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Filing # 110039285 E-Filed 07/09/2020 09:22:38 PM
IN THE CIRCUIT COURT OF THE NINTH JUDICIAL CIRCUIT
IN AND FOR OSCEOLA COUNTY, FLORIDA
TODD COPELAND, Esquire as Guardian CASE NO.: 2017-CA-000174 MP
Ad Litem for JARIEL CALZADA, a
minor, ASHLEY CALZADA and JUAN L.
CALZADA, individually and on behalf of
JARIEL CALZADA, a minor,
Plaintiffs,
Vv.
OSCEOLA REGIONAL HOSPITAL
d/b/a/ OSCEOLA REGIONAL MEDICAL
CENTER, ERIK FRENDAK, CRNA.,
OSCEOLA OB/GYN, MICHAEL R.
DENARDIS, D.O., OB HOSPITALIST
GROUP, LLC., EZER A. OJEDA, M.D.,
OSCEOLA ANESTHESIA
ASSOCIATES, PL., RODNEY DEL
VALLE, M.D., PEDIATRIX MEDICAL
GROUP, INC., PEDIATRIX MEDICAL
GROUP OF FLORIDA, INC., MEDNAX,
INC., JOSE I. GIERBOLINI, M.D., JOHN
LONGHI, M.D., HCA, INC., HCA
HEALTH SERVICES OF FLORIDA,
INC., AND HCA HEALTHCARE
SERVICES-FLORIDA, INC.,
Defendants.
/
PLAINTIFFS’ RESPONSE IN OPPOSITION TO DEFENDANTS,
HCA INC., HCA HEALTH SERVICES OF FLORIDA INC. AND HEALTH SERVICES
INC.’S MOTIONS FOR SUMMARY JUDGMENT AND INCORPORATED MOTION
TO STRIKE DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT EVIDENCE
COME NOW Plaintiffs, TODD COPELAND, Esquire as Guardian Ad Litem for JARIEL
CALZADA, a minor, ASHLEY CALZADA and JUAN L. CALZADA, individually and on behalf
of JARIEL CALZADA, a minor, by and through undersigned counsel, to hereby file Plaintiffs’
Response in Opposition to Defendant HCA, INC.’s (hereinafter “HCA”), HCA HEALTH
SERVICES OF FLORIDA, INC. and HEALTH SERVICES, INC.’s Motions for Summary
Judgment and Incorporated Motion to Strike Defendants; Motion for Summary Judgment
Evidence, and in support thereof, state as follows:
1 The above captioned matter is a medical malpractice action wherein Plaintiffs allege that
the above-named Defendants were negligent when rendering care and treatment to
ASHLEY CALZADA and JARIEL CALZADA, a minor, resulting in JARIEL CALZADA
sustaining a permanent and irreversible hypoxic brain injury.
This memorandum is submitted in opposition to HCA’s motion for summary judgment,
dated June 5, 2020. HCA contends that summary judgment as to Count VIII of Plaintiffs’
Complaint is warranted because it is not vicariously liable for any of the negligent
treatment that is the subject of this medical malpractice action. Parenthetically, it should
be noted at the outset that HCA offers no proof to refute the allegations of negligence in
this case.
As set forth more fully below, HCA’s motion should be denied. First, HCA failed to supply
the Court with evidentiary proof to establish its entitlement to summary judgment as the
moving party. Although HCA offers an affidavit from one of its officers (Michael Bray,
HCA’s Asst. VP of Financial Reporting and VP of Osceola Regional Medical Center), the
conclusory statements contained therein have no evidentiary value. Indeed, Mr. Bray cites
to no documents, agreements, contracts, or records of any kind to provide factual support
for his self-serving description of a distant relationship between HCA and defendant
OSCEOLA REGIONAL HOSPITAL d/b/a/ OSCEOLA REGIONAL MEDICAL
CENTER (hereinafter “Osceola Regional Medical Center”).
The burden of proving the absence of a genuine issue of material fact is upon the moving
party and, until it is determined that the movant has successfully met this burden, the
opposing party is under no obligation to show that issues do remain to be tried. Holl v.
Talcott, 191 So.2d 41, 43 (Fla. 1966). In ruling on a motion for summary judgment, the
trial court “must view the evidence and draw all inferences in favor of the opposing party.”
Falco v. Copeland, 919 So.2d 650 (Fla. 1st DCA 2006).
Assuming, arguendo, that the Court does find that Mr. Bray’s affidavit is sufficient to
establish HCA’s entitlement to summary judgment, plaintiff has come forward with
evidentiary proof to raise triable issues of fact.
The deposition testimony of Mr. Bray, public documents filed by HCA with the United
States Securities and Exchange Commission, annual reports filed by HCA with Florida’s
Department of State (Division of Corporations), and the statements by HCA that are
contained on their own websites (the reliability of these websites are established by an
,
affidavit from an expert in information technology services, See Exhibit 10 of Plaintiffs
Notice of Filing), reveal that HCA owns, operates and controls the Hospital where the
negligent treatment occurred in this case.
As will be seen, this evidence squarely contradicts Mr. Bray conclusory statements. In
summary, the facts contained in plaintiffs’ opposition to defendant’s motion include the
following:
e In 2012, HCA held itself out as “one of the leading health care companies in the
United States,” responsible for “owning, operating, and managing 162 hospitals.”
See HCA’s 2012 Annual Report to Shareholders at 2, 3, 4. See also HCA’s website
“About Us” section, https://hcahealthcare.com/about/.
As of December 31, 2012, HCA owned and operated 38 hospitals with 10,261
hospital beds and 32 surgery centers in the state of Florida.” See HCA’s 2012
Annual Report to Shareholders at 58, 72.
HCA operates four hospitals in Central Florida: Central Florida Regional Hospital,
Oviedo Medical Center, Osceola Regional Medical Center and Poinciana Medical
Center.” See Osceola Regional Medical Center’s website,
https://osceolaregional.com/about/index.dot.
e In 2012, HCA had approximately 204,000 employees, including approximately
51,000 part-time employees. See HCA’s 2012 Annual Report to Shareholders at
35.
HCA is responsible payment of employees’ salaries and benefits, professional
liability insurance, professional fees, operating expenses, insurance, leases and
supplies for facilities. See HCA’s 2012 Annual Report at 72, 76-77.
In 2012, HCA filed one financial statement with the SEC for all entities (including
Osceola Regional Medical Center) for which they absorb a majority of the entity’s
expected losses, receive a majority of the entity’s expected residual returns, or both,
as a result of ownership, contractual or other financial interests in the entity. /d. at
F-8.
8 This evidence provides the necessary link between HCA and the Hospital to establish that
it is vicariously liable for the treatment rendered to plaintiffs. See Payas v. Adventist Health
System/Sunbelt, Inc., Case No. 2D16-3615 (Fla. 2d DCA 2018). It also debunks the
conclusory assertions made by Mr. Bray in his affidavit, which are only now being made
in an attempt to avoid liability for HCA. His affidavit, in short, should be disregarded in
its entirety.
Mr. Bray’s contention that “HCA Ine. did not own, operate and/or maintain the Hospital”
(Def. Exh. “C” at § 5), is nothing more than a self-serving and conclusory statement that is
debunked by the deposition testimony, SEC filings, HCA’s 2012 Annual Report to
Shareholders, and other evidentiary proof cited below. “Conclusory, self-serving testimony
is not sufficient” to prevail in a motion for summary judgment. Craven v. TRG-Boynton
Beach, Ltd., 925 So. 2d 476, 480 (Fla. 4th DCA 2006); Villazon v. Prudential Health Care
Plan, 843 So. 2d 842, 853 (Fla. 2003).
10. The importance of the clear contradictions between Mr. Bray’s sworn statements and the
statements by HCA in the filings annexed hereto cannot be understated. Not only is HCA’s
duty of candor to the Court called into question, but so is its duty to shareholders under
laws governing publicly traded companies.
4
11. Specifically, with respect to securities registered on a national securities exchange, it is
unlawful for “any person, directly or indirectly, by the use of any means or instrumentality
of interstate commerce”, to “make any untrue statement of'a material fact or to omit to state
a material fact necessary in order to make the statement made ... not misleading”, or to
“engage in any act, practice, or course of business which operates or would operate as a
fraud or deceit upon any person.” (17 C.F.R. § 10b-5; see also 17 C.F.R. § 240.10b-1).
12. Thus, either Mr. Bray’s statements in his affidavit are false, or the publicly available
statements made by HCA and its agents to the SEC and on its own websites are false.
When evaluating the credibility of Mr. Bray’s statements, plaintiffs ask the Court to
consider that HCA, in this action, is alleged to be liable for negligent treatment that resulted
in catastrophic neurologic injuries to the infant-plaintiff — not to mention a court decision
that will serve as the underpinning for its vicarious liability in other cases venued in this
State.
13 Regardless of the consequences, when a conclusion is belied by the facts, the facts must
prevail. Such are the circumstances with respect to Mr. Bray’s affidavit, which is the
cornerstone of HCA’s motion. The facts, and the well-settled legal doctrine of respondeat
superior, in particular as this doctrine applies to hospitals in this State, require but one
conclusion: HCA’s motion must be denied.
FACTS
14 The above styled cause of action is a medical malpractice case wherein Plaintiffs allege
that the physicians, nurses, and staff at OSCEOLA REGIONAL MEDICAL CENTER
were negligent when rendering care and treatment to ASHLEY CALZADA and JARIEL
CALZADA, a minor, resulting in JARIEL CALZADA suffering severe and permanent
injuries, including brain damage, global developmental delay, and cerebral palsy.
15. At all times material to Plaintiffs hospitalization at OSCEOLA REGIONAL MEDICAL
CENTER in 2012, OSCEOLA REGIONAL MEDICAL CENTER was owned, operated,
and managed by HCA.
16. The paragraphs below identify the various statements made by HCA on its websites and in
official records that HCA filed with state and federal agencies. Through the affidavit of
Jeff Boyce, who is an expert in information technology services, plaintiffs establish the
reliability of the source of the information contained on the websites cited below. (See
Exhibit “10”). Further, HCA’s corporate filings referenced below are, undoubtedly,
statements that fall within the exception to hearsay as an admission by a party. F.S. §
90.803(18).
17 In 2012, HCA held itself out as “one of the leading health care companies in the United
States,” responsible for “owning, operating, and managing 162 hospitals.” See HCA’s 2012
Annual Report to Shareholders at 2, 3, 4. See also HCA’s website “About Us” section,
https://hcahealthcare.com/about/.
