Filing # 102864223 E-Filed 02/06/2020 12:46:26 PM
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`IN THE CIRCUIT COURT OF THE 17TH
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`JUDICIAL CIRCUIT, IN AND FOR BROWARD
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`COUNTY, FLORIDA
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`CASE NO: CACE14005235
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`JANET HIGHSMITH, individually and on behalf
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`of KAYLA KELLY, a minor,
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`V.
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`Plaintiff,
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`PLANTATION GENERAL HOSPITAL LIMITED
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`PARTNERSHIP d/b/a PLANTATION GENERAL
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`HOSPITAL; HERMAN M. EPSTEIN, M.D.;
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`HERMAN M. EPSTEIN, M.D., P.A.; JEAN B.
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`REYNOLDS, R.N.; DOREL ABRAMOVICI,
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`M.D.; SINAI PERINATAL, LLC, FLORIDA
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`ATLANTIC ANESTHESIA, INC; NEIL P. RAY,
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`M.D.; LOUIS TRUJILLO, CSA; ROBERT J.
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`BASS, M.D.; and, FEMCARE ASSOCIATES,
`LLC7
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`Defendants,
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`DEFENDANT, PLANTATION GENERAL HOSPITAL’S MOTION FOR PARTIAL
`SUMMARY JUDGMENT FOR COUNTS I AND II OF PLAINTIFFS’ THIRD
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`AMENDED COMPLAINT AS IT PERTAINS TO ONLY
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`DRS. EPSTEINa ABRAMOVICI, RAY AND BASS
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`Defendant,
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`PLANTATION GENERAL HOSPITAL,
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`(hereinafter
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`refer
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`to
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`as
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`“PLANTATION GENERAL”), by and through its undersigned attorneys, hereby files this Motion
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`for Partial Summary Judgment for Counts I and II of Plaintiffs’ Third Amended Complaint as it
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`pertains to only Drs. Epstein, Abramovici, Ray and Bass, and in support states the following:
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`INTRODUCTION
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`This is a medical negligence action arising out of the care and treatment provided to
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`Plaintiffs, Janet Highsmith and Kayla Kelly, a minor, at PLANTATION GENERAL on July 31,
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`La Cava & Jacobson, PA, 4901 NW 17’” Way, Suite 606, Fort Lauderdale, Florida, 33309
`Telephone (754) 301-5060; Facsimile (754) 551-6884
`1
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`*** FILED: BROWARD COUNTY, FL BRENDA D. FORMAN, CLERK 02/06/2020 12:46:25 PM.****
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`CASE NO: CACE14005235
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`2011. The counts specific to PLANTATION GENERAL that are contained within Plaintiffs’ 13-
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`count Complaint are: Count I for Breach of Nondelegable Duties and Count II for vicarious
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`liability for the actions of Epstein, Trujillo, Reynolds, Abramovici, Ray and Bass.
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`On January 22, 2019, Plaintiff filed a “Notice of Dropping Party as to Defendants, Dorel
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`Abramovici, MD. and Sinai Perinatal, LLC.” The Notice did not dismiss and/or drop the claims
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`for vicarious liability asserted against PLANTATION GENERAL for the actions of Dr.
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`Abramovici. Furthermore, on July 21, 2019, Plaintiff filed a “Stipulation to Drop Robert Bass,
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`MD. as Party”. The Stipulation specifically provided that “dropping of ROBERT J. BASS, M.D.,
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`shall also not dismiss, discharge or extinguish the claims which assert that PGH is vicarious liable
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`for the conduct of ROBERT J. BASS, M.D.”
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`Based upon the record evidence, PLANTATION GENERAL moves for partial summary
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`judgment because there is no genuine issue of material fact that it did not owe Plaintiffs a
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`nondelegable duty and is also not vicariously liable for actions of Drs. Epstein, Abramovici, Ray
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`and Bass in this litigation.
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`UNDISPUTED MATERIAL FACTS
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`I. Herman Epstein1 MD.
