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Filing # 112664923 E-Filed 08/31/2020 05:35:07 PM
IN THE CIRCUIT COURT OF THE TWENTIETH JUDICIAL CIRCUIT
IN AND FOR CHARLOTTE COUNTY, STATE OF FLORIDA
DEBORAH COOPER BURG, by and through
her Court- appointed Guardian, RICKY
BURG; NICOLE BURG, her daughter; and
RICKY BURG, her spouse,
Plaintiff,
vs.
WEST FLORIDA PHYSICIAN NETWORK,
LLC; DILENDRA WEERASINGHE; JOHN
RIOUX; FAWCETT MEMORIAL
HOSPITAL, INC. d/b/a FAWCETT CASE NO.: 20000616CA
MEMORIAL HOSPITAL; ABIGAIL
UTECH; NANDINI KIRI, MD., PA;
NANDINI KIRI; HARBOR MEDICAL
GROUP, LLC; AHSAN KAMAL; SOVI
JOSEPH, M.D.,
PAS SOVI JOSEPH:
DOMINGO E. GALLIANO, JR., PA;
DOMINGO GALLIANO, JR.; PUNTA
GORDA MEDICAL INVESTORS, LLC d/b/a
LIFE CARE CENTER OF PUNTA GORDA;
LIFE CARE PHYSICIAN SERVICES, LLC;
and VANCE MALONEY, III,
Defendants.
/
DEFENDANT FAWCETT MEMORIAL HOSPITAL, INC, d/b/a FAWCETT.
MEMORIAL HOSPITAL’S MOTION TO DISMISS COUNTS X, XI, AND XII OF
PLAINTIFF’S COMPLAINT OR IN THE ALTERNATIVE, MOTION FOR MORE
DEFINITE STATEMENT, OR IN THE ALTERNATIVE MOTION TO STRIKE
COMES NOW, Defendant, FAWCETT MEMORIAL HOSPITAL, INC. d/b/a
FAWCETT MEMORIAL HOSPITAL (the “HOSPITAL”) by and through its undersigned
counsel, and hereby files its Motion to Dismiss Counts X, XI, and XII of Plaintiff's Complaint
pursuant to Fla. R. Civ. P. 1.140(b), or in the alternative Motion for More Definite Statement
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pursuant to Fla. R. Civ. P. 1.140(e), or, in the Alternative, Motion to Strike pursuant to Fla. R.
Civ. P. 1.140(f) and as grounds therefore, states as follows:
1 This is a claim for medical negligence arising from care and treatment provided to
Plaintiff, DEBORAH COOPER BURG (“Mrs. Burg”) in June 2019.
2. On April 3, 2020, the HOSPITAL received a Notice of Intent to Initiate Litigation
for Medical Malpractice (“NOI”).
3 After expiration of the required presuit investigation period, on or about July 21,
2020, Plaintiff filed a forty-eight-count medical negligence action against the HOSPITAL and
multiple other co-defendants alleging that as a result of the negligent care and treatment rendered
by the named Defendants during Mrs. Burg’s admission, she suffered injury.
4 Three of Plaintiffs counts are directed towards the HOSPITAL as follows: Count
XxX is entitled “CLAIM ON BEHALF OF DEBORAH COOPER BURG AGAINST
DEFENDANT FAWCETT MEMORIAL HOSPITAL, INC. d/b/a FAWCETT MEMORIAL
HOSPITAL”; Count XI is entitled “CLAIM ON BEHALF OF NICOLE BURG AGAINST
DEFENDANT FAWCETT MEMORIAL HOSPITAL, INC. d/b/a FAWCETT MEMORIAL
HOSPITAL”; and COUNT XII is entitled “CLAIM ON BEHALF OF RICKY BURG
AGAINST DEFENDANT FAWCETT MEMORIAL HOSPITAL, INC. d/b/a FAWCETT
MEMORIAL HOSPITAL.”
Motion to Dismiss Counts X, XI, and XII or in the Alternative, Motion for More
Definite Statement, or in the Alternative Motion to Strike
To survive a motion to dismiss, a complaint must allege a prima facie case. See Alvarez, 708
So. 2d at 999; see also Wausau Ins. Co. v. Wainer, 683 So. 2d 1123, 1124 (Fla. 4th DCA 1996).
Mere conclusions unsupported by specific facts will not suffice to withstand a motion to dismiss.
