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IN THE CIRCUIT COURT OF THE
NINTH JUDICIAL CIRCUIT IN AND
FOR ORANGE COUNTY, FLORIDA
CASE NO. 2008-CA-011228-O
DIVISION: 39
MARCELO DIAZ, as Personal
Representative of the Estate of HERMINIA
Lydia Gardner
DIAZ,
Plaintiff,
vs.
2011 Feb 28 05:39 PM
HARINATH SHEELA, M.D.; DIGESTIVE
AND LIVER CENER OF FLORIDA, P.A.,
ADVENTIST HEALTH
SYSTEM/SUNBELT, INC., d/b/a
FLORIDA HOSPITAL ORLANDO, and
d/b/a FLORIDA HOSPITAL APOPKA,
JUNIAS DESAMOUR, M.D., and MID-
FLORIDA HOSPITAL SPECIALISTS,
eFiled in the Office of Clerk of Court, Orange County Florida
P.A.,
Defendants
/
DEFENDANT, ADVENTIST HEALTH SYSTEM/SUNBELT, INC., d/b/a
FLORIDA HOSPITAL ORLANDO, and d/b/a FLORIDA HOSPITAL APOPKA’S,
MOTION TO DISMISS AND/OR MOTION TO STRIKE
THIRD AMENDED COMPLAINT
COMES NOW the Defendant, ADVENTIST HEALTH SYSTEM/SUNBELT, INC. d/b/a
FLORIDA HOSPITAL ORLANDO, and d/b/a FLORIDA HOSPITAL APOPKA, by and through
the undersigned attorneys, and pursuant to Florida Rule of Civil Procedure 1.140 and §§ 766.106,
766.206(1), Florida Statutes (2010), hereby moves this Court to dismiss Counts III and VIII of the
Plaintiff’s Third Amended Complaint and/or strike certain allegations due to a legally deficient
presuit investigation. As grounds therefore, this Defendant states the following:
1. This is a cause of action based in alleged medical malpractice.
2. Prior to the filing of the initial complaint, this Defendant participated in a presuit
investigative process commenced by the service of a Notice of Intent to Initiate Litigation by the
Plaintiff. Specifically, this Notice of Intent, dated September 10, 2008, provides that:
The claims being made against Adventist Health System/Sunbelt, Inc. d/b/a Florida
Hospital Apopka are for vicarious claims for the negligence of Dr. H. Kenneth West
and Dr. Junias Desamour as well as the direct negligence of Adventist Health
System/Sunbelt, Inc.[] d/b/a Florida Hospital Apopka[’s] agents and/or employees
for failing to timely and properly assess and treat [] Mrs. Diaz.
(See Notice of Intent to Initiate Litigation attached hereto as Exhibit “A”.)
3. In support of such Notice of Intent, the Plaintiff attached the affidavit of David A.
Morowitz, M.D., a Board Certified Physician in Internal Medicine and Gastroenterology.
4. The Plaintiff recently filed a Third Amended Complaint against this Defendant (and
other Defendants) in which the Plaintiff has asserted that this Defendant is vicariously liable for
negligence of its nurses and employees, including Harinath Sheela, M.D., Kenneth West, M.D.,
Junias Desmour, M.D., and Suhan Li, M.D. (See Third Am. Compl. Counts III, IV, V and VIII).
5. The Plaintiff further alleges that a CT scan of the decedent’s abdomen “was either
incorrectly read or the results were unappreciated,” and that “the radiologist and whomever read the
CT scan failed to obtain consults in a timely manner.” (See Third Am. Compl. ¶¶ 23, 24, and 30.)
6. The Plaintiff, however, failed to conduct a legally sufficient presuit investigation
and/or place this Defendant on notice, either in the Notice of Intent or through responses to requests
for presuit information, as to the alleged negligence of Dr. Harinath Sheela, Dr. Suhan Li or of the
unnamed radiologist who allegedly misread or mishandled an imaging study of the decedent.