18. In HCA’s 2012 Annual Report, HCA declares that “as of December 31, 2012. we owned
and operated 38 hospitals with 10,261 hospital beds and 32 surgery centers in the state of
Florida.” Jd. at 58, 72.
19 HCA boasts, “Our Florida facilities’ revenues totaled $7.336 billion for the year ended
December 31, 2012. Overall, revenues increased 11.2% to $33.013 billion for 2012 from
$29.682 billion for 2011.” HCA explains that “salaries and benefits to their employees, as
a percentage of revenues, were 45.7% in 2012. Supplies for facilities, as a percentage of
revenues, were 17.3% in 2012.” See HCA’s 2012 Annual Report at 72, 76-77.
20. OSCEOLA REGIONAL MEDICAL CENTER’s own website states clearly, “HCA
operates four hospitals in Central Florida: Central Florida Regional Hospital, Oviedo
Medical Center, Osceola Regional Medical Center and Poinciana Medical Center.” See
Osceola Regional Medical Center’s website, https://osccolaregional.com/about/index.dot.
21 HCA’s 2012 Annual Report to its shareholders also provides relevant information as to the
inner workings of HCA, including its operation and management of hospitals (including
Osceola Regional Medical Center), level of control over facilities, shared profits and losses,
as well as HCA’s contractual obligations to physicians working at their hospitals.
22. It is important to note that HCA also receives a portion of Osceola Regional Medical
Center’s profits. Financial statements included in HCA’s Annual Report for 2012 include
all of HCA’s subsidiaries and entities controlled by HCA. In fact, HCA states clearly, “The
consolidated financial statements include entities in which we absorb a majority of the
entity’s expected losses, receive a majority of the entity’s expected residual returns, or
both, as a result of ownership, contractual or other financial interests in the entity.” Jd. at
F-8.
23 The fact that HCA and Osceola Regional Medical Center share in profits and losses was
substantiated by the deposition testimony of Michael Bray, who is the Assistant Vice
President of Financial Reporting at HCA, as well as the Vice President of Osceola Regional
Medical Center, HCA Health Services of Florida, Inc. and Health Services Inc. See
Deposition of Michael Bray at 11:6-22.
24, HCA’s Annual Report for 2012 also sheds light on HCA’s contractual obligations to the
physicians working in its hospitals and for professional liability claims. With regard to
HCA’s physicians, HCA explains they compensate physicians to relocate to the
communities in which their hospitals are located and agreeing to engage in private practice
for the benefit of the respective communities. See HCA’s 2012 Annual Report at 85. With
respect to professional liability claims against HCA’s hospitals, HCA notes its “obligation
to pay net estimated professional liability claims was approximately $1.248 billion at
December 31, 2012, including net reserves of $352 million relating to the wholly-owned
insurance subsidiary.” Id. at 85.
25 With regard to revenues, HCA, Inc. proclaims in its 2012 Annual Report that it receives
“cash flow from operations,” which, in turn, HCA uses in part to meet liquidity needs of
the corporation. /d. at 84. HCA notes it is responsible for operating expenses of its facilities,
primarily comprised of contract services, professional fees, repairs and maintenance, rents
and leases, utilities, insurance (including professional liability insurance) and non-income
taxes. Id. at 77.
26. HCA’s 2012 Annual 10-K Report filed with the United State Securities and Exchange
Commission specifically lists Osceola Regional Hospital, Inc. d/b/a Osceola Regional
Medical Center as one of its facilities. See Exhibit 21 to HCA’s 10-K Form filed with the
United States SEC for 2012.
27. By Defendant’s own admission, HCA’s web page lists Osceola Regional Medical Center
as one of their HCA hospital locations. See https://hcahealthcare.com/locations/?state=FL,
filed under separate cover.
28, Osceola Regional Medical Center’s own webpage corroborates that HCA owns, operates,
and manages the hospital. For example, Osceola’s web page has a section of its website
dedicated to its medical professionals, which directs physicians to a link entitled “Become
an HCA Doctor.” The message provided to physicians is as follows: “At an HCA
Healthcare hospital or affiliated practice, you not only have access to one of the nation’s
largest data networks of medical insights, you are part of an integrated network of facilities
in your community. HCA Healthcare is the organization of choice for more than 270,000
colleagues, 94,000 nurses and 38,000 physicians. At HCA Healthcare, we believe in giving
physicians what they need to succeed. In addition to providing professional development
and leadership opportunities, we invest in physicians’ careers by giving them the right tools
to help grow their practice.” See https://osceolaregional.com/professionals/physicians/ and
https://hcahealthcare.com/physicians/physician-
careers.dot?utm_campaign=pwu_referral&utm_ source=pwu_website&utm_ medium=refe
rral4#pageNumber=1, filed under separate cover.
29. By HCA’s own admission, in 2012, “we had approximately 204,000 employees, including
approximately 51,000 part time employees.” See HCA’s 2012 Annual Report to
Shareholders at 35.
30. HCA Health Services of Florida, Inc. is listed on the Florida Department of State Division
of Corporations’ website as an active corporation. See FL Dept. of State Division of Corp.
Records for HCA Health Services of Florida, Inc. filed under separate cover. In 2012,
HCA Health Services of Florida, Inc. filed an annual report with the State of Florida on
behalf of the corporation. /d.
31 With respect to HCA HEALTH SERVICES OF FLORIDA, INC., they represent to the
public that “HCA Florida is one of the largest, private health systems in Florida, featuring
50 hospitals across the state and 31 surgery centers.” See https://flahospitals.com, filed
under separate cover.
32. What’s more, HCA Florida’s website also lists Osceola Regional Medical Center as one of
HCA Florida’s hospital locations. See https://flahospitals.conylocations/, filed under
separate cover.
33 HCA HEALTH SERVICES OF FLORIDA, INC.’s website details HCA Florida’s role in
providing medical services to the community. HCA Florida’s website states, “At HCA
Florida, our commitment to excellence is unwavering. We continually expand and
modernize our facilities to accommodate the latest technology and deliver the services that
meet the needs of a growing community. Our nurses and clinical staff are highly trained,
and physicians affiliated with our facilities represent all major medical and surgical
specialties.” It also states that, “Wherever you reside in Florida, one of our HCA Hospitals
are nearby to provide the care you need. Working together, they share best demonstrated
practices in quality and clinical operations and collaborate to create a full continuum of
care and specialty services for the communities we serve. By sharing their strengths and
knowledge and consolidating their business and financial function, they are free to focus
on what they do best: delivering quality healthcare.” See https://flahospitals.com/about/,
filed under separate cover.
34, In her affidavit, Plaintiff, Ashley Calzada, explains how she came to the decision to deliver
her son at Osceola Regional Medical Center. In December of 2011, Ms. Calzada and her
husband became pregnant with their first child, Jariel. They decided they wanted to have
their child delivered at an HCA Hospital, in part because of HCA Healthcare system’s
reputation and because HCA advertised as one of the nation’s leading providers of
healthcare services. Their advertising led the Calzada family to believe that they had
excellent delivery services and the best medical technology available to safely deliver their
baby. Based on representations by HCA, Ms. Calzada understood that the physicians,
nurses, and staff at Osceola Regional Medical Center were a part of the HCA Healthcare
System and her medical care was being provided by HCA. She relied on these
representations by HCA when she made the decision to deliver her baby at one of their
facilities. See Affidavit of Ashley Calzada, filed under separate cover.
10
LEGAL STANDARD
35. The standards governing a party's entitlement to summary judgment are well-established
under Florida law, and state, in pertinent part:
36. Rule 1.510. Summary Judgment
(c) Motion and Proceedings Thereon. The motion shall state with particularity the
grounds upon which it is based and the substantial matters of law to be argued and
shall be served at least 20 days before the time fixed for the hearing. . . . The
judgment sought shall be rendered forthwith if the pleadings, depositions, answers
to interrogatories, and admissions on file together with the affidavits, if any, show
that there is no genuine issue as to any material fact and that the moving party is
entitled to a judgment as a matter of law.
FLA. R. Civ. P. 1.510(c) (emphasis supplied); See also, Volusia Cnty v. Aberdeen at
Ormond Beach, L.P., 706 So.2d 126, 130 (Fla. 2000).
37 Summary judgment is appropriate where the facts of a case are so “crystallized” that all
that remains are questions of law for the trial court to determine. See Corp. v. City of
Orlando, Fla., 598 So. 2d 287, 288 (Fla. 5th DCA 1992). The case law indicates that
summary judgment is considered to be a drastic remedy, which courts should be cautious
in granting. Stephens v. Dichtenmueller, 216 So.2d 448 (Fla. 1968); Seven-Up Bottling Co.
of Miami v. George Constr. Corp., 166 So.2d 155 (Fla. 3d DCA 1964).
38. The principles which govern the use of summary judgment are well settled. See Albelo v.
Southern Bell, 682 So.2d 1126, 1129 (Fla. 4"™DCA 1996); See also Romero vy. All Claims
Ins. Repairs, Inc., 698 So.2d 605 (Fla. 3d DCA 1997). First, summary judgment cannot be
granted unless the pleadings, depositions, answers to interrogatories, and admissions on
file together with affidavits, if any, conclusively show that there is no genuine issue as to
any material fact and that the moving party is entitled to a judgment as a matter of law. Fla.
R. Civ. P. 1.510(c). Second, the burden is upon the party moving for summary judgment
to show conclusively the complete absence of any genuine issue of material fact. Third, the
11
trial court must draw every possible inference in favor of the party against whom summary
judgment is sought. Moore v. Morris, 475 So.2d 666 (Fla.1985). Fourth, if the evidence
raises any issues of material fact, or if it is conflicting, or if it will permit different
reasonable inferences, or if it tends to prove the issues, summary judgment cannot be
granted. McDonald y. Florida Dept. of Transp., 655 So.2d 1164 (Fla. 4th DCA 1995).
Finally, where discovery has yet to conclude, a motion for summary judgment should not
be granted. See, e.g., Payne v. Cudjoe Gardens Property Owners Ass’n, Inc., 837 So.2d
458 (Fla. 3d DCA 2002) (where discovery is not complete, the facts are not sufficiently
developed to enable the trial court to determine whether genuine issues of material facts
exist); Singer v. Star, 510 So.2d 637, 639 (Fla. 4th DCA 1987) (where discovery is still
pending, the entry of summary judgment is premature); Collazo v. Hupert, 693 So. 2d 631,
631 (Fla. 3d DCA 1997) (a trial court should not entertain a motion for summary judgment
while discovery is still pending).