Page 2 of 9
See Dr. Navarro’s Vein Centre of Palm Beach, Inc. v. Miller, 22 So. 3d 776, 778 (Fla. 4th DCA
2009). General pleading requirements are governed by Florida Rule of Civil Procedure 1.110(b),
which requires a short and plain statement of the ultimate facts supporting the allegations so that
the Court and the defendant can clearly determine what is being alleged. Fontainbleau Hotel
Corp. v. Walters, 246 So. 2d 563 (Fla. 1971). The Fontainbleau Court held that “... a complaint
must contain sufficient allegations to acquaint the defendants with the plaintiffs charge of
wrongdoing so that the defendant can intelligently formulate a responsive pleading.” Id. See also,
Foerman y. Seaboard Coast Line R. Co., 279 So. 2d 825 (Fla. 1973) (there are “numerous
authorities holding that the complaint must be sufficiently pleaded so as to apprise both the court
and the defendant of the nature of the claim asserted ...”).
Counts X, XI, and XII should be dismissed against the HOSPITAL for failure to state a cause
of action cognizable under Florida law as well as improperly intermingling multiple causes of
actions, or, in the alternative, a more definite statement should be pled, as it is unclear what
theory of liability Plaintiff is pursuing and the Counts improperly comingle several theories of
liability.
Plaintiffs’ Complaint attempts to state a cause of action against the HOSPITAL based on
both direct negligence of the HOSPITAL’s employees under a theory of respondeat superior as
well as vicarious liability of the HOSPITAL for agents, apparent agents, ostensible agents,
directors and officers, staff and other staff members. Specifically, Plaintiffs allege as follows:
“Defendant FAWCETT MEMORIAL HOSPITAL, INC. d/b/a
FAWCETT MEMORIAL HOSPITAL acted at all pertinent times by
and through its employees, agents, apparent agents, ostensible agents,
directors and officers including, but not limited to Susan Bruner and
Defendant ABIGAIL UTECH and its related staff as well as other
staff members who care for, assessed or provided services to
DEBORAH COOPER BURG. As to all matters concerning the care
and treatment of DEBORAH COOPER BURG, each of the sad
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Defendant FAWCETT MEMORIAL HOSPITAL, INC. d/b/a
FAWCETT MEMORIAL HOSPITAL’s employees, agents, apparent
agents, ostensible agents, directors and officers acted at all pertinent
times within the course and scope of such employment, agency,
apparent agency, or ostensible agency.” (Compl. at § 120, 132, and
144).
Other than Susan Bruner and Defendant ABIGAIL UTECH, Counts X, XI, and XII of
Plaintiff's Complaint fail to identify any individuals, or at the very least, the type of health care
provider, alleged to have deviated from the standard of care for whom the Plaintiffs seek to hold
HOSPITAL vicariously liable. The Plaintiffs’ Complaint also fails to properly state the theory
under which the HOSPITAL is allegedly vicariously liable for the provider or non-healthcare
provider. In fact, the Plaintiffs’ Complaint completely fails to allege ultimate facts regarding the
identity of employees, agents, apparent agents, ostensible agents, officers and directors and their
cause of action under which they allege that the HOSPITAL should be deemed liable for those
unnamed providers and non-providers, such as the officers and directors. Simply put, Plaintiff's
Complaint is so vague that the Defendant HOSPITAL cannot reasonably be expected to be on
notice of the claims against it, and it further is pled in such a way that the allegations which are
made are (a) insufficient to plead a cause of action under Florida law and (b) improperly
intermingles multiple causes of action.
Not all of the HOSPITAL’s staff and employees are subject to the same standard of care
as a nutritionist. In the Complaint, Plaintiffs fail to acknowledge those differing standards.
Rather, Plaintiff interchangeably identifies “employees, agents, apparent agents, ostensible
agents, directors and officers” without recognizing the different standards of care which are
attributable to various health care providers and non-health care providers. The HOSPITAL is
entitled to know what allegations it is defending against and whom it is defending. As currently
pled, it is entirely unclear who deviated from what standard of care. The HOSPITAL is not
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required to speculate as to what claims Plaintiff is asserting and then try to formulate responses
and defenses to same. See Horowitz v. Laske, 855 So. 2d 169, 173; Michael H. Bloom, P.A. v.