7. Prior to initiating a medical malpractice suit, “the plaintiff must conduct an
investigation to determine if a named defendant was in fact negligent and [whether] such
negligence resulted in the claimed injury.” Univ. of Miami v. Wilson, 948 So. 2d 774, 776 (Fla. 3d
DCA 2006); see §§ 766.106, 766.203, Fla. Stat. (2010). The investigation must consist of a “(1)
review of the case against each potential defendant; (2) consultation with a medical expert; and (3)
written corroboration of negligence by a medical expert.” See Largie v. Gregorian, 913 So. 2d 635,
638 (Fla. 3d DCA 2005); see §§ 766.106, 766.203, 766.202, Fla. Stat. (2010). After completing
[this] presuit investigation, any party may file a motion “requesting the court to determine whether
the opposing party’s claim or denial rests on a reasonable basis.” § 766.206(1), Fla. Stat. (2010). If
the court finds that the notice of intent to initiate litigation is fatally defective and not in compliance
with these presuit investigation requirements, the court is required to dismiss the claim. §
766.206(2), Fla. Stat. (2010).
8. The underlying purpose of this statutory scheme is to provide for meaningful presuit
investigation, discovery, and negotiations, so as to screen out frivolous lawsuits, and encourage
early determination and prompt resolution of claims. See Wilson, 948 So. 2d 774, 777; (citing
Kukral v. Mekras, 679 So. 2d 278 (Fla. 1996)); Largie, 913 So. 2d at 639 (explaining that
“[r]equiring a written expert opinion as part of the presuit investigation assures the defendant that
the claim was preceded by a reasonable investigation; “that there is justification for the Plaintiffs’
claim, i.e., that it is not a frivolous medical malpractice claim . . . [; and] that the claim is
legitimate.’”).
9. As explained above, the Plaintiff has failed to conduct an adequate presuit
investigation and/or place this Defendant on notice as to the alleged negligence of Dr. Harinath
Sheela, Dr. Suhan Li or of the unnamed radiologist identified in the Third Amended Complaint.
10. Furthermore, the affidavit of Dr. Morowitz does not establish that Dr. Sheela and/or
Dr. Suhan Li fell below the standard of care, or that such failure was the legal cause of any loss,
injury, or damage to the Plaintiff. Likewise, the affidavit of Dr. Morowitz in no way addresses the
CT study interpretation or any other alleged negligence of the radiologist.
11. Identification and notice of these claims and allegations within the Notice of Intent,
as well as a proper corroborating affidavit, are required prior to serving a complaint against this
Defendant for such claims.
12. Pursuant to § 766.206, Florida Statutes (2010), this Defendant is entitled to an
evidentiary hearing on issues associated with a legally insufficient presuit investigation.
WHEREFORE, the Defendant, ADVENTIST HEALTH SYSTEM/SUNBELT, INC. d/b/a
FLORIDA HOSPITAL ORLANDO, and d/b/a FLORIDA HOSPITAL APOPKA, requests this
Court to Dismiss Counts III and VIII of the Third Amended Complaint with prejudice and enter an
Order prohibiting the Plaintiff from pleading such claims against the hospital, and/or Strike the
allegations relating to the misread of the CT Scan, or negligence on the part of the radiologist, based
upon the presuit deficiencies described above.
I hereby certify that on February 28, 2011, I electronically filed the foregoing with the Clerk
of the Courts by using the ECF system which will send a notice of electronic filing to the following:
Carlos R. Diez-Arguelles, Esquire, Diez-Arguelles & Tejedor, P.A., 505 North Mills Avenue, Orlando,
FL 32803-5369; Mary J. Hall, Esquire, McEwan, Martinez & Dukes, P.A., PO Box 753, Orlando, FL
32802-0753; Rogelio J. Fontela, Esquire, Dennis, Jackson, Martin & Fontela, P.A., Dennis, Jackson,
Martin & Fontela, P.A. 1591 Summit Lake Dr., Suite 200, Tallahassee, FL 32317-7943.
__/s/ Patrick H. Telan________________________
PATRICK H. TELAN, ESQUIRE
Florida Bar No. 973874
JOHN J. TRESS, III, ESQUIRE
Florida Bar No. 183751
Grower, Ketcham, Rutherford,
Bronson, Eide & Telan, P.A.
