On July 08, 101 a
Answer
was filed
involving a dispute between
Burg, Deborah A,
Burg, Nicole,
Burg, Rick,
and
Bruner, Susan,
Criss, Cathy,
Domingo E. Galliano, Jr., P.A.,
Fawcett Memorial Hospital, Inc.,
Galliano, Domingo J,
Harbor Medical Group, Llc,
Joseph, Sovi,
Kamal, Ahsan,
Kiri, Nandini,
Life Care Physician Services, Llc,
Maloney, Vance 3,
Millennium Physician Group, Llc,
Nandini Kiri, M.D., P.A.,
Punta Gorda Medical Investors, Llc,
Rioux, John,
Rodriguez-Martin, Arturo,
Rodriguez-Martin, M.D., P.L., Arturo,
Sovi Joseph, M.D., P.A.,
Utech, Abigail,
Weerasinghe, Dilendra,
West Florida Physicians Network, Llc,
for Medical Malpractice
in the District Court of Charlotte County.
Preview
Filing # 112659828 E-Filed 08/31/2020 04:45:38 PM
IN THE CIRCUIT COURT OF THE 20th JUDICIAL COURT
IN AND FOR CHARLOTTE COUNTY, FLORIDA
DEBORAH COOPER BURG, by
and through her Court-appointed Guardian,
RICKY BURG; NICOLE BURG,
her daughter; and RICKY BURG, her spouse,
Plaintiffs, CASE NO. 2020-000616 CA
WEST FLORIDA PHYSICIAN NETWORK, LLC;
DILENDRA WEERASINGHE; JOHN RIOUX;
FAWCETT MEMORIAL HOSPITAL,INC. d/b/a
FAWCETT MEMORIAL HOSPITAL;ABIGAIL
UTECH; NANDINI KIRLM.D.,P.A.; NANDINI KIRE
HARBOR MEDICAL GROUP, LLC;AHSAN KAMAL;
SOVI JOSEPH,M.D.,P.A.;SOVI JOSEPH;
DOMINGO E. GALLIANO, JR.,P.A.; DOMINGO
GALLIANO, JR.; PUNTA GORDA MEDICAL
INVESTORS,LLC d/b/a LIFE CARE CENTER OF
PUNTA GORDA; LIFE CARE PHYSICIAN SERVICES, LLC;
and VANCE MALONEY, IIL,
Defendants.
ANSWER AND AFFIRMATIVE DEFENSES
TO PLAINTIFFS’ COMPLAINT OF
DOMINGO E. GALLIANO, JR., P.A. AND DOMINGO GALLIANO, JR.
COMES NOW the Defendants, DOMINGO E, GALLIANO, Jr. P.A. and DOMINGO
GALLIANO, JR., by and through their undersigned counsel and hereby files their Answer and
Affirmative Defenses to the Plaintiffs' complaint as follows:
ANSWER
COUNT 1 THROUGH COUNT XXXUIT
1 through 419 - These allegations do not pertain to these Defendants. To the extent they may
be deemed to pertain to these Defendants they are denied.
COUNT XXXIV
420. Denied.
421 Without knowledge and therefore denied.
422. Denied.
423 Denied.
424. Denied.
425 Denied.
426. It is admitted that Domingo Galliano, Jr. was and is a medical doctor practicing in
Florida who is a resident of the state of Florida. Otherwise denied as incomplete and
lacking context.
427 . The allegation against Domingo E. Galliano, Jr., P.A. and it’s employees and staff are
specifically denied. All other allegations in this paragraph of the Complaint are
denied as incomplete and lacking context.
428 Denied.
429. Denied.
430. Denied.
431 Denied.
432. Denied.
433, Denied
COUNT Vv
434, Denied.
435 Without knowledge and therefore denied.
436. Denied.
437 Denied.
438 Denied
439. It is admitted only that Domingo Galliano, Jr. was and is a medical doctor practicing
in Florida who was and is a resident of the state of Florida. Otherwise denied.