39, The burden of proving the absence of a genuine issue of material fact is upon the moving
party, and until it is determined that the movant has successfully met this burden, the
opposing party is under no obligation to show that issues do remain to be tried. Holl v.
Talcott, 191 So.2d 41, 43 (Fla. 1966)(The burden to prove the non-existence of genuine
triable issues is on the moving party, and the burden of proving the existence of such issues
is not shifted to the opposing party until the movant has successfully met his burden).
40. In ruling on a motion for summary judgment, the trial court “must view the evidence and
draw all inferences in favor of the opposing party.” Falco v. Copeland, 919 So.2d 650 (Fla.
1st DCA 2006); see also Sierra v. Shevin, 767 So.2d 524 (Fla. 3d DCA 2000)(“The
standard of review of a summary judgment order is de novo and requires viewing the
evidence in the light most favorable to the non-moving party.”).
12
41. “[Plaintiff's papers should] be liberally read and construed, as opposed to a strict reading
of the movant’s papers. -” Holl, 191 So.2d 41 at 46. “This is particularly true in
malpractice suits where. . . the attending facts are peculiarly within the knowledge of the
movants and the showing of negligence is generally dependent upon expert testimony as
to the standard of care required and observed.” Jd. Summary judgment in favor for a
Defendant is only proper when the issues show no clear issue of material fact; the proof of
non-negligence is so obvious; or the causes of injury is clearly shown to not be the fault of
the Defendant. /d. Absent these circumstances, summary judgement is improper and trial
is required. Id.
42 A host of cases have recognized that even the mere possibility or slightest doubt that an
issue might exist is sufficient to defeat summary judgment. Berman’s Florida Civil
Procedure, 2005 Edition §510.5[6]d, pg. 639. Albelo, 682 So.2d at 1126 (Summary
judgment unavailable if record raises “even the slightest doubt” of existence of fact issue,
because doubt must be resolved against movant, citing Tretten v. Irrgang, 654 So.2d 1297
(Fla. 4th DCA 1995)); See also Christian v. Overstreet Paving Co., 679 So.2d 839, 840
(Fla. 2d DCA 1996)(Summary judgment is improper if there is any issue, the possibility of
an issue or the slightest doubt that an issue might exist.); Besco USA Int’l Corp v. Home
Sav. Of Am. FSB, 675 So.2d 687, 688 (Fla. Sth DCA 1996)(If slightest doubt exists,
summary judgment must be denied.); Pinchot v. First Fla. Banks, Inc., 666 So.2d 201, 202
(Fla. 2d DCA 1995 )(The “possibility” of a fact issue or “slightest doubt” that a fact issue
“might exist” precludes summary judgment); Levine v. Constitution Bank, 640 So.2d 1202
(Fla. 2d DCA 1994)(Summary judgment must be denied if the “possibility of any issue”
reflected by the record, or the record raises “the slightest doubt that an issue might exist”);
Spolski Gen. Contractor, Inc. v. Jett-Aire Corp. Av. Mgmt., 637 So.2d 968, 969-70 (Fla.
13
5th DCA 1994)(Summary judgment improper if the “slightest doubt remains”); Cocoa
Props, Inc. v. Commonwealth Land Title, Inc. Co., 590 So.2d 989, 990 (Fla. 2d DCA 1991)
(“If the record reflects the existence of any genuine issue of material fact or the possibility
of any issue, or if the record raises even the slightest doubt that an issue might exist,
summary judgment is improper.”); See also Star Lakes Estates Ass’n, Inc. v. Auerbach,
656 So.2d 271, 274 (Fla. 3d DCA 1995).
43 Indeed, summary judgment is almost always inappropriate in a medical malpractice action.
See Davis v. Green, 625 So. 2d 130, 131 (Fla. 4th DCA 1993) ("Summary judgments
should be cautiously granted in negligence and malpractice suits."); see also Moore v.
Morris, 475 So. 2d 666, 668 (Fla. 1985) ("A summary judgment should not be granted
unless the facts are so crystallized that nothing remains but questions of law.").
44 In ruling on a motion for summary judgment, the trial court “must view the evidence and
draw all inferences in favor of the opposing party.” Falco v. Copeland, 919 So.2d 650 (Fla.
1st DCA 2006); see also Sierra v. Shevin, 767 So.2d 524 (Fla. 3d DCA 2000)(“The
standard of review of a summary judgment order is de novo and requires viewing the
evidence in the light most favorable to the non-moving party.”).
45 Florida does not follow the federal summary judgment standard, where the plaintiff must
first show that she can prevail; rather, “Florida places a higher burden on a party moving
for summary judgment in state court.” Goheagan v. Am. Vehicle Ins. Co., 107 So.3d 433,
439 (Fla. 4d DCA 2013). In State court the movant is required to show conclusively that
no material issues remain for trial.” Jd. The Federal Summary Judgment Standard was
rejected in Competelli v. City of Belleair Bluffs, 113 So.3d 92, 93 (Fla. 2d DCA 2013). The
court was urged to adopt the federal burden-shifting approach typically applied in
14
employment discrimination cases but rejected the federal approach for the “well
entrenched” Florida Standard. /d.
46. Recently, the Federal Summary Judgment Standard was rejected in Competelli v. City of
Belleair Bluffs, 113 So.3d 92, 93 (Fla. 2d DCA2013). In Competelli, the Court found:
The City urges us to adopt the burden-shifting analysis employed by federal
courts typically in employment discrimination cases. See generally
Mcdonnell Douglas Corp. V. Green, 411 U.S. 792, 802, 93 S. Ct. 1817, 36
L.Ed2d 668 (1973 (applying burden-shifting analysis in employment
discrimination case involving disparate treatment). We decline the invitation.
The Florida standard for summary judgment is well entrenched:
The law is well settled in Florida that a party moving summary judgment must
show conclusively the absence of any genuine issue of material fact that the
court must draw every possible inference in favor of the party against whom
a summary judgment is sought. A summary judgment should not be granted
unless the facts are so crystallized that nothing remains but a question of law.
If the evidence raises any issue of material fact, if it conflicting, if it will
permit different reasonable inferences, or if it tends to prove the issues, it
should be submitted to the jury as a question of fact to be determined by it.
Moore v Morris, 475 So.2d 666,668 (Fla. 1985) (internal citations omitted);
see also Bruno v Destiny Transp., Inc., 921 So.2d. 836, 839-40 (Fla. 2d DCA
2006)(citing Moore).
Id.
47. In South Florida Coastal Electric, Inc. V. Treasures on the Bar IT Condo Ass’n, INC., 89
So.3d 264 (Fla. 3d DCA 2012), the court ruled that an agency relationship is generally a
question of fact and facts supporting agency will prevent summary judgment.
48. In Valenzuela v. Globe GroundN. Am., LLC, 18 So. 3d 17, 25 (Fla. DCA 2009), the Court
held that the employee’s conclusory allegations were insufficient to create a triable issue
as to whether the company’s proffered explanation was a pretext for gender discrimination.
Here, as in Valenzuela, the Defendant’s so-called undisputed facts are legally conclusory
and is not sufficient to demonstrate an absence of disputed material fact, simply becaus:
the Defendant states so. /d. In fact, it is well-settled that such conclusory general assertions
do not create factual issues necessary to avoid summary judgment. Bahadue v. Sanaullah,
15
946 So. 2d 1247 (Fla. 1st DCA 2007) (conclusory statements alone are insufficient to
support the grant of a motion for summary judgment); see also Schurer v. Koch, 741 So.
2d 618 (Fla. 2d DCA 1999) ([s]elf-serving statements are not sufficient to establish an issue
as a matter of law on a motion for summary judgment.) see, e.g., Adam Smith Enters., Inc.
v. Barnes, 539 So. 2d 549 (Fla 2d DCA 1989) (holding that the conclusory affidavits
submitted were insufficient support for the summary judgment proceedings).
LEGAL ARGUMENT
1 The Court Should Strike Defendants’ Legally Insufficient
Evidence Used In Support Of Their Motion for Summary Judgment
49 In support of HCA’s Motions for Summary Judgment, Defendants have attempted to attach
and designate the affidavit of HCA’s Assistant Cice president of Financial Reporting, as
well as the Vice President of Osceola Regional Medical Center, HCA Health Services of
Florida, Inc. and Health Services Inc., Michael Bray, as summary judgment evidence.
50. Plaintiff respectfully moves to strike Defendant’s purported summary judgment
“evidence” as the affidavit of Michael Bray fails to meet the basic requirements set forth
by Rule 1.510, Fla. R. Civ. P. for summary judgment evidence, as it is self-serving,
conclusory, based solely upon factual and legal conclusions, and/or directly
contradictory to HCA’s own admissions and other evidence in this case. In that regard,
Plaintiff respectfully moves this Court to strike the legally insufficient affidavit of Michael
Bray as summary judgment evidence.
51. Rule 1.510, Fla. R. Civ. P., provides in part as follows:
(c) Motion and Proceedings Thereon. The motion shall state with
particularity the grounds upon which it is based and the substantial matters
of law to be argued and shall specifically identify any affidavits, answers to
16
interrogatories, admissions, depositions, and other materials as would be
admissible in evidence (“summary judgment evidence”) on which the
movant relies.
(e) Form of Affidavits; Further Testimony. Supporting and opposing
affidavits shall be made on personal knowledge, shall set forth such facts as
would be admissible in evidence, and shall show affirmatively that the
affiant is competent to testify to the matters stated therein. Sworn or
certified copies of all papers or parts thereof referred to in an affidavit shall
be attached thereto or served therewith. The court may permit affidavits to
be supplemented or opposed by depositions, answers to interrogatories, or
by further affidavits.
