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 # 112397964 E-Filed 08/26/2020 11:07:19 AM
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; 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;
PUNTA GORDA MEDICAL INVESTORS, LLC d/b/a
LIFE CARE CENTER OF PUNTA GORDA; LIFE
CARE PHYSICIAN SERVICES, LLC; and VANCE
MALONEY, II,
Defendants.
DEFENDANT LIFE CARE PHYSICIAN SERVICES, LLC’S ANSWER AND
AFFIRMATIVE DEFENSE
Defendant, LIFE CARE PHYSICIAN SERVICES, LLC, by and through their
undersigned counsel, hereby files its Answer and Affirmative Defenses to Plaintiffs’
Complaint, as follows:
Counts I through XXXXII
1-533. Paragraphs 1 through 533 of Plaintiffs’ Complaint are not directed to this
Defendant. To the extent any of these allegations relate to this Defendant and/or require a
response, the allegations are denied, and Defendant demands strict proof thereof.
Count XXXXIII—- CLAIM ON BEHALF OF DEBORAH COOPER BURG AGAINST
DEFENDANT LIFE CARE PHYSICIAN SERVICES, LLC., AS TO ITS LIABILITY
FOR THE CONDUCT OF VANCE MALONEY, M.D.
534. This Defendant admits that the amount claimed is within the jurisdictional
limits of this Court but denies Plaintiffs’ entitlement to same.
535. This Defendant is without knowledge and therefore denies the allegations of
paragraph 535 of Plaintiffs’ Complaint, and demands strict proof thereof.
536. This Defendant is without knowledge and therefore denies the allegations of
paragraph 536 of Plaintiffs’ Complaint, and demands strict proof thereof.
537. This Defendant denies the allegations of paragraph 537 of Plaintiffs’
Complaint and demands strict proof thereof.
538. This Defendant denies the allegations of paragraph 538 of Plaintiffs’
Complaint and demands strict proof thereof.
539. This Defendant denies the allegations of paragraph 539 of Plaintiffs’
Complaint and demands strict proof thereof.
540. This Defendant denies the allegations of paragraph 540 of Plaintiffs’
Complaint and demands strict proof thereof.
541. This Defendant denies the allegations of paragraph 541 of Plaintiffs’
Complaint and demands strict proof thereof.
542. This Defendant denies the allegations of paragraph 542 of Plaintiffs’
Complaint and demands strict proof thereof.
543. This Defendant denies the allegations of paragraph 543 of Plaintiffs’
Complaint and demands strict proof thereof.
544. This Defendant denies the allegations of paragraph 544 of Plaintiffs’
Complaint and demands strict proof thereof.
545. This Defendant denies the allegations of paragraph 545 of Plaintiffs’
Complaint and demands strict proof thereof.
546. This Defendant denies the allegations of paragraph 546 of Plaintiffs’
Complaint and demands strict proof thereof.
547. This Defendant denies the allegations of paragraph 547 of Plaintiffs’
Complaint and demands strict proof thereof.
Count XXXXIV — CLAIM OF NICOLE BURG AGAINST DEFENDANT LIFE CARE
PHYSICIAN SERVICES, LLC., AS TO ITS LIABILITY FOR THE CONDUCT OF
VANCE MALONEY, M.D.
548. This Defendant admits that the amount claimed is within the jurisdictional
limits of this Court but denies Plaintiffs’ entitlement to same.
549. This Defendant is without knowledge and therefore denies the allegations of
paragraph 549 of Plaintiffs’ Complaint, and demands strict proof thereof.
550. This Defendant denies the allegations of paragraph 550 of Plaintiffs’
Complaint and demands strict proof thereof.
551. This Defendant denies the allegations of paragraph 551 of Plaintiffs’
Complaint and demands strict proof thereof.
552. This Defendant denies the allegations of paragraph 552 of Plaintiffs’
Complaint and demands strict proof thereof.
553. This Defendant denies the allegations of paragraph 553 of Plaintiffs’
Complaint and demands strict proof thereof.
554. This Defendant denies the allegations of paragraph 554 of Plaintiffs’
Complaint and demands strict proof thereof.
555. This Defendant denies the allegations of paragraph 555 of Plaintiffs’
Complaint and demands strict proof thereof.
556. This Defendant denies the allegations of paragraph 556 of Plaintiffs’
Complaint and demands strict proof thereof.
557. This Defendant denies the allegations of paragraph 557 of Plaintiffs’
Complaint and demands strict proof thereof.
558. This Defendant denies the allegations of paragraph 558 of Plaintiffs’
Complaint and demands strict proof thereof.
559. This Defendant denies the allegations of paragraph 559 of Plaintiffs’
Complaint and demands strict proof thereof.
560. This Defendant denies the allegations of paragraph 560 of Plaintiffs’
Complaint and demands strict proof thereof.
Count XXXXV— CLAIM OF RICKY BURG AGAINST DEFENDANT LIFE CARE
PHYSICIAN SERVICES, LLC., AS TO ITS LIABILITY FOR THE CONDUCT OF
VANCE MALONEY, M.D.
561. This Defendant admits that the amount claimed is within the jurisdictional
limits of this Court, but denies Plaintiffs’ entitlement to same.
562. This Defendant is without knowledge and therefore denies the allegations of
paragraph 562 of Plaintiffs’ Complaint, and demands strict proof thereof.
563. This Defendant denies the allegations of paragraph 563 of Plaintiffs’
Complaint and demands strict proof thereof.
