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Filing # 53644479 E-Filed 03/13/2017 02:40:58 PM
1055.0624 IN THE CIRCUIT COURT OF THE
NINTH JUDICIAL CIRCUIT, IN AND
FOR OSCEOLA COUNTY, FLORIDA
CASE NO.: 2017-CA-000174 MP
ASHLEY CALZADA and JUAN L. CALZADA,
Individually and on behalf of JARIEL LUIS
CALZADA OYUELA, a minor,
Plaintiffs,
vs.
OSCEOLA REGIONAL HOSPITAL d/b/a
OSCEOLA REGIONAL MEDICAL CENTER,
ERIC FRENDAK, CRNA, OSCEOLA
OB/GYN, MICHAEL R. DENARDIS, D.O.,
OB HOSPITALIST GROUP, LLC, EZER A.
OJEDA, M.D., OSCEOLA ANESTHESIA
ASSOCIATES, PL., RODNEY DELVALLE, M.D.,
JMJ FAMILY PRACTICE, INC., JOSE RAMON
FERNANDEZ, M.D., MID-FLORIDA WOMEN’S
CENTER, INC., BHUPENDRAKUMAR M. PATEL, M.D.,
PEDIATRIX MEDICAL GROUP, INC, PEDIATRIX
MEDICAL GROUP OF FLORIDA, INC.,
JOSE |. GIERBOLINI, M.D., JUAN LONGHI, M.D.
HCA, INC., HCA HEALTH SERVICES OF FLORIDA, INC.
AND HCA HEALTHCARE SERVICES — FLORIDA, INC.
Defendants
/
DEFENDANT, OSCEOLA REGIONAL HOSPITAL, INC d/ba/ OSCEOLA REGIONAL MEDICAL
CENTER’S MOTION TO DISMISS COMPLAINT OR IN THE ALTERNATIVE, MOTION FOR
MORE DEFINITE STATEMENT AND/OR MOTION TO STRIKE WITH INCORPORATED
MEMORANDUM OF LAW
COMES NOW, the Defendant, OSCEOLA REGIONAL HOSPITAL, INC., d/b/a OSCEOLA
REGIONAL MEDICAL CENTER (hereinafter “THE HOSPITAL”), by and through its
undersigned attorneys, and files its Motion to Dismiss Amended Complaint or In the
Alternative, Motion to Strike and/or Motion for More Definite Statement pursuant to
Rules 1.110 and 1.140 of the Florida Rules of Civil Procedure, and in support thereof,
states as follows:
1, BACKGROUND AND PROCEDURAL HISTORY
1 This is an action for alleged medical malpractice.
2 Plaintiffs’ Complaint names twenty (20) Defendants: THE HOSPITAL, ERIC
FRENDAK, CRNA, OSCEOLA OB/GYN, MICHAEL R. DENARDIS, D.O., OB HOSPITALIST
GROUP, LLC, EZER A. OJEDA, M.D., OSCEOLA ANESTHESIA ASSOCIATES, PL., RODNEY
DELVALLE, M.D., JMJ FAMILY PRACTICE, INC., JOSE RAMON FERNANDEZ, M.D., MID-
FLORIDA WOMEN’S CENTER, INC., BHUPENDRAKUMAR M. PATEL, M.D., PEDIATRIX
MEDICAL GROUP, INC, PEDIATRIX MEDICAL GROUP OF FLORIDA, INC., JOSE |. GIERBOLINI,
M.D., JUAN LONGHI, M.D. HCA, INC., HCA HEALTH SERVICES OF FLORIDA, INC.AND HCA
HEALTHCARE SERVICES — FLORIDA, INC.
3 The Complaint includes the following counts:
Count |: Claim against THE HOSPITAL
Count Il: Vicarious Liability claim against THE HOSPITAL
Count Ill Claim against Osceola OB/GYBN and Michael Denardis, D.O
Count IV Claim against OB Hospitalist Group, LLC, and Ezer A. Ojeda,
M.D.
Count V: Claim against Osceola Anesthesia Associates, PL, Rodney
DelValle, M.D. and Erik Frendak, CRNA
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Count VI: Claims against Mid-Florida Woman’s Center, Inc. and
Bhupendrakumar M. Patel, M.D.
Count VII: Claims against JMJ Family Practice, Inc. and Jose Ramon
Fernandez, M.D. (Count is incorrectly numbered in Complaint
as “V”)
Count VIII: Claims against Pediatrix Medical Group, Inc., Pediatrix
Medical Group of Florida, Inc., Mednax, Inc. Jose |. Gierbolini,
M.D. and John Longhi, M.D. (Count is incorrectly numbered in
Complaint as “VII”)
Count IX: Vicarious Liability claim against HCA, Inc., HCA Health
Services, of Florida, Inc., and HCA Healthcare Services-Florida,
Inc., as a parent corporation of Osceola Regional Medical
Center
I. MOTION To Dismiss PLAINTIFF’S COMPLAINT AND SUPPORTING MIEMORANDUM OF LAW
Standard of Review for a Motion to Dismiss
This court, in reviewing a Motion to Dismiss, considers the allegations of the
complaint as true and all reasonable inferences to be drawn therefrom are viewed in
favor of the Plaintiff. Ralph v. City of Daytona Beach, 471 So. 2d 1, 2 (Fla. 1983). The Court
determines as a matter of law whether a Complaint is sufficient to state a cause of action.
See Brewer v. Clerk of the Circuit Court, Gadsden County, 720 So.2d 602, 603 (Fla. 1° DCA
1998); Siegle v. Progressive Consumers Ins. Co., 819 So.2d 732, 734 (Fla. 2002). However,
the Court is not required to accept as true those allegations that are inconsistent with the
law. Brown v. First Federal Savings & Loan Association of New Smyrna, 160 So.2d 556 (Fla.
1st DCA 1964). In undertaking this review, the Complaint must be construed against the
Plaintiff. Matthews v. Matthews, 122 So.2d 571, 572 (Fla. 2d DCA 1960).
Fact Pleading Requirements
Additionally, Florida is not a notice pleading jurisdiction, and “it is not enough
merely to advise the defendant of the theory of the action.” See Cunningham v. Fla. Dept.
oO f Children & Families, 782 So.2d 913, 919 (Fla. 1st DCA 2001). Under Florida law, “it is
a fundamental rule that the claims and ultimate facts supporting same must be alleged
[in the pleadings]. The reason for the Rule is to appraise [sic] the other party of the
nature of the contentions that he will be called upon to meet, and to enable the court to
decide whether same are sufficient.” George v. Beach Club Villas Condominium Assoc.