Dorta-Duque, 743 So. 2d 1202, 1203 (Fla. 3d DCA 1999) (“It is well settled that a defendant
cannot be found liable under a theory that was not specifically pled”); see also Robbins v.
Newhall, 692 So. 2d 947 (Fla. 3d DCA 1997).
Plaintiffs also improperly comingle three or more different theories of liabilities in one
count. Florida Rule of Civil Procedure 1.110(f) provides that “each claim founded upon a
separate transaction or occurrence...shall be stated in a separate count...when separation
facilitates the clear presentation of the matter set forth.” See also Pratus v. City of Naples, 807
So. 2d 795 (Fla. 2d DCA 2002); Aspsoft, Inc. v. WebClay, 983 So. 2d 761, 768 (Fla. Sth DCA
2008) (holding that plaintiff's complaint set forth defective claims by “impermissibly comingling
separate and distinct claims” in a single count); Dubus v. McArthur, 682 So. 2d 1246, 1247 (Fla.
1st DCA 1996) (stating that the “task of the trial court was made more difficult because the
appellants’ amended complaint improperly attempts to state in a single count separate causes of
action”).
Plaintiff has improperly comingled multiple causes of action within Counts X, XI and XII
of the Complaint, making the claims confusing and indecipherable. Further, there is no action in
medical negligence for “ostensible agency” recognized under Florida law. The HOSPITAL
should not be required to defend itself against a claim for “ostensible agency” when it is not a
cognizable claim.
If Plaintiffs are seeking to impose liability upon the HOSPITAL for various agency
theories, those theories must be specifically pled and must include allegations of ultimate fact
relating to each element of the claim. In their Complaint, Plaintiffs specifically fail to allege the
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required elements for a cause of action cognizable under Florida law for non-employees. That
failure to allege necessary elements dooms Plaintiffs’ Complaint.
Respondeat superior, actual agency, and apparent agency are three separate and distinct
causes of action, each with their own separate and distinct elements. See Thompson v. Carnival
Corp., 174 F. Supp. 3d 1327, 1342 (S.D. Fla. 2016) (“plainly, actual agency and apparent agency
are distinct theories of liability”); Jackson-Davis v. Carnival Corp., 17-24089-CIV, 2018 WL
1468665 (S.D. Fla. Mar. 23, 2018) S. Florida Coastal Elec., Inc. v. Treasures on Bay II Condo
Ass'n, 89 So. 3d 264, 270 (Fla. 3d DCA 2012) (“In order to plead a claim for apparent agency,
facts supporting the following three elements must be alleged: (1) a representation by the
purported principal; (2) reliance on that representation by a third party; and (3) a change in
position by the third party in reliance on the representation’) (internal quotations omitted). In
fact, Plaintiffs have failed to allege any facts which establish a relationship between any
healthcare provider/non-healthcare provider and the HOSPITAL. See Thompson, 174 F. Supp.
3d at 1342 (“to hold a principal liable for the negligence of an apparent agent, a plaintiff must
sufficiently allege the elements of apparent agency in addition to the elements of the underlying
negligent act of the agent for which the plaintiff seeks to hold the principal liable”). Plaintiffs
have failed to allege any elements required to state a cause of action for apparent agency,
therefore Counts X, XI and XII of the Plaintiffs’’ Complaint must be dismissed for failure to
state a cause of action.
Additionally, under Florida law, to establish a cause of action for actual agency the
Plaintiffs must plead ultimate facts identifying the purported actual agent as well as the
existence of an actual agency relationship by alleging (1) acknowledgment by the principal that
the agent will act for him, (2) the agent’s acceptance of the undertaking, and (3) control by the
Page 6 of 9
principal over the actions of the agent. Goldschmidt v. Holman, 571 So. 2d 422, 424 n.5 (Fla.
1990). Counts X, XI and XII fail to allege the elements of actual agency. Similarly, according
to Florida case law an apparent agency exists only if all three of the following elements are
present: (a) a representation by the purported principal; (b) a reliance on that representation by a
third party; and (c) a change in position by the third party in reliance on the representation.
Mobil Oil Corp. v. Bransford, 648 So. 2d 119, 121 (Fla. 1995). Apparent authority does not
arise from the subjective understanding of the person dealing with the purported agent or from
appearances created by the purported agent himself. /zquierdo v. Hialeah Hosp., Inc., 709 So. 2d
187, 188 (Fla. 3d DCA 1998). Rather, apparent authority exists only where the principal creates
the appearance of an agency relationship. /d. Not only do Counts X, XI and XII fail to identify
the alleged apparent agents, they fail to allege the elements of apparent agency.
