Preview
Filing # 142591668 E-Filed 01/25/2022 11:54:40 AM
IN THE CIRCUIT COURT OF THE
19th JUDICIAL CIRCUIT IN AND
FOR MARTIN COUNTY, FLORIDA
CASE NO: 2019-CA-000015
FREDERIC CHARLES GREER, III, and
MELISSA ANNE GREER, as Husband and
Wife, and FREDERIC CHARLES GREER, III
and MELISSA ANNE GREER, individually,
Plaintiffs,
VS.
MARTIN MEMORIAL MEDICAL CENTER,
INC. d/b/a MARTIN MEDICAL CENTER, a
Florida Corporation; KUNAL CHAUDHRY, M.D.;
and CARDIOLOGY ASSOCIATES OF STUART,
P.A., a Florida profit corporation,
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Defendants.
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DEFENDANT, MARTIN MEMORIAL MEDICAL CENTER, INC. D/B/A MARTIN
MEDICAL CENTER'S, RESPONSE AND CROSS MOTION FOR PARTIAL
SUMMARY JUDGMENT TO PLAINTIFFS' MOTION FOR PARTIAL SUMMARY
JUDGMENT ON THE ISSUE OF PRESUIT COMPLIANCE
COMES NOW, Defendant, MARTIN MEMORIAL MEDICAL CENTER, INC. d/b/a
MARTIN MEDICAL CENTER ("MMMC"), by and through the undersigned counsel, files this
Response and Cross Motion for Partial Summary Judgment to Plaintiffs' Motion for Partial
Summary Judgment on the Issue of Presuit Compliance.
INTRODUCTION
1. This is a medical malpractice action arising out of allegations that MMMC was
negligent in the care and treatment of Frederic Charles Greer, III. Specifically, in Count I of the
Second Amended Complaint, Plaintiffs allege, for the first time, that MMMC's employed nurses
permitted a cardiac catheterization performed by former co-defendant, Kunal Chaudhry, M.D., to
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proceed without intervening to stop the procedure that caused injury to Mr. Greer. (Pls. Second
Am. Compl. ¶ 167).
2. Markedly absent from Plaintiffs' prior Complaints, their Notice of Intent, or the
required corroborating presuit expert affidavit, were any allegations whatsoever regarding nursing
care. Nevertheless, through argument at the hearing for MMMC' s Motion for Summary Judgment,
Count I of Plaintiffs' First Amended Complaint was interpreted to allege negligence against
MMMC for the actions of its employee, Nurse Katelyn Tilley. See Order Granting Summary
Judgment as to Count I of the First Amended Complaint, attached hereto as Exhibit "A." In their
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response to Defendant's Motion for Summary Judgment, Plaintiffs alleged Nurse Tilley was
negligent for her failure to check the waiting room for the family of Mr. Greer who might provide
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informed consent for the procedure. Also at the hearing on MMMC's Motion for Summary
Judgment, counsel for Plaintiffs clarified that the basis of MMMC's negligence was the alleged
nursing negligence of Nurse Tilley. The Court found there were no genuine issues of material fact
as to Count I and granted MMMC's Motion for Summary Judgment. Id.
3. Now, in their Second Amended Complaint, Plaintiffs have concocted a completely
different theory of liability. However, Plaintiffs never investigated these new allegations against
MMMC's nurses during the presuit period as mandated by Chapter 766 of the Florida Statutes.
4. For the reasons stated herein, this court should grant summary judgment on Count I
of Plaintiffs' Second Amended Complaint as Plaintiffs failed to conduct the required presuit
investigation with regard to these newly asserted allegations.
5. Additionally, as the cases cited by Plaintiffs' counsel do not consider whether the
Plaintiffs complied with their requirement to conduct a good faith investigation, this Court should
deny Plaintiffs' Motion for Partial Summary Judgment on the Issue of Presuit Compliance.
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COMPARISON OF ALLEGATIONS FROM THE NOTICE OF INTENT, PRESUIT
AFFIDAVIT, AND PLAINTIFFS' SECOND AMENDED COMPLAINT FOR DAMAGES
Plaintiffs' presuit affidavit corroborating reasonable grounds to initiate medical malpractice
contains no allegations whatsoever concerning the conduct of MMMC's nurses. Instead, Plaintiffs'
presuit expert, Dr. Shadoff, stated that there were reasonable grounds to initiate medical negligence
litigation against Dr. Chaudhry and MMMC for the following reasons:
a) On 9/1/17 KUNAL CHAUDHRY at MARTIN MEDICAL CENTER deviated
from the acceptable and appropriate standard of care and with reckless disregard
for Mr. Greer by failing to consult with a cardiovascular surgeon once [Dr.
Chaudhry] determined that there was significant obstruction three vessel
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coronary artery disease and before attempting balloon angioplasty of the
circumflex artery at a time when Mr. Greer was asymptomatic after a later
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presentation of an acute myocardial infarction.
b) On 9/1/17 KUNAL CHAUDHRY at MARTIN MEDICAL CENTER deviated
from the acceptable and appropriate standard of care and with reckless disregard
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for Mr. Greer by repeatedly and excessively attempting to cross the occluded
circumflex coronary artery with multiple stiff guidewires and then dilate the
circumflex coronary artery with multiple balloons causing or substantially
contributing to cause a circumflex coronary artery rupture
c) On 9/1/17 KUNAL CHAUDHRY at MARTIN MEDICAL CENTER deviated
from the acceptable and appropriate standard of care and with reckless disregard
for Mr. Greer by using a coronary angioplasty balloon catheter that was
oversized at high pressures, causing or substantially contributing to cause a
circumflex coronary artery rupture.
d) Failure to exercise that level of care, skill and treatment which, in light of all
relevant surrounding circumstances is recognized as acceptable and appropriate
by reasonably prudent similar healthcare providers and with reckless disregard
for the safety of Mr. Greer.
(Affidavit of Dr. Shadoff, attached hereto as Exhibit "B").
The allegations in the presuit Notice of Intent reference the expert affidavit of Dr. Shadoff
for the specific allegations to be asserted against MMMC in the proposed lawsuit. (See NOI,
attached hereto as Exhibit "C"). Mention of MMMC's nursing staff appears just once in the
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Notice of Intent, solely to state that the nurses and nurses' aides were acting within the course and
scope of their employment on the date of incident. (Exhibit "C" at 3).
By contrast, Plaintiffs' Second Amended Complaint contains a slew of new allegations
against MMMC and its nursing staff that are markedly absent from the presuit Notice of Intent and
corroborating expert affidavit:
164. On 9/1/17 MARTIN and its employee nurses had a duty to abide by the
nursing chain of command for the protection, health and safety of its patients
and specifically GREER in the cath lab.
165. On 9/1/17 MARTIN and its employee nurses had a duty to abide by the Policy
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and Procedure Cardiac Transfers Decision Tree from Tradition Medical
Center Intervention Lab, which governed cardiac cath lab decision tree to
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safely transfer patient to MARTIN who need to have cardiac interventions
performed, which required a cardiac cath consistent with diffuse disease
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needs cardiac surgical consult.
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167. The Defendant, MARTIN, is vicariously liable for the negligence of its
employees, Carroll, Tilley, Fournier, and Bennett, and any other employees,
agents or apparent agents who provided care to GREER on 9/1/17 by each of
the following breaches of the standard of care:
(a) The cardiac cath lab employees Carroll, Tilley, Carroll [sic] and radiation
tech Fournier had a duty to follow the hospital policy and procedures and
fell below the standard of care and showed a reckless disregard for the
health and safety of GREER by failing to abide by the cardiac transfers
decision tree from tradition that requires cardiac cath with diffuse disease
a cardiac surgical consultation, which is designed to protect the patient,
(b) After Dr. Chaudhry completed the diagnostic cath and determined diffuse
three vessel disease, the nurses and tech Fournier had a duty to remind Dr.
Chaudhry of the requirement for cardiac surgery consult for diffuse
disease on cardiac cath and fell below the standard of care and showed a
reckless disregard for the health and safety of GREER for failing to do so.
If Dr. Chaudhry refused to obtain a cardiac surgery consult, then the
nurses needed to go up the chain of command for enforcement of the
policy and to protect the patient,
(c) After Dr. Chaudhry attempted to balloon the left circumflex more than 10
times unsuccessfully, the nurses fell below the standard of care and
showed a reckless disregard for the health and safety of GREER by failing
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to request that Dr. Chaudhry consider another alternative treatment
instead of allowing him to continue ballooning over 16 times, which
caused the coronary perforation, and if he refused, the employees should
have triggered the chain of command to protect the patient,
(d) It would be below the nursing standard of care not to document in the cath
lab records that Dr. Chaudhry stepped away from the cath lab table to have
a discussion with Dr. Crouch at the cath lab door regarding GREER, if
that exchange took place,
(e) Failing to treat the medical condition in a timely manner.
168. As a direct and proximate result of the negligence of the MARTIN [sic] by
and through its employees, the PLAINTIFF, suffered injury . . . .
(Pls. Second Am. Compl. ¶91 164-168).
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As discussed below, this court should grant summary judgment as to Count I of Plaintiff's
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Second Amended Complaint based on Plaintiffs' failure to conduct the required presuit
investigation with regard to these new claims against MMMC's nurses.
ARGUMENT
I. Legal Standard
On April 29, 2021, Florida's Supreme Court modified Florida Rule of Civil Procedure
1.510 and adopted the federal standard for summary judgment. In adopting the federal standard
for summary judgment, the Supreme Court explained that summary judgment is now an integral
part of pretrial procedure and elaborated that the standards for summary judgment and a directed
verdict should be the same:
In our December 31, 2020, decision amending rule 1.510, we made it clear that
adopting the federal summary judgment standard means that Florida will now
adhere to the principles established in the Celotex trilogy. In the broadest sense,
those cases stand for the proposition that "[s]ummary judgment procedure is
properly regarded not as a disfavored procedural shortcut, but rather as an
integral part" of rules aimed at "the just, speedy and inexpensive determination
of every action." Celotex, 477 U.S. at 327 (Quoting Fed. R. Civ. P. 1). More
specifically, though, embracing the Celotex trilogy means abandoning certain
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features of Florida jurisprudence that have unduly hindered the use of summary
judgment in our state.
