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Filing # 93780137 E-Filed 08/07/2019 10:12:09 AM
IN THE CIRCUIT COURT OF THE SEVENTEENTH JUDICIAL CIRCUIT,
IN AND FOR BROWARD COUNTY, FLORIDA.
SEAN DOMNICK, as Guardian Ad Litem for CASE NO.: CACE-14-014218 Div: 04
the minors, KYLIE NGUYEN and KADEN
NGUYEN, KHAI NGUYEN, individually,
and as Personal Representative of the Estate
of MAI TUYET NGUYEN, deceased, and on
behalf of KRISTEN HUYNH, KYLIE
NGUYEN, KADEN NGUYEN, the surviving
children of MAI TUYET NGUYEN, and as
the natural parent of KADEN NGUYEN, a
minor,
Plaintiffs,
PLANTATION GENERAL HOSPITAL, L.P.
d/b/a PLANTATION GENERAL HOSPITAL
AND DORI RATHBUN
Defendants.
/
PLAINTIFF’S RESPONSE IN OPPOSITION TO PLANTATION GENERAL
HOSPITAL’S MOTION FOR SUMMARY JUDGMENT
COMES NOW the Plaintiff, SEAN DOMNICK, as Guardian Ad Litem for the
minors, KYLIE NGUYEN and KADEN NGUYEN, KHAI NGUYEN, individually, and
as Personal Representative of the Estate of MAI TUYET NGUYEN, deceased, and on
behalf of KRISTEN HUYNH, KYLIE NGUYEN, KADEN NGUYEN, the surviving
children of MAI TUYET NGUYEN, and as the natural parent of KADEN NGUYEN, a
minor, by and through the undersigned, and hereby responds in opposition to Defendant,
PLANTATION GENERAL HOSPITAL’S Motion for Summary Judgment as to Non-
Delegable Duty, Vicarious Liability, Partnership, and Joint Venture Claims of Defendant
PLANTATION GENERAL HOSPITAL (hereinafter “Plantation General Hospital” or
1
*** FILED: BROWARD COUNTY, FL BRENDA D. FORMAN, CLERK 08/07/2019 10:12:08 AM.****“PGH”). This Response is made upon applicable statutory and case law, all as fully set
forth below.
INTRODUCTION
1, This is a medical malpractice case wherein Plaintiffs contend that
Defendant, PLANTATION GENERAL HOSPITAL, L.P., d/b/a PLANTATION
GENERAL HOSPITAL, by and through its alleged employees, agents, and servants were
negligent in the care of MAI TUYET NGYEN and KADEN NGYUEN, resulting in the
death of MAI TUYET NGYEN and severe and permanent injuries to KADEN NGYUEN,
including but not limited to a hypoxic brain injury.
2. In Counts I and II of Plaintiff's Second Amended Complaint, Plaintiff has
asserted that PLANTATION GENERAL HOSPITAL had a non-delegable duty to provide
medical and nursing care in accordance with the general standard of care in pre-delivery,
post-delivery, and neonatal care and treatment to MAI TUYET NGUYEN and/or KADEN
NGUYEN. Second Amended Complaint § 62, 68.
3. In Counts III and IV of Plaintiff's Second Amended Complaint, Plaintiff
has asserted that PGH, by and through its employees, agents, and/or apparent agents, to
include but not limited to, BIRMAN, EDOUARD, SANTINI, MACHAN, RATHBUN,
were negligent in their care and treatment of MAI TUYET NGUYEN and KADEN
NGUYEN, a minor, and that as a direct and proximate result of that negligence, MAI
TUYET NGUYEN suffered a wrongful death and KADEN NGUYEN suffered significant
and permanent injuries to include a hypoxic brain injury. Second Amended Complaint §
79, 84.
4. In Counts XXI-XXII of the Second Amended Complaint, Plaintiff has
asserted PGH is liable for the negligent acts of Dr. Edouard, because at all times allegedherein PLANTATION GENERAL HOSPITAL and Dr. Edouard were engaged in a
partnership and joint venture with each other, as they had combined their resources or
efforts and agreed to undertake the medical care of MAI TUYET NGUYEN and KADEN
NGUYEN, a minor, which included contributions by each of property, money, and/or
services, they had a mutuality of interest in both profits and losses, and they agreed to
share in the assets and liabilities of obstetrical, maternity, labor, delivery and other
services provided at PLANTATION GENERAL HOSPITAL.
5. On June 27, 2019, PGH filed and served a Motion for Partial Summary
Judgment, wherein they moved this Court to grant partial summary judgment of the non-
delegable, vicarious liability, partnership, and joint venture claims of Plaintiff against
PGH for the negligence of Dr. Edouard.
6. Although PGH has averred that the above issues are no longer materially at
issue, the available evidence in this matter avers contrariwise, as the evidence
demonstrates that (1) PGH had a non-delegable duty to provide non-negligent medical
services to Ms. Nguyen who was admitted to PGH emergently and who was assigned
doctors, nurses, and staff by PGH and PGH alone, (2) that Dr. Edouard, BIRMAN,
SANTINI, MACHAN, and RATHBUN were selected by PGH and assigned to Ms.
Nguyen by PGH, where they acted as employees, agents and/or apparent agents of PGH
throughout their care and treatment of Plaintiff, and (3) PGH and Dr. Edouard were
engaged in a joint venture and partnership with respect to their care and treatment of Ms.
Nguyen.
7. Specifically, the available evidence in this matter clearly establishes that
Plantation General Hospital aggressively advertises to the community in order to attract
patients to its facility. The message PGH projects to the public is that they offer first-classmaternity services and childbirth experiences, and that their facility is equipped with
sophisticated medical technology. PGH advertises as having 24/7 OB/GYN on-site for
laboring mothers and skilled maternity staff capable of handling the medical needs of
patients such as Mai Tuyet Nguyen. These messages were heard by Mr. and Ms. Nguyen,
who, in reliance on these advertisements, decided they wanted to deliver her child there.
See Affidavit of Khai Nguyen filed under separate over. The Nguyens then contacted
Plantation General Hospital in search of an OB/GYN from the hospital who could deliver
her child there, at which time Plantation General Hospital provided them with Dr.
Edouard’s information. /d. It was based on PGH’s referral that Ms. Nguyen began seeing
Dr. Edouard for the purpose of delivering her second child at PGH. Id.
8. Furthermore, all of the available evidence demonstrates that PGH and Dr.
Edouard were engaged in a joint venture and/or partnership in providing obstetrical care
and treatment and delivery services to patients at PGH. In fact, Plantation General
Hospital outwardly advertises as “(p]artner(ing) with physicians and other medical
professionals who have the necessary qualifications and credentials to provide quality,
safe, and compassionate medical care to our community.” They also advertise the
following to the community: “Our rigorous credentialing process follows Federal and
State regulatory requirements, as well as accreditation standards for verifying the
education, training, licensure, and current competence in order to ensure that privileges
are only granted to qualified providers.” The evidence supports that Dr. Edouard was
provided to Mrs. Nguyen by PGH and together they worked as a team, along with the
other physicians, nurses, and staff assigned by PGH, in order to render medical services
to Mrs. Nguyen. Plantation General Hospital then benefited by billing approximately
$10,609.00 for Mai Tuyet Nguyen’s labor and delivery and approximately $1,104.00 forOB/GYN care & delivery. See Plantation General Hospital’s billing records filed under
separate cover.
9. Moreover, PGH’s Motion for Summary Judgment fails to establish that Dr.
Edouard was not acting as an employee, agent, and/or apparent agent of Plantation
General Hospital when rendering medical care to Mrs. Nguyen. To the contrary, all of the
available evidence supports that at all times material hereto, Mrs. Nguyen received care
and treatment from medical providers who were either employees, agents and/or apparent
agents of PGH, including Dr. Edouard. Specifically, the facts of this case demonstrate that
Dr. Edouard was provided to Mrs. Nguyen by PGH and PGH alone. The Nguyens were
led to believe Dr. Edouard was providing OB/GYN care on behalf of the hospital. See
affidavit of Khai Nguyen filed under separate cover. On the date the negligence occurred,
Dr. Edouard was contacted by the PGH to present to the hospital, not Mrs. Nguyen. Dr.
Edouard did not have discretion when or how to provide medical services to Mrs. Nguyen.
Rather, he arrived at PGH at the direction of the hospital. PGH also had the right to
exercise control over the actions of its physicians, including Dr. Eduardo. Through its
bylaws, which are unique to each hospital and chosen by the hospital, the hospital had the
ability to control the actions of Dr. Eduardo. A principal should be estopped to deny
the authority of an agent when the principal permitted an appearance of authority
in the agent and, in so doing, justified a third party's reliance upon that appearance
of authority as if it were actually conferred upon the agent. Roessler v. Novak, 858
So.2d 1158, 1162 (Fla. 2d DCA 2003), citing Irving v. Doctors Hosp. of Lake Worth, Inc.,
415 So. 2d 55, 59 (Fla. 4th DCA 1982); Liberty Mut. Ins. Co. v. Sommers, 472 So. 2d 522,
524 (Fla. Ist DCA 1985).10. In addition to the arguments stated above, Plaintiff contends that
Defendant’s Motion for Summary Judgment should be denied as it is entirely unsupported
by summary judgment evidence. Defendant has failed to meet their burden as the
moving party to show conclusively the complete absence of any genuine issue of
material fact. Defendant has failed to provide any record evidence whatsoever for the
majority of assertions made in its Motion. AJH Prop. Investment LTD. v. SunTrust Bank
89 So. 3d 948 (Fla. DCA 3d 2012).
ll. It is also important to note that the Supreme Court of Florida has amended
the Florida Standard Jury Instructions, establishing a more liberal standard for vicarious
liability agency instructions. As of September 2018, the agency standard instruction is as
follows: “Whether [person] [business] is an independent contractor is to be determined on
the basis of all of the circumstances of the parties’ dealings with each other and not
on the basis of the labels used by them.” See Fla. Standard Jury Instructions 402.9(a).
12. In support of the position that Defendant’s Motion for Summary Judgment
should be denied, Plaintiff presents as follows:
FACTUAL BACKGROUND
13. In late 2007, MAI TUYET NGUYEN and Khai Nguyen wished to have
their first child together. See Affidavit of Khai Nguyen filed under separate cover. The
couple decided they wanted to have their child delivered at Plantation General Hospital
because the hospital advertised as having excellent delivery services. Jd. PGH said that
they provided a 24/7 OB/GYN on-site for laboring mothers, which made the Nguyen’s feel
safe and was part of the reason they chose PGH to deliver their child. Jd. Plantation General
Hospital’s advertisement provided a phone number to call for a free physician referral and
more information about maternity services. Jd. The Nguyen’s contacted Plantation GeneralHospital for the name of one of their OB/GYNs who could deliver their child there, and
the hospital provided them with Dr. Edouard’s information. /d.
