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Filing # 20061864 Electronically Filed 10/31/2014 11:45:21 AM
06-3972 IN THE CIRCUIT COURT OF THE
SEVENTEENTH JUDICIAL CIRCUIT, IN
AND FOR BROWARD COUNTY, FLORIDA
CASE NO.: CACE 14-014218 (04)
KHAI NGUYEN, Individually, and as
Personal Representative of the Estate
of MAI TUYET NGUYEN, Deceased,
and on behalf of KRISTEN HUYNH,
KYLIE NGUYEN and KADEN NGUYEN,
the surviving children of MAI TUYET
NGUYEN, and as the natural parent
of KADEN NGUYEN, a minor,
Plaintiffs,
vs,
PLANTATION GENERAL HOSPITAL,
LP. d/b/a PLANTATION GENERAL
HOSPITAL, ALEX BIRMAN, MD,
SUNLIFE OB/GYN SERVICES OF
FT, LAUDERDALE, P.A.,
GEORGES EDOUARD, MD, GEORGES
EDOUARD, MD, P.A. d/b/a
PLANTATION PAVILION OB/GYN,
MELISSA MACHAN, ARNP,
ROBERTA SANTINI, MD, DORI
RATHBUN and FLORIDA UNITED
RADIOLOGY, L.C.,
Defendants.
/
DEFENDAN ROBERTA SANTINI, MD AND FLORIDA UNITED RADIOLOGY,
L.C.’S MOTION TO DISMISS PLA TIFFS’ AMENDED COMPLAINT AND MOTION.
TO STRIKE THE INDIVIDUAL CLAIMS
The Defendants, ROBERTA SANTINI, MD and FLORIDA UNITED RADIOLOGY,
L.C., by and through their undersigned counsel and pursuant to Fla. R. Civ. P. 1.140, move to
dismiss the Plaintiffs’ Amended Complaint (attached hereto as Exhibit “A”) and to strike any
individual claims, and in support thereof state as follows:
*** FILED: BROWARD COUNTY, FL HOWARD FORMAN, CLERK 10/31/2014 11:45:21 AM.****I. Standard Of Review
Pursuant to the Florida Rules of Civil Procedure, plaintiffs are required to provide a
“short and plain statement of the ultimate facts showing that [they are] entitled to relief.” Fla. R.
Civ. P. 1.110(b)(2). Dismissal of a plaintiff’s claim is proper if, when accepting the allegations as
true, the complaint fails to state a cause of action. See Fla. R. Civ. P. 1.140(b); Roval &
Sunatliance v. Lauderdale Marine Ctr., 877 So. 2d 843, 845 (Fla. 4th DCA 2004).
When considering dismissal, “only well pleaded allegations are accepted.’ McRae v.
Douglas, 644 So. 2d 1368, 1373 (Fla. 5th DCA 1994). The Court confines its consideration to
the “four corners of the complaint,” and whether a prima facie case has been pled depends on the
“sufficiency of the plaintiff's allegations of fact, excluding the bare conclusions.” A/varez v.
E&A Produce Corp., 708 So. 2d 997, 999-1000 (Fla. 3d DCA 1998). The Court should not
accept the pleader’s opinions, conclusions of law, or “unwarranted conclusions of fact.” Esposito
v. Horning, 416 So, 2d 896, 898 (Fla. 4th DCA 1982); Ellison v. City of Fort Lauderdale, 175
So, 2d 198, 200 (Fla. 1965). Moreover, the Court may not “by inference or speculation supply
essential averments that are lacking.” A/varez, 708 So, 2d at 1000.
I. Count XI Of The Amended Complaint Should Be Dismissed Because The
Plaintiffs Have Failed To Establish The Existence Of A Partnership Between
Defendants, Santini, Plantation General Hospital, Birman, Edouard, And
Machan.
Count XI of the Plaintiffs’ Amended Complaint should be dismissed because the
Plaintiffs do not allege any ultimate facts supporting the existence of a partnership amongst the
Defendants that would impose liability upon Dr. Santini for the negligent acts of the other
Defendants. Under Florida’s Revised Uniform Partnership Act, “the association of two or more
persons to carry on as coowners a business for profit forms a partnership, whether or not the
persons intend to form a partnership.” Jackson-Shaw Co. v. Jacksonville Aviation Authority, 8
Page -2-So. 2d 1076, 1090 (Fla. 2008) (quoting § 620.8202(1), Fla. Stat. (2006)). Further, “a person who
receives a share of the business’s profits is presumed to be apartner .. ..” Jd. (quoting §
620,8202(3)(c)3, Fla. Stat. (2006).
While the Plaintiffs contend that the Defendants, including Dr. Santini, “are liable for
each other’s acts” because they “were in partnership with each other,” they fail to support this
contention with any concrete facts that would give rise to the existence of a partnership. Rather,
the Plaintiffs merely recite the elements of a partnership in hopes of creating a relationship
among the Defendants where there is none. Specifically, the Amended Complaint alleges that the
Defendants “joined together and/or agreed to join together in a business or venture for their
common benefit, each contributing property, money and/or services, and each having an interest
in any profits.” Exhibit “A” at paragraph 133. Such bare conclusions, without more, do not
constitute the underlying factual allegations sufficient to establish the existence of a partnership
among the Defendants. See Eagletech Communications, Inc. v. Bryn Mawr Inv. Group, Inc., 79
So. 3d 855, 864 (Fla. 4th DCA 2012) (quoting Ginsberg v. Lennar Fla. Holdings, 645 So, 2d
490, 501 (Fla. 3d DCA 1994)) (“A party does not properly allege a cause of action by alleging in
conclusive form, which tracks the language of the statute, acts which lack factual allegations and
merely state bare legal conclusions.”).
Thus, the Plaintiffs’ “partnership liability” claim in Count XI should be dismissed for
failure to state a cause of action.
I. Count XII Of The Amended Complaint Should Be Dismissed Because The
Plaintiffs Have Failed To Establish The Existence Of A Joint Venture Between
Defendants, Santini, Plantation General Hospital, Birman, Edouard, And
Machan.
Count XII of the Plaintiffs’ Amended Complaint should be dismissed because the
Plaintiffs do not allege any ultimate facts supporting the existence of a joint venture relationship
Page -3-that would impose liability upon Dr. Santini for the negligent acts of the other Defendants. In
order to state a cause of action based upon the existence of a joint venture, the Plaintiffs must set
out the following elements:
In addition to the essentials of an ordinary contract, in contracts
creating joint ventures there must be (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.
See Ely v. Shuman, 233 So. 2d 169, 170 (Fla. 3d DCA 1970).
A review of the Amended Complaint reveals that the Plaintiffs have merely regurgitated
the definition of a joint venture in an attempt to somehow create a relationship between the
Defendants where there is none. The Plaintiffs make the generic allegations that the Defendants
were in a joint venture, “as they had combined their resources or efforts and agreed to undertake
the medical care and treatment of MAI TUYET 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. Exhibit “A” at paragraph 140. The Amended Complaint fails
to allege with any specificity the underlying facts and events giving rise to the existence of a
joint venture relationship. Notably, there is no evidence of any firm agreement between the
Defendants suggesting a joint proprietary interest in or joint control of the subject matter, nor is
there any hint of an arrangement to share in the profits and losses of their alleged joint ownership
interest. See Ely, 233 So. 2d at 170. The Plaintiffs’ mere conclusory recitation of the elements of
a joint venture, without more, is insufficient to state a cause of action for “joint venture liability.”
Id. (“Since appellant’s complaint did not allege by ultimate facts the essential elements necessary
to the existence of a joint venture, the trial court properly dismissed it.”).
Page -4-Accordingly, the Plaintiffs’ joint venture liability claim in Count XII should be dismissed
for failure to state a cause of action. Further, assuming arguendo that this Court finds the
Plaintiffs adequately pled a cause of action for “partnership liability” in Count XI, Count XII
becomes an essentially identical claim and should be stricken as duplicative. See Fla. R. Civ. P.
1.140(f).
Iv. The Individual Claims Brought On Behalf Of KADEN NGUYEN, A Minor,
Should Be Dismissed Because The Plaintiffs Failed To Comply With Presuit
Notice Requirements As Required By Fla. Stat. § 766.106 and § 766.203.
The individual claims brought on behalf of KADEN NGUYEN should be dismissed
because the Plaintiffs failed to comply with Fla. Stat. § 766.106 and § 766.203 prior to filing the
Amended Complaint. Pursuant to Fla. Stat. § 766.203, “prior to issuing a notification of intent to
initiate medical malpractice litigation . . . the claimant shall conduct an investigation to ascertain
that there are reasonable grounds to believe that: (a) any named defendant in the litigation was
negligent in the care or treatment of the claimant; and (b) such negligence resulted in injury to
the claimant.” Additionally, a verified written medical expert opinion corroborating the
reasonable grounds to initiate medical negligence litigation must be submitted at the time the
notice of intent is mailed to the prospective defendants. Fla. Stat. § 766.203(2)(b).
The purpose of the presuit investigation and notice requirements, as well as the providing
of an expert corroborative opinion, “is to prevent the filing of baseless litigation,” and to notify
the Defendants of the grounds supporting the alleged deviation from the standard of care in order
“for the defendant to evaluate the merits of the claim.” Ragoonanan by Ragoonanan v.
Associates in Obstetrics & Gynecology, 619 So. 2d 482, 484 (Fla. 2d DCA 1993); Duffy v.
Brooker, 614 So. 2d 539, 545 (Fla. Ist DCA 1993). If the court finds the notice of intent to
initiate litigation by the claimant does not comply with the procedural requirements of § 766.203,
Page -5-“including a review of the claim and a verified written medical expert opinion by an expert
witness . . . the court shall dismiss the claim.” Fla. Stat. § 766.206(2).
The individual claims on behalf of KADEN NGUYEN should be dismissed because the
Notice of Intent and corresponding expert affidavits failed to adequately describe the
Defendants’ negligence as it specifically related to their care and treatment of KADEN
NGUYEN. While the Notice of Intent and expert affidavits reference the Defendants’ deviation
from the prevailing standard of care in treating the deceased, MAI TUYET NGUYEN, they do
not refer to the facts and events underlying a potential claim by KADEN NGUYEN. See Notice
of Intent to Roberta Santini, MD and Florida United Radiology, L.C. and Supporting Affidavit of
Martin Gubernick, MD, attached as Exhibit “B”. Nonetheless, the Amended Complaint
incorporates numerous allegations of negligent care and treatment rendered to KADEN
NGUYEN in an attempt to circumvent the Plaintiffs’ failure to adequately notify the Defendants
of those allegations in presuit. As discussed above, the Notice of Intent and corroborating
medical expert affidavits must provide sufficient notice to allow the Defendants a full evaluation
of the merits of the claim. Due to the Plaintiffs’ failure in presuit to present the personal injury
claim of KADEN NGUYEN or the allegation that Dr. SANTINI’s negligence resulted in the
injuries to KADEN NGUYEN, the Defendants were precluded from conducting a thorough
review and investigation as required Fla. Stat. § 766.106(3).
Thus, consistent with the clear and unambiguous language of Fla. Stat. § 766.206(2), the
individual claims on behalf of KADEN NGUYEN should be stricken or dismissed for the
Plaintiffs’ failure to comply with the procedural presuit requirements of Fla. Stat. § 766.106 and
§766.203.
Page -6-Vv. Assuming Arguendo That The Plaintiffs Adequately Complied With Presuit
Notice Requirements, The Individual Claims Brought By KHAI NGUYEN On
Behalf of KADEN NGUYEN Should Still Be Stricken Or Dismissed Because
They Are Improperly Pled.
Because this is a wrongful death action, the Plaintiff should be limited to KHAT
NGUYEN, as Personal Representative of the Estate of MAI TUYET NGUYEN, deceased.
However, in an attempt to incorporate a personal injury action on behalf of KADEN NGUYEN,
the Amended Complaint identifies the Plaintiffs as 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 MAT
TUYET NGUYEN, and as the natural parent of KADEN NGUYEN, a minor.
