Motion,Ex Parte: Khai Nguyen Plaintiff vs. Melissa Machan, ARNP, et al Defendant

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                                Filing # 25112699 E-Filed 03/19/2015 05:34:47 PM

IN THE CIRCUIT COURT OF THE SEVENTEENTH JUDICIAL CIRCUIT
IN AND FOR BROWARD COUNTY, FLORIDA

KHAI NGUYEN, individually, and as CASE NO.:
Personal Representative of the Estate of MAI CACE-14-014218
TUYET NGUYEN, deceased, and on behalf

of KRISTEN HUYNH, KYLIE NGUYEN, __ Div: 04

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, ALEX BIRMAN, M.D.,
SUNLIFE OB/GYN SERVICES OF FT.
LAUDERDALE, P.A,, GEORGES
EDOUARD, M.D., GEORGES EDOUARD,
M.D., P.A. d/b/a PLANTATION PAVILION
OB/GYN, MELISSA MACHAN, ARNP,
ROBERTA SANTINI, M.D., DORI
RATHBUN, FLORIDA UNITED
RADIOLOGY, L.C.,

Defendants.
/

 

PLAINTIFF’S AMENDED REPONSE TO DEFENDANTS, ROBERTA
SANTINI, MD AND FLORIDA UNITED RADIOLOGY L.C.’S
MOTION TO DISMISS PLAINTIFF’S AMENDED COMPLAINT
AND MOTION TO STRIKE INDIVIDUAL CLAIMS

Page 1 of 27

*** FILED: BROWARD COUNTY, FL HOWARD FORMAN, CLERK 3/19/2015 5:34:48 PM.****COMES NOW the Plaintiff, 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, to respond to Defendants, Roberta Santini, MD and Florida
United Radiology, L.C.’s (“FUR”) Motion to Dismiss the Amended
Complaint and Motion to Strike Individual Claims.

INTRODUCTION

The Court should deny Defendants’ argument that Plaintiff has not
complied with the presuit requirements of Section 766.106 and Section
766.203. Contrary to Defendants’ representations, Plaintiff put both
Defendants on notice of wrongful death claims and personal injury claims.
Furthermore, “the purpose of the presuit notice and the requirement of an
expert's affidavit to corroborate the claim is not to notify the defendants as to
how they were negligent, but rather is to demonstrate that the claim is
legitimate.” Columbia/JFK Med. Ctr. Ltd. P'ship v. Brown, 805 So. 2d 28,
29 (Fla. 4th DCA 2001).

The Court should also deny Defendants’ argument that Plaintiff

has failed to plead sufficient facts to support theories of partnership and joint

Page 2 of 27venture. The Amended Complaint tracks current law in pleading recognized
theories of hospital liability and properly sets forth in separate counts the
differing allegations and theories of liability. “Each claim founded upon a
separate transaction or occurrence and each defense other than denials shall
be stated in a separate count.” Fla.R.Civ.P. 1.110(f).

The Plaintiffs, by tracking current law, support the Rule’s purpose in
securing ‘the just, speedy, and inexpensive determination of every cause of
action.” Fla.R.Civ.P. 1.010. Furthermore, under Rule 1.110 of the Florida
Rules of Civil Procedure, “forms of action and technical forms for seeking
relief of pleas, pleadings, and motions have been abolished.” A complaint,
instead, “must state a cause of action. It shall set forth a brief and simple
statement of the ultimate facts on which the pleader relies, and if it informs
the defendant of the nature of the case against, it [the complaint] shall be
held sufficient.” Messana v. Maule Indus., 50 So. 2d 874, 876 (Fla. 1951)
(en banc).

In addition, according to Ranger Construction Industries, Inc. v.
Martin Co. of Daytona, Inc., “[uJnlike to pleading requirements in the federal
courts where notice pleading is the prevailing standard, the Florida Rules of
Civil Procedures require fact pleading.” 881 So. 2d 677, 680 (Fla. Sth DCA

2004) (citing Continental Baking Co. v. Vincent, 634 So. 2d 242, 244 (Fla.

Page 3 of 27Sth DCA 1994)).

While a complaint must allege sufficient facts
to properly state a cause of action, the Florida
courts long ago abandoned the intricate maze
and complex structure of common law and
equity pleading whereby the preparation of
complaint and answers devolved into a rather
unique and abstruse science as though the
correct a manner of framing a litigant’s
allegations in writing was an end itself. These
rules were so venerated by some courts and
crafty pleaders that a departure from any one
of them could prove fatal and deprive an
unwary but otherwise deserving litigant of
rights actually due him or her. The ferment
created by strict adherence to these technical
rules aroused the courts in most jurisdictions
to simply procedure to reduce technicalities to
a minimum and adopt procedural rules that
allowed cased to be decided on their merits as
expeditiously as possible.

Therefore, rather than intricate and complex
allegations designed to plead a litigant to
victory, brevity and clarity in the statement of
the essential facts upon which the claim for
relief rests are the hallmarks of good
pleading. Hence, pleading is not an end in
itself; rather it is the means by which justice
is achieved.

FACTS ALLEGED IN THE AMENDED COMPLAINT

Page 4 of 27In December of 2011, Mrs. Nguyen began her prenatal care with Dr.
Edouard. (Amended Complaint § 25.) As she came closer to term, Mrs.
Nguyen presented to Pantation General Hospital on July 25, 2012 due to
complaints of abdominal pain and decreased fetal movement. (Amended
Complaint { 26.) Throughout the night on July 25, 2012 and into the
morning on July 26, 2012, the fetal heart monitors continued to be non-
reassuring. (Amended Complaint § 38.) Additionally, the various
ultrasounds taken of Mrs. Nguyen, revealed dense echogenic material
throughout the gestinal sac, which was strongly suggestive of a massive
hemorrhage. (Amended Complaint §§ 29-30.) Roberta Santini, M.D., the
doctor interpreting the results of these various ultrasounds, failed to identify
the hemorrhage, and/or alert the care providers of its existence. (Amended
Complaint § 30.)