440. The allegations against Domingo E Galliano, Jr., P.A. and it’s employees and staff
are specifically denied. All other allegations in this paragraph of the Complaint are
denied as incomplete and lacking context.
441 Denied.
442, Denied.
443 Denied.
444 Denied.
445 Denied
446 Denied.
COUNT XXxVIi
447 Denied.
448 Without knowledge and therefore denied.
449. Denied.
450. Denied.
451 Denied.
452 It is admitted only that Domingo Galliano, Jr. was and is a medical doctor practicing
in Florida who was and is a resident of the state of Florida. Otherwise denied.
453 The allegations against Domingo E Galliano Jr., P.A. and it’s employees and staffare
specifically denied. All other allegations in this paragraph of the Complaint are
denied as incomplete and lacking context.
454 Denied.
455, Denied.
457 Denied
458 Denied,
459 Denied.
COUNT XXXVI
460. Denied.
461 Without knowledge and therefore denied.
462. Without knowledge and therefore denied,
463 Denied.
464, Denied.
465, It is admitted only that Domingo Galliano, Jr., M.D. was and is a medical doctor
practicing in Florida who was and is a resident of the state of Florida. Otherwise
denied.
466 The allegations against Domingo Galliano, Jr., M.D. are specifically denied. All
other allegations in this paragraph of the Complaint are denied as incomplete and.
lacking context.
467. Denied
468 Denied.
469, Denied.
470 Denied.
471 Denied
472 Denied.
COUNT XXXVI
473 Denied.
474, Without knowledge and therefore denied.
475, Denied.
476. Denied.
477. It is admitted only that Domingo Galliano, Jr., M.D. was and is a medical doctor
practicing in Florida who was and is a resident of the state of Florida. Otherwise
denied.
478. The allegations against Domingo Galliano, Jr. are specifically denied. All other
allegations in this paragraph of the Complaint are denied as incomplete and lacking
context.
479 Denied.
480. Denied.
481 Denied.
482. Denied.
483 Denied.
484 Denied.
COUNT XXXIX
485 Denied.
486, Without knowledge and therefore denied.
487 Denied.
488 Denied.
489. Admitted only that Domingo Galliano, Jr, M.D. was and is a medical doctor
practicing in Florida who was and is a resident of the state of Florida. Otherwise
denied.
490, The allegations against Domingo Galliano, Jr., M.D. are specifically denied. All
other allegations in this paragraph of the Complaint are denied as incomplete and
6
lacking context.
491 Denied.
492. Denied.
493 Denied.
494 Denied.
495, Denied.
496, Denied
COUNT XL THROUGH COUNT XLVUI
497 through 610- These allegations do not pertain to these Defendants to extent they may
be deemed to pertain to these Defendants they are denied.
Any and all allegations not specifically responded to above are denied.
AFFIRMATIVE DEFENSES
Defendants, DOMINGO E GALLIANO, JR. P.A.and DOMINGO GALLIANO, JR., having
specifically answered each paragraph of the amended complaint, now alleges as separate and
affirmative defenses the following:
1 Plaintiff herein has received benefits from collateral sources.
2 ‘That at the time and place and under the circumstances set forth in the complaint, the
Plaintiff was careless and negligent, and said carelessness and negligence was the sole and proximate
cause of the occurrence complained of and any injury, damage or loss allegedly sustained therein.
3 The consent obtained for medical treatment from the Plaintiff was in accordance with
an accepted standard of medical practice among members of the medical profession with similar
training and experience.
4 The Plaintiff would reasonably, under all surrounding circumstances, have undergone
such treatment or procedure had she been advised by the Defendants in accordance with the accepted
standard of medical practice by members of the medical profession.
5 Atall times material hereto the Defendants acted in good faith and with due regard
for the prevailing professional standard of care.
6 Defendants affirmatively allege that Plaintiff wholly failed to comply with the
mandatory requirements of Chapter 766 and 768, Florida Statutes, and that his failure to comply
grants this Court no jurisdiction over the Plaintiff or the claims herein.
and
7 That such injury as Plaintiff may have suffered was solely the result of the natural
to treat
inexorable process of human disease and condition, and of the recognized risks of therapy
the same.