Pursuant to the Florida Wrongful Death Act, Fla. Stat. § 768.20, the proper party to bring
a wrongful death claim is the decedent’s personal representative who shall recover for the benefit
of the decedent’s survivors and estate. Thus, KHAI NGUYEN, as Personal Representative, does
not have an individual claim on behalf of KADEN NGUYEN, a minor who is still living, for
personal injury damages. Any claims on behalf of KADEN NGUYEN for personal injuries need
to be separately pled and not hidden within KHAI NGUYEN’s wrongful death claim on behalf
of the Estate of MAI TUYET NGUYEN.
Because the proper parties are not named and the proper factual predicate does not exist
within the Amended Complaint, any individual personal injury claims on behalf of KADEN
NGUYEN should be stricken or dismissed from the Amended Complaint.
Page -7-CERTIFICATE OF SERVICE
WE HEREBY CERTIFY that a true and correct copy of the foregoing was e-filed with
the Clerk of Court through the E-Filing Portal on October 31, 2014, and is to be e-served by the
Court Clerk to: ALL COUNSEL OF RECORD ON THE ATTACHED SERVICE LIST.
CHIMPOULIS, HUNTER & LYNN, P.A.
Attorneys for Defs/ROBERTA SANTINI, MD and
FLORIDA UNITED RADIOLOGY, L.C.
7901 S.W. 36th Street - Suite 206
Davie, FL 33328
Phone: (954) 463-0033
BY; __4/M. Katherine Hunter
M. KATHERINE HUNTER, ESQUIRE
Florida Bar No.: 981877
Email = khunter@chl-law.com
\\chl-sbs1 \files-04and06-27\06-3972\pleadings\motion to dismiss-santini-florida united radiology.doex
Page -8-SERVICE LIST
NGUYEN vs. SANTINI, MD, ET AL
Case No.: CACE 14-014218 (04)
Counsel for Plaintiffs:
MARIA D. TEJEDOR, ESQUIRE
Diez-Arguelles | Tejedor
505 North Mills Avenue
Orlando, FL 32803
(407) 705-2880 Phone
(888) 611-7879 FAX #
(888) 888-3773 Toll Free Phone
EMAIL: maria@theorlandolawyers.com
SERVICE OF PLEADINGS — mail@theorlandolawyers.com; Sonia@theorlandolawyers.com;
diva@theorlandolawyers.com
Counsel for Defendants/Plantation General Hospital and Dori Rathbun:
JOHN W. MAURO, ESQUIRE / CAROL J. HEALY GLASGOW, ESQUIRE
Billing, Cochran, Lyles, Mauro & Ramsey, P.A.
515 East Las Olas Boulevard
6th Floor SunTrust Center
Fort Lauderdale, FL 33301
(954) 764-7150
(954) 764-7279 FAX #
EMAIL: jwm@belmr.com; cjg@belmr.com
SERVICE OF PLEADINGS - fil-pleadings@belmr.com; aliciag@belmr.com; cjg(@belmr.com
Counsel for Defendants/Alex Birman, MD and Sunlife OB/GYN Services:
ARIEL D. WIDLANSKY, ESQUIRE
Lubell & Rosen, LLC
200 South Andrews Avenue
Suite 900 Museum Plaza
Fort Lauderdale, FL 33301
(954) 755-3425
(954) 755-2993 FAX #
EMAIL: ariel @lubellrosen.com
SERVICE OF PLEADINGS ~ ariel@lubellrosen.com; amanda@lubellrosen.com
Page -9-Filing # 16972106 Electronically Filed 08/12/2014 08:30:24 AM
IN THE CIRCUIT COURT OF THE SEVENTEENTH JUDICIAL CIRCUIT,
IN AND FOR BROWARD COUNTY, FLORIDA
KHAI NGUYEN, individually, and as Personal CASE NO.: CACE-14014218
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,
v.
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.,
PA, d/b/a PLANTATION PAVILION
OB/GYN, MELISSA =MACHAN, — ARNP,
ROBERTA SANTINI, M.D., DORI RATHBUN,
FLORIDA UNITED RADIOLOGY, L.C.,
Defendants.
AMENDED COMPLAINT
COMES NOW the Plaintiff, KHAl 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 attorney and hereby sues
the Defendants, 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., MELISSA MACHAN, ARNP,
ROBERTA SANTINI, M.D., DORI RATHBUN, and FLORIDA UNITED RADIOLOGY, L.C., and alleges:
EXHIBIT AGENERAL ALLEGATIONS
This is a civil action for damages in excess of FIFTEEN THOUSAND DOLLARS
($15,000.00), the minimal jurisdictional requirement of this Court, exclusive of costs,
interest, and attorneys’ fees.
All statutorily required conditions precedent to the maintenance of this action have been
performed, have occurred, or have been waived. All requirements of applicable Florida
Statutes have timely been complied with prior to the filing of this action.
There has been a reasonable investigation to determine whether there are grounds for a
good faith belief that there has been negligence in the care and treatment rendered by
Defendants in this case, which gives rise to this action.
Including time allowed for tolling under section 766.106, Florida Statutes, and in
accordance with section 95.11(4)(b), Florida Statutes, this action is being brought within
two (2) years of the time in which the negligence leading to the death of MAI TUYET
NGUYEN was discovered. Therefore, this action is not barred by any statute of
limitations.
This action is being brought prior to KADEN NGUYEN’s eighth birthday and in accordance
with Florida Statute 95.11(4)(b) and is not barred by any statute of limitations.
KHAI NGUYEN only recently became aware that there was a reasonable possibility that
the injuries sustained by KADEN NGUYEN were the result of medical malpractice. In
accordance with Tanner v. Hartog, 618 So. 2d 177 (Fla. 1993), the statute of limitations
did not begin to run until KHAl NGUYEN became aware of such reasonable possibility.
KHAI NGUYEN is the surviving spouse of MAI TUYET NGUYEN, and is currently in the
process of being appointed as Personal Representative of the Estate of MAI TUYET
NGUYEN.10.
11.
12.
13.
14,
15.
16.
KHAI NGUYEN and MAI TUYET NGUYEN, deceased, are the natural parents of KADEN
NGUYEN, a minor.
KRISTEN HUYNH was born on August 3, 1999, and therefore, was a minor child within the
meaning of Florida Statute 768.18 at the time of MAl TUYET NGUYEN’s death.
KYLIE NGUYEN was born on October 29, 2008, and therefore, was a minor child within
the meaning of Florida Statute 768.18 at the time of MAl TUYET NGUYEN’s death.
KADEN NGUYEN was born on July26, 2012, and therefore, was a minor child within the
meaning of Florida Statute 768.18 at the time of MAl TUYET NGUYEN’s death.
At all times material hereto, PLANTATION GENERAL HOSPITAL, L.P. d/b/a PLANTATION
GENERAL HOSPITAL (“PLANTATION GENERAL HOSPITAL”) was and is a limited
partnership with this principal place of business in Nashville, Tennessee that owns and
operates a licensed hospital providing medical care and treatment in Broward County,
Florida.
At all times material hereto,SUNLIFE OB/GYN SERVICES OF FT. LAUDERDALE, P.A.
("SUNLIFE OB/GYN")was a Florida corporation, licensed to do business within the State of
Florida, and whose principal place of business was in Broward County, Florida.
At all times material hereto, GEORGES EDOUARD, M.D., P.A. d/b/a PLANTATION
PAVILION OB/GYN (“PLANTATION PAVILION OB/GYN”) was a Florida corporation,
licensed to do business within the State of Florida, and whose principal place of business is
in Broward County, Florida.
At all times material hereto, FLORIDA UNITED RADIOLOGY, L.C. (“FLORIDA UNITED
RADIOLOGY”) was a Florida limited liability company, licensed to do business within the
State of Florida, and whose principal place of business is in Broward County, Florida.
At all times material hereto,ALEX BIRMAN, M.D. (“BIRMAN”) was a physician licensed to
practice medicine in the State of Florida.17.
18.
19.
20.
21.
22.
23.
24.
25.
26.
27.
28.
29.
At all times material hereto, BIRMAN was an employee, agent, and/or apparent agent of
SUNLIFE OB/GYN.
At all times material hereto, GEORGES EDOUARD, M.D. (“EDOUARD”) was a physician
licensed to practice medicine in the State of Florida.
At all times material hereto, EDOUARD was an employee, agent, and/or apparent agent
of PLANTATION PAVILION OB/GYN.
At all time material hereto, ROBERTA SANTINI, M.D. (“SANTINI”) was a physician licensed
to practice medicine in the State of Florida.
At all times material hereto, SANTINI was an employee, agent, and/or apparent agent of
FLORIDA UNITED RADIOLOGY.
At all times material hereto, MELISSA MACHAN (“MACHAN”) was an advanced
registered nurse practitioner in the State of Florida.
At all times material hereto, DORI RATHBUN (“RATHBUN”) was a radiology technician in
the State of Florida.
At all times material hereto, BIRMAN, EDQUARD, SANTINI, MACHAN, and RATHBUN were
employees, agents, and/or apparent agents of PLANTATION GENERAL HOSPITAL.
In December of 2011, MAI TUYET NGUYEN began her prenatal care with EDOUARD.
On July 25, 2012, at 9:35 P.M., MAI TUYET NGUYEN presented to Plantation General
Hospitalwith complaintsof abdominal pain, and decreased fetal movement.
A bedside ultrasoundperformed at 10:40 P.M. indicated abnormal amniotic fluid "which
may represent meconium versus hemorrhage.”
RATHBUN, the radiology technician at PLANTATION GENERAL HOSPITAL, produced
images and then reviewed the results from the ultrasound.
The ultrasound was then interpreted by ROBERTA SANTINI, M.D.30.
31.
32.
33.
34.
35.
36.
37.
38.
The ultrasound contained a dense echogenic material throughout the gestinal sac, which
was strongly suggestive of a massive hemorrhage. Both SANTINI and RATHBUN failed to
identify the hemorrhage, and/or alert the care providers of the presence of a possible
hemorrhage.
MAI TUYET NGUYEN was admitted by EDOUARD 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.
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 MAl TUYET NGUYEN was stored,
dispensed and provided by Plantation General Hospital for use in inducing labor.
At 2:05 AM., on July 26, 2012, Pamela Nelson, RN, administered 25 mg of Cytotec
vaginally to MAI TUYET NGUYEN.
Prior to being administered the Cytotec, MAl 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.
Fetal hearing monitoring indicated variable decelerations indicative of umbilical cord
compression.
At 5:30 A.M., another dosage of 25 mg of Cytotec was administered vaginally by
Pamela Nelson, RN.
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.39.
40.
4).
42.
43.
44,
45.
46.
47.
48.
49.
50.
At approximately 8:35 A.M., Jean Reynolds, RN, preformed a vaginal exam which
revealed vaginal bleeding. EDOUARD was notified at 8:40 A.M. of the bleeding, and
was told to come to Plantation General Hospital.
Although 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.
At 8:46 A.M., MAI TUYET NGUYEN was administered oxygen.
At 8:55 A.M., Jean Reynolds, RN called EDOUARD and informed him the MAI TUYET
NGUYEN was completely dilated and wanting to push.
At 9:00 A.M., MAI TUYET NGUYEN became unresponsive. A Rapid Response Team was
called, however a Code Blue was not called.
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.
BIRMAN arrived at MAIUYET NGUYEN’s bedside at 9:05 A.M., and attempted a forceps
delivery, which failed.
Despite MAIUYET NGUYEN being non-responsive since 9:00 A.M., a Code Blue was not
called until 9:06 A.M.
By 9:07 A.M. MAIUTYET NGUYEN had no palpable pulse, and was in asystole. MAIUYET
NGUYEN was then intubated.
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.
KADEN NGUYEN was delivered via C-Section by BIRMAN at 9:14 A.M.