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`Dr. Epstein is board certified in Obstetrics and Gynecology. See Epstein Depo. dated
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`August 18, 2016, Page. I 1, Line 3 7 5. He opened his private practice in approximately 1983 and
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`has remained a private practitioner for over 20 years. Id. at Page. 12, 3 7 Page I 3, Line 7. He has
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`privileges at PLANTATION GENERAL as an attending physician to deliver his private patients.
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`Id. at Page 19, Line 4 7 23. He is not on-call and does not provide labor and delivery services to
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`patients arriving in the emergency department at PLANTATION GENERAL. Id. at Page 26, Line
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`I 7 10. He does not have a written contractual agreement with PLANTATION GENERAL and
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`La Cava & Jacobson, PA, 4901 NW 17’” Way, Suite 606, Fort Lauderdale, Florida, 33309
`Telephone (754) 301-5060; Facsimile (754) 551-6884
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`CASE NO: CACE14005235
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`does not receive compensation from PLANTATION GENERAL for his professional services. Id.
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`at Page 20, Line 8 7 23. Furthermore, Dr. Epstein is not on a board or committee at PLANTATION
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`GENERAL, does not maintain an office at PLANTATION GENERAL, does not have his
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`photograph displayed at PLANTATION GENERAL, and does not have a professional and/or
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`personal telephone with PLANTATION GENERAL. Id. at Page 20, Line 23 7 Page 21, Line I I .
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`II. Robert Bass, MD.
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`Dr. Bass is board certified in Obstetrics and Gynecology. See Bass Depo. dated February
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`6, 2015, Page 8, Line 13 7 15. He is the sole proprietor and employee of Femcare OB/GYN
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`Associates, LLC, located at 201 NW 82nd Avenue, Suite 104, Plantation, Florida, 33324. Id. at
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`Page 5, Line 19 7 Page 6, Line 9. Femcare OB/GYN Associates, LLC has been in existence for
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`five (5) years, and prior to that time, Dr. Bass was employed under an employment contract with
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`Plantation Gynecologic Associates. Id at Page 12, Line 2 7 10. Plantation Gynecologic Associates
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`was located at the same address as Femcare OB/GYN Associates, LLC. Id.
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`Dr. Bass has privileges at West Regional Medical Center and PLANTATION GENERAL.
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`Id. at Page 8, Line 23 7 25 and Page 12, Line 11 7 13. His privileges at PLANTATION
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`GENERAL allow him to provide obstetrical and gynecological care to patients of his private
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`practice. Id. at Page 13, Line 12 7 19. Dr. Bass does not provide on-call OB/GYN coverage for
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`patients at PLANTATION GENERAL and he is not responsible for covering patients arriving
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`through the emergency department who do not have obstetrical coverage. Id. at Page 9, Line 2 7
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`13. Dr. Bass m provides care or treatment to patients of Femcare and/or patients of other
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`physicians he has an arrangement to provide coverage. Id. at Page 15, Line 3 7 12. In any other
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`instance, regardless of the emergent basis, he will not provide care or treatment to the patient. Id.
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`at Page 16, Line 11 7 18.
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`La Cava & Jacobson, PA, 4901 NW 17’” Way, Suite 606, Fort Lauderdale, Florida, 33309
`Telephone (754) 301-5060; Facsimile (754) 551-6884
`3
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`CASE NO: CACE14005235
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`Dr. Bass has never provided care or treatment to a patient who was also a patient of Dr.
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`Epstein. Id. at Page I 1, Line I 7 7 20. In this particular case, Dr. Bass did not provide any medical
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`care or treatment to Plaintiffs during her admission to PLANTATION GENERAL on July 31,
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`2011. Id. at Page 24, Line I 7 7 Page 25, Line 4.
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`III.Neil Ray: M.D.
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`Dr. Ray is board certified in Anesthesiology and Pediatric Anesthesiology. See Neil Depo.