8 That such injury as the Plaintiff may have suffered was solely the result of the
recognized risk of the care or treatment provided.
9 Defendants affirmatively allege that Plaintiff failed to comply with the mandatory
provisions of Chapter 766 and particularly the requirements during the statutorily mandated
screening period so that the complaint represents a legal nullity.
10. Defendants are entitled to the applicable provisions of Florida Statutes §766.102,
§766.103, §766.104, §768.76, §768.78 and §768.81.
1. Pursuant to Florida Statute 768.28 Defendants are entitled to sovereign immunity,
including but not limited to the limits on monetary liability contained within Florida Statute 768.28.
12. Plaintiff has failed to comply with the notice provisions of Florida Statute 768.28.
13. Plaintiff has failed to comply with the pre-suit screening requirements of Florida's
Medical Malpractice Reform Act.
14. Defendants affirmatively allege that Plaintiff's damages, ifany, were caused wholly
,
or in part by third persons over whom Defendant had no custody or control and, therefore
, in
Defendants cannot be held liable, or their liability should be reduced proportionately. Moreover
would
the event that any or all other co-Defendants are dismissed from this case, Defendants
"Fabre"
simultaneously specifically identify those individuals and/or entities as non-party or
Defendants.
15. Defendants are entitled to the benefits and the limiting provisions of Florida Statute
basis of
768.81 which provides that "the Court shall enter judgment against each party liable on the
liability".
such party's percentage of fault and not on the basis of the doctrine of joint and several
16. Defendants are entitled to the limiting provisions of Florida Statute 766.118 which
provides for limitations on non-economic damages so that the Plaintiff herein may not recover
non-economic damages from this Defendant in excess of caps provided therein.
17. The Plaintiff herein has failed to mitigate his damages.
18. Defendants are entitled to an offset for all amounts paid in settlement by any other
party to this litigation, any past party to this litigation and any person or entity who paid settlement
funds to settle any claims arising out of the above captioned litigation.
19, Each cause of action, claim and item of damages did not accrue within the time
prescribed by law for them before this action was brought and therefore this case is barred by
expiration of the applicable statute of limitations or repose.
20. Defendants are entitled to present evidence and argument at trial that Plaintiff's future
damages should be reduced by his expected future Social Security disability and Medicare payments.
Further the Court should set off these payments against any future damages awarded to Plaintiff to
prevent a windfall. Florida Physicians Reciprocal v, Stanley, 452 So.2d 514 (Fla. 1984). See also
State Farm Mutual Automobile Insurance Company v. Jeorg, 2013 FLA. App. Lexis 9840 (Fla. 2d
DCA 2013); Fence Wholesalers of America, Inc. v. Beneficial Commercial Corp., 465 So.2d 570
(Fla. 4th DCA 1985) and State Marine Patrol v, Clifton, 959 So.2d 1262 (Fla. Ist DCA 2007).
21. The pre-suit affiant used by the Plaintiff to initiate pre-suit screening was
inadequately qualified and credentialed to give expert testimony against Dr. Reed. The deficiencies
in this expert's qualifications may include the fact that he is not qualified with background training
and experience similar to the Defendants in this case.
WHEREFORE, Defendants, DOMINGO E. GALLIANO, JR. P.A. and DOMINGO
GALLIANO, JR. ,request the award of attorneys’ fees pursuant to Florida Statute 57.105,
together with costs, and any other such relief as this Court deems proper, including entitlement to
attorneys’ fees for the filing of a Proposal of Settlement pursuant to Florida Statute 768.79 and
Florida Rules of Civil Procedure 1,442.
DEMAND FOR JURY TRIAL
Defendants, Domingo E Galliano, Jr, PA. and Domingo Galliano, Jr. demands a jury trial
on all issues triable before a jury.