Here, Plaintiffs fail to identify which physicians or other healthcare providers they intend
to hold the HOSPITAL liable for, fail to allege any theory under which they seek to hold the
HOSPITAL liable, and has inappropriately improperly comingled multiple, separate causes of
action, within a single count while failing to properly allege any separate cause of action, making
it impossible to discern what is being alleged such that the HOSPITAL can appropriately defend
itself.
Plaintiff
has thus failed to comply with Fla. R. Civ. P. 1.110(f) and Counts X, XI, and XII
of Plaintiff's Complaint should be dismissed or alternatively, Plaintiff should be required to
plead a more definite statement, or alternatively, Paragraphs 120, 132, and 144 should be
stricken from Plaintiffs Complaint.
WHEREFORE, Defendant, FAWCETT MEMORIAL HOSPITAL, INC. d/b/a
FAWCETT MEMORIAL HOSPITAL, moves this Honorable Court to grant this Motion to
Page 7 of 9
Dismiss Counts X, XI, and XII of Plaintiff's Complaint, or, in the Alternative, Motion for More
Definite Statement, or in the alternative Motion to Strike and for any other relief the Court deems
just and proper.
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and accurate copy of the above and foregoing has been
furnished by electronic mail delivery on this __ day of August, 2020 to: Edward R. Blumberg,
Esquire, Deutsch Blumberg & Caballero, PA, ERB@DeutschBlumberg.com,
tmitchellDeutschblumberg.com, Counsel for Claimants; Victoria N. Ferrentino, Esquire, Bush
Graziano Rice & Platter, P.A.. 100 S. Ashley Drive, Suite 1400, Tampa, FL 33602.
vferrentino@bqrplaw.com, Counsel for John Rioux, MD and West Florida Physician Network,
LLC d/b/a Gulf Pointe Surgical Specialists; Ralph L. Marchbank, Dickinson & Gibbons, P.A.,
401 N. Cattlemen Road, Suite 300, Sarasota, FL 34232, RMarchbank@dglawyers.com,
lgordon@dglawyers.com, JGadoury@dglawyers.com, Counsel for Domingo E. Galliano, Jr.,
M.D., Domingo E. Galliano, Jr., P.A.; Richard Mangan, Esquire, Kelsey Campbell, Esquire,
Rissman Barrett Hurt Donahue McLain & Mangan, 1 N. Dale Mabry Highway, Suite 1100,
Tampa, FL 33609, Stephanie.Doyle@rissman.com, Counsel for Nandini Kiri, M.D., Nandini
Kiri, M.D., P.A.; Douglas B. Lumpkin, Esquire, Wicker Smith, 1819 Main Street, Suite 910,
Sarasota, FL 34235, DLumpkin@wickersmith.com, JStJohn@wickersmith.com, Counsel for
Ahsan Kamal, M.D., Ahsan Kamal, M.D., P.A. and Harbor Medical Group; Susanne E.
Riedhammer, Esquire, Chimpoulis & Hunter, P.A., 159 South Pine Island Road, Suite 510,
Plantation, FL 33324, sriedhammer@chimpoulishunter.com, Counsel for Vance Maloney, III,
M.D. and Punta Gorda Medical Investors, LLC d/b/a Life Care Center of Punta Gorda; Richard
Bowers, Esquire, Banker Lopez Gassler P.A., 501 East Kennedy Blvd, Suite 1700, Tampa, FL
Page 8 of 9
33602, service-rbowers@bankerlopez.com, Counsel for Dilendra Weerasinghe, M.D.; and Jeff
Goodis, Esquire, La Cava Jacobson & Goodis, 150 2? Avenue North, 15" Floor, St. Petersburg,
FL 33701, jgoodis@lacavajacobson.com, Counsel for Sovi Joseph, M.D. and Sovi Joseph, M.D.,
P.A.
/s/ Frances G. Prockop
Frances G. Prockop, Esq.
Florida Bar No.: 727296
Bush Graziano Rice & Platter, P.A.