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`Dated March 20, 201 7, Page 15, Line I 6 7 20.
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`In 2011, Dr. Ray had an employment agreement
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`with Sheridan Health Care that began in March of 2008 and concluded in either May or June of
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`2012. Id. at Page 10, Line I 7 8 and Page 15, Line 21 7 Page 16, Line 3. He was never employed
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`by or received compensation from PLANTATION GENERAL.
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`Id. at Page 10, Line I 7 7 Page
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`I 1, Line 4 and Page 14, Line 15 7 18. He did not receive training when he provided services for
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`PLANTATION GENERAL on policies and procedures. Id. at Page I 7, Line 15 7 18. During his
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`care and treatment of Plaintiffs, there were no general anesthetic-associated complications. Id. at
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`Page 26, Line 13 7 I5 and Page 109, Line 25 7 Page 110, Line I.
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`IV. Dorel Abramovici, M.D.
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`Dr. Abramovici is board certified in Maternal Fetal Medicine. He relocated his practice to
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`Florida after accepting a position at Sunlife located at 4101 Northwest 4th Street, Plantation,
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`Florida. See Abramovici Depo. Page 6, Line I 7 3, and Page 70, Line 24 7 Page 71, Line 19. He
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`remained at Sunlife from 1998 until it dissolved in 2006; and thereafter, he formed Sinai Perinatal,
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`LLC which has remained at the same location. Id. at Page 71, Line 22 7 Page 72, Line 15. Since
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`2006, Dr. Abramovici has been the sole shareholder of Sinai Perinatal, LLC and it employees
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`between ten to twelve other employees, including Dr. Abramovici. Id. at Page I 5, Line 23 7 Page
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`16, Line 14.
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`La Cava & Jacobson, PA, 4901 NW 17’” Way, Suite 606, Fort Lauderdale, Florida, 33309
`Telephone (754) 301-5060; Facsimile (754) 551-6884
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`CASE NO: CACE14005235
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`Dr. Abramovici does n_ot advertise to the public, does n_ot provide services to the public
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`and has never received a referral from a hospital. Id. at Page 26, Line I 6 7 Page 27, Line I 1. His
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`patients
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`are m referrals
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`from approximately ninety (90) private Obstetricians and
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`Gynecologists; with approximately 1% ofhis practice being referrals from Dr. Epstein. Id. at Page
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`72, Line 25 7 Page 73, Line 19, and Page 76, Line 15 7 22. Dr. Epstein and Dr. Abramovici are
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`not social friends and only know one another through the professional community.
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`In 2011, Dr. Abramovici had consulting and admitting privileges at PLANTATION
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`GENERAL, but was n_ot an employee, did n_ot provide emergency on-call services, did n_ot admit
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`patients, did n_ot receive compensation for his services, did n_ot have a parking space, and did n_ot
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`have a lab coat. Id. at Page 11, Line 13 7 18, Page 16, Line 177 22, Page 33, Line 167 Page 34,
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`Line 20, Page 36, Line 5 7 17, Page 37, Line 13 7 23, and Page 39, Line 9 7 20.
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`In 2011, he was
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`one of four high-risk specialists that had privileges at PLANTATION GENERAL, did not have a
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`designated schedule, would go “whenever I get it” and devoted 95% of his professional time in his
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`private practice and only 5% within a hospital. Id. at Page 54, Line 7 7 20, and Page 75, Line 6 7
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`I I .
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`On July 31, 2011, Dr. Abramovici was not notified by any healthcare provider that
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`Plaintiffs presented to PLANTATION GENERAL, was not at PLANTATION GENERAL during
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`Plaintiffs admission and was not involved, in anyway, with her care. Id. at Page 81, Line 9 7 82,
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`Line 5. Finally, Dr. Abramovici was dropped as a party to this matter on January 22, 2019.
