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Filing # 114285955 E-Filed 10/01/2020 03:23:29 PM
IN THE CIRCUIT COURT OF THE TWENTIETH JUDICIAL CIRCUIT
IN AND FOR CHARLOTTE COUNTY, STATE OF FLORIDA
DEBORAH COOPER BURG, by and through
her Court- appointed Guardian, RICKY BURG;
NICOLE BURG, her daughter; and RICKY
BURG, her spouse,
Plaintiff,
vs.
WEST FLORIDA PHYSICIAN NETWORK,
LLC; DILENDRA WEERASINGHE; JOHN
RIOUX; FAWCETT MEMORIAL CASE NO.: 20200616CA.
HOSPITAL, INC. d/b/a FAWCETT
MEMORIAL HOSPITAL; ABIGAIL UTECH;
NANDINI KIRI, M.D., P.A.; NANDINI KIRI;
HARBOR MEDICAL GROUP, LLC; AHSAN
KAMAL; SOVI JOSEPH, M.D., P.A.; 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, III,
Defendants.
/
DEFENDANT, ABIGAIL UTECH’s,
RESPONSES TO PLAINTIFFS’ REQUEST TO PRODUCE
Defendant, ABIGAIL UTECH (“UTECH”), by and through the undersigned, pursuant to
Rule 1.350, Florida Rules of Civil Procedure, propound her Response to Plaintiffs Request to
Produce.
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and accurate copy of the above and foregoing has been
furnished by electronic mail delivery on this 1st day of October, 2020 to:
Edward R. Blumberg, Esquire, Deutsch Blumberg & Caballero, PA,
ERB@DeutschBlumberg.com, rmitchellDeutschblumberg.com, Counsel for Claimants
Edward R. Blumberg, Esq.
October 1, 2020
Page 2 of 9
Victoria N. Ferrentino, Esquire, Bush Graziano Rice & Platter, P.A., 100 S. Ashley Drive, Suite
1400, Tampa, FL 33602. vferrentino@bqrplaw.com, Counsel for John Rioux, MD and West
Florida Physician Network, LLC d/b/a Gulf Pointe Surgical Specialists
Ralph L. Marchbank, Dickinson & Gibbons, P.A., 401 N. Cattlemen Road, Suite 300, Sarasota,
FL 34232, RMarchbank@dglawyers.com, lgordon@dglawyers.com, JGadoury@dglawyers.com,
Counsel for Domingo E. Galliano, Jr., M.D., Domingo E. Galliano, Jr., P.A.
Richard Mangan, Esquire, Kelsey Campbell, Esquire, Rissman Barrett Hurt Donahue McLain &
Mangan, 1 N Dale Mabry Highway, Suite 1100, Tampa, FL 33609,
Stephanie.Doyle@rissman.com, Counsel for Nandini Kiri, M.D., Nandini Kiri, M.D., P.A.
Douglas B. Lumpkin, Esquire, Wicker Smith, 1819 Main Street, Suite 910, Sarasota, FL 34235,
DLumpkin@wickersmith.com, JStJohn@wickersmith.com, Counsel for Ahsan Kamal, M.D.,
Ahsan Kamal, M.D., P.A. and Harbor Medical Group
Susanne E. Riedhammer, Esquire, Chimpoulis & Hunter, P.A., 159 South Pine Island Road, Suite
510, Plantation, FL 33324, sriedhammer@chimpoulishunter.com, Counsel for Vance Maloney,
III, M.D. and Punta Gorda Medical Investors, LLC d/b/a Life Care Center of Punta Gorda
Richard Bowers, Esquire, Banker Lopez Gassler P.A., 501 East Kennedy Blvd, Suite 1700, Tampa,
FL 33602, service-rbowers@bankerlopez.com, Counsel for Dilendra Weerasinghe, M.D.
Jeff Goodis, Esquire, La Cava Jacobson & Goodis, 150 2"! Avenue North, 15" Floor, St.
Petersburg, FL 33701, jgoodis@lacavajacobson.com, Counsel for Sovi Joseph, M.D. and Sovi
Joseph, M.D., P.A.
/s/ Frances G. Prockop
Frances G. Prockop, Esq.
Florida Bar No.: 727296
Bush Graziano Rice & Platter, P.A.
100 South Ashley Drive, Suite 1400
Tampa, FL 33602
Phone: (813) 228-7000 — Fax: (813) 273-0091
Attorney for Defendants, Fawcett Memorial
Hospital and Abigail Utech
Primary: eserve@berplaw.com
Secondary: Iplyushko@begrplaw.com
Edward R. Blumberg, Esq.
October 1, 2020
Page 3 of 9
PLAINTIFF’S FIRST REQUEST FOR PRODUCTION TO DEFENDANT ABIGAIL
UTECH
1 All statements, bills, and other evidence of expenses incurred by Plaintiff, DEBORAH
COOPER BURG, for services provided for all dates of service.
RESPONSE: None. This request is more properly addressed to a Hospital. Please
refer to responses by any Hospital Defendants.
A legible copy of your entire medical chart on Plaintiff DEBORAH COOPER BURG for
all dates of service, including but not limited to all doctors’ records, radiology studies,
diagnostic studies, radiology reports, consultation or other medical reports, laboratory
reports, radiology reports, nurses notes, memoranda, and written or electronic
correspondence.
RESPONSE: Objection: This Defendant objects to this request to the extent it seeks
records that are protected from discovery or introduction into evidence in any civil
or administrative action under Florida Statutes §§ 395.0191(8), 395.0193(8),
395.0197, and 766.101(5).
To the extent that Plaintiffs rely on Article X, Section 25 of the Florida Constitution
(commonly known as “Amendment 7”) for the production of privileged records and
information in response to the requests, this Defendant objects. Amendment 7’s scope
has been interpreted to only allow for the production of records relating to a specific
event involving a specific patient that caused or could have caused injury or death.