Moreover, upon Mrs. Nguyen’s arrival at Plantation General Hospital,
she received twenty-five (25) micrograms of vaginal Cytotec’ every three
(3) hours until active labor commenced. (Id.) Prior to being administered

Cytotec, Mrs. Nguyen was not informed of the risks associated with its use,

1 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. At all times material hereto, the Cytotec administered to Mrs. Nguyen was stored,
dispensed, and provided by Plantation General Hospital for use in inducing labor.

Page 5 of 27or the fact that it has not been approved by the FDA as a labor inducing
agent. (Amended Complaint § 35.)

On July 26, 2012 at around 8:35 a.m., Nurse Reynolds performed a
vaginal exam on Mrs. Nguyen, which revealed vaginal bleeding, wherein
Dr. Edouard was called to come to Plantation General Hospital. (Amended
Complaint § 39.) While Dr. Edouard claimed he would be at Mrs. Nguyen’s
bedside in ten (10) minutes, Dr. Edouard did not arrive at bedside until C-
section delivery was underway at around 9:08 a.m.—approximately forty
(40) minutes after being called. (Amended Complaint § 40.) Subsequently,
by 9:00 a.m., Mrs. Nguyen became unresponsive and had no palpable pulse;
and yet, a Code Blue was not called until 9:04 a.m. (Amended Complaint If
43, 47.)

Kaden Nguyen was consequently delivered via C-section at 9:14 a.m.,
and was noted to be bradycardiac, blue, floppy, and not breathing—all
indicative of fetal compromise and hypoxia/anoxia. (Amended Complaint {ff
49, 55.) Despite this appearance, cord blood gases were not obtained or
ordered, and Kaden’s APGARS remained abnormally low with a one (1) at
one minute, three (3) at five minutes, and four (4) at ten minutes. (Amended

Complaint §§ 55-57.)

Page 6 of 27Furthermore, after delivery and despite continued CPR and
resuscitative efforts, Mrs. Nguyen remained unresponsive, and was
pronounced dead at 9:41 a.m. on July 26, 2012. (Amended Complaint {J
53-54.) Kaden Nguyen was subsequently admitted into the Neo-Natal
Intensive Care Unit (NICU) in critical condition, and with a diagnosis of
hypoxia, perinatal depression, respiratory distress, and pulmonary
hypertension. (Amended Complaint § 58.) These injuries sustained by
Kaden Nguyen were preventable, foreseeable, and will continue indefinitely
into the future. (Amended Complaint § 60.) Additionally, Mrs. Nguyen’s
death was preventable and foreseeable but for Plantation General Hospital’s
and the other named Defendants’ negligent evaluation and treatment during
Mrs. Nguyen’s labor and delivery.

STANDARD APPLICABLE ON A MOTION TO DISMISS

The purpose of a motion to dismiss is to determine whether the complaint
properly states a cause of action upon which relief can be granted; therefore,
in making this determination, the trial court must confine its review to the
four corners of the complaint, draw all inferences in favor of the pleader, and
accept as true all well-pleaded allegations. Fox v. Prof’| Wrecker Operators

of Fla., Inc., 801 So. 2d 175, 178 (Fla. 5th DCA 2001); Martin v. Fla. Power

 

& Light Co., 963 So. 2d 258 (Fla. 3d DCA 2007). In doing so, it is not for

Page 7 of 27the court to speculate whether the allegations are true or whether the pleader
has the ability to prove them. Fox, 801 So. 2d at 178. “[T]he question for the
trial court to decide is simply whether, assuming all the allegations in the
complaint to be true, the plaintiff would be entitled to the relief requested.”
Id. (quoting Cintron v. Osmose Wood Preserving, Inc., 681 So. 2d 859, 860—
61 (Fla. Sth DCA 1996).

Florida courts are “bound to read all pleadings with some generosity
and tolerance” under Rule 1.110(g), stating “[a]ll pleadings shall be
construed so as to do substantial justice.” Gouveia v. Phillips, 823 So. 2d
215, 218 (Fla. 4th DCA 2002). The important objective is to make the
defendant aware of issues and theories of liability well before trial. Id. at n.
L.

In medical negligence actions in particular, a plaintiff is required to
allege ultimate facts to prove each of the following four elements: duty,
breach, causation, and damages. Kaplan v. Morse, 870 So. 2d 934, 937 (Fla.
5th DCA 2004). Otherwise, general rules of pleadings apply. The
allegations of the complaint must be taken as true. Solorzano v. First Union
Mortg. Corp., 896 So. 2d 847 (Fla. 4th DCA 2005). “A motion to dismiss
tests the legal sufficiently of a complaint . . . and is not intended to determine

issues of ultimate fact.” Roberts v. Children’s Med. Servs., 751 So. 2d 672,

Page 8 of 27673 (Fla. 2d DCA 2000); Scott v. Busch, 907 So. 2d 662, 665 (Fla. Sth DCA
2005) (stating a court “must accept all allegations of the pleader as true”);
Bell _v. Indian River Memorial Hospital, 778 So. 2d 1030, 1032 (Fla. 4th
DCA 2001) (“motion to dismiss tests whether the plaintiff has stated a cause
of action [and] is limited to the four corners of the complaint, the allegations
of which must be accepted as true.”

PLAINTIFF HAS COMPLIED WITH THE PRESUIT
REQUIREMENTS OF § 766.106 AND § 766.203

A. PLAINTIFFS EXPRESSLY PUT THE DEFENDANTS ON NOTICE
OF THE INDIVIDUAL CLAIMS AND COMPLIED WITH THE
PURPOSE OF THE PRESUIT NOTICE REQUIREMENTS

The Court should deny Defendant’s Motion to Dismiss because Plaintiff

has complied with the presuit requirements of Section 766.106 and Section
766.203. Defendant contends that Plaintiff has failed to conduct a reasonable
investigation because they were not put on notice of Kaden Nguyen’s
personal injury claim. This position is both factually incorrect and legally
unsound. Plaintiff expressly put Dr. Santini on notice of a medical
malpractice action. The Notice of Intent sent to FUR on May 14, 2014
states:

“Pursuant to Fla. Stat. 766.106 and Fla. R. Civ. P. 1.650, this

letter serves as notice that Klai Nguyen, individually and as

Personal Representative of the Estate of Mai Tuyet Nguyen,
deceased and on behalf of Kaden Nguyen and Kylie Nguyen,

Page 9 of 27minors, intends to initiate medical malpractice claims against
Florida United Radiology, L.C. [FUR], its physicians,
techinicians, nurses and staff, including but not limited to
Roberta Santini, M.D. and Dori Rathbun, for the negligent care
and treatment provided to Mai Tuyet Nguyen which caused the
untimely death of Mai Tuyet Nguyen at the age 34 years old, as
well as vicarious liability of Dori Rathbun and Roberta Santini,
M.D.”