52. Although sworn affidavits may be used in support of a motion for summary judgment,
pursuant to Rule 1.510(e), Fla. R. Civ. P., a corollary of that rule is that “[a]n affidavit in
support of summary judgment may not be based upon factual conclusions or conclusions
of law.” Buzzi v. Quality Service Station, Inc., 921 So. 2d 14, 15 (Fla. 3d DCA 2006) citing
Florida Dept. of Fin. Servs. v. Associated Indus. Ins. Co., 868 So. 2d 600, 602 (Fla. 1%
DCA
53 The affidavits of Michael Bray are improper as summary judgment evidence as they are
based on factual conclusions and fail to attach documents relied upon in preparing the
affidavits. “Although sworn affidavits may be used in support of a motion for summary
judgment, pursuant to Rule 1.510(e), Fla. R. Civ. P., a corollary of that rule is that ‘[aJn
affidavit in support of summary judgment may not be based upon factual conclusions or
conclusions of law.”” Buzzi v. Quality Service Station, Inc., 921 So. 2d 14, 15 (Fla. 3d
DCA 2006) citing Florida Dept. of Fin. Servs. v. Associated Indus. Ins. Co., 868 So.2d
600, 602 (Fla. 1st DCA 2004). Furthermore, all documents referenced in the affidavit must
be sworn or certified and attached to the affidavit. Fla. R. Civ. P. 1.510(e). In direct
noncompliance with this rule, the affidavits of Michael Bray make blanket statements about
17
the relationship between HCA, HCA Health Services of Florida, Inc., and Osceola
Regional Medical Center without attaching supporting documents.
54, “{G]eneral statements in an affidavit which are framed in terms only of conclusions of law
do not satisfy a movant's burden of proving the nonexistence of a genuine material fact
issue.” Heitmeyer v. Sasser, 664 So. 2d 358, 360 (Fla. 4th DCA 1995) [21 Fla. L. Weekly
D39a] (citing Seinfeld v. Commercial Bank & Trust Co., 405 So. 2d 1039 (Fla. 3d DCA
1981)).
55 Florida courts have consistently held that a litigant's self-serving statements can neither
justify, nor overcome summary judgment—regardless of whether those statements appear
in affidavits or other summary judgment evidence. See Peoples Gas System, Inc. v. Acme
Gas Corp., 689 So. 2d 292, 299 (Fla. 3d DCA 1997) (declining to find “self-serving
assertions” dispositive on summary judgment, when the party making the assertions
submitted no other evidence in support of them); see also Schurer v. Koch, 741 So. 2d 618,
619 (Fla. 2d DCA 1999) (noting that the defendant's “self-serving statements in his answers
to interrogatories... were not sufficient to establish the absence of a genuine issue of
material fact and the entry of summary judgment in his favor”); see also Craven v. TRG-
Boynton Beach, Ltd., 925 So, 2d 476, 480-81 (Fla. 4th DCA 2006) (reversing a grant of
summary judgment in a party's favor because its “[c]Jonclusory, self-serving testimony
[was] not sufficient to shift the burden of proof’. This principal applies with particular
force when those self-serving statements take place after the fact and in contradiction to
prior deposition testimony. See Baker v. Airguide Mfg., LLC, 151 So, 3d 38, 40 (Fla. 3d
18
DCA 2014) (declining to consider an affidavit submitted in opposition to summary
judgment when it contradicted prior deposition testimony).
56. Here, HCA relies solely on the self-serving affidavits from Michael Bray to establish its
contention that HCA is a “holding company” that does not “own and operate” Osceola
Regional Medical Center, and therefore is not vicariously liable for the hospital’s
negligence. HCA offers no other evidence to substantiate the fact that the HCA is a “non-
operating holding company”, and no evidence whatsoever to establish its assertion that
“HCA Inc. did not own, operate and/or maintain the Hospital at any time.” By contrast,
HCA’s own SEC filings, annual shareholder reports, and admissions via their website, all
contradict these self-serving statements regarding the nature of the relationship between
HCA and Osceola Regional Medical Center. In HCA’s 2012 Annual Report, HCA states,
“as of December 31, 2012, we owned and operated 38 hospitals with 10,261 hospital beds
and_32 surgery centers in the state of Florida.” See HCA’s 2012 Annual Report to
Shareholders at 58, 72. OSCEOLA REGIONAL MEDICAL CENTER’s own website
states clearly, “HCA operates four hospitals in Central Florida: Central Florida Regional
Hospital, Oviedo Medical Center, Osceola Regional Medical Center and Poinciana
Medical Center.” See Osceola Regional Medical Center’s website,
https://osceolaregional.com/about/index.dot.
57 HCA’s contention that no sufficient relationship exists between these entities is further
contradicted by the fact that Mr. Bray holds positions in all four (4) of these companies.
By his own admission, Mr. Bray clearly states he is: (1) Vice President of Osceola Regional
Hospital, Inc. d/b/a Osceola Regional Medical Center, (2) Vice President of HCA Health
19
Services of Florida, Inc., (3) Vice President of Health Services, Inc., AND (4) Assistant
Vice President of Financial Reporting at HCA, Inc. See Affidavits of Michael Bray at {| 2.
58. The importance of the clear contradictions between Mr. Bray’s sworn statements and the
statements by HCA in the filings annexed hereto cannot be understated. Not only is HCA’s
duty of candor to the Court called into question, but so is its duty to shareholders under
laws governing publicly traded companies.
59, Specifically, with respect to securities registered on a national securities exchange, it is
unlawful for “any person, directly or indirectly, by the use of any means or instrumentality
of interstate commerce”, to “make any untrue statement ofa material fact or to omit to state
a material fact necessary in order to make the statement made ... not misleading”, or to
“engage in any act, practice, or course of business which operates or would operate as a
fraud or deceit upon any person.” (17 C.F.R. § 10b-5; see also 17 C.F.R. § 240.10b-1).
60. Thus, either Mr. Bray’s statements in his affidavit are false, or the publicly available
statements made by HCA and its agents to the SEC and on its own websites are false.
When evaluating the credibility of Mr. Bray’s statements, plaintiffs ask the Court to
consider that HCA, in this action, is alleged to be liable for negligent treatment that resulted
in catastrophic neurologic injuries to the infant-plaintiff — not to mention a court decision
that will serve as the underpinning for its vicarious liability in other cases venued in this
State.
61 Given these blatant contradictions and the lack of other evidence, no summary judgment
is justified.
62. However, even if the improper summary judgment evidence were considered by this Court,
Plaintiffs contend that Defendants’ Motion for Summary Judgment should be still denied,
20
as the submitted evidence fails to establish the complete absence of a genuine issue of
material fact with regards to (1) whether the HCA owned, operated, and managed Osceola
Regional Medical Center in 2012 when Plaintiffs presented to Osceola Regional Medical
Center; and (2) whether the Plaintiffs’ healthcare providers were acting as employees or
agents of the HCA at the time they provided care and treatment to Plaintiffs.
ll. HCA, INC. is Vicariously Liability for the Negligence of its Employees, Agents,
and/or Apparent Agents
A. Employment:
63 HCA, INC., as owner and operator of OSCEOLA REGIONAL MEDICAL CENTER is
vicariously liable for the negligent conduct of their employees, agents, apparent agents,
physicians, nurses, ARNP’s residents, and technicians, but not limited to, ERIC
FREDNAK, CRNA, MICHAEL R. DENARDIS, D.O., RODNEY DE VALLE, M.D.,
EZER A OJEDA, M.D., & BHUPENDRAKUMAR M. PATEL, M.D., JOSE I.
GIERBOLINI, M.D., JUAN LONGHI, M.D., Lisa Denarski, RN., Marissa Lee, RN., and
Jaymee Stahl, RN.
64. Defendant HCA, INC. moves for summary judgment on the issue of employment premised
upon the argument that Defendant HCA denies ERIC FREDNAK, CRNA, MICHAEL R.
DENARDIS, D.O., RODNEY DE VALLE, M.D., EZER A OJEDA, MD. &
BHUPENDRAKUMAR M. PATEL, M.D., JOSE I. GIERBOLINI, M.D., JUAN
LONGHI, M.D., Lisa Denarski, RN., Marissa Lee, RN., and Jaymee Stahl, RN being
employed by HCA, INC. The Defendant’s argument impermissibly shifts the Defendant’s
burden at summary judgment to Plaintiffs, and therefore is improper. Notwithstanding the
21
fact that the Defendant has improperly shifted its burden, the premise that Plaintiffs must
produce a document to establish employment runs contrary to well established case law.
65 By Defendant, HCA, INC.’s own admission, as of December 31, 2012, they “had
approximately 204,000 employees, including approximately 51,000 part time employees.”
See HCA’s 2012 Annual Report to Shareholders at 35.
66. In defining “employee,” the Florida Supreme Court stated that generally, an “employee is
one who for consideration agrees to work subject to the orders and directions of another,
usually for regular wages but not necessarily so, and, further, agrees to subject himself at
all times during the period of service to the lawful orders and directions of the other in
respect to the work to be done.” City of Boca Raton v. Mattef, 91 So.2d 644 (Fla.1956).
Nowhere in this definition is the requirement of a document or contract to reflect the
master/servant relationship. The Defendant’s second argument is equally unavailing as the
subjective, self-serving statements of the Defendant are not dispositive when a fact-specific
inquiry into the acts and/or omissions giving rise to Plaintiff's claims is conducted in this
matter. Generally, the question of whether or not someone is an employee is normally a
question of fact, and therefore, not a proper subject for summary judgment unless the
uncontradicted facts support but one conclusion, which is not the case here.
67. Florida Standard Civil Jury Instruction 402.9(a) is instructive on the issue of vicarious
liability premised on employment relationships. It provides:
whether (name) was an employee of (defendant) and was acting within the scope
of [his] [her] employment at the time and place of the incident in this case. An
employee is a person who is hired by (defendant) to act on behalf of
(defendant), and whose actions are controlled by (defendant) or are subject to
(defendant’s) right of control. An employer is responsible for the negligence of
an employee if the negligence occurs while the employee is performing services
which [he] [she] was employed to perform or while the employee is acting at least
in part because ofa desire to serve [his] [her] employer and is doing something that
is reasonably incidental to [his] [her] employment or something the doing of which
22
was reasonably foreseeable and reasonably to be expected of persons similarly
employed.
See Florida Standard Jury Instruction 402.9.