MACHAN was the attending certified registered nurse anesthetist (CRNA).51.
52.
53.
54.
55.
56.
57.
58.
59.
60.
After KADEN NGUYEN was delivered, EDOQUARD arrived at bedside and assisted with
delivery of the placenta.
The uterus was placed back into the abdomen and the abdominal incision was left open
while CPR efforts continued at MAIUTYET NGUYEN’s bedside.
Despite continued CPR and resuscitative efforts, MAIUYET NGUYEN remained
unresponsive.
MAIUTYET NGUYEN was pronounced deadat 9:41 A.M. on July 26, 2012.
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.
KADEN NGUYEN's one (1) minute APGAR was a 1.
KADEN NGUYEN was intubated at three (3) minutes of life. Despite intubation and
aggressive resuscitative efforts, his AGPARs remained abnormally low with an APGAR of
3 at five (5) minutes, and an APGAR of 4 at ten (10) minutes.
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.
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.
These injuries sustained by KADEN NGUYEN were preventable, foreseeable, and will
continue indefinitely into the future.COUNT I: NEGLIGENCE OF PLANTATION GENERAL HOSPITAL FOR BREACH OF NON-
DELEGABLE DUTY
Plaintiff re-alleges and incorporates by reference paragraphs 1 through 60 above as
though fully set forth herein and further alleges the following:
61. Defendant, PLANTATION GENERAL HOSPITAL, selected, retained, hired, and/or
credentialed BIRMAN, EDOUARD, SANTINI, MACHAN, and RATHBUN for the purpose of
providing medical care and treatment to MAI TUYET NGUYEN and/or KADEN NGUYEN.
62. At all times material hereto, the Defendant, 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.
63. This duty is created by:
a. Under the terms of the consent agreement MAI TUYET NGUYEN signed at
PLANTATION GENERAL HOSPITAL, PLANTATION GENERAL HOSPITAL had a non-
delegable duty to provide physicians and staff to properly and safely treat MAI
TUYET NGUYEN and KADEN NUGYEN. SeePope v. Winter Park Healthcare
Group, Ltd., 939 So. 2d 185 (Fla. 5th DCA 2006); and Shands Teaching Hosp. &
Clinic, Inc. v. Juliana, 863 So. 2d 343 (Fla. 1st DCA 2003). A copy of the consent
agreement is attached hereto as Exhibit A.
b. Rule 59A-3.254, Florida Administrative Code requires that every hospital develop
policies and procedures for assessment of patients, reassessment of patients,
coordination of care to include role of the physician, patient and family education,
discharge planning and criteria, and documentation;
c. Rule 59A-3.2085(3)(a), Florida Administrative Code requires that every hospital
providing operative or other invasive procedures, such as PLANTATION GENERALHOSPITAL, be organized under written policies and procedures, and these
procedures require a determination of appropriateness based on, among other
things, diagnostic data and the risks/benefits of the procedure;
Rule 59A-3.2085(4)(a)-(b), Florida Administrative Code requires that every
hospital providing surgical or obstetrical services, shall have an anesthesia
department, directed by a physician member of the organized professional staff.
The anesthesia department of each hospital shall have written policies and
procedures that are approved by the organized medical staff, are reviewed
annually, dated at time of last review, revised, and enforced as necessary. The
responsibilities and qualifications of all anesthesia personnel, including physicians,
nurses, anesthetists, and all trainees, must be defined in a policy statement, job
description, or other appropriate document.
The physicians rendering care to MAl TUYET NGUYEN at PLANTATION GENERAL
HOSPITAL were not privately retained by MAI TUYET NGUYEN. See Shands
Teaching Hosp. and Clinic, Inc. v. Juliana, 863 So. 2d 343, 349 (Fla. 1st DCA
2003) (citing Hippocrates Mertsaris v. 73rd Corp.,105 A.D.2d 67, 482 N.Y.S.2d
792, 801( N.Y. 1984)). See Newbold-Ferguson v. AMISUB (North Ridge Hospital),
Inc., 85 So. 3d 502, 505 (Fla. 4th DCA 2012).
Under Section 766.110, Florida Statutes, PLANTATION GENERAL HOSPITAL had a
duty to assure the competence of their medical staff through careful selection and
review. See St. Anthony's Hosp., Inc. v. Lewis, 652 So. 2d 386, 387 (Fla. 2d
DCA1995); see also Palms West Hosp. Ltd. Partnership v. Burns, 83 So. 3d 785,
787 (Fla. 4th DCA 2011) (quoting St. Anthony's Hosp., Inc. v. Lewis), and describing
section 766.110, Florida Statutes (2009) as a provision creating a “duty to assure
competence of medical staff members”).64.
g. Under 42 C.F.R. § 482.12, PLANTATION GENERAL HOSPITAL had a duty to create
and maintain a governing body to:
(1) ensure that all services performed are provided in a safe and effective
manner, See 42 C.F.R. § 482.1 2(e);
(2) define, implement and maintain ongoing safety initiatives that address
priorities for improved quality of care and patient safety. See 42 CFR. §
482.21 (e);
(3
create and organize medical staff that operates under by laws and is
responsible for the quality of medical care provided to patients by the
hospital. See 42 C.F.R. § 482.22;
(4)
create guidelines for staff that "[i]nclude criteria for determining the
privileges to be granted to individual practitioners and a procedure for
applying the criteria to individuals requesting privileges. See 42 C.F.R. §
482.22(c)(6);
See Stewart v. Stamford Radiological Assocs. PC, No. FSTCV054006288S, 2008 WL
344610 (Jan. 22, 2008); See also Hinojosav. Perez, 214 F. Supp. 703, 705-06 (S.D. Tex.
2002);
This duty was breached by PLANTATION GENERAL HOSPITAL in the following ways:
a. Negligently failing to establish and implement adequate policies, protocols and
procedures for the admission, monitoring, evaluation, testing and referral to
medical specialists of patients presenting with hemorrhaging, fetal distress, and
signs and symptoms of abnormal amniotic fluid;
b. Negligently failing to establish and implement adequate policies, protocols and
procedures regarding the proper utilization of Misoprostol (Cytotec);
10Negligently failing to establish and implement adequate policies, protocols and
procedures with regards performing a timely C-Section on patients presenting with
hemorrhaging, fetal distress, and signs and symptoms of abnormal amniotic fluid;
Negligently failing to educate, train, and/or supervise nurses and physicians in the
appropriate recognition of fetal distress, and the proper responsive treatment for
fetal distress;
Negligently failing to educate, train, and/or supervise nurses and physicians in the
appropriate recognition of hemorrhaging, and the proper responsive treatment for
hemorrhaging;
Negligently failing to educate, train, and/or supervise nurses and physicians in the
appropriate recognition of abnormal amniotic fluid, and the proper responsible
treatment for abnormal amniotic fluid;
Negligently failing to educate, train, and/or supervise nurses and physicians in the
proper utilization of Misoprostol (Cytotec);
By negligently failing to have appropriately skilled and trained physicians and
other medical staff on duty in the delivery room and neonatal unit when MAI
TUYET NGUYEN presented with risk factors for hemorrhaging, fetal distress, and
abnormal amniotic fluid; and
By negligently failing to assure proper risk management by failing to establish
protocols in (a)-(h) above and by failing to investigate and determine whether the
physicians, nurses, ARNPs, technicians, residents, and staff members of
PLANTATION GENERAL HOSPITAL were appropriately trained, experienced, and
skilled to diagnose and treat mothers with hemorrhaging, fetal distress, abnormal
amniotic fluid, deliveries complicated by fetal distress, and post-delivery neonatal
care of an infant.
1165. As a direct and proximate result of these deviations from the standard of care by
Defendant, PLANTATION GENERAL HOSPITAL, MAL TUYET NGUYEN and KADEN
NGUYEN were negligently evaluated and treated by BIRMAN, EDOUARD, SANTINI,
MACHAN, and RATHBUN, and the physicians, residents, nurses, technicians, and staff of
PLANTATION GENERAL HOSPITAL, and as a result MAI TUYET NGUYEN suffered a
wrongful death. The following damages are claimed pursuant to Section 768.21, Florida
Statutes:
a. KHAl NGUYEN, as husband of MAI TUYET NGUYEN, claims lost support and
services from the date of MAl TUYET NGUYEN’s injury to her death; future loss of
support and services; loss of companionship and protection; mental pain and
suffering; and any medical and funeral expenses paid by him. These losses are
permanent and continuing in nature, and KHAl NGUYEN will continue to suffer
these losses in the future;!
b. KRISTEN HUYNH, minor child of MAI TUYET NGUYEN, by and through, KHAI
NGUYEN, as personal representative of the estate, claims lost support and services
from the date of MAI TUYET NGUYEN’s injury to her death; future loss of support
and services; loss of parental companionship, instruction and guidance; and mental
pain and suffering. These losses are permanent and continuing in nature and
KRISTEN HUYNH will continue to suffer these losses in the future;?
c. KYLIE NGUYEN, minor child of MAI TUYET NGUYEN, by and through, KHAI
NGUYEN, as personal representative of the estate, claims lost support and services
from the date of MAI TUYET NGUYEN’s injury to her death; future loss of support
and services; loss of parental companionship, instruction and guidance; and mental
‘Cited from Florida Standard Civil Jury Instructions § 502.2(d)
*Cited from Florida Standard Civil Jury Instructions § 502.2(e).
1266.
67.
68.
pain and suffering. These losses are permanent and continuing in nature and KYLIE
NGUYEN will continue to suffer these losses in the future;?
d. KADEN NGUYEN, minor child of MAI TUYET NGUYEN, by and through, KHAI
NGUYEN, as personal representative of the estate, claims lost support and services
from the date of MAI TUYET NGUYEN’s injury to her death; future loss of support
and services; loss of parental companionship, instruction and guidance; and mental
pain and suffering. These losses are permanent and continuing in nature and
KADEN NGUYEN will continue to suffer these losses in the future;4
e. The estate of decedent, MAI TUYET NGUYEN, claims loss of earnings from the date
of injury to the date of death, loss of net accumulations, and medical and funeral
expenses paid by the estate.>
As a direct and proximate result of the negligent conduct of PLANTATION GENERAL
HOSPITAL, KADEN NGUYENwas negligently evaluated and treated by BIRMAN,
EDOUARD, SANTINI, MACHAN, and RATHBUN, and the physicians, residents, nurses,
technicians, and staff of PLANTATION GENERAL HOSPITAL. As a result,;KADEN NGUYEN
suffered significant and permanent injuries to include a hypoxic brain injury.
These injuries were preventable, foreseeable, and will continue indefinitely into the future.
KADEN NGUYEN, a minor, has sustained damages in the form of physical and mental pain
and suffering, disability, physical impairment, disfigurement, mental anguish,
inconvenience, loss of capacity for the enjoyment of life, loss of ability to earn an income,
*Cited from Florida Standard Civil Jury Instructions § 502.2(e).
‘Cited from Florida Standard Civil Jury Instructions § 502.2(e).
‘Cited from Florida Standard Civil Jury Instructions § 502.2(a), (b).
13expense of hospitalization, and medical and nursing treatment in the past and in the
future.®
WHEREFORE, Plaintiff, KHAl NGUYEN, as Personal Representative and individually on
behalf of MAI TUYET NGUYEN, deceased, and KADEN NGUYEN, a minor, demands judgment
against Defendant, PLANTATION GENERAL HOSPITAL, for all compensable damages allowed by
law and further demands a trial by jury.
COUNT II: VICARIOUS LIABILITY OF PLANTATION GENERAL HOSPITAL FOR THE
NEGLIGENCE OF ITS EMPLOYEES, AGENTS AND/OR APPARENT AGENTS,
INCLUDING BIRMAN, EDOUARD, SANTINI, MACHAN, and RATHBUN
Plaintiff re-alleges and incorporates by reference paragraphs 1 through 60 above as
though fully set forth herein and further alleges the following:
69. Defendant, PLANTATION GENERAL HOSPITAL, by and through BIRMAN, EDOUARD,
SANTINI, MACHAN, RATHBUN, and the physicians, nurses and staff of PLANTATION
GENERAL HOSPITAL, had a duty to provide medical care and treatment within the
prevailing professional standards of care as accepted by reasonably prudent similar
health care providers.
