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Filing # 53667865 E-Filed 03/13/2017 06:11:52 PM
IN THE CIRCUIT COURT OF THE NINTH
JUDICIAL CIRCUIT IN AND FOR
OSCEOLA COUNTY, FLORIDA
CASE NO. Case No.: 2017-CA-000174-
MP
ASHLEY CALZADA and JUAN CALZADA,
individually and on behalf of
JARIEL LUIS CALZADA OYUELA, a
minor,
Plaintiffs,
v
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 DEL VALLE, M.D., IMI
FAMILY PRACTICE, INC., JOSE RAMON
FERNANDEZ, M.D., MID-FLORIDA
WOMAN'S CENTER, INC.,
BHUPENDRAKUMAR M. PATEL, M.D.,
PEDIATRIX MEDICAL GROUP, INC.,
PEDIATRIX MEDICAL GROUP OF
FLORIDA, INC., MEDNAX, INC., JOSE
I GIERBOLINI, M.D., JOHN LONGHI,
M.D., HCA, INC., HCA HEALTH
SERVICES OF FLORIDA, INC., AND
HCA HEALTHCARE SERVICES-FLORIDA,
INC.,
Defendants.
DEFENDANTS, OB HOSPITALIST GROUP, LLC’s AND EZER A. OJEDA,
.D.’s, MOTION TO DISMISS AND/OR STRIKE COUNTS IV OF
PLAINTIFFS’ COMPLAINT FOR FAILURE TO COMPLY WITH PRE-SUIT
REQUIREMENTS OF FLORIDA STATUTE §766 AND FOR FAILURE TO STATE A
CLAIM UPON WHICH RELIEF MAY BE GRANTED OR IN THE ALTERNATIVE
MOTION FOR MORE DEFINITE STATEMENT
Defendants, OB HOSPITALIST GROUP, LLC, and EZER A. OJEDA,
M.D., hereby file their Motion to Dismiss and/or Strike Count IV
of Plaintiff’s Complaint pursuant to Fl. R. Civ. P. 1.110; for
Failure to Comply with Pre-Suit Requirements of Florida Statute
$766; and for Failure to State a Claim Upon Which Relief May Be
Granted, and in support thereof state as follows:
1) This is a medical malpractice action wherein the
Plaintiffs have alleged the negligence of Defendants, OB
HOSPITALIST GROUP, LLC (hereinafter “OBHG”) and EZER A. OJEDA,
M.D., (hereinafter “DR. OJEDA”).
2) Plaintiffs’ Complaint in Count IV makes allegations
which, in their current form, should either be stricken or
dismissed.
3) Specifically, Count Iv of Plaintiffs’ Complaint
(attached as Exhibit A), (bearing a certificate of service date
of February 21, 2017), alleges that OBHG and DR. QJEDA were
directly negligent and asserts as follows:
VAL all times hereto, Defendant OB
HOSPITALIST GROUP, LLC, and EZER A. OJEDA,
M.D., by and through its agents employees,
staff, nurses, and physicians, including but
not limited to and EZER A. OJEDA, M.D.,
breached that duty by failing to provide
appropriate care and treating in the
following ways which caused or substantially
contributed to JARIEL LUIS CALZADA OYUELA’s
injuries:
Failing to provide timely and
appropriate medical care and
treatment to ASHLEY CALZADA and
JARIEL LUIS CALZADA OYUELA, a minor;
Failing to properly treat and refer
the patient to a high risk;
Failed to appropriately monitor
ASHLEY CALZADA;
Failing to time and appropriately
monitor and treat hypertension and
symptoms of preeclampsia;
Failing to provide appropriate and
necessary fetal heart monitoring;
Failing to timely identity, report,
and treat fetal distress;
Failing to advocate, requests, and/or
order continuous fetal monitoring via
an intrauterine pressure catheter and
intrauterine fetal heart monitor;
Failing to timely perform
intrauterine resuscitative measures;
Failing to timely order, recommend,
and/or advocate ASHLEY CALZADA to
undergo a C-Section;
Failing to timely perform a c-
Section;
Failing to provide appropriate
anesthesia care in response to call
for an emergency C-Section;
Failing to provide time and
appropriate post-delivery care,
including but not limited to, failing
to timely ventilate and oxygenate the
infant and provide timely and
appropriate treatment for the
Hypoxic-Ischemic Encephalopathy;
Failure to provide appropriate
neonatal care and treatment;
Negligently administering Ms. Calzada
a steroid that increased her risk of
infection;
Failed to
conduct a cT scan to
properly evaluate the
cephalohematoma.”