833 So.2d 816, 820 (Fla. 3d DCA 2002), citing Brown v. Gardens by the Sea South Condo
Assoc., 424 So.2d 181, 183 (Fla. 4th DCA 1983). “Florida’s pleading rule forces counsel
to recognize the elements of their cause of action and determine whether they have or
can develop the facts necessary to support it, which avoids a great deal of wasted expense
to the litigants and unnecessary judicial effort.” Horowitz v. Laske, 855 So.2d 169, 173
(Fla. Sth DCA 2003). Alongside a statement of grounds for jurisdiction and a demand for
relief, each count in a Plaintiff's Complaint must contain a short and plain statement of
the ultimate facts which establish each essential element and which show that the
Plaintiff is entitled to the relief requested. FLA.R.CIV.P. 1.110(b). “The Complaint must
set out the elements and the facts that support them so that the court and the defendant
can clearly determine what is being alleged.” Barrett v. City of Margate, 743 So.2d 1160,
1162 (Fla. 4th DCA 1999). “It is insufficient to plead opinions, theories, legal conclusions,
or argument.” Id. See Also Price v. Morgan, 436 So.2d 1116, 1121-22 (Fla. Sth DCA 1983)
(dismissing complaint and noting that “a pleading is insufficient if it contains merely
conclusions as opposed to ultimate facts supporting each element of the cause of
action”). For instance, in a claim for liability stemming from a defective product, simply
alleging a product is defective is not sufficient. Rice v. Walker, 359 So.2d 891, 892 (Fla. 3d
DCA 1978).
A The Complaint fails to state a cause of action for medical negligence
against THE HOSPITAL
The Fourth District Court of Appeal, in Barrett v. City of Margate, 743 So.2d
1160, 1162 (Fla. 4th DCA 1999) held that a “Complaint must set out the
elements and the facts that support them so that the court and the
defendant can clearly determine what is being alleged.” Further, the Court
relied upon Messana v. Maule Industries, 50 So.2d 874, 876 (Fla. 1951), that
a “complainant must plead a factual matter sufficient to apprise his
adversary of what [it] is called upon to answer so that the court may, upon
proper challenge, determine its legal effect.” The Court is not required to
accept as true those allegations that are inconsistent with the law. Brown v.
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First Federal Savings & Loan Association of New Smyrna, 160 So.2d 556 (Fla.
1st DCA 1964). In undertaking this review, the Complaint must be construed
against the Plaintiff. Matthews v. Matthews, 122 So.2d 571, 572 (Fla. 2d
DCA 1960).In addition, a court should require the amendment of a vague,
indefinite or ambiguous complaint to enable the responding party to
“intelligently discern the issues to be litigated and to properly frame [its]
answer or reply.” Conklin v. Boyd, 189 So.2d 401, 403-404 (Fla. Ist DCA
1966).
1 Here, the Complaint intermingles agency, vicarious liability
and apparent agency claims in Count | against the HOSPITAL such that it is
impossible to respond to that count or understand what exactly the claim
is. Plaintiff lumps together claims against the HOSPITAL in vague catch-all
allegations that make it unclear
for whom the HOSPITAL is allegedly liability,
or why. Moreover, Plaintiff fails to allege the necessary elements of any
vicarious liability claim.
The Complaint then, does not meet the strictures of FRCP 1.110, and
should be dismissed accordingly.
2. Counts | and II should also be dismissed because Plaintiffs
have improperly combined in a single count claims or theories of direct
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negligence with claims for vicarious liability for the care of unidentified
individuals. See generally Pratus v. City of Naples, 807 So. 2d 795 (Fla. 2nd
DCA 2002) (stating “each claim should be pleaded in a separate count
instead of lumping all defendants together”): Greene v. Seminole Elec. Co-
op., Inc., 701 So. 2d 646 (Fla. Sth DCA 1997) (stating, “On remand Greene
should be allowed to amend his Complaint to state in separate counts his
causes of action for discrimination, hostile work environment, and
retaliation. See Fla. R. Civ. P. 1.110(f)”); Dubus v. McArthur, 682 So. 2d 1246
(Fla. Ist DCA 1996) (concluding, “...the appellants' Amended Complaint
improperly attempts to state in a single count separate causes of action for
vicarious liability and for negligent entrustment. Rule 1.110(f), Fla. R. Civ.
P.”); General Asphalt Co., Inc. v. Bob's Barricades, Inc. 22 So. 3d 697 (Fla. 3rd
DCA 2009) (stating, "Florida law is clear that in order to pursue a vicarious
liability claim, the claimant must specifically plead it as a separate cause of
action. See Goldschmidt _v. Holman, 571 So. 2d 422 (Fla. 1990)”).
Accordingly, Plaintiffs should be required to plead their claims against the
HOSPITAL in separate counts.
3 Count | should be dismissed because Plaintiff has failed to
plead the elements of and any ultimate facts supporting a claim. See
generally Horowitz v. Laske, 855 So. 2d 169, 172-73 (Fla. Sth DCA 2003)
(stating “Florida is a fact-pleading jurisdiction,” and “Florida's pleading rule
forces counsel to recognize the elements of their cause of action and
determine whether they have or can develop the facts necessary to support
it, which avoids a great deal of wasted expense to the litigants and
unnecessary judicial effort”); Deloitte & Touche v. Gencor Industries, Inc.
929 So. 2d 678 (Fla. Sth DCA 2006) (commenting that if Plaintiff
had properly
plead the elements of negligent misrepresentation, then the 5th DCA’s task
would have been considerably simplified, and stating, “As we wearily
continue to point out, Florida is a fact-pleading jurisdiction, not a notice-
pleading jurisdiction”).
In this case, Plaintiffs have failed to plead the legal elements of
respondeat superior vicarious liability in Count |. See Iglesia Cristiana La
Casa Del Senor, Inc. v. L.M. 783 So. 2d 353 (Fla. 3rd DCA 2001) (stating
“Under the doctrine of respondeat superior, an employer cannot be held
liable for the tortious or criminal acts of an employee, unless the acts were
committed during the course of the employment and to further a purpose or
interest, however excessive or misguided, of the employer’).
Similarly, in this case Plaintiffs have failed to plead the legal elements
of agency vicarious liability in Count |. See Villazon v. Prudential Health Plan
Inc., 843 So.2d 842, FN 10 (Fla. 2003) (stating “Essential to the existence of
an actual agency relationship is (1) acknowledgment by the principal that
the agent will act for him (2) the agents acceptance of the undertaking, and
(3) control by the principal over the actions of the agent”); Ilgen v.
Henderson Properties, Inc., 683 So. 2d 513, 515 (Fla. 2nd DCA 1996) (Citing
the above elements of agency and dismissing agency claim in complaint that
failed to adequately allege the elements of agency); Fojtasek_v. NCL
Bahamas) Ltd., 613 F. Supp. 2d 1351, 1357 (S.D. Fla. 2009) (Citing the above
elements of agency and dismissing agency claim because the complaint only
listed the conclusory allegation of agency).
Plaintiffs have failed to plead the legal elements of apparent agency
in Count |. See Ginsberg v. Northwest Medical Center, Inc. 14 So.3d 1250
(Fla. 4th DCA 2009) (stating that an apparent agency relationship exists if
three elements are present: (1) a representation by the purported principal,
(2) a reliance on that representation by a third party, and (3) a change in
position by the third party in reliance on the representation); Mumford v.
Carnival Corp, 7 F. Supp. 3d 1243, 1251 (S.D. Fla. 2014) (dismissing apparent
agency claim because Plaintiffs have failed to plead ultimate facts showing
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reliance).
