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 # 119385369 E-Filed 01/11/2021 12:23:04 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, LIFE CARE CENTERS OF AMERICA, INC.,
ANSWER AND AFFIRMATIVE DEFENSES TO
PLAINTIFFS’ AMENDED COMPLAINT
Defendant, LIFE CARE CENTERS OF AMERICA, INC., by and through its
undersigned counsel, hereby files this Answer and Affirmative Defenses to Plaintiffs’
Amended Complaint, as follows:
COUNTS I THROUGH LIV
1 Paragraphs 1 through 687 of Plaintiff’ Amended Complaint are not directed to
this Defendant. To the extent these allegations relate to this Defendant and/or require a
response, the allegations are denied, and Defendant demands strict proof thereof.
COUNT LV-CLAIM ON BEHALF OF DEBORAH COOPER BURG AGAINST
DEFENDANT, LIFE CARE CENTERS OF AMERICA, INC., PURSUANT TO
FLORIDA STATUTE CHAPTER 400
688. Admit that the amount claimed is within the jurisdictional limit but denied as
to entitlement.
689. This Defendant is without knowledge and therefore denies the allegations of
paragraph 689 of Plaintiffs’ Complaint and demands strict proof thereof.
690. This Defendant is without knowledge and therefore denies the allegations of
paragraph 690 of Plaintiffs’ Complaint and demands strict proof thereof.
691. This Defendant denies the allegations of paragraph 691 of Plaintiffs’
Complaint and demands strict proof thereof.
692. This Defendant denies the allegations of paragraph 692 of Plaintiffs’
Complaint and demands strict proof thereof.
693. This Defendant denies the allegations of paragraph 693 of Plaintiffs’
Complaint and demands strict proof thereof.
694. This Defendant denies the allegations of paragraph 694 of Plaintiffs’
Complaint and demands strict proof thereof.
695. This Defendant denies the allegations of paragraph 695 of Plaintiffs’
Complaint and demands strict proof thereof.
696. This Defendant denies the allegations of paragraph 696 of Plaintiffs’
Complaint and demands strict proof thereof.
697. This Defendant denies the allegations of paragraph 697 of Plaintiffs’
Complaint and demands strict proof thereof.
698. This Defendant denies the allegations of paragraph 698 of Plaintiffs’
Complaint and demands strict proof thereof.
699. This Defendant denies the allegations of paragraph 699 of Plaintiffs’
Complaint and demands strict proof thereof.
700. This Defendant denies the allegations of paragraph 700 of Plaintiffs’
Complaint and demands strict proof thereof.
COUNT LVI-CLAIM OF NICOLE BURG AGAINST DEFENDANT, LIFE CARE
CENTERS OF AMERICA, INC. PURSUANT TO
FLORIDA STATUTE CHAPTER 400
701-712. See Motion to Dismiss filed herewith.
COUNT LVIU-CLAIM OF RICKY BURG AGAINST DEFENDANT
LIFE CARE CENTERS OF AMERICA, INC. PURSUANT TO
FLORIDA STATUTE CHAPTER 400
713-724. See Motion to Dismiss filed herewith.
COUNT LIX through COUNT LXVI
Paragraphs 725 through 838 of Plaintiffs’ Amended Complaint are not directed to this
Defendant. To the extent these allegations relate to this Defendant and/or require a response,
the allegations are denied, and 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 asserts 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 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 a Seventh 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.
Defendant reserves the right to amend or supplement these Affirmative Defenses as
discovery reveals additional defenses, both in law and in fact.
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 January 11, 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
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
CO-COUNSEL FOR PLAINTIFFS
John M. Steward, Esquire
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
NDa' @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.
1N. 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
Richard M. Sebek, Esquire RSebek@BankerLopez.com
Banker Lopez Gassler P.A.
501 E. Kennedy Boulevard, Suite 1700
Tampa, FL 33602
COUNSEL FOR AHSAN KAMAL, M.D. AND HARBOR MEDICAL GROUP, LLC
Summer Harcup, Esquire
Wicker, Smith, O'Hara, McCoy & Ford, P.A.
1819 Main Street, Suite 910
Sarasota, FL 34236
SHarcup@WickerSmith.com
mrowjohn@wickersmith.com
SARctpleadings@wickersmith.com
COUNSEL FOR DR. SOVI JOSEPH
Jeffrey Goodis, Esquire
Brett Gliosca, Esquire
La Cava Jacobson
150 2nd Avenue North, Suite 1500
St. Petersburg, FL 33701
Stp-pleadings@liglegal.com
JGoodis@LaCavaJacobson.com
Cralston@lacavaJacobson.com
COUNSEL FOR FAWCETT MEMORIAL HOSPITAL & ABIGAIL UTECH MD
Frances G. Prockop, Esq.
Bush, Graaziano, Rice & Platter PA
100 So. Ahsley Drive, #1400
Tampa, FL 33602
serve@berplaw.com
sseals@berplaw.com
COUNSEL FOR SUE BRUNER
R. Ryan Rivas, Esq.
Hall Booth Smith, P.C.