W. Fla. Reg’! Med. Ctr.v. See, 18 So. 3d 676 (Fla. 1* DCA 2009), aff’d, 79 So. 3d 1 (Fla.
Jan 12, 2012); and Morton Plant Hosp. Ass’n, Inc. v. Shahbas, 960 So.2d 820 (Fla. 2d
DCA 2007). Privileged information responsive to the Request that does not fall within
the definition of Amendment 7 will not be produced.
Finally, this Defendant objects to the extent that this request seeks records that are
confidential and privileged Patient Safety Work Product (“PSWP”) pursuant to the
Patient Safety and Quality Improvement Act of 2005 (the “PSQIA”), 42 U.S.C. §
299b-22, et seq. and its attendant regulations. Amendment 7 searches have to be
undertaken by human beings, and those human beings need to know what specifically
to look for, and where. If there is something specific that claimant wants this
Defendant to search for, please indicate. This Defendant would be entitled to
prepayment of the cost of searching for, reviewing, redacting, and producing
responsive records pursuant to section 381.028(7), Florida Statutes, as well as
preparing a privilege log for any documents that may be subject to attorney-client
privilege, attorney opinion work product protection, or the privileges and protections
of the Patient Safety and Quality Improvement Act of 2005, 42 U.S.C. § 299b-21 et
seq., and related regulations, 42 C.F.R. 3.10 et seq. (hereinafter collectively
“PSQIA”). Subject to and without waiving the objections, none. This request is more
Edward R. Blumberg, Esq.
October 1, 2020
Page 4 of 9
properly addressed to a Hospital. Please refer to responses by any Hospital
Defendants.
If any other written document or report concerning Plaintiff DEBORAH COOPER BURG
is believed to exist, but is not in your possession or control, please describe the document
or report and provide the present location and custodian of the same.
RESPONSE: Objection, this request is vague, ambiguous, and not limited in time or
scope. Subject to and without waiving its objections, this Defendant believes that there
are likely written documents and records from other healthcare providers, experts,
and employers, as well as others yet undiscovered, which are not in the possession or
control of this Defendant. Plaintiffs have superior knowledge of the identities of her
healthcare providers, experts, and employers, and the location and custodian of same.
Any and all contracts and agreements between you and any other individual or entity
including but not limited to Defendant FAWCETT MEMORIAL HOSPITAL, INC. d/b/a
FAWCETT MEMORIAL HOSPITAL including employment contracts, provider contracts
and or staffing contracts billing contracts, and compensation contracts which related to
medical services provided to Plaintiff Deborah Cooper Berg.
RESPONSE: Objection, the request is not reasonably calculated to lead to the
discovery of admissible evidence. Further the request is overbroad, overly
burdensome, and vague in that it requires this Defendant to attempt to read Plaintiffs’
mind as to which individuals or entities other than the defendants presently named in
the Complaint. Additionally, the request is not properly limited in time and scope.
Subject to and without waiving the objections, none. This request is more properly
addressed to a Hospital. Please refer to responses by any Hospital Defendants.
Personnel file including all evaluations, discipline, references, job descriptions, human
resources actions taken, and all matters within the personnel file concerning Defendant
ABIGAIL UTECH
RESPONSE: Objection: Overbroad, vague, ambiguous, not relevant, unduly
burdensome, harassive, and not reasonably calculated to lead to the discovery of
admissible evidence. This Defendant further objects to releasing confidential and
private information pursuant to Fla. Stat. §395.3025(9) and (10) and the Florida
Constitution. Moreover, UTECH’s personnel files are prescribed as limited-access
records pursuant to Fla. Stat. 395.3025(9), Florida Statutes, and they cannot be
produced absent a court order.
Finally, to the extent this request seeks records protected from discovery or
introduction into evidence in any civil or administration action under §§395.0191(8),
395.0193(8), and/or 766.101(5), Florida Statutes (2019), UTECH objects. Records
contained within this Defendant’s credentialing files are privileged. See §§
395.0191(8), 395.0193(8), and 766.101(5), Fla. Stat.; see also Columbia/JFK Med. Ctr.
Edward R. Blumberg, Esq.
October 1, 2020
Page 5 of 9
y. Sanguonchitte, 920 So. 2d 711 (Fla. 4th DCA 2006) (concluding that documents
“used to determine what surgeries Dr. Farkas could perform and whether his
performance warranted continued privileges” were privileged under sections
395.0191(8) and 766.101(5), Florida Statutes); accord Boca Raton Comm. Hosp. v.
Jones, 584 So. 2d 220 (Fla. 4th DCA 1991) (same). These privileges have remained
intact following the adoption of Amendment 7. See, e.g. See, 18 So. 3d at 676;
Shahbas, 960 So. 2d at 820; Baptist Hosp. of Miami, Inc. v. Garcia, 994 So. 2d 390, 393,
n.4 (Fla. 3d DCA 2008) (finding that Amendment 7 does not require a health care
facility to disclose the contents of its credentialing files, but only requires disclosure
of medical reports of adverse medical incidents contained in credentialing files);
Marcus v. University Hosp. and Med. Ctr., et al., Case No.: 05-08138 (02) (Fla. 17th Cir.
Ct. Oct. 2, 2009) (holding that Amendment 7 does not permit the discovery of a
physician’s credentialing files); and McKoy v. Columbia Hosp. Corp. of 8. Broward,
Wb/a Westside Reg’! Med. Ctr., Case No.: CACE 10045900 12 (Fla. 17th Cir. Ct. June
19, 2012) (holding that a plaintiff may not obtain production from hospital of records
contained in a physician’s credentialing file).
A copy of any and all statements taken of the Plaintiffs herein, by you, your agents,
servants, insurance representatives, or attorneys.
RESPONSE: None.
Copy of any and all records relating to any adverse medical incident concerning the care
and treatment rendered to Plaintiff DEBORAH COOPER BURG.
RESPONSE: Objection: This Defendant objects to this request to the extent it seeks
records that are protected from discovery or introduction into evidence in any civil
or administrative action under Florida Statutes §§ 395.0191(8), 395.0193(8),
395.0197, and 766.101(5).