14. Based on the hospital’s referral, Mrs. Nguyen began seeing Dr. Edouard in
late 2007. Mrs. Nguyen then became pregnant with their daughter, Kylie, in early 2008.
Kylie was born at Plantation General Hospital on October 29, 2008, and delivered by Dr.
Edouard.
15. In July 2012, Mai was pregnant with her third child, KADEN NGUYEN
(“Kaden”).
16. On the evening of July 25, 2012, at 9:35 P.M., MAI TUYET NGUYEN
presented to Plantation General Hospital with signs of labor and complaints of abdominal
pain and decreased fetal movement.
17. A bedside ultrasound performed at 10:40 P.M., indicated a large blood clot
in her uterus.
18. RATHBUN, the radiology technician at PLANTATION GENERAL
HOSPITAL, produced images and then reviewed the results from the ultrasound.
19. PGH and RATHBURN failed to ensure that Mrs. NGUYEN’s stat
ultrasound evidencing a critical finding of a hemorrhage was transmitted to an on-call
radiologist for immediate interpretation.
20. The ultrasound was then interpreted by ROBERTA SANTINI, M.D.
21. The ultrasound contained a dense echogenic material throughout the
gestinal sac, which was strongly suggestive of a massive hemorrhage. Due to a series of
failures to communicate among the health care providers, the blood clot was not reported
to the health care providers.22. PGH contacted Dr. Edouard via telephone and he provided orders to admit
MAI TUYET NGUYEN at approximately 11:35 P.M., with the diagnosis of intrauterine
pregnancy and non-reactive fetal heart rate monitor. EDOUARD ordered MAI TUYET
NGUYEN to receive 25 micrograms of vaginal Cytotec every three (3) hours until active
labor commenced.
23. Cytotec has not been approved by the FDA as an inducing agent for labor,
and has a black box warning which cautions that use of the drug as an inducing agent can
result in birth defects, abortion, premature birth and uterine rupture.
24. At all times material hereto, the Cytotec administered to MAI TUYET
NGUYEN was stored, dispensed and provided by Plantation General Hospital for use in
inducing labor.
25. At 2:05 A.M., on July 26, 2012, Pamela Nelson, RN, administered 25 mg
of Cytotec vaginally to MAI TUYET NGUYEN.
26. Prior to being administered the Cytotec, MAI TUYET NGUYEN was not
told about the risks associated with the use of Cytotec, or the fact that it was not approved
by the FDA as a labor inducing agent.
27. Fetal hearing monitoring indicated variable decelerations indicative of
umbilical cord compression.
28. At 5:30 A.M., another dosage of 25 mg of Cytotec was administered
vaginally by Pamela Nelson, RN.
29. Fetal heart monitoring at approximately 8:00 A.M. continued to be non-
reassuring with minimal variability, absent accelerations and variable decelerations
indicative of fetal compromise.30. At approximately 8:35 A.M., Jean Reynolds, RN, preformed a vaginal exam
which revealed vaginal bleeding. Dr. EDOUARD was notified at 8:40 A.M. of the
bleeding, and was told to come to Plantation General Hospital.
31. Although Dr. EDOUARD informed Jean Reynolds, RN that he was only
ten (10) minutes away from Plantation General Hospital, he did not arrive at bedside until
C-Section delivery was underway, at approximately 9:08 A.M.
32. At 8:46 A.M., MAI TUYET NGUYEN was administered oxygen.
33. At 8:55 A.M., Jean Reynolds, RN called Dr. EDOUARD and informed him
the MAI TUYET NGUYEN was completely dilated and wanting to push.
34. At 9:00 A.M., MAI TUYET NGUYEN became unresponsive. A Rapid
Response Team was called, however a Code Blue was not called.
35. Although a request for a Rapid Response Team was made at 9:00 A.M., an
overhead page for an available OB/GYN physician was not executed until 9:04 A.M.
36. BIRMAN arrived at MAI TUYET NGUYEN’s bedside at 9:05 A.M., and
attempted a forceps delivery, which failed.
37. Despite MAI TUYET NGUYEN being non-responsive since 9:00 A.M., a
Code Blue was not called until 9:06 A.M.
38. By 9:07 A.M. MAI TUYET NGUYEN had no palpable pulse, and was in
asystole. MAI TUYET NGUYEN was then intubated.
39. At 9:10 A.M., the fetal heart rate was documented in the range of 50-59
beats per minutes, indicative of severe fetal distress and compromise. Despite the same, a
STAT C-Section was not called until 9:13 A.M.
40. KADEN NGUYEN was delivered via C-Section by BIRMAN at 9:14 A.M.
41. MACHAN was the attending certified registered nurse anesthetist (CRNA).42. After KADEN NGUYEN was delivered, Dr. EDOUARD arrived at bedside
and assisted with delivery of the placenta.
43. The uterus was placed back into the abdomen and the abdominal incision
was left open while CPR efforts continued at MAI TUYET NGUYEN’s bedside.
44, Despite continued CPR and resuscitative efforts, MAI TUYET NGUYEN
remained unresponsive.
45. MAI TUYET NGUYEN was pronounced dead at 9:41 A.M. on July 26,
2012.
46. Upon delivery, KADEN NGUYEN was noted to be bradycardic, blue,
floppy, and not breathing, indicative of fetal compromise and hypoxia/anoxia. Despite this
presentation, cord blood gases were not obtained or ordered.
47. KADEN NGUYEN 's one (1) minute APGAR was a 1.
48. KADEN NGUYEN was intubated at three (3) minutes of life. Despite
intubation and aggressive resuscitative efforts, his AGP ARs remained abnormally low with
an APGAR of 3 at five (5) minutes, and an APGAR of 4 at ten (10) minutes.
49. KADEN NGUYEN was admitted in the Neo-Natal Intensive Care Unit
(NICU) in critical condition, and with an initial diagnosis of hypoxemia, perinatal
depression, respiratory distress and pulmonary hypertension.
50. In the early morning of July 28, 2012, KADEN NGUYEN suffered
prolonged oxygen desaturations, and drop in mean blood pressure. As a result, KADEN
NGUYEN was transferred to Joe DiMaggio Children's Hospital.
51. These injuries sustained by KADEN NGUYEN were preventable,
foreseeable, and will continue indefinitely into the future
LEGAL STANDARD FOR SUMMARY JUDGMENT
1042. Summary Judgment is proper only if no genuine issue of material fact exists,
and if the moving party is entitled to a judgment as a matter of law. Volusia Cnty v. Aberdeen
at Ormond Beach, L.P., 706 So.2d 126, 130 (Fla. 2000). 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.)
43. The principles which govern the use of summary judgment are well settled.
See Albelo v. Southern Bell, 682 So.2d 1126, 1129 (Fla. 4th DCA 1996); See also Romero
v. 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 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 v. Florida Dept. of Transp., 655 So.2d 1164 (Fla.
4th DCA 1995).
ll44. 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. A/belo, 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” is
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. 5th
DCA 1994)(Summary judgment is 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).
45. Inruling 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. Ist DCA 2006); see also Sierra v. Shevin, 767 So.2d 524 (Fla. 3d DCA
122000)(“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.”).
46. 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. 4th 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 employment discrimination cases but rejected the federal approach for the “well
entrenched” Florida Standard. /d.
47. The Third District Court of Appeals has recently reversed a trial judge under
an employment issue. The court concluded a genuine issue of material fact existed as to
whether there was an employment relationship and thus precluded summary judgment.
Fernandez v. Sandy Lane Residential, 112 So.3d 610 (Fla. 3d DCA 2013). The Third
District Court of Appeals has also recently ruled that “summary judgment is proper only if
not genuine issue of material fact exists and if the moving party is entitled to a judgment as
a matter of law.” Daneri v. BCRE Brickell, LLC, 79 So.3d 91 (Fla. 3d DCA 2012). In South
Florida Coastal Electric, Inc. v. Treasures on the Bar Il Condo Ass’n, Inc., the court ruled
that an agency relationship is generally a question of fact and facts supporting agency will
prevent summary judgment. 89 So.3d 264 (Fla. 3d DCA 2012).
48. It is Plaintiff's position that Defendant has failed to meet the burden of
conclusively demonstrating the absence of genuine issues of material fact with regards to
Plaintiff's claims against PGH. PGH has merely presented a cursory summary of their
13defensive position without any support from either authenticated evidence or supporting
affidavits. In contrast, Plaintiff has submitted and relied upon proper summary judgment
evidence which unequivocally establishes that the matters contemplated are genuinely at
issue. It is Plaintiff's position, therefore, that granting of summary judgment would be
improper.
BREACH OF NON-DELEGABLE DUTY
Florida law recognizes a claim for breach of non-delegable duty, and Plaintiffs
Counts for such against Defendant, PGH, are not subject to summary judgment.
56. | Anon-delegable duty may arise from a statute, regulation, common law, or
contract. Pope v. Winter Park Healthcare Grp., Ltd., 939 So.2d 185, 188 (Fla. 5th DCA
2006) (emphasis omitted) (citing Dixon v. Whitfield, 654 So.2d 1230, 1232 (Fla. Ist DCA
1995)). In Counts I-II of Plaintiff's Second Amended Complaint, Plaintiff has alleged that
Defendant PGH has a non-delegable to provide non-negligent medical care pursuant to (1)
common law; (2) Florida Statutes, (3) Florida Administrative Rules, (4) Federal Medicaid
and Medicare Regulations, (5) and express contract.
57. The law is well-settled in Florida regarding the issue of non-delegable duties
with respect to the duties and responsibilities of state-licensed hospitals. Stated simply, the
performance of a duty may be delegated to a third party; however, liability for the
negligent performance of that duty may not be delegated away to a third party. The
policy behind such a rule contemplates that certain duties that are of utmost importance—
namely, the protection of people placed in positions of vulnerability coupled with a
relationship of special trust. See e.g., Irving v. Doctors Hospital of Lake Worth, Inc. 415
So.2d 55 (Fla. 4th DCA), rev. denied, 422 So.2d 842 (Fla. 1982) (stating that the public
policy surrounding the issue of non-delegable duty in a hospital revolves, at least in part,
upon the helplessness of the plaintiff in an emergency setting);
1458. Under the law defining a non-delegable duty, a party who has an obligation
to perform acts or who has undertaken certain duties has the obligation to perform those
acts and duties in a non-negligent fashion. If the party chooses to delegate those acts to a
third party—i.e., an independent contractor—the original party remains liable for any
negligence of that third party—regardless of whether the negligent act was performed by
an agent or independent contractor. See generally Newbold-Ferguson v. AMISUB (North
Ridge Hosp.), Inc., 85 So. 3d 502 (Fla. 4th DCA 2012); Shands Teaching Hosp. & Clinic,
Inc. v. Juliana, 863 So. 2d 343, 349 (Fla. lst DCA 2003); /rving v. Doctor's Hosp. of Lake
Worth, Inc., 415 So.2d 55 (Fla. 4th DCA 1982) (holding that where the physician is not
privately retained by the patient and his activities are controlled by the hospital, courts have
held hospitals liable under theories of non-delegable duty).