See Exhibit A at Paragraph 53.
4) Critically, Paragraph 53 of Plaintiffs’ Complaint
makes specific allegations of negligence against the OBHG and
its agents, employees, staff, nurses, and physicians other than
DR. OJEDA.
5) Plaintiffs’ pre-suit Notice of Intent to Initiate
Litigation initially attached the Affidavit of Dr. Martin
Gubernick. Please see First Affidavit of Dr. Gubernick attached
hereto as Exhibit B. Because Dr. Gubernick’s initial Affidavit
did not contain necessary corroboration as to how OBHG and DR.
OJEDA breached the applicable standard of care, a supplemental
Affidavit of Dr. Gubernick was filed. Please see Second
(Supplemental) Affidavit of Dr. Gubernick attached hereto as
Exhibit C. Paragraphs 7 and 8 of Dr. Gubernick’s Supplemental
Affidavit specifically alleges negligence on the part of
“Osceola Regional Medical Center, Inc., its nurses, midwives,
physicians, agents, and staff, including but not limited to
Bhupendrakumar Patel, MD; Ezer Ojeda MD; Dalton Dagan, MD;
Marissa Lee, RN; Jacque Altomere, RN; Mary Krolick, RN; Lourdes
Rivera, RN; Lisa Denarski RN; Shanon Weisenberger RN; Michael
DeNardis, DO; Jaymee Stahl, RN; Rodney Del Valle, MD; and Eric
Frendak, CRNA.” See Exhibit C at Paragraph 7.
6 Nowhere within Dr. Gubernick’s pre-suit Affidavit does
he make allegations as to OBHG or any other of its agents,
employees, staff, and physicians. Moreover, while reference to
Dr. Ojeda is made, he is identified as a physician/agent/staff
of Osceola Regional Medical Center, Inc., and not identified as
an individual physician or employee/agent/apparent agent of
OBHG. In addition, the allegations of medical negligence
directed to DR. OJEDA in Dr. Gubernick’s supplemental Affidavit
include an “and/or” grouped together reference to Dr. Dagan
Dalton (an Emergency Department physician who bears no legal
relationship with OBHG or DR. OJEDA) , suggesting that the
allegations may apply to one, but physician and not the other,
making it immensely difficult to discern which expert
allegations of negligence apply to DR. OJEDA only.
7) Florida Statute $§766.203 requires that corroboration
of reasonable grounds to initiate medical negligence litigation
be provided by the claimant in the form of a verified written
medical expert opinion at the time the Notice of Intent to
Initiate Litigation is mailed. See Florida Statute $766.203.
8) In other words, Florida Statute §766.203 is clear that
verified written medical expert opinion “shall corroborate
reasonable grounds to support the claim of medical negligence.”
9 Dr. Gubernick’s expert Affidavits, attached as Exhibit
B and C, fail to corroborate reasonable grounds to support the
alleged negligence of: OBHG individually, OBHG for vicarious
liability of DR. OJEDA, and DR. OJEDA individually (separate and
apart from Dr. Dalton and as an employee/agent/apparent agent of
OBHG not Osceola Regional Medical Center Inc., which is not his
lawful employer).
10) The Second DCA recently reaffirmed the requirement
that a plaintiff notify each and every potential defendant of an
intent to pursue a medical negligence claim in University of
South Florida v. Mann, 159 So. 3d 283 (Fla. 2d DCA 2015).
11) In Mann, the Second DCA granted, in part, a Petition
for Writ of Certiorari where the plaintiff sued Tampa General
Hospital for alleged deviations from the standard of care owed
by its nursing staff and nursing supervisors. Id. However, in
Mann, the plaintiff’s pre-suit expert affidavit did not address
any deficiencies in the care provided by the nursing staff or
supervisors, which the Court characterized as “plainly
insufficient as a statement to corroborate reasonable grounds to
support a claim of medical malpractice as to the nurses and
supervisors.” Id.