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`V. Janet Highsmith
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`Janet Highsmith began treating with Dr. Epstein before her son, Jaden, was born. See
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`Highsmith Dep0., dated December 7, 2015, Page. 154, Line 25 thorugh Page 155, Line 4. After
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`Jaden was born, she continued to treat with Dr. Epstein as her Obstetrician and Gynecologist. Id.
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`La Cava & Jacobson, PA, 4901 NW 17’” Way, Suite 606, Fort Lauderdale, Florida, 33309
`Telephone (754) 301-5060; Facsimile (754) 551-6884
`5
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`CASE NO: CACE14005235
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`at Page I 55, Line 5 7 8. When she learned she was pregnant with Kayla Kelly, she started treating
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`with Dr. Epstein prenatally.
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`Id. at Page 155, Line 12 7 15. Dr. Epstein referred her to Dr.
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`Abramovici because of her age, over thirty-five, and it was mandatory for a high-risk doctor to
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`follow her prenatally. Id. at Page I 56, line 12 7 20 and Page 158, Line 12 7 16. She did not treat
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`with any other physician’s during her pregnancy.
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`Id. at Page 155, Line 25 7 Page 156, Line 5.
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`She did not expect Dr. Abramovici to take over Dr. Epstein’s prenatal care, they never discussed
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`the manner in which she would deliver Kayla and she did not expect that he would deliver her
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`baby. Id. at Page 161, Line 10 7 23 and Page 163, Line 15 7 20. Janet Highsmith continued to
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`receive gynecological care from Dr. Epstein until her presentation to PLANTATION GENERAL
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`on July 31, 2011.
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`Janet Highsmith did not receive prenatal care at PLANTATION GENERAL. Id. at Page
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`22, Line I 7 3. The first time she presented to PLANTATION GENERAL with respect to her
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`pregnancy was when Kayla Kelley, minor, was born. Id. at Page 22, Line 4 7 7. She presented to
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`PLANTATION GENERAL on July 31, 2011 because Dr. Epstein told her that is where he would
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`deliver her baby and she conducted no independent research on PLANTATION GENERAL. Id.
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`at Page 28, Line 20 7 Page 29, Line 11.
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`On July 31, 2011, around 5:00am, she felt cramps that she attributed to gas, and then used
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`the restroom where she produced loose stool.
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`Id. at Page 32 7 Page 33, Line 6. Thereafter, her
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`cramps and gassiness subsided. Id. at Page 33, Line 13 7 15. At around 8:30am, while laying in
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`bed awake, she felt sudden severe abdominal pains that lasted approximately five minutes. Id. at
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`Page 29, Line 12 7 15, Page 31, Line 167 Page 32, Line 7, Page 33, Line 16 - 25. She then felt
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`wet, as if she urinated a little, and got out of bed to check to her underwear. Id. at Page 34, Line
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`I 7 Page 35, Line 18. When she looked at her underwear, she did not see blood, got back into bed
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`La Cava & Jacobson, PA, 4901 NW 17’” Way, Suite 606, Fort Lauderdale, Florida, 33309
`Telephone (754) 301-5060; Facsimile (754) 551-6884
`6
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`CASE NO: CACE14005235
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`and called 9-1-1. Id. While on the phone with 9-1-1, she reported that she was pregnant and just
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`started experiencing severe abdominal pain. Id. at Page 36, Line 2 7 I I .
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`When paramedics arrived, she noticed blood for the first time when they moved her from
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`the bed to the stretcher. Id. at Page 3 7, Line I I 7 20. Specifically, there was a lot of blood on the
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`bed, running down her leg, onto the carpet and on her clothing. Id. at Page 38, Line 12 7 Page 39,
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`Line 21. She was also having abdominal pain that were constant.
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`Id. at Page 40, Line 7 7 10.
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`While being transported to PLANTATION GENERAL she continued to feel wet. Id. at Page 42,
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`Line 20 7 23.