70. Defendant, PLANTATION GENERAL HOSPITAL, by and through its physicians, nurses and
staff, to include but not limited to BIRMAN, EDOUARD, SANTINI, MACHAN, and RATHBUN
breached that duty as follows:
a. Failing to properly and timely recognize fetal distress;
b. Failing to properly and timely treat fetal distress;
c. Failing to recognize and detect a hemorrhage on the July 25, 2012 ultrasound;
d. Failing to report the presence of a hemorrhage on the July 25, 2012 ultrasound;
“Cited from Florida Standard Civil Jury Instructions §§ 501.2(a)-(c).
147).
p.
q.
Failing to recommend clinical correlation and/or further testing as a result of the
July 25, 2012 ultrasound;
Failing to perform a follow-up ultrasound;
Failing to respond to significant changes in MAl TUYET NGUYEN's condition;
Failing to timely identify and report a hemorrhage;
Failing to timely treat a hemorrhage;
Failing to provide timely and appropriate care and treatment to MAI TUYET
NGUYEN;
Negligently attempting to deliver KADEN NGUYEN vaginally;
Negligent use of forceps in attempting delivery of KADEN NGUYEN;
Failing to order a timely STAT C-Section;
Failing to perform at timely STAT C-Section;
Failing to order cord blood gases;
Failing to timely call a Code Blue; and
Failing to timely request and/or call for a Code Blue team.
PLANTATION GENERAL HOSPITALis vicariously liable for the negligent acts of BIRMAN,
EDOUARD, SANTINI, MACHAN, RATHBUN, and the nurses and staff of PLANTATION
GENERAL HOSPITAL, in their failure to properly diagnose, treat, monitor, and care for
MAI TUYET NGUYEN and KADEN NGUYEN.
a
Employment
The physicians, staff, nurses and ARNP’s, including but not limited to, BIRMAN,
EDOUARD, SANTINI, MACHAN, and RATHBUN, were employees of PLANTATION
GENERAL HOSPITAL, as their actions were controlled by PLANTATION GENERAL
HOSPITAL or were subject to PLANTATION GENERAL HOSPITAL’sright of control,
1572.
73.
and because at all times hereto they were acting within the scope of their
employment;”
Actual Agency
. The physicians, staff, nurses and ARNP’s, including but not limited to, BIRMAN,
EDOUARD, SANTINI, MACHAN, and RATHBUN,were actual agents of
PLANTATION GENERAL HOSPITAL as PLANTATION GENERAL HOSPITAL had
authorized them to act on their behalf, and because at the time and place of the
alleged incident, they were acting within the scope of their authority;®
Apparent Agency
The physicians, staff, nurses and ARNP’s, including but not limited to, BIRMAN,
EDOUARD, SANTINI, MACHAN, and RATHBUN,were apparent agents of
PLANTATION GENERAL HOSPITAL, because PLANTATION GENERAL HOSPITAL,
through words and/or conduct, caused or allowed MAI TUYET NGUYEN and
KADEN NGUYEN to believe that the physicians, staff, nurses and ARNP’s, including
but not limited to, BIRMAN, EDOUARD, SANTINI, MACHAN, and RATHBUN,were
agents of, and had authority to act for PPANTATION GENERAL HOSPITAL.?
As a result of these legal relationships with BIRMAN, EDOQUARD, SANTINI, MACHAN, and
RATHBUN, and the nurses and staff of PLANTATION GENERAL HOSPITAL, PLANTATION
GENERAL HOSPITALis vicariously liable for their acts of negligence.
As a direct and proximate result of the negligent conduct of PLANTATION GENERAL
HOSPITAL’s employees, agents and/or apparent agents, including but not limited to
BIRMAN, EDOUARD, SANTINI, MACHAN, and RATHBUN, MAI TUYET NGUYEN suffered a
"Cited from Florida Standard Civil Jury Instructions § 402.9(a)(1).
SCited from Florida Standard Civil Jury Instructions § 402.9(a)(2).
°Cited from Florida Standard Civil Jury Instructions § 402.9(a)(2).
16wrongful death. The following damages are claimed pursuant to Section 768.21, Florida
Statutes:
a. KHAl NGUYEN, as husband of MAI TUYET NGUYEN, claims lost support and
services from the date of MAI TUYET NGUYEN’s injury to her death; future loss of
support and services; loss of companionship and protection; mental pain and
suffering; and any medical and funeral expenses paid by him. These losses are
permanent and continuing in nature, and KHAl NGUYEN will continue to suffer
these losses in the future;!°
b. KRISTEN HUYNH, minor child of MAI TUYET NGUYEN, by and through, KHAI
NGUYEN, as personal representative of the estate, claims lost support and services
from the date of MAI TUYET NGUYEN’s injury to her death; future loss of support
and services; loss of parental companionship, instruction and guidance; and mental
pain and suffering. These losses are permanent and continuing in nature and
KRISTEN HUYNH will continue to suffer these losses in the future;'!
c. KYLIE NGUYEN, minor child of MAI TUYET NGUYEN, by and through, KHAI
NGUYEN, as personal representative of the estate, claims lost support and services
from the date of MAI TUYET NGUYEN’s injury to her death; future loss of support
and services; loss of parental companionship, instruction and guidance; and mental
pain and suffering. These losses are permanent and continuing in nature and KYLIE
NGUYEN will continue to suffer these losses in the future;'?
d. KADEN NGUYEN, minor child of MAI TUYET NGUYEN, by and through, KHAI
NGUYEN, as personal representative of the estate, claims lost support and services
from the date of MAI TUYET NGUYEN’s injury to her death; future loss of support
"Cited from Florida Standard Civil Jury Instructions § 502.2(d)
“Cited from Florida Standard Civil Jury Instructions § 502.2(e).
“Cited from Florida Standard Civil Jury Instructions § 502.2(e).
1774.
75.
76.
and services; loss of parental companionship, instruction and guidance; and mental
pain and suffering. These losses are permanent and continuing in nature and
KADEN NGUYEN will continue to suffer these losses in the future;'3
e. The estate of decedent, MAl TUYET NGUYEN, claims loss of earnings from the date
of injury to the date of death, loss of net accumulations, and medical and funeral
expenses paid by the estate.!4
As a direct and proximate result of the negligent conduct of PLANTATION GENERAL
HOSPITAL’s employees, agents and/or apparent agents, including but not limited to
BIRMAN, EDOUARD, SANTINI, MACHAN, and RATHBUN, KADEN NGUYEN suffered
significant and permanent injuries to include a hypoxic brain injury.
These injuries were preventable, foreseeable, and will continue indefinitely into the future.
KADEN NGUYEN, a minor, has sustained damages in the form of physical and mental pain
and suffering, disability, physical impairment, disfigurement, mental anguish,
inconvenience, loss of capacity for the enjoyment of life, loss of ability to earn an income,
expense of hospitalization, and medical and nursing treatment in the past and in the
future.!5
WHEREFORE, Plaintiff, KHAl NGUYEN, as Personal Representative and individually on
behalf of MAI TUYET NGUYEN, deceased, and KADEN NGUYEN, a minor, demands judgment
against Defendant, PLANTATION GENERAL HOSPITAL, for all compensable damages allowed by
law and further demands a trial by jury.
Cited from Florida Standard Civil Jury Instructions § 502.2(e).
“Cited from Florida Standard Civil Jury Instructions § 502.2(a), (b).
“Cited from Florida Standard Civil Jury Instructions §§ 501.2(a)-(c).
18COUNT III: VICARIOUS LIABILITY OF SUNLIFE OB/GYN SERVICES OF FT. LAUDERDALE, P.A.
FOR THE NEGLIGENCE OF ITS EMPLOYEES, AGENTS AND/OR APPARENT AGENTS,
INCLUDING BIRMAN
Plaintiff re-alleges and incorporates by reference paragraphs 1 through 60 above as
though fully set forth herein and further alleges the following:
77.
78.
Defendant, SUNLIFE OB/GYN, by and through BIRMAN, and the physicians, nurses and
staff of SUNLIFE OB/GYN, had a duty to provide medical care and treatment within the
prevailing professional standards of care as accepted by reasonably prudent similar
health care providers.
Defendant, SUNLIFE OB/GYN, by and through its physicians, nurses and staff, to include
but not limited to BIRMAN, breached that duty as follows:
a.
b.
Failing to properly and timely recognize fetal distress;
Failing to properly and timely treat fetal distress;
Failing to respond to significant changes in MAI TUYET NGUYEN's condition;
Failing to timely identify and report a hemorrhage;
Failing to timely treat a hemorrhage;
Failing to provide timely and appropriate care and treatment to MAI TUYET
NGUYEN;
Negligently attempting to deliver KADEN NGUYEN vaginally;
Negligent use of forceps in attempting delivery of KADEN NGUYEN;
Failing to order a timely STAT C-Section;
Failing to perform at timely STAT C-Section;
Failing to order cord blood gases;
Failing to timely call a Code Blue; and
. Failing to timely request and/or call for a Code Blue team.
1979.
80.
81.
SUNLIFE OB/GYN is vicariously liable for the negligent acts of BIRMAN, and the nurses
and staff of SUNLIFE OB/GYN, in their failure to properly diagnose, treat, monitor, and
care for MAI TUYET NGUYEN and KADEN NGUYEN.
Employment
. The physicians, staff, nurses and ARNP’s, including but not limited to, BIRMAN.,
were employees of SUNLIFE OB/GYN, as their actions were controlled by SUNLIFE
OB/GYN or were subject to SUNLIFE OB/GYN’s right of control, and because at
all times hereto they were acting within the scope of their employment;!
Actual Agency,
. The physicians, staff, nurses and ARNP’s, including but not limited to, BIRMAN, were
actual agents of SUNLIFE OB/GYN as SUNLIFE OB/GYN had authorized them to
act on their behalf, and because at the time and place of the alleged incident,
they were acting within the scope of their authority;'”
Apparent Agency
The physicians, staff, nurses and ARNP'’s, including but not limited to, BIRMAN, were
apparent agents of SUNLIFE OB/GYN, because SUNLIFE OB/GYN, through words
and/or conduct, caused or allowed MAI TUYET NGUYEN and KADEN NGUYEN to
believe that the physicians, staff, nurses and ARNP’s, including but not limited to,
BIRMAN, were agents of, and had authority to act for SUNLIFE OB/GYN.'8
As a result of these legal relationships with BIRMAN, and the nurses and staff of SUNLIFE
OB/GYN, SUNLIFE OB/GYN is vicariously liable for their acts of negligence.
As a direct and proximate result of the negligent conduct of SUNLIFE OB/GYN’s
employees, agents and/or apparent agents, including but not limited to BIRMAN, MAI
"Cited from Florida Standard Civil Jury Instructions § 402.9(a)(1).
“’Cited from Florida Standard Civil Jury Instructions § 402.9(a)(2).
"Cited from Florida Standard Civil Jury Instructions § 402.9(a)(2).