59. Under the common law, non-delegable duties typically arise out of the
performance of an “inherently dangerous activity” or out of the creation of an “inherently
dangerous condition.” During the recent deposition of Dr. Joan McCarthy of Tampa
General Hospital in a separate matter, she acknowledged the great importance and dangers
of delivering babies:
Mr. Diez-Arguelles: Is it an important function to deliver babies?
Dr. McCarthy: Yes.
Mr. Diez-Arguelles: Are there dangers in delivering babies?
(Objection)
Dr. McCarthy: Yes. Yes.
Mr. Diez-Arguelles: And then when we're delivering babies, you would agree
that we need to adhere to standards of safety, right?
(Objection)
1SDr. McCarthy: Yeah, I --
Mr. Diez-Arguelles: Is that fair, ma'am?
Dr. McCarthy: Yes. It's important to be safe.
Mr. Diez-Arguelles: Okay. Because if you're not safe, an injury can occur, right?
Dr. McCarthy: Right.
Mr. Diez-Arguelles: So you want to exercise precautions, right?
(Objection)
Dr. McCarthy: Yes.
See Deposition of Joan McCarthy, M.D. at 46:21-47:25, filed under separate
cover.
56. Florida courts have already recognized that hospitals could be vicariously
liable for negligence of independent contractor physician. The seminal case on non-
delegable duty is /rving v. Doctor's Hosp. of Lake Worth, Inc., 415 So. 2455 (Fla. 4th DCA
1982). In Irving, the Fourth District Court of Appeal reversed a trial court’s jury verdict
for failing to instruct a jury on the issue of non-delegable duty. See id. The Plaintiff in
Irving was presented to the emergency department and the treating physician was not a
hospital employee. Jd. The Court upheld the non-delegable duty owed by the hospital for
care rendered by an emergency room physician who was an independent contractor,
reasoning:
[the plaintiff] took her child to the emergency room of [the
hospital] for treatment. As far as she was concerned, all of the personnel
furnished in the emergency room were hospital employees. The hospital
held itself out as affording emergency treatment and the jury could well
find that [the plaintiff] was dealing with the hospital. Thus, [. . .] the
evidence in this case would justify a jury verdict in [the plaintiff s] favor
on the theory of apparent authority whether [the treating physician was]
an employee or an independent contractor. Failure to so instruct the jury
deprived them of the court's advice on an important aspect of [the
16plaintiff's case]. Indeed, that oversight might well account for the
adverse verdict.
57. The court then focused on the jury instructions given by the Trial Court
noting “[t]he thrust of [the plaintiff's requested] instruction is that one may not escape his
contractual liability by delegating performance under a contract to an independent
contractor. The contracting party remains liable for the negligent performance of the
contract whether it be performed for him by his employee or an independent contractor.”
Id. at 59. Following this logic, the /rving Court pointed out in footnote [2]:
Having undertaken the treatment of the patient, which including
providing physicians to care for the patient, the hospital was under a duty
to_do so effectively and_patients entering the hospital through the
emergency department could safely assume that the treating doctors were
acting on behalf of the hospital providing the care. It was not incumbent
on the patient to be aware of each and every private contract between the
hospital and the physicians. Jd. at 60-61.
(Emphasis added).
58. After the /rving decision, the Fifth District Court of Appeal addressed the
issue arising out of claims non-delegable duty in Orlando Reg’! Med. Ctr. v. Chmielewski,
573 So. 2d 876 (Fla. Sth DCA 1990), abrogated on other grounds, Boulis v. Fla. Dep't of
Transp., 733 So.2d 959 (Fla. 1999). In Chmielewski, the facts revealed a patient entered
the emergency room ofa local hospital to receive treatment, and as a result of the treatment
which alleged to have been negligent was injured. /d. at 878.
59. The Fifth District Court ruled that the trial court committed no error, noting
that the jury instruction given in Chmielewski, was “essentially a correct statement of the
law.” Jd. That jury instruction, which began with [then] Florida Standard Jury Instruction
3.3b(2) followed by the bracketed independent contractor instruction of 3.3b(1), also
included an instruction which stated:
17Even if you were to find that Dr. Aparicio was an independent
contractor, the hospital would nevertheless be responsible for any
negligence on his part if Mr. Chmielewski went to the hospital for hospital
treatment and the Defendant hospital undertook to treat him for a charge
and to furnish doctors and staff to render that treatment. /d. at 878.
60. — After the Chmielewski opinion, the First District Court of Appeal decided
Shands Teaching Hosp. & Clinic v. Juliana, 863 So. 2d 343 (Fla. Ist DCA 2003). In
Juliana, the court found that the hospital was liable for the negligent acts of a perfusionist
after a child was rushed to through the emergency department and need to have open heart
surgery and suffered an injury during the procedure attributable, at least in part, to the acts
of the perfusionist. In doing so, the First District Court of Appeal noted the duty could not
be delegated since the service was contracted for. The hospital provided the services of the
perfusionist. If the hospital had wished for the patient to obtain his own perfusionist it
might have been possible to advise the patient that this was his responsibility. This certainly
was not done. The fact that the hospital chose to retain the services of the perfusionist as
an independent contractor rather than an employee is immaterial in the relationship
between the hospital and the patient. /d. Furthermore, in footnote 9 of its opinion, the First
District Court of Appeal again stated the basic rule on non-delegable duty for physicians
at hospitals:
Even when a physician is an independent contractor, however,
hospital that “undertake by [express are implied] contract to do for
another a given thing” is not allowed to “escape within [in that it’s
contract liability to the patient by delegating performance under a
contract to an independent contractor (citing to /rving and Chmielewski
(internal citations omitted)).
61. — This well settled legal concept of non-delegable duty was more recently
reaffirmed in Newbold-Ferguson v. AMISUB (North Ridge Hospital), Inc., 85 So. 3d 502
(Fla. 4th DCA 2012). Newbold-lerguson_was a wrongful death action alleging negligence
18on the part of an emergency room physician and an attempt to hold a hospital liable for that
physician's negligence. See id. After the trial court granted a motion to dismiss the
plaintiff’ s third amended complaint, the Fourth District Court of Appeals reversed the trial
court’s ruling. /d. In doing so, it was explained the public policy purpose behind imposing
a non-delegable duty on hospital emergency situations is that:
[t]he imposition of a non-delegable duty to provide competent
emergency services makes sense, because a patient in an emergency
generally has little, if any, control over who will be the treating
physician. This is further evidenced by the Hospital’s website where it
makes advertisements to the public regarding its medical services and
offers these services to the public upon their presentation to the
Hospital’s facility. Any patient who then presents to the Hospital is
accepting the Hospital’s representations as true. Jd.
62. Florida Standard Jury Instruction 402.9(a)(1) reads, “[W]hen a facility
undertakes to perform services, it cannot transfer the obligation to perform those
services to an independent contractor and remain responsible for the negligence of
his independent contractor.”
63. In the instant case, Defendant, PGH is attempting to delegate away liability
the actions of physicians, BIRMAN, EDOUARD, SANTINI, MACHAN, RATHBUN,
who were chosen by PGH to provide competent medical care and treatment to Plaintiff.
However, based on the holdings in /rving, Newbold, and various other courts, Defendant
cannot delegate away liability for the negligence of various physicians, nurses, staff, and
employees, whom Defendant selected to provide care and treatment to Plaintiffs, including
BIRMAN, EDOUARD, SANTINI, MACHAN, and RATHBUN.
64. In the case at bar, Mai Tuyet Nguyen presented to PGH in need of emergent
and/or urgent care. Mrs. Nguyen presented with complaints of abdominal pain and no fetal
movement. Upon presentation to the hospital, PGH assigned doctors, nurses, and staff to
19provide Ms. Nguyen with emergent medical care. In fact, Plantation General Hospital billed
Mrs. Nguyen for an emergency room and emergency services on the day of her admission,
July 25, 2019. See PGH’s billing records filed under separate cover. Mrs. Nguyen did not
select any of the medical providers who rendered care to her during her admission to PGH.
Based on representations by PGH, as well as her delivering doctor and nurses, the
impression was that all medical care and services were being provided by PGH. Jd.
67. Mai Tuyet Nguyen did not participate in selecting the doctors, nurses, or
staff who provided medical care to her during her admission to PGH. Instead, these
individuals were selected and assigned to her by PGH, and represented to her that they were
acting on behalf of PGH while rendering care to her. Accordingly, Plaintiffs have alleged
via their Second Amended Complaint that the individuals who rendered care and treatment
to PGH were acting as employees, agents and/or apparent agents. Mrs. Nguyen’s delivering
doctor, Alex Birman, M.D., was the on-call OB/GYN assigned to her by PGH after her
emergency admission to the hospital. Prior to Mrs. Nguyen’s admission on June 25, 2012,
she had never met Dr. Birman before.
68. By Defendant’s own admission, they offered OB/GYN on-site for laboring
mothers 24/7. www.plantationgeneral.com/service/maternity, August 6, 2019. The on-site
OB/GYNs and nurses were the exact providers Plantation General Hospital assigned to
provide Mrs. Nguyen with medical care and treatment upon her emergency arrival to PGH
on July 25, 2012.
69. Further, Defendant has provided zero evidence that the medical providers
who rendered care to MAI TUYET NGUYEN and/or KADEN NGUYEN were
independent contractors. Conversely, all of the evidence supports that the medical
20professionals who provided care to MAI TUYET NGUYEN and her son were acting under
their employment by PGH.
70. Florida's Administrative Code imposes numerous burdens on hospitals,
reflecting the State's belief that it is the hospital who ultimately bear responsible for an
activity as crucial as the provision of medical care and treatment. Rule 59A-3.254, Florida
Administrative Code, sets forth that “each hospital shail develop and adopt policies and
procedures to ensure an initial assessment of the patient's physical, psychological and
social status, appropriate to the patient's developmental age...to determine the need and
type of care or treatment required, and the need for further assessment.” Fla. Admin. Code
r. 59A-3.254 (emphasis added). This rule created a non-delegable duty to provide non-
negligent medical care and hospital services to Plaintiffs.