To the extent that Plaintiffs rely on Article X, Section 25 of the Florida Constitution
(commonly known as “Amendment 7”) for the production of privileged records and
information in response to the requests, this Defendant objects. Amendment 7’s scope
has been interpreted to only allow for the production of records relating to a specific
event involving a specific patient that caused or could have caused injury or death.
W. Fla. Reg’! Med. Ctr.v. See, 18 So. 3d 676 (Fla. 1‘ DCA 2009), aff'd, 79 So. 3d 1 (Fla.
Jan 12, 2012); and Morton Plant Hosp. Ass’n, Inc. v. Shahbas, 960 So.2d 820 (Fla. 2d
DCA 2007). Privileged information responsive to the Request that does not fall within
the definition of Amendment 7 will not be produced.
Finally, this Defendant objects to the extent that this request seeks records that are
confidential and privileged Patient Safety Work Product (“PSWP”) pursuant to the
Patient Safety and Quality Improvement Act of 2005 (the “PSQIA”), 42 U.S.C. §
299b-22, et seq. and its attendant regulations. Amendment 7 searches have to be
undertaken by human beings, and those human beings need to know what specifically
Edward R. Blumberg, Esq.
October 1, 2020
Page 6 of 9
to look for, and where. If there is something specific that claimant wants this
Defendant to search for, please indicate. This Defendant would be entitled to
prepayment of the cost of searching for, reviewing, redacting, and producing
responsive records pursuant to section 381.028(7), Florida Statutes, as well as
preparing a privilege log for any documents that may be subject to attorney-client
privilege, attorney opinion work product protection, or the privileges and protections
of the Patient Safety and Quality Improvement Act of 2005, 42 U.S.C. § 299b-21 et
seq., and related regulations, 42 C.F.R. 3.10 et seq. (hereinafter collectively
“PSQIA”). Subject to the foregoing objections, none.
Copies of any and all records relating to any adverse medical incidents involving defendant
ABIGAIL UTECH alleging same or similar facts relating to the same or similar subject
matter as this lawsuit within the last five (5) years, redacting identifying information of any
patients other than Plaintiff DEBORAH COOPER BURG, from the records provided.
RESPONSE: Objection: This request is overbroad, unduly burdensome, not
reasonably limited in time or scope, and not reasonably calculated to lead to the
discovery of admissible evidence. Specifically, the phrases “same or similar facts” and
“same or similar subject matter” are overbroad and ambiguous. This Defendant
objects to this request to the extent it seeks records that are protected from discovery
or introduction into evidence in any civil or administrative action under Florida
Statutes §§ 395.0191(8), 395.0193(8), 395.0197, and 766.101(5).
To the extent that Plaintiffs rely on Article X, Section 25 of the Florida Constitution
(commonly known as “Amendment 7”) for the production of privileged records and
information in response to the requests, this Defendant objects. Amendment 7’s scope
has been interpreted to only allow for the production of records relating to a specific
event involving a specific patient that caused or could have caused injury or death.
W. Fla. Reg’! Med. Ctr.v. See, 18 So. 3d 676 (Fla. 1‘ DCA 2009), aff'd, 79 So. 3d 1 (Fla.
Jan 12, 2012); and Morton Plant Hosp. Ass’n, Inc. v. Shahbas, 960 So.2d 820 (Fla. 2d
DCA 2007). Privileged information responsive to the Request that does not fall within
the definition of Amendment 7 will not be produced.
Finally, this Defendant objects to the extent that this request seeks records that are
confidential and privileged Patient Safety Work Product (“PSWP”) pursuant to the
Patient Safety and Quality Improvement Act of 2005 (the “PSQIA”), 42 U.S.C. §
299b-22, et seq. and its attendant regulations. Amendment 7 searches have to be
undertaken by human beings, and those human beings need to know what specifically
to look for, and where. If there is something specific that claimant wants this
Defendant to search for, please indicate. This Defendant would be entitled to
prepayment of the cost of searching for, reviewing, redacting, and producing
responsive records pursuant to section 381.028(7), Florida Statutes, as well as
preparing a privilege log for any documents that may be subject to attorney-client
privilege, attorney opinion work product protection, or the privileges and protections
of the Patient Safety and Quality Improvement Act of 2005, 42 U.S.C. § 299b-21 et
Edward R. Blumberg, Esq.
October 1, 2020
Page 7 of 9
seq., and related regulations, 42 C.F.R. 3.10 et seq. (hereinafter collectively
“PSQIA”). Subject to the foregoing objections, none.
A complete copy of your Medical Malpractice Insurance policy and excess medical
malpractice insurance policy(ies) including, but not limited to, coverage information,
specifically, a copy of the malpractice insurance policy, which provides coverage for the
subject claim.
RESPONSE: This request is more properly addressed to a Hospital. Please refer to
responses by any Hospital Defendants.
10. Any and all evidence of communications, written or otherwise, between you and Plaintiff
DEBORAH COOPER BURG’S other treating health care providers in regard to her care
and treatment.
RESPONSE: Objection: This request is overbroad, unduly burdensome, not
reasonably limited in time or scope, and not reasonably calculated to lead to the
discovery of admissible evidence. Specifically, the “otherwise” is overbroad and
ambiguous. This Defendant further objects to this request to the extent it seeks
records that are protected from discovery or introduction into evidence in any civil
or administrative action under Florida Statutes §§ 395.0191(8), 395.0193(8),
395.0197, and 766.101(5).
To the extent that Plaintiffs rely on Article X, Section 25 of the Florida Constitution
(commonly known as “Amendment 7”) for the production of privileged records and
information in response to the requests, this Defendant objects. Amendment 7’s scope
has been interpreted to only allow for the production of records relating to a specific
event involving a specific patient that caused or could have caused injury or death.