2202 North Westshore Boulevard, Suite 200
Tampa, Florida 33607
Office: 813.329.3880 ext. 4102
Direct: 813.329.3882
Mobile: 813.323.4979
rrivas@hallboothsmith.com
TE asi Ea Oot pain Com
&:\18-6131- burg\pleadings\Icca ans and affirm def to amd cpl.docx
Preview
Filing # 119385369 E-Filed 01/11/2021 12:23:04 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, LIFE CARE CENTERS OF AMERICA, INC., ANSWER AND AFFIRMATIVE DEFENSES TO PLAINTIFFS’ AMENDED COMPLAINT Defendant, LIFE CARE CENTERS OF AMERICA, INC., by and through its undersigned counsel, hereby files this Answer and Affirmative Defenses to Plaintiffs’ Amended Complaint, as follows: COUNTS I THROUGH LIV 1 Paragraphs 1 through 687 of Plaintiff’ Amended Complaint are not directed to this Defendant. To the extent these allegations relate to this Defendant and/or require a response, the allegations are denied, and Defendant demands strict proof thereof. COUNT LV-CLAIM ON BEHALF OF DEBORAH COOPER BURG AGAINST DEFENDANT, LIFE CARE CENTERS OF AMERICA, INC., PURSUANT TO FLORIDA STATUTE CHAPTER 400 688. Admit that the amount claimed is within the jurisdictional limit but denied as to entitlement. 689. This Defendant is without knowledge and therefore denies the allegations of paragraph 689 of Plaintiffs’ Complaint and demands strict proof thereof. 690. This Defendant is without knowledge and therefore denies the allegations of paragraph 690 of Plaintiffs’ Complaint and demands strict proof thereof. 691. This Defendant denies the allegations of paragraph 691 of Plaintiffs’ Complaint and demands strict proof thereof. 692. This Defendant denies the allegations of paragraph 692 of Plaintiffs’ Complaint and demands strict proof thereof. 693. This Defendant denies the allegations of paragraph 693 of Plaintiffs’ Complaint and demands strict proof thereof. 694. This Defendant denies the allegations of paragraph 694 of Plaintiffs’ Complaint and demands strict proof thereof. 695. This Defendant denies the allegations of paragraph 695 of Plaintiffs’ Complaint and demands strict proof thereof. 696. This Defendant denies the allegations of paragraph 696 of Plaintiffs’ Complaint and demands strict proof thereof. 697. This Defendant denies the allegations of paragraph 697 of Plaintiffs’ Complaint and demands strict proof thereof. 698. This Defendant denies the allegations of paragraph 698 of Plaintiffs’ Complaint and demands strict proof thereof. 699. This Defendant denies the allegations of paragraph 699 of Plaintiffs’ Complaint and demands strict proof thereof. 700. This Defendant denies the allegations of paragraph 700 of Plaintiffs’ Complaint and demands strict proof thereof. COUNT LVI-CLAIM OF NICOLE BURG AGAINST DEFENDANT, LIFE CARE CENTERS OF AMERICA, INC. PURSUANT TO FLORIDA STATUTE CHAPTER 400 701-712. See Motion to Dismiss filed herewith. COUNT LVIU-CLAIM OF RICKY BURG AGAINST DEFENDANT LIFE CARE CENTERS OF AMERICA, INC. PURSUANT TO FLORIDA STATUTE CHAPTER 400 713-724. See Motion to Dismiss filed herewith. COUNT LIX through COUNT LXVI Paragraphs 725 through 838 of Plaintiffs’ Amended Complaint are not directed to this Defendant. To the extent these allegations relate to this Defendant and/or require a response, the allegations are denied, and 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 asserts 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 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 a Seventh 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. Defendant reserves the right to amend or supplement these Affirmative Defenses as discovery reveals additional defenses, both in law and in fact. 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 January 11, 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 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 CO-COUNSEL FOR PLAINTIFFS John M. Steward, Esquire 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 NDa' @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. 1N. 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 Richard M. Sebek, Esquire RSebek@BankerLopez.com Banker Lopez Gassler P.A. 501 E. Kennedy Boulevard, Suite 1700 Tampa, FL 33602 COUNSEL FOR AHSAN KAMAL, M.D. AND HARBOR MEDICAL GROUP, LLC Summer Harcup, Esquire Wicker, Smith, O'Hara, McCoy & Ford, P.A. 1819 Main Street, Suite 910 Sarasota, FL 34236 SHarcup@WickerSmith.com mrowjohn@wickersmith.com SARctpleadings@wickersmith.com COUNSEL FOR DR. SOVI JOSEPH Jeffrey Goodis, Esquire Brett Gliosca, Esquire La Cava Jacobson 150 2nd Avenue North, Suite 1500 St. Petersburg, FL 33701 Stp-pleadings@liglegal.com JGoodis@LaCavaJacobson.com Cralston@lacavaJacobson.com COUNSEL FOR FAWCETT MEMORIAL HOSPITAL & ABIGAIL UTECH MD Frances G. Prockop, Esq. Bush, Graaziano, Rice & Platter PA 100 So. Ahsley Drive, #1400 Tampa, FL 33602 serve@berplaw.com sseals@berplaw.com COUNSEL FOR SUE BRUNER R. Ryan Rivas, Esq. Hall Booth Smith, P.C. 2202 North Westshore Boulevard, Suite 200 Tampa, Florida 33607 Office: 813.329.3880 ext. 4102 Direct: 813.329.3882 Mobile: 813.323.4979 rrivas@hallboothsmith.com TE asi Ea Oot pain Com &:\18-6131- burg\pleadings\Icca ans and affirm def to amd cpl.docx