[T]hose applying the new rule 1.510 must recognize the fundamental similarity
between the summary judgment standard and the directed verdict standard. See
Anderson, 477 U.S. at 251 (noting that "the inquiry under each is the same"). Both
standards focus on "whether the evidence presents a sufficient disagreement
to require submission to a jury." Id. at 251-52
In Re: Amendments to Florida Rule of Civil Procedure 1.510, No. SC 20-1490 (Fla. 2021)
(emphasis added).
"By its very terms, this standard provides that the mere existence of some alleged factual
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dispute between the parties will not defeat an otherwise properly supported motion for summary
judgment; the requirement is that there be no genuine issue of material fact." Anderson v. Liberty
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Lobby, Inc., 477 U.S. 242, 247-48 (1986) (emphasis in original). An issue of fact is "genuine" if
the evidence could lead a reasonable jury to find for the nonmoving party. Matsushita Elec. Indus.
Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). "Where the material facts are undisputed
and all that remains are questions of law, summary judgment may be granted." Hernandez v. Sam's
East, Inc., 2021 WL 1647887, No. 20-CV-61648-RAR (S.D. Fla. April 26, 2021).
While the court must construe the evidence in the light most favorable to the nonmoving
party, the nonmoving party's presentation of a "mere existence of a scintilla of evidence" in
support of its position is insufficient to overcome summary judgment. Anderson, 477 U.S. at 252.
Rather, "there must be evidence on which the jury could reasonably find for the plaintiff. The
judge's inquiry, therefore, unavoidably asks whether reasonable jurors could find by a
preponderance of the evidence that the plaintiff is entitled to a verdict[.]" Id.
Likewise, a plaintiff's conclusory allegations will not create an issue of fact for trial to
defeat a well-supported motion for summary judgment. Earley v. Champion Int'l Corp., 907 F.2d
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1077, 1081 (11th Cir. 1990). "When a party moving for summary judgment points out an absence
of evidence on a dispositive issue for which the nonmoving party bears the burden of proof at trial,
the nonmoving party must `go beyond the pleadings and by [his] own affidavits or by the
depositions, answers to interrogatories, and admissions on file, designate specific facts showing
that there is a genuine issue for trial." Vallot v. Logans Roadhouse, Inc., 2013 WL 5305672, No.
6:12-cv-1561-0r1-31KRS (M.D. Fla. Sept. 20, 2013) (quoting Celotex Corp., 477 U.S. at 324-
325).
II. Plaintiffs Failed to Conduct the Required Presuit Investigation Regarding
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Allegations of Nursing Negligence as Asserted in Their Second Amended
Complaint
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The presuit provisions of Florida's Medical Malpractice Act are mandatory and were
designed to establish a comprehensive procedure to facilitate the amicable resolution of medical
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malpractice claims. Fla. Stat. § 766.201. See Gordon v. Shield, 41 So. 3d 931, 933 (Fla. 4th DCA
2010). Indeed, The Florida Supreme Court interpreted the presuit investigation requirements to be
a mandatory condition precedent to bringing a medical malpractice action. Kukral v. Mekras, 679
So. 2d 278, 283 (Fla. 1996). Failure to comply with the presuit investigation justifies dismissal of
the claim. Id.
The mandatory presuit investigation process requires a claimant to conduct an investigation
to determine whether there are reasonable grounds to believe that a named prospective defendant
was negligent and that such negligence resulted in injury to the claimant. Fla. Stat. § 766.203(2).
The claimant then must communicate these reasonable grounds to a prospective defendant through
a notice of intent and corroborating expert affidavit. Id. The statute of limitations is then tolled for
90 days to allow the prospective defendant to conduct its own investigation to determine its
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potential liability. Fla. Stat. § 766.106(3). Once suit is filed, if the plaintiff's presuit investigation
or notice of intent is deemed to be insufficient, Section 766.206 requires dismissal.
Though often commingled, the reasonable investigation, corroborating expert affidavit, and
notice provisions of Chapter 766 ensure separately that each party evaluates whether a claim for
medical malpractice has merit. See Largie v. Gregorian, 913 So. 2d 635, 640 (Fla. 3d DCA 2005);
Kukral, 679 So. 2d at 282. Indeed, the requirements of the presuit notice of intent and the
requirements of the mandatory presuit investigation are set out in separate statutes. Compare Fla.
Stat. § 766.106 (setting out the requirements for the presuit notice of intent), with Fla. Stat. §
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766.203 (discussing the requirements of the mandatory presuit investigation). By conducting a
thorough and reasonable presuit investigation, a claimant determines which providers to put on
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notice of a potential claim for medical malpractice. Id. One part of the requisite reasonable
investigation includes obtaining a corroborating affidavit by a medical expert. Id. Nevertheless,
plaintiffs are still under a discrete duty, separate and apart from obtain a corroborating affidavit, to
review the case against each prospective defendant and determine whether a claim for medical
malpractice is justified. Largie, 913 So. 2d at 638-39.
In Largie, 913 So. 2d at 639, the Third District considered the reasonableness of a plaintiff's
investigation as to a nurse named in a medical malpractice action. Id. After conducting a presuit
investigation with the other medical providers, the nurse was belatedly served with the presuit
notice of intent and corroborating expert affidavit that was previously provided to the other
prospective defendants. Id. at 637. However, the presuit expert affidavit did not mention the nursing
standard of care nor did it mention the nurse practitioner or her actions. Id. at 639. While finding
that presuit investigation was sufficient as to other defendants, the Third District affirmed judgment
as a matter of law in favor of the nurse. Id. at 641. The court upheld the trial court's determination
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that no reasonable investigation was conducted as to the nurse's care: "The expert opinion
provided to Nurse Wang completely fails to satisfy these purposes. It makes no mention of Nurse
Wang whatsoever, either by name or job description; it makes no reference to the standard of care;
and, it does not suggest, much less corroborate that any investigation took place with regard
to Nurse Wang or that any reasonable grounds exist to support the Largies' claim against her as
expressly mandated by Chapter 766." Id. (Emphasis added).
Similarly, here, Plaintiffs failed to conduct a reasonable investigation into the nursing care
provided by MMMC during the presuit period. The presuit affidavit, Notice of Intent, and First
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Amended Complaint, contain no allegations regarding the chain of command, the nursing standard
of care, or so much as a suggestion that the nurses should have exercised their own independent
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judgment to stop Dr. Chaudhry from performing a procedure. I Plaintiffs should not now be
permitted to muster new allegations of negligence against MMMC that were never investigated
during the presuit period.
Plaintiffs had ample time before filing suit to conduct a reasonable presuit investigation into
the nursing care by reviewing Mr. Greer's medical records and retaining a nursing expert to opine
regarding the standard of care. The new allegations against MMMC' s nurses in Plaintiffs' Second
Amended Complaint were plainly not investigated during the presuit period, and therefore this
Court must grant summary judgment with regard to Count I of Plaintiffs' Second Amended
I Importantly, counsel for Plaintiffs represented at the hearing on Defendant's Motion for
Summary Judgment that the only negligent act in support of the negligence claim against MMMC
was the failure of Nurse Tilley to check the waiting room and advise Dr. Chaudhry that Mr. Greer's
wife was in the waiting room. (Hearing on Defendants Motion for Summary Judgment 123: 10-
24, attached hereto as Exhibit "D"). Had the nursing care issues been reasonably investigated
during the presuit period, the newly fabricated arguments certainly would have been made at the
hearing on Defendant's Motion for Summary Judgment.
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Complaint. A review of Dr. Shadoff's presuit affidavit and Plaintiffs' First Amended Complaint
makes clear, Plaintiffs failed to perform the required presuit investigation.
III. The Davis and Brown Cases are Distinguishable as they Do not Concern the Presuit
Investigation but Only Concern Whether the Defendant was Provided with
Adequate Notice
Plaintiffs' Motion for Partial Summary Judgment on the Issue of Presuit Compliance
mistakenly conflates the issues of the mandatory presuit investigation with the mandatory notice
provisions of Chapter 766. As explained above, the mandatory investigation and presuit notice
provisions are distinct obligations of a claimant. See Largie v. Gregorian, 913 So. 2d 635, 640
(Fla. 3d DCA 2005); Kukral, 679 So. 2d at 282.
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Plaintiffs are correct that the notice obligations of Chapter 766 have been broadly read so
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that the purpose of the presuit notice of intent and corroborating expert affidavit is to assure a
prospective defendant that non-frivolous grounds to initiate a medical malpractice claim exist.
However, none of the cases relied on by Plaintiffs in their Motion for Partial Summary Judgment
On the Issue of Presuit Compliance even mention the distinct obligation of the mandatory presuit
investigation. By contrast, in the Largie case, discussed above, the Court considered and dismissed
plaintiff's case for failure to properly conduct the mandatory presuit investigation.
In Davis v. Orlando Regional Medical Center, 654 So. 2d 664 (Fla. 5th DCA 1995), the
defendant hospital moved to dismiss the complaint for failure to provide proper notice of the
allegations in presuit. In Davis, the presuit medical expert opinion referred to negligence that
occurred during surgery rendered to the plaintiff. Id. at 664-65. The plaintiff's complaint alleged
the plaintiff was injured during the course of her stay at the hospital. Id. at 665. At the plaintiff's
expert's deposition, however, he opined that he was also critical of the hospital for the actions of
its nurses after surgery. Id. The defendant moved to preclude these opinions at trial. Id. The trial
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court agreed and the plaintiffs petitioned the Fifth District for certiorari. Id. The Fifth District
reversed and discussed the purposes of the presuit notice and expert corroborative affidavit. Id.