100 South Ashley Drive, Suite 1400
Tampa, FL 33602
Phone: (813) 228-7000 — Fax: (813) 273-0091
Attorney for Defendants, Fawcett Memorial
HOSPITAL and Abigail Utech
Primary: eserve@bgrplaw.com
Secondary: Iplyushko@berplaw.com
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Preview
Filing # 112664923 E-Filed 08/31/2020 05:35:07 PM IN THE CIRCUIT COURT OF THE TWENTIETH JUDICIAL CIRCUIT IN AND FOR CHARLOTTE COUNTY, STATE OF FLORIDA DEBORAH COOPER BURG, by and through her Court- appointed Guardian, RICKY BURG; NICOLE BURG, her daughter; and RICKY BURG, her spouse, Plaintiff, vs. WEST FLORIDA PHYSICIAN NETWORK, LLC; DILENDRA WEERASINGHE; JOHN RIOUX; FAWCETT MEMORIAL HOSPITAL, INC. d/b/a FAWCETT CASE NO.: 20000616CA MEMORIAL HOSPITAL; ABIGAIL UTECH; NANDINI KIRI, MD., PA; NANDINI KIRI; HARBOR MEDICAL GROUP, LLC; AHSAN KAMAL; SOVI JOSEPH, M.D., PAS SOVI JOSEPH: DOMINGO E. GALLIANO, JR., PA; DOMINGO GALLIANO, JR.; PUNTA GORDA MEDICAL INVESTORS, LLC d/b/a LIFE CARE CENTER OF PUNTA GORDA; LIFE CARE PHYSICIAN SERVICES, LLC; and VANCE MALONEY, III, Defendants. / DEFENDANT FAWCETT MEMORIAL HOSPITAL, INC, d/b/a FAWCETT. MEMORIAL HOSPITAL’S MOTION TO DISMISS COUNTS X, XI, AND XII OF PLAINTIFF’S COMPLAINT OR IN THE ALTERNATIVE, MOTION FOR MORE DEFINITE STATEMENT, OR IN THE ALTERNATIVE MOTION TO STRIKE COMES NOW, Defendant, FAWCETT MEMORIAL HOSPITAL, INC. d/b/a FAWCETT MEMORIAL HOSPITAL (the “HOSPITAL”) by and through its undersigned counsel, and hereby files its Motion to Dismiss Counts X, XI, and XII of Plaintiff's Complaint pursuant to Fla. R. Civ. P. 1.140(b), or in the alternative Motion for More Definite Statement Page 1 of 9 pursuant to Fla. R. Civ. P. 1.140(e), or, in the Alternative, Motion to Strike pursuant to Fla. R. Civ. P. 1.140(f) and as grounds therefore, states as follows: 1 This is a claim for medical negligence arising from care and treatment provided to Plaintiff, DEBORAH COOPER BURG (“Mrs. Burg”) in June 2019. 2. On April 3, 2020, the HOSPITAL received a Notice of Intent to Initiate Litigation for Medical Malpractice (“NOI”). 3 After expiration of the required presuit investigation period, on or about July 21, 2020, Plaintiff filed a forty-eight-count medical negligence action against the HOSPITAL and multiple other co-defendants alleging that as a result of the negligent care and treatment rendered by the named Defendants during Mrs. Burg’s admission, she suffered injury. 4 Three of Plaintiffs counts are directed towards the HOSPITAL as follows: Count XxX is entitled “CLAIM ON BEHALF OF DEBORAH COOPER BURG AGAINST DEFENDANT FAWCETT MEMORIAL HOSPITAL, INC. d/b/a FAWCETT MEMORIAL HOSPITAL”; Count XI is entitled “CLAIM ON BEHALF OF NICOLE BURG AGAINST DEFENDANT FAWCETT MEMORIAL HOSPITAL, INC. d/b/a FAWCETT MEMORIAL HOSPITAL”; and COUNT XII is entitled “CLAIM ON BEHALF OF RICKY BURG AGAINST DEFENDANT FAWCETT MEMORIAL HOSPITAL, INC. d/b/a FAWCETT MEMORIAL HOSPITAL.” Motion to Dismiss Counts X, XI, and XII or in the Alternative, Motion for More Definite Statement, or in the Alternative Motion to Strike To survive a motion to dismiss, a complaint must allege a prima facie case. See Alvarez, 708 So. 2d at 999; see also Wausau Ins. Co. v. Wainer, 683 So. 2d 1123, 1124 (Fla. 4th DCA 1996). Mere conclusions unsupported by specific facts will not suffice to withstand a motion to dismiss. Page 2 of 9 See Dr. Navarro’s Vein Centre of Palm Beach, Inc. v. Miller, 22 So. 3d 776, 778 (Fla. 4th DCA 2009). General pleading requirements are governed by Florida Rule of Civil Procedure 1.110(b), which requires a short and plain statement of the ultimate facts supporting the allegations so that the Court and the defendant can clearly determine what is being alleged. Fontainbleau Hotel Corp. v. Walters, 246 So. 2d 563 (Fla. 1971). The Fontainbleau Court held that “... a complaint must contain sufficient allegations to acquaint the defendants with the plaintiffs charge of wrongdoing so that the defendant can intelligently formulate a responsive pleading.” Id. See also, Foerman y. Seaboard