOR PLAINTIFFS Michael J. Swan, Esquire Rossway Swan Tierney Barry & Oliver, P.L. jstewart@rosswayswan.com; mswan@rosswayswan.com; cdelo@roswayswan.com COUNSEL FOR DEFENDANT, DR. JOHN RIOUX AND GULF POINTE SURGICAL Victoria N. Ferrentino, Esq. Natalie J. Davy, Esq. Bush, Graziano, Rice & Platter, P.A. 100 S. Ashley Drive, Suite 1400 Tampa, FL 33602-3423 VFerrentino@BGRPlaw.com NDavy@BGRPlaw.com COUNSEL FOR DEFENDANTS. DR. NANDINI_KIRI AND NANDINI KIRI, M.D., P.A. AND HARBOR MEDICAL GROUP, LLC Richard B. Mangan, Esq. Rissman, Barrett, Hurt, Donahue, McLain & Mangan, P.A. 1 N. Dale Mabry Hwy, 11th Floor, Tampa, FL 33609-2764 Richard. Mangan@Rissman.com Stephanie. Doyle@Rissman.com COUNSEL FOR DR. WEERASINGHE Richard Bowers , Esquire RBowers@BankerLopez.com Richard M. Sebek, Esquire RSebek@BankerLopez.com Banker Lopez Gassler P.A. 501 E. Kennedy Boulevard, Suite 1700 Tampa, FL 33602 Service-rbowers@bankerlopez.com Service-bscheele@bankerlopez.com Burg v. West Florida Physician Network, LLC Case No: 2020-000616 CA Defendants’ Motion for Partial Summary Judgment Page 6 COUNSEL FOR DR. SOVI JOSEPH Jeffrey Goodis, Esquire Brett Gliosca, Esquire La Cava Jacobson 150 2nd Avenue North, Suite 1500 St. Petersburg, FL 33701 Ss -pleadings: liglegal.com bgliosca Ijglegal.com: mmorgan@ljglegal.com COUNSEL FOR FAWCETT MEMORIAL HOSPITAL & ABIGAIL UTECH MD Ronald E. Bush, Esq. Bush, Graaziano, Rice & Platter PA 100 So. Ahsley Drive, #1400 Tampa, FL 33602 serve@bgrplaw.com bconde b law.com COUNSEL FOR SUE BRUNER R. Ryan Rivas, Esq. Hall Booth Smith, P.C. 2701 N. Rocky Point Drive, Suite 400 Tampa, Florida 33607 Office: 813.329.3880 ext. 4102 Direct: 813.329.3882 rrivas@hallboothsmith.com NContreras@hallboothsmith.com COUNSEL FOR CATHY CRISS AND MILLENIUM PHYSICIAN GROUP, LLC Ron M. Campbell, Esq. Daniel C. Calvert, Esq. Cole, Scott & Kissane, P.A. 27300 Riverview Center Blvd., Suite 200 Bonita Springs, FL 34134 Telephone: (239)690-7924 Telefax: (239)738-7778 Ron.campbell csklegal.com Daniel.calvert@csklegal.com Krystal.perez@csklegal.com Daniela.perez@csklegal.com