The court did not consider the investigatory obligations of the plaintiff. See generally id.
Similarly, the holding of Columbia/JFK Med. Ctr. v. Brown, 805 So. 2d 28, 29 (Fla. 4th
DCA 2001), centered on the presuit notice obligations: "the purposes of the presuit notice and the
requirement of an expert's affidavit to corroborate the claim is not to notify the defendants as to
how they were negligent, but rather is to demonstrate that the claim is legitimate." Id. (Emphasis
added). The hospital argued that the notice provided to it was inadequate since the plaintiff's notice
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of intent referenced the negligence of emergency room physicians and not its gynecologist. Id. at
28. The Fourth District disagreed and found that the presuit notice requirements had been satisfied.
Id. at 29.
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By contrast, the court in Largie v. Gregorian, 913 So. 2d 635 (Fla. 3d DCA 2005)
specifically considered whether the Plaintiffs properly investigated their nursing claim:
Moreover, when pointedly asked to explain what had been done to investigate the
Largies' claim against Nurse Wang, counsel did no more than point to the affidavit
referencing only Drs. Gregorian and Dansky and their breach of the standard of
care. This was inadequate. Because the record clearly shows that the Largies failed
to conduct a reasonable investigation as to "each and every potential defendant,"
specifically, Nurse Wang, the legislative purpose of Chapter 766 was frustrated,
mandating elimination of the claim against her from this suit.
Id. at 639. The court specifically drew this distinction when distinguishing cases where failure to
give adequate notice during the presuit period was alleged by a defendant: "No issue was raised
as to whether the corroborating affidavit was sufficient to confirm that the statutorily
mandated investigation had taken place . . . ." Id. at 640 (emphasis added). The court continued:
Deciding whether a defendant named in both the notice and the affidavit received
sufficient information to respond is not the same as deciding whether a verified
expert opinion, which makes no mention of a defendant named in a malpractice
suit, the standard of care applicable to that defendant, or any breach of that
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standard of care, is sufficient to corroborate that an investigation has
determined that the claim is legitimate as to that defendant.
Id. (Emphasis added). The court ultimately affirmed summary judgment in favor of Nurse Wang.
Likewise, in this case, Plaintiffs' presuit expert affidavit does not even mention MMMC's
nurses, the nursing standard of care, or any breach of that standard of care sufficient to corroborate
that Plaintiffs investigated MMMC's nursing care to determine whether there was a legitimate
claim. Plaintiffs are correct that MMMC had notice that a potential claim would be brought against
it. However, Plaintiffs have failed to present any evidence whatsoever to support the fact that they
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even considered, let alone conducted, a mandatory investigation into the actions of MMMC's
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nurses during the presuit period. Therefore, Plaintiffs' Motion for Partial Summary Judgment on
the Issue of Presuit Compliance must be denied and this court should grant MMMC's Cross
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Motion for Partial Summary Judgment.
CONCLUSION
Plaintiffs clearly failed to comply with Chapter 766's mandatory presuit investigation
requirement with regard to the allegations asserted in Count I of Plaintiffs' Second Amended
Complaint. Therefore, this Court should grant Summary Judgment on Count I of Plaintiffs' Second
Amended Complaint for Plaintiffs' failure to comply with the presuit investigation requirement.
WHEREFORE Defendant Martin Memorial Medical Center, Inc. d/b/a Martin Medical
Center respectfully requests this Court grant summary judgment on Count I of Plaintiffs' Second
Amended Complaint and any other relief this Court deems just and proper.
CERTIFICATE OF SERVICE
WE HEREBY CERTIFY that on this day of January, 2022, a copy of the foregoing
was served via the Florida E-Filing Portal to the parties on the attached service list.
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STEARNS WEAVER MILLER
WEISSLER ALHADEFF & SITTERSON, P.A.
Attorneys for Martin Memorial Medical Center, Inc.
200 East Las Olas Blvd., Suite 2100
Fort Lauderdale, FL 33301
Phone: (954) 462-9500
Fax: (954) 462-9567
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THOMAS G. AUBIN, ESQUIRE
FBN: 008060
taubin@stearnsweaver.com
MATTHEW S. PODOLNICK, ESQUIRE
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FBN: 112126
mpodolnick@stearnsweaver.com
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SERVICE LIST
Peter J. Somera Jr., Esq. Geoffrey N. Fieger, Esq.
Paul M. Silva, M.D., Esq. Fieger Law
Somera & Silva, LLP 19390 West Ten Mile Road
2255 Glades Road, Suite 232W Southfield, MI 48075
Boca Raton, FL 33431 Phone: (248) 355-5555
Phone: (561) 981-8881 Fax: (248) 355-5148
Fax: (561) 981-8887 G.Fieger@Fiegerlaw.com
pleadings@somerasilva.com S.Teal@Fiegerlaw.com
litigation@somerasilva.com Co-Attorneys for Plaintiffs
Attorneys for Plaintiffs
Adam Richardson, Esq.
Bard D. Rockenbach, Esq.
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Burlington & Rockenbach, P.A.
444 West Railroad Avenue
West Palm Beach, FL 33401
Tel: 561-721-0400
ajr@FLAppellateLaw.com
bdr@FLAppellateLaw.com
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fa@FLAppellateLaw.com
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Appellate attorneys for Plaintiffs
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#10231831 vl
Filing # 107147725 E-Filed 05/06/2020 04:00:19 PM
IN THE CIRCUIT COURT OF THE NINETEENTH JUDICIAL CIRCUIT
IN AND FOR MARTIN COUNTY, FLORIDA
FREDERIC CHARLES GREER, III and CASE NO. 43 2019 CA 000015
MELISSA ANNE GREER, as Husband
and wife, and FREDERIC CHARLES
GREER, III and MELISSA ANNE GREER,
individually,
Plaintiffs/Counter-defendants,
v.
MARTIN MEMORIAL MEDICAL CENTER,
INC., D/B/A MARTIN MEDICAL CENTER,
a Florida Corporation, KUNAL CHADHRY,
MD, and CARDIOLOGY ASSOCIATES. OF
STUART, P.A., a Florida Profit Corporation,
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Defendants/Counter-plaintiffs.
ORDER GRANTING MARTIN MEMORIAL MEDICAL CENTER'S MOTION FOR
MARTIAL] SUMMARY JUDGMENT AS TO COUNT I AND DENYING MARTIN
MEMORIAL MEDICAL CENTER'S MOTION FOR MARTIAL] SUMMARY JUDGMENT
AS TO COUNTS II AND III
This cause came before this Court for several hearings upon Martin Memorial
Medical Center's (hereafter "Defendant"), Motion for [Partial] Summary Judgement, (the
"Motion"), together with the response filed by Plaintiff's, Frederic Greer and Melissa Greer
(hereinafter collectively known as "Plaintiff's"):
The Motion is a Motion for Summary Judgment on Counts I, II, and III of the
Amended Complaint.' The factual basis underlying Count I, a nurse's alleged failure to
locate Mr. Greer's wife so she could assist him in giving informed consent, is nowhere in
The Motion is titled as, and docketed as, a Motion for Summary Judgment on Counts I, II, and III. The
Motion contains argument for judgment on Counts II, III, and IV. The Motion contains a heading on every
page as a Motion for Summary Judgment on Count II, III, and III. The Motions first few paragraphs introduce
Counts I, II, and III. Paragraph 5 of the Motion alleges judgment is appropriate for Counts II and III.
the pleadings. Nonetheless, this alleged negligent act was argued extensively at the
hearing, and was argued in memoranda. Accordingly, the Court finds that the parties
litigated this point by consent.2
In support of their allegations under Count I, Plaintiffs argued there was a lack of
informed consent. Plaintiffs claim Nurse Tilly allegedly failed to check the waiting room to
see if Ms. Greer was there. The alleged failure of Nurse Tilly to check the waiting room is
alleged to be the basis to hold Defendant liable for failing to obtain informed consent.
Defendants rebutted Plaintiffs argument by pointing out that not only are there absolutely
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no allegations regarding Nurse Tilly in Count I of the Amended Complaint, but also that
Dr. Chadhry himself obtained Mr. Greer's consent for the procedure. Additionally, the
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facts are clear that, by the time Mrs. Greer arrived at the hospital, Mr. Greer had already
been taken to the operating room. The nurse's alleged failure to check the waiting room
is irrelevant.
Furthermore, there was no record evidence contesting Dr. Chadhry's testimony
that Mr. Greer's consent was informed. The doctor also testified that in his opinion, Mr.
Greer was competent. As to Count I, there are no issues of genuine material fact.
Therefore, the Motion shall be granted as to Count I.
Count II Actual Agency
The Defendant conceded that the first two elements of actual agency alleged in
Count II, were met. The third element, the right to control,3 was disputed by the parties.
Plaintiffs argued Defendant had the right to control the manner in which Doctor Chadhry
2 Count I was not pled for in the Motion. Relief not in the pleading or tried by consent is outside the trial
court's jurisdiction. Wachovia Mortgage Corporation v. Posti, 166 So.3d 944, 945 (Fla. 4th DCA 2015).
Count IV was previously disposed of by prior order.
3 It is the right to control and not actual control which determines the agency relationship.
Villazon at 853.