68. Employment is a question of fact to be determined by the trier of fact. Saudi Arabian
Airlines Corp. v. Dunn, 438 So, 2d 116, 119 (Fla. Ist DCA 1983); Pate v. Gilmore, 647
So. 2d 235, 236 (Fla. Ist DCA 1994) (reversing the trial court's grant of summary judgment
on employment and stating: “[g]enerally speaking, questions of negligence are answerable
by a jury...and therefore, a summary judgment should be granted “cautiously” in a
negligence case...In the same vein, it is well-established that the question of an
employer/employee relationship is generally a question of fact, and therefore a question
for the trier of fact”); Sagarino v. Marriott Corp., 644 So. 2d 162, 164 (Fla. 4th DCA 1994)
(reversing the trial court's grant of summary judgment on employment and stating: “(t]he
question of whether there exists an employer/employee relationship is normally reserved
for the jury to determine. ..This is especially true where there exist disputed issues of fact”);
DeBolt v. Dep't of Health & Rehabilitative Services, 427 So. 2d 221, 226 (Fla. Ist DCA
1983) (reversing the trial court's grant of summary judgment and stating: “[i]f there is no
question as to the existence or non-existence of a master/servant or employer/employee
relationship, the issue is one then for the court to determine. If, however, the issue is
unclear, it becomes a question of fact for the trier of fact to decide based on the evidence
presented”); Gardner v.
Preview
Filing # 110039285 E-Filed 07/09/2020 09:22:38 PM IN THE CIRCUIT COURT OF THE NINTH JUDICIAL CIRCUIT IN AND FOR OSCEOLA COUNTY, FLORIDA TODD COPELAND, Esquire as Guardian CASE NO.: 2017-CA-000174 MP Ad Litem for JARIEL CALZADA, a minor, ASHLEY CALZADA and JUAN L. CALZADA, individually and on behalf of JARIEL CALZADA, a minor, Plaintiffs, Vv. OSCEOLA REGIONAL HOSPITAL d/b/a/ OSCEOLA REGIONAL MEDICAL CENTER, ERIK FRENDAK, CRNA., OSCEOLA OB/GYN, MICHAEL R. DENARDIS, D.O., OB HOSPITALIST GROUP, LLC., EZER A. OJEDA, M.D., OSCEOLA ANESTHESIA ASSOCIATES, PL., RODNEY DEL VALLE, M.D., PEDIATRIX MEDICAL GROUP, INC., PEDIATRIX MEDICAL GROUP OF FLORIDA, INC., MEDNAX, INC., JOSE I. GIERBOLINI, M.D., JOHN LONGHI, M.D., HCA, INC., HCA HEALTH SERVICES OF FLORIDA, INC., AND HCA HEALTHCARE SERVICES-FLORIDA, INC., Defendants. / PLAINTIFFS’ RESPONSE IN OPPOSITION TO DEFENDANTS, HCA INC., HCA HEALTH SERVICES OF FLORIDA INC. AND HEALTH SERVICES INC.’S MOTIONS FOR SUMMARY JUDGMENT AND INCORPORATED MOTION TO STRIKE DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT EVIDENCE COME NOW Plaintiffs, TODD COPELAND, Esquire as Guardian Ad Litem for JARIEL CALZADA, a minor, ASHLEY CALZADA and JUAN L. CALZADA, individually and on behalf of JARIEL CALZADA, a minor, by and through undersigned counsel, to hereby file Plaintiffs’ Response in Opposition to Defendant HCA, INC.’s (hereinafter “HCA”), HCA HEALTH SERVICES OF FLORIDA, INC. and HEALTH SERVICES, INC.’s Motions for Summary Judgment and Incorporated Motion to Strike Defendants; Motion for Summary Judgment Evidence, and in support thereof, state as follows: 1 The above captioned matter is a medical malpractice action wherein Plaintiffs allege that the above-named Defendants were negligent when rendering care and treatment to ASHLEY CALZADA and JARIEL CALZADA, a minor, resulting in JARIEL CALZADA sustaining a permanent and irreversible hypoxic brain injury. This memorandum is submitted in opposition to HCA’s motion for summary judgment, dated June 5, 2020. HCA contends that summary judgment as to Count VIII of Plaintiffs’ Complaint is warranted because it is not vicariously liable for any of the negligent treatment that is the subject of this medical malpractice action. Parenthetically, it should be noted at the outset that HCA offers no proof to refute the allegations of negligence in this case. As set forth more fully below, HCA’s motion should be denied. First, HCA failed to supply the Court with evidentiary proof to establish its entitlement to summary judgment as the moving party. Although HCA offers an affidavit from one of its officers (Michael Bray, HCA’s Asst. VP of Financial Reporting and VP of Osceola Regional Medical Center), the conclusory statements contained therein have no evidentiary value. Indeed, Mr. Bray cites to no documents, agreements, contracts, or records of any kind to provide factual support for his self-serving description of a distant relationship between HCA and defendant OSCEOLA REGIONAL HOSPITAL d/b/a/ OSCEOLA REGIONAL MEDICAL CENTER (hereinafter “Osceola Regional Medical Center”). The burden of proving the absence of a genuine issue of material fact is upon the moving party and, until it is determined that the movant has successfully met this burden, the opposing party is under no obligation to show that issues do remain to be tried. Holl v. Talcott, 191 So.2d 41, 43 (Fla. 1966). In ruling on a motion for summary judgment, the trial court “must view the evidence and draw all inferences in favor of the opposing party.” Falco v. Copeland, 919 So.2d 650 (Fla. 1st DCA 2006). Assuming, arguendo, that the Court does find that Mr. Bray’s affidavit is sufficient to establish HCA’s entitlement to summary judgment, plaintiff has come forward with evidentiary proof to raise triable issues of fact. The deposition testimony of Mr. Bray, public documents filed by HCA with the United States Securities and Exchange Commission, annual reports filed by HCA with Florida’s Department of State (Division of Corporations), and the statements by HCA that are contained on their own websites (the reliability of these websites are established by an , affidavit from an expert in information technology services, See Exhibit 10 of Plaintiffs Notice of Filing), reveal that HCA owns, operates and controls the Hospital where the negligent treatment occurred in this case. As will be seen, this evidence squarely contradicts Mr. Bray conclusory statements. In summary, the facts contained in plaintiffs’ opposition to defendant’s motion include the following: e In 2012, HCA held itself out as “one of the leading health care companies in the United States,” responsible for “owning, operating, and managing 162 hospitals.” See HCA’s 2012 Annual Report to Shareholders at 2, 3, 4. See also HCA’s website “About Us” section, https://hcahealthcare.com/about/. As of December 31, 2012, HCA owned and operated 38 hospitals with 10,261 hospital beds and 32 surgery centers in the state of Florida.” See HCA’s 2012 Annual Report to Shareholders at 58, 72. HCA operates four hospitals in Central Florida: Central Florida Regional Hospital, Oviedo Medical Center, Osceola Regional Medical Center and Poinciana Medical Center.” See Osceola Regional Medical Center’s website, https://osceolaregional.com/about/index.dot. e In 2012, HCA had approximately 204,000 employees, including approximately 51,000 part-time employees. See HCA’s 2012 Annual Report to Shareholders at 35. HCA is responsible payment of employees’ salaries and benefits, professional liability insurance, professional fees, operating expenses, insurance, leases and supplies for facilities. See HCA’s 2012 Annual Report at 72, 76-77. In 2012, HCA filed one financial statement with the SEC for all entities (including Osceola Regional Medical Center) for which they absorb a majority of the entity’s expected losses, receive a majority of the entity’s expected residual returns, or both, as a result of ownership, contractual or other financial interests in the entity. /d. at F-8. 8 This evidence provides the necessary link between HCA and the Hospital to establish that it is vicariously liable for the treatment rendered to plaintiffs. See Payas v. Adventist Health System/Sunbelt, Inc., Case No. 2D16-3615 (Fla. 2d DCA 2018). It also debunks the conclusory assertions made by Mr. Bray in his affidavit, which are only now being made in an attempt to avoid liability for HCA. His affidavit, in short, should be disregarded in its entirety. Mr. Bray’s contention that “HCA Ine. did not own, operate and/or maintain the Hospital” (Def. Exh. “C” at § 5), is nothing more than a self-serving and conclusory statement that is debunked by the deposition testimony, SEC filings, HCA’s 2012 Annual Report to Shareholders, and other evidentiary proof cited below. “Conclusory, self-serving testimony is not sufficient” to prevail in a motion for summary judgment. Craven v. TRG-Boynton Beach, Ltd., 925 So. 2d 476, 480 (Fla. 4th DCA 2006); Villazon v. Prudential Health Care Plan, 843 So. 2d 842, 853 (Fla. 2003). 10. The importance of the clear contradictions between Mr. Bray’s sworn statements and the statements by HCA in the filings annexed hereto cannot be understated. Not only is HCA’s duty of candor to the Court called into question, but so is its duty to shareholders under laws governing publicly traded companies. 4 11. Specifically, with respect to securities registered on a national securities exchange, it is unlawful for “any person, directly or indirectly, by the use of any means or instrumentality of interstate commerce”, to “make any untrue statement of'a material fact or to omit to state a material fact necessary in order to make the statement made ... not misleading”, or to “engage in any act, practice, or course of business which operates or would operate as a fraud or deceit upon any person.” (17 C.F.R. § 10b-5; see also 17 C.F.R. § 240.10b-1). 12. Thus, either Mr. Bray’s statements in his affidavit are false, or the publicly available statements made by HCA and its agents to the SEC and on its own websites are false. When evaluating the credibility of Mr. Bray’s statements, plaintiffs ask the Court to consider that HCA, in this action, is alleged to be liable for negligent treatment that resulted in catastrophic neurologic injuries to the infant-plaintiff — not to mention a court decision that will serve as the underpinning for its vicarious liability in other cases venued in this State. 13 Regardless of the consequences, when a conclusion is belied by the facts, the facts must prevail. Such are the circumstances with respect to Mr. Bray’s affidavit, which is the cornerstone of HCA’s motion. The facts, and the well-settled legal doctrine of respondeat superior, in particular as this doctrine applies to hospitals in this State, require but one conclusion: HCA’s motion must be denied. FACTS 14 The above styled cause of action is a medical malpractice case wherein Plaintiffs allege that the physicians, nurses, and staff at OSCEOLA REGIONAL MEDICAL CENTER were negligent when rendering care and treatment to ASHLEY CALZADA and JARIEL CALZADA, a minor, resulting in JARIEL CALZADA suffering severe and permanent injuries, including brain damage, global developmental delay, and cerebral palsy. 15. At all times material to Plaintiffs hospitalization at OSCEOLA REGIONAL MEDICAL CENTER in 2012, OSCEOLA REGIONAL MEDICAL CENTER was owned, operated, and managed by HCA. 16. The paragraphs below identify the various statements made by HCA on its websites and in official records that HCA filed with state and federal agencies. Through the affidavit of Jeff Boyce, who is an expert in information technology services, plaintiffs establish the reliability of the source of the information contained on the websites cited below. (See Exhibit “10”). Further, HCA’s corporate filings referenced below are, undoubtedly, statements that fall within the exception to hearsay as an admission by a party. F.S. § 90.803(18). 