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`When Janet Highsmith reached PLANTATION GENERAL, she was take into a room and
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`immediately seen by a nurse. Id. at Page 43, Line 15 7 I 7. She was also immediately placed on
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`a fetal heart monitor. Id at Page. 46, Line 2 7 10. The nurse advised her that the doctor was going
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`to perform an emergency C-section, Dr. Epstein has been contacted, consent forms needed to be
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`signed and the nurse left to obtain those documents. Id. at Page 46, I I 7 I 6.
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`Dr. Epstein arrived to PLANTATION GENERAL at 9:40am and delivered Kayla Kelly at
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`9:55am. Dr. Abramovici was not present during the C-section nor involved in her care at
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`PLANTATION GENERAL. Id. at Page 52, Line 21 7 Page 53, Line 13.
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`I.
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`Applicable Summary Judgment Standard
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`ARGUMENT
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`Pursuant to Florida Civil Procedure 1.510(c), summary judgment shall be granted forthwith
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`if the pleadings, depositions, answers to interrogatories, admissions, affidavits, and other materials
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`show there is no genuine issue of material fact and the moving party is entitled to a judgment as a
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`matter of law. Fla. R. Civ. Pro. 1.15 0(c). Summary judgment is proper when the movant sustains
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`La Cava & Jacobson, PA, 4901 NW 17’” Way, Suite 606, Fort Lauderdale, Florida, 33309
`Telephone (754) 301-5060; Facsimile (754) 551-6884
`7
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`CASE NO: CACE14005235
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`the burden of proving the non-existence of a genuine issue of material fact. H011 V. Talcott, 191
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`So.2d 40 (Fla. 1966).
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`Once a movant for summary judgment meets his burned of demonstrating conclusively that
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`no genuine issue of material fact exists, the burden shifts to the opposing party to come forward
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`with evidence sufficient to reveal that an issue exists.
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`It is not enough for an opposing party to
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`merely assert that an issue does exist. Slachter v. Abundio Inv. Co., 566 So.2d 348 (Fla. 3d DCA
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`1990). An issue of fact is “material” if it is a legal element of the claim under the applicable
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`substantive law which might affect the outcome of the case. Byrd v. BT Foods, Inc., 948 So.2d
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`921 (Fla. 4th DCA 2007).
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`Summary Judgment proceedings are pre-trial in character, and the purpose is to avoid the
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`time and expense of a useless trial if it clearly appears that there is no issue of material fact and
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`the moving party is entitled to judgment as a matter of law. See, Ameriseal of NE. Fla.
`Inc. v.
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`Leiffer, 738 So.2d 993, 995 (Fla. 5th DCA 1999).
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`In other words, the purpose of a motion for
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`summary judgment is to determine if there is sufficient evidence to justify a trial upon the issues
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`made by the pleadings. Odham v. Foremorst Diaries, 128 So.2d 586 (Fla. 1961).
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`II.
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`Plantation General Hospital Did Not Owe A Non-Delegable Duty to Provide Obstetrical
`Services and Care to Plaintiffs
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`Florida law has long held that an independent physician's alleged negligent acts do not
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`subject the hospital to direct liability. See Pub. Health Trust of Dade County v. Valcin, 507 So.
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`2d 596, 601 (Fla. 1987) ([A] hospital may not fairly be held liable for a plaintiffs entire damages
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`solely based on the omissions of an independent contractor merely granted practicing privileges in
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`the hospital...) and Cedars Med. Ctr. Inc. v. Ravelo, 738 So. 2d 362, 366 (Fla. 3d DCA 1999) (“It
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`is well-established that a hospital is not liable for the acts of a physician who is an independent
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`contractor.”). This well-established principle was recently reaffirmed in Godwin v. University of
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`La Cava & Jacobson, PA, 4901 NW 17’” Way, Suite 606, Fort Lauderdale, Florida, 33309
`Telephone (754) 301-5060; Facsimile (754) 551-6884
`8
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`CASE NO: CACE14005235
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`South Florida Board of Trustees, 203 So.3d 924, 929 (Fla. 3d DCA 2016), wherein the Second
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`District Court of Appeal stated, “[a] hospital is not liable for the negligent acts of a physician who
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`is not its employee, but an independent contractor.”