Page 2 of 4
performed his task. Defendant required Doctor Chadhry to be on call; Defendant required
Doctor Chadhry to accept all Defendant's third party payers; Defendant required Doctor
Chadhry to assist in developing Defendant's program; Defendant required Doctor
Chadhry to assist with educating the public; and Defendant required Doctor Chadhry to
perform and comply with Defendant's practices, policies, rules, and regulations. The
record also contained Defendant's advertising literature clearly creating the inference that
the Defendant's doctors were its employees. Defendant contested Plaintiff's allegations
and argued Doctor Chadhry had control over how he practiced; that he made his own
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competency decisions, and that he had the authority to decide which devises to use and
how to use them. Defendant asserts that Doctor Chadhry's right to control his practices
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is evident from the contract between the parties. While the obvious purpose of such
contractual language is to establish expressly an independent contractor status, such
status does not depend solely on contractual language but upon all the surrounding
circumstances of their dealings with each other.4
The evidence on the record shows there are many issues of genuine material fact
as to who had the right to control. The Motion is denied as to Count II.
Count III Apparent Agency
In Count Ill, Plaintiffs allege apparent agency. Like actual agency, it also has three
elements: a representation by the purported principal, a reliance on that representation
by a third party, and a change in position.5 The Plaintiffs argued Defendant made
representations that its doctors where its employees as shown in advertising brochures
with pictures and captions of Doctor Chadhry on them. Plaintiffs argued they relied on
4 Villazon at 854.
5 Stone v. Palms West Hospital, 941 So.2d 514, 519 (Fla. 401 DCA 2006).
Page 3 of 4
Defendant's representation that Dr. Chadhry was one of its doctors and agreed to
treatment by Defendant. Plaintiffs argued they changed their position by, among other
things, agreeing to be transferred to Defendant for treatment. Defendants responded by
stating that it is not a subjective standard, but a reasonable person standard, and
Plaintiff's subjective beliefs are of no consequence. Defendants also assert there is no
evidence or indication that any change in position took place and posits that Plaintiffs
would have made the same treatment decisions regardless of Defendant's
representations.
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Although Defendant is correct in that apparent agency analysis utilizes a
reasonable person standard, not a subjective standard, the evidence in the record shows
C O
there are clear issues of genuine material fact as to all three elements of apparent agency.
The existence of an agency relationship is normally one for the trier of fact to decide.6
The Motion is denied as to Count III.
It is therefore ORDERED AND ADJUDGED:
Martin Memorial Medical Center's Motion for [Partial] Summary Judgement filed
on November 8, 2019, is hereby GRANTED as to Count I and DENIED as to Counts II
and III.
SIGNED AND ORDERED in Stuart, Martin County Florida on May 6, 2020.
Circuit Court Judge
Copies via the e-portal to all parties of record
6Stone at 519. (citing Roessler, 858 So.2d at 1162) (referring to the question of a physician's apparent
authority to act for a hospital often being a question of fact for the jury).
Page 4 of 4
VERIFIED MEDICAL EXPERT OPINION
RSVANT TO FLORIDA STATUTE, 766.203(2)
STATE OF NEW MEXICO
COUNTY OP BERNALILLO
BEFORE ME the undersigned authority this day personally appeared NEAL SHADOFF.
MD, who being first duly sworn under oath, deposes and says:
1. That I am over the age of twenty-one (21) years, competent to make this
Affidavit, and with personal knowledge of the facts and opinions contained
herein.
I am a "medical expert's as defined by Florida Statutes and duly and regularly
engaged in the practice of medicine.
3. I am a physician licensed to practice medicine in the State of NEW MEXICO.
P Y
During the past three (3) years my medical practice has included the evaluation,
diagnosis and treatment of the medical condition that is the subject of this claim,
and I have prior experience treating patients similar to FREDERIC GREER. I am
certified by THE AMERICAN BOARD OF INTERNAL. MEDICINCE/ in
4.
experience.
C O
INTERNAL MEDICINE and CARDIOVASCULAR DISEASE/. A copy of my
curriculum vitae is attached hereto and outlines my education, training and
I am familiar with the applicable facts and circumstances in this case.
5_ I have personally reviewed the following medical records, cardiac catheterization
computerized event log, and medical data as well as imaging pertaining to
FREDERIC GREER:
MARTIN MEDICAL CENTER
200 St Hospital Avenue
Stuart, Fl 34997
MARTIN MEDICAL CENTER-Cardiac Catheterization 9/1/2017
200 SE Hospital Avenue
Stuart, Fl 34997
MARTIN MEDICAL CENTER-Echocardiograms 9/1/2017
200 SE Hospital Avenue
Stuart, Fl 34097
6. Further, the only material reasonably available or obtainable and which I have
reviewed is listed above. It is my understanding that additional medical records,
data and information from others, including but not limited to the patient's family,
other witnesses, treating physicians and other medical experts in the same or other
specialties may become available in the future as a claim like this progresses. My
Page 1 of 3
opinions are based solely upon the information presented to date. If additional
information is developed and forwarded to me in the future, in that event, Mier my
review, my opinions expressed herein may change. be modified in some respects
or supported even more so by the additional information. I reserve the right to
review any and all additional information that may be developed in the course of
this matter.
7. It is my medical opinion based upon the alere-stated documents, as well as my
education, training and experience that MARTIN HEALTH SYSTEM and
KUNAL CHAUDHRY, MD and their employees. agents, and apparent agents
deviated from the acceptable and appropriate standard of cart in their care and
treatment of FREDERIC GREER by:
a) On 9/1/I7 KUNAL CIIAUDHRY at MARTIN MEDICAL
CENTER deviated from the acceptable and appropriate standard of
care and with reckless disregard for Mr. Greer by failing to consult
with a cardiovascular surgeon once he determined that there was
P Y
signifia-un obstructive three vessel coronary artery disease and
before attempting balloon angioplasty of the circumflex artery at a
time when Mr. Greer was asymptomatic after a late presentation of
an acute myocardial infarction,
b)
C O
On 911/17 KUI•ZAL CHAUDHRY at MARTIN MEDICAL
CENTER deviated from the acceptable and appropriate standard of
care and with reckless disregard for Mr. Greer by repeatedly and
excessively attempting to cross the occluded circumflex coronary
artery with multiple stiff guidewires and then dilate the circumflex
coronary artery with multiple balloons causing or substantially
contributing to cause a circumflex coronary artery rupture,
On 911117 KUNAL CHAUDHRY at MARTIN MEDICAL
CENTER deviated from the acceptable and appropriate standard of
care and with reckless disregard for Mr. Greer by using a coronary
angioplasty balloon catheter that was oversisized at high pressures.
causing or substantially contributing to cause a circumflex
coronary artery rupture,
d) Failure to exercise that level of care, skill and treatment which, in
light ()fail relevant surrounding circumstances. is recognized as
acceptable and appropriate by reasonably prudent similar
healthcare.providers and with reckless disregard for the safety of
Mr. Greer.
8. All of the above expressed opinions are to a reasonable degree of medical
probability, and that those deviations from the standard of care were a probable
cause, in whole or in part, of the damage suffered by FREDERIC GREER.
9. It is my medical opinion that reasonable grounds exist for FREDERIC GREER
and his wile, Melissa Greer to initiate medical negligence litigation against
Page 2 of 3
MARTIN HEALTH SYSTEM and KUNAL CHAUDFIRY. MD and their
employers, employees. agents, and apparent agents.
10. I have not rendered a previous medical opinion which has been disqualified
pursuant to Florida Statute 766.203(4), nor have l been Ihund guilty of fraud or
perjury in any jurisdiction_
NEAL SHADOFF, MD
The foregoing, Affidavit was acknowledged before me, an officer duly authorized in
the State
and County aforesaid, to take acknowledgments, this day of ,Cr , 2018, by NEAL
SHADOFE, M.D., who is pen onally known to me or has produced identification.
r C
„eh:0,0'N
;s. rt
•wo,
OFFICIAL SEAL
Karen V. Corona
NOTARY PUBLIC
STATE OF NEW MEXICO
P Y
NO fARY
,k4,..•
Printed Name
PUBLIC —Signature
/lc.
O
My Cpvntaimtion expirce: 04/ ifl• ,A9 Personally known.
Identification produced:
C
Page 3 of 3
COUNSELORS AT LAW
SOMERA & SILVA, LLP
One Boca Place
2255 Glades Road, Suite 232W
BOCA RATON, FL 33431
T: 561.981.8881
F: 561.981.8887
www.somerasilva.com
OCT -- 6 2018
October 5, 2018
CERTIFIED MAIL
RETURN RECEIPT REQUESTED
Martin Medical Center
Attn: Risk Management Department
200 SE Hospital Ave
Stuart, Fl 34997
P Y
?DUPE OF INTENT TO IMTIATE LITIGATION PURSUANT TO FLORIDA
STATUTE $766.106(2)
Dear Sir/Madam:
C O
You are hereby notified that FREDERIC GREER AND MELISSA GREER intend to
initiate litigation for medical negligence against MARTIN MEDICAL CENTER. AND KUNAL
CHAUDHRY, MD (hereinafter "CHAITDHRY") and any other person or entity with whom you
had a relationship regarding medical care during the time it was provided to FREDERIC
GREER. This notice is given pursuant to Section 766.106, Florida Statutes. This claim arises out
the evaluation and treatment of FREDERIC GREER in September 2017.
It is our contention that the treatment of FREDERIC GREER represented a breach of the
prevailing standard of care as set forth in the enclosed Affidavit of NEAL SHADOFF, MD
MATERIAL FACTS GIVING RISE TO FORM TEE BASIS FOR THIS NOTICE;
9/1/17, 3:56 am, presented to ER at Tradition Medical Center, with neck pain and SOB for 4
days, new SOB for 5 hours, denies CP, treated by Dr. Polhemus, emergency room physician.
9/1/17, 4:53 am Dr. Chaudhry assigned as consulting physician.
9/1/17, 4:58 am, total CK 610 H, CK-MB 10.56 H.
9/1/17, 5:22 am Dr. Polhemus in discussion with Dr. Chaudhry not deemed STEMI alert.
9/1/17, 5:30 am Troponin I, 22.47 H.