W. Fla. Reg’! Med. Ctr.v. See, 18 So. 3d 676 (Fla. 1‘ DCA 2009), aff'd, 79 So. 3d 1 (Fla.
Jan 12, 2012); and Morton Plant Hosp. Ass’n, Inc. v. Shahbas, 960 So.2d 820 (Fla. 2d
DCA 2007). Privileged information responsive to the Request that does not fall within
the definition of Amendment 7 will not be produced.
Finally, this Defendant objects to the extent that this request seeks records that are
confidential and privileged Patient Safety Work Product (“PSWP”) pursuant to the
Patient Safety and Quality Improvement Act of 2005 (the “PSQIA”), 42 U.S.C. §
299b-22, et seq. and its attendant regulations. Amendment 7 searches have to be
undertaken by human beings, and those human beings need to know what specifically
to look for, and where. If there is something specific that claimant wants this
Defendant to search for, please indicate. This Defendant would be entitled to
prepayment of the cost of searching for, reviewing, redacting, and producing
responsive records pursuant to section 381.028(7), Florida Statutes, as well as
preparing a privilege log for any documents that may be subject to attorney-client
privilege, attorney opinion work product protection, or the privileges and protections
of the Patient Safety and Quality Improvement Act of 2005, 42 U.S.C. § 299b-21 et
Edward R. Blumberg, Esq.
October 1, 2020
Page 8 of 9
seq., and related regulations, 42 C.F.R. 3.10 et seq. (hereinafter collectively
“PSQIA”). Subject to the foregoing objections, none. This request is more properly
addressed to a Hospital. Please refer to responses by any Hospital Defendants.
11 All audit logs showing all individuals who accessed Plaintiff DEBORAH COOPER
BURG’S electronic medical record including names, access numbers, portions of the chart
accessed, and what actions were taken and at what times, all with specificity.
RESPONSE: Objection: This request is overbroad, unduly burdensome, not
reasonably limited in time or scope, and not reasonably calculated to lead to the
discovery of admissible evidence. Specifically, the “otherwise” is overbroad and
ambiguous. This Defendant further objects to this request to the extent it seeks
records that are protected from discovery or introduction into evidence in any civil
or administrative action under Florida Statutes §§ 395.0191(8), 395.0193(8), 395.0197,
and 766.101(5).
To the extent that Plaintiffs rely on Article X, Section 25 of the Florida Constitution
(commonly known as “Amendment 7”) for the production of privileged records and
information in response to the requests, this Defendant objects. Amendment 7’s scope
has been interpreted to only allow for the production of records relating to a specific
event involving a specific patient that caused or could have caused injury or death.
W. Fla. Reg’! Med. Ctr.v. See, 18 So. 3d 676 (Fla. Ist DCA 2009), aff?d, 79 So. 3d 1
(Fla. Jan 12, 2012); and Morton Plant Hosp. Ass’n, Inc. v. Shahbas, 960 So.2d 820
(Fla. 2d DCA 2007). Privileged information responsive to the Request that does not
fall within the definition of Amendment 7 will not be produced.
Finally, this Defendant objects to the extent that this request seeks records that are
confidential and privileged Patient Safety Work Product (“PSWP”) pursuant to the
Patient Safety and Quality Improvement Act of 2005 (the “PSQIA”), 42 U.S.C. §
299b-22, et seq. and its attendant regulations. Amendment 7 searches have to be
undertaken by human beings, and those human beings need to know what specifically
to look for, and where. If there is something specific that claimant wants this
Defendant to search for, please indicate. This Defendant would be entitled to
prepayment of the cost of searching for, reviewing, redacting, and producing
responsive records pursuant to section 381.028(7), Florida Statutes, as well as
preparing a privilege log for any documents that may be subject to attorney-client
privilege, attorney opinion work product protection, or the privileges and protections
of the Patient Safety and Quality Improvement Act of 2005, 42 U.S.C. § 299b-21 et
seq., and related regulations, 42 C.F.R. 3.10 et seq. (hereinafter collectively
“PSQIA”). Subject to the foregoing objections, none. This request is more properly
addressed to a Hospital. Please refer to responses by any Hospital Defendants.
12. All audit trails showing all individuals who accessed Plaintiff DEBORAH COOPER
BURG’s electronic medical record including names, access numbers, portions of the chart
accessed, and what actions were taken and at what times, all with specificity.
Edward R. Blumberg, Esq.
October 1, 2020
Page 9 of 9
RESPONSE: Objection. This request is overbroad, unduly burdensome, not
reasonably limited in time or scope, and not reasonably calculated to lead to the
discovery of admissible evidence. See response to #11 above.
13 Private health information (PHI) disclosure log concerning Plaintiff DEBORAH COOPER
BURG’S medical records.
RESPONSE: Objection. See response to #11 above. This request is overbroad,
unduly burdensome, not relevant, not reasonably limited in time or scope, and not
reasonably calculated to lead to the discovery of admissible evidence.
14. All meta-data concerning Plaintiff DEBORAH COOPER BURG’S electronic medical
including, but not limited to, all addendums, revision histories, corrections, deletions and
patient amendments, reasons for changes, date and time stamps, tracking changes and
modifications.
RESPONSE: Objection. See response to #11 above. This request is overbroad,
unduly burdensome, not relevant, not reasonably limited in time or scope, and not
reasonably calculated to lead to the discovery of admissible evidence.
15 An index of Defendant FAWCETT MEMORIAL HOSPITAL, INC. d/b/a FAWCETT
MEMORIAL HOSPITAL’S policies and procedures in effect at the time you rendered care
and treatment to Plaintiff DEBORAH COOPER BURG, At as well as any policies and
procedures regarding care and treatment of a bariatric patient, including but not limited to
follow up of a post bariatric surgery patient and potential complications.
RESPONSE: Objection, the request is vague, ambiguous and over broad. Further,
the request is not reasonably limited in time or scope and is not reasonably calculated
to lead to the discovery of admissible evidence based upon the allegations of Plaintiff's
Complaint.