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a copy of the foregoing has been furnished via e-service to
EDWARD BLUMBERG, Esquire
100 North Biscayne Boulevard, Suite 2802
Miami, FL 33132
Counsel for the Plaintiffs
rb@deutschblumberg.con
rmitchell@deutschblumberg.com
on nis 3!" day of August, 2020
DICKINSON & GIBBONS, P.A.
By
RALPH L. MARCHBANK, JR.
Rmarchbank@dglawyers.com
Lgordon@dglawyers.com
401 North Cattlemen Road, Suite 300
Sarasota, FL 34232
Florida Bar No. 305571
(941) 366-4680
Counsel for Defendants/Domingo Galliano, Jr. and
Domingo E Galliano, Jr. P.A.
10
Preview
Filing # 112659828 E-Filed 08/31/2020 04:45:38 PM IN THE CIRCUIT COURT OF THE 20th JUDICIAL COURT IN AND FOR CHARLOTTE COUNTY, FLORIDA DEBORAH COOPER BURG, by and through her Court-appointed Guardian, RICKY BURG; NICOLE BURG, her daughter; and RICKY BURG, her spouse, Plaintiffs, CASE NO. 2020-000616 CA WEST FLORIDA PHYSICIAN NETWORK, LLC; DILENDRA WEERASINGHE; JOHN RIOUX; FAWCETT MEMORIAL HOSPITAL,INC. d/b/a FAWCETT MEMORIAL HOSPITAL;ABIGAIL UTECH; NANDINI KIRLM.D.,P.A.; NANDINI KIRE HARBOR MEDICAL GROUP, LLC;AHSAN KAMAL; SOVI JOSEPH,M.D.,P.A.;SOVI JOSEPH; DOMINGO E. GALLIANO, JR.,P.A.; DOMINGO GALLIANO, JR.; PUNTA GORDA MEDICAL INVESTORS,LLC d/b/a LIFE CARE CENTER OF PUNTA GORDA; LIFE CARE PHYSICIAN SERVICES, LLC; and VANCE MALONEY, IIL, Defendants. ANSWER AND AFFIRMATIVE DEFENSES TO PLAINTIFFS’ COMPLAINT OF DOMINGO E. GALLIANO, JR., P.A. AND DOMINGO GALLIANO, JR. COMES NOW the Defendants, DOMINGO E, GALLIANO, Jr. P.A. and DOMINGO GALLIANO, JR., by and through their undersigned counsel and hereby files their Answer and Affirmative Defenses to the Plaintiffs' complaint as follows: ANSWER COUNT 1 THROUGH COUNT XXXUIT 1 through 419 - These allegations do not pertain to these Defendants. To the extent they may be deemed to pertain to these Defendants they are denied. COUNT XXXIV 420. Denied. 421 Without knowledge and therefore denied. 422. Denied. 423 Denied. 424. Denied. 425 Denied. 426. It is admitted that Domingo Galliano, Jr. was and is a medical doctor practicing in Florida who is a resident of the state of Florida. Otherwise denied as incomplete and lacking context. 427 . The allegation against Domingo E. Galliano, Jr., P.A. and it’s employees and staff are specifically denied. All other allegations in this paragraph of the Complaint are denied as incomplete and lacking context. 428 Denied. 429. Denied. 430. Denied. 431 Denied. 432. Denied. 433, Denied COUNT Vv 434, Denied. 435 Without knowledge and therefore denied. 436. Denied. 437 Denied. 438 Denied 439. It is admitted only that Domingo Galliano, Jr. was and is a medical doctor practicing in Florida who was and is a resident of the state of Florida. Otherwise denied. 440. The allegations against Domingo E Galliano, Jr., P.A. and it’s employees and staff are specifically denied. All other allegations in this paragraph of the Complaint are denied as incomplete and lacking context. 441 Denied. 442, Denied. 443 Denied. 444 Denied. 445 Denied 446 Denied. COUNT XXxVIi 447 Denied. 448 Without knowledge and therefore denied. 449. Denied. 450. Denied. 451 Denied. 452 It is admitted only that Domingo Galliano, Jr. was and is a medical doctor practicing in Florida who was and is a resident of the state of Florida. Otherwise denied. 453 The allegations against Domingo E Galliano Jr., P.A. and it’s employees and staffare specifically denied. All other allegations in this paragraph of the Complaint are denied as incomplete and lacking context. 454 Denied. 455, Denied. 457 Denied 458 Denied, 459 Denied. COUNT XXXVI 460. Denied. 461 Without knowledge and therefore denied. 462. Without knowledge and therefore denied, 463 Denied. 464, Denied. 465, It is admitted only that Domingo Galliano, Jr., M.D. was and is a medical doctor practicing in Florida who was and is a resident of the state of Florida. Otherwise denied. 