Coast Line R. Co., 279 So. 2d 825 (Fla. 1973) (there are “numerous authorities holding that the complaint must be sufficiently pleaded so as to apprise both the court and the defendant of the nature of the claim asserted ...”). Counts X, XI, and XII should be dismissed against the HOSPITAL for failure to state a cause of action cognizable under Florida law as well as improperly intermingling multiple causes of actions, or, in the alternative, a more definite statement should be pled, as it is unclear what theory of liability Plaintiff is pursuing and the Counts improperly comingle several theories of liability. Plaintiffs’ Complaint attempts to state a cause of action against the HOSPITAL based on both direct negligence of the HOSPITAL’s employees under a theory of respondeat superior as well as vicarious liability of the HOSPITAL for agents, apparent agents, ostensible agents, directors and officers, staff and other staff members. Specifically, Plaintiffs allege as follows: “Defendant FAWCETT MEMORIAL HOSPITAL, INC. d/b/a FAWCETT MEMORIAL HOSPITAL acted at all pertinent times by and through its employees, agents, apparent agents, ostensible agents, directors and officers including, but not limited to Susan Bruner and Defendant ABIGAIL UTECH and its related staff as well as other staff members who care for, assessed or provided services to DEBORAH COOPER BURG. As to all matters concerning the care and treatment of DEBORAH COOPER BURG, each of the sad Page 3 of 9 Defendant FAWCETT MEMORIAL HOSPITAL, INC. d/b/a FAWCETT MEMORIAL HOSPITAL’s employees, agents, apparent agents, ostensible agents, directors and officers acted at all pertinent times within the course and scope of such employment, agency, apparent agency, or ostensible agency.” (Compl. at § 120, 132, and 144). Other than Susan Bruner and Defendant ABIGAIL UTECH, Counts X, XI, and XII of Plaintiff's Complaint fail to identify any individuals, or at the very least, the type of health care provider, alleged to have deviated from the standard of care for whom the Plaintiffs seek to hold HOSPITAL vicariously liable. The Plaintiffs’ Complaint also fails to properly state the theory under which the HOSPITAL is allegedly vicariously liable for the provider or non-healthcare provider. In fact, the Plaintiffs’ Complaint completely fails to allege ultimate facts regarding the identity of employees, agents, apparent agents, ostensible agents, officers and directors and their cause of action under which they allege that the HOSPITAL should be deemed liable for those unnamed providers and non-providers, such as the officers and directors. Simply put, Plaintiff's Complaint is so vague that the Defendant HOSPITAL cannot reasonably be expected to be on notice of the claims against it, and it further is pled in such a way that the allegations which are made are (a) insufficient to plead a cause of action under Florida law and (b) improperly intermingles multiple causes of action. Not all of the HOSPITAL’s staff and employees are subject to the same standard of care as a nutritionist. In the Complaint, Plaintiffs fail to acknowledge those differing standards. Rather, Plaintiff interchangeably identifies “employees, agents, apparent agents, ostensible agents, directors and officers” without recognizing the different standards of care which are attributable to various health care providers and non-health care providers. The HOSPITAL is entitled to know what allegations it is defending against and whom it is defending. As currently pled, it is entirely unclear who deviated from what standard of care. The HOSPITAL is not Page 4 of 9 required to speculate as to what claims Plaintiff is asserting and then try to formulate responses and defenses to same. See Horowitz v. Laske, 855 So. 2d 169, 173; Michael H. Bloom, P.A. v. Dorta-Duque, 743 So. 2d 1202, 1203 (Fla. 3d DCA 1999) (“It is well settled that a defendant cannot be found liable under a theory that was not specifically pled”); see also Robbins v. Newhall, 692 So. 2d 947 (Fla. 3d DCA 