16. A copy of the manual and/or complete policies and procedures in regard to the care and
treatment of bariatric patients at Defendant FAWCETT MEMORIAL HOSPITAL, INC.
d/b/a FAWCETT MEMORIAL HOSPITAL in compliance with the metabolic and bariatric
surgery accreditation and quality improvement program.
RESPONSE: See response to #15 above.
17. A copy of your Curriculum Vita.
RESPONSE: See attached.
Preview
Filing # 114285955 E-Filed 10/01/2020 03:23:29 PM IN THE CIRCUIT COURT OF THE TWENTIETH JUDICIAL CIRCUIT IN AND FOR CHARLOTTE COUNTY, STATE OF FLORIDA DEBORAH COOPER BURG, by and through her Court- appointed Guardian, RICKY BURG; NICOLE BURG, her daughter; and RICKY BURG, her spouse, Plaintiff, vs. WEST FLORIDA PHYSICIAN NETWORK, LLC; DILENDRA WEERASINGHE; JOHN RIOUX; FAWCETT MEMORIAL CASE NO.: 20200616CA. HOSPITAL, INC. d/b/a FAWCETT MEMORIAL HOSPITAL; ABIGAIL UTECH; NANDINI KIRI, M.D., P.A.; NANDINI KIRI; HARBOR MEDICAL GROUP, LLC; AHSAN KAMAL; SOVI JOSEPH, M.D., P.A.; 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, III, Defendants. / DEFENDANT, ABIGAIL UTECH’s, RESPONSES TO PLAINTIFFS’ REQUEST TO PRODUCE Defendant, ABIGAIL UTECH (“UTECH”), by and through the undersigned, pursuant to Rule 1.350, Florida Rules of Civil Procedure, propound her Response to Plaintiffs Request to Produce. CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and accurate copy of the above and foregoing has been furnished by electronic mail delivery on this 1st day of October, 2020 to: Edward R. Blumberg, Esquire, Deutsch Blumberg & Caballero, PA, ERB@DeutschBlumberg.com, rmitchellDeutschblumberg.com, Counsel for Claimants Edward R. Blumberg, Esq. October 1, 2020 Page 2 of 9 Victoria N. Ferrentino, Esquire, Bush Graziano Rice & Platter, P.A., 100 S. Ashley Drive, Suite 1400, Tampa, FL 33602. vferrentino@bqrplaw.com, Counsel for John Rioux, MD and West Florida Physician Network, LLC d/b/a Gulf Pointe Surgical Specialists Ralph L. Marchbank, Dickinson & Gibbons, P.A., 401 N. Cattlemen Road, Suite 300, Sarasota, FL 34232, RMarchbank@dglawyers.com, lgordon@dglawyers.com, JGadoury@dglawyers.com, Counsel for Domingo E. Galliano, Jr., M.D., Domingo E. Galliano, Jr., P.A. Richard Mangan, Esquire, Kelsey Campbell, Esquire, Rissman Barrett Hurt Donahue McLain & Mangan, 1 N Dale Mabry Highway, Suite 1100, Tampa, FL 33609, Stephanie.Doyle@rissman.com, Counsel for Nandini Kiri, M.D., Nandini Kiri, M.D., P.A. Douglas B. Lumpkin, Esquire, Wicker Smith, 1819 Main Street, Suite 910, Sarasota, FL 34235, DLumpkin@wickersmith.com, JStJohn@wickersmith.com, Counsel for Ahsan Kamal, M.D., Ahsan Kamal, M.D., P.A. and Harbor Medical Group Susanne E. Riedhammer, Esquire, Chimpoulis & Hunter, P.A., 159 South Pine Island Road, Suite 510, Plantation, FL 33324, sriedhammer@chimpoulishunter.com, Counsel for Vance Maloney, III, M.D. and Punta Gorda Medical Investors, LLC d/b/a Life Care Center of Punta Gorda Richard Bowers, Esquire, Banker Lopez Gassler P.A., 501 East Kennedy Blvd, Suite 1700, Tampa, FL 33602, service-rbowers@bankerlopez.com, Counsel for Dilendra Weerasinghe, M.D. Jeff Goodis, Esquire, La Cava Jacobson & Goodis, 150 2"! Avenue North, 15" Floor, St. Petersburg, FL 33701, jgoodis@lacavajacobson.com, Counsel for Sovi Joseph, M.D. and Sovi Joseph, M.D., P.A. /s/ Frances G. Prockop Frances G. Prockop, Esq. Florida Bar No.: 727296 Bush Graziano Rice & Platter, P.A. 100 South Ashley Drive, Suite 1400 Tampa, FL 33602 Phone: (813) 228-7000 — Fax: (813) 273-0091 Attorney for Defendants, Fawcett Memorial Hospital and Abigail Utech Primary: eserve@berplaw.com Secondary: Iplyushko@begrplaw.com Edward R. Blumberg, Esq. October 1, 2020 Page 3 of 9 PLAINTIFF’S FIRST REQUEST FOR PRODUCTION TO DEFENDANT ABIGAIL UTECH 1 All statements, bills, and other evidence of expenses incurred by Plaintiff, DEBORAH COOPER BURG, for services provided for all dates of service. RESPONSE: None. This request is more properly addressed to a Hospital. Please refer to responses by any Hospital Defendants. A legible copy of your entire medical chart on Plaintiff DEBORAH COOPER BURG for all dates of service, including but not limited to all doctors’ records, radiology studies, diagnostic studies, radiology reports, consultation or other medical reports, laboratory reports, radiology reports, nurses notes, memoranda, and written or electronic correspondence. RESPONSE: Objection: This Defendant objects to this request to the extent it seeks records that are protected from discovery or introduction into evidence in any civil or administrative action under Florida Statutes §§ 395.0191(8), 395.0193(8), 395.0197, and 766.101(5). To the extent that Plaintiffs rely on Article X, Section 25 of the Florida Constitution (commonly known as “Amendment 7”) for the production of privileged records and information in response to the requests, this Defendant objects. Amendment 7’s scope has been interpreted to only allow for the production of records relating to a specific event involving a specific patient that caused or could have caused injury or death. W. Fla. Reg’! Med. Ctr.v. See, 18 So. 3d 676 (Fla. 1* DCA 2009), aff’d, 79 So. 3d 1 (Fla. Jan 12, 2012); and Morton Plant Hosp. Ass’n, Inc. v. Shahbas, 960 So.2d 820 (Fla. 2d DCA 2007). Privileged information responsive to the Request that does not fall within the definition of Amendment 7 will not be produced. Finally, this Defendant objects to the extent that this request seeks records that are confidential and privileged Patient Safety Work Product (“PSWP”) pursuant to the Patient Safety and Quality Improvement Act of 2005 (the “PSQIA”), 42 U.S.C. § 299b-22, et seq. and its attendant regulations. Amendment 7 searches have to be undertaken by human beings, and those human beings need to know what specifically to look for, and where. If there is something specific that claimant wants this Defendant to search for, please indicate. This Defendant would be entitled to prepayment of the cost of searching for, reviewing, redacting, and producing responsive records pursuant to section 381.028(7), Florida