12) 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 pre-suit investigation and
notice requirements were not satisfied when an expert’s
affidavit failed to mention a specific doctor, or the negligent
onduct in which he is alleged to have engaged. In Mann, just as
here, the plaintiff’s pre-suit 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 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 pre-
suit affidavit. Id. The trial court refused to dismiss the claim
and the appellate court reversed. Id. Because the plaintiff’s
pre-suit 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.
13) Likewise in Bonati, the plaintiff’s pre-suit 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 pre-suit investigation 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. Id. 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.
14) Here, as in the cases discussed above, the Plaintiffs’
pre-suit Affidavits do not properly confirm that a pre-suit
investigation ever took place as to OBHG’s care and DR. OJEDA
individually. Accordingly, any claims of negligence asserted
against OBHG should be dismissed, with prejudice.
15) More specifically, as in Mann, the expert Affidavits
in the instant matter executed by Dr. Gubernick on Plaintiffs’
behalf fail to comply with the pre-suit requirements of Chapter
766. Dr. Gubernick’s Affidavits fail to identify OBHG or anyone
acting directly on OBHGs’ behalf. As such, the allegations
contained within Count IV, at least as currently constituted
must be dismissed or stricken.
16) Moreover, Count IV of Plaintiffs’ Complaint alleges
direct negligence against OBHG for a variety of allegations
contained at Paragraph 53 of the Complaint, as listed out in
detail under Paragraph 3, above.
See Exhibit A at Paragraph 53.
17) None of the allegations of direct negligence outlined
in Paragraph 53 of Plaintiffs’ Complaint against OBHG were
subjected to a pre-suit investigation, because the allegations
were not corroborated by Plaintiffs’ pre-suit expert as required
by Florida Statute Chapter 766.203.
18) As such, any assertions of direct negligence as to
OBHG should be dismissed or stricken from the Complaint.
19) 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. 2a 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. ist 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. 4 lst 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).
20) Additionally, Florida is not a notice pleading
jurisdiction, and Nit is not enough merely to advise the
defendant of the theory of the action. ” See Cunningham v. Fla.
Dept. of Children & Families, 782 So.2d 913, 919 (Fla. lst DCA
2001). Under Florida law, Nit 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. 5th 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. Under 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). Moreover, it is insufficient to plead opinions,
theories, legal conclusions, or argument. ” Id. See also Price v.
Morgan, 436 So.2d 1116, 1121-22 (Fla. 5th 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).
21) Given the above, Plaintiffs’ Complaint further fails
to state a proper cause of action for medical
negligence/vicarious liability against OBHG. 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. First Federal Savings & Loan
Association of New Smyrna, 160 So.2d 556 (Fla. lst 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. lst DCA 1966).
22) Here, Plaintiffs’ Complaint comingles direct
negligence and vicarious liability claims in Count IV against
OBHG and DR. OJEDA such that it is impossible to respond to that
count or understand what exactly the claim is. Plaintiffs lump
together claims against OBHG and DR. OJEDA in vague catch-all
allegations that make it unclear who is liable and in what
capacity each is liable in. Moreover, Plaintiffs fail to allege
the necessary elements of any vicarious liability claim. Again,
the Complaint as pled does not meet the strictures of Fla. R
Civ. P. 1.110, and should be dismissed accordingly.
23) Count IV should also be dismissed because Plaintiffs
have improperly combined in a single count claims or theories of
direct 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. 5th 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(£)"); Dubus v. McArthur, 682 So. 2d 1246 (Fla. lst 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 OBHG in separate counts.
24) Count IV should be dismissed because Plaintiffs have
failed to plead the elements of vicarious liability and any
ultimate facts supporting a claim. See generally Horowitz v.
Laske, 855 So. 2d 169, 172-73 (Fla. 5th 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. 5th 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”).