9/1/17, After elevated troponin, still symptomatic so deemed cardiac alert and send to Martin for
cath lab.
1
9/1/17, 6:00 am cardiac alert called.
9/1/17, 6:14 am, patient admitted to cardiac oath lab from ER at Martin Medical Center.
9/1/17, 6:39 am cath starts.
9/1/17, 6:41 am. Original History and Physical by Dr. Chaudhry. Addendum file on 9/1/17 at
12:26 pm. Inferior infarct of unknown timing. Dyspnea, SOB., no chest pain, elevated troponin I
23.47.
9/1/17, 06:39 am cardiac catheterization by Kunal Chaudhry, MD, occlusion of proximal left
circumflex artery which i
Preview
Filing # 142591668 E-Filed 01/25/2022 11:54:40 AM IN THE CIRCUIT COURT OF THE 19th JUDICIAL CIRCUIT IN AND FOR MARTIN COUNTY, FLORIDA CASE NO: 2019-CA-000015 FREDERIC CHARLES GREER, III, and MELISSA ANNE GREER, as Husband and Wife, and FREDERIC CHARLES GREER, III and MELISSA ANNE GREER, individually, Plaintiffs, VS. MARTIN MEMORIAL MEDICAL CENTER, INC. d/b/a MARTIN MEDICAL CENTER, a Florida Corporation; KUNAL CHAUDHRY, M.D.; and CARDIOLOGY ASSOCIATES OF STUART, P.A., a Florida profit corporation, P Y Defendants. C O DEFENDANT, MARTIN MEMORIAL MEDICAL CENTER, INC. D/B/A MARTIN MEDICAL CENTER'S, RESPONSE AND CROSS MOTION FOR PARTIAL SUMMARY JUDGMENT TO PLAINTIFFS' MOTION FOR PARTIAL SUMMARY JUDGMENT ON THE ISSUE OF PRESUIT COMPLIANCE COMES NOW, Defendant, MARTIN MEMORIAL MEDICAL CENTER, INC. d/b/a MARTIN MEDICAL CENTER ("MMMC"), by and through the undersigned counsel, files this Response and Cross Motion for Partial Summary Judgment to Plaintiffs' Motion for Partial Summary Judgment on the Issue of Presuit Compliance. INTRODUCTION 1. This is a medical malpractice action arising out of allegations that MMMC was negligent in the care and treatment of Frederic Charles Greer, III. Specifically, in Count I of the Second Amended Complaint, Plaintiffs allege, for the first time, that MMMC's employed nurses permitted a cardiac catheterization performed by former co-defendant, Kunal Chaudhry, M.D., to 1 proceed without intervening to stop the procedure that caused injury to Mr. Greer. (Pls. Second Am. Compl. ¶ 167). 2. Markedly absent from Plaintiffs' prior Complaints, their Notice of Intent, or the required corroborating presuit expert affidavit, were any allegations whatsoever regarding nursing care. Nevertheless, through argument at the hearing for MMMC' s Motion for Summary Judgment, Count I of Plaintiffs' First Amended Complaint was interpreted to allege negligence against MMMC for the actions of its employee, Nurse Katelyn Tilley. See Order Granting Summary Judgment as to Count I of the First Amended Complaint, attached hereto as Exhibit "A." In their P Y response to Defendant's Motion for Summary Judgment, Plaintiffs alleged Nurse Tilley was negligent for her failure to check the waiting room for the family of Mr. Greer who might provide C O informed consent for the procedure. Also at the hearing on MMMC's Motion for Summary Judgment, counsel for Plaintiffs clarified that the basis of MMMC's negligence was the alleged nursing negligence of Nurse Tilley. The Court found there were no genuine issues of material fact as to Count I and granted MMMC's Motion for Summary Judgment. Id. 3. Now, in their Second Amended Complaint, Plaintiffs have concocted a completely different theory of liability. However, Plaintiffs never investigated these new allegations against MMMC's nurses during the presuit period as mandated by Chapter 766 of the Florida Statutes. 4. For the reasons stated herein, this court should grant summary judgment on Count I of Plaintiffs' Second Amended Complaint as Plaintiffs failed to conduct the required presuit investigation with regard to these newly asserted allegations. 5. Additionally, as the cases cited by Plaintiffs' counsel do not consider whether the Plaintiffs complied with their requirement to conduct a good faith investigation, this Court should deny Plaintiffs' Motion for Partial Summary Judgment on the Issue of Presuit Compliance. 2 COMPARISON OF ALLEGATIONS FROM THE NOTICE OF INTENT, PRESUIT AFFIDAVIT, AND PLAINTIFFS' SECOND AMENDED COMPLAINT FOR DAMAGES Plaintiffs' presuit affidavit corroborating reasonable grounds to initiate medical malpractice contains no allegations whatsoever concerning the conduct of MMMC's nurses. Instead, Plaintiffs' presuit expert, Dr. Shadoff, stated that there were reasonable grounds to initiate medical negligence litigation against Dr. Chaudhry and MMMC for the following reasons: a) On 9/1/17 KUNAL CHAUDHRY at MARTIN MEDICAL CENTER deviated from the acceptable and appropriate standard of care and with reckless disregard for Mr. Greer by failing to consult with a cardiovascular surgeon once [Dr. Chaudhry] determined that there was significant obstruction three vessel Y coronary artery disease and before attempting balloon angioplasty of the circumflex artery at a time when Mr. Greer was asymptomatic after a later O P presentation of an acute myocardial infarction. b) On 9/1/17 KUNAL CHAUDHRY at MARTIN MEDICAL CENTER deviated from the acceptable and appropriate standard of care and with reckless disregard C for Mr. Greer by repeatedly and excessively attempting to cross the occluded circumflex coronary artery with multiple stiff guidewires and then dilate the circumflex coronary artery with multiple balloons causing or substantially contributing to cause a circumflex coronary artery rupture c) On 9/1/17 KUNAL CHAUDHRY at MARTIN MEDICAL CENTER deviated from the acceptable and appropriate standard of care and with reckless disregard for Mr. Greer by using a coronary angioplasty balloon catheter that was oversized at high pressures, causing or substantially contributing to cause a circumflex coronary artery rupture. d) Failure to exercise that level of care, skill and treatment which, in light of all relevant surrounding circumstances is recognized as acceptable and appropriate by reasonably prudent similar healthcare providers and with reckless disregard for the safety of Mr. Greer. (Affidavit of Dr. Shadoff, attached hereto as Exhibit "B"). The allegations in the presuit Notice of Intent reference the expert affidavit of Dr. Shadoff for the specific allegations to be asserted against MMMC in the proposed lawsuit. (See NOI, attached hereto as Exhibit "C"). Mention of MMMC's nursing staff appears just once in the 3 Notice of Intent, solely to state that the nurses and nurses' aides were acting within the course and scope of their employment on the date of incident. (Exhibit "C" at 3). By contrast, Plaintiffs' Second Amended Complaint contains a slew of new allegations against MMMC and its nursing staff that are markedly absent from the presuit Notice of Intent and corroborating expert affidavit: 164. On 9/1/17 MARTIN and its employee nurses had a duty to abide by the nursing chain of command for the protection, health and safety of its patients and specifically GREER in the cath lab. 165. On 9/1/17 MARTIN and its employee nurses had a duty to abide by the Policy Y and Procedure Cardiac Transfers Decision Tree from Tradition Medical Center Intervention Lab, which governed cardiac cath lab decision tree to P safely transfer patient to MARTIN who need to have cardiac interventions performed, which required a cardiac cath consistent with diffuse disease O needs cardiac surgical consult. C 167. The Defendant, MARTIN, is vicariously liable for the negligence of its employees, Carroll, Tilley, Fournier, and Bennett, and any other employees, agents or apparent agents who provided care to GREER on 9/1/17 by each of the following breaches of the standard of care: (a) The cardiac cath lab employees Carroll, Tilley, Carroll [sic] and radiation tech Fournier had a duty to follow the hospital policy and procedures and fell below the standard of care and showed a reckless disregard for the health and safety of GREER by failing to abide by the cardiac transfers decision tree from tradition that requires cardiac cath with diffuse disease a cardiac surgical consultation, which is designed to protect the patient, (b) After Dr. Chaudhry completed the diagnostic cath and determined diffuse three vessel disease, the nurses and tech Fournier had a duty to remind Dr. Chaudhry of the requirement for cardiac surgery consult for diffuse disease on cardiac cath and fell below the standard of care and showed a reckless disregard for the health and safety of GREER for failing to do so. If Dr. Chaudhry refused to obtain a cardiac surgery consult, then the nurses needed to go up the chain of command for enforcement of the policy and to protect the patient, (c) After Dr. Chaudhry attempted to balloon the left circumflex more than 10 times unsuccessfully, the nurses fell below the standard of care and showed a reckless disregard for the health and safety of GREER by failing 4 to request that Dr. Chaudhry consider another alternative treatment instead of allowing him to continue ballooning over 16 times, which caused the coronary perforation, and if he refused, the employees should have triggered the chain of command to protect the patient, (d) It would be below the nursing standard of care not to document in the cath lab records that Dr. Chaudhry stepped away from the cath lab table to have a discussion with Dr. Crouch at the cath lab door regarding GREER, if that exchange took place, (e) Failing to treat the medical condition in a timely manner. 