71. Pursuant to Rule 59A-3.2085(8), Florida Administrative Code, when a
hospital contains an obstetrical department, it “shall [be]...operated to provide complete
and effective care for each patient.” Courts have held that Rule 59A-3.2085 imposes non-
delegable duties on hospitals. See Wax v. Tenet Health Sys. Hosps., Inc., 955 So. 24.1, 9
(Fla. Dist. Ct. App. 2006)(finding that Rule 59A-3.2085 imposed a non-delegable duty on
a hospital to provide anesthesia services to its surgical patients that are consistent with
established standards, and that such duty could not be avoided by delegating the services
to independent contractors). In this case, Rule 59A-3.2085(8) created a non-delegable duty
to provide non-negligent obstetrical services.
72. As asserted with specificity in Paragraphs 66 and 72 of Plaintiff's Second
Amended Complaint, Defendant, PGH, BIRMAN, EDOUARD, SANTINI, MACHAN,
RATHBUN, as well as other physicians failed to adequately and non-negligently care for
and treat Ms. Nguyen while at PGH. The Defendant’s collective failure resulted in MAI
21TUYET NGUYEN suffering a wrongful death, significant and permanent injuries to
KADEN NGUYEN, and constitutes negligent services. As such, Defendant, PGH, is
responsible and liable for their actions due to the fact that the Defendant hospital cannot
delegate away liability for rendering negligent services to Plaintiffs pursuant to Rule 59A-
3.2085(8).
73. Section 766.110, Florida Statutes, states that hospitals “have a duty to assure
comprehensive risk management and the competence of their medical staff and personnel
through careful selection and review, and are liable for a failure to exercise due care in
fulfilling these duties.” This statute makes it clear that a hospital is liable for its failure to
exercise due care in fulfilling its duties where such failure is a proximate cause of injury to
a patient.
74. Federal agencies have created regulations for all hospitals receiving
Medicare and Medicaid benefits. Section 482 identifies the conditions of participation for
hospitals in the Medicare program. Section 482.12(e), states that “[t]he governing body
must be responsible for services furnished in the hospital whether or not they are furnished
under contracts. The governing body must ensure that a contractor of services (including
one for shared services and joint ventures) furnishes services that permit the hospital to
comply with all applicable conditions of participation and standards for the contracted
services.” Section 482.22 further states that hospitals “must have an organized medical
staff that operates under bylaws approved by the governing body, and which is responsible
for the quality of medical care provided to patients by the hospital.”
75. These laws require hospitals to establish qualifications for medical staff
privileges at the hospital, a process for considering applications by physicians for medical
staff privileges as well as a process for the renewal or revocation of those privileges. Such
22regulations impose various non-delegable duty on Defendant, PGH, for the negligence of
independent contractors. See Stewart v. Stamford Radiological Assocs., Pc, 2008 WL
344610, at *4 (Conn. Super. Ct. Jan. 22, 2008) (wherein a Connecticut court concluded
that the regulatory language appeared to “create a question of fact” and denied the
defendants motion for summary judgment.); Hinojosa v. Perez, 214 F. Supp. 703, 705
(holding that regulations did not create a basis for federal question jurisdiction because
regulations provided an alternative theory for liability under state law.).
76. — Florida’s common law (ie., judge-made law), should recognize that
hospitals owe a non-delegable duty to their patients to provide non-negligent care based on
federal regulations. Simply stated, Florida courts should find that if federal law has required
hospitals to provide non-negligent care and be responsible for the conduct that occurs
within the hospital, then Florida common law will require hospitals to comply with their
federal obligations by imposing a non-delegable duty upon the hospitals.
77. For all the foregoing reasons premised on Florida statutes, regulations and
common law, Plaintiff respectfully requests this court deny Defendant PGH’s Motion for
Summary Judgment with regard to non-delegable duty.
JOINT VENTURE AND/OR PARTNERSHIP BETWEEN
PGH AND DR. EDQUARD
78. The existence of a joint venture is an issue to be determined by the trier of
fact. Navarro v. Espino, 316 So. 2d 646 (Fla. 3d DCA 1975). See also, Florida Rock and
Sand Co. v. Cox, 344 So.2d 1296 (Fla. 3d DCA 1977); Knepper v. Genstar, Corp., 537
So.2d 619 (Fla. 3d DCA 1988).
79. A joint venture is a legal relationship similar to a partnership but more
limited in scope. See Kislak v. Kreedian, 95 $0.24 510, 514-15 (Fla. 1957). A joint venture
“is created when two or more persons combine their property or time or a combination
23thereof in conducting some particular line of trade or for some particular business deal.”
Id. at 515. This relationship must arise out of a contract which contains the following
elements: “(1) a community of interest in the performance of the common purpose, (2)
joint control or right of control, (3) a joint proprietary interest in the subject matter, (4) a
right to share in the profits and (5) a duty to share in any losses which may be sustained.”
Jd. A contract establishing a joint venture can be either express or implied. /d. at 514. In
fact, the Florida Supreme Court in Kis/ak, a case relied upon by both parties in this matter,
held as follows:
As between the parties, a contract is essential to create the
relation of joint adventurers. The contract need not, however,
be expressed or be embodied in a formal agreement, or
particularly specify or define the rights and duties of the
parties. It may be inferred from the conduct of the parties or
from facts and circumstances which make it appear that a
joint enterprise was in fact entered into. The consideration
for a contract of joint adventure may be a promise, express or
implied, to contribute capital or labor to the enterprise. 30
Am.Jur. Joint Adventures Sec. 9, p. 681.
Id. at 515. Emphasis added.
80. Existence of joint venture may be implied or inferred from conduct of
parties or from acts and circumstances which in fact make it appear that they are
participants in joint venture. Florida Tomato Packers, Inc. v. Wilson, 296 So.2d 536 (Fla.
3d DCA 1974).
81. It has been universally held that while joint venture and partnership are
separate legal relationships, both relationships are governed by the same rules of law. Id.
The laws governing partnership are applicable to joint ventures. Although the question of
whether certain facts constitute a partnership is a “question of law”, whether the essentials
of a partnership exist is a “question of fact” to be determined by the circumstances of each
case. Nahmod v. Nelson, 147 Fla. 564, 3 So.2d 162 (Fla. 1941).
2482. Plaintiff contends that the available evidence in this case clearly indicates that a
question of fact exists as to whether PGH was engaged in a joint venture, and in
establishing, maintaining and promoting maternity and obstetrical services. The available
evidence illustrates a manifest pattern of conduct which demonstrates a question of fact as
to the two entities were engaged in a joint venture and/or partnership throughout their care
and treatment of MAI TUYET NGUYEN and KADEN NGYEN.
83. First, Defendant PGH held itself out as being equipped with a labor and
delivery department which could handle the emergency needs of pregnant women and
infants. www.plantationgeneral.com/service/maternity, August 6, 2019.
84. Plantation General Hospital also advertises free physician referrals for
delivering doctors:
Have questions?
Call us to learn more about maternity services or receive a free physician referral.
85. Delivering physicians, such as Dr. Edouard, were credentialed in
accordance with PGH’s Medical Staff Policies. See Plantation General Hospital’s medical
bylaws filed under separate cover. Through its bylaws, which are unique to each hospital
and chosen by the hospital, the hospital had the ability to control the actions of its
physicians.
2586. Plantation General Hospital’s own website advertises that they partner with
physicians and other providers who have the necessary qualifications and credentials to
provide quality, safe, and compassionate medical care to the community:
Centralized Credentialing
Providing quality, patient-centered care is our mission at Plantation General Hospital. That's
why it’s important that we partner with physicians and other medical professionals (Providers)
who have the necessary qualifications and credentials to provide quality, safe and
compassionate medical care to our community.
Credentialing and Privileging
Our rigorous credentialing process follows Federal and State regulatory requirements, as well
as accreditation standards for verifying the education, training, licensure and current
competence in order to ensure that privileges are only granted to qualified Providers.
Contact Us
If you have any questions or concerns regarding physician credentialing, please contact our
Medical Staff Office.
Pam ga] (yaa
87. PGH’s core values advertised on their website place a strong emphasis on
partnerships: In 2009 and 2010, Plantation General Hospital updated its core values,
which focus on the relationships, friendships and partnerships that drive service
excellence, positive outcomes _and_the mission and values of HCA, Plantation
General’s parent company. Working with the Plantation General team of employees, a
new culture was developed based on the “ships.” The Core Values are the following 5
ships: Workmanship, ownership, partnership, leadership, and stewardship.”
https://plantationgeneral.com/patients/core-values.dot, August 6, 2019.
2667. Furthermore, PGH provided Dr. Edouard all equipment, supplies, and
resources available for the treatment of patients. All appearances suggested that the labor
and delivery department was an integral part of the institution. Both parties benefited from
this arrangement. The evidence supports that Dr. Edouard was provided to Mrs. Nguyen
by PGH and together they worked as a team, along with the other physicians, nurses, and
staff assigned by PGH, in order to render medical services to Mrs. Nguyen. See deposition
of Dr. Edouard pgs. 58:18-59:13, 21:2, filed under separate cover. Dr. Edouard testified
that they had a team approach, where he relied on the nurses and technicians at PGH in
providing medical care and treatment to patients such as Mai Tuyet Nguyen. Jd.
68. Plantation General Hospital then benefited by billing approximately
$10,609.00 for Mai Tuyet Nguyen’s labor and delivery and approximately $1,104.00 for
OB/GYN care & delivery. See Plantation General Hospital’s billing records filed under
separate cover.
69. During the deposition of Dr. Edouard, he testified that he pays money to
Plantation General Hospital relative to medical services he provides. See Deposition of
Dr. Edouard pg. 139:120-122, filed under separate cover.
70. Defendant’s Motion fails to set forth any facts or argument at all which
would support summary judgment as to Plaintiff's joint venture and partnership counts.
Defendant merely states that because Dr. Edouard was not employed by PGH, this court
should grant summary judgment.
71. Rule 1.510 governs summary judgment procedure. Rule 1.150(c) requires
that a motion for summary judgment must “state with particularity the grounds upon which
it is based and the substantial matters of law to be argued” and mandates that the moving
party identify the admissible evidence upon which it relies. See Fla. R. Civ. P. 1.150(C).
27The moving party’s summary judgment material must be “admissible in evidence.” Fla. R.
Civ. P. 1.510(c); see also Bifulco v. State Farm Mut. Auto. Ins. Co., 693 So.2d 707 (Fla.