See Exhibit A. The Affidavit of Rolf Gobien, attached to the Notice of
Intent to FUR dated May 14, 2014 states:

“It is my opinion that the following healthcare providers
deviated from the prevailing professional standard of care and
such deviations caused Ms. Nguyen’s demise and injury to
Kaden Nguyen: Roberta Santini, M.D. and Dori Rathbun
performed and/or reviewed an ultrasound performed prenatally
on May Nguyen upon her presentation to Plantation Hospital on
7/25/2012.”

See Exhibit A. The Notice of Intent directed to Dr. Santini states:
“Pursuant to Fla. Stat. 766.106 and Fla. R. Civ. P. 1.650, this
letter serves as notice that Khai Nguyen, individually and as
Personal Representative of the Estate of Mai Tuyet Nguyen,
deceased and on behalf of Kaden Nguyen and Kylie Nguyen,
minors, intends to initiate medical malpractice claims against
you, for the negligent care and treatment provided to Mai Tuyet
Nguyen which caused the untimely death of Mai Tuyet Nguyen
at the age 34 years old.”
See Exhibit B. Florida law is clear and unambiguous that notice to any
prospective defendant constitutes notice to any person bearing a legal

relationship with this properly noticed defendant. Rule 1.650, Fla. R. Civ. P.

Plaintiff has therefore clearly put Dr. Santini and FUR on notice of Kaden’s

Page 10 of 27individual claims. Notice to one would constitute notice to the other because
FUR employs Dr. Santini. Therefore, by operation of Rule 1.650, both Dr.
Santini and FUR were on notice that Khai Nguyen was bringing both
wrongful death and individual claims, and the affidavit of Rolf Gobien, MD
expressly states that Kaden was bringing personal injury claims. Defendant
cannot deny that it received notice of Kaden’s personal injury claims.

Even if (for the sake of argument) Plaintiff had not expressly stated
that the deviations from the standard of care caused injury to Kaden,
Plaintiff would have still complied with the presuit requirements, Florida
courts have made it abundantly clear that the purpose of the notice of intent
and affidavit is to ensure that a potential plaintiffs claim is legitimate, i.e.
non-frivolous, not to outline every detail and theory of the case. In Davis v.
Orlando Reg'l Med. Ctr., 654 So. 2d 664, 664 (Fla. 5th DCA 1995), a patient
brought medical malpractice action against a defendant hospital. The
hospital moved to preclude patient from raising issue of hospital's alleged
postoperative negligence because this theory of liability was not in the
expert opinion submitted by patient for purposes of presuit screening. Id. at
664-665. The Fifth DCA in reversing the trial court held that the trial court
erred in granting the preclusion order:

The expert opinion to be supplied is not one which delineates
how the defendants were negligent. Section 766.104 refers to a

Page 11 of 27written medical opinion “that there appears to be evidence of
medical negligence.” Section 766.203(2) provides that the
medical expert opinion is for “corroboration of reasonable
grounds to initiate medical negligence litigation.” And §
766.205(1) specifically provides that the medical opinion need
only corroborate that “there exists reasonable grounds for a
claim of negligent injury.” Obviously, the corroborative
medical opinion adds nothing to the Plaintiffs' notice of
their claim. It merely assures the Defendants, and the court,
that a medical expert has determined that there is
justification for the Plaintiffs’ claim, i.e., that it is not a
frivolous medical malpractice claim. The purpose of the
medical expert opinion is to corroborate that the claim is
legitimate, not to give notice of it. Stebilla v. Mussallem, 595
So.2d 136, 139 (Fla. Sth DCA), review denied, 604 So.2d 487
(Fla.1992) (emphasis in original). To sum up Stebilla, the
statute requires the expert corroborative opinion to prevent
the filing of baseless litigation, not to set forth in protracted
detail the plaintiff's theory of the case. Contrary to ORMC's
position, nothing in the statute requires that the
corroborating expert opinion identify every possible
instance of medical negligence. § 766.203; see also §
766.205(1). In many cases it would be virtually impossible
for a medical malpractice plaintiff to identify every possible
instance of medical negligence at the pre-suit stage. Medical
procedures themselves are complicated and typically require
explanation by experts. Also, such crucial issues as causation
and proximate cause often defy tidy identification and
resolution as surgical patients commonly receive care from a
battery of physicians, nurses and staff, as was the case with
Davis. Id. at 665.

Similarly in Columbia/JFK Med. Ctr. Ltd. P'ship v. Brown, 805 So.
2d 28, 28 (Fla. 4th DCA 2001), a hospital appealed a trial court’s decision to

allow the medical malpractice action to proceed even though one of the

Page 12 of 27counts in the complaint was based on entirely different conduct of the
hospital than the conduct alleged in the presuit screening correspondence:

In the presuit screening it was alleged that the hospital is
vicariously liable to plaintiff because of the negligence of its
emergency room physicians and nursing — staff. The
corroborating affidavit required by section 766.203 was from an
emergency physician. In their complaint, plaintiffs included a
count alleging that a gynecologist had negligently operated on
plaintiff at the hospital, one day earlier, which had precipitated
her returning to the hospital for the emergency room services
described in presuit proceedings. This count alleged that the
hospital negligently allowed the physician performing the
surgery to have staff privileges.