25) In this case, Plaintiffs have failed to plead the
legal elements of respondeat superior vicarious liability in
Count IV. See Iglesia Cristiana La Casa Del Senor, Inc. v. LM.
783 So. 2d 353 (Fla. 3rd DCA 2001) (stating “Under the doctrine
of respondeat superior, an employer can
Preview
Filing # 53667865 E-Filed 03/13/2017 06:11:52 PM IN THE CIRCUIT COURT OF THE NINTH JUDICIAL CIRCUIT IN AND FOR OSCEOLA COUNTY, FLORIDA CASE NO. Case No.: 2017-CA-000174- MP ASHLEY CALZADA and JUAN CALZADA, individually and on behalf of JARIEL LUIS CALZADA OYUELA, a minor, Plaintiffs, v 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 DEL VALLE, M.D., IMI FAMILY PRACTICE, INC., JOSE RAMON FERNANDEZ, M.D., MID-FLORIDA WOMAN'S CENTER, INC., BHUPENDRAKUMAR M. PATEL, M.D., PEDIATRIX MEDICAL GROUP, INC., PEDIATRIX MEDICAL GROUP OF FLORIDA, INC., MEDNAX, INC., JOSE I GIERBOLINI, M.D., JOHN LONGHI, M.D., HCA, INC., HCA HEALTH SERVICES OF FLORIDA, INC., AND HCA HEALTHCARE SERVICES-FLORIDA, INC., Defendants. DEFENDANTS, OB HOSPITALIST GROUP, LLC’s AND EZER A. OJEDA, .D.’s, MOTION TO DISMISS AND/OR STRIKE COUNTS IV OF PLAINTIFFS’ COMPLAINT FOR FAILURE TO COMPLY WITH PRE-SUIT REQUIREMENTS OF FLORIDA STATUTE §766 AND FOR FAILURE TO STATE A CLAIM UPON WHICH RELIEF MAY BE GRANTED OR IN THE ALTERNATIVE MOTION FOR MORE DEFINITE STATEMENT Defendants, OB HOSPITALIST GROUP, LLC, and EZER A. OJEDA, M.D., hereby file their Motion to Dismiss and/or Strike Count IV of Plaintiff’s Complaint pursuant to Fl. R. Civ. P. 1.110; for Failure to Comply with Pre-Suit Requirements of Florida Statute $766; and for Failure to State a Claim Upon Which Relief May Be Granted, and in support thereof state as follows: 1) This is a medical malpractice action wherein the Plaintiffs have alleged the negligence of Defendants, OB HOSPITALIST GROUP, LLC (hereinafter “OBHG”) and EZER A. OJEDA, M.D., (hereinafter “DR. OJEDA”). 2) Plaintiffs’ Complaint in Count IV makes allegations which, in their current form, should either be stricken or dismissed. 3) Specifically, Count Iv of Plaintiffs’ Complaint (attached as Exhibit A), (bearing a certificate of service date of February 21, 2017), alleges that OBHG and DR. QJEDA were directly negligent and asserts as follows: VAL all times hereto, Defendant OB HOSPITALIST GROUP, LLC, and EZER A. OJEDA, M.D., by and through its agents employees, staff, nurses, and physicians, including but not limited to and EZER A. OJEDA, M.D., breached that duty by failing to provide appropriate care and treating in the following ways which caused or substantially contributed to JARIEL LUIS CALZADA OYUELA’s injuries: Failing to provide timely and appropriate medical care and treatment to ASHLEY CALZADA and JARIEL LUIS CALZADA OYUELA, a minor; Failing to properly treat and refer the patient to a high risk; Failed to appropriately monitor ASHLEY CALZADA; Failing to time and appropriately monitor and treat hypertension and symptoms of preeclampsia; Failing to provide appropriate and necessary fetal heart monitoring; Failing to timely identity, report, and treat fetal distress; Failing to advocate, requests, and/or order continuous fetal monitoring via an intrauterine pressure catheter and intrauterine fetal heart monitor; Failing to timely perform intrauterine resuscitative measures; Failing to timely order, recommend, and/or advocate ASHLEY CALZADA to undergo a C-Section; Failing to timely perform a c- Section; Failing to provide appropriate anesthesia care in response to call for an emergency C-Section; Failing to provide time and appropriate post-delivery care, including but not limited to, failing to timely ventilate and oxygenate the infant and provide timely and appropriate treatment for the Hypoxic-Ischemic Encephalopathy; Failure to provide appropriate neonatal care and treatment; Negligently administering Ms. Calzada a steroid that increased her risk of infection; Failed to conduct a cT scan to properly evaluate the cephalohematoma.” See Exhibit A at Paragraph 53. 4) Critically, Paragraph 53 of Plaintiffs’ Complaint makes specific allegations of negligence against the OBHG and its agents, employees, staff, nurses, and physicians other than DR. OJEDA. 