4th DCA1997) (holding that a trial court should not have considered unsworn and
uncertified documents attached to a summary judgment motion); see In re Forfeiture of
1998 Ford Pickup, 779 So.2d 450, 451 (Fla. 2d DCA 2000) (reversing summary judgment
and concluding that the trial court entered summary judgment without the benefit of any
facts when it relied on an insufficient affidavit).
72. tis fundamental that 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 Nard, Inc. v. Devito Contr.
& Supply, Inc., 769 So.2d 1138, 1140 (Fla. 2d DCA 2000); Snyder v. Cheezem Dey. Corp.,
373 So.2d 719 (Fla. 2d DCA 1979). The courts have held that cases involving contractual
disputes are particularly unsuited for summa
Preview
Filing # 93780137 E-Filed 08/07/2019 10:12:09 AM IN THE CIRCUIT COURT OF THE SEVENTEENTH JUDICIAL CIRCUIT, IN AND FOR BROWARD COUNTY, FLORIDA. SEAN DOMNICK, as Guardian Ad Litem for CASE NO.: CACE-14-014218 Div: 04 the minors, KYLIE NGUYEN and KADEN NGUYEN, KHAI NGUYEN, individually, and as Personal Representative of the Estate of MAI TUYET NGUYEN, deceased, and on behalf of KRISTEN HUYNH, KYLIE NGUYEN, KADEN NGUYEN, the surviving children of MAI TUYET NGUYEN, and as the natural parent of KADEN NGUYEN, a minor, Plaintiffs, PLANTATION GENERAL HOSPITAL, L.P. d/b/a PLANTATION GENERAL HOSPITAL AND DORI RATHBUN Defendants. / PLAINTIFF’S RESPONSE IN OPPOSITION TO PLANTATION GENERAL HOSPITAL’S MOTION FOR SUMMARY JUDGMENT COMES NOW the Plaintiff, SEAN DOMNICK, as Guardian Ad Litem for the minors, KYLIE NGUYEN and KADEN NGUYEN, KHAI NGUYEN, individually, and as Personal Representative of the Estate of MAI TUYET NGUYEN, deceased, and on behalf of KRISTEN HUYNH, KYLIE NGUYEN, KADEN NGUYEN, the surviving children of MAI TUYET NGUYEN, and as the natural parent of KADEN NGUYEN, a minor, by and through the undersigned, and hereby responds in opposition to Defendant, PLANTATION GENERAL HOSPITAL’S Motion for Summary Judgment as to Non- Delegable Duty, Vicarious Liability, Partnership, and Joint Venture Claims of Defendant PLANTATION GENERAL HOSPITAL (hereinafter “Plantation General Hospital” or 1 *** FILED: BROWARD COUNTY, FL BRENDA D. FORMAN, CLERK 08/07/2019 10:12:08 AM.****“PGH”). This Response is made upon applicable statutory and case law, all as fully set forth below. INTRODUCTION 1, This is a medical malpractice case wherein Plaintiffs contend that Defendant, PLANTATION GENERAL HOSPITAL, L.P., d/b/a PLANTATION GENERAL HOSPITAL, by and through its alleged employees, agents, and servants were negligent in the care of MAI TUYET NGYEN and KADEN NGYUEN, resulting in the death of MAI TUYET NGYEN and severe and permanent injuries to KADEN NGYUEN, including but not limited to a hypoxic brain injury. 2. In Counts I and II of Plaintiff's Second Amended Complaint, Plaintiff has asserted that PLANTATION GENERAL HOSPITAL had a non-delegable duty to provide medical and nursing care in accordance with the general standard of care in pre-delivery, post-delivery, and neonatal care and treatment to MAI TUYET NGUYEN and/or KADEN NGUYEN. Second Amended Complaint § 62, 68. 3. In Counts III and IV of Plaintiff's Second Amended Complaint, Plaintiff has asserted that PGH, by and through its employees, agents, and/or apparent agents, to include but not limited to, BIRMAN, EDOUARD, SANTINI, MACHAN, RATHBUN, were negligent in their care and treatment of MAI TUYET NGUYEN and KADEN NGUYEN, a minor, and that as a direct and proximate result of that negligence, MAI TUYET NGUYEN suffered a wrongful death and KADEN NGUYEN suffered significant and permanent injuries to include a hypoxic brain injury. Second Amended Complaint § 79, 84. 4. In Counts XXI-XXII of the Second Amended Complaint, Plaintiff has asserted PGH is liable for the negligent acts of Dr. Edouard, because at all times allegedherein PLANTATION GENERAL HOSPITAL and Dr. Edouard were engaged in a partnership and joint venture with each other, as they had combined their resources or efforts and agreed to undertake the medical care of MAI TUYET NGUYEN and KADEN NGUYEN, a minor, which included contributions by each of property, money, and/or services, they had a mutuality of interest in both profits and losses, and they agreed to share in the assets and liabilities of obstetrical, maternity, labor, delivery and other services provided at PLANTATION GENERAL HOSPITAL. 5. On June 27, 2019, PGH filed and served a Motion for Partial Summary Judgment, wherein they moved this Court to grant partial summary judgment of the non- delegable, vicarious liability, partnership, and joint venture claims of Plaintiff against PGH for the negligence of Dr. Edouard. 6. Although PGH has averred that the above issues are no longer materially at issue, the available evidence in this matter avers contrariwise, as the evidence demonstrates that (1) PGH had a non-delegable duty to provide non-negligent medical services to Ms. Nguyen who was admitted to PGH emergently and who was assigned doctors, nurses, and staff by PGH and PGH alone, (2) that Dr. Edouard, BIRMAN, SANTINI, MACHAN, and RATHBUN were selected by PGH and assigned to Ms. Nguyen by PGH, where they acted as employees, agents and/or apparent agents of PGH throughout their care and treatment of Plaintiff, and (3) PGH and Dr. Edouard were engaged in a joint venture and partnership with respect to their care and treatment of Ms. Nguyen. 7. Specifically, the available evidence in this matter clearly establishes that Plantation General Hospital aggressively advertises to the community in order to attract patients to its facility. The message PGH projects to the public is that they offer first-classmaternity services and childbirth experiences, and that their facility is equipped with sophisticated medical technology. PGH advertises as having 24/7 OB/GYN on-site for laboring mothers and skilled maternity staff capable of handling the medical needs of patients such as Mai Tuyet Nguyen. These messages were heard by Mr. and Ms. Nguyen, who, in reliance on these advertisements, decided they wanted to deliver her child there. See Affidavit of Khai Nguyen filed under separate over. The Nguyens then contacted Plantation General Hospital in search of an OB/GYN from the hospital who could deliver her child there, at which time Plantation General Hospital provided them with Dr. Edouard’s information. /d. It was based on PGH’s referral that Ms. Nguyen began seeing Dr. Edouard for the purpose of delivering her second child at PGH. Id. 8. Furthermore, all of the available evidence demonstrates that PGH and Dr. Edouard were engaged in a joint venture and/or partnership in providing obstetrical care and treatment and delivery services to patients at PGH. In fact, Plantation General Hospital outwardly advertises as “(p]artner(ing) with physicians and other medical professionals who have the necessary qualifications and credentials to provide quality, safe, and compassionate medical care to our community.” They also advertise the following to the community: “Our rigorous credentialing process follows Federal and State regulatory requirements, as well as accreditation standards for verifying the education, training, licensure, and current competence in order to ensure that privileges are only granted to qualified providers.” The evidence supports that Dr. Edouard was provided to Mrs. Nguyen by PGH and together they worked as a team, along with the other physicians, nurses, and staff assigned by PGH, in order to render medical services to Mrs. Nguyen. Plantation General Hospital then benefited by billing approximately $10,609.00 for Mai Tuyet Nguyen’s labor and delivery and approximately $1,104.00 forOB/GYN care & delivery. See Plantation General Hospital’s billing records filed under separate cover. 9. Moreover, PGH’s Motion for Summary Judgment fails to establish that Dr. Edouard was not acting as an employee, agent, and/or apparent agent of Plantation General Hospital when rendering medical care to Mrs. Nguyen. To the contrary, all of the available evidence supports that at all times material hereto, Mrs. Nguyen received care and treatment from medical providers who were either employees, agents and/or apparent agents of PGH, including Dr. Edouard. Specifically, the facts of this case demonstrate that Dr. Edouard was provided to Mrs. Nguyen by PGH and PGH alone. The Nguyens were led to believe Dr. Edouard was providing OB/GYN care on behalf of the hospital. See affidavit of Khai Nguyen filed under separate cover. On the date the negligence occurred, Dr. Edouard was contacted by the PGH to present to the hospital, not Mrs. Nguyen. Dr. Edouard did not have discretion when or how to provide medical services to Mrs. Nguyen. Rather, he arrived at PGH at the direction of the hospital. PGH also had the right to exercise control over the actions of its physicians, including Dr. Eduardo. Through its bylaws, which are unique to each hospital and chosen by the hospital, the hospital had the ability to control the actions of Dr. Eduardo. A principal should be estopped to deny the authority of an agent when the principal permitted an appearance of authority in the agent and, in so doing, justified a third party's reliance upon that appearance of authority as if it were actually conferred upon the agent. Roessler v. Novak, 858 So.2d 1158, 1162 (Fla. 2d DCA 2003), citing Irving v. Doctors Hosp. of Lake Worth, Inc., 415 So. 2d 55, 59 (Fla. 4th DCA 1982); Liberty Mut. Ins. Co. v. Sommers, 472 So. 2d 522, 524 (Fla. Ist DCA 1985).10. In addition to the arguments stated above, Plaintiff contends that Defendant’s Motion for Summary Judgment should be denied as it is entirely unsupported by summary judgment evidence. Defendant has failed to meet their burden as the moving party to show conclusively the complete absence of any genuine issue of material fact. Defendant has failed to provide any record evidence whatsoever for the majority of assertions made in its Motion. AJH Prop. Investment LTD. v. SunTrust Bank 89 So. 3d 948 (Fla. DCA 3d 2012). ll. It is also important to note that the Supreme Court of Florida has amended the Florida Standard Jury Instructions, establishing a more liberal standard for vicarious liability agency instructions. As of September 2018, the agency standard instruction is as follows: “Whether [person] [business] is an independent contractor is to be determined on the basis of all of the circumstances of the parties’ dealings with each other and not on the basis of the labels used by them.” See Fla. Standard Jury Instructions 402.9(a). 12. In support of the position that Defendant’s Motion for Summary Judgment should be denied, Plaintiff presents as follows: FACTUAL BACKGROUND 13. In late 2007, MAI TUYET NGUYEN and Khai Nguyen wished to have their first child together. See Affidavit of Khai Nguyen filed under separate cover. The couple decided they wanted to have their child delivered at Plantation General Hospital because the hospital advertised as having excellent delivery services. Jd. PGH said that they provided a 24/7 OB/GYN on-site for laboring mothers, which made the Nguyen’s feel safe and was part of the reason they chose PGH to deliver their child. Jd. Plantation General Hospital’s advertisement provided a phone number to call for a free physician referral and more information about maternity services. Jd. The Nguyen’s contacted Plantation GeneralHospital for the name of one of their OB/GYNs who could deliver their child there, and the hospital provided them with Dr. Edouard’s information. /d. 14. Based on the hospital’s referral, Mrs. Nguyen began seeing Dr. Edouard in late 2007. Mrs. Nguyen then became pregnant with their daughter, Kylie, in early 2008. Kylie was born at Plantation General Hospital on October 29, 2008, and delivered by Dr. Edouard. 