Id. The Fourth DCA denied certiorari thereby affirming the trial court’s
reasoning:

The hospital argues that [Davis v. Orlando Reg'] Med. Ctr., 654
So. 2d 664, 664 (Fla. Sth DCA 1995)] is distinguishable in that
in the present case the plaintiffs are seeking to hold the hospital
liable for a different type of liability, negligently permitting a
physician to have staff privileges. The distinction argued by
the hospital is not significant. The purpose of the statute is
to prevent the filing of medical malpractice claims which
are not legitimate. Stebilla v. Mussallem, 595 So.2d 136 (Fla.
5th DCA 1992). That purpose has been satisfied where, as
here, the presuit requirements were complied with as to one
theory of negligence against the hospital.

Id. at 29. These cases undermine Defendants’ contention that Plaintiff did
not adequately put them on notice of Kaden Nguyen’s injury. The standard

of a reasonable investigation is not the strict threshold Defendants seek to

Page 13 of 27impose on the Plaintiff in requiring that he outline out every detail of his
claim. Like the plaintiffs in both Davis and Brown, plaintiffs here provided
two corroborating affidavits that established a legitimate claim of
negligence.

B. THE CASES CITED BY THE DEFENDANT ARE INAPPOSITE

Defendants rely on two cases in support of its contention that
plaintiffs have failed to conduct a reasonable investigation. The first case

relied upon is Ragoonanan by Ragoonanan v. Associates in Obstetrics and

 

Gynecology, 619 So. 2d 482 (Fla. 2d 1993), In Ragoonanan by Ragoonanan

the plaintiffs brought a medical malpractice action against physicians and a
hospital for medical negligence. The defendants the physicians and the
hospital argued that the plaintiff's’ corroborative expert opinion failed to
comply with the reasonable pre-suit requirements because it failed to
identify the purported expert and failed to specify the manner in which the
physicians and the hospitals deviated from the standard of care. The Second
DCA held that the Ragoonanans satisfied the intent of the statute by
outlining a factual basis from which the merits of the claim can be
determined. The Second DCA’s holding relied upon the purpose outlined in
Stabila v. Mussallem “the purpose of the requirement providing an expert

corroborative opinion is to prevent the filing of baseless litigation.”

Page 14 of 27Therefore the very case that defendants rely upon works against its
contention that plaintiffs have provided have conducted a reasonable
investigation because Kai Nguyen provide not only a corroborating medical
expert opinion but a corroborating medical expert opinion that identified the
expert and provided a clear factual basis to support a reasonable basis to file
a medical negligence action.

The second case relied upon by the defendants is Duffy v. Brooker,
614 So. 2d 539 (Fla. Ist DCA 1993). In Duffy a physician and his medical
malpractice appealed from an Order of the circuit court imposing sanctions
upon the insurer in a medical malpractice action. The plaintiff filed the
motion to determine that the defendant insurer had not conducted a
reasonable investigation of the claim because the corroborating expert
opinion provided with the insurer’s denial of the claim was not notarized.
The trial court granted the plaintiff's motion and held that the defendant
insurer did not conduct a reasonable investigation of the claim in providing
an un notarized expert opinion. The First DCA while affirming the trial
court’s holding went on to discuss the details of the case because it wanted
to make clear that

“We agree that the Florida legislature contemplated the type of

‘corroboration’ urged by the Academy when it attempted to reform the

Page 15 of 27Medical Malpractice Act and not merely a reiteration of the statement to be
corroborated. In order to comply with the spirit and intent of the statute, to
promote ‘fruitful negotiation’ as noted in Dressler, the notice of intent to
initiate litigation and the corroborating medical expert opinion, taken
together, must officially indicate the manner in which the defendant doctor
allegedly deviated from the standard of care, and must provide adequate
information for the defendants to evaluate the merits of the claim.”

This case is significantly factually different from the case at bar and
the most important difference is that in Duffy the defendant failed to provide
any corroborating medical expert opinion at all because it was not notarized.
Here Kai Nguyen provide not just one but three corroborating medical
expert opinions all that were notarized and provided by medical experts who
identified themselves and provided a factual basis on which to determine
that the claim was legitimate, i.e. non-frivolous. Therefore this case is
inapplicable to the case at bar and cannot be used to support defendants’
contention in this action. Ultimately what defendants seck is that plaintiff
outline each and every theory of its case. However this is not the purpose of
the pre-suit notice statutes. The purpose of the pre-suit notice statutes is to

determine whether there is good grounds, there is a legitimate basis on

Page 16 of 27which to file a medical negligence action. A plaintiff need not outline every

theory of the case. Davis v. Orlando Regional Medical Center.

C. PRESUIT STATUTES MUST BE LIBERALLY CONSTRUED

When a trial court must decide whether a claim ‘rests on a reasonable
basis’ within the meaning of subsection 766.206(1), it must bear in mind the
broader purpose of the presuit statutes:

These presuit requirements are designed to “alleviate the high
cost of medical negligence claims through early determination
and prompt resolution of claims.” Weinstock v. Groth, 629
So.2d 835, 838 (Fla.1993). Nonetheless, “the medical
malpractice statutory scheme must be interpreted liberally
so as not to unduly restrict a Florida citizen's
constitutionally guaranteed access to the courts.” Kukral v.
Mekras, 679 So.2d 278, 284 (Fla.1996); see also Weinstock,
629 So.2d at 838 (“[T]he purpose of the chapter 766 presuit
requirements is ... not to deny access to the courts to
plaintiffs....”). Further, the statutory requirements are not to
be used by prospective defendants as preemptive sword

against a plaintiff. See Michael v. Med. Staffing Network.
Inc., 947 So.2d 614, 619 (Fla. 3d DCA 2007).