20TUYET NGUYEN suffered a wrongful death. The following damages are claimed pursuant
to Section 768.21, Florida Statutes:
a. KHAl NGUYEN, as husband of MAI TUYET NGUYEN, claims lost support and
services from the date of MAI TUYET NGUYEN’s injury to her death; future loss of
support and services; loss of companionship and protection; mental pain and
suffering; and any medical and funeral expenses paid by him. These losses are
permanent and continuing in nature, and KHAl NGUYEN will continue to suffer
these losses in the future;!?
b. KRISTEN HUYNH, minor child of MAI TUYET NGUYEN, by and through, KHAI
NGUYEN, as personal representative of the estate, claims lost support and services
from the date of MAI TUYET NGUYEN’s injury to her death; future loss of support
and services; loss of parental companionship, instruction and guidance; and mental
pain and suffering. These losses are permanent and continuing in nature and
KRISTEN HUYNH will continue to suffer these losses in the future;2°
c. KYLIE NGUYEN, minor child of MAI TUYET NGUYEN, by and through, KHAI
NGUYEN, as personal representative of the estate, claims lost support and services
from the date of MAI TUYET NGUYEN’s injury to her death; future loss of support
and services; loss of parental companionship, instruction and guidance; and mental
pain and suffering. These losses are permanent and continuing in nature and KYLIE
NGUYEN will continue to suffer these losses in the future;?!
d. KADEN NGUYEN, minor child of MAI TUYET NGUYEN, by and through, KHAI
NGUY
Preview
Filing # 20061864 Electronically Filed 10/31/2014 11:45:21 AM 06-3972 IN THE CIRCUIT COURT OF THE SEVENTEENTH JUDICIAL CIRCUIT, IN AND FOR BROWARD COUNTY, FLORIDA CASE NO.: CACE 14-014218 (04) KHAI NGUYEN, Individually, and as Personal Representative of the Estate of MAI TUYET NGUYEN, Deceased, and on behalf of KRISTEN HUYNH, KYLIE NGUYEN and KADEN NGUYEN, the surviving children of MAI TUYET NGUYEN, and as the natural parent of KADEN NGUYEN, a minor, Plaintiffs, vs, PLANTATION GENERAL HOSPITAL, LP. d/b/a PLANTATION GENERAL HOSPITAL, ALEX BIRMAN, MD, SUNLIFE OB/GYN SERVICES OF FT, LAUDERDALE, P.A., GEORGES EDOUARD, MD, GEORGES EDOUARD, MD, P.A. d/b/a PLANTATION PAVILION OB/GYN, MELISSA MACHAN, ARNP, ROBERTA SANTINI, MD, DORI RATHBUN and FLORIDA UNITED RADIOLOGY, L.C., Defendants. / DEFENDAN ROBERTA SANTINI, MD AND FLORIDA UNITED RADIOLOGY, L.C.’S MOTION TO DISMISS PLA TIFFS’ AMENDED COMPLAINT AND MOTION. TO STRIKE THE INDIVIDUAL CLAIMS The Defendants, ROBERTA SANTINI, MD and FLORIDA UNITED RADIOLOGY, L.C., by and through their undersigned counsel and pursuant to Fla. R. Civ. P. 1.140, move to dismiss the Plaintiffs’ Amended Complaint (attached hereto as Exhibit “A”) and to strike any individual claims, and in support thereof state as follows: *** FILED: BROWARD COUNTY, FL HOWARD FORMAN, CLERK 10/31/2014 11:45:21 AM.****I. Standard Of Review Pursuant to the Florida Rules of Civil Procedure, plaintiffs are required to provide a “short and plain statement of the ultimate facts showing that [they are] entitled to relief.” Fla. R. Civ. P. 1.110(b)(2). Dismissal of a plaintiff’s claim is proper if, when accepting the allegations as true, the complaint fails to state a cause of action. See Fla. R. Civ. P. 1.140(b); Roval & Sunatliance v. Lauderdale Marine Ctr., 877 So. 2d 843, 845 (Fla. 4th DCA 2004). When considering dismissal, “only well pleaded allegations are accepted.’ McRae v. Douglas, 644 So. 2d 1368, 1373 (Fla. 5th DCA 1994). The Court confines its consideration to the “four corners of the complaint,” and whether a prima facie case has been pled depends on the “sufficiency of the plaintiff's allegations of fact, excluding the bare conclusions.” A/varez v. E&A Produce Corp., 708 So. 2d 997, 999-1000 (Fla. 3d DCA 1998). The Court should not accept the pleader’s opinions, conclusions of law, or “unwarranted conclusions of fact.” Esposito v. Horning, 416 So, 2d 896, 898 (Fla. 4th DCA 1982); Ellison v. City of Fort Lauderdale, 175 So, 2d 198, 200 (Fla. 1965). Moreover, the Court may not “by inference or speculation supply essential averments that are lacking.” A/varez, 708 So, 2d at 1000. I. Count XI Of The Amended Complaint Should Be Dismissed Because The Plaintiffs Have Failed To Establish The Existence Of A Partnership Between Defendants, Santini, Plantation General Hospital, Birman, Edouard, And Machan. Count XI of the Plaintiffs’ Amended Complaint should be dismissed because the Plaintiffs do not allege any ultimate facts supporting the existence of a partnership amongst the Defendants that would impose liability upon Dr. Santini for the negligent acts of the other Defendants. Under Florida’s Revised Uniform Partnership Act, “the association of two or more persons to carry on as coowners a business for profit forms a partnership, whether or not the persons intend to form a partnership.” Jackson-Shaw Co. v. Jacksonville Aviation Authority, 8 Page -2-So. 2d 1076, 1090 (Fla. 2008) (quoting § 620.8202(1), Fla. Stat. (2006)). Further, “a person who receives a share of the business’s profits is presumed to be apartner .. ..” Jd. (quoting § 620,8202(3)(c)3, Fla. Stat. (2006). While the Plaintiffs contend that the Defendants, including Dr. Santini, “are liable for each other’s acts” because they “were in partnership with each other,” they fail to support this contention with any concrete facts that would give rise to the existence of a partnership. Rather, the Plaintiffs merely recite the elements of a partnership in hopes of creating a relationship among the Defendants where there is none. Specifically, the Amended Complaint alleges that the Defendants “joined together and/or agreed to join together in a business or venture for their common benefit, each contributing property, money and/or services, and each having an interest in any profits.” Exhibit “A” at paragraph 133. Such bare conclusions, without more, do not constitute the underlying factual allegations sufficient to establish the existence of a partnership among the Defendants. See Eagletech Communications, Inc. v. Bryn Mawr Inv. Group, Inc., 79 So. 3d 855, 864 (Fla. 4th DCA 2012) (quoting Ginsberg v. Lennar Fla. Holdings, 645 So, 2d 490, 501 (Fla. 3d DCA 1994)) (“A party does not properly allege a cause of action by alleging in conclusive form, which tracks the language of the statute, acts which lack factual allegations and merely state bare legal conclusions.”). Thus, the Plaintiffs’ “partnership liability” claim in Count XI should be dismissed for failure to state a cause of action. I. Count XII Of The Amended Complaint Should Be Dismissed Because The Plaintiffs Have Failed To Establish The Existence Of A Joint Venture Between Defendants, Santini, Plantation General Hospital, Birman, Edouard, And Machan. Count XII of the Plaintiffs’ Amended Complaint should be dismissed because the Plaintiffs do not allege any ultimate facts supporting the existence of a joint venture relationship Page -3-that would impose liability upon Dr. Santini for the negligent acts of the other Defendants. In order to state a cause of action based upon the existence of a joint venture, the Plaintiffs must set out the following elements: In addition to the essentials of an ordinary contract, in contracts creating joint ventures there must be (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. See Ely v. Shuman, 233 So. 2d 169, 170 (Fla. 3d DCA 1970). A review of the Amended Complaint reveals that the Plaintiffs have merely regurgitated the definition of a joint venture in an attempt to somehow create a relationship between the Defendants where there is none. The Plaintiffs make the generic allegations that the Defendants were in a joint venture, “as they had combined their resources or efforts and agreed to undertake the medical care and treatment of MAI TUYET 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. Exhibit “A” at paragraph 140. The Amended Complaint fails to allege with any specificity the underlying facts and events giving rise to the existence of a joint venture relationship. Notably, there is no evidence of any firm agreement between the Defendants suggesting a joint proprietary interest in or joint control of the subject matter, nor is there any hint of an arrangement to share in the profits and losses of their alleged joint ownership interest. See Ely, 233 So. 2d at 170. The Plaintiffs’ mere conclusory recitation of the elements of a joint venture, without more, is insufficient to state a cause of action for “joint venture liability.” Id. (“Since appellant’s complaint did not allege by ultimate facts the essential elements necessary to the existence of a joint venture, the trial court properly dismissed it.”). Page -4-Accordingly, the Plaintiffs’ joint venture liability claim in Count XII should be dismissed for failure to state a cause of action. Further, assuming arguendo that this Court finds the Plaintiffs adequately pled a cause of action for “partnership liability” in Count XI, Count XII becomes an essentially identical claim and should be stricken as duplicative. See Fla. R. Civ. P. 1.140(f). Iv. The Individual Claims Brought On Behalf Of KADEN NGUYEN, A Minor, Should Be Dismissed Because The Plaintiffs Failed To Comply With Presuit Notice Requirements As Required By Fla. Stat. § 766.106 and § 766.203. The individual claims brought on behalf of KADEN NGUYEN should be dismissed because the Plaintiffs failed to comply with Fla. Stat. § 766.106 and § 766.203 prior to filing the Amended Complaint. Pursuant to Fla. Stat. § 766.203, “prior to issuing a notification of intent to initiate medical malpractice litigation . . . the claimant shall conduct an investigation to ascertain that there are reasonable grounds to believe that: (a) any named defendant in the litigation was negligent in the care or treatment of the claimant; and (b) such negligence resulted in injury to the claimant.” Additionally, a verified written medical expert opinion corroborating the reasonable grounds to initiate medical negligence litigation must be submitted at the time the notice of intent is mailed to the prospective defendants. Fla. Stat. § 766.203(2)(b). The purpose of the presuit investigation and notice requirements, as well as the providing of an expert corroborative opinion, “is to prevent the filing of baseless litigation,” and to notify the Defendants of the grounds supporting the alleged deviation from the standard of care in order “for the defendant to evaluate the merits of the claim.” Ragoonanan by Ragoonanan v. Associates in Obstetrics & Gynecology, 619 So. 2d 482, 484 (Fla. 2d DCA 1993); Duffy v. Brooker, 614 So. 2d 539, 545 (Fla. Ist DCA 1993). If the court finds the notice of intent to initiate litigation by the claimant does not comply with the procedural requirements of § 766.203, Page -5-“including a review of the claim and a verified written medical expert opinion by an expert witness . . . the court shall dismiss the claim.” Fla. Stat. § 766.206(2). The individual claims on behalf of KADEN NGUYEN should be dismissed because the Notice of Intent and corresponding expert affidavits failed to adequately describe the Defendants’ negligence as it specifically related to their care and treatment of KADEN NGUYEN. While the Notice of Intent and expert affidavits reference the Defendants’ deviation from the prevailing standard of care in treating the deceased, MAI TUYET NGUYEN, they do not refer to the facts and events underlying a potential claim by KADEN NGUYEN. See Notice of Intent to Roberta Santini, MD and Florida United Radiology, L.C. and Supporting Affidavit of Martin Gubernick, MD, attached as Exhibit “B”. Nonetheless, the Amended Complaint incorporates numerous allegations of negligent care and treatment rendered to KADEN NGUYEN in an attempt to circumvent the Plaintiffs’ failure to adequately notify the Defendants of those allegations in presuit. As discussed above, the Notice of Intent and corroborating medical expert affidavits must provide sufficient notice to allow