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`There are exceptions to the general rule of non-liability —where the duty is non-delegable.
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`See Pope V. Winter Park Healthcare Group, Ltd., 939 So.2d 185, 187 (Fla. 5th DCA 2006). A
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`non-delegable duty may arise out of a statute, regulation, or contract. m. at 187—88.
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`Here, Plaintiffs claim in Count I, Paragraphs 34 — 35(a) — (D), of the Third Amended
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`Complaint that PLANTATION GENERAL had a non-delegable duty to provide pre-delivery,
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`labor and delivery and post-delivery care and treatment to the Plaintiffs because:
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`(1)
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`“Terms of the agreement between” Janet Highsmith and PLANTATION
`GENERAL;
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`(2) The physicians and healthcare providers rendering care to Janet Highsmith at
`PLANTATION GENERAL, including but not limited to, ABRAMOVICI
`and BASS “were not privately retained by Janet Highsmith”; and
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`(3)
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`Janet Highsmith had “no control over which physicians would administer
`treatment to her” because she was a patient necessitating a stat Cesarean
`section,
`and thereby trusted PLANTATION GENERAL, EPSTEIN,
`ABRAMOVICI and BASS would exercise due care in her treatment; and
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`(4) The decision as to whom would treat Janet Highsmith was “made exclusively
`by and subject to the control of’ PLANTTAION GENERAL HOSPITAL.
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`The undisputed facts, however, demonstrate that summary judgment
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`in favor of
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`PLANTATION GENERAL on the count for nondelegable duty for the acts of EPSTEIN,
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`ABRAMOVICI and BASS is appropriate. There is no record evidence to support Plaintiffs’
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`allegations.
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`First, there is no record evidence to demonstrate that PLANTATION GENERAL had a
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`contractual agreement with Plaintiffs creating a nondelegable duty for the actions of EPSTEIN,
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`La Cava & Jacobson, PA, 4901 NW 17’” Way, Suite 606, Fort Lauderdale, Florida, 33309
`Telephone (754) 301-5060; Facsimile (754) 551-6884
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`CASE NO: CACE14005235
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`ABRAMOVICI and BASS. The Third Amended Complaint, as well as discovery thus far in this
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`litigation, demonstrates that such an agreement does not exist.
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`Second, deposition testimony demonstrates that Plaintiffs privately retained Dr. Epstein to
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`provide her prenatal and labor and delivery services prior to her presentation to PLANTATION
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`GENERAL. Deposition testimony demonstrates that despite Plaintiffs emergent presentation to
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`PLANTATION GENERAL on July 31, 2011, her private physician Dr. Epstein was contacted,
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`evaluated Plaintiff, made the decision to perform an emergency STAT C-section and delivered the
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`baby. Furthermore, the record evidence demonstrates that Dr. Epstein referred Plaintiffs to Dr.
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`Abramovici during her pregnancy. At all relevant times, Dr. Abramovici was a private Maternal
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`Fetal Medicine specialist who provided care to Plaintiffs in his private office.
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`Third, the record evidence demonstrates that Dr. Bass and Dr. Abramovici never provided
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`care and treatment to Plaintiffs while at PLANTATION GENERAL. The sole practitioner who
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`provided care to Plaintiff was her privately retained OB/GYEN, Dr. Epstein.
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`This case is identical to Kristensen—Kepler v. Cooney, et al., 39 So.3d 518 (Fla. 4th DCA
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`2010) in which the Fourth District Court of Appeal determined that the defendant, surgical center,
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`did not owe the patient a non-delegable duty to provide non-negligent anesthesiology services 3
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`selected. That decision is controlling over this Court.