17 In 2012, HCA held itself out as “one of the leading health care companies in the United States,” responsible for “owning, operating, and managing 162 hospitals.” See HCA’s 2012 Annual Report to Shareholders at 2, 3, 4. See also HCA’s website “About Us” section, https://hcahealthcare.com/about/. 18. In HCA’s 2012 Annual Report, HCA declares that “as of December 31, 2012. we owned and operated 38 hospitals with 10,261 hospital beds and 32 surgery centers in the state of Florida.” Jd. at 58, 72. 19 HCA boasts, “Our Florida facilities’ revenues totaled $7.336 billion for the year ended December 31, 2012. Overall, revenues increased 11.2% to $33.013 billion for 2012 from $29.682 billion for 2011.” HCA explains that “salaries and benefits to their employees, as a percentage of revenues, were 45.7% in 2012. Supplies for facilities, as a percentage of revenues, were 17.3% in 2012.” See HCA’s 2012 Annual Report at 72, 76-77. 20. OSCEOLA REGIONAL MEDICAL CENTER’s own website states clearly, “HCA operates four hospitals in Central Florida: Central Florida Regional Hospital, Oviedo Medical Center, Osceola Regional Medical Center and Poinciana Medical Center.” See Osceola Regional Medical Center’s website, https://osccolaregional.com/about/index.dot. 21 HCA’s 2012 Annual Report to its shareholders also provides relevant information as to the inner workings of HCA, including its operation and management of hospitals (including Osceola Regional Medical Center), level of control over facilities, shared profits and losses, as well as HCA’s contractual obligations to physicians working at their hospitals. 22. It is important to note that HCA also receives a portion of Osceola Regional Medical Center’s profits. Financial statements included in HCA’s Annual Report for 2012 include all of HCA’s subsidiaries and entities controlled by HCA. In fact, HCA states clearly, “The consolidated financial statements include entities in which we absorb a majority of the entity’s expected losses, receive a majority of the entity’s expected residual returns, or both, as a result of ownership, contractual or other financial interests in the entity.” Jd. at F-8. 23 The fact that HCA and Osceola Regional Medical Center share in profits and losses was substantiated by the deposition testimony of Michael Bray, who is the Assistant Vice President of Financial Reporting at HCA, as well as the Vice President of Osceola Regional Medical Center, HCA Health Services of Florida, Inc. and Health Services Inc. See Deposition of Michael Bray at 11:6-22. 24, HCA’s Annual Report for 2012 also sheds light on HCA’s contractual obligations to the physicians working in its hospitals and for professional liability claims. With regard to HCA’s physicians, HCA explains they compensate physicians to relocate to the communities in which their hospitals are located and agreeing to engage in private practice for the benefit of the respective communities. See HCA’s 2012 Annual Report at 85. With respect to professional liability claims against HCA’s hospitals, HCA notes its “obligation to pay net estimated professional liability claims was approximately $1.248 billion at December 31, 2012, including net reserves of $352 million relating to the wholly-owned insurance subsidiary.” Id. at 85. 25 With regard to revenues, HCA, Inc. proclaims in its 2012 Annual Report that it receives “cash flow from operations,” which, in turn, HCA uses in part to meet liquidity needs of the corporation. /d. at 84. HCA notes it is responsible for operating expenses of its facilities, primarily comprised of contract services, professional fees, repairs and maintenance, rents and leases, utilities, insurance (including professional liability insurance) and non-income taxes. Id. at 77. 26. HCA’s 2012 Annual 10-K Report filed with the United State Securities and Exchange Commission specifically lists Osceola Regional Hospital, Inc. d/b/a Osceola Regional Medical Center as one of its facilities. See Exhibit 21 to HCA’s 10-K Form filed with the United States SEC for 2012. 27. By Defendant’s own admission, HCA’s web page lists Osceola Regional Medical Center as one of their HCA hospital locations. See https://hcahealthcare.com/locations/?state=FL, filed under separate cover. 28, Osceola Regional Medical Center’s own webpage corroborates that HCA owns, operates, and manages the hospital. For example, Osceola’s web page has a section of its website dedicated to its medical professionals, which directs physicians to a link entitled “Become an HCA Doctor.” The message provided to physicians is as follows: “At an HCA Healthcare hospital or affiliated practice, you not only have access to one of the nation’s largest data networks of medical insights, you are part of an integrated network of facilities in your community. HCA Healthcare is the organization of choice for more than 270,000 colleagues, 94,000 nurses and 38,000 physicians. At HCA Healthcare, we believe in giving physicians what they need to succeed. In addition to providing professional development and leadership opportunities, we invest in physicians’ careers by giving them the right tools to help grow their practice.” See https://osceolaregional.com/professionals/physicians/ and https://hcahealthcare.com/physicians/physician- careers.dot?utm_campaign=pwu_referral&utm_ source=pwu_website&utm_ medium=refe rral4#pageNumber=1, filed under separate cover. 29. By HCA’s own admission, in 2012, “we had approximately 204,000 employees, including approximately 51,000 part time employees.” See HCA’s 2012 Annual Report to Shareholders at 35. 30. HCA Health Services of Florida, Inc. is listed on the Florida Department of State Division of Corporations’ website as an active corporation. See FL Dept. of State Division of Corp. Records for HCA Health Services of Florida, Inc. filed under separate cover. In 2012, HCA Health Services of Florida, Inc. filed an annual report with the State of Florida on behalf of the corporation. /d. 31 With respect to HCA HEALTH SERVICES OF FLORIDA, INC., they represent to the public that “HCA Florida is one of the largest, private health systems in Florida, featuring 50 hospitals across the state and 31 surgery centers.” See https://flahospitals.com, filed under separate cover. 32. What’s more, HCA Florida’s website also lists Osceola Regional Medical Center as one of HCA Florida’s hospital locations. See https://flahospitals.conylocations/, filed under separate cover. 33 HCA HEALTH SERVICES OF FLORIDA, INC.’s website details HCA Florida’s role in providing medical services to the community. HCA Florida’s website states, “At HCA Florida, our commitment to excellence is unwavering. We continually expand and modernize our facilities to accommodate the latest technology and deliver the services that meet the needs of a growing community. Our nurses and clinical staff are highly trained, and physicians affiliated with our facilities represent all major medical and surgical specialties.” It also states that, “Wherever you reside in Florida, one of our HCA Hospitals are nearby to provide the care you need. Working together, they share best demonstrated practices in quality and clinical operations and collaborate to create a full continuum of care and specialty services for the communities we serve. By sharing their strengths and knowledge and consolidating their business and financial function, they are free to focus on what they do best: delivering quality healthcare.” See https://flahospitals.com/about/, filed under separate cover. 34, In her affidavit, Plaintiff, Ashley Calzada, explains how she came to the decision to deliver her son at Osceola Regional Medical Center. In December of 2011, Ms. Calzada and her husband became pregnant with their first child, Jariel. They decided they wanted to have their child delivered at an HCA Hospital, in part because of HCA Healthcare system’s reputation and because HCA advertised as one of the nation’s leading providers of healthcare services. Their advertising led the Calzada family to believe that they had excellent delivery services and the best medical technology available to safely deliver their baby. Based on representations by HCA, Ms. Calzada understood that the physicians, nurses, and staff at Osceola Regional Medical Center were a part of the HCA Healthcare System and her medical care was being provided by HCA. She relied on these representations by HCA when she made the decision to deliver her baby at one of their facilities. See Affidavit of Ashley Calzada, filed under separate cover. 10 LEGAL STANDARD 35. The standards governing a party's entitlement to summary judgment are well-established under Florida law, and state, in pertinent part: 36. Rule 1.510. Summary Judgment (c) Motion and Proceedings Thereon. The motion shall state with particularity the grounds upon which it is based and the substantial matters of law to be argued and shall be served at least 20 days before the time fixed for the hearing. . . . The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. FLA. R. Civ. P. 1.510(c) (emphasis supplied); See also, Volusia Cnty v. Aberdeen at Ormond Beach, L.P., 706 So.2d 126, 130 (Fla. 2000). 37 Summary judgment is appropriate where the facts of a case are so “crystallized” that all that remains are questions of law for the trial court to determine. See Corp. v. City of Orlando, Fla., 598 So. 2d 287, 288 (Fla. 5th DCA 1992). The case law indicates that summary judgment is considered to be a drastic remedy, which courts should be cautious in granting. Stephens v. Dichtenmueller, 216 So.2d 448 (Fla. 1968); Seven-Up Bottling Co. of Miami v. George Constr. Corp., 166 So.2d 155 (Fla. 3d DCA 1964). 38. The principles which govern the use of summary judgment are well settled. See Albelo v. Southern Bell, 682 So.2d 1126, 1129 (Fla. 4"™DCA 1996); See also Romero vy. All Claims Ins. Repairs, Inc., 698 So.2d 605 (Fla. 3d DCA 1997). First, summary judgment cannot be granted unless the pleadings, depositions, answers to interrogatories, and admissions on file together with affidavits, if any, conclusively show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. Fla. R. Civ. P. 1.510(c). Second, the burden is upon the party moving for summary judgment to show conclusively the complete absence of any genuine issue of material fact. Third, the 11 trial court must draw every possible inference in favor of the party against whom summary judgment is sought. Moore v. Morris, 475 So.2d 666 (Fla.1985). Fourth, if the evidence raises any issues of material fact, or if it is conflicting, or if it will permit different reasonable inferences, or if it tends to prove the issues, summary judgment cannot be granted. McDonald y. Florida Dept. of Transp., 655 So.2d 1164 (Fla. 4th DCA 1995). Finally, where discovery has yet to conclude, a motion for summary judgment should not be granted. See, e.g., Payne v. Cudjoe Gardens Property Owners Ass’n, Inc., 837 So.2d 458 (Fla. 3d DCA 2002) (where discovery is not complete, the facts are not sufficiently developed to enable the trial court to determine whether genuine issues of material facts exist); Singer v. Star, 510 So.2d 637, 639 (Fla. 4th DCA 1987) (where discovery is still pending, the entry of summary judgment is premature); Collazo v. Hupert, 693 So. 2d 631, 631 (Fla. 3d DCA 1997) (a trial court should not entertain a motion for summary judgment while discovery is still pending). 