the Defendants a full evaluation of the merits of the claim. Due to the Plaintiffs’ failure in presuit to present the personal injury claim of KADEN NGUYEN or the allegation that Dr. SANTINI’s negligence resulted in the injuries to KADEN NGUYEN, the Defendants were precluded from conducting a thorough review and investigation as required Fla. Stat. § 766.106(3). Thus, consistent with the clear and unambiguous language of Fla. Stat. § 766.206(2), the individual claims on behalf of KADEN NGUYEN should be stricken or dismissed for the Plaintiffs’ failure to comply with the procedural presuit requirements of Fla. Stat. § 766.106 and §766.203. Page -6-Vv. Assuming Arguendo That The Plaintiffs Adequately Complied With Presuit Notice Requirements, The Individual Claims Brought By KHAI NGUYEN On Behalf of KADEN NGUYEN Should Still Be Stricken Or Dismissed Because They Are Improperly Pled. Because this is a wrongful death action, the Plaintiff should be limited to KHAT NGUYEN, as Personal Representative of the Estate of MAI TUYET NGUYEN, deceased. However, in an attempt to incorporate a personal injury action on behalf of KADEN NGUYEN, the Amended Complaint identifies the Plaintiffs as 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 MAT TUYET NGUYEN, and as the natural parent of KADEN NGUYEN, a minor. Pursuant to the Florida Wrongful Death Act, Fla. Stat. § 768.20, the proper party to bring a wrongful death claim is the decedent’s personal representative who shall recover for the benefit of the decedent’s survivors and estate. Thus, KHAI NGUYEN, as Personal Representative, does not have an individual claim on behalf of KADEN NGUYEN, a minor who is still living, for personal injury damages. Any claims on behalf of KADEN NGUYEN for personal injuries need to be separately pled and not hidden within KHAI NGUYEN’s wrongful death claim on behalf of the Estate of MAI TUYET NGUYEN. Because the proper parties are not named and the proper factual predicate does not exist within the Amended Complaint, any individual personal injury claims on behalf of KADEN NGUYEN should be stricken or dismissed from the Amended Complaint. Page -7-CERTIFICATE OF SERVICE WE HEREBY CERTIFY that a true and correct copy of the foregoing was e-filed with the Clerk of Court through the E-Filing Portal on October 31, 2014, and is to be e-served by the Court Clerk to: ALL COUNSEL OF RECORD ON THE ATTACHED SERVICE LIST. CHIMPOULIS, HUNTER & LYNN, P.A. Attorneys for Defs/ROBERTA SANTINI, MD and FLORIDA UNITED RADIOLOGY, L.C. 7901 S.W. 36th Street - Suite 206 Davie, FL 33328 Phone: (954) 463-0033 BY; __4/M. Katherine Hunter M. KATHERINE HUNTER, ESQUIRE Florida Bar No.: 981877 Email = khunter@chl-law.com \\chl-sbs1 \files-04and06-27\06-3972\pleadings\motion to dismiss-santini-florida united radiology.doex Page -8-SERVICE LIST NGUYEN vs. SANTINI, MD, ET AL Case No.: CACE 14-014218 (04) Counsel for Plaintiffs: MARIA D. TEJEDOR, ESQUIRE Diez-Arguelles | Tejedor 505 North Mills Avenue Orlando, FL 32803 (407) 705-2880 Phone (888) 611-7879 FAX # (888) 888-3773 Toll Free Phone EMAIL: maria@theorlandolawyers.com SERVICE OF PLEADINGS — mail@theorlandolawyers.com; Sonia@theorlandolawyers.com; diva@theorlandolawyers.com Counsel for Defendants/Plantation General Hospital and Dori Rathbun: JOHN W. MAURO, ESQUIRE / CAROL J. HEALY GLASGOW, ESQUIRE Billing, Cochran, Lyles, Mauro & Ramsey, P.A. 515 East Las Olas Boulevard 6th Floor SunTrust Center Fort Lauderdale, FL 33301 (954) 764-7150 (954) 764-7279 FAX # EMAIL: jwm@belmr.com; cjg@belmr.com SERVICE OF PLEADINGS - fil-pleadings@belmr.com; aliciag@belmr.com; cjg(@belmr.com Counsel for Defendants/Alex Birman, MD and Sunlife OB/GYN Services: ARIEL D. WIDLANSKY, ESQUIRE Lubell & Rosen, LLC 200 South Andrews Avenue Suite 900 Museum Plaza Fort Lauderdale, FL 33301 (954) 755-3425 (954) 755-2993 FAX # EMAIL: ariel @lubellrosen.com SERVICE OF PLEADINGS ~ ariel@lubellrosen.com; amanda@lubellrosen.com Page -9-Filing # 16972106 Electronically Filed 08/12/2014 08:30:24 AM IN THE CIRCUIT COURT OF THE SEVENTEENTH JUDICIAL CIRCUIT, IN AND FOR BROWARD COUNTY, FLORIDA KHAI NGUYEN, individually, and as Personal CASE NO.: CACE-14014218 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, v. 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., PA, d/b/a PLANTATION PAVILION OB/GYN, MELISSA =MACHAN, — ARNP, ROBERTA SANTINI, M.D., DORI RATHBUN, FLORIDA UNITED RADIOLOGY, L.C., Defendants. AMENDED COMPLAINT COMES NOW the Plaintiff, KHAl 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 attorney and hereby sues the Defendants, 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., MELISSA MACHAN, ARNP, ROBERTA SANTINI, M.D., DORI RATHBUN, and FLORIDA UNITED RADIOLOGY, L.C., and alleges: EXHIBIT AGENERAL ALLEGATIONS This is a civil action for damages in excess of FIFTEEN THOUSAND DOLLARS ($15,000.00), the minimal jurisdictional requirement of this Court, exclusive of costs, interest, and attorneys’ fees. All statutorily required conditions precedent to the maintenance of this action have been performed, have occurred, or have been waived. All requirements of applicable Florida Statutes have timely been complied with prior to the filing of this action. There has been a reasonable investigation to determine whether there are grounds for a good faith belief that there has been negligence in the care and treatment rendered by Defendants in this case, which gives rise to this action. Including time allowed for tolling under section 766.106, Florida Statutes, and in accordance with section 95.11(4)(b), Florida Statutes, this action is being brought within two (2) years of the time in which the negligence leading to the death of MAI TUYET NGUYEN was discovered. Therefore, this action is not barred by any statute of limitations. This action is being brought prior to KADEN NGUYEN’s eighth birthday and in accordance with Florida Statute 95.11(4)(b) and is not barred by any statute of limitations. KHAI NGUYEN only recently became aware that there was a reasonable possibility that the injuries sustained by KADEN NGUYEN were the result of medical malpractice. In accordance with Tanner v. Hartog, 618 So. 2d 177 (Fla. 1993), the statute of limitations did not begin to run until KHAl NGUYEN became aware of such reasonable possibility. KHAI NGUYEN is the surviving spouse of MAI TUYET NGUYEN, and is currently in the process of being appointed as Personal Representative of the Estate of MAI TUYET NGUYEN.10. 11. 12. 13. 14, 15. 16. KHAI NGUYEN and MAI TUYET NGUYEN, deceased, are the natural parents of KADEN NGUYEN, a minor. KRISTEN HUYNH was born on August 3, 1999, and therefore, was a minor child within the meaning of Florida Statute 768.18 at the time of MAl TUYET NGUYEN’s death. KYLIE NGUYEN was born on October 29, 2008, and therefore, was a minor child within the meaning of Florida Statute 768.18 at the time of MAl TUYET NGUYEN’s death. KADEN NGUYEN was born on July26, 2012, and therefore, was a minor child within the meaning of Florida Statute 768.18 at the time of MAl TUYET NGUYEN’s death. At all times material hereto, PLANTATION GENERAL HOSPITAL, L.P. d/b/a PLANTATION GENERAL HOSPITAL (“PLANTATION GENERAL HOSPITAL”) was and is a limited partnership with this principal place of business in Nashville, Tennessee that owns and operates a licensed hospital providing medical care and treatment in Broward County, Florida. At all times material hereto,SUNLIFE OB/GYN SERVICES OF FT. LAUDERDALE, P.A. ("SUNLIFE OB/GYN")was a Florida corporation, licensed to do business within the State of Florida, and whose principal place of business was in Broward County, Florida. At all times material hereto, GEORGES EDOUARD, M.D., P.A. d/b/a PLANTATION PAVILION OB/GYN (“PLANTATION PAVILION OB/GYN”) was a Florida corporation, licensed to do business within the State of Florida, and whose principal place of business is in Broward County, Florida. At all times material hereto, FLORIDA UNITED RADIOLOGY, L.C. (“FLORIDA UNITED RADIOLOGY”) was a Florida limited liability company, licensed to do business within the State of Florida, and whose principal place of business is in Broward County, Florida. At all times material hereto,ALEX BIRMAN, M.D. (“BIRMAN”) was a physician licensed to practice medicine in the State of Florida.17. 18. 19. 20. 21. 22. 23. 24. 25. 26. 27. 28. 29. At all times material hereto, BIRMAN was an employee, agent, and/or apparent agent of SUNLIFE OB/GYN. At all times material hereto, GEORGES EDOUARD, M.D. (“EDOUARD”) was a physician licensed to practice medicine in the State of Florida. At all times material hereto, EDOUARD was an employee, agent, and/or apparent agent of PLANTATION PAVILION OB/GYN. At all time material hereto, ROBERTA SANTINI, M.D. (“SANTINI”) was a physician licensed to practice medicine in the State of Florida. At all times material hereto, SANTINI was an employee, agent, and/or apparent agent of FLORIDA UNITED RADIOLOGY. At all times material hereto, MELISSA MACHAN (“MACHAN”) was an advanced registered nurse practitioner in the State of Florida. At all times material hereto, DORI RATHBUN (“RATHBUN”) was a radiology technician in the State of Florida. At all times material hereto, BIRMAN, EDQUARD, SANTINI, MACHAN, and RATHBUN were employees, agents, and/or apparent agents of PLANTATION GENERAL HOSPITAL. In December of 2011, MAI TUYET NGUYEN began her prenatal care with EDOUARD. On July 25, 2012, at 9:35 P.M., MAI TUYET NGUYEN presented to Plantation General Hospitalwith complaintsof abdominal pain, and decreased fetal movement. A bedside ultrasoundperformed at 10:40 P.M. indicated abnormal amniotic fluid "which may represent meconium versus hemorrhage.” RATHBUN, the radiology technician at PLANTATION GENERAL HOSPITAL, produced images and then reviewed the results from the ultrasound. The ultrasound was then interpreted by ROBERTA SANTINI, M.D.30. 31. 32. 33. 34. 35. 36. 37. 38. The ultrasound contained a dense echogenic material throughout the gestinal sac, which was strongly suggestive of a massive hemorrhage. Both SANTINI and RATHBUN failed to identify the hemorrhage, and/or alert the care providers of the presence of a possible hemorrhage. MAI TUYET NGUYEN was admitted by EDOUARD 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. 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 MAl TUYET NGUYEN was stored, dispensed and provided by Plantation General Hospital for use in inducing labor. At 2:05 AM., on July 26, 2012, Pamela Nelson, RN, administered 25 mg of Cytotec vaginally to MAI TUYET NGUYEN. Prior to being administered the Cytotec, MAl 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. Fetal hearing monitoring indicated variable decelerations indicative of umbilical cord compression. At 5:30 A.M., another dosage of 25 mg of Cytotec was administered vaginally by Pamela Nelson, RN. 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.39. 40. 4). 42. 43. 44, 45. 46. 47. 48. 49. 50. At approximately 8:35 A.M., Jean Reynolds, RN, preformed a vaginal exam which revealed vaginal bleeding. EDOUARD was notified at 8:40 A.M. of the bleeding, and was told to come to Plantation General Hospital. Although 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. At 8:46 A.M., MAI TUYET NGUYEN was administered oxygen. At 8:55 A.M., Jean Reynolds, RN called EDOUARD and informed him the MAI TUYET NGUYEN was completely dilated and wanting to push. At 9:00 A.M., MAI TUYET NGUYEN became unresponsive. A Rapid Response Team was called, however a Code Blue was not called. 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. BIRMAN arrived at MAIUYET NGUYEN’s bedside at 9:05 A.M., and attempted a forceps delivery, which failed. Despite MAIUYET NGUYEN being non-responsive since 9:00 A.M., a Code Blue was not called until 9:06 A.M. By 9:07 A.M. MAIUTYET NGUYEN had no palpable pulse, and was in asystole. MAIUYET NGUYEN was then intubated. 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. KADEN NGUYEN was delivered via C-Section by BIRMAN at 9:14 A.M. MACHAN was the attending certified registered nurse anesthetist (CRNA).51. 