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`In greater detail, Kristensen—Kepler was a wrongful death action brought by a patient’s
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`estate against the ambulatory surgical center and anesthesiologist. The estate alleged that Dr. John
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`F. Cooney, the anesthesiologist, negligently caused an infection in the patient’s spine while
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`treating him at the surgical center for long-term back pain. The estate also alleged that the surgical
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`center was liable for Dr. Cooney’s negligence because it had a statutorily-created non-delegable
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`duty to provide the patient with non-negligent anesthesiology services under Wax v. Tenet Health
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`La Cava & Jacobson, PA, 4901 NW 17’” Way, Suite 606, Fort Lauderdale, Florida, 33309
`Telephone (754) 301-5060; Facsimile (754) 551-6884
`10
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`CASE NO: CACE14005235
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`System Hospitals, Inc., 955 So.2d 1, 11 (Fla. 4th DCA 2007). Summary judgment was awarded
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`in favor of the surgical center, and affirmed by the Fourth District.
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`In issuing its ruling, the Fourth District distinguished KIistensen-Kepler from its prior
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`ruling in Wax. Specifically, in Wax, the patient was admitted to the hospital for an elective
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`outpatient procedure. Wax, 955 So.2d at 3. During the surgery, the patient died.
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`I_d. The estate
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`alleged that “the hospital had a non-delegable duty to provide anesthesiology services,” making it
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`directly liable for the negligence of the anesthesiologist.
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`I_d. at 6. In Wax, the Fourth District held
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`that section 395.1055(1)(d), Florida Statutes (2005) and section 59A—3.2085(4) of the Florida
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`Administrative Code of Regulations created a non-delegable duty for the hospital to provide those
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`services. Id. at 8—9. In distinguishing Wax from Kristensen-Kepler, the Fourth District stated:
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`“If a treating physician directs a patient to a hospital for a particular procedure, that
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`patient has little, if any, control over who administers the anesthesia. The hospital
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`has a statutory duty to provide that service. W_ax did not hold, however, that a
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`hospital likewise has a non-delegable duty to supervise the physician a patient
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`has chosen to perform an elective procedure.”
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`Kristensen—Kepler, 39 So.3d at 520 (emphasis added). The Fourth District went on to state,
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`“. . .the plaintiff has attempted to bootstrap the non-delegable duty of a hospital in Wax to every
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`type of anesthesiology service, even those that are contracted for directly by the patient.
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`[The
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`surgical center] had no right to control or direct Dr. Cooney’s treatment of the patient, so it cannot
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`be held liable for the doctor’s negligence.”
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`In this case, Plaintiffs chose Drs. Epstein and Abramovici for their prenatal care and
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`Plaintiffs chose Dr. Epstein to deliver their baby.
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`It is also undisputed that Drs. Epstein and
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`Abramovici are not employed by PLANTATION GENERAL, did not provide emergency on-call
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`services to PLANTATION GENERAL, PLANTATION GENERAL had no right to control or
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`direct Drs. Epstein and Abramovici’s treatment of Plaintiffs, and therefore, cannot be liable for
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`La Cava & Jacobson, PA, 4901 NW 17’h Way, Suite 606, Fort Lauderdale, Florida, 33309
`Telephone (754) 301-5060; Facsimile (754) 551-6884
`11
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`CASE NO: CACE14005235
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`their alleged negligence.
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`For the aforementioned reasons, PLANTATION GENERAL requests that this Court grant
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`its Motion for Partial Summary Judgment as to Count I for the actions of Drs. Epstein, Abramovici
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`and Ray.
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`III.
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`The Undisputed Facts Demonstrate that Drs. Epstein, Abramovici and Bass Were Not
`Employees, Actual Agents or Apparent Agents ofPlantation General
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`a. Employer — Employee Relationship
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`Plaintiffs cannot make a credible argument that Drs. Epstein, Abramovici or Bass were
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`employees of PLANTATION GENERAL. The record evidence in this case demonstrates that Drs.
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`Epstein, Abramovici or Bass had longstanding private practices to which they were employed, and
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`they had no contractual agreements with PLANTATION GENERAL.