168. As a direct and proximate result of the negligence of the MARTIN [sic] by and through its employees, the PLAINTIFF, suffered injury . . . . (Pls. Second Am. Compl. ¶91 164-168). P Y As discussed below, this court should grant summary judgment as to Count I of Plaintiff's C O Second Amended Complaint based on Plaintiffs' failure to conduct the required presuit investigation with regard to these new claims against MMMC's nurses. ARGUMENT I. Legal Standard On April 29, 2021, Florida's Supreme Court modified Florida Rule of Civil Procedure 1.510 and adopted the federal standard for summary judgment. In adopting the federal standard for summary judgment, the Supreme Court explained that summary judgment is now an integral part of pretrial procedure and elaborated that the standards for summary judgment and a directed verdict should be the same: In our December 31, 2020, decision amending rule 1.510, we made it clear that adopting the federal summary judgment standard means that Florida will now adhere to the principles established in the Celotex trilogy. In the broadest sense, those cases stand for the proposition that "[s]ummary judgment procedure is properly regarded not as a disfavored procedural shortcut, but rather as an integral part" of rules aimed at "the just, speedy and inexpensive determination of every action." Celotex, 477 U.S. at 327 (Quoting Fed. R. Civ. P. 1). More specifically, though, embracing the Celotex trilogy means abandoning certain 5 features of Florida jurisprudence that have unduly hindered the use of summary judgment in our state. [T]hose applying the new rule 1.510 must recognize the fundamental similarity between the summary judgment standard and the directed verdict standard. See Anderson, 477 U.S. at 251 (noting that "the inquiry under each is the same"). Both standards focus on "whether the evidence presents a sufficient disagreement to require submission to a jury." Id. at 251-52 In Re: Amendments to Florida Rule of Civil Procedure 1.510, No. SC 20-1490 (Fla. 2021) (emphasis added). "By its very terms, this standard provides that the mere existence of some alleged factual P Y dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact." Anderson v. Liberty C O Lobby, Inc., 477 U.S. 242, 247-48 (1986) (emphasis in original). An issue of fact is "genuine" if the evidence could lead a reasonable jury to find for the nonmoving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). "Where the material facts are undisputed and all that remains are questions of law, summary judgment may be granted." Hernandez v. Sam's East, Inc., 2021 WL 1647887, No. 20-CV-61648-RAR (S.D. Fla. April 26, 2021). While the court must construe the evidence in the light most favorable to the nonmoving party, the nonmoving party's presentation of a "mere existence of a scintilla of evidence" in support of its position is insufficient to overcome summary judgment. Anderson, 477 U.S. at 252. Rather, "there must be evidence on which the jury could reasonably find for the plaintiff. The judge's inquiry, therefore, unavoidably asks whether reasonable jurors could find by a preponderance of the evidence that the plaintiff is entitled to a verdict[.]" Id. Likewise, a plaintiff's conclusory allegations will not create an issue of fact for trial to defeat a well-supported motion for summary judgment. Earley v. Champion Int'l Corp., 907 F.2d 6 1077, 1081 (11th Cir. 1990). "When a party moving for summary judgment points out an absence of evidence on a dispositive issue for which the nonmoving party bears the burden of proof at trial, the nonmoving party must `go beyond the pleadings and by [his] own affidavits or by the depositions, answers to interrogatories, and admissions on file, designate specific facts showing that there is a genuine issue for trial." Vallot v. Logans Roadhouse, Inc., 2013 WL 5305672, No. 6:12-cv-1561-0r1-31KRS (M.D. Fla. Sept. 20, 2013) (quoting Celotex Corp., 477 U.S. at 324- 325). II. Plaintiffs Failed to Conduct the Required Presuit Investigation Regarding Y Allegations of Nursing Negligence as Asserted in Their Second Amended Complaint O P The presuit provisions of Florida's Medical Malpractice Act are mandatory and were designed to establish a comprehensive procedure to facilitate the amicable resolution of medical C malpractice claims. Fla. Stat. § 766.201. See Gordon v. Shield, 41 So. 3d 931, 933 (Fla. 4th DCA 2010). Indeed, The Florida Supreme Court interpreted the presuit investigation requirements to be a mandatory condition precedent to bringing a medical malpractice action. Kukral v. Mekras, 679 So. 2d 278, 283 (Fla. 1996). Failure to comply with the presuit investigation justifies dismissal of the claim. Id. The mandatory presuit investigation process requires a claimant to conduct an investigation to determine whether there are reasonable grounds to believe that a named prospective defendant was negligent and that such negligence resulted in injury to the claimant. Fla. Stat. § 766.203(2). The claimant then must communicate these reasonable grounds to a prospective defendant through a notice of intent and corroborating expert affidavit. Id. The statute of limitations is then tolled for 90 days to allow the prospective defendant to conduct its own investigation to determine its 7 potential liability. Fla. Stat. § 766.106(3). Once suit is filed, if the plaintiff's presuit investigation or notice of intent is deemed to be insufficient, Section 766.206 requires dismissal. Though often commingled, the reasonable investigation, corroborating expert affidavit, and notice provisions of Chapter 766 ensure separately that each party evaluates whether a claim for medical malpractice has merit. See Largie v. Gregorian, 913 So. 2d 635, 640 (Fla. 3d DCA 2005); Kukral, 679 So. 2d at 282. Indeed, the requirements of the presuit notice of intent and the requirements of the mandatory presuit investigation are set out in separate statutes. Compare Fla. Stat. § 766.106 (setting out the requirements for the presuit notice of intent), with Fla. Stat. § P Y 766.203 (discussing the requirements of the mandatory presuit investigation). By conducting a thorough and reasonable presuit investigation, a claimant determines which providers to put on C O notice of a potential claim for medical malpractice. Id. One part of the requisite reasonable investigation includes obtaining a corroborating affidavit by a medical expert. Id. Nevertheless, plaintiffs are still under a discrete duty, separate and apart from obtain a corroborating affidavit, to review the case against each prospective defendant and determine whether a claim for medical malpractice is justified. Largie, 913 So. 2d at 638-39. In Largie, 913 So. 2d at 639, the Third District considered the reasonableness of a plaintiff's investigation as to a nurse named in a medical malpractice action. Id. After conducting a presuit investigation with the other medical providers, the nurse was belatedly served with the presuit notice of intent and corroborating expert affidavit that was previously provided to the other prospective defendants. Id. at 637. However, the presuit expert affidavit did not mention the nursing standard of care nor did it mention the nurse practitioner or her actions. Id. at 639. While finding that presuit investigation was sufficient as to other defendants, the Third District affirmed judgment as a matter of law in favor of the nurse. Id. at 641. The court upheld the trial court's determination 8 that no reasonable investigation was conducted as to the nurse's care: "The expert opinion provided to Nurse Wang completely fails to satisfy these purposes. It makes no mention of Nurse Wang whatsoever, either by name or job description; it makes no reference to the standard of care; and, it does not suggest, much less corroborate that any investigation took place with regard to Nurse Wang or that any reasonable grounds exist to support the Largies' claim against her as expressly mandated by Chapter 766." Id. (Emphasis added). Similarly, here, Plaintiffs failed to conduct a reasonable investigation into the nursing care provided by MMMC during the presuit period. The presuit affidavit, Notice of Intent, and First P Y Amended Complaint, contain no allegations regarding the chain of command, the nursing standard of care, or so much as a suggestion that the nurses should have exercised their own independent C O judgment to stop Dr. Chaudhry from performing a procedure. I Plaintiffs should not now be permitted to muster new allegations of negligence against MMMC that were never investigated during the presuit period. Plaintiffs had ample time before filing suit to conduct a reasonable presuit investigation into the nursing care by reviewing Mr. Greer's medical records and retaining a nursing expert to opine regarding the standard of care. The new allegations against MMMC' s nurses in Plaintiffs' Second Amended Complaint were plainly not investigated during the presuit period, and therefore this Court must grant summary judgment with regard to Count I of Plaintiffs' Second Amended I Importantly, counsel for Plaintiffs represented at the hearing on Defendant's Motion for Summary Judgment that the only negligent act in support of the negligence claim against MMMC was the failure of Nurse Tilley to check the waiting room and advise Dr. Chaudhry that Mr. Greer's wife was in the waiting room. (Hearing on Defendants Motion for Summary Judgment 123: 10- 24, attached hereto as Exhibit "D"). Had the nursing care issues been reasonably investigated during the presuit period, the newly fabricated arguments certainly would have been made at the hearing on Defendant's Motion for Summary Judgment. 