4. Counts | and II should further be dismissed because Plaintiffs
mix the separate and distinct physician and nursing standards of care.
Physicians and nurses (RNs) are subject to different standards of care. See
generally, §766.102(1); §766.102(6); §464.003(20); §766.103(3), Florida
Statutes. The different standards of care between nurses and physicians
means Plaintiffs should be required to plead liability for physician and
nursing care in separate counts.
Plaintiffs’ claims for the actions of CRNA Frendak and Dr. DeValle should
be dismissed.
In each of the two counts plead against THE HOSPITAL, Plaintiffs include
allegations that THE HOSPTIAL is responsible for the alleged negligence of CRNA
Frendak, and Dr. DeValle. (the “Anesthesiologists”)
Plaintiffs are barred from bringing any claim related to this anesthesia care
at this juncture, as they did not properly raise such allegations during the presuit
process. At no time did the Plaintiffs present a claim to THE HOSPITAL for the
Anesthesiologists’ actions supported by the affidavit of a qualified expert
As such, THE HOSPITAL is entitled to the dismissal of any claim related to
the Anesthesiologists because the Plaintiffs failed to comply with the presuit
requirements set forth in Chapter 766. More specifically, the Plaintiffs failed to
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comply with the condition precedent set forth in § 766.203(2), Florida Statutes
(2015). To satisfy the statute, the Plaintiffs were required to conduct a
reasonable investigation corroborated by a written verified medial expert opinion
as defined by section 766.203(2), Florida Statutes, which states:
INVESTIGATION BY CLAIMANT— Prior to issuing notification of intent to
initiate medical negligence litigation pursuant to s. 766.106, the claimant
shall conduct an investigation to ascertain that there are reasonable
grounds to believe that:
(a) Any named defendant in the litigation was negligent in the care or
treatment of the claimant; and
(b) Such negligence resulted in injury to the claimant.
Corroboration of reasonable grounds to initiate medical negligence
litigation shall be provided by the claimant’s submission of a verified written
medical expert opinion from a medical expert as defined in § 766.202(6), at
the time the notice of intent to initiate litigation is mailed, which statement
shall corroborate reasonable grounds to support the claim of medical
negligence.
It is well-settled Florida law that compliance with Chapter 766 presuit
investigation and notice requirements are a condition precedent to the filing of a
medical negligence action. See Kukral v Mekras, 679 So. 2d 278, 285 (Fla. 1996);
Ingersol v. Hoffman, 589 So. 2d 223 (Fla. 1991). A reasonable investigation under
the statute includes “consultation with a medical expert” and “written
corroboration of negligence by a medical expert” in the form of a presuit affidavit.
Largie v. Gregorian, 913 So. 2d 635, 638 (Fla. 3d DCA 2005) (concluding that the
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expert’s corroborating affidavit failed to comply with the condition precedent by
failing to conduct a reasonable investigation as to the nurse and by failing to
provide any reasonable grounds to initiate a medical negligence action against
her.) The purpose of the presuit requirement is to allow a potential defendant to
investigate a claim and to encourage settlement prior to engaging in a costly and
time-consuming litigation. Davis v. Orlando Reg’! Med. Ctr., 654 So. 2d 664, 665
(Fla. 5th DCA 1995) (concluding that “the statute requires the expert corroborative
opinion to prevent the filing of baseless litigation.”). However, that process also
requires that a Plaintiff investigate his or her potential claims, and corroborate the
fact of that investigation with an expert affidavit supporting the conclusion that a
valid claim exists.
In University of Florida Bd. of Trustees v. Mann, 159 So. 3d 283 (Fla. 2d DCA
2015), Bonati v. Allen, 911 So. 2d 285 (Fla. 2d DCA 2005) and Largie, 913 So. 2d at
642, the Florida appellate courts have held that the presuit investigation and notice
requirements were not satisfied when an expert’s affidavit failed to mention a
specific doctor, or the negligent conduct in which he is alleged to have engaged.
In Mann, just as here, the plaintiff’s presuit affidavit specifically alleged that
the hospital was liable for the negligent care and treatment provided by several
physicians. 159 So. 3d at 283. There was no reference, in the affidavit(s), to the
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hospital’s nursing staff or nursing supervisor. Id. The plaintiff later included
claims against the nurses in the litigation, and the hospital sought to dismiss the
claims — as to the non-physician personnel — based on the insufficiency of the
plaintiff's presuit affidavit. ld. The trial court refused to dismiss the claim and
the appellate court reversed. Id. Because the plaintiff's presuit affidavit failed
to address any deficiencies in the care provided by the nursing staff or supervisors,
the court held that the affidavit was insufficient to corroborate reasonable grounds
to support a claim of medical malpractice as to the nurses and their supervisors
(and the required investigation thereof), and dismissed those allegations against
the hospital. Id.
Likewise in Bonati, the plaintiff’s presuit affidavit corroborated the medical
negligence claim against three other doctors but did not specifically mention Dr.
Bonati. 911 So. 2d at 286-87. Dr. Bonati moved to dismiss the claims against
him and the trial court refused to do so. Id. Again, the appellate court
disagreed, and held that the affidavit did not serve its purpose of corroborating
investigation into the belief that Dr. Bonati acted negligently toward the plaintiff
and the pre-suit investigation requirement was not satisfied. Id. at 288.
Similarly in Largie, the trial court granted summary judgment in favor of a
nurse based on the plaintiff's failure to comply with the presuit investigation
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requirements of Chapter 766 prior to the running of the statute of limitations.
913 So, 2d at 637. The plaintiffs served the doctor with a notice of intent and an
expert’s corroborating affidavit. Id. The trial court found, and the appellate
court agreed, that the affidavit was insufficient as to the nurse. ld. at 639. There,
as here, the corroborating affidavit failed to mention the nurse, by name or job
description, and it failed to make any reference to the standard of care applicable
to a certified registered nurse practitioner or to any deviation from the standard
of care. Likewise, the expert’s affidavit did not suggest or corroborate that any
investigation took place with regard to nursing negligence, or that any reasonable
grounds existed to support the plaintiffs’ claim of medical malpractice against her.
Id. at 641. The court reasoned that the expert’s opinion did not suggest, much
less demonstrate, that any expert concluded that there were reasonable grounds
to believe that the nurse was negligent in her care or treatment of the plaintiff,
justifying dismissal of the claims.
Here, the Plaintiffs served THE HOSPITAL with a Notice of Intent and
attached verified expert opinion affidavits from two physicians who were
specifically critical of certain physician care provided to the Decedent. Neither of
those affidavits were authored by individuals qualified to criticize anesthesia care.
(i.e. anesthesiologists)
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As in the cases discussed above, the Plaintiffs’ presuit affidavits do not
properly confirm that a presuit investigation ever took place as to the
Anesthesiologists’ care. It is not a matter of notice not being provided to The
Center, as the case law makes clear it is a matter of the investigation not being
performed and corroborated as required by the law. Accordingly, this newly
asserted claim against THE HOSPITAL, should be dismissed, with prejudice.