1997). Plaintiffs also improperly comingle three or more different theories of liabilities in one count. Florida Rule of Civil Procedure 1.110(f) provides that “each claim founded upon a separate transaction or occurrence...shall be stated in a separate count...when separation facilitates the clear presentation of the matter set forth.” See also Pratus v. City of Naples, 807 So. 2d 795 (Fla. 2d DCA 2002); Aspsoft, Inc. v. WebClay, 983 So. 2d 761, 768 (Fla. Sth DCA 2008) (holding that plaintiff's complaint set forth defective claims by “impermissibly comingling separate and distinct claims” in a single count); Dubus v. McArthur, 682 So. 2d 1246, 1247 (Fla. 1st DCA 1996) (stating that the “task of the trial court was made more difficult because the appellants’ amended complaint improperly attempts to state in a single count separate causes of action”). Plaintiff has improperly comingled multiple causes of action within Counts X, XI and XII of the Complaint, making the claims confusing and indecipherable. Further, there is no action in medical negligence for “ostensible agency” recognized under Florida law. The HOSPITAL should not be required to defend itself against a claim for “ostensible agency” when it is not a cognizable claim. If Plaintiffs are seeking to impose liability upon the HOSPITAL for various agency theories, those theories must be specifically pled and must include allegations of ultimate fact relating to each element of the claim. In their Complaint, Plaintiffs specifically fail to allege the Page 5 of 9 required elements for a cause of action cognizable under Florida law for non-employees. That failure to allege necessary elements dooms Plaintiffs’ Complaint. Respondeat superior, actual agency, and apparent agency are three separate and distinct causes of action, each with their own separate and distinct elements. See Thompson v. Carnival Corp., 174 F. Supp. 3d 1327, 1342 (S.D. Fla. 2016) (“plainly, actual agency and apparent agency are distinct theories of liability”); Jackson-Davis v. Carnival Corp., 17-24089-CIV, 2018 WL 1468665 (S.D. Fla. Mar. 23, 2018) S. Florida Coastal Elec., Inc. v. Treasures on Bay II Condo Ass'n, 89 So. 3d 264, 270 (Fla. 3d DCA 2012) (“In order to plead a claim for apparent agency, facts supporting the following three elements must be alleged: (1) a representation by the purported principal; (2) reliance on that representation by a third party; and (3) a change in position by the third party in reliance on the representation’) (internal quotations omitted). In fact, Plaintiffs have failed to allege any facts which establish a relationship between any healthcare provider/non-healthcare provider and the HOSPITAL. See Thompson, 174 F. Supp. 3d at 1342 (“to hold a principal liable for the negligence of an apparent agent, a plaintiff must sufficiently allege the elements of apparent agency in addition to the elements of the underlying negligent act of the agent for which the plaintiff seeks to hold the principal liable”). Plaintiffs have failed to allege any elements required to state a cause of action for apparent agency, therefore Counts X, XI and XII of the Plaintiffs’’ Complaint must be dismissed for failure to state a cause of action. Additionally, under Florida law, to establish a cause of action for actual agency the Plaintiffs must plead ultimate facts identifying the purported actual agent as well as the existence of an actual agency relationship by alleging (1) acknowledgment by the principal that the agent will act for him, (2) the agent’s acceptance of the undertaking, and (3) control by the Page 6 of 9 principal over the actions of the agent. Goldschmidt v. Holman, 571 So. 2d 422, 424 n.5 (Fla. 1990). Counts X, XI and XII fail to allege the elements of actual agency. Similarly, according to Florida case law an apparent agency exists only if all three of the following elements are present: (a) a representation by the purported principal; (b) a reliance on that representation by a third party; and (c) a change in position by