Holden _v. Bober, 39 So. 3d 396, 400 (Fla. 2d DCA 2010). These are
axiomatic principles of construction when a court considers compliance with
the presuit statutes. "[T]he presuit notice and screening statute should be
construed in a manner that favors access to courts." Patry v. Capps, 633 So.
2d 9, 13 (Fla. 1994). Additionally, in the medical malpractice statutory
context presented here, this Court has stated that medical malpractice

statutes should be construed not only in favor of requiring parties to engage

Page 17 of 27in meaningful pre-suit investigation but also in favor of providing access to
courts, See Kukral v. Mekras, 679 So. 2d 278, 284 (Fla. 1996) (stating that
"the medical malpractice statutory scheme must be interpreted liberally so as
not to unduly restrict a Florida citizen's constitutionally guaranteed access to
the courts, while screening out frivolous lawsuits and defenses"). Hankey v.
Yarian, 755 So. 2d 93 (2000). This is a well-known pillar of Florida law:

e We have not lacked guide posts in reaching our
decision. Indeed, our decision is in accord with our
repeated interpretations of this unique statutory
frame work so as to effectuate its intended salutary
presuit investigation and screening of claims
without unconstitutionally impeding a citizen's
access to the courts guaranteed by article I, section
21 of the Florida Constitution. See, e.g., Kukral,
679 So. 2d at 284; Patry v. Capps, 633 So. 2d 9, 13
(Fla. 1994) (holding that strict compliance with
statutory mode of service of notice of intent to
initiate litigation per section 766.106(2) was not
required); Weinstock v. Groth, 629 So. 2d 835,
838 (Fla. 1993) (recognizing general rule that
"restrictions on access to the courts must be
construed in a manner that favors access"); Smith
v. Department of Ins., 507 So. 2d 1080, 1087-90
(Fla. 1987) (invalidating portion of statute capping
all noneconomic damages as violative of article I,
section 21, while upholding remaining portions of
act). We are also mindful of our obligation to
construe section 95.11(4)(b) and sections
766.104(2) and 106(4) in such a manner to give
effect to each statute. Musculokeletal Institute
Chartered v. Parham, 745 So. 2d 946 (Fla. 1999).

 

e The presuit requirements of Florida's Medical
Malpractice Act restrict plaintiffs' constitutional
right of access to courts, so the requirements!

Page 18 of 27applicability must be construed narrowly in favor
of access. See Integrated Health Care Servs., Inc.
v. Lang-Redway, 840 So. 2d 974, 980 (Fla. 2002);
Weinstock, 629 So. 2d at 838. For the
requirements to apply, the claim must be for
medical malpractice. See J.B. v. Sacred Heart
Hosp. of Pensacola, 635 So, 2d 945, 948-49 (Fla.
1994); Joseph v. Univ. Behavioral LLC, 71 So. 3d
913, 917 (Fla. Sth DCA 2011); Blom v. Adventist
Health Sys. Sunbelt, Inc., 911 So. 2d 211, 213-14
(Fla. 5th DCA 2005). Also, the defendant must be
a health care provider. See Weinstock, 629 So. 2d
835; Sova Drugs, Inc. v. Barnes, 661 So. 2d 393
(Fla. 5th DCA 1995). Neither of these elements
was present here Pierrot v. Oscrola_Mental Health
Inc., 106 So. 3d 491 (Fla. Sth DCA 2013).

 

In sharp contrast, the courts liberally construe the
Act "so as not to unduly restrict a Florida citizen's
constitutionally guaranteed access to the courts,
while at the same time carrying out the legislative
policy of screening out frivolous lawsuits and
defenses." Kukral v. Mekras, 679 So. 2d 278, 284
(Fla. 1996); see Musculoskeletal Inst. Chartered _v.
Parham, 745 So. 2d 946 (Fla. 1999); Fort Walton
Beach Med. Ctr., Inc. v. Dingler, 697 So. 2d 575
(Fla. 1st DCA 1997). In particular, the courts have
held that the pre-suit notice and screening
requirements are "not intended to deny access to the
courts on the basis of technicalities." Dingler, 697
So, 2d at 579 (citing Archer v. Maddux, 645 So. 2d
544, 546 (Fla. 1" DCA 1994)). "Instead, the presuit
notice and screening statute should be construed in
a manner that favors access to courts.” Id. (citing
Patry_v. Capps, 633 So. 2d 9, 13 (Fla. 1994)).
Pavolini v. Bird, 769 So. 2d 410 (Fla. 5th DCA
2001).

We note at the out set that the Supreme Court has
emphasized that, when possible, the pre-suit notice
and screening statute should be construed in a
manner that favors access to courts. Patry v. Capps,

Page 19 of 27633 So, 2d 9, 13 (Fla. 1994). This court previously
addressed the purpose of the pre-suit notice and
expert corroborative opinion: Davis v. Orlando
Regional Medical Center, 654 So. 2d 664 (Fla. 5th
DCA 1995).

Florida courts have consistently construed the
medical malpractice pre-suit statutory scheme
"liberally so as not to unduly restrict a Florida
citizen's constitutionally guaranteed access to the
courts, while at the same time carrying out the
legislative policy of screening out frivolous
lawsuits and defenses." Kukral, 679 So. 2d at 284;
Wilson, 948 So. 2d at 777; Apostolico, 871 So. 2d
at 286. “Presuit notice and screening requirements
are 'not intended to deny access to the courts on
basis of technicalities.”’ Apostolico, 871 So. 2d at
286 (quoting Fort Walton Beach Med. Ctr., Inc. v.
Dingler, 697 So. 2d 575, 579 (Fla. lst DCA 1997)).
The pre-suit notice and screening statute should
instead be construed in a manner that favors access
to the courts. Consequently, in interpreting the pre-
suit notice requirements of section 400.0233 we
must not unduly restrict the access to the courts
guaranteed by the Florida Constitution in carrying
out the legislative purpose of screening out
frivolous lawsuits Arch Plaza. Inc. v. Perpall., 947
So. 2d 476 (Fla. 3d DCA 2006).

 

Florida courts are required to construe the Medical
Malpractice Act “so as not to unduly restrict a
Florida citizen's constitutionally guaranteed access
to the courts, while at the same time carrying out
the legislative policy of screening out frivolous
lawsuits and defenses.” Kukral v. Mekras, 679 So.
2d 278, 284 (Fla. 1996); see Musculoskeletal Inst.
Chartered _v. Parham, 745 So. 2d 946 (Fla. 1999);
Fort Walton Beach Med. Ctr., Inc. v. Dingler, 697
So, 2d 575 (Fla. Ist DCA 1997). Presuit notice and
screening requirements are “not intended to deny
access to the courts on basis of technicalities.”
Dingler, 697 So.2d at 579 (citing Archer_v.