466 The allegations against Domingo Galliano, Jr., M.D. are specifically denied. All other allegations in this paragraph of the Complaint are denied as incomplete and. lacking context. 467. Denied 468 Denied. 469, Denied. 470 Denied. 471 Denied 472 Denied. COUNT XXXVI 473 Denied. 474, Without knowledge and therefore denied. 475, Denied. 476. Denied. 477. It is admitted only that Domingo Galliano, Jr., M.D. was and is a medical doctor practicing in Florida who was and is a resident of the state of Florida. Otherwise denied. 478. The allegations against Domingo Galliano, Jr. are specifically denied. All other allegations in this paragraph of the Complaint are denied as incomplete and lacking context. 479 Denied. 480. Denied. 481 Denied. 482. Denied. 483 Denied. 484 Denied. COUNT XXXIX 485 Denied. 486, Without knowledge and therefore denied. 487 Denied. 488 Denied. 489. Admitted only that Domingo Galliano, Jr, M.D. was and is a medical doctor practicing in Florida who was and is a resident of the state of Florida. Otherwise denied. 490, The allegations against Domingo Galliano, Jr., M.D. are specifically denied. All other allegations in this paragraph of the Complaint are denied as incomplete and 6 lacking context. 491 Denied. 492. Denied. 493 Denied. 494 Denied. 495, Denied. 496, Denied COUNT XL THROUGH COUNT XLVUI 497 through 610- These allegations do not pertain to these Defendants to extent they may be deemed to pertain to these Defendants they are denied. Any and all allegations not specifically responded to above are denied. AFFIRMATIVE DEFENSES Defendants, DOMINGO E GALLIANO, JR. P.A.and DOMINGO GALLIANO, JR., having specifically answered each paragraph of the amended complaint, now alleges as separate and affirmative defenses the following: 1 Plaintiff herein has received benefits from collateral sources. 2 ‘That at the time and place and under the circumstances set forth in the complaint, the Plaintiff was careless and negligent, and said carelessness and negligence was the sole and proximate cause of the occurrence complained of and any injury, damage or loss allegedly sustained therein. 3 The consent obtained for medical treatment from the Plaintiff was in accordance with an accepted standard of medical practice among members of the medical profession with similar training and experience. 4 The Plaintiff would reasonably, under all surrounding circumstances, have undergone such treatment or procedure had she been advised by the Defendants in accordance with the accepted standard of medical practice by members of the medical profession. 5 Atall times material hereto the Defendants acted in good faith and with due regard for the prevailing professional standard of care. 6 Defendants affirmatively allege that Plaintiff wholly failed to comply with the mandatory requirements of Chapter 766 and 768, Florida Statutes, and that his failure to comply grants this Court no jurisdiction over the Plaintiff or the claims herein. and 7 That such injury as Plaintiff may have suffered was solely the result of the natural to treat inexorable process of human disease and condition, and of the recognized risks of therapy the same. 8 That such injury as the Plaintiff may have suffered was solely the result of the recognized risk of the care or treatment provided. 9 Defendants affirmatively allege that Plaintiff failed to comply with the mandatory provisions of Chapter 766 and particularly the requirements during the statutorily mandated screening period so that the complaint represents a legal nullity. 10. Defendants are entitled to the applicable provisions of Florida Statutes §766.102, §766.103, §766.104, §768.76, §768.78 and §768.81. 1. Pursuant to Florida Statute 768.28 Defendants are entitled to sovereign immunity, including but not limited to the limits on monetary liability contained within Florida Statute 768.28. 