5) Plaintiffs’ pre-suit Notice of Intent to Initiate Litigation initially attached the Affidavit of Dr. Martin Gubernick. Please see First Affidavit of Dr. Gubernick attached hereto as Exhibit B. Because Dr. Gubernick’s initial Affidavit did not contain necessary corroboration as to how OBHG and DR. OJEDA breached the applicable standard of care, a supplemental Affidavit of Dr. Gubernick was filed. Please see Second (Supplemental) Affidavit of Dr. Gubernick attached hereto as Exhibit C. Paragraphs 7 and 8 of Dr. Gubernick’s Supplemental Affidavit specifically alleges negligence on the part of “Osceola Regional Medical Center, Inc., its nurses, midwives, physicians, agents, and staff, including but not limited to Bhupendrakumar Patel, MD; Ezer Ojeda MD; Dalton Dagan, MD; Marissa Lee, RN; Jacque Altomere, RN; Mary Krolick, RN; Lourdes Rivera, RN; Lisa Denarski RN; Shanon Weisenberger RN; Michael DeNardis, DO; Jaymee Stahl, RN; Rodney Del Valle, MD; and Eric Frendak, CRNA.” See Exhibit C at Paragraph 7. 6 Nowhere within Dr. Gubernick’s pre-suit Affidavit does he make allegations as to OBHG or any other of its agents, employees, staff, and physicians. Moreover, while reference to Dr. Ojeda is made, he is identified as a physician/agent/staff of Osceola Regional Medical Center, Inc., and not identified as an individual physician or employee/agent/apparent agent of OBHG. In addition, the allegations of medical negligence directed to DR. OJEDA in Dr. Gubernick’s supplemental Affidavit include an “and/or” grouped together reference to Dr. Dagan Dalton (an Emergency Department physician who bears no legal relationship with OBHG or DR. OJEDA) , suggesting that the allegations may apply to one, but physician and not the other, making it immensely difficult to discern which expert allegations of negligence apply to DR. OJEDA only. 7) Florida Statute $§766.203 requires that corroboration of reasonable grounds to initiate medical negligence litigation be provided by the claimant in the form of a verified written medical expert opinion at the time the Notice of Intent to Initiate Litigation is mailed. See Florida Statute $766.203. 8) In other words, Florida Statute §766.203 is clear that verified written medical expert opinion “shall corroborate reasonable grounds to support the claim of medical negligence.” 9 Dr. Gubernick’s expert Affidavits, attached as Exhibit B and C, fail to corroborate reasonable grounds to support the alleged negligence of: OBHG individually, OBHG for vicarious liability of DR. OJEDA, and DR. OJEDA individually (separate and apart from Dr. Dalton and as an employee/agent/apparent agent of OBHG not Osceola Regional Medical Center Inc., which is not his lawful employer). 10) The Second DCA recently reaffirmed the requirement that a plaintiff notify each and every potential defendant of an intent to pursue a medical negligence claim in University of South Florida v. Mann, 159 So. 3d 283 (Fla. 2d DCA 2015). 11) In Mann, the Second DCA granted, in part, a Petition for Writ of Certiorari where the plaintiff sued Tampa General Hospital for alleged deviations from the standard of care owed by its nursing staff and nursing supervisors. Id. However, in Mann, the plaintiff’s pre-suit expert affidavit did not address any deficiencies in the care provided by the nursing staff or supervisors, which the Court characterized as “plainly insufficient as a statement to corroborate reasonable grounds to support a claim of medical malpractice as to the nurses and supervisors.” Id. 12) 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 pre-suit investigation and notice requirements were not satisfied when an expert’s affidavit failed to mention a specific doctor, or the negligent onduct in which he is alleged to have engaged. In Mann, just as here, the plaintiff’s pre-suit 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 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 pre- suit affidavit. Id. The trial court refused to dismiss the claim and the appellate court reversed. Id. Because the plaintiff’s pre-suit 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. 13) Likewise in Bonati, the plaintiff’s pre-suit 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 pre-suit investigation 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. Id. 