15. In July 2012, Mai was pregnant with her third child, KADEN NGUYEN (“Kaden”). 16. On the evening of July 25, 2012, at 9:35 P.M., MAI TUYET NGUYEN presented to Plantation General Hospital with signs of labor and complaints of abdominal pain and decreased fetal movement. 17. A bedside ultrasound performed at 10:40 P.M., indicated a large blood clot in her uterus. 18. RATHBUN, the radiology technician at PLANTATION GENERAL HOSPITAL, produced images and then reviewed the results from the ultrasound. 19. PGH and RATHBURN failed to ensure that Mrs. NGUYEN’s stat ultrasound evidencing a critical finding of a hemorrhage was transmitted to an on-call radiologist for immediate interpretation. 20. The ultrasound was then interpreted by ROBERTA SANTINI, M.D. 21. The ultrasound contained a dense echogenic material throughout the gestinal sac, which was strongly suggestive of a massive hemorrhage. Due to a series of failures to communicate among the health care providers, the blood clot was not reported to the health care providers.22. PGH contacted Dr. Edouard via telephone and he provided orders to admit MAI TUYET NGUYEN at approximately 11:35 P.M., with the diagnosis of intrauterine pregnancy and non-reactive fetal heart rate monitor. EDOUARD ordered MAI TUYET NGUYEN to receive 25 micrograms of vaginal Cytotec every three (3) hours until active labor commenced. 23. Cytotec has not been approved by the FDA as an inducing agent for labor, and has a black box warning which cautions that use of the drug as an inducing agent can result in birth defects, abortion, premature birth and uterine rupture. 24. At all times material hereto, the Cytotec administered to MAI TUYET NGUYEN was stored, dispensed and provided by Plantation General Hospital for use in inducing labor. 25. At 2:05 A.M., on July 26, 2012, Pamela Nelson, RN, administered 25 mg of Cytotec vaginally to MAI TUYET NGUYEN. 26. Prior to being administered the Cytotec, MAI TUYET NGUYEN was not told about the risks associated with the use of Cytotec, or the fact that it was not approved by the FDA as a labor inducing agent. 27. Fetal hearing monitoring indicated variable decelerations indicative of umbilical cord compression. 28. At 5:30 A.M., another dosage of 25 mg of Cytotec was administered vaginally by Pamela Nelson, RN. 29. Fetal heart monitoring at approximately 8:00 A.M. continued to be non- reassuring with minimal variability, absent accelerations and variable decelerations indicative of fetal compromise.30. At approximately 8:35 A.M., Jean Reynolds, RN, preformed a vaginal exam which revealed vaginal bleeding. Dr. EDOUARD was notified at 8:40 A.M. of the bleeding, and was told to come to Plantation General Hospital. 31. Although Dr. EDOUARD informed Jean Reynolds, RN that he was only ten (10) minutes away from Plantation General Hospital, he did not arrive at bedside until C-Section delivery was underway, at approximately 9:08 A.M. 32. At 8:46 A.M., MAI TUYET NGUYEN was administered oxygen. 33. At 8:55 A.M., Jean Reynolds, RN called Dr. EDOUARD and informed him the MAI TUYET NGUYEN was completely dilated and wanting to push. 34. At 9:00 A.M., MAI TUYET NGUYEN became unresponsive. A Rapid Response Team was called, however a Code Blue was not called. 35. Although a request for a Rapid Response Team was made at 9:00 A.M., an overhead page for an available OB/GYN physician was not executed until 9:04 A.M. 36. BIRMAN arrived at MAI TUYET NGUYEN’s bedside at 9:05 A.M., and attempted a forceps delivery, which failed. 37. Despite MAI TUYET NGUYEN being non-responsive since 9:00 A.M., a Code Blue was not called until 9:06 A.M. 38. By 9:07 A.M. MAI TUYET NGUYEN had no palpable pulse, and was in asystole. MAI TUYET NGUYEN was then intubated. 39. At 9:10 A.M., the fetal heart rate was documented in the range of 50-59 beats per minutes, indicative of severe fetal distress and compromise. Despite the same, a STAT C-Section was not called until 9:13 A.M. 40. KADEN NGUYEN was delivered via C-Section by BIRMAN at 9:14 A.M. 41. MACHAN was the attending certified registered nurse anesthetist (CRNA).42. After KADEN NGUYEN was delivered, Dr. EDOUARD arrived at bedside and assisted with delivery of the placenta. 43. The uterus was placed back into the abdomen and the abdominal incision was left open while CPR efforts continued at MAI TUYET NGUYEN’s bedside. 44, Despite continued CPR and resuscitative efforts, MAI TUYET NGUYEN remained unresponsive. 45. MAI TUYET NGUYEN was pronounced dead at 9:41 A.M. on July 26, 2012. 46. Upon delivery, KADEN NGUYEN was noted to be bradycardic, blue, floppy, and not breathing, indicative of fetal compromise and hypoxia/anoxia. Despite this presentation, cord blood gases were not obtained or ordered. 47. KADEN NGUYEN 's one (1) minute APGAR was a 1. 48. KADEN NGUYEN was intubated at three (3) minutes of life. Despite intubation and aggressive resuscitative efforts, his AGP ARs remained abnormally low with an APGAR of 3 at five (5) minutes, and an APGAR of 4 at ten (10) minutes. 49. KADEN NGUYEN was admitted in the Neo-Natal Intensive Care Unit (NICU) in critical condition, and with an initial diagnosis of hypoxemia, perinatal depression, respiratory distress and pulmonary hypertension. 50. In the early morning of July 28, 2012, KADEN NGUYEN suffered prolonged oxygen desaturations, and drop in mean blood pressure. As a result, KADEN NGUYEN was transferred to Joe DiMaggio Children's Hospital. 51. These injuries sustained by KADEN NGUYEN were preventable, foreseeable, and will continue indefinitely into the future LEGAL STANDARD FOR SUMMARY JUDGMENT 1042. Summary Judgment is proper only if no genuine issue of material fact exists, and if the moving party is entitled to a judgment as a matter of law. Volusia Cnty v. Aberdeen at Ormond Beach, L.P., 706 So.2d 126, 130 (Fla. 2000). 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.) 43. The principles which govern the use of summary judgment are well settled. See Albelo v. Southern Bell, 682 So.2d 1126, 1129 (Fla. 4th DCA 1996); See also Romero v. 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 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 v. Florida Dept. of Transp., 655 So.2d 1164 (Fla. 4th DCA 1995). ll44. 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. A/belo, 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” is 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. 5th DCA 1994)(Summary judgment is 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). 45. Inruling 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. Ist DCA 2006); see also Sierra v. Shevin, 767 So.2d 524 (Fla. 3d DCA 122000)(“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.”). 46. 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. 4th 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 employment discrimination cases but rejected the federal approach for the “well entrenched” Florida Standard. /d. 47. The Third District Court of Appeals has recently reversed a trial judge under an employment issue. The court concluded a genuine issue of material fact existed as to whether there was an employment relationship and thus precluded summary judgment. Fernandez v. Sandy Lane Residential, 112 So.3d 610 (Fla. 3d DCA 2013). The Third District Court of Appeals has also recently ruled that “summary judgment is proper only if not genuine issue of material fact exists and if the moving party is entitled to a judgment as a matter of law.” Daneri v. BCRE Brickell, LLC, 79 So.3d 91 (Fla. 3d DCA 2012). In South Florida Coastal Electric, Inc. v. Treasures on the Bar Il Condo Ass’n, Inc., the court ruled that an agency relationship is generally a question of fact and facts supporting agency will prevent summary judgment. 89 So.3d 264 (Fla. 3d DCA 2012). 48. It is Plaintiff's position that Defendant has failed to meet the burden of conclusively demonstrating the absence of genuine issues of material fact with regards to Plaintiff's claims against PGH. PGH has merely presented a cursory summary of their 13defensive position without any support from either authenticated evidence or supporting affidavits. In contrast, Plaintiff has submitted and relied upon proper summary judgment evidence which unequivocally establishes that the matters contemplated are genuinely at issue. It is Plaintiff's position, therefore, that granting of summary judgment would be improper. BREACH OF NON-DELEGABLE DUTY Florida law recognizes a claim for breach of non-delegable duty, and Plaintiffs Counts for such against Defendant, PGH, are not subject to summary judgment. 56. | Anon-delegable duty may arise from a statute, regulation, common law, or contract. Pope v. Winter Park Healthcare Grp., Ltd., 939 So.2d 185, 188 (Fla. 5th DCA 2006) (emphasis omitted) (citing Dixon v. Whitfield, 654 So.2d 1230, 1232 (Fla. Ist DCA 1995)). In Counts I-II of Plaintiff's Second Amended Complaint, Plaintiff has alleged that Defendant PGH has a non-delegable to provide non-negligent medical care pursuant to (1) common law; (2) Florida Statutes, (3) Florida Administrative Rules, (4) Federal Medicaid and Medicare Regulations, (5) and express contract. 57. The law is well-settled in Florida regarding the issue of non-delegable duties with respect to the duties and responsibilities of state-licensed hospitals. Stated simply, the performance of a duty may be delegated to a third party; however, liability for the negligent performance of that duty may not be delegated away to a third party. The policy behind such a rule contemplates that certain duties that are of utmost importance— namely, the protection of people placed in positions of vulnerability coupled with a relationship of special trust. See e.g., Irving v. Doctors Hospital of Lake Worth, Inc. 415 So.2d 55 (Fla. 4th DCA), rev. denied, 422 So.2d 842 (Fla. 1982) (stating that the public policy surrounding the issue of non-delegable duty in a hospital revolves, at least in part, upon the helplessness of the plaintiff in an emergency setting); 1458. Under the law defining a non-delegable duty, a party who has an obligation to perform acts or who has undertaken certain duties has the obligation to perform those acts and duties in a non-negligent fashion. If the party chooses to delegate those acts to a third party—i.e., an independent contractor—the original party remains liable for any negligence of that third party—regardless of whether the negligent act was performed by an agent or independent contractor. See generally Newbold-Ferguson v. AMISUB (North Ridge Hosp.), Inc., 85 So. 3d 502 (Fla. 4th DCA 2012); Shands Teaching Hosp. & Clinic, Inc. v. Juliana, 863 So. 2d 343, 349 (Fla. lst DCA 2003); /rving v. Doctor's Hosp. of Lake Worth, Inc., 415 So.2d 55 (Fla. 4th DCA 1982) (holding that where the physician is not privately retained by the patient and his activities are controlled by the hospital, courts have held hospitals liable under theories of non-delegable duty). 59. Under the common law, non-delegable duties typically arise out of the performance of an “inherently dangerous activity” or out of the creation of an “inherently dangerous condition.” During the recent deposition of Dr. Joan McCarthy of Tampa General Hospital in a separate matter, she acknowledged the great importance and dangers of delivering babies: Mr. Diez-Arguelles: Is it an important function to deliver babies? Dr. McCarthy: Yes. Mr. Diez-Arguelles: Are there dangers in delivering babies? (Objection) Dr. McCarthy: Yes. Yes. Mr. Diez-Arguelles: And then when we're delivering babies, you would agree that we need to adhere to standards of safety, right? (Objection) 1SDr. McCarthy: Yeah, I -- Mr. Diez-Arguelles: Is that fair, ma'am? Dr. McCarthy: Yes. It's important to be safe. Mr. Diez-Arguelles: Okay. Because if you're not safe, an injury can occur, right? Dr. McCarthy: Right. Mr. Diez-Arguelles: So you want to exercise precautions, right? (Objection) Dr. McCarthy: Yes. See Deposition of Joan McCarthy, M.D. at 46:21-47:25, filed under separate cover. 