Plaintiffs’ Complaint includes numerous catchall allegations that render it
vague such that THE HOSPITAL cannot answer it fairly. The Plaintiffs should not
be permitted to state “employees, physicians, nurses ARNPs, and staff, to include
but not limited to” as concerns the agents for whom THE HOSPITAL is allegedly
liable. This Defendant should be told for whom it is allegedly being held liable,
rather than guess about who else the Plaintiff wants to include in this “catch al I
Additionally, The HOSPITAL is entitled to know for what actions it is being held
liable and such vague allegations as “failing to provide timely and appropriate care
and treatment.”
Il, MOTION FOR More DEFINITE STATEMENT
THE HOSPITAL is unable to formulate a response to the allegations of the
Complaint for the reasons outlined above. If the Court is not inclined to dismiss the
Complaint, then THE HOSPITAL respectfully requests that Plaintiffs be required to make a
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more definite statement, to clarify the alleged tortfeasors, and the duty owed by each.
See generally Beckler v. Hoffman, 550 So.2d 68 (Fla. Sth DCA 1989).
This is a claim based on alleged medical malpractice. A corporation can only be liable for
negligent acts committed by any of its officers, agents, members or employees while they
are engaged on behalf of the corporation:
The corporation or limited liability company shall be liable up to the full value of
its property for any negligent or wrongful acts or omissions committed by any of
its officers, agents, members, managers or employees while they’re engaged on
behalf of the corporation or Limited Liability Company.
Florida Statutes §621.07.
Accordingly, the liability of a professional corporation is regulated under Florida Statute
§621.07 and can only be vicarious. Allen v. Hoover, 449 So. 2d 1160 (Fla. Sth DCA).
In addition, it is a well-settled principle of Florida law that vicarious liability is
derivative of the liability of the active tortfeasor and is not based on a separate breach of
duty to the plaintiff by the vicariously liable party. Dabasse v. Reyes, 963. So.2d 288 (Fla.
2nd DCA 2007). In Dabasse, a company and its president appealed a final judgment
awarding separate damages against each of them but holding them jointly and severally
liable for the total damages. The Second District Court of Appeal held it was error to enter
judgment against the company for $80,000 in damages and separately enter judgment
against the president for an additional $80,000 for a total damage award of $160,000
when the evidence presented at trial showed that the total damages were only $80,000:
16
Vicarious liability, however, is derivative of the liability of the active tortfeasor; it
is not based on breach of separate duty to the plaintiff by the vicariously liable
party. Thus the vicariously liable party is liable for the entire share of the fault
assigned to the active tortfeasor. The vicariously liable party has not breached any
duty to the plaintiff; its liability is based solely on the legal imputation of
responsibility for another party’s tortious acts. The vicariously liable party is liable
only for the amount apportioned to the active tortfeasor. Id. at 291.
Based on this reasoning, the Second District Court of Appeal concluded that because the
company was only vicariously liable for the actions of its president, it could only be liable
for the same $80,000 apportioned to its president.
The HOSPITAL cannot be sued for direct medical negligence. As a corporation,
THE HOSPITAL, is not and cannot be a healthcare provider. Further, as a corporation, THE
HOSPITAL is not skilled in the practice of medicine.
Similarly, THE HOSPITAL cannot be held to a standard of care required for medical
providers in the community. Only a medical doctor licensed under Florida Statutes
Chapter 458 can provide care and diagnose patients. Simply put, a professional
association cannot practice medicine. See Florida Statutes §766.102. As such, THE
HOSPITAL can only, at most, be vicariously liable for the actions of individuals in this case.
Any and all allegations asserting that THE HOSPITAL is a healthcare provider, is skilled to
practice medicine, and practiced medicine are not based on Florida Statutes or Florida
law. Those allegations must be dismissed.
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IV. MOTION TO STRIKE
The “catch all” allegations against THE HOSPITAL identified above have no legal
basis or pertinence. For these reasons, and pursuant to Rule 1.440 of the Florida Rules
of Civil Procedure, The Center requests that the Court strike those statements from the
Complaint.
V. Conclusion
WHEREFORE, Defendant, Osceola Regional Hospital, Inc., d/b/a Osceola Regional
Medical Center, respectfully requests that this Honorable Court grant this Motion to
Dismiss, or in the Alternative for More Definite Statement, and Motion to Strike, and for
any such relief as the Court deems just and proper.
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CERTIFICATE OF SERVICE
| HEREBY CERTIFY that on the 13" day of March, 2017, | electronically filed the
foregoing with the Clerk of the Courts by using the ECF system which will send a notice
of electronic filing to the attorneys on the attached List of Counsel.
HALICZER, PETTIS & SCHWAMM, P.A.
Counsel for Osceola Regional Hospital, Inc.
d/b/a Osceola Regional Medical Center
Landmark Center Two, Suite 475
225 East Robinson Street
Orlando, FL 32801
Telephone: (407) 841-9866
Facsimile: (407) 841-9915
By: /s Bran
D, Marry
RICHARD B. SCHWAMM
Florida Bar No.: 897035
BRIAN D. MURRY
Florida Bar No.: 018321
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Ashley Oyuela Calzada and Juan Calzada, Individually and on
behalf of Jariel Calzada Oyuela, a minor vs. Osceola Regional
Medical Center
Our File No.: 1055.0624
MAIL LIST
Maria D. Tejedor, Esq.
Diez-Arguelles &Tejedor, P.A.
505 North Mills Avenue
Orlando, FL 32803-5369
Tele: (407) 705-2880
Fax: (888) 611-7879
E-Mail: mail@theorlandolawyers.com
Presuit assistant: _Brenda@theorlandolawyers.com
Attorneys for Plaintiffs
*All scheduling for hearings, meet and
confers, depositions, mediations, phone
conferences, etc. are to be done through:
Schedule@theorlandolawyers.com .
Thomas E. Dukes, Ill, Esq.
McEwan, Martinez, Dukes & Hall, PA
P.O. Box 753
Orlando, FL 32802
108 East Central Boulevard
Orlando, FL 32801-2408
Tele: (407) 423-8571
Fax: (407) 423-8637
Email: tdukes@mmdorl.com
Attorneys for Rodney del Valle, M.D., Eric Frendak, CRNA and
Osceola Anesthesia Associates, PL
Richard B. Mangan, Jr., Esq.
Eric F. Ochotorena, Esq.
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Rissman, Barrett, Hurt, Donahue,
McLain & Mangan, P.A.
Tampa Commons
1N. Dale Mabry Hwy, 11" Floor
Tampa, FL 33609-2764
Tele: (813) 221-3114
Fax: (813) 221-3033
Email: Richard.Mangan@rissman.com
Eric.ochotorena@rissman.com
Attorneys for Ezer Ojeda, M.D. and
OB Hospitalist Group, LLC
Kurt M. Spengler, Esq.
Wicker Smith, et al.
P.O. Box 2753
Orlando, FL 32802-2753
390 No. Orange Ave., Ste 1000
Orlando, FL 32801
Tele: (407) 843-3939
Fax: (407) 649-8118
Email: KSpengler@wickersmith.com
Attorneys for Jose Ramon Fernandez, M.D.