39, The burden of proving the absence of a genuine issue of material fact is upon the moving party, and until it is determined that the movant has successfully met this burden, the opposing party is under no obligation to show that issues do remain to be tried. Holl v. Talcott, 191 So.2d 41, 43 (Fla. 1966)(The burden to prove the non-existence of genuine triable issues is on the moving party, and the burden of proving the existence of such issues is not shifted to the opposing party until the movant has successfully met his burden). 40. In ruling on a motion for summary judgment, the trial court “must view the evidence and draw all inferences in favor of the opposing party.” Falco v. Copeland, 919 So.2d 650 (Fla. 1st DCA 2006); see also Sierra v. Shevin, 767 So.2d 524 (Fla. 3d DCA 2000)(“The standard of review of a summary judgment order is de novo and requires viewing the evidence in the light most favorable to the non-moving party.”). 12 41. “[Plaintiff's papers should] be liberally read and construed, as opposed to a strict reading of the movant’s papers. -” Holl, 191 So.2d 41 at 46. “This is particularly true in malpractice suits where. . . the attending facts are peculiarly within the knowledge of the movants and the showing of negligence is generally dependent upon expert testimony as to the standard of care required and observed.” Jd. Summary judgment in favor for a Defendant is only proper when the issues show no clear issue of material fact; the proof of non-negligence is so obvious; or the causes of injury is clearly shown to not be the fault of the Defendant. /d. Absent these circumstances, summary judgement is improper and trial is required. Id. 42 A host of cases have recognized that even the mere possibility or slightest doubt that an issue might exist is sufficient to defeat summary judgment. Berman’s Florida Civil Procedure, 2005 Edition §510.5[6]d, pg. 639. Albelo, 682 So.2d at 1126 (Summary judgment unavailable if record raises “even the slightest doubt” of existence of fact issue, because doubt must be resolved against movant, citing Tretten v. Irrgang, 654 So.2d 1297 (Fla. 4th DCA 1995)); See also Christian v. Overstreet Paving Co., 679 So.2d 839, 840 (Fla. 2d DCA 1996)(Summary judgment is improper if there is any issue, the possibility of an issue or the slightest doubt that an issue might exist.); Besco USA Int’l Corp v. Home Sav. Of Am. FSB, 675 So.2d 687, 688 (Fla. Sth DCA 1996)(If slightest doubt exists, summary judgment must be denied.); Pinchot v. First Fla. Banks, Inc., 666 So.2d 201, 202 (Fla. 2d DCA 1995 )(The “possibility” of a fact issue or “slightest doubt” that a fact issue “might exist” precludes summary judgment); Levine v. Constitution Bank, 640 So.2d 1202 (Fla. 2d DCA 1994)(Summary judgment must be denied if the “possibility of any issue” reflected by the record, or the record raises “the slightest doubt that an issue might exist”); Spolski Gen. Contractor, Inc. v. Jett-Aire Corp. Av. Mgmt., 637 So.2d 968, 969-70 (Fla. 13 5th DCA 1994)(Summary judgment improper if the “slightest doubt remains”); Cocoa Props, Inc. v. Commonwealth Land Title, Inc. Co., 590 So.2d 989, 990 (Fla. 2d DCA 1991) (“If the record reflects the existence of any genuine issue of material fact or the possibility of any issue, or if the record raises even the slightest doubt that an issue might exist, summary judgment is improper.”); See also Star Lakes Estates Ass’n, Inc. v. Auerbach, 656 So.2d 271, 274 (Fla. 3d DCA 1995). 43 Indeed, summary judgment is almost always inappropriate in a medical malpractice action. See Davis v. Green, 625 So. 2d 130, 131 (Fla. 4th DCA 1993) ("Summary judgments should be cautiously granted in negligence and malpractice suits."); see also Moore v. Morris, 475 So. 2d 666, 668 (Fla. 1985) ("A summary judgment should not be granted unless the facts are so crystallized that nothing remains but questions of law."). 44 In ruling on a motion for summary judgment, the trial court “must view the evidence and draw all inferences in favor of the opposing party.” Falco v. Copeland, 919 So.2d 650 (Fla. 1st DCA 2006); see also Sierra v. Shevin, 767 So.2d 524 (Fla. 3d DCA 2000)(“The standard of review of a summary judgment order is de novo and requires viewing the evidence in the light most favorable to the non-moving party.”). 45 Florida does not follow the federal summary judgment standard, where the plaintiff must first show that she can prevail; rather, “Florida places a higher burden on a party moving for summary judgment in state court.” Goheagan v. Am. Vehicle Ins. Co., 107 So.3d 433, 439 (Fla. 4d DCA 2013). In State court the movant is required to show conclusively that no material issues remain for trial.” Jd. The Federal Summary Judgment Standard was rejected in Competelli v. City of Belleair Bluffs, 113 So.3d 92, 93 (Fla. 2d DCA 2013). The court was urged to adopt the federal burden-shifting approach typically applied in 14 employment discrimination cases but rejected the federal approach for the “well entrenched” Florida Standard. /d. 46. Recently, the Federal Summary Judgment Standard was rejected in Competelli v. City of Belleair Bluffs, 113 So.3d 92, 93 (Fla. 2d DCA2013). In Competelli, the Court found: The City urges us to adopt the burden-shifting analysis employed by federal courts typically in employment discrimination cases. See generally Mcdonnell Douglas Corp. V. Green, 411 U.S. 792, 802, 93 S. Ct. 1817, 36 L.Ed2d 668 (1973 (applying burden-shifting analysis in employment discrimination case involving disparate treatment). We decline the invitation. The Florida standard for summary judgment is well entrenched: The law is well settled in Florida that a party moving summary judgment must show conclusively the absence of any genuine issue of material fact that the court must draw every possible inference in favor of the party against whom a summary judgment is sought. A summary judgment should not be granted unless the facts are so crystallized that nothing remains but a question of law. If the evidence raises any issue of material fact, if it conflicting, if it will permit different reasonable inferences, or if it tends to prove the issues, it should be submitted to the jury as a question of fact to be determined by it. Moore v Morris, 475 So.2d 666,668 (Fla. 1985) (internal citations omitted); see also Bruno v Destiny Transp., Inc., 921 So.2d. 836, 839-40 (Fla. 2d DCA 2006)(citing Moore). Id. 47. In South Florida Coastal Electric, Inc. V. Treasures on the Bar IT Condo Ass’n, INC., 89 So.3d 264 (Fla. 3d DCA 2012), the court ruled that an agency relationship is generally a question of fact and facts supporting agency will prevent summary judgment. 48. In Valenzuela v. Globe GroundN. Am., LLC, 18 So. 3d 17, 25 (Fla. DCA 2009), the Court held that the employee’s conclusory allegations were insufficient to create a triable issue as to whether the company’s proffered explanation was a pretext for gender discrimination. Here, as in Valenzuela, the Defendant’s so-called undisputed facts are legally conclusory and is not sufficient to demonstrate an absence of disputed material fact, simply becaus: the Defendant states so. /d. In fact, it is well-settled that such conclusory general assertions do not create factual issues necessary to avoid summary judgment. Bahadue v. Sanaullah, 15 946 So. 2d 1247 (Fla. 1st DCA 2007) (conclusory statements alone are insufficient to support the grant of a motion for summary judgment); see also Schurer v. Koch, 741 So. 2d 618 (Fla. 2d DCA 1999) ([s]elf-serving statements are not sufficient to establish an issue as a matter of law on a motion for summary judgment.) see, e.g., Adam Smith Enters., Inc. v. Barnes, 539 So. 2d 549 (Fla 2d DCA 1989) (holding that the conclusory affidavits submitted were insufficient support for the summary judgment proceedings). LEGAL ARGUMENT 1 The Court Should Strike Defendants’ Legally Insufficient Evidence Used In Support Of Their Motion for Summary Judgment 49 In support of HCA’s Motions for Summary Judgment, Defendants have attempted to attach and designate the affidavit of HCA’s Assistant Cice president of Financial Reporting, as well as the Vice President of Osceola Regional Medical Center, HCA Health Services of Florida, Inc. and Health Services Inc., Michael Bray, as summary judgment evidence. 50. Plaintiff respectfully moves to strike Defendant’s purported summary judgment “evidence” as the affidavit of Michael Bray fails to meet the basic requirements set forth by Rule 1.510, Fla. R. Civ. P. for summary judgment evidence, as it is self-serving, conclusory, based solely upon factual and legal conclusions, and/or directly contradictory to HCA’s own admissions and other evidence in this case. In that regard, Plaintiff respectfully moves this Court to strike the legally insufficient affidavit of Michael Bray as summary judgment evidence. 51. Rule 1.510, Fla. R. Civ. P., provides in part as follows: (c) Motion and Proceedings Thereon. The motion shall state with particularity the grounds upon which it is based and the substantial matters of law to be argued and shall specifically identify any affidavits, answers to 16 interrogatories, admissions, depositions, and other materials as would be admissible in evidence (“summary judgment evidence”) on which the movant relies. (e) Form of Affidavits; Further Testimony. Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein. Sworn or certified copies of all papers or parts thereof referred to in an affidavit shall be attached thereto or served therewith. The court may permit affidavits to be supplemented or opposed by depositions, answers to interrogatories, or by further affidavits. 52. Although sworn affidavits may be used in support of a motion for summary judgment, pursuant to Rule 1.510(e), Fla. R. Civ. P., a corollary of that rule is that “[a]n affidavit in support of summary judgment may not be based upon factual conclusions or conclusions of law.” Buzzi v. Quality Service Station, Inc., 921 So. 2d 14, 15 (Fla. 3d DCA 2006) citing Florida Dept. of Fin. Servs. v. Associated Indus. Ins. Co., 868 So. 2d 600, 602 (Fla. 1% DCA 53 The affidavits of Michael Bray are improper as summary judgment evidence as they are based on factual conclusions and fail to attach documents relied upon in preparing the affidavits. “Although sworn affidavits may be used in support of a motion for summary judgment, pursuant to Rule 1.510(e), Fla. R. Civ. P., a corollary of that rule is that ‘[aJn affidavit in support of summary judgment may not be based upon factual conclusions or conclusions of law.”” Buzzi v. Quality Service Station, Inc., 921 So. 2d 14, 15 (Fla. 3d DCA 2006) citing Florida Dept. of Fin. Servs. v. Associated Indus. Ins. Co., 868 So.2d 600, 602 (Fla. 1st DCA 2004). Furthermore, all documents referenced in the affidavit must be sworn or certified and attached to the affidavit. Fla. R. Civ. P. 1.510(e). In direct noncompliance with this rule, the affidavits of Michael Bray make blanket statements about 17 the relationship between HCA, HCA Health Services of Florida, Inc., and Osceola Regional Medical Center without attaching supporting documents. 