56. Florida courts have already recognized that hospitals could be vicariously liable for negligence of independent contractor physician. The seminal case on non- delegable duty is /rving v. Doctor's Hosp. of Lake Worth, Inc., 415 So. 2455 (Fla. 4th DCA 1982). In Irving, the Fourth District Court of Appeal reversed a trial court’s jury verdict for failing to instruct a jury on the issue of non-delegable duty. See id. The Plaintiff in Irving was presented to the emergency department and the treating physician was not a hospital employee. Jd. The Court upheld the non-delegable duty owed by the hospital for care rendered by an emergency room physician who was an independent contractor, reasoning: [the plaintiff] took her child to the emergency room of [the hospital] for treatment. As far as she was concerned, all of the personnel furnished in the emergency room were hospital employees. The hospital held itself out as affording emergency treatment and the jury could well find that [the plaintiff] was dealing with the hospital. Thus, [. . .] the evidence in this case would justify a jury verdict in [the plaintiff s] favor on the theory of apparent authority whether [the treating physician was] an employee or an independent contractor. Failure to so instruct the jury deprived them of the court's advice on an important aspect of [the 16plaintiff's case]. Indeed, that oversight might well account for the adverse verdict. 57. The court then focused on the jury instructions given by the Trial Court noting “[t]he thrust of [the plaintiff's requested] instruction is that one may not escape his contractual liability by delegating performance under a contract to an independent contractor. The contracting party remains liable for the negligent performance of the contract whether it be performed for him by his employee or an independent contractor.” Id. at 59. Following this logic, the /rving Court pointed out in footnote [2]: Having undertaken the treatment of the patient, which including providing physicians to care for the patient, the hospital was under a duty to_do so effectively and_patients entering the hospital through the emergency department could safely assume that the treating doctors were acting on behalf of the hospital providing the care. It was not incumbent on the patient to be aware of each and every private contract between the hospital and the physicians. Jd. at 60-61. (Emphasis added). 58. After the /rving decision, the Fifth District Court of Appeal addressed the issue arising out of claims non-delegable duty in Orlando Reg’! Med. Ctr. v. Chmielewski, 573 So. 2d 876 (Fla. Sth DCA 1990), abrogated on other grounds, Boulis v. Fla. Dep't of Transp., 733 So.2d 959 (Fla. 1999). In Chmielewski, the facts revealed a patient entered the emergency room ofa local hospital to receive treatment, and as a result of the treatment which alleged to have been negligent was injured. /d. at 878. 59. The Fifth District Court ruled that the trial court committed no error, noting that the jury instruction given in Chmielewski, was “essentially a correct statement of the law.” Jd. That jury instruction, which began with [then] Florida Standard Jury Instruction 3.3b(2) followed by the bracketed independent contractor instruction of 3.3b(1), also included an instruction which stated: 17Even if you were to find that Dr. Aparicio was an independent contractor, the hospital would nevertheless be responsible for any negligence on his part if Mr. Chmielewski went to the hospital for hospital treatment and the Defendant hospital undertook to treat him for a charge and to furnish doctors and staff to render that treatment. /d. at 878. 60. — After the Chmielewski opinion, the First District Court of Appeal decided Shands Teaching Hosp. & Clinic v. Juliana, 863 So. 2d 343 (Fla. Ist DCA 2003). In Juliana, the court found that the hospital was liable for the negligent acts of a perfusionist after a child was rushed to through the emergency department and need to have open heart surgery and suffered an injury during the procedure attributable, at least in part, to the acts of the perfusionist. In doing so, the First District Court of Appeal noted the duty could not be delegated since the service was contracted for. The hospital provided the services of the perfusionist. If the hospital had wished for the patient to obtain his own perfusionist it might have been possible to advise the patient that this was his responsibility. This certainly was not done. The fact that the hospital chose to retain the services of the perfusionist as an independent contractor rather than an employee is immaterial in the relationship between the hospital and the patient. /d. Furthermore, in footnote 9 of its opinion, the First District Court of Appeal again stated the basic rule on non-delegable duty for physicians at hospitals: Even when a physician is an independent contractor, however, hospital that “undertake by [express are implied] contract to do for another a given thing” is not allowed to “escape within [in that it’s contract liability to the patient by delegating performance under a contract to an independent contractor (citing to /rving and Chmielewski (internal citations omitted)). 61. — This well settled legal concept of non-delegable duty was more recently reaffirmed in Newbold-Ferguson v. AMISUB (North Ridge Hospital), Inc., 85 So. 3d 502 (Fla. 4th DCA 2012). Newbold-lerguson_was a wrongful death action alleging negligence 18on the part of an emergency room physician and an attempt to hold a hospital liable for that physician's negligence. See id. After the trial court granted a motion to dismiss the plaintiff’ s third amended complaint, the Fourth District Court of Appeals reversed the trial court’s ruling. /d. In doing so, it was explained the public policy purpose behind imposing a non-delegable duty on hospital emergency situations is that: [t]he imposition of a non-delegable duty to provide competent emergency services makes sense, because a patient in an emergency generally has little, if any, control over who will be the treating physician. This is further evidenced by the Hospital’s website where it makes advertisements to the public regarding its medical services and offers these services to the public upon their presentation to the Hospital’s facility. Any patient who then presents to the Hospital is accepting the Hospital’s representations as true. Jd. 62. Florida Standard Jury Instruction 402.9(a)(1) reads, “[W]hen a facility undertakes to perform services, it cannot transfer the obligation to perform those services to an independent contractor and remain responsible for the negligence of his independent contractor.” 63. In the instant case, Defendant, PGH is attempting to delegate away liability the actions of physicians, BIRMAN, EDOUARD, SANTINI, MACHAN, RATHBUN, who were chosen by PGH to provide competent medical care and treatment to Plaintiff. However, based on the holdings in /rving, Newbold, and various other courts, Defendant cannot delegate away liability for the negligence of various physicians, nurses, staff, and employees, whom Defendant selected to provide care and treatment to Plaintiffs, including BIRMAN, EDOUARD, SANTINI, MACHAN, and RATHBUN. 64. In the case at bar, Mai Tuyet Nguyen presented to PGH in need of emergent and/or urgent care. Mrs. Nguyen presented with complaints of abdominal pain and no fetal movement. Upon presentation to the hospital, PGH assigned doctors, nurses, and staff to 19provide Ms. Nguyen with emergent medical care. In fact, Plantation General Hospital billed Mrs. Nguyen for an emergency room and emergency services on the day of her admission, July 25, 2019. See PGH’s billing records filed under separate cover. Mrs. Nguyen did not select any of the medical providers who rendered care to her during her admission to PGH. Based on representations by PGH, as well as her delivering doctor and nurses, the impression was that all medical care and services were being provided by PGH. Jd. 67. Mai Tuyet Nguyen did not participate in selecting the doctors, nurses, or staff who provided medical care to her during her admission to PGH. Instead, these individuals were selected and assigned to her by PGH, and represented to her that they were acting on behalf of PGH while rendering care to her. Accordingly, Plaintiffs have alleged via their Second Amended Complaint that the individuals who rendered care and treatment to PGH were acting as employees, agents and/or apparent agents. Mrs. Nguyen’s delivering doctor, Alex Birman, M.D., was the on-call OB/GYN assigned to her by PGH after her emergency admission to the hospital. Prior to Mrs. Nguyen’s admission on June 25, 2012, she had never met Dr. Birman before. 68. By Defendant’s own admission, they offered OB/GYN on-site for laboring mothers 24/7. www.plantationgeneral.com/service/maternity, August 6, 2019. The on-site OB/GYNs and nurses were the exact providers Plantation General Hospital assigned to provide Mrs. Nguyen with medical care and treatment upon her emergency arrival to PGH on July 25, 2012. 69. Further, Defendant has provided zero evidence that the medical providers who rendered care to MAI TUYET NGUYEN and/or KADEN NGUYEN were independent contractors. Conversely, all of the evidence supports that the medical 20professionals who provided care to MAI TUYET NGUYEN and her son were acting under their employment by PGH. 70. Florida's Administrative Code imposes numerous burdens on hospitals, reflecting the State's belief that it is the hospital who ultimately bear responsible for an activity as crucial as the provision of medical care and treatment. Rule 59A-3.254, Florida Administrative Code, sets forth that “each hospital shail develop and adopt policies and procedures to ensure an initial assessment of the patient's physical, psychological and social status, appropriate to the patient's developmental age...to determine the need and type of care or treatment required, and the need for further assessment.” Fla. Admin. Code r. 59A-3.254 (emphasis added). This rule created a non-delegable duty to provide non- negligent medical care and hospital services to Plaintiffs. 71. Pursuant to Rule 59A-3.2085(8), Florida Administrative Code, when a hospital contains an obstetrical department, it “shall [be]...operated to provide complete and effective care for each patient.” Courts have held that Rule 59A-3.2085 imposes non- delegable duties on hospitals. See Wax v. Tenet Health Sys. Hosps., Inc., 955 So. 24.1, 9 (Fla. Dist. Ct. App. 2006)(finding that Rule 59A-3.2085 imposed a non-delegable duty on a hospital to provide anesthesia services to its surgical patients that are consistent with established standards, and that such duty could not be avoided by delegating the services to independent contractors). In this case, Rule 59A-3.2085(8) created a non-delegable duty to provide non-negligent obstetrical services. 