And JMJ Family Practice, Inc.
Patrick Telan, Esq.
Grower, Ketcham, Eide, Telan & Meltz, P.A.
901 North Lake Destiny Road, Ste. 450
Maitland, FL 32751
Mailing address:
PO Box 538065
Orlando, FL 32853-8065
Tele: (407) 423-9545
Fax: (407) 425-7104
Attorneys for Jose Gierbolini, M.D., Juan Longhi, M.D.
and Mednax, Inc.
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Filing # 53644479 E-Filed 03/13/2017 02:40:58 PM 1055.0624 IN THE CIRCUIT COURT OF THE NINTH JUDICIAL CIRCUIT, IN AND FOR OSCEOLA COUNTY, FLORIDA CASE NO.: 2017-CA-000174 MP ASHLEY CALZADA and JUAN L. CALZADA, Individually and on behalf of JARIEL LUIS CALZADA OYUELA, a minor, Plaintiffs, vs. OSCEOLA REGIONAL HOSPITAL d/b/a OSCEOLA REGIONAL MEDICAL CENTER, ERIC FRENDAK, CRNA, OSCEOLA OB/GYN, MICHAEL R. DENARDIS, D.O., OB HOSPITALIST GROUP, LLC, EZER A. OJEDA, M.D., OSCEOLA ANESTHESIA ASSOCIATES, PL., RODNEY DELVALLE, M.D., JMJ FAMILY PRACTICE, INC., JOSE RAMON FERNANDEZ, M.D., MID-FLORIDA WOMEN’S CENTER, INC., BHUPENDRAKUMAR M. PATEL, M.D., PEDIATRIX MEDICAL GROUP, INC, PEDIATRIX MEDICAL GROUP OF FLORIDA, INC., JOSE |. GIERBOLINI, M.D., JUAN LONGHI, M.D. HCA, INC., HCA HEALTH SERVICES OF FLORIDA, INC. AND HCA HEALTHCARE SERVICES — FLORIDA, INC. Defendants / DEFENDANT, OSCEOLA REGIONAL HOSPITAL, INC d/ba/ OSCEOLA REGIONAL MEDICAL CENTER’S MOTION TO DISMISS COMPLAINT OR IN THE ALTERNATIVE, MOTION FOR MORE DEFINITE STATEMENT AND/OR MOTION TO STRIKE WITH INCORPORATED MEMORANDUM OF LAW COMES NOW, the Defendant, OSCEOLA REGIONAL HOSPITAL, INC., d/b/a OSCEOLA REGIONAL MEDICAL CENTER (hereinafter “THE HOSPITAL”), by and through its undersigned attorneys, and files its Motion to Dismiss Amended Complaint or In the Alternative, Motion to Strike and/or Motion for More Definite Statement pursuant to Rules 1.110 and 1.140 of the Florida Rules of Civil Procedure, and in support thereof, states as follows: 1, BACKGROUND AND PROCEDURAL HISTORY 1 This is an action for alleged medical malpractice. 2 Plaintiffs’ Complaint names twenty (20) Defendants: THE HOSPITAL, ERIC FRENDAK, CRNA, OSCEOLA OB/GYN, MICHAEL R. DENARDIS, D.O., OB HOSPITALIST GROUP, LLC, EZER A. OJEDA, M.D., OSCEOLA ANESTHESIA ASSOCIATES, PL., RODNEY DELVALLE, M.D., JMJ FAMILY PRACTICE, INC., JOSE RAMON FERNANDEZ, M.D., MID- FLORIDA WOMEN’S CENTER, INC., BHUPENDRAKUMAR M. PATEL, M.D., PEDIATRIX MEDICAL GROUP, INC, PEDIATRIX MEDICAL GROUP OF FLORIDA, INC., JOSE |. GIERBOLINI, M.D., JUAN LONGHI, M.D. HCA, INC., HCA HEALTH SERVICES OF FLORIDA, INC.AND HCA HEALTHCARE SERVICES — FLORIDA, INC. 3 The Complaint includes the following counts: Count |: Claim against THE HOSPITAL Count Il: Vicarious Liability claim against THE HOSPITAL Count Ill Claim against Osceola OB/GYBN and Michael Denardis, D.O Count IV Claim against OB Hospitalist Group, LLC, and Ezer A. Ojeda, M.D. Count V: Claim against Osceola Anesthesia Associates, PL, Rodney DelValle, M.D. and Erik Frendak, CRNA 2 Count VI: Claims against Mid-Florida Woman’s Center, Inc. and Bhupendrakumar M. Patel, M.D. Count VII: Claims against JMJ Family Practice, Inc. and Jose Ramon Fernandez, M.D. (Count is incorrectly numbered in Complaint as “V”) Count VIII: Claims against Pediatrix Medical Group, Inc., Pediatrix Medical Group of Florida, Inc., Mednax, Inc. Jose |. Gierbolini, M.D. and John Longhi, M.D. (Count is incorrectly numbered in Complaint as “VII”) Count IX: Vicarious Liability claim against HCA, Inc., HCA Health Services, of Florida, Inc., and HCA Healthcare Services-Florida, Inc., as a parent corporation of Osceola Regional Medical Center I. MOTION To Dismiss PLAINTIFF’S COMPLAINT AND SUPPORTING MIEMORANDUM OF LAW Standard of Review for a Motion to Dismiss This court, in reviewing a Motion to Dismiss, considers the allegations of the complaint as true and all reasonable inferences to be drawn therefrom are viewed in favor of the Plaintiff. Ralph v. City of Daytona Beach, 471 So. 2d 1, 2 (Fla. 1983). The Court determines as a matter of law whether a Complaint is sufficient to state a cause of action. See Brewer v. Clerk of the Circuit Court, Gadsden County, 720 So.2d 602, 603 (Fla. 1° DCA 1998); Siegle v. Progressive Consumers Ins. Co., 819 So.2d 732, 734 (Fla. 2002). However, the Court is not required to accept as true those allegations that are inconsistent with the law. Brown v. First Federal Savings & Loan Association of New Smyrna, 160 So.2d 556 (Fla. 1st DCA 1964). In undertaking this review, the Complaint must be construed against the Plaintiff. Matthews v. Matthews, 122 So.2d 571, 572 (Fla. 2d DCA 1960). Fact Pleading Requirements Additionally, Florida is not a notice pleading jurisdiction, and “it is not enough merely to advise the defendant of the theory of the action.” See Cunningham v. Fla. Dept. oO f Children & Families, 782 So.2d 913, 919 (Fla. 1st DCA 2001). Under Florida law, “it is a fundamental rule that the claims and ultimate facts supporting same must be alleged [in the pleadings]. The reason for the Rule is to appraise [sic] the other party of the nature of the contentions that he will be called upon to meet, and to enable the court to decide whether same are sufficient.” George v. Beach Club Villas Condominium Assoc. 833 So.2d 816, 820 (Fla. 3d DCA 2002), citing Brown v. Gardens by the Sea South Condo Assoc., 424 So.2d 181, 183 (Fla. 4th DCA 1983). “Florida’s pleading rule forces counsel to recognize the elements of their cause of action and determine whether they have or can develop the facts necessary to support it, which avoids a great deal of wasted expense to the litigants and unnecessary judicial effort.” Horowitz v. Laske, 855 So.2d 169, 173 (Fla. Sth DCA 2003). Alongside a statement of grounds for jurisdiction and a demand for relief, each count in a Plaintiff's Complaint must contain a short and plain statement of the ultimate facts which establish each essential element and which show that the Plaintiff is entitled to the relief requested. FLA.R.CIV.P. 1.110(b). “The Complaint must set out the elements and the facts that support them so that the court and the defendant can clearly determine what is being alleged.” Barrett v. City of Margate, 743 So.2d 1160, 1162 (Fla. 4th DCA 1999). “It is insufficient to plead opinions, theories, legal conclusions, or argument.” Id. See Also Price v. Morgan, 436 So.2d 1116, 1121-22 (Fla. Sth DCA 1983) (dismissing complaint and noting that “a pleading is insufficient if it contains merely conclusions as opposed to ultimate facts supporting each element of the cause of action”). For instance, in a claim for liability stemming from a defective product, simply alleging a product is defective is not sufficient. Rice v. Walker, 359 So.2d 891, 892 (Fla. 3d DCA 1978). A The Complaint fails to state a cause of action for medical negligence against THE HOSPITAL The Fourth District Court of Appeal, in Barrett v. City of Margate, 743 So.2d 1160, 1162 (Fla. 4th DCA 1999) held that a “Complaint must set out the elements and the facts that support them so that the court and the defendant can clearly determine what is being alleged.” Further, the Court relied upon Messana v. Maule Industries, 50 So.2d 874, 876 (Fla. 1951), that a “complainant must plead a factual matter sufficient to apprise his adversary of what [it] is called upon to answer so that the court may, upon proper challenge, determine its legal effect.” The Court is not required to accept as true those allegations that are inconsistent with the law. Brown v. 5 First Federal Savings & Loan Association of New Smyrna, 160 So.2d 556 (Fla. 1st DCA 1964). In undertaking this review, the Complaint must be construed against the Plaintiff. Matthews v. Matthews, 122 So.2d 571, 572 (Fla. 2d DCA 1960).In addition, a court should require the amendment of a vague, indefinite or ambiguous complaint to enable the responding party to “intelligently discern the issues to be litigated and to properly frame [its] answer or reply.” Conklin v. Boyd, 189 So.2d 401, 403-404 (Fla. Ist DCA 1966). 