9 Complaint. A review of Dr. Shadoff's presuit affidavit and Plaintiffs' First Amended Complaint makes clear, Plaintiffs failed to perform the required presuit investigation. III. The Davis and Brown Cases are Distinguishable as they Do not Concern the Presuit Investigation but Only Concern Whether the Defendant was Provided with Adequate Notice Plaintiffs' Motion for Partial Summary Judgment on the Issue of Presuit Compliance mistakenly conflates the issues of the mandatory presuit investigation with the mandatory notice provisions of Chapter 766. As explained above, the mandatory investigation and presuit notice provisions are distinct obligations of a claimant. See Largie v. Gregorian, 913 So. 2d 635, 640 (Fla. 3d DCA 2005); Kukral, 679 So. 2d at 282. P Y Plaintiffs are correct that the notice obligations of Chapter 766 have been broadly read so C O that the purpose of the presuit notice of intent and corroborating expert affidavit is to assure a prospective defendant that non-frivolous grounds to initiate a medical malpractice claim exist. However, none of the cases relied on by Plaintiffs in their Motion for Partial Summary Judgment On the Issue of Presuit Compliance even mention the distinct obligation of the mandatory presuit investigation. By contrast, in the Largie case, discussed above, the Court considered and dismissed plaintiff's case for failure to properly conduct the mandatory presuit investigation. In Davis v. Orlando Regional Medical Center, 654 So. 2d 664 (Fla. 5th DCA 1995), the defendant hospital moved to dismiss the complaint for failure to provide proper notice of the allegations in presuit. In Davis, the presuit medical expert opinion referred to negligence that occurred during surgery rendered to the plaintiff. Id. at 664-65. The plaintiff's complaint alleged the plaintiff was injured during the course of her stay at the hospital. Id. at 665. At the plaintiff's expert's deposition, however, he opined that he was also critical of the hospital for the actions of its nurses after surgery. Id. The defendant moved to preclude these opinions at trial. Id. The trial 10 court agreed and the plaintiffs petitioned the Fifth District for certiorari. Id. The Fifth District reversed and discussed the purposes of the presuit notice and expert corroborative affidavit. Id. The court did not consider the investigatory obligations of the plaintiff. See generally id. Similarly, the holding of Columbia/JFK Med. Ctr. v. Brown, 805 So. 2d 28, 29 (Fla. 4th DCA 2001), centered on the presuit notice obligations: "the purposes of the presuit notice and the requirement of an expert's affidavit to corroborate the claim is not to notify the defendants as to how they were negligent, but rather is to demonstrate that the claim is legitimate." Id. (Emphasis added). The hospital argued that the notice provided to it was inadequate since the plaintiff's notice P Y of intent referenced the negligence of emergency room physicians and not its gynecologist. Id. at 28. The Fourth District disagreed and found that the presuit notice requirements had been satisfied. Id. at 29. C O By contrast, the court in Largie v. Gregorian, 913 So. 2d 635 (Fla. 3d DCA 2005) specifically considered whether the Plaintiffs properly investigated their nursing claim: Moreover, when pointedly asked to explain what had been done to investigate the Largies' claim against Nurse Wang, counsel did no more than point to the affidavit referencing only Drs. Gregorian and Dansky and their breach of the standard of care. This was inadequate. Because the record clearly shows that the Largies failed to conduct a reasonable investigation as to "each and every potential defendant," specifically, Nurse Wang, the legislative purpose of Chapter 766 was frustrated, mandating elimination of the claim against her from this suit. Id. at 639. The court specifically drew this distinction when distinguishing cases where failure to give adequate notice during the presuit period was alleged by a defendant: "No issue was raised as to whether the corroborating affidavit was sufficient to confirm that the statutorily mandated investigation had taken place . . . ." Id. at 640 (emphasis added). The court continued: Deciding whether a defendant named in both the notice and the affidavit received sufficient information to respond is not the same as deciding whether a verified expert opinion, which makes no mention of a defendant named in a malpractice suit, the standard of care applicable to that defendant, or any breach of that 11 standard of care, is sufficient to corroborate that an investigation has determined that the claim is legitimate as to that defendant. Id. (Emphasis added). The court ultimately affirmed summary judgment in favor of Nurse Wang. Likewise, in this case, Plaintiffs' presuit expert affidavit does not even mention MMMC's nurses, the nursing standard of care, or any breach of that standard of care sufficient to corroborate that Plaintiffs investigated MMMC's nursing care to determine whether there was a legitimate claim. Plaintiffs are correct that MMMC had notice that a potential claim would be brought against it. However, Plaintiffs have failed to present any evidence whatsoever to support the fact that they Y even considered, let alone conducted, a mandatory investigation into the actions of MMMC's O P nurses during the presuit period. Therefore, Plaintiffs' Motion for Partial Summary Judgment on the Issue of Presuit Compliance must be denied and this court should grant MMMC's Cross C Motion for Partial Summary Judgment. CONCLUSION Plaintiffs clearly failed to comply with Chapter 766's mandatory presuit investigation requirement with regard to the allegations asserted in Count I of Plaintiffs' Second Amended Complaint. Therefore, this Court should grant Summary Judgment on Count I of Plaintiffs' Second Amended Complaint for Plaintiffs' failure to comply with the presuit investigation requirement. WHEREFORE Defendant Martin Memorial Medical Center, Inc. d/b/a Martin Medical Center respectfully requests this Court grant summary judgment on Count I of Plaintiffs' Second Amended Complaint and any other relief this Court deems just and proper. CERTIFICATE OF SERVICE WE HEREBY CERTIFY that on this day of January, 2022, a copy of the foregoing was served via the Florida E-Filing Portal to the parties on the attached service list. 12 STEARNS WEAVER MILLER WEISSLER ALHADEFF & SITTERSON, P.A. Attorneys for Martin Memorial Medical Center, Inc. 200 East Las Olas Blvd., Suite 2100 Fort Lauderdale, FL 33301 Phone: (954) 462-9500 Fax: (954) 462-9567 B THOMAS G. AUBIN, ESQUIRE FBN: 008060 taubin@stearnsweaver.com MATTHEW S. PODOLNICK, ESQUIRE Y FBN: 112126 mpodolnick@stearnsweaver.com O P C 13 SERVICE LIST Peter J. Somera Jr., Esq. Geoffrey N. Fieger, Esq. Paul M. Silva, M.D., Esq. Fieger Law Somera & Silva, LLP 19390 West Ten Mile Road 2255 Glades Road, Suite 232W Southfield, MI 48075 Boca Raton, FL 33431 Phone: (248) 355-5555 Phone: (561) 981-8881 Fax: (248) 355-5148 Fax: (561) 981-8887 G.Fieger@Fiegerlaw.com pleadings@somerasilva.com S.Teal@Fiegerlaw.com litigation@somerasilva.com Co-Attorneys for Plaintiffs Attorneys for Plaintiffs Adam Richardson, Esq. Bard D. Rockenbach, Esq. Y Burlington & Rockenbach, P.A. 444 West Railroad Avenue West Palm Beach, FL 33401 Tel: 561-721-0400 ajr@FLAppellateLaw.com bdr@FLAppellateLaw.com O P fa@FLAppellateLaw.com C Appellate attorneys for Plaintiffs 14 #10231831 vl Filing # 107147725 E-Filed 05/06/2020 04:00:19 PM IN THE CIRCUIT COURT OF THE NINETEENTH JUDICIAL CIRCUIT IN AND FOR MARTIN COUNTY, FLORIDA FREDERIC CHARLES GREER, III and CASE NO. 43 2019 CA 000015 MELISSA ANNE GREER, as Husband and wife, and FREDERIC CHARLES GREER, III and MELISSA ANNE GREER, individually, Plaintiffs/Counter-defendants, v. MARTIN MEMORIAL MEDICAL CENTER, INC., D/B/A MARTIN MEDICAL CENTER, a Florida Corporation, KUNAL CHADHRY, MD, and CARDIOLOGY ASSOCIATES. OF STUART, P.A., a Florida Profit Corporation, P Y C O Defendants/Counter-plaintiffs. ORDER GRANTING MARTIN MEMORIAL MEDICAL CENTER'S MOTION FOR MARTIAL] SUMMARY JUDGMENT AS TO COUNT I AND DENYING MARTIN MEMORIAL MEDICAL CENTER'S MOTION FOR MARTIAL] SUMMARY JUDGMENT AS TO COUNTS II AND III This cause came before this Court for several hearings upon Martin Memorial Medical Center's (hereafter "Defendant"), Motion for [Partial] Summary Judgement, (the "Motion"), together with the response filed by Plaintiff's, Frederic Greer and Melissa Greer (hereinafter collectively known as "Plaintiff's"): The Motion is a Motion for Summary Judgment on Counts I, II, and III of the Amended Complaint.' The factual basis underlying Count I, a nurse's alleged failure to locate Mr. Greer's wife so she could assist him in giving informed consent, is nowhere in The Motion is titled as, and docketed as, a Motion for Summary Judgment on Counts I, II, and III. The Motion contains argument for judgment on Counts II, III, and IV. The Motion contains a heading on every page as a Motion for Summary Judgment on Count II, III, and III. The Motions first few paragraphs introduce Counts I, II, and III. Paragraph 5 of the Motion alleges judgment is appropriate for Counts II and III. the pleadings. Nonetheless, this alleged negligent act was argued extensively at the hearing, and was argued in memoranda. Accordingly, the Court finds that the parties litigated this point by consent.2 In support of their allegations under Count I, Plaintiffs argued there was a lack of informed consent. Plaintiffs claim Nurse Tilly allegedly failed to check the waiting room to see if Ms. Greer was there. The alleged failure of Nurse Tilly to check the waiting room is alleged to be the basis to hold Defendant liable for failing to obtain informed consent. Defendants rebutted Plaintiffs argument by pointing out that not only are there absolutely P Y no allegations regarding Nurse Tilly in Count I of the Amended Complaint, but also that Dr. Chadhry himself obtained Mr. Greer's consent for the procedure. Additionally, the C O facts are clear that, by the time Mrs. Greer arrived at the hospital, Mr. Greer had already been taken to the operating room. The nurse's alleged failure to check the waiting room is irrelevant. Furthermore, there was no record evidence contesting Dr. Chadhry's testimony that Mr. Greer's consent was informed. The doctor also testified that in his opinion, Mr. Greer was competent. As to Count I, there are no issues of genuine material fact. Therefore, the Motion shall be granted as to Count I. Count II Actual Agency The Defendant conceded that the first two elements of actual agency alleged in Count II, were met. The third element, the right to control,3 was disputed by the parties. Plaintiffs argued Defendant had the right to control the manner in which Doctor Chadhry 2 Count I was not pled for in the Motion. Relief not in the pleading or tried by consent is outside the trial court's jurisdiction. Wachovia Mortgage Corporation v. Posti, 166 So.3d 944, 945 (Fla. 4th DCA 2015). Count IV was previously disposed of by prior order. 