 

 

Page 20 of 27Maddux, 645 So.2d 544, 546 (Fla. 1st DCA 1994)).
“Instead, the presuit notice and screening statute
should be construed in a manner that favors access
to courts.” Id. (citing Patry v. Capps, 633 So.2d 9,
13 (Fla.1994)). In interpreting the Medical
Malpractice Act, we are guided by legislative
intent. But in doing so, we begin with the
proposition that the statutory medical malpractice
scheme must be interpreted liberally so as not to
unduly restrict a Florida citizen's constitutionally
guaranteed access to the courts, while at the same
time carrying out the legislative policy of screening
out frivolous lawsuits and defenses. Kukral_v.
Mekras, 679 So.2d at 278, 284 (Fla.1996). The
presuit notice of intent under chapter 766 is
designed to give the potential defendant notice of
the incident in order to allow investigation of the
matter and promote presuit settlement of the claim.
The expert corroborative opinion is intended to
prevent the filing of baseless litigation. Shands
Teaching Hosp. & Clinics, Inc. vy. Barber, 638
So.2d 570, 572 (Fla. Ist DCA 1994). While it is
true that the presuit requirements are conditions
precedent to instituting a malpractice suit, the
provisions of the statute are not intended to deny
access to the courts on the basis of technicalities.
Archer _v. Maddux, 645 So. 2d 544, 546 (Fla. Ist
DCA 1994). Instead, the presuit notice and
screening statute should be construed in a manner
that favors access to courts. Patry v. Capps, 633 So.
2d 9, 13 (Fla.1994). Apostolico _v. Orlando

Regional Health Care System, Inc., 871 So. 2d 283
(Fla. Sth DCA 2004).

 

 

 

PLAINTIFF HAS PROPERLY PLEAD ALTERNATIVE CAUSES OF
ACTION FOR WRONGFUL DEATH AND THE PERSONAL
INJURY OF A LIVING MINOR
Plaintiff agrees with Defendants that pursuant to Section 768.20, Fla. Stats.,

the proper party to bring a wrongful claim is the decedent’s personal

Page 21 of 27representative. MTD, pg. 7. However, Kaden Nguyen’s claims are not
wrongful death claims. He is still alive and Khai Nguyen is bringing a
personal injury action as his natural parent as is appropriate in any birth-
related medical malpractice case. Plaintiff has “hidden” nothing in the
Amended Complaint. By filing this motion to dismiss on this issue,
Defendants have obviously seen this claim.

Defendants’ request that Plaintiff plead the wrongful death claim and
personal injury claim separately is unhelpful for at least one very important
reason: Mai Nguyen’s death and Kaden Nguyen’s injuries arise out of the
same acts and omissions of the medical providers during delivery. This is
not a situation where Plaintiff is attempting to convolute two different
factual circumstances—two sets of wholly unrelated negligent events—into
one count. The same deviations that caused Mrs. Nguyen’s death caused
Kaden’s personal injuries. Therefore, the Court should deny this argument in
Defendants’ Motion to Dismiss.

PLAINTIFF HAS PROPERLY AND SUFFICIENTLY PLEAD A
PARTNERSHIP THEORY

Count XI alleges partnership liability on behalf of Plantation General
Hospital and the physicians and nursing staff, including but not limited to
Drs. Birman, Edouard, Santini, and Nurse Machan for combining their

resources together in a business or venture for their common benefit, and

Page 22 of 27each contributing property, money, and/or services, thereby creating an
interest in any profits. (Amended Complaint {| 133.)

Under Florida law, a partnership, like the one described above, is
created “only where both parties contribute to the labor or capital of the
enterprise, have a mutuality interest in both profits and losses, and agree to
share in the assets and liabilities of the business.” Burger v. Hartley, 896 F.
Supp. 2d 1157, 1167 (S.D. Fla. 2012) (quoting Williams v. Obstfeld, 314
F.3d 1270, 1275 (11th Cir. 2002)); Jackson-Shaw v. Jacksonville Aviation
Authority, 8 So. 2d 1076, 1090 (Fla. 2008).

The Defendants assert that Plaintiffs simply concluded the existence
of a partnership without any factual allegations by relying on case law that is
unrelated to medical negligence causes of action, such as Eagletech
Communications, Inc. v. Bryn Mawr Investment Group, 79 So. 3d 855 (Fla.
4th DCA 2012) (a case involving a corporation suing its investors for fraud,
conspiracy, securities fraud, and violations under RICO). The Defendants
assertions are misguided according to Arango v. Reyka, 507 So. 2d 1211,
1213 (Fla. 4th DCA 1987), where the court held that where “there [is]
evidence of a common purposes, where each party needed the other, as in
any partnership in which each partner brings to the enterprise capital, skills,

labor, licensing, resources, or knowledge not possessed by the other . . . and

Page 23 of 27[where] there [is] evidence of shared control, which was split or divided by
mutual agreement between the defendants,” this is evidence of a'partnership.

In Arango, the Fourth District Court found that each doctor and the
hospital had control over some aspect of providing anesthesiology services,
which ultimately is not an uncommon business arrangement. Id. at 1213-14.
Furthermore, the hospital and the group of anesthesiology doctors held a
joint interest in the financial benefits and profits generated by the
combination of their resources and services. Id. at 1214. Profits and losses
were shared, with one party having to bear the costs of the facilities,
equipment, and supplies, and the other the cost of services. Id. As a result
from these findings, the Fourth District Court held that there was “[n]o legal
nor policy reason [that] exists preventing a hospital from entering into a joint
venture [and/or partnership] agreement with a provider of medical services.
Id.

Therefore, in this case, where Defendants Roberta Santini, M.D., Alex
Birman, M.D., Georges Edouard, M.D., Nurse Melissa Machan, and
Plantation General Hospital joined together in a business venture for the
purpose of providing health care services to patients, like Mrs. Nguyen and
Kaden Nguyen, by contributing property, money, and/or services, are

sufficient allegations to survive a motion to dismiss.