1 Here, the Complaint intermingles agency, vicarious liability and apparent agency claims in Count | against the HOSPITAL such that it is impossible to respond to that count or understand what exactly the claim is. Plaintiff lumps together claims against the HOSPITAL in vague catch-all allegations that make it unclear for whom the HOSPITAL is allegedly liability, or why. Moreover, Plaintiff fails to allege the necessary elements of any vicarious liability claim. The Complaint then, does not meet the strictures of FRCP 1.110, and should be dismissed accordingly. 2. Counts | and II should also be dismissed because Plaintiffs have improperly combined in a single count claims or theories of direct 6 negligence with claims for vicarious liability for the care of unidentified individuals. See generally Pratus v. City of Naples, 807 So. 2d 795 (Fla. 2nd DCA 2002) (stating “each claim should be pleaded in a separate count instead of lumping all defendants together”): Greene v. Seminole Elec. Co- op., Inc., 701 So. 2d 646 (Fla. Sth DCA 1997) (stating, “On remand Greene should be allowed to amend his Complaint to state in separate counts his causes of action for discrimination, hostile work environment, and retaliation. See Fla. R. Civ. P. 1.110(f)”); Dubus v. McArthur, 682 So. 2d 1246 (Fla. Ist DCA 1996) (concluding, “...the appellants' Amended Complaint improperly attempts to state in a single count separate causes of action for vicarious liability and for negligent entrustment. Rule 1.110(f), Fla. R. Civ. P.”); General Asphalt Co., Inc. v. Bob's Barricades, Inc. 22 So. 3d 697 (Fla. 3rd DCA 2009) (stating, "Florida law is clear that in order to pursue a vicarious liability claim, the claimant must specifically plead it as a separate cause of action. See Goldschmidt _v. Holman, 571 So. 2d 422 (Fla. 1990)”). Accordingly, Plaintiffs should be required to plead their claims against the HOSPITAL in separate counts. 3 Count | should be dismissed because Plaintiff has failed to plead the elements of and any ultimate facts supporting a claim. See generally Horowitz v. Laske, 855 So. 2d 169, 172-73 (Fla. Sth DCA 2003) (stating “Florida is a fact-pleading jurisdiction,” and “Florida's pleading rule forces counsel to recognize the elements of their cause of action and determine whether they have or can develop the facts necessary to support it, which avoids a great deal of wasted expense to the litigants and unnecessary judicial effort”); Deloitte & Touche v. Gencor Industries, Inc. 929 So. 2d 678 (Fla. Sth DCA 2006) (commenting that if Plaintiff had properly plead the elements of negligent misrepresentation, then the 5th DCA’s task would have been considerably simplified, and stating, “As we wearily continue to point out, Florida is a fact-pleading jurisdiction, not a notice- pleading jurisdiction”). In this case, Plaintiffs have failed to plead the legal elements of respondeat superior vicarious liability in Count |. See Iglesia Cristiana La Casa Del Senor, Inc. v. L.M. 783 So. 2d 353 (Fla. 3rd DCA 2001) (stating “Under the doctrine of respondeat superior, an employer cannot be held liable for the tortious or criminal acts of an employee, unless the acts were committed during the course of the employment and to further a purpose or interest, however excessive or misguided, of the employer’). Similarly, in this case Plaintiffs have failed to plead the legal elements of agency vicarious liability in Count |. See Villazon v. Prudential Health Plan Inc., 843 So.2d 842, FN 10 (Fla. 2003) (stating “Essential to the existence of an actual agency relationship is (1) acknowledgment by the principal that the agent will act for him (2) the agents acceptance of the undertaking, and (3) control by the principal over the actions of the agent”); Ilgen v. Henderson Properties, Inc., 683 So. 2d 513, 515 (Fla. 2nd DCA 1996) (Citing the above elements of agency and dismissing agency claim in complaint that failed to adequately allege the elements of agency); Fojtasek_v. NCL Bahamas) Ltd., 613 F. Supp. 2d 1351, 1357 (S.D. Fla. 2009) (Citing the above elements of agency and dismissing agency claim because the complaint only listed the conclusory allegation of agency). Plaintiffs have failed to plead the legal elements of apparent agency in Count |. See Ginsberg v. Northwest Medical Center, Inc. 14 So.3d 1250 (Fla. 4th DCA 2009) (stating that an apparent agency relationship exists if three elements are present: (1) a representation by the purported principal, (2) a reliance on that representation by a third party, and (3) a change in position by the third party in reliance on the representation); Mumford v. Carnival Corp, 7 F. Supp. 3d 1243, 1251 (S.D. Fla. 2014) (dismissing apparent agency claim because Plaintiffs have failed to plead ultimate facts showing 9 reliance). 4. Counts | and II should further be dismissed because Plaintiffs mix the separate and distinct physician and nursing standards of care. Physicians and nurses (RNs) are subject to different standards of care. See generally, §766.102(1); §766.102(6); §464.003(20); §766.103(3), Florida Statutes. The different standards of care between nurses and physicians means Plaintiffs should be required to plead liability for physician and nursing care in separate counts. Plaintiffs’ claims for the actions of CRNA Frendak and Dr. DeValle should be dismissed. In each of the two counts plead against THE HOSPITAL, Plaintiffs include allegations that THE HOSPTIAL is responsible for the alleged negligence of CRNA Frendak, and Dr. DeValle. (the “Anesthesiologists”) Plaintiffs are barred from bringing any claim related to this anesthesia care at this juncture, as they did not properly raise such allegations during the presuit process. At no time did the Plaintiffs present a claim to THE HOSPITAL for the Anesthesiologists’ actions supported by the affidavit of a qualified expert As such, THE HOSPITAL is entitled to the dismissal of any claim related to the