Statutes, as well as preparing a privilege log for any documents that may be subject to attorney-client privilege, attorney opinion work product protection, or the privileges and protections of the Patient Safety and Quality Improvement Act of 2005, 42 U.S.C. § 299b-21 et seq., and related regulations, 42 C.F.R. 3.10 et seq. (hereinafter collectively “PSQIA”). Subject to and without waiving the objections, none. This request is more Edward R. Blumberg, Esq. October 1, 2020 Page 4 of 9 properly addressed to a Hospital. Please refer to responses by any Hospital Defendants. If any other written document or report concerning Plaintiff DEBORAH COOPER BURG is believed to exist, but is not in your possession or control, please describe the document or report and provide the present location and custodian of the same. RESPONSE: Objection, this request is vague, ambiguous, and not limited in time or scope. Subject to and without waiving its objections, this Defendant believes that there are likely written documents and records from other healthcare providers, experts, and employers, as well as others yet undiscovered, which are not in the possession or control of this Defendant. Plaintiffs have superior knowledge of the identities of her healthcare providers, experts, and employers, and the location and custodian of same. Any and all contracts and agreements between you and any other individual or entity including but not limited to Defendant FAWCETT MEMORIAL HOSPITAL, INC. d/b/a FAWCETT MEMORIAL HOSPITAL including employment contracts, provider contracts and or staffing contracts billing contracts, and compensation contracts which related to medical services provided to Plaintiff Deborah Cooper Berg. RESPONSE: Objection, the request is not reasonably calculated to lead to the discovery of admissible evidence. Further the request is overbroad, overly burdensome, and vague in that it requires this Defendant to attempt to read Plaintiffs’ mind as to which individuals or entities other than the defendants presently named in the Complaint. Additionally, the request is not properly limited in time and scope. Subject to and without waiving the objections, none. This request is more properly addressed to a Hospital. Please refer to responses by any Hospital Defendants. Personnel file including all evaluations, discipline, references, job descriptions, human resources actions taken, and all matters within the personnel file concerning Defendant ABIGAIL UTECH RESPONSE: Objection: Overbroad, vague, ambiguous, not relevant, unduly burdensome, harassive, and not reasonably calculated to lead to the discovery of admissible evidence. This Defendant further objects to releasing confidential and private information pursuant to Fla. Stat. §395.3025(9) and (10) and the Florida Constitution. Moreover, UTECH’s personnel files are prescribed as limited-access records pursuant to Fla. Stat. 395.3025(9), Florida Statutes, and they cannot be produced absent a court order. Finally, to the extent this request seeks records protected from discovery or introduction into evidence in any civil or administration action under §§395.0191(8), 395.0193(8), and/or 766.101(5), Florida Statutes (2019), UTECH objects. Records contained within this Defendant’s credentialing files are privileged. See §§ 395.0191(8), 395.0193(8), and 766.101(5), Fla. Stat.; see also Columbia/JFK Med. Ctr. Edward R. Blumberg, Esq. October 1, 2020 Page 5 of 9 y. Sanguonchitte, 920 So. 2d 711 (Fla. 4th DCA 2006) (concluding that documents “used to determine what surgeries Dr. Farkas could perform and whether his performance warranted continued privileges” were privileged under sections 395.0191(8) and 766.101(5), Florida Statutes); accord Boca Raton Comm. Hosp. v. Jones, 584 So. 2d 220 (Fla. 4th DCA 1991) (same). These privileges have remained intact following the adoption of Amendment 7. See, e.g. See, 18 So. 3d at 676; Shahbas, 960 So. 2d at 820; Baptist Hosp. of Miami, Inc. v. Garcia, 994 So. 2d 390, 393, n.4 (Fla. 3d DCA 2008) (finding that Amendment 7 does not require a health care facility to disclose the contents of its credentialing files, but only requires disclosure of medical reports of adverse medical incidents contained in credentialing files); Marcus v. University Hosp. and Med. Ctr., et al., Case No.: 05-08138 (02) (Fla. 17th Cir. Ct. Oct. 2, 2009) (holding that Amendment 7 does not permit the discovery of a physician’s credentialing files); and McKoy v. Columbia Hosp. Corp. of 8. Broward, Wb/a Westside Reg’! Med. Ctr., Case No.: CACE 10045900 12 (Fla. 17th Cir. Ct. June 19, 2012) (holding that a plaintiff may not obtain production from hospital of records contained in a physician’s credentialing file). A copy of any and all statements taken of the Plaintiffs herein, by you, your agents, servants, insurance representatives, or attorneys. RESPONSE: None. Copy of any and all records relating to any adverse medical incident concerning the care and treatment rendered to Plaintiff DEBORAH COOPER BURG. RESPONSE: Objection: This Defendant objects to this request to the extent it seeks records that are protected from discovery or introduction into evidence in any civil or administrative action under Florida Statutes §§ 395.0191(8), 395.0193(8), 395.0197, and 766.101(5). To the extent that Plaintiffs rely on Article X, Section 25 of the Florida Constitution (commonly known as “Amendment 7”) for the production of privileged records and information in response to the requests, this Defendant objects. Amendment 7’s scope has been interpreted to only allow for the production of records relating to a specific event involving a specific patient that caused or could have caused injury or death. W. Fla. Reg’! Med. Ctr.v. See, 18 So. 3d 676 (Fla. 1‘ DCA 2009), aff'd, 79 So. 3d 1 (Fla. Jan 12, 2012); and Morton Plant Hosp. Ass’n, Inc. v. Shahbas, 960 So.2d 820 (Fla. 2d DCA 2007). Privileged information responsive to the Request that does not fall within the definition of Amendment 7 will not be produced. Finally, this Defendant objects