the third party in reliance on the representation. Mobil Oil Corp. v. Bransford, 648 So. 2d 119, 121 (Fla. 1995). Apparent authority does not arise from the subjective understanding of the person dealing with the purported agent or from appearances created by the purported agent himself. /zquierdo v. Hialeah Hosp., Inc., 709 So. 2d 187, 188 (Fla. 3d DCA 1998). Rather, apparent authority exists only where the principal creates the appearance of an agency relationship. /d. Not only do Counts X, XI and XII fail to identify the alleged apparent agents, they fail to allege the elements of apparent agency. Here, Plaintiffs fail to identify which physicians or other healthcare providers they intend to hold the HOSPITAL liable for, fail to allege any theory under which they seek to hold the HOSPITAL liable, and has inappropriately improperly comingled multiple, separate causes of action, within a single count while failing to properly allege any separate cause of action, making it impossible to discern what is being alleged such that the HOSPITAL can appropriately defend itself. Plaintiff has thus failed to comply with Fla. R. Civ. P. 1.110(f) and Counts X, XI, and XII of Plaintiff's Complaint should be dismissed or alternatively, Plaintiff should be required to plead a more definite statement, or alternatively, Paragraphs 120, 132, and 144 should be stricken from Plaintiffs Complaint. WHEREFORE, Defendant, FAWCETT MEMORIAL HOSPITAL, INC. d/b/a FAWCETT MEMORIAL HOSPITAL, moves this Honorable Court to grant this Motion to Page 7 of 9 Dismiss Counts X, XI, and XII of Plaintiff's Complaint, or, in the Alternative, Motion for More Definite Statement, or in the alternative Motion to Strike and for any other relief the Court deems just and proper. CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and accurate copy of the above and foregoing has been furnished by electronic mail delivery on this __ day of August, 2020 to: Edward R. Blumberg, Esquire, Deutsch Blumberg & Caballero, PA, ERB@DeutschBlumberg.com, tmitchellDeutschblumberg.com, Counsel for Claimants; Victoria N. Ferrentino, Esquire, Bush Graziano Rice & Platter, P.A.. 100 S. Ashley Drive, Suite 1400, Tampa, FL 33602. vferrentino@bqrplaw.com, Counsel for John Rioux, MD and West Florida Physician Network, LLC d/b/a Gulf Pointe Surgical Specialists; Ralph L. Marchbank, Dickinson & Gibbons, P.A., 401 N. Cattlemen Road, Suite 300, Sarasota, FL 34232, RMarchbank@dglawyers.com, lgordon@dglawyers.com, JGadoury@dglawyers.com, Counsel for Domingo E. Galliano, Jr., M.D., Domingo E. Galliano, Jr., P.A.; Richard Mangan, Esquire, Kelsey Campbell, Esquire, Rissman Barrett Hurt Donahue McLain & Mangan, 1 N. Dale Mabry Highway, Suite 1100, Tampa, FL 33609, Stephanie.Doyle@rissman.com, Counsel for Nandini Kiri, M.D., Nandini Kiri, M.D., P.A.; Douglas B. Lumpkin, Esquire, Wicker Smith, 1819 Main Street, Suite 910, Sarasota, FL 34235, DLumpkin@wickersmith.com, JStJohn@wickersmith.com, Counsel for Ahsan Kamal, M.D., Ahsan Kamal, M.D., P.A. and Harbor Medical Group; Susanne E. Riedhammer, Esquire, Chimpoulis & Hunter, P.A., 159 South Pine Island Road, Suite 510, Plantation, FL 33324, sriedhammer@chimpoulishunter.com, Counsel for Vance Maloney, III, M.D. and Punta Gorda Medical Investors, LLC d/b/a Life Care Center of Punta Gorda; Richard Bowers, Esquire, Banker Lopez Gassler P.A., 501 East Kennedy Blvd, Suite 1700, Tampa, FL Page 8 of 9 33602, service-rbowers@bankerlopez.com, Counsel for Dilendra Weerasinghe, M.D.; and Jeff Goodis, Esquire, La Cava Jacobson & Goodis, 150 2? Avenue North, 15" Floor, St. Petersburg, FL 33701, jgoodis@lacavajacobson.com, Counsel for Sovi Joseph, M.D. and Sovi Joseph, M.D., P.A. /s/ Frances G. Prockop Frances G. Prockop, Esq. Florida Bar No.: 727296 Bush Graziano Rice & Platter, P.A. 100 South Ashley Drive, Suite 1400 Tampa, FL 33602 Phone: (813) 228-7000 — Fax: (813) 273-0091 Attorney for Defendants, Fawcett Memorial HOSPITAL and Abigail Utech Primary: eserve@bgrplaw.com Secondary: Iplyushko@berplaw.com Page 9 of 9