Anesthesiologists because the Plaintiffs failed to comply with the presuit requirements set forth in Chapter 766. More specifically, the Plaintiffs failed to 10 comply with the condition precedent set forth in § 766.203(2), Florida Statutes (2015). To satisfy the statute, the Plaintiffs were required to conduct a reasonable investigation corroborated by a written verified medial expert opinion as defined by section 766.203(2), Florida Statutes, which states: INVESTIGATION BY CLAIMANT— Prior to issuing notification of intent to initiate medical negligence litigation pursuant to s. 766.106, the claimant shall conduct an investigation to ascertain that there are reasonable grounds to believe that: (a) Any named defendant in the litigation was negligent in the care or treatment of the claimant; and (b) Such negligence resulted in injury to the claimant. Corroboration of reasonable grounds to initiate medical negligence litigation shall be provided by the claimant’s submission of a verified written medical expert opinion from a medical expert as defined in § 766.202(6), at the time the notice of intent to initiate litigation is mailed, which statement shall corroborate reasonable grounds to support the claim of medical negligence. It is well-settled Florida law that compliance with Chapter 766 presuit investigation and notice requirements are a condition precedent to the filing of a medical negligence action. See Kukral v Mekras, 679 So. 2d 278, 285 (Fla. 1996); Ingersol v. Hoffman, 589 So. 2d 223 (Fla. 1991). A reasonable investigation under the statute includes “consultation with a medical expert” and “written corroboration of negligence by a medical expert” in the form of a presuit affidavit. Largie v. Gregorian, 913 So. 2d 635, 638 (Fla. 3d DCA 2005) (concluding that the 11 expert’s corroborating affidavit failed to comply with the condition precedent by failing to conduct a reasonable investigation as to the nurse and by failing to provide any reasonable grounds to initiate a medical negligence action against her.) The purpose of the presuit requirement is to allow a potential defendant to investigate a claim and to encourage settlement prior to engaging in a costly and time-consuming litigation. Davis v. Orlando Reg’! Med. Ctr., 654 So. 2d 664, 665 (Fla. 5th DCA 1995) (concluding that “the statute requires the expert corroborative opinion to prevent the filing of baseless litigation.”). However, that process also requires that a Plaintiff investigate his or her potential claims, and corroborate the fact of that investigation with an expert affidavit supporting the conclusion that a valid claim exists. In University of Florida Bd. of Trustees v. Mann, 159 So. 3d 283 (Fla. 2d DCA 2015), Bonati v. Allen, 911 So. 2d 285 (Fla. 2d DCA 2005) and Largie, 913 So. 2d at 642, the Florida appellate courts have held that the presuit investigation and notice requirements were not satisfied when an expert’s affidavit failed to mention a specific doctor, or the negligent conduct in which he is alleged to have engaged. In Mann, just as here, the plaintiff’s presuit affidavit specifically alleged that the hospital was liable for the negligent care and treatment provided by several physicians. 159 So. 3d at 283. There was no reference, in the affidavit(s), to the 12 hospital’s nursing staff or nursing supervisor. Id. The plaintiff later included claims against the nurses in the litigation, and the hospital sought to dismiss the claims — as to the non-physician personnel — based on the insufficiency of the plaintiff's presuit affidavit. ld. The trial court refused to dismiss the claim and the appellate court reversed. Id. Because the plaintiff's presuit affidavit failed to address any deficiencies in the care provided by the nursing staff or supervisors, the court held that the affidavit was insufficient to corroborate reasonable grounds to support a claim of medical malpractice as to the nurses and their supervisors (and the required investigation thereof), and dismissed those allegations against the hospital. Id. Likewise in Bonati, the plaintiff’s presuit affidavit corroborated the medical negligence claim against three other doctors but did not specifically mention Dr. Bonati. 911 So. 2d at 286-87. Dr. Bonati moved to dismiss the claims against him and the trial court refused to do so. Id. Again, the appellate court disagreed, and held that the affidavit did not serve its purpose of corroborating investigation into the belief that Dr. Bonati acted negligently toward the plaintiff and the pre-suit investigation requirement was not satisfied. Id. at 288. Similarly in Largie, the trial court granted summary judgment in favor of a nurse based on the plaintiff's failure to comply with the presuit investigation 13 requirements of Chapter 766 prior to the running of the statute of limitations. 913 So, 2d at 637. The plaintiffs served the doctor with a notice of intent and an expert’s corroborating affidavit. Id. The trial court found, and the appellate court agreed, that the affidavit was insufficient as to the nurse. ld. at 639. There, as here, the corroborating affidavit failed to mention the nurse, by name or job description, and it failed to make any reference to the standard of care applicable to a certified registered nurse practitioner or to any deviation from the standard of care. Likewise, the expert’s affidavit did not suggest or corroborate that any investigation took place with regard to nursing negligence, or that any reasonable grounds existed to support the plaintiffs’ claim of medical malpractice against her. Id. at 641. The court reasoned that the expert’s opinion did not suggest, much less demonstrate, that any expert concluded that there were reasonable grounds to believe that the nurse was negligent in her care or treatment of the plaintiff, justifying dismissal of the claims. Here, the Plaintiffs served THE HOSPITAL with a Notice of Intent and attached verified expert opinion affidavits from two physicians who were specifically critical of certain physician care provided to the Decedent. Neither of those affidavits were authored by individuals qualified to criticize anesthesia care. (i.e. anesthesiologists) 14 As in the cases discussed above, the Plaintiffs’ presuit affidavits do not properly confirm that a presuit investigation ever took place as to the Anesthesiologists’ care. It is not a matter of notice not being provided to The Center, as the case law makes clear it is a matter of the investigation not being performed and corroborated as required by the law. Accordingly, this newly asserted claim against THE HOSPITAL, should be dismissed, with prejudice. Plaintiffs’ Complaint includes numerous catchall allegations that render it vague such that THE HOSPITAL cannot answer it fairly. The Plaintiffs should not be permitted to state “employees, physicians, nurses ARNPs, and staff, to include but not limited to” as concerns the agents for whom THE HOSPITAL is allegedly