52. 53. 54. 55. 56. 57. 58. 59. 60. After KADEN NGUYEN was delivered, EDOQUARD arrived at bedside and assisted with delivery of the placenta. The uterus was placed back into the abdomen and the abdominal incision was left open while CPR efforts continued at MAIUTYET NGUYEN’s bedside. Despite continued CPR and resuscitative efforts, MAIUYET NGUYEN remained unresponsive. MAIUTYET NGUYEN was pronounced deadat 9:41 A.M. on July 26, 2012. 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. KADEN NGUYEN's one (1) minute APGAR was a 1. KADEN NGUYEN was intubated at three (3) minutes of life. Despite intubation and aggressive resuscitative efforts, his AGPARs remained abnormally low with an APGAR of 3 at five (5) minutes, and an APGAR of 4 at ten (10) minutes. 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. 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. These injuries sustained by KADEN NGUYEN were preventable, foreseeable, and will continue indefinitely into the future.COUNT I: NEGLIGENCE OF PLANTATION GENERAL HOSPITAL FOR BREACH OF NON- DELEGABLE DUTY Plaintiff re-alleges and incorporates by reference paragraphs 1 through 60 above as though fully set forth herein and further alleges the following: 61. Defendant, PLANTATION GENERAL HOSPITAL, selected, retained, hired, and/or credentialed BIRMAN, EDOUARD, SANTINI, MACHAN, and RATHBUN for the purpose of providing medical care and treatment to MAI TUYET NGUYEN and/or KADEN NGUYEN. 62. At all times material hereto, the Defendant, 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. 63. This duty is created by: a. Under the terms of the consent agreement MAI TUYET NGUYEN signed at PLANTATION GENERAL HOSPITAL, PLANTATION GENERAL HOSPITAL had a non- delegable duty to provide physicians and staff to properly and safely treat MAI TUYET NGUYEN and KADEN NUGYEN. SeePope v. Winter Park Healthcare Group, Ltd., 939 So. 2d 185 (Fla. 5th DCA 2006); and Shands Teaching Hosp. & Clinic, Inc. v. Juliana, 863 So. 2d 343 (Fla. 1st DCA 2003). A copy of the consent agreement is attached hereto as Exhibit A. b. Rule 59A-3.254, Florida Administrative Code requires that every hospital develop policies and procedures for assessment of patients, reassessment of patients, coordination of care to include role of the physician, patient and family education, discharge planning and criteria, and documentation; c. Rule 59A-3.2085(3)(a), Florida Administrative Code requires that every hospital providing operative or other invasive procedures, such as PLANTATION GENERALHOSPITAL, be organized under written policies and procedures, and these procedures require a determination of appropriateness based on, among other things, diagnostic data and the risks/benefits of the procedure; Rule 59A-3.2085(4)(a)-(b), Florida Administrative Code requires that every hospital providing surgical or obstetrical services, shall have an anesthesia department, directed by a physician member of the organized professional staff. The anesthesia department of each hospital shall have written policies and procedures that are approved by the organized medical staff, are reviewed annually, dated at time of last review, revised, and enforced as necessary. The responsibilities and qualifications of all anesthesia personnel, including physicians, nurses, anesthetists, and all trainees, must be defined in a policy statement, job description, or other appropriate document. The physicians rendering care to MAl TUYET NGUYEN at PLANTATION GENERAL HOSPITAL were not privately retained by MAI TUYET NGUYEN. See Shands Teaching Hosp. and Clinic, Inc. v. Juliana, 863 So. 2d 343, 349 (Fla. 1st DCA 2003) (citing Hippocrates Mertsaris v. 73rd Corp.,105 A.D.2d 67, 482 N.Y.S.2d 792, 801( N.Y. 1984)). See Newbold-Ferguson v. AMISUB (North Ridge Hospital), Inc., 85 So. 3d 502, 505 (Fla. 4th DCA 2012). Under Section 766.110, Florida Statutes, PLANTATION GENERAL HOSPITAL had a duty to assure the competence of their medical staff through careful selection and review. See St. Anthony's Hosp., Inc. v. Lewis, 652 So. 2d 386, 387 (Fla. 2d DCA1995); see also Palms West Hosp. Ltd. Partnership v. Burns, 83 So. 3d 785, 787 (Fla. 4th DCA 2011) (quoting St. Anthony's Hosp., Inc. v. Lewis), and describing section 766.110, Florida Statutes (2009) as a provision creating a “duty to assure competence of medical staff members”).64. g. Under 42 C.F.R. § 482.12, PLANTATION GENERAL HOSPITAL had a duty to create and maintain a governing body to: (1) ensure that all services performed are provided in a safe and effective manner, See 42 C.F.R. § 482.1 2(e); (2) define, implement and maintain ongoing safety initiatives that address priorities for improved quality of care and patient safety. See 42 CFR. § 482.21 (e); (3 create and organize medical staff that operates under by laws and is responsible for the quality of medical care provided to patients by the hospital. See 42 C.F.R. § 482.22; (4) create guidelines for staff that "[i]nclude criteria for determining the privileges to be granted to individual practitioners and a procedure for applying the criteria to individuals requesting privileges. See 42 C.F.R. § 482.22(c)(6); See Stewart v. Stamford Radiological Assocs. PC, No. FSTCV054006288S, 2008 WL 344610 (Jan. 22, 2008); See also Hinojosav. Perez, 214 F. Supp. 703, 705-06 (S.D. Tex. 2002); This duty was breached by PLANTATION GENERAL HOSPITAL in the following ways: a. Negligently failing to establish and implement adequate policies, protocols and procedures for the admission, monitoring, evaluation, testing and referral to medical specialists of patients presenting with hemorrhaging, fetal distress, and signs and symptoms of abnormal amniotic fluid; b. Negligently failing to establish and implement adequate policies, protocols and procedures regarding the proper utilization of Misoprostol (Cytotec); 10Negligently failing to establish and implement adequate policies, protocols and procedures with regards performing a timely C-Section on patients presenting with hemorrhaging, fetal distress, and signs and symptoms of abnormal amniotic fluid; Negligently failing to educate, train, and/or supervise nurses and physicians in the appropriate recognition of fetal distress, and the proper responsive treatment for fetal distress; Negligently failing to educate, train, and/or supervise nurses and physicians in the appropriate recognition of hemorrhaging, and the proper responsive treatment for hemorrhaging; Negligently failing to educate, train, and/or supervise nurses and physicians in the appropriate recognition of abnormal amniotic fluid, and the proper responsible treatment for abnormal amniotic fluid; Negligently failing to educate, train, and/or supervise nurses and physicians in the proper utilization of Misoprostol (Cytotec); By negligently failing to have appropriately skilled and trained physicians and other medical staff on duty in the delivery room and neonatal unit when MAI TUYET NGUYEN presented with risk factors for hemorrhaging, fetal distress, and abnormal amniotic fluid; and By negligently failing to assure proper risk management by failing to establish protocols in (a)-(h) above and by failing to investigate and determine whether the physicians, nurses, ARNPs, technicians, residents, and staff members of PLANTATION GENERAL HOSPITAL were appropriately trained, experienced, and skilled to diagnose and treat mothers with hemorrhaging, fetal distress, abnormal amniotic fluid, deliveries complicated by fetal distress, and post-delivery neonatal care of an infant. 1165. As a direct and proximate result of these deviations from the standard of care by Defendant, PLANTATION GENERAL HOSPITAL, MAL TUYET NGUYEN and KADEN NGUYEN were negligently evaluated and treated by BIRMAN, EDOUARD, SANTINI, MACHAN, and RATHBUN, and the physicians, residents, nurses, technicians, and staff of PLANTATION GENERAL HOSPITAL, and as a result MAI TUYET NGUYEN suffered a wrongful death. The following damages are claimed pursuant to Section 768.21, Florida Statutes: a. KHAl NGUYEN, as husband of MAI TUYET NGUYEN, claims lost support and services from the date of MAl TUYET NGUYEN’s injury to her death; future loss of support and services; loss of companionship and protection; mental pain and suffering; and any medical and funeral expenses paid by him. These losses are permanent and continuing in nature, and KHAl NGUYEN will continue to suffer these losses in the future;! b. KRISTEN HUYNH, minor child of MAI TUYET NGUYEN, by and through, KHAI NGUYEN, as personal representative of the estate, claims lost support and services from the date of MAI TUYET NGUYEN’s injury to her death; future loss of support and services; loss of parental companionship, instruction and guidance; and mental pain and suffering. These losses are permanent and continuing in nature and KRISTEN HUYNH will continue to suffer these losses in the future;? c. KYLIE NGUYEN, minor child of MAI TUYET NGUYEN, by and through, KHAI NGUYEN, as personal representative of the estate, claims lost support and services from the date of MAI TUYET NGUYEN’s injury to her death; future loss of support and services; loss of parental companionship, instruction and guidance; and mental ‘Cited from Florida Standard Civil Jury Instructions § 502.2(d) *Cited from Florida Standard Civil Jury Instructions § 502.2(e). 1266. 67. 68. pain and suffering. These losses are permanent and continuing in nature and KYLIE NGUYEN will continue to suffer these losses in the future;? d. KADEN NGUYEN, minor child of MAI TUYET NGUYEN, by and through, KHAI NGUYEN, as personal representative of the estate, claims lost support and services from the date of MAI TUYET NGUYEN’s injury to her death; future loss of support and services; loss of parental companionship, instruction and guidance; and mental pain and suffering. These losses are permanent and continuing in nature and KADEN NGUYEN will continue to suffer these losses in the future;4 e. The estate of decedent, MAI TUYET NGUYEN, claims loss of earnings from the date of injury to the date of death, loss of net accumulations, and medical and funeral expenses paid by the estate.> As a direct and proximate result of the negligent conduct of PLANTATION GENERAL HOSPITAL, KADEN NGUYENwas negligently evaluated and treated by BIRMAN, EDOUARD, SANTINI, MACHAN, and RATHBUN, and the physicians, residents, nurses, technicians, and staff of PLANTATION GENERAL HOSPITAL. As a result,;KADEN NGUYEN suffered significant and permanent injuries to include a hypoxic brain injury. These injuries were preventable, foreseeable, and will continue indefinitely into the future. KADEN NGUYEN, a minor, has sustained damages in the form of physical and mental pain and suffering, disability, physical impairment, disfigurement, mental anguish, inconvenience, loss of capacity for the enjoyment of life, loss of ability to earn an income, *Cited from Florida Standard Civil Jury Instructions § 502.2(e). ‘Cited from Florida Standard Civil Jury Instructions § 502.2(e). ‘Cited from Florida Standard Civil Jury Instructions § 502.2(a), (b). 13expense of hospitalization, and medical and nursing treatment in the past and in the future.® WHEREFORE, Plaintiff, KHAl NGUYEN, as Personal Representative and individually on behalf of MAI TUYET NGUYEN, deceased, and KADEN NGUYEN, a minor, demands judgment against Defendant, PLANTATION GENERAL HOSPITAL, for all compensable damages allowed by law and further demands a trial by jury. COUNT II: VICARIOUS LIABILITY OF PLANTATION GENERAL HOSPITAL FOR THE NEGLIGENCE OF ITS EMPLOYEES, AGENTS AND/OR APPARENT AGENTS, INCLUDING BIRMAN, EDOUARD, SANTINI, MACHAN, and RATHBUN Plaintiff re-alleges and incorporates by reference paragraphs 1 through 60 above as though fully set forth herein and further alleges the following: 69. Defendant, PLANTATION GENERAL HOSPITAL, by and through BIRMAN, EDOUARD, SANTINI, MACHAN, RATHBUN, and the physicians, nurses and staff of PLANTATION GENERAL HOSPITAL, had a duty to provide medical care and treatment within the prevailing professional standards of care as accepted by reasonably prudent similar health care providers. 