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. 14) Here, as in the cases discussed above, the Plaintiffs’ pre-suit Affidavits do not properly confirm that a pre-suit investigation ever took place as to OBHG’s care and DR. OJEDA individually. Accordingly, any claims of negligence asserted against OBHG should be dismissed, with prejudice. 15) More specifically, as in Mann, the expert Affidavits in the instant matter executed by Dr. Gubernick on Plaintiffs’ behalf fail to comply with the pre-suit requirements of Chapter 766. Dr. Gubernick’s Affidavits fail to identify OBHG or anyone acting directly on OBHGs’ behalf. As such, the allegations contained within Count IV, at least as currently constituted must be dismissed or stricken. 16) Moreover, Count IV of Plaintiffs’ Complaint alleges direct negligence against OBHG for a variety of allegations contained at Paragraph 53 of the Complaint, as listed out in detail under Paragraph 3, above. See Exhibit A at Paragraph 53. 17) None of the allegations of direct negligence outlined in Paragraph 53 of Plaintiffs’ Complaint against OBHG were subjected to a pre-suit investigation, because the allegations were not corroborated by Plaintiffs’ pre-suit expert as required by Florida Statute Chapter 766.203. 18) As such, any assertions of direct negligence as to OBHG should be dismissed or stricken from the Complaint. 19) 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. 2a 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. ist 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. 4 lst 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). 20) Additionally, Florida is not a notice pleading jurisdiction, and Nit is not enough merely to advise the defendant of the theory of the action. ” See Cunningham v. Fla. Dept. of Children & Families, 782 So.2d 913, 919 (Fla. lst DCA 2001). Under Florida law, Nit 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. 5th 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. Under 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). Moreover, it is insufficient to plead opinions, theories, legal conclusions, or argument. ” Id. See also Price v. Morgan, 436 So.2d 1116, 1121-22 (Fla. 5th 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). 21) Given the above, Plaintiffs’ Complaint further fails to state a proper cause of action for medical negligence/vicarious liability against OBHG. 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. First Federal Savings & Loan Association of New Smyrna, 160 So.2d 556 (Fla. lst 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. lst DCA 1966). 22) Here, Plaintiffs’ Complaint comingles direct negligence and vicarious liability claims in Count IV against OBHG and DR. OJEDA such that it is impossible to respond to that count or understand what exactly the claim is. Plaintiffs lump together claims against OBHG and DR. OJEDA in vague catch-all allegations that make it unclear who is liable and in what capacity each is liable in. Moreover, Plaintiffs fail to allege the necessary elements of any vicarious liability claim. Again, the Complaint as pled does not meet the strictures of Fla. R Civ. P. 1.110, and should be dismissed accordingly. 23) Count IV should also be dismissed because Plaintiffs have improperly combined in a single count claims or theories of direct 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. 5th 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(£)"); Dubus v. McArthur, 682 So. 2d 1246 (Fla. lst 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 OBHG in separate counts. 24) Count IV should be dismissed because Plaintiffs have failed to plead the elements of vicarious liability and any ultimate facts supporting a claim. See generally Horowitz v. Laske, 855 So. 2d 169, 172-73 (Fla. 5th 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. 5th 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”). 25) In this case, Plaintiffs have failed to plead the legal elements of respondeat superior vicarious liability in Count IV. See Iglesia Cristiana La Casa Del Senor, Inc. v. LM. 783 So. 2d 353 (Fla. 3rd DCA 2001) (stating “Under the doctrine of respondeat superior, an employer can