Page 24 of 27Furthermore, the existence of a partnership is a question of fact.
Whether the essentials of a partnership exist is a question of fact to be
determined by the circumstances of each case. Nahmod v. Nelson, 3 So. 2d
162, 164 (Fla. 1941).

PLAINTIFF HAS PROPERLY PLEAD A JOINT VENTURE
THEORY

The Motion to Dismiss argues that the Plaintiffs have failed to allege a
cause of action because there are no facts asserting the establishment of a
joint venture. This is incorrect, as all Plaintiffs have to show are: (1) a
community of interest in the performance of a 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. King y. Baptist Hosp. Of Miami, Inc., 87 So. 3d
39, 43 (Fla. 3d DCA 2012); Jackson-Shaw Co. v. Jacksonville Aviation
Auth., 8 So. 3d 1076, 1089 (Fla. 2008); Ely v. Shuman, 233 So. 2d 169, 170
(Fla. 3d DCA 1970).

Here, Plaintiffs have shown in Paragraph 140 of the Amended
Complaint that Roberta Santini, M.D., Alex Birman, M.D., Georges
Edouard, M.D., Nurse Melissa Machan, and Plantation General Hospital
were in joint venture with each other, as they had combined their resources

or efforts and agreed to undertake the medical care and treatment of Mrs.

Page 25 of 27Nguyen and Kaden Nguyen, in which they had a common interest in the
purposes to be accomplished, joint control or right of control of the venture,
joint ownership interest in the subject matter of the venture, and a common
right and duty to share in profits and losses by admitting patients into the
Hospital and providing care and treatment. Furthermore, the Fourth District
Court in Arango held that it was acceptable for doctors and hospitals to enter
into joint venture and partnership agreements when they are providing
medical services to patients. Arango, 507 So. 2d at 1214.

Furthermore, the existence of a joint venture is a question of fact.
“Whether a joint venture existed is commonly a fact question to be
determined by the trier of the fact. The relationship must arise out of a
contract which may be implied or inferred from the conduct of the parties or
from acts and circumstances which in fact make it appear that they are
participants in a joint venture.”’Navarro v. Espino, 316 So. 2d 646, 648 (Fla.
3d DCA 1975),

For these reasons, the Court should conclude that the Plaintiffs have
made sufficient allegations supporting the existence of a joint venture
relationship to survive a motion to dismiss.

CONCLUSION
For all the foregoing reasons, this Court should deny Defendants’

Motion to Dismiss, and require Defendants to answer the Complaint.

Page 26 of 27CERTIFICATE OF SERVICE

1 HEREBY CERTIFY that a true and correct copy of the foregoing
has was sent by Electronic Mail this 19th day of February, 2015 to:
Katherine Hunter, Esq., (khunter@chl-law.com; ahoney@chl-law.com;

cwieland@chl-law.com), John W. Mauro, Esq. (ftl-pleadings@belmr.com;
aliciag@bclmr.com; cig@belmr.com), Ariel Widlansky, — Esq.

(ariel@lubellrosen.com; Amanda@lubellrosen.com); Asa Groves, Esq.
(mail@grovesverona.com; rosy@grovesverona.com)

/s/Carlos R. Diez-Arguelles
Carlos R. Diez-Arguelles

Florida Bar Number: 500569
Maria D. Tejedor

Florida Bar Number: 95834
Jack T. Cook

Florida Bar Number: 88589
Diez-Arguelles & Tejedor, PA
Attorney for Plaintiffs

SOS N. Mills Ave.

Orlando, FL 32803

P: 407-705-2880

Page 27 of 27DIEZ -ARGUELLES | TEeJEDOR

Carlos R. Diez-Arguelles* 505 N Mills Ave
Maria D. Tejedor* Orlando, Fl, 32803
Scott J. Liotta Ph: (407)705-2880

Jack T. Cook, of Counsel
Christopher J. Bilecks, of Counsel

*Board Certified Trial Attorneys Please Reply To Orlando Office
wwwatheorlandolawyers.com 3705 N. Himes Ave

Tampa, FL 32703

Toll Free; (888) 888-3773
Fax: (888) 611-7879 7 3132 Ponce de Leon Blvd
Miami, FL 33134

4
May.38, 2014

NOTICE OF INTENT TO INITIATE LITIGATION
WITH REQUEST FOR INFORMAL DISCOVERY

 

Florida United Radiology, LC

Through its Registered Agent,

Jay A. Martus

1613 North Harrison Pkwy., Ste. 200
Sunrise, FL 33323

Re: Khai Nguyen, as Personal Representative of the Estate of Mai Tuyet Nguyen, deceased
and 0/b/o Kaden Nguyen and Kylie Nguyen, minors
Date of Birth: 11/28/1974

PERSONAL AND CONFIDENTIAL
VIA CERTH QUESTED:
CERTIFIED MAIL NO. 7013 2250 0001 3376 9980

 

Dear Mr. Martus:

Pursuant to Fla. Stat. 766.106 and Fla. R. Civ. P. 1,650, this letter serves as notice that Khai
Nguyen, individually and as Personal Representative of the Estate of Mai Tuyet Nguyen, deceased and
on behalf of Kaden Nguyen and Kylie Nguyen, minors, intends to initiate medical malpractice claims
against Florida United Radiology, LC., its physicians, technicians, nurses cind staff, including but not
limited to Roberta Santini, M.D. and Dori Rathbun, for the negligent care and treatment provided to Mai
Tuyet Nguyen which caused the untimely death of Mai Tuyet Nguyen at the age 34 years old, as well as
vicariously liability of Dori Rathbun and Roberta Santini, M.D.