70. Defendant, PLANTATION GENERAL HOSPITAL, by and through its physicians, nurses and staff, to include but not limited to BIRMAN, EDOUARD, SANTINI, MACHAN, and RATHBUN breached that duty as follows: a. Failing to properly and timely recognize fetal distress; b. Failing to properly and timely treat fetal distress; c. Failing to recognize and detect a hemorrhage on the July 25, 2012 ultrasound; d. Failing to report the presence of a hemorrhage on the July 25, 2012 ultrasound; “Cited from Florida Standard Civil Jury Instructions §§ 501.2(a)-(c). 147). p. q. Failing to recommend clinical correlation and/or further testing as a result of the July 25, 2012 ultrasound; Failing to perform a follow-up ultrasound; Failing to respond to significant changes in MAl TUYET NGUYEN's condition; Failing to timely identify and report a hemorrhage; Failing to timely treat a hemorrhage; Failing to provide timely and appropriate care and treatment to MAI TUYET NGUYEN; Negligently attempting to deliver KADEN NGUYEN vaginally; Negligent use of forceps in attempting delivery of KADEN NGUYEN; Failing to order a timely STAT C-Section; Failing to perform at timely STAT C-Section; Failing to order cord blood gases; Failing to timely call a Code Blue; and Failing to timely request and/or call for a Code Blue team. PLANTATION GENERAL HOSPITALis vicariously liable for the negligent acts of BIRMAN, EDOUARD, SANTINI, MACHAN, RATHBUN, and the nurses and staff of PLANTATION GENERAL HOSPITAL, in their failure to properly diagnose, treat, monitor, and care for MAI TUYET NGUYEN and KADEN NGUYEN. a Employment The physicians, staff, nurses and ARNP’s, including but not limited to, BIRMAN, EDOUARD, SANTINI, MACHAN, and RATHBUN, were employees of PLANTATION GENERAL HOSPITAL, as their actions were controlled by PLANTATION GENERAL HOSPITAL or were subject to PLANTATION GENERAL HOSPITAL’sright of control, 1572. 73. and because at all times hereto they were acting within the scope of their employment;” Actual Agency . The physicians, staff, nurses and ARNP’s, including but not limited to, BIRMAN, EDOUARD, SANTINI, MACHAN, and RATHBUN,were actual agents of PLANTATION GENERAL HOSPITAL as PLANTATION GENERAL HOSPITAL had authorized them to act on their behalf, and because at the time and place of the alleged incident, they were acting within the scope of their authority;® Apparent Agency The physicians, staff, nurses and ARNP’s, including but not limited to, BIRMAN, EDOUARD, SANTINI, MACHAN, and RATHBUN,were apparent agents of PLANTATION GENERAL HOSPITAL, because PLANTATION GENERAL HOSPITAL, through words and/or conduct, caused or allowed MAI TUYET NGUYEN and KADEN NGUYEN to believe that the physicians, staff, nurses and ARNP’s, including but not limited to, BIRMAN, EDOUARD, SANTINI, MACHAN, and RATHBUN,were agents of, and had authority to act for PPANTATION GENERAL HOSPITAL.? As a result of these legal relationships with BIRMAN, EDOQUARD, SANTINI, MACHAN, and RATHBUN, and the nurses and staff of PLANTATION GENERAL HOSPITAL, PLANTATION GENERAL HOSPITALis vicariously liable for their acts of negligence. As a direct and proximate result of the negligent conduct of PLANTATION GENERAL HOSPITAL’s employees, agents and/or apparent agents, including but not limited to BIRMAN, EDOUARD, SANTINI, MACHAN, and RATHBUN, MAI TUYET NGUYEN suffered a "Cited from Florida Standard Civil Jury Instructions § 402.9(a)(1). SCited from Florida Standard Civil Jury Instructions § 402.9(a)(2). °Cited from Florida Standard Civil Jury Instructions § 402.9(a)(2). 16wrongful death. The following damages are claimed pursuant to Section 768.21, Florida Statutes: a. KHAl NGUYEN, as husband of MAI TUYET NGUYEN, claims lost support and services from the date of MAI TUYET NGUYEN’s injury to her death; future loss of support and services; loss of companionship and protection; mental pain and suffering; and any medical and funeral expenses paid by him. These losses are permanent and continuing in nature, and KHAl NGUYEN will continue to suffer these losses in the future;!° b. KRISTEN HUYNH, minor child of MAI TUYET NGUYEN, by and through, KHAI NGUYEN, as personal representative of the estate, claims lost support and services from the date of MAI TUYET NGUYEN’s injury to her death; future loss of support and services; loss of parental companionship, instruction and guidance; and mental pain and suffering. These losses are permanent and continuing in nature and KRISTEN HUYNH will continue to suffer these losses in the future;'! c. KYLIE NGUYEN, minor child of MAI TUYET NGUYEN, by and through, KHAI NGUYEN, as personal representative of the estate, claims lost support and services from the date of MAI TUYET NGUYEN’s injury to her death; future loss of support and services; loss of parental companionship, instruction and guidance; and mental pain and suffering. These losses are permanent and continuing in nature and KYLIE NGUYEN will continue to suffer these losses in the future;'? d. KADEN NGUYEN, minor child of MAI TUYET NGUYEN, by and through, KHAI NGUYEN, as personal representative of the estate, claims lost support and services from the date of MAI TUYET NGUYEN’s injury to her death; future loss of support "Cited from Florida Standard Civil Jury Instructions § 502.2(d) “Cited from Florida Standard Civil Jury Instructions § 502.2(e). “Cited from Florida Standard Civil Jury Instructions § 502.2(e). 1774. 75. 76. and services; loss of parental companionship, instruction and guidance; and mental pain and suffering. These losses are permanent and continuing in nature and KADEN NGUYEN will continue to suffer these losses in the future;'3 e. The estate of decedent, MAl TUYET NGUYEN, claims loss of earnings from the date of injury to the date of death, loss of net accumulations, and medical and funeral expenses paid by the estate.!4 As a direct and proximate result of the negligent conduct of PLANTATION GENERAL HOSPITAL’s employees, agents and/or apparent agents, including but not limited to BIRMAN, EDOUARD, SANTINI, MACHAN, and RATHBUN, KADEN NGUYEN suffered significant and permanent injuries to include a hypoxic brain injury. These injuries were preventable, foreseeable, and will continue indefinitely into the future. KADEN NGUYEN, a minor, has sustained damages in the form of physical and mental pain and suffering, disability, physical impairment, disfigurement, mental anguish, inconvenience, loss of capacity for the enjoyment of life, loss of ability to earn an income, expense of hospitalization, and medical and nursing treatment in the past and in the future.!5 WHEREFORE, Plaintiff, KHAl NGUYEN, as Personal Representative and individually on behalf of MAI TUYET NGUYEN, deceased, and KADEN NGUYEN, a minor, demands judgment against Defendant, PLANTATION GENERAL HOSPITAL, for all compensable damages allowed by law and further demands a trial by jury. Cited from Florida Standard Civil Jury Instructions § 502.2(e). “Cited from Florida Standard Civil Jury Instructions § 502.2(a), (b). “Cited from Florida Standard Civil Jury Instructions §§ 501.2(a)-(c). 18COUNT III: VICARIOUS LIABILITY OF SUNLIFE OB/GYN SERVICES OF FT. LAUDERDALE, P.A. FOR THE NEGLIGENCE OF ITS EMPLOYEES, AGENTS AND/OR APPARENT AGENTS, INCLUDING BIRMAN Plaintiff re-alleges and incorporates by reference paragraphs 1 through 60 above as though fully set forth herein and further alleges the following: 77. 78. Defendant, SUNLIFE OB/GYN, by and through BIRMAN, and the physicians, nurses and staff of SUNLIFE OB/GYN, had a duty to provide medical care and treatment within the prevailing professional standards of care as accepted by reasonably prudent similar health care providers. Defendant, SUNLIFE OB/GYN, by and through its physicians, nurses and staff, to include but not limited to BIRMAN, breached that duty as follows: a. b. Failing to properly and timely recognize fetal distress; Failing to properly and timely treat fetal distress; Failing to respond to significant changes in MAI TUYET NGUYEN's condition; Failing to timely identify and report a hemorrhage; Failing to timely treat a hemorrhage; Failing to provide timely and appropriate care and treatment to MAI TUYET NGUYEN; Negligently attempting to deliver KADEN NGUYEN vaginally; Negligent use of forceps in attempting delivery of KADEN NGUYEN; Failing to order a timely STAT C-Section; Failing to perform at timely STAT C-Section; Failing to order cord blood gases; Failing to timely call a Code Blue; and . Failing to timely request and/or call for a Code Blue team. 1979. 80. 81. SUNLIFE OB/GYN is vicariously liable for the negligent acts of BIRMAN, and the nurses and staff of SUNLIFE OB/GYN, in their failure to properly diagnose, treat, monitor, and care for MAI TUYET NGUYEN and KADEN NGUYEN. Employment . The physicians, staff, nurses and ARNP’s, including but not limited to, BIRMAN., were employees of SUNLIFE OB/GYN, as their actions were controlled by SUNLIFE OB/GYN or were subject to SUNLIFE OB/GYN’s right of control, and because at all times hereto they were acting within the scope of their employment;! Actual Agency, . The physicians, staff, nurses and ARNP’s, including but not limited to, BIRMAN, were actual agents of SUNLIFE OB/GYN as SUNLIFE OB/GYN had authorized them to act on their behalf, and because at the time and place of the alleged incident, they were acting within the scope of their authority;'” Apparent Agency The physicians, staff, nurses and ARNP'’s, including but not limited to, BIRMAN, were apparent agents of SUNLIFE OB/GYN, because SUNLIFE OB/GYN, through words and/or conduct, caused or allowed MAI TUYET NGUYEN and KADEN NGUYEN to believe that the physicians, staff, nurses and ARNP’s, including but not limited to, BIRMAN, were agents of, and had authority to act for SUNLIFE OB/GYN.'8 As a result of these legal relationships with BIRMAN, and the nurses and staff of SUNLIFE OB/GYN, SUNLIFE OB/GYN is vicariously liable for their acts of negligence. As a direct and proximate result of the negligent conduct of SUNLIFE OB/GYN’s employees, agents and/or apparent agents, including but not limited to BIRMAN, MAI "Cited from Florida Standard Civil Jury Instructions § 402.9(a)(1). “’Cited from Florida Standard Civil Jury Instructions § 402.9(a)(2). "Cited from Florida Standard Civil Jury Instructions § 402.9(a)(2). 20TUYET NGUYEN suffered a wrongful death. The following damages are claimed pursuant to Section 768.21, Florida Statutes: a. KHAl NGUYEN, as husband of MAI TUYET NGUYEN, claims lost support and services from the date of MAI TUYET NGUYEN’s injury to her death; future loss of support and services; loss of companionship and protection; mental pain and suffering; and any medical and funeral expenses paid by him. These losses are permanent and continuing in nature, and KHAl NGUYEN will continue to suffer these losses in the future;!? b. KRISTEN HUYNH, minor child of MAI TUYET NGUYEN, by and through, KHAI NGUYEN, as personal representative of the estate, claims lost support and services from the date of MAI TUYET NGUYEN’s injury to her death; future loss of support and services; loss of parental companionship, instruction and guidance; and mental pain and suffering. These losses are permanent and continuing in nature and KRISTEN HUYNH will continue to suffer these losses in the future;2° c. KYLIE NGUYEN, minor child of MAI TUYET NGUYEN, by and through, KHAI NGUYEN, as personal representative of the estate, claims lost support and services from the date of MAI TUYET NGUYEN’s injury to her death; future loss of support and services; loss of parental companionship, instruction and guidance; and mental pain and suffering. These losses are permanent and continuing in nature and KYLIE NGUYEN will continue to suffer these losses in the future;?! d. KADEN NGUYEN, minor child of MAI TUYET NGUYEN, by and through, KHAI NGUY