54, “{G]eneral statements in an affidavit which are framed in terms only of conclusions of law do not satisfy a movant's burden of proving the nonexistence of a genuine material fact issue.” Heitmeyer v. Sasser, 664 So. 2d 358, 360 (Fla. 4th DCA 1995) [21 Fla. L. Weekly D39a] (citing Seinfeld v. Commercial Bank & Trust Co., 405 So. 2d 1039 (Fla. 3d DCA 1981)). 55 Florida courts have consistently held that a litigant's self-serving statements can neither justify, nor overcome summary judgment—regardless of whether those statements appear in affidavits or other summary judgment evidence. See Peoples Gas System, Inc. v. Acme Gas Corp., 689 So. 2d 292, 299 (Fla. 3d DCA 1997) (declining to find “self-serving assertions” dispositive on summary judgment, when the party making the assertions submitted no other evidence in support of them); see also Schurer v. Koch, 741 So. 2d 618, 619 (Fla. 2d DCA 1999) (noting that the defendant's “self-serving statements in his answers to interrogatories... were not sufficient to establish the absence of a genuine issue of material fact and the entry of summary judgment in his favor”); see also Craven v. TRG- Boynton Beach, Ltd., 925 So, 2d 476, 480-81 (Fla. 4th DCA 2006) (reversing a grant of summary judgment in a party's favor because its “[c]Jonclusory, self-serving testimony [was] not sufficient to shift the burden of proof’. This principal applies with particular force when those self-serving statements take place after the fact and in contradiction to prior deposition testimony. See Baker v. Airguide Mfg., LLC, 151 So, 3d 38, 40 (Fla. 3d 18 DCA 2014) (declining to consider an affidavit submitted in opposition to summary judgment when it contradicted prior deposition testimony). 56. Here, HCA relies solely on the self-serving affidavits from Michael Bray to establish its contention that HCA is a “holding company” that does not “own and operate” Osceola Regional Medical Center, and therefore is not vicariously liable for the hospital’s negligence. HCA offers no other evidence to substantiate the fact that the HCA is a “non- operating holding company”, and no evidence whatsoever to establish its assertion that “HCA Inc. did not own, operate and/or maintain the Hospital at any time.” By contrast, HCA’s own SEC filings, annual shareholder reports, and admissions via their website, all contradict these self-serving statements regarding the nature of the relationship between HCA and Osceola Regional Medical Center. In HCA’s 2012 Annual Report, HCA states, “as of December 31, 2012, we owned and operated 38 hospitals with 10,261 hospital beds and_32 surgery centers in the state of Florida.” See HCA’s 2012 Annual Report to Shareholders at 58, 72. OSCEOLA REGIONAL MEDICAL CENTER’s own website states clearly, “HCA operates four hospitals in Central Florida: Central Florida Regional Hospital, Oviedo Medical Center, Osceola Regional Medical Center and Poinciana Medical Center.” See Osceola Regional Medical Center’s website, https://osceolaregional.com/about/index.dot. 57 HCA’s contention that no sufficient relationship exists between these entities is further contradicted by the fact that Mr. Bray holds positions in all four (4) of these companies. By his own admission, Mr. Bray clearly states he is: (1) Vice President of Osceola Regional Hospital, Inc. d/b/a Osceola Regional Medical Center, (2) Vice President of HCA Health 19 Services of Florida, Inc., (3) Vice President of Health Services, Inc., AND (4) Assistant Vice President of Financial Reporting at HCA, Inc. See Affidavits of Michael Bray at {| 2. 58. The importance of the clear contradictions between Mr. Bray’s sworn statements and the statements by HCA in the filings annexed hereto cannot be understated. Not only is HCA’s duty of candor to the Court called into question, but so is its duty to shareholders under laws governing publicly traded companies. 59, Specifically, with respect to securities registered on a national securities exchange, it is unlawful for “any person, directly or indirectly, by the use of any means or instrumentality of interstate commerce”, to “make any untrue statement ofa material fact or to omit to state a material fact necessary in order to make the statement made ... not misleading”, or to “engage in any act, practice, or course of business which operates or would operate as a fraud or deceit upon any person.” (17 C.F.R. § 10b-5; see also 17 C.F.R. § 240.10b-1). 60. Thus, either Mr. Bray’s statements in his affidavit are false, or the publicly available statements made by HCA and its agents to the SEC and on its own websites are false. When evaluating the credibility of Mr. Bray’s statements, plaintiffs ask the Court to consider that HCA, in this action, is alleged to be liable for negligent treatment that resulted in catastrophic neurologic injuries to the infant-plaintiff — not to mention a court decision that will serve as the underpinning for its vicarious liability in other cases venued in this State. 61 Given these blatant contradictions and the lack of other evidence, no summary judgment is justified. 62. However, even if the improper summary judgment evidence were considered by this Court, Plaintiffs contend that Defendants’ Motion for Summary Judgment should be still denied, 20 as the submitted evidence fails to establish the complete absence of a genuine issue of material fact with regards to (1) whether the HCA owned, operated, and managed Osceola Regional Medical Center in 2012 when Plaintiffs presented to Osceola Regional Medical Center; and (2) whether the Plaintiffs’ healthcare providers were acting as employees or agents of the HCA at the time they provided care and treatment to Plaintiffs. ll. HCA, INC. is Vicariously Liability for the Negligence of its Employees, Agents, and/or Apparent Agents A. Employment: 63 HCA, INC., as owner and operator of OSCEOLA REGIONAL MEDICAL CENTER is vicariously liable for the negligent conduct of their employees, agents, apparent agents, physicians, nurses, ARNP’s residents, and technicians, but not limited to, ERIC FREDNAK, CRNA, MICHAEL R. DENARDIS, D.O., RODNEY DE VALLE, M.D., EZER A OJEDA, M.D., & BHUPENDRAKUMAR M. PATEL, M.D., JOSE I. GIERBOLINI, M.D., JUAN LONGHI, M.D., Lisa Denarski, RN., Marissa Lee, RN., and Jaymee Stahl, RN. 64. Defendant HCA, INC. moves for summary judgment on the issue of employment premised upon the argument that Defendant HCA denies ERIC FREDNAK, CRNA, MICHAEL R. DENARDIS, D.O., RODNEY DE VALLE, M.D., EZER A OJEDA, MD. & BHUPENDRAKUMAR M. PATEL, M.D., JOSE I. GIERBOLINI, M.D., JUAN LONGHI, M.D., Lisa Denarski, RN., Marissa Lee, RN., and Jaymee Stahl, RN being employed by HCA, INC. The Defendant’s argument impermissibly shifts the Defendant’s burden at summary judgment to Plaintiffs, and therefore is improper. Notwithstanding the 21 fact that the Defendant has improperly shifted its burden, the premise that Plaintiffs must produce a document to establish employment runs contrary to well established case law. 65 By Defendant, HCA, INC.’s own admission, as of December 31, 2012, they “had approximately 204,000 employees, including approximately 51,000 part time employees.” See HCA’s 2012 Annual Report to Shareholders at 35. 66. In defining “employee,” the Florida Supreme Court stated that generally, an “employee is one who for consideration agrees to work subject to the orders and directions of another, usually for regular wages but not necessarily so, and, further, agrees to subject himself at all times during the period of service to the lawful orders and directions of the other in respect to the work to be done.” City of Boca Raton v. Mattef, 91 So.2d 644 (Fla.1956). Nowhere in this definition is the requirement of a document or contract to reflect the master/servant relationship. The Defendant’s second argument is equally unavailing as the subjective, self-serving statements of the Defendant are not dispositive when a fact-specific inquiry into the acts and/or omissions giving rise to Plaintiff's claims is conducted in this matter. Generally, the question of whether or not someone is an employee is normally a question of fact, and therefore, not a proper subject for summary judgment unless the uncontradicted facts support but one conclusion, which is not the case here. 67. Florida Standard Civil Jury Instruction 402.9(a) is instructive on the issue of vicarious liability premised on employment relationships. It provides: whether (name) was an employee of (defendant) and was acting within the scope of [his] [her] employment at the time and place of the incident in this case. An employee is a person who is hired by (defendant) to act on behalf of (defendant), and whose actions are controlled by (defendant) or are subject to (defendant’s) right of control. An employer is responsible for the negligence of an employee if the negligence occurs while the employee is performing services which [he] [she] was employed to perform or while the employee is acting at least in part because ofa desire to serve [his] [her] employer and is doing something that is reasonably incidental to [his] [her] employment or something the doing of which 22 was reasonably foreseeable and reasonably to be expected of persons similarly employed. See Florida Standard Jury Instruction 402.9. 68. Employment is a question of fact to be determined by the trier of fact. Saudi Arabian Airlines Corp. v. Dunn, 438 So, 2d 116, 119 (Fla. Ist DCA 1983); Pate v. Gilmore, 647 So. 2d 235, 236 (Fla. Ist DCA 1994) (reversing the trial court's grant of summary judgment on employment and stating: “[g]enerally speaking, questions of negligence are answerable by a jury...and therefore, a summary judgment should be granted “cautiously” in a negligence case...In the same vein, it is well-established that the question of an employer/employee relationship is generally a question of fact, and therefore a question for the trier of fact”); Sagarino v. Marriott Corp., 644 So. 2d 162, 164 (Fla. 4th DCA 1994) (reversing the trial court's grant of summary judgment on employment and stating: “(t]he question of whether there exists an employer/employee relationship is normally reserved for the jury to determine. ..This is especially true where there exist disputed issues of fact”); DeBolt v. Dep't of Health & Rehabilitative Services, 427 So. 2d 221, 226 (Fla. Ist DCA 1983) (reversing the trial court's grant of summary judgment and stating: “[i]f there is no question as to the existence or non-existence of a master/servant or employer/employee relationship, the issue is one then for the court to determine. If, however, the issue is unclear, it becomes a question of fact for the trier of fact to decide based on the evidence presented”); Gardner v.