PO Box 538065
Orlando, FL 32853-8065
Phone: (407) 423-9545
Fax: (407) 425-7104
Attorney for Defendant, ADVENTIST HEALTH
SYSTEM/SUNBELT, INC. d/b/a FLORIDA
HOSPITAL ORLANDO, and d/b/a FLORIDA
HOSPITAL APOPKA
:
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IN THE CIRCUIT COURT OF THE NINTH JUDICIAL CIRCUIT IN AND FOR ORANGE COUNTY, FLORIDA CASE NO. 2008-CA-011228-O DIVISION: 39 MARCELO DIAZ, as Personal Representative of the Estate of HERMINIA Lydia Gardner DIAZ, Plaintiff, vs. 2011 Feb 28 05:39 PM HARINATH SHEELA, M.D.; DIGESTIVE AND LIVER CENER OF FLORIDA, P.A., ADVENTIST HEALTH SYSTEM/SUNBELT, INC., d/b/a FLORIDA HOSPITAL ORLANDO, and d/b/a FLORIDA HOSPITAL APOPKA, JUNIAS DESAMOUR, M.D., and MID- FLORIDA HOSPITAL SPECIALISTS, eFiled in the Office of Clerk of Court, Orange County Florida P.A., Defendants / DEFENDANT, ADVENTIST HEALTH SYSTEM/SUNBELT, INC., d/b/a FLORIDA HOSPITAL ORLANDO, and d/b/a FLORIDA HOSPITAL APOPKA’S, MOTION TO DISMISS AND/OR MOTION TO STRIKE THIRD AMENDED COMPLAINT COMES NOW the Defendant, ADVENTIST HEALTH SYSTEM/SUNBELT, INC. d/b/a FLORIDA HOSPITAL ORLANDO, and d/b/a FLORIDA HOSPITAL APOPKA, by and through the undersigned attorneys, and pursuant to Florida Rule of Civil Procedure 1.140 and §§ 766.106, 766.206(1), Florida Statutes (2010), hereby moves this Court to dismiss Counts III and VIII of the Plaintiff’s Third Amended Complaint and/or strike certain allegations due to a legally deficient presuit investigation. As grounds therefore, this Defendant states the following: 1. This is a cause of action based in alleged medical malpractice. 2. Prior to the filing of the initial complaint, this Defendant participated in a presuit investigative process commenced by the service of a Notice of Intent to Initiate Litigation by the Plaintiff. Specifically, this Notice of Intent, dated September 10, 2008, provides that: The claims being made against Adventist Health System/Sunbelt, Inc. d/b/a Florida Hospital Apopka are for vicarious claims for the negligence of Dr. H. Kenneth West and Dr. Junias Desamour as well as the direct negligence of Adventist Health System/Sunbelt, Inc.[] d/b/a Florida Hospital Apopka[’s] agents and/or employees for failing to timely and properly assess and treat [] Mrs. Diaz. (See Notice of Intent to Initiate Litigation attached hereto as Exhibit “A”.) 3. In support of such Notice of Intent, the Plaintiff attached the affidavit of David A. Morowitz, M.D., a Board Certified Physician in Internal Medicine and Gastroenterology. 4. The Plaintiff recently filed a Third Amended Complaint against this Defendant (and other Defendants) in which the Plaintiff has asserted that this Defendant is vicariously liable for negligence of its nurses and employees, including Harinath Sheela, M.D., Kenneth West, M.D., Junias Desmour, M.D., and Suhan Li, M.D. (See Third Am. Compl. Counts III, IV, V and VIII). 5. The Plaintiff further alleges that a CT scan of the decedent’s abdomen “was either incorrectly read or the results were unappreciated,” and that “the radiologist and whomever read the CT scan failed to obtain consults in a timely manner.” (See Third Am. Compl. ¶¶ 23, 24, and 30.) 6. The Plaintiff, however, failed to conduct a legally sufficient presuit investigation and/or place this Defendant on notice, either in the Notice of Intent or through responses to requests for presuit information, as to the alleged negligence of Dr. Harinath Sheela, Dr. Suhan Li or of the unnamed radiologist who allegedly misread or mishandled an imaging study of the decedent. 