564. This Defendant denies the allegations of paragraph 564 of Plaintiffs’
Complaint and demands strict proof thereof.
565. This Defendant denies the allegations of paragraph 565 of Plaintiffs’
Complaint and demands strict proof thereof.
566. This Defendant denies the allegations of paragraph 566 of Plaintiffs’
Complaint and demands strict proof thereof.
567. This Defendant denies the allegations of paragraph 567 of Plaintiffs’
Complaint and demands strict proof thereof.
568. This Defendant denies the allegations of paragraph 568 of Plaintiffs’
Complaint and demands strict proof thereof.
569. This Defendant denies the allegations of paragraph 569 of Plaintiffs’
Complaint and demands strict proof thereof.
570. This Defendant denies the allegations of paragraph 570 of Plaintiffs’
Complaint and demands strict proof thereof.
S71. This Defendant denies the allegations of paragraph 571 of Plaintiffs’
Complaint and demands strict proof thereof.
572. This Defendant denies the allegations of paragraph 572 of Plaintiffs’
Complaint and demands strict proof thereof.
573. This Defendant denies the allegations of paragraph 573 of Plaintiffs’
Complaint and demands strict proof thereof.
COUNTS XXXXVI-XXXXVUI
574-610. Paragraphs 574 through 610 of Plaintiffs’ Complaint are not directed to
this Defendant. To the extent any of these allegations relate to this Defendant and/or require
a response, the allegations are denied, and this Defendant demands strict proof thereof.
AFFIRMATIVE DEFENSES
As a First Affirmative Defense, this Defendant affirmatively asserts that Plaintiffs are
barred from recovering from these Defendants any damages for losses sustained, which have
been paid or are payable by any collateral sources of indemnity available to Plaintiffs,
including but not limited to those set forth in Fla. Stat. §768.76.
As a Second Affirmative Defense, this Defendant asserts that pursuant to Fabre v.
Marin, 623 So.2d 1182 (Fla 1993), any damages awarded to Plaintiff are subject to the
apportionment by the jury of the total fault of all participants, whether parties or non-parties.
At this time, it is unknown whether or not there are any potential non-party tortfeasors
inasmuch as there has been no discovery. However, in the event any of the Co-Defendants
settle or are dismissed, these Defendants reserve the right to name the settling and/or
dismissed Co-Defendant(s) as a Fabre non-party defendant. Additionally, if any potential
non-party tortfeasors are identified, this Defendant reserves the right to supplement this
Affirmative Defense as discovery reveals the identity of potentially responsible third parties.
Nash v. Wells Fargo Guard Services, Inc., 678 So. 2d 1262 (Fla. 1996).
As a Third Affirmative Defense, this Defendant asserts that it is entitled to the rights
and privileges under Fla. Stat. §768.81 requiring apportionment of fault among all
responsible parties, including all potential non-party tortfeasors as well as each and every
party who has been named as a Co-Defendant for the acts alleged against them by Plaintiff,
regardless of whether they remain parties to the suit at the time of trial.
As a Fourth Affirmative Defense, this Defendant affirmatively asserts that Plaintiffs”
damages, if any, were caused by forces and/or independent intervening acts, including acts
by third parties, for which these Defendants had no control or responsibility.
As a Fifth Affirmative Defense, this Defendant affirmatively assert that the conduct
or negligence of the Plaintiff caused or contributed to the damages alleged, if any, and that
any such conduct or negligence was the sole proximate cause and/or independent intervening
cause of the alleged injury. As such, the damages complained of and the recovery, if any,
should be barred or reduced proportionately pursuant to the doctrine of comparative
negligence.
As a Sixth Affirmative Defense, this Defendant affirmatively asserts all rights,
privileges, immunities, and benefits of Florida Statutes Chapters 766 and 768, including and
not limited to 766.118 and all applicable statutory damage caps.
As a Seventh Affirmative Defense, this Defendant affirmatively asserts that Plaintiff
has failed to mitigate any injury or damage that she may have suffered as a result of any
incident that may be proven herein and Plaintiffs’ recovery must therefore be denied or
reduced in proportion to her failure to mitigate.
As an Eighth Affirmative Defense, this Defendant states that Plaintiff's injuries were
the result of the natural and inexorable process of human disease, health condition, or injury
and not any act or omission of this Defendant.
This Defendant further demands trial by jury on all issues so triable.
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 August 26, 2020 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
By /s/ Susanne Riedhammer
JAY P. CHIMPOULIS, ESQ.
Florida Bar No: 561533
JChimpoulis@ChimpoulisHunter.com
SUSANNE E. RIEDHAMMER, ESQ.
Florida Bar No: 159638
SRiedhammer@ChimpoulisHunter,com
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
JFlorin@DeutschBumberg.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.cor
COUNSEL FOR DEFENDANTS. DR. NANDINI KIRI AND NANDINI KIRI, M.D.
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. GALLIANO AND HIS PA.
Ralph Marchbank, Esq.
Dickinson & Gibbons, PA
401 N Cattlemen Road, Suite 300
Sarasota, FL
RMarchbank@DGlawyers.com
COUNSEL FOR DR. WEERASINGHE
Richard Bowers, Esquire RBowers@BankerLopez.com
Janet Ann Durkee, Esquire JDurkee@BankerLopez.con
Richard M. Sebek, Esquire RSebek@BankerLopez.com
Banker Lopez Gassler P.A.
501 E. Kennedy Boulevard, Suite 1700
Tampa, FL 33602