Such deviations include but are not limited to: Roberta Santini, M.D. and Dori Rathbun performed
and/or reviewed an ultrasound performed prenatally on Mai Nguyen upon her presentation to
Plantation Hospital on 7/25/2012. The ultrasound revealed a hemorrhage of in the amniotic sac which

PLAINTIFF'S
EXHIBITthe standard of care required immediate verbal communication to the emergency room physician as well
as her attending OBGYN. The records required notation of such communication as the condition requires
immediate care and attention as it can result in amniotic fluid embolism and/or death. The records
provided do not Indicate that such communication was had with the attending physicians or that the same
were advised of in a timely fashion. Consequently, hours after she was induced with cyototec which alone
will increases the risk of embolism and Mai Nguyen suffered a foreseeable and preventable demise
which in part was caused by the negligence of the above providers. Please be advised that we do not
believe that this Notice of Intent is warranted or necessary at this time, as notice has already been
provided to Roberta Santini, M.D., and to Dori Rathbun, however, we are serving you with the Notice of
Intent in all caution,

In support of the above allegations please find attached affidavit and CV of Rolf Gobien, M.D, ,
an expert in Diagnostic Radiology who has reviewed the medical records of ‘Mai Tuyet Nguyen and
Kaden Nguyen. Please be advised that we are in possession of the following medical records that were
reviewed by Dr. Gobien to provide an opinion:

Dr. Georges Edovard

Plantation General Hospital ~ Labor & Delivery Records for mother & baby
Plantation General Hospital — Fetal Monitor Strips

Joe DiMaggio Children’s Hospital

Pediatrix Medical Group

Eri Stelnicki, M.D.

© Autopsy report

2 © 6 © o

To the best of Mr. Nguyen’s recollection and knowledge, Ms. Nguyen treated with George
Edouard, M.D., 4330 W. Broward Boulevard, Ste. C, Plantation, FL 33137

If you, your attorneys or the provider’s professional liability carrier contend or intend to raise as
any defense in this case, that this Notice of Intent is defective in any manner or form, we would
respectfully request that we be informed specifically as to the exact nature of the defect so that we may
cure the same if we deem it appropriate.

Section 766.106 (3)(a) of Florida Statutes, provides no suit shall be filed for a period of 90 days
after notice is served upon perspective defendant. During this 90-day period, you and your insurer are
to conduct a good faith investigation of this claim employing one of the several procedures provided for
in the statute, | am sure you are aware that any unreasonable failure to comply with the section justifies
the dismissal of defenses in the event a subsequent lawsuit is filed.

In addition to the above, Section 766.106(6), Florida Statutes, provides that:

“Upon receipt by a prospective defendant of a notice of claim, the parties shall make
discoverable information available without formal discovery. Failure to do so is grounds for
dismissal of claims or defenses ultImately asserted.”

Accordingly, | ask that within 20 days, either you or your representative, respond in writing to the
request below and forward the following materials:

LR Please state the name, address, occupation, and employer of the person or persons investigating
this claim and the specific investigative procedure used to evaluate this claim as specified in Section

766.106(3)(a), Florida Statutes.

ard any and all medical records in your possession for Mal Tuyet Nguyen and Kaden
Please understand this request asks you to provide copies of any records whatsoever,
vies on your file jacket, correspondences, telephone notes, or anything of the Iike.any other written document or report, concerning your treatment of Mal Tuyet Nguyen and
\guyen, a minor, is believed to exist but is not in your possession or control, please describe the
sent or report and provide the present location and custodian of the same.

Please provide the full names and present addresses of all witnesses to your freaiment of Mai
yet Nguyen and Kaden Nguyen, a minor, and all persons having knowledge of such treatment. In
dition to their names and present addresses, please briefly indicate each individual's interest in this
tHer, le, treating nurses, receptionist, eyewitness, etc., and the subject matter of their knowledge.
‘ase do not respond by stating: “Please refer fo medical records” or some similar response. The

‘pose of this request is to determine if there are any individuals that may have knowledge or facts that
2 material to the issue involved in this matter.

Have your privileges at any hospital ever been suspended or revoked, or have you ever been
siplined by any state Board of Medicine where an administrative complaint was filed against you? If

please state the name of the complainant(s), the nature of the complaint, place of occurrence and
igned case number,

If it is your contention that someone other than yourself was responsible in whole or In part for the
srrence of any of the negligence alleged above, please state each person’s.name, address, job title,
ag with the facts which you base your contention that person was responsible for. In light of the
reme Court’s decision in Fabre, it would be prejudicial to my client for you not to identify any third
sons during the pre-suit screening period only to attempt to avoid or mitigate your liability during
‘equent litigation by alleging or arguing that someone other than yourself was wholly or partially
ronsible. Please understand the undersigned will take appropriate action to prevent you from
ging or arguing that someone other than yourself was responsible should you fail to promptly and

comply with this request.

Taking into consideration everything you know regarding Mai Tuyet Nguyen and Kaden Nguyen,
nor, and the condition for which you rendered treatment, state whether or not, in your opinion, any
2rse outcome alleged by my client could have been avoided had some step been taken by Mai Tuyet
yen, during her course of treatment. Please describe which steps you feel could or should have been
n to prevent the outcome. :

Taking in to consideration everything you know regarding Mai Tuyet Nguyen and Kaden Nguyen,
nor, and the condition for which you rendered freatmeni, state whether or not, in your opinion, any
wrse outcome alleged by my client could have been avoided had Mai Tuyet Nguyen and Kaden
ren, a minor, not done something that he In fact did. Please describe what you feel my client did
contributed to the injury.

Please list the name and last known address for each and every employee of yours during the
care and treatment was rendered to Mai Tuyet Nguyen and Kaden Nguyen, a minor. Please include
»b title of each employee named, and whether he or she js still employed by you.

Please state the name and address of your medical malpractice insurance carrier, as well as the
and amount of coverage available to you as protection against this claim. Please state the name
address of your medical group's medical malpractice insurance carrier, as well as the type and
nt of coverage available to your group as protection against this claim. Is the coverage providedto your medical group separate from the coverage provided to you? Please provide a copy of your
group’s insurance policy or policies. If insurance coverage Is not available, please explain the method of
compliance with Florida Financial Responsibility Statute Section 458.320 that will protect you agalnst loss
of your Florida medical license. Additionally, please provide a copy of your policy or policies.

11. Do you claim sovereign immunity? If so, please describe in detail the basis for your claim that you
are entitled to sovereign immunity.

12, If you believe this claim is not meritorious or, if you feel that case may have merit against others
but you