to the extent that this request seeks records that are confidential and privileged Patient Safety Work Product (“PSWP”) pursuant to the Patient Safety and Quality Improvement Act of 2005 (the “PSQIA”), 42 U.S.C. § 299b-22, et seq. and its attendant regulations. Amendment 7 searches have to be undertaken by human beings, and those human beings need to know what specifically Edward R. Blumberg, Esq. October 1, 2020 Page 6 of 9 to look for, and where. If there is something specific that claimant wants this Defendant to search for, please indicate. This Defendant would be entitled to prepayment of the cost of searching for, reviewing, redacting, and producing responsive records pursuant to section 381.028(7), Florida Statutes, as well as preparing a privilege log for any documents that may be subject to attorney-client privilege, attorney opinion work product protection, or the privileges and protections of the Patient Safety and Quality Improvement Act of 2005, 42 U.S.C. § 299b-21 et seq., and related regulations, 42 C.F.R. 3.10 et seq. (hereinafter collectively “PSQIA”). Subject to the foregoing objections, none. Copies of any and all records relating to any adverse medical incidents involving defendant ABIGAIL UTECH alleging same or similar facts relating to the same or similar subject matter as this lawsuit within the last five (5) years, redacting identifying information of any patients other than Plaintiff DEBORAH COOPER BURG, from the records provided. RESPONSE: Objection: This request is overbroad, unduly burdensome, not reasonably limited in time or scope, and not reasonably calculated to lead to the discovery of admissible evidence. Specifically, the phrases “same or similar facts” and “same or similar subject matter” are overbroad and ambiguous. This Defendant objects to this request to the extent it seeks records that are protected from discovery or introduction into evidence in any civil or administrative action under Florida Statutes §§ 395.0191(8), 395.0193(8), 395.0197, and 766.101(5). To the extent that Plaintiffs rely on Article X, Section 25 of the Florida Constitution (commonly known as “Amendment 7”) for the production of privileged records and information in response to the requests, this Defendant objects. Amendment 7’s scope has been interpreted to only allow for the production of records relating to a specific event involving a specific patient that caused or could have caused injury or death. W. Fla. Reg’! Med. Ctr.v. See, 18 So. 3d 676 (Fla. 1‘ DCA 2009), aff'd, 79 So. 3d 1 (Fla. Jan 12, 2012); and Morton Plant Hosp. Ass’n, Inc. v. Shahbas, 960 So.2d 820 (Fla. 2d DCA 2007). Privileged information responsive to the Request that does not fall within the definition of Amendment 7 will not be produced. Finally, this Defendant objects to the extent that this request seeks records that are confidential and privileged Patient Safety Work Product (“PSWP”) pursuant to the Patient Safety and Quality Improvement Act of 2005 (the “PSQIA”), 42 U.S.C. § 299b-22, et seq. and its attendant regulations. Amendment 7 searches have to be undertaken by human beings, and those human beings need to know what specifically to look for, and where. If there is something specific that claimant wants this Defendant to search for, please indicate. This Defendant would be entitled to prepayment of the cost of searching for, reviewing, redacting, and producing responsive records pursuant to section 381.028(7), Florida Statutes, as well as preparing a privilege log for any documents that may be subject to attorney-client privilege, attorney opinion work product protection, or the privileges and protections of the Patient Safety and Quality Improvement Act of 2005, 42 U.S.C. § 299b-21 et Edward R. Blumberg, Esq. October 1, 2020 Page 7 of 9 seq., and related regulations, 42 C.F.R. 3.10 et seq. (hereinafter collectively “PSQIA”). Subject to the foregoing objections, none. A complete copy of your Medical Malpractice Insurance policy and excess medical malpractice insurance policy(ies) including, but not limited to, coverage information, specifically, a copy of the malpractice insurance policy, which provides coverage for the subject claim. RESPONSE: This request is more properly addressed to a Hospital. Please refer to responses by any Hospital Defendants. 10. Any and all evidence of communications, written or otherwise, between you and Plaintiff DEBORAH COOPER BURG’S other treating health care providers in regard to her care and treatment. RESPONSE: Objection: This request is overbroad, unduly burdensome, not reasonably limited in time or scope, and not reasonably calculated to lead to the discovery of admissible evidence. Specifically, the “otherwise” is overbroad and ambiguous. This Defendant further objects to this request to the extent it seeks records that are protected from discovery or introduction into evidence in any civil or administrative action under Florida Statutes §§ 395.0191(8), 395.0193(8), 395.0197, and 766.101(5). To the extent that Plaintiffs rely on Article X, Section 25 of the Florida Constitution (commonly known as “Amendment 7”) for the production of privileged records and information in response to the requests, this Defendant objects. Amendment 7’s scope has been interpreted to only allow for the production of records relating to a specific event involving a specific patient that caused or could have caused injury or death. W. Fla. Reg’! Med. Ctr.v. See, 18 So. 3d 676 (Fla. 1‘ DCA 2009), aff'd, 79 So. 3d 1 (Fla. Jan 12, 2012); and Morton Plant Hosp. Ass’n, Inc. v. Shahbas, 960 So.2d 820 (Fla. 2d DCA 2007). Privileged information responsive to the Request that does not fall within the definition of Amendment 7 will not be produced. Finally, this Defendant objects to the extent that this request seeks records that are confidential and privileged Patient Safety Work Product (“PSWP”) pursuant to the Patient Safety and Quality Improvement Act of 2005 (the “PSQIA”), 42 U.S.C. § 299b-22, et seq. and its attendant regulations. Amendment 7 searches have to