72. As asserted with specificity in Paragraphs 66 and 72 of Plaintiff's Second Amended Complaint, Defendant, PGH, BIRMAN, EDOUARD, SANTINI, MACHAN, RATHBUN, as well as other physicians failed to adequately and non-negligently care for and treat Ms. Nguyen while at PGH. The Defendant’s collective failure resulted in MAI 21TUYET NGUYEN suffering a wrongful death, significant and permanent injuries to KADEN NGUYEN, and constitutes negligent services. As such, Defendant, PGH, is responsible and liable for their actions due to the fact that the Defendant hospital cannot delegate away liability for rendering negligent services to Plaintiffs pursuant to Rule 59A- 3.2085(8). 73. Section 766.110, Florida Statutes, states that hospitals “have a duty to assure comprehensive risk management and the competence of their medical staff and personnel through careful selection and review, and are liable for a failure to exercise due care in fulfilling these duties.” This statute makes it clear that a hospital is liable for its failure to exercise due care in fulfilling its duties where such failure is a proximate cause of injury to a patient. 74. Federal agencies have created regulations for all hospitals receiving Medicare and Medicaid benefits. Section 482 identifies the conditions of participation for hospitals in the Medicare program. Section 482.12(e), states that “[t]he governing body must be responsible for services furnished in the hospital whether or not they are furnished under contracts. The governing body must ensure that a contractor of services (including one for shared services and joint ventures) furnishes services that permit the hospital to comply with all applicable conditions of participation and standards for the contracted services.” Section 482.22 further states that hospitals “must have an organized medical staff that operates under bylaws approved by the governing body, and which is responsible for the quality of medical care provided to patients by the hospital.” 75. These laws require hospitals to establish qualifications for medical staff privileges at the hospital, a process for considering applications by physicians for medical staff privileges as well as a process for the renewal or revocation of those privileges. Such 22regulations impose various non-delegable duty on Defendant, PGH, for the negligence of independent contractors. See Stewart v. Stamford Radiological Assocs., Pc, 2008 WL 344610, at *4 (Conn. Super. Ct. Jan. 22, 2008) (wherein a Connecticut court concluded that the regulatory language appeared to “create a question of fact” and denied the defendants motion for summary judgment.); Hinojosa v. Perez, 214 F. Supp. 703, 705 (holding that regulations did not create a basis for federal question jurisdiction because regulations provided an alternative theory for liability under state law.). 76. — Florida’s common law (ie., judge-made law), should recognize that hospitals owe a non-delegable duty to their patients to provide non-negligent care based on federal regulations. Simply stated, Florida courts should find that if federal law has required hospitals to provide non-negligent care and be responsible for the conduct that occurs within the hospital, then Florida common law will require hospitals to comply with their federal obligations by imposing a non-delegable duty upon the hospitals. 77. For all the foregoing reasons premised on Florida statutes, regulations and common law, Plaintiff respectfully requests this court deny Defendant PGH’s Motion for Summary Judgment with regard to non-delegable duty. JOINT VENTURE AND/OR PARTNERSHIP BETWEEN PGH AND DR. EDQUARD 78. The existence of a joint venture is an issue to be determined by the trier of fact. Navarro v. Espino, 316 So. 2d 646 (Fla. 3d DCA 1975). See also, Florida Rock and Sand Co. v. Cox, 344 So.2d 1296 (Fla. 3d DCA 1977); Knepper v. Genstar, Corp., 537 So.2d 619 (Fla. 3d DCA 1988). 79. A joint venture is a legal relationship similar to a partnership but more limited in scope. See Kislak v. Kreedian, 95 $0.24 510, 514-15 (Fla. 1957). A joint venture “is created when two or more persons combine their property or time or a combination 23thereof in conducting some particular line of trade or for some particular business deal.” Id. at 515. This relationship must arise out of a contract which contains the following elements: “(1) a community of interest in the performance of the common purpose, (2) joint control or right of control, (3) a joint proprietary interest in the subject matter, (4) a right to share in the profits and (5) a duty to share in any losses which may be sustained.” Jd. A contract establishing a joint venture can be either express or implied. /d. at 514. In fact, the Florida Supreme Court in Kis/ak, a case relied upon by both parties in this matter, held as follows: As between the parties, a contract is essential to create the relation of joint adventurers. The contract need not, however, be expressed or be embodied in a formal agreement, or particularly specify or define the rights and duties of the parties. It may be inferred from the conduct of the parties or from facts and circumstances which make it appear that a joint enterprise was in fact entered into. The consideration for a contract of joint adventure may be a promise, express or implied, to contribute capital or labor to the enterprise. 30 Am.Jur. Joint Adventures Sec. 9, p. 681. Id. at 515. Emphasis added. 80. Existence of joint venture may be implied or inferred from conduct of parties or from acts and circumstances which in fact make it appear that they are participants in joint venture. Florida Tomato Packers, Inc. v. Wilson, 296 So.2d 536 (Fla. 3d DCA 1974). 81. It has been universally held that while joint venture and partnership are separate legal relationships, both relationships are governed by the same rules of law. Id. The laws governing partnership are applicable to joint ventures. Although the question of whether certain facts constitute a partnership is a “question of law”, whether the essentials of a partnership exist is a “question of fact” to be determined by the circumstances of each case. Nahmod v. Nelson, 147 Fla. 564, 3 So.2d 162 (Fla. 1941). 2482. Plaintiff contends that the available evidence in this case clearly indicates that a question of fact exists as to whether PGH was engaged in a joint venture, and in establishing, maintaining and promoting maternity and obstetrical services. The available evidence illustrates a manifest pattern of conduct which demonstrates a question of fact as to the two entities were engaged in a joint venture and/or partnership throughout their care and treatment of MAI TUYET NGUYEN and KADEN NGYEN. 83. First, Defendant PGH held itself out as being equipped with a labor and delivery department which could handle the emergency needs of pregnant women and infants. www.plantationgeneral.com/service/maternity, August 6, 2019. 84. Plantation General Hospital also advertises free physician referrals for delivering doctors: Have questions? Call us to learn more about maternity services or receive a free physician referral. 85. Delivering physicians, such as Dr. Edouard, were credentialed in accordance with PGH’s Medical Staff Policies. See Plantation General Hospital’s medical bylaws filed under separate cover. Through its bylaws, which are unique to each hospital and chosen by the hospital, the hospital had the ability to control the actions of its physicians. 2586. Plantation General Hospital’s own website advertises that they partner with physicians and other providers who have the necessary qualifications and credentials to provide quality, safe, and compassionate medical care to the community: Centralized Credentialing Providing quality, patient-centered care is our mission at Plantation General Hospital. That's why it’s important that we partner with physicians and other medical professionals (Providers) who have the necessary qualifications and credentials to provide quality, safe and compassionate medical care to our community. Credentialing and Privileging Our rigorous credentialing process follows Federal and State regulatory requirements, as well as accreditation standards for verifying the education, training, licensure and current competence in order to ensure that privileges are only granted to qualified Providers. Contact Us If you have any questions or concerns regarding physician credentialing, please contact our Medical Staff Office. Pam ga] (yaa 87. PGH’s core values advertised on their website place a strong emphasis on partnerships: In 2009 and 2010, Plantation General Hospital updated its core values, which focus on the relationships, friendships and partnerships that drive service excellence, positive outcomes _and_the mission and values of HCA, Plantation General’s parent company. Working with the Plantation General team of employees, a new culture was developed based on the “ships.” The Core Values are the following 5 ships: Workmanship, ownership, partnership, leadership, and stewardship.” https://plantationgeneral.com/patients/core-values.dot, August 6, 2019. 2667. Furthermore, PGH provided Dr. Edouard all equipment, supplies, and resources available for the treatment of patients. All appearances suggested that the labor and delivery department was an integral part of the institution. Both parties benefited from this arrangement. The evidence supports that Dr. Edouard was provided to Mrs. Nguyen by PGH and together they worked as a team, along with the other physicians, nurses, and staff assigned by PGH, in order to render medical services to Mrs. Nguyen. See deposition of Dr. Edouard pgs. 58:18-59:13, 21:2, filed under separate cover. Dr. Edouard testified that they had a team approach, where he relied on the nurses and technicians at PGH in providing medical care and treatment to patients such as Mai Tuyet Nguyen. Jd. 68. Plantation General Hospital then benefited by billing approximately $10,609.00 for Mai Tuyet Nguyen’s labor and delivery and approximately $1,104.00 for OB/GYN care & delivery. See Plantation General Hospital’s billing records filed under separate cover. 69. During the deposition of Dr. Edouard, he testified that he pays money to Plantation General Hospital relative to medical services he provides. See Deposition of Dr. Edouard pg. 139:120-122, filed under separate cover. 70. Defendant’s Motion fails to set forth any facts or argument at all which would support summary judgment as to Plaintiff's joint venture and partnership counts. Defendant merely states that because Dr. Edouard was not employed by PGH, this court should grant summary judgment. 71. Rule 1.510 governs summary judgment procedure. Rule 1.150(c) requires that a motion for summary judgment must “state with particularity the grounds upon which it is based and the substantial matters of law to be argued” and mandates that the moving party identify the admissible evidence upon which it relies. See Fla. R. Civ. P. 1.150(C). 27The moving party’s summary judgment material must be “admissible in evidence.” Fla. R. Civ. P. 1.510(c); see also Bifulco v. State Farm Mut. Auto. Ins. Co., 693 So.2d 707 (Fla. 4th DCA1997) (holding that a trial court should not have considered unsworn and uncertified documents attached to a summary judgment motion); see In re Forfeiture of 1998 Ford Pickup, 779 So.2d 450, 451 (Fla. 2d DCA 2000) (reversing summary judgment and concluding that the trial court entered summary judgment without the benefit of any facts when it relied on an insufficient affidavit). 72. tis fundamental that 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 Nard, Inc. v. Devito Contr. & Supply, Inc., 769 So.2d 1138, 1140 (Fla. 2d DCA 2000); Snyder v. Cheezem Dey. Corp., 373 So.2d 719 (Fla. 2d DCA 1979). The courts have held that cases involving contractual disputes are particularly unsuited for summa