12. Plaintiff has failed to comply with the notice provisions of Florida Statute 768.28. 13. Plaintiff has failed to comply with the pre-suit screening requirements of Florida's Medical Malpractice Reform Act. 14. Defendants affirmatively allege that Plaintiff's damages, ifany, were caused wholly , or in part by third persons over whom Defendant had no custody or control and, therefore , in Defendants cannot be held liable, or their liability should be reduced proportionately. Moreover would the event that any or all other co-Defendants are dismissed from this case, Defendants "Fabre" simultaneously specifically identify those individuals and/or entities as non-party or Defendants. 15. Defendants are entitled to the benefits and the limiting provisions of Florida Statute basis of 768.81 which provides that "the Court shall enter judgment against each party liable on the liability". such party's percentage of fault and not on the basis of the doctrine of joint and several 16. Defendants are entitled to the limiting provisions of Florida Statute 766.118 which provides for limitations on non-economic damages so that the Plaintiff herein may not recover non-economic damages from this Defendant in excess of caps provided therein. 17. The Plaintiff herein has failed to mitigate his damages. 18. Defendants are entitled to an offset for all amounts paid in settlement by any other party to this litigation, any past party to this litigation and any person or entity who paid settlement funds to settle any claims arising out of the above captioned litigation. 19, Each cause of action, claim and item of damages did not accrue within the time prescribed by law for them before this action was brought and therefore this case is barred by expiration of the applicable statute of limitations or repose. 20. Defendants are entitled to present evidence and argument at trial that Plaintiff's future damages should be reduced by his expected future Social Security disability and Medicare payments. Further the Court should set off these payments against any future damages awarded to Plaintiff to prevent a windfall. Florida Physicians Reciprocal v, Stanley, 452 So.2d 514 (Fla. 1984). See also State Farm Mutual Automobile Insurance Company v. Jeorg, 2013 FLA. App. Lexis 9840 (Fla. 2d DCA 2013); Fence Wholesalers of America, Inc. v. Beneficial Commercial Corp., 465 So.2d 570 (Fla. 4th DCA 1985) and State Marine Patrol v, Clifton, 959 So.2d 1262 (Fla. Ist DCA 2007). 21. The pre-suit affiant used by the Plaintiff to initiate pre-suit screening was inadequately qualified and credentialed to give expert testimony against Dr. Reed. The deficiencies in this expert's qualifications may include the fact that he is not qualified with background training and experience similar to the Defendants in this case. WHEREFORE, Defendants, DOMINGO E. GALLIANO, JR. P.A. and DOMINGO GALLIANO, JR. ,request the award of attorneys’ fees pursuant to Florida Statute 57.105, together with costs, and any other such relief as this Court deems proper, including entitlement to attorneys’ fees for the filing of a Proposal of Settlement pursuant to Florida Statute 768.79 and Florida Rules of Civil Procedure 1,442. DEMAND FOR JURY TRIAL Defendants, Domingo E Galliano, Jr, PA. and Domingo Galliano, Jr. demands a jury trial on all issues triable before a jury. CERTIFICATE OF SERVICE I HEREBY CERTIFY that a copy of the foregoing has been furnished via e-service to EDWARD BLUMBERG, Esquire 100 North Biscayne Boulevard, Suite 2802 Miami, FL 33132 Counsel for the Plaintiffs rb@deutschblumberg.con rmitchell@deutschblumberg.com on nis 3!" day of August, 2020 DICKINSON & GIBBONS, P.A. By RALPH L. MARCHBANK, JR. Rmarchbank@dglawyers.com Lgordon@dglawyers.com 401 North Cattlemen Road, Suite 300 Sarasota, FL 34232 Florida Bar No. 305571 (941) 366-4680 Counsel for Defendants/Domingo Galliano, Jr. and Domingo E Galliano, Jr. P.A. 10