be undertaken by human beings, and those human beings need to know what specifically to look for, and where. If there is something specific that claimant wants this Defendant to search for, please indicate. This Defendant would be entitled to prepayment of the cost of searching for, reviewing, redacting, and producing responsive records pursuant to section 381.028(7), Florida Statutes, as well as preparing a privilege log for any documents that may be subject to attorney-client privilege, attorney opinion work product protection, or the privileges and protections of the Patient Safety and Quality Improvement Act of 2005, 42 U.S.C. § 299b-21 et Edward R. Blumberg, Esq. October 1, 2020 Page 8 of 9 seq., and related regulations, 42 C.F.R. 3.10 et seq. (hereinafter collectively “PSQIA”). Subject to the foregoing objections, none. This request is more properly addressed to a Hospital. Please refer to responses by any Hospital Defendants. 11 All audit logs showing all individuals who accessed Plaintiff DEBORAH COOPER BURG’S electronic medical record including names, access numbers, portions of the chart accessed, and what actions were taken and at what times, all with specificity. RESPONSE: Objection: This request is overbroad, unduly burdensome, not reasonably limited in time or scope, and not reasonably calculated to lead to the discovery of admissible evidence. Specifically, the “otherwise” is overbroad and ambiguous. This Defendant further objects to this request to the extent it seeks records that are protected from discovery or introduction into evidence in any civil or administrative action under Florida Statutes §§ 395.0191(8), 395.0193(8), 395.0197, and 766.101(5). To the extent that Plaintiffs rely on Article X, Section 25 of the Florida Constitution (commonly known as “Amendment 7”) for the production of privileged records and information in response to the requests, this Defendant objects. Amendment 7’s scope has been interpreted to only allow for the production of records relating to a specific event involving a specific patient that caused or could have caused injury or death. W. Fla. Reg’! Med. Ctr.v. See, 18 So. 3d 676 (Fla. Ist DCA 2009), aff?d, 79 So. 3d 1 (Fla. Jan 12, 2012); and Morton Plant Hosp. Ass’n, Inc. v. Shahbas, 960 So.2d 820 (Fla. 2d DCA 2007). Privileged information responsive to the Request that does not fall within the definition of Amendment 7 will not be produced. Finally, this Defendant objects to the extent that this request seeks records that are confidential and privileged Patient Safety Work Product (“PSWP”) pursuant to the Patient Safety and Quality Improvement Act of 2005 (the “PSQIA”), 42 U.S.C. § 299b-22, et seq. and its attendant regulations. Amendment 7 searches have to be undertaken by human beings, and those human beings need to know what specifically to look for, and where. If there is something specific that claimant wants this Defendant to search for, please indicate. This Defendant would be entitled to prepayment of the cost of searching for, reviewing, redacting, and producing responsive records pursuant to section 381.028(7), Florida Statutes, as well as preparing a privilege log for any documents that may be subject to attorney-client privilege, attorney opinion work product protection, or the privileges and protections of the Patient Safety and Quality Improvement Act of 2005, 42 U.S.C. § 299b-21 et seq., and related regulations, 42 C.F.R. 3.10 et seq. (hereinafter collectively “PSQIA”). Subject to the foregoing objections, none. This request is more properly addressed to a Hospital. Please refer to responses by any Hospital Defendants. 12. All audit trails showing all individuals who accessed Plaintiff DEBORAH COOPER BURG’s electronic medical record including names, access numbers, portions of the chart accessed, and what actions were taken and at what times, all with specificity. Edward R. Blumberg, Esq. October 1, 2020 Page 9 of 9 RESPONSE: Objection. This request is overbroad, unduly burdensome, not reasonably limited in time or scope, and not reasonably calculated to lead to the discovery of admissible evidence. See response to #11 above. 13 Private health information (PHI) disclosure log concerning Plaintiff DEBORAH COOPER BURG’S medical records. RESPONSE: Objection. See response to #11 above. This request is overbroad, unduly burdensome, not relevant, not reasonably limited in time or scope, and not reasonably calculated to lead to the discovery of admissible evidence. 14. All meta-data concerning Plaintiff DEBORAH COOPER BURG’S electronic medical including, but not limited to, all addendums, revision histories, corrections, deletions and patient amendments, reasons for changes, date and time stamps, tracking changes and modifications. RESPONSE: Objection. See response to #11 above. This request is overbroad, unduly burdensome, not relevant, not reasonably limited in time or scope, and not reasonably calculated to lead to the discovery of admissible evidence. 15 An index of Defendant FAWCETT MEMORIAL HOSPITAL, INC. d/b/a FAWCETT MEMORIAL HOSPITAL’S policies and procedures in effect at the time you rendered care and treatment to Plaintiff DEBORAH COOPER BURG, At as well as any policies and procedures regarding care and treatment of a bariatric patient, including but not limited to follow up of a post bariatric surgery patient and potential complications. RESPONSE: Objection, the request is vague, ambiguous and over broad. Further, the request is not reasonably limited in time or scope and is not reasonably calculated to lead to the discovery of admissible evidence based upon the allegations of Plaintiff's Complaint. 16. A copy of the manual and/or complete policies and procedures in regard to the care and treatment of bariatric patients at Defendant FAWCETT MEMORIAL HOSPITAL, INC. d/b/a FAWCETT MEMORIAL HOSPITAL in compliance with the metabolic and bariatric surgery accreditation and quality improvement program. RESPONSE: See response to #15 above. 17. A copy of your Curriculum Vita. RESPONSE: See attached.