liable. This Defendant should be told for whom it is allegedly being held liable, rather than guess about who else the Plaintiff wants to include in this “catch al I Additionally, The HOSPITAL is entitled to know for what actions it is being held liable and such vague allegations as “failing to provide timely and appropriate care and treatment.” Il, MOTION FOR More DEFINITE STATEMENT THE HOSPITAL is unable to formulate a response to the allegations of the Complaint for the reasons outlined above. If the Court is not inclined to dismiss the Complaint, then THE HOSPITAL respectfully requests that Plaintiffs be required to make a 15 more definite statement, to clarify the alleged tortfeasors, and the duty owed by each. See generally Beckler v. Hoffman, 550 So.2d 68 (Fla. Sth DCA 1989). This is a claim based on alleged medical malpractice. A corporation can only be liable for negligent acts committed by any of its officers, agents, members or employees while they are engaged on behalf of the corporation: The corporation or limited liability company shall be liable up to the full value of its property for any negligent or wrongful acts or omissions committed by any of its officers, agents, members, managers or employees while they’re engaged on behalf of the corporation or Limited Liability Company. Florida Statutes §621.07. Accordingly, the liability of a professional corporation is regulated under Florida Statute §621.07 and can only be vicarious. Allen v. Hoover, 449 So. 2d 1160 (Fla. Sth DCA). In addition, it is a well-settled principle of Florida law that vicarious liability is derivative of the liability of the active tortfeasor and is not based on a separate breach of duty to the plaintiff by the vicariously liable party. Dabasse v. Reyes, 963. So.2d 288 (Fla. 2nd DCA 2007). In Dabasse, a company and its president appealed a final judgment awarding separate damages against each of them but holding them jointly and severally liable for the total damages. The Second District Court of Appeal held it was error to enter judgment against the company for $80,000 in damages and separately enter judgment against the president for an additional $80,000 for a total damage award of $160,000 when the evidence presented at trial showed that the total damages were only $80,000: 16 Vicarious liability, however, is derivative of the liability of the active tortfeasor; it is not based on breach of separate duty to the plaintiff by the vicariously liable party. Thus the vicariously liable party is liable for the entire share of the fault assigned to the active tortfeasor. The vicariously liable party has not breached any duty to the plaintiff; its liability is based solely on the legal imputation of responsibility for another party’s tortious acts. The vicariously liable party is liable only for the amount apportioned to the active tortfeasor. Id. at 291. Based on this reasoning, the Second District Court of Appeal concluded that because the company was only vicariously liable for the actions of its president, it could only be liable for the same $80,000 apportioned to its president. The HOSPITAL cannot be sued for direct medical negligence. As a corporation, THE HOSPITAL, is not and cannot be a healthcare provider. Further, as a corporation, THE HOSPITAL is not skilled in the practice of medicine. Similarly, THE HOSPITAL cannot be held to a standard of care required for medical providers in the community. Only a medical doctor licensed under Florida Statutes Chapter 458 can provide care and diagnose patients. Simply put, a professional association cannot practice medicine. See Florida Statutes §766.102. As such, THE HOSPITAL can only, at most, be vicariously liable for the actions of individuals in this case. Any and all allegations asserting that THE HOSPITAL is a healthcare provider, is skilled to practice medicine, and practiced medicine are not based on Florida Statutes or Florida law. Those allegations must be dismissed. 17 IV. MOTION TO STRIKE The “catch all” allegations against THE HOSPITAL identified above have no legal basis or pertinence. For these reasons, and pursuant to Rule 1.440 of the Florida Rules of Civil Procedure, The Center requests that the Court strike those statements from the Complaint. V. Conclusion WHEREFORE, Defendant, Osceola Regional Hospital, Inc., d/b/a Osceola Regional Medical Center, respectfully requests that this Honorable Court grant this Motion to Dismiss, or in the Alternative for More Definite Statement, and Motion to Strike, and for any such relief as the Court deems just and proper. 18 CERTIFICATE OF SERVICE | HEREBY CERTIFY that on the 13" day of March, 2017, | electronically filed the foregoing with the Clerk of the Courts by using the ECF system which will send a notice of electronic filing to the attorneys on the attached List of Counsel. HALICZER, PETTIS & SCHWAMM, P.A. Counsel for Osceola Regional Hospital, Inc. d/b/a Osceola Regional Medical Center Landmark Center Two, Suite 475 225 East Robinson Street Orlando, FL 32801 Telephone: (407) 841-9866 Facsimile: (407) 841-9915 By: /s Bran D, Marry RICHARD B. SCHWAMM Florida Bar No.: 897035 BRIAN D. MURRY Florida Bar No.: 018321 19 Ashley Oyuela Calzada and Juan Calzada, Individually and on behalf of Jariel Calzada Oyuela, a minor vs. Osceola Regional Medical Center Our File No.: 1055.0624 MAIL LIST Maria D. Tejedor, Esq. Diez-Arguelles &Tejedor, P.A. 505 North Mills Avenue Orlando, FL 32803-5369 Tele: (407) 705-2880 Fax: (888) 611-7879 E-Mail: mail@theorlandolawyers.com Presuit assistant: _Brenda@theorlandolawyers.com Attorneys for Plaintiffs *All scheduling for hearings, meet and confers, depositions, mediations, phone conferences, etc. are to be done through: Schedule@theorlandolawyers.com . Thomas E. Dukes, Ill, Esq. McEwan, Martinez, Dukes & Hall, PA P.O. Box 753 Orlando, FL 32802 108 East Central Boulevard Orlando, FL 32801-2408 Tele: (407) 423-8571 Fax: (407) 423-8637 Email: tdukes@mmdorl.com Attorneys for Rodney del Valle, M.D., Eric Frendak, CRNA and Osceola Anesthesia Associates, PL Richard B. Mangan, Jr., Esq. Eric F. Ochotorena, Esq. 20 Rissman, Barrett, Hurt, Donahue, McLain & Mangan, P.A. Tampa Commons 1N. Dale Mabry Hwy, 11" Floor Tampa, FL 33609-2764 Tele: (813) 221-3114 Fax: (813) 221-3033 Email: Richard.Mangan@rissman.com Eric.ochotorena@rissman.com Attorneys for Ezer Ojeda, M.D. and OB Hospitalist Group, LLC Kurt M. Spengler, Esq. Wicker Smith, et al. P.O. Box 2753 Orlando, FL 32802-2753 390 No. Orange Ave., Ste 1000 Orlando, FL 32801 Tele: (407) 843-3939 Fax: (407) 649-8118 Email: KSpengler@wickersmith.com Attorneys for Jose Ramon Fernandez, M.D. And JMJ Family Practice, Inc. Patrick Telan, Esq. Grower, Ketcham, Eide, Telan & Meltz, P.A. 901 North Lake Destiny Road, Ste. 450 Maitland, FL 32751 Mailing address: PO Box 538065 Orlando, FL 32853-8065 Tele: (407) 423-9545 Fax: (407) 425-7104 Attorneys for Jose Gierbolini, M.D., Juan Longhi, M.D. and Mednax, Inc. 21