7. Prior to initiating a medical malpractice suit, “the plaintiff must conduct an investigation to determine if a named defendant was in fact negligent and [whether] such negligence resulted in the claimed injury.” Univ. of Miami v. Wilson, 948 So. 2d 774, 776 (Fla. 3d DCA 2006); see §§ 766.106, 766.203, Fla. Stat. (2010). The investigation must consist of a “(1) review of the case against each potential defendant; (2) consultation with a medical expert; and (3) written corroboration of negligence by a medical expert.” See Largie v. Gregorian, 913 So. 2d 635, 638 (Fla. 3d DCA 2005); see §§ 766.106, 766.203, 766.202, Fla. Stat. (2010). After completing [this] presuit investigation, any party may file a motion “requesting the court to determine whether the opposing party’s claim or denial rests on a reasonable basis.” § 766.206(1), Fla. Stat. (2010). If the court finds that the notice of intent to initiate litigation is fatally defective and not in compliance with these presuit investigation requirements, the court is required to dismiss the claim. § 766.206(2), Fla. Stat. (2010). 8. The underlying purpose of this statutory scheme is to provide for meaningful presuit investigation, discovery, and negotiations, so as to screen out frivolous lawsuits, and encourage early determination and prompt resolution of claims. See Wilson, 948 So. 2d 774, 777; (citing Kukral v. Mekras, 679 So. 2d 278 (Fla. 1996)); Largie, 913 So. 2d at 639 (explaining that “[r]equiring a written expert opinion as part of the presuit investigation assures the defendant that the claim was preceded by a reasonable investigation; “that there is justification for the Plaintiffs’ claim, i.e., that it is not a frivolous medical malpractice claim . . . [; and] that the claim is legitimate.’”). 9. As explained above, the Plaintiff has failed to conduct an adequate presuit investigation and/or place this Defendant on notice as to the alleged negligence of Dr. Harinath Sheela, Dr. Suhan Li or of the unnamed radiologist identified in the Third Amended Complaint. 10. Furthermore, the affidavit of Dr. Morowitz does not establish that Dr. Sheela and/or Dr. Suhan Li fell below the standard of care, or that such failure was the legal cause of any loss, injury, or damage to the Plaintiff. Likewise, the affidavit of Dr. Morowitz in no way addresses the CT study interpretation or any other alleged negligence of the radiologist. 11. Identification and notice of these claims and allegations within the Notice of Intent, as well as a proper corroborating affidavit, are required prior to serving a complaint against this Defendant for such claims. 12. Pursuant to § 766.206, Florida Statutes (2010), this Defendant is entitled to an evidentiary hearing on issues associated with a legally insufficient presuit investigation. WHEREFORE, the Defendant, ADVENTIST HEALTH SYSTEM/SUNBELT, INC. d/b/a FLORIDA HOSPITAL ORLANDO, and d/b/a FLORIDA HOSPITAL APOPKA, requests this Court to Dismiss Counts III and VIII of the Third Amended Complaint with prejudice and enter an Order prohibiting the Plaintiff from pleading such claims against the hospital, and/or Strike the allegations relating to the misread of the CT Scan, or negligence on the part of the radiologist, based upon the presuit deficiencies described above. I hereby certify that on February 28, 2011, I electronically filed the foregoing with the Clerk of the Courts by using the ECF system which will send a notice of electronic filing to the following: Carlos R. Diez-Arguelles, Esquire, Diez-Arguelles & Tejedor, P.A., 505 North Mills Avenue, Orlando, FL 32803-5369; Mary J. Hall, Esquire, McEwan, Martinez & Dukes, P.A., PO Box 753, Orlando, FL 32802-0753; Rogelio J. Fontela, Esquire, Dennis, Jackson, Martin & Fontela, P.A., Dennis, Jackson, Martin & Fontela, P.A. 1591 Summit Lake Dr., Suite 200, Tallahassee, FL 32317-7943. __/s/ Patrick H. Telan________________________ PATRICK H. TELAN, ESQUIRE Florida Bar No. 973874 JOHN J. TRESS, III, ESQUIRE Florida Bar No. 183751 Grower, Ketcham, Rutherford, Bronson, Eide & Telan, P.A. PO Box 538065 Orlando, FL 32853-8065 Phone: (407) 423-9545 Fax: (407) 425-7104 Attorney for Defendant, ADVENTIST HEALTH SYSTEM/SUNBELT, INC. d/b/a FLORIDA HOSPITAL ORLANDO, and d/b/a FLORIDA HOSPITAL APOPKA :