3 It is the right to control and not actual control which determines the agency relationship. Villazon at 853. Page 2 of 4 performed his task. Defendant required Doctor Chadhry to be on call; Defendant required Doctor Chadhry to accept all Defendant's third party payers; Defendant required Doctor Chadhry to assist in developing Defendant's program; Defendant required Doctor Chadhry to assist with educating the public; and Defendant required Doctor Chadhry to perform and comply with Defendant's practices, policies, rules, and regulations. The record also contained Defendant's advertising literature clearly creating the inference that the Defendant's doctors were its employees. Defendant contested Plaintiff's allegations and argued Doctor Chadhry had control over how he practiced; that he made his own P Y competency decisions, and that he had the authority to decide which devises to use and how to use them. Defendant asserts that Doctor Chadhry's right to control his practices C O is evident from the contract between the parties. While the obvious purpose of such contractual language is to establish expressly an independent contractor status, such status does not depend solely on contractual language but upon all the surrounding circumstances of their dealings with each other.4 The evidence on the record shows there are many issues of genuine material fact as to who had the right to control. The Motion is denied as to Count II. Count III Apparent Agency In Count Ill, Plaintiffs allege apparent agency. Like actual agency, it also has three elements: a representation by the purported principal, a reliance on that representation by a third party, and a change in position.5 The Plaintiffs argued Defendant made representations that its doctors where its employees as shown in advertising brochures with pictures and captions of Doctor Chadhry on them. Plaintiffs argued they relied on 4 Villazon at 854. 5 Stone v. Palms West Hospital, 941 So.2d 514, 519 (Fla. 401 DCA 2006). Page 3 of 4 Defendant's representation that Dr. Chadhry was one of its doctors and agreed to treatment by Defendant. Plaintiffs argued they changed their position by, among other things, agreeing to be transferred to Defendant for treatment. Defendants responded by stating that it is not a subjective standard, but a reasonable person standard, and Plaintiff's subjective beliefs are of no consequence. Defendants also assert there is no evidence or indication that any change in position took place and posits that Plaintiffs would have made the same treatment decisions regardless of Defendant's representations. P Y Although Defendant is correct in that apparent agency analysis utilizes a reasonable person standard, not a subjective standard, the evidence in the record shows C O there are clear issues of genuine material fact as to all three elements of apparent agency. The existence of an agency relationship is normally one for the trier of fact to decide.6 The Motion is denied as to Count III. It is therefore ORDERED AND ADJUDGED: Martin Memorial Medical Center's Motion for [Partial] Summary Judgement filed on November 8, 2019, is hereby GRANTED as to Count I and DENIED as to Counts II and III. SIGNED AND ORDERED in Stuart, Martin County Florida on May 6, 2020. Circuit Court Judge Copies via the e-portal to all parties of record 6Stone at 519. (citing Roessler, 858 So.2d at 1162) (referring to the question of a physician's apparent authority to act for a hospital often being a question of fact for the jury). Page 4 of 4 VERIFIED MEDICAL EXPERT OPINION RSVANT TO FLORIDA STATUTE, 766.203(2) STATE OF NEW MEXICO COUNTY OP BERNALILLO BEFORE ME the undersigned authority this day personally appeared NEAL SHADOFF. MD, who being first duly sworn under oath, deposes and says: 1. That I am over the age of twenty-one (21) years, competent to make this Affidavit, and with personal knowledge of the facts and opinions contained herein. I am a "medical expert's as defined by Florida Statutes and duly and regularly engaged in the practice of medicine. 3. I am a physician licensed to practice medicine in the State of NEW MEXICO. P Y During the past three (3) years my medical practice has included the evaluation, diagnosis and treatment of the medical condition that is the subject of this claim, and I have prior experience treating patients similar to FREDERIC GREER. I am certified by THE AMERICAN BOARD OF INTERNAL. MEDICINCE/ in 4. experience. C O INTERNAL MEDICINE and CARDIOVASCULAR DISEASE/. A copy of my curriculum vitae is attached hereto and outlines my education, training and I am familiar with the applicable facts and circumstances in this case. 5_ I have personally reviewed the following medical records, cardiac catheterization computerized event log, and medical data as well as imaging pertaining to FREDERIC GREER: MARTIN MEDICAL CENTER 200 St Hospital Avenue Stuart, Fl 34997 MARTIN MEDICAL CENTER-Cardiac Catheterization 9/1/2017 200 SE Hospital Avenue Stuart, Fl 34997 MARTIN MEDICAL CENTER-Echocardiograms 9/1/2017 200 SE Hospital Avenue Stuart, Fl 34097 6. Further, the only material reasonably available or obtainable and which I have reviewed is listed above. It is my understanding that additional medical records, data and information from others, including but not limited to the patient's family, other witnesses, treating physicians and other medical experts in the same or other specialties may become available in the future as a claim like this progresses. My Page 1 of 3 opinions are based solely upon the information presented to date. If additional information is developed and forwarded to me in the future, in that event, Mier my review, my opinions expressed herein may change. be modified in some respects or supported even more so by the additional information. I reserve the right to review any and all additional information that may be developed in the course of this matter. 7. It is my medical opinion based upon the alere-stated documents, as well as my education, training and experience that MARTIN HEALTH SYSTEM and KUNAL CHAUDHRY, MD and their employees. agents, and apparent agents deviated from the acceptable and appropriate standard of cart in their care and treatment of FREDERIC GREER by: a) On 9/1/I7 KUNAL CIIAUDHRY at MARTIN MEDICAL CENTER deviated from the acceptable and appropriate standard of care and with reckless disregard for Mr. Greer by failing to consult with a cardiovascular surgeon once he determined that there was P Y signifia-un obstructive three vessel coronary artery disease and before attempting balloon angioplasty of the circumflex artery at a time when Mr. Greer was asymptomatic after a late presentation of an acute myocardial infarction, b) C O On 911/17 KUI•ZAL CHAUDHRY at MARTIN MEDICAL CENTER deviated from the acceptable and appropriate standard of care and with reckless disregard for Mr. Greer by repeatedly and excessively attempting to cross the occluded circumflex coronary artery with multiple stiff guidewires and then dilate the circumflex coronary artery with multiple balloons causing or substantially contributing to cause a circumflex coronary artery rupture, On 911117 KUNAL CHAUDHRY at MARTIN MEDICAL CENTER deviated from the acceptable and appropriate standard of care and with reckless disregard for Mr. Greer by using a coronary angioplasty balloon catheter that was oversisized at high pressures. causing or substantially contributing to cause a circumflex coronary artery rupture, d) Failure to exercise that level of care, skill and treatment which, in light ()fail relevant surrounding circumstances. is recognized as acceptable and appropriate by reasonably prudent similar healthcare.providers and with reckless disregard for the safety of Mr. Greer. 8. All of the above expressed opinions are to a reasonable degree of medical probability, and that those deviations from the standard of care were a probable cause, in whole or in part, of the damage suffered by FREDERIC GREER. 9. It is my medical opinion that reasonable grounds exist for FREDERIC GREER and his wile, Melissa Greer to initiate medical negligence litigation against Page 2 of 3 MARTIN HEALTH SYSTEM and KUNAL CHAUDFIRY. MD and their employers, employees. agents, and apparent agents. 10. I have not rendered a previous medical opinion which has been disqualified pursuant to Florida Statute 766.203(4), nor have l been Ihund guilty of fraud or perjury in any jurisdiction_ NEAL SHADOFF, MD The foregoing, Affidavit was acknowledged before me, an officer duly authorized in the State and County aforesaid, to take acknowledgments, this day of ,Cr , 2018, by NEAL SHADOFE, M.D., who is pen onally known to me or has produced identification. r C „eh:0,0'N ;s. rt •wo, OFFICIAL SEAL Karen V. Corona NOTARY PUBLIC STATE OF NEW MEXICO P Y NO fARY ,k4,..• Printed Name PUBLIC —Signature /lc. O My Cpvntaimtion expirce: 04/ ifl• ,A9 Personally known. Identification produced: C Page 3 of 3 COUNSELORS AT LAW SOMERA & SILVA, LLP One Boca Place 2255 Glades Road, Suite 232W BOCA RATON, FL 33431 T: 561.981.8881 F: 561.981.8887 www.somerasilva.com OCT -- 6 2018 October 5, 2018 CERTIFIED MAIL RETURN RECEIPT REQUESTED Martin Medical Center Attn: Risk Management Department 200 SE Hospital Ave Stuart, Fl 34997 P Y ?DUPE OF INTENT TO IMTIATE LITIGATION PURSUANT TO FLORIDA STATUTE $766.106(2) Dear Sir/Madam: C O You are hereby notified that FREDERIC GREER AND MELISSA GREER intend to initiate litigation for medical negligence against MARTIN MEDICAL CENTER. AND KUNAL CHAUDHRY, MD (hereinafter "CHAITDHRY") and any other person or entity with whom you had a relationship regarding medical care during the time it was provided to FREDERIC GREER. This notice is given pursuant to Section 766.106, Florida Statutes. This claim arises out the evaluation and treatment of FREDERIC GREER in September 2017. It is our contention that the treatment of FREDERIC GREER represented a breach of the prevailing standard of care as set forth in the enclosed Affidavit of NEAL SHADOFF, MD MATERIAL FACTS GIVING RISE TO FORM TEE BASIS FOR THIS NOTICE; 9/1/17, 3:56 am, presented to ER at Tradition Medical Center, with neck pain and SOB for 4 days, new SOB for 5 hours, denies CP, treated by Dr. Polhemus, emergency room physician. 9/1/17, 4:53 am Dr. Chaudhry assigned as consulting physician. 9/1/17, 4:58 am, total CK 610 H, CK-MB 10.56 H. 9/1/17, 5:22 am Dr. Polhemus in discussion with Dr. Chaudhry not deemed STEMI alert. 9/1/17, 5:30 am Troponin I, 22.47 H. 9/1/17, After elevated troponin, still symptomatic so deemed cardiac alert and send to Martin for cath lab. 1 9/1/17, 6:00 am cardiac alert called. 9/1/17, 6:14 am, patient admitted to cardiac oath lab from ER at Martin Medical Center. 9/1/17, 6:39 am cath starts. 9/1/17, 6:41 am. Original History and Physical by Dr. Chaudhry. Addendum file on 9/1/17 at 12:26 pm. Inferior infarct of unknown timing. Dyspnea, SOB., no chest pain, elevated troponin I 23.47. 9/1/17, 06:39 am cardiac catheterization by Kunal Chaudhry, MD, occlusion of proximal left circumflex artery which i