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`Based on the foregoing, PLANTATION GENERAL is entitled to partial summary
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`judgment as a matter of law on Count II regarding the allegations that it should be held vicariously
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`liable for the actions of Drs. Epstein, Abramovici or Bass based on an employer-employee
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`relationship.
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`b. Actual Agent
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`As an alternative to an employment relationship, Plaintiffs allege that an actual agency
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`relationship existed between Drs. Epstein, Abramovici or Bass and PLANTATION GENERAL.
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`Plaintiffs’ allegations in this regard are similarly without any evidentiary support.
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`Essential to existence of an agency relationship is:
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`(1) Acknowledgment by PLANTATION GENERAL that Drs. Epstein,
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`Abramovici or Bass would act for it;
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`(2) Drs. Epstein, Abramovici or Bass’s acceptance of the undertaking; and
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`La Cava & Jacobson, PA, 4901 NW 17’” Way, Suite 606, Fort Lauderdale, Florida, 33309
`Telephone (754) 301-5060; Facsimile (754) 551-6884
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`CASE NO: CACE14005235
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`(3) Control by PLANTATION GENERAL over the actions of Drs. Epstein,
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`Abramovici or Bass.
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`Goldschmidt v. Holman, 531 So.2d 422 (Fla. 1990) and Fernandez V. Florida Nat. College,
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`Inc., 925 So.2d 1096 (Fla. 3d DCA 2006). The most significant factor in determining whether
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`any actual agency relationship exists is the principal's degree of control over the details of the
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`agent's actions. See Chase Manhattan Mortg. Corp, 694 So.2d at 832; Buitrago v. Rohr, 672
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`So.2d 646, 647-48 (Fla. 4th DCA 1996); Kane Furniture Corp, 506 So.2d at 1064 (“The right of
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`control as to the mode of doing the work is the principal consideration.”).
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`Here, to establish an actual agency, Plaintiffs allege in Count II, Paragraph 42(g) — (i), of
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`the Third Amended Complaint the following:
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`(g)
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`(h)
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`(i)
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`PLANTATION GENERAL “expressly authorized” Drs. Epstein, Abramovici or
`Bass “to act on their behalf when they were hired as employees. . .pursuant to an
`employment application and/or subsequent employment agreement”;
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`PLANTATION GENERAL “impliedly authorized” Drs. Epstein, Abramovici or
`Bass “to act on their behalf when PLANTTAION GENERAL “trained them to
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`perform certain tasks on behalf of the hospital for the benefit of the patients”; and
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`Drs. Epstein, Abramovici or Bass were “acting within the scope of their authority”
`at the time and place of the alleged incident.
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`Again, nothing in the record establishes that Drs. Epstein, Abramovici or Bass were
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`employees of PLANTATION GENERAL and were acting under the terms of an employment
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`application and/or subsequent employment agreement. There is also absolutely no evidence to
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`establish that PLANTATION GENERAL trained Drs. Epstein, Abramovici or Bass to perform
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`any task. To the contrary, the evidence establishes that Drs. Epstein, Abramovici or Bass were
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`not employees of PLANTATION GENERAL, had no written or verbal employer-employee
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`agreement, did not receive compensation from PLANTATION GENERAL, and were never
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`La Cava & Jacobson, PA, 4901 NW 17’” Way, Suite 606, Fort Lauderdale, Florida, 33309
`Telephone (754) 301-5060; Facsimile (754) 551-6884
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`CASE NO: CACE14005235
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`trained by PLANTATION GENERAL in relation to the rendering of professional services to their
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`private patients at the hospital.
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`Furthermore, the record evidence demonstrates that Dr. Epstein is not on a board or
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`committee at PLANTATION GENERAL, does not maintain an office at PLANTATION
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`GENERAL, does not have his photograph displayed at PLANTATION GENERAL, and does not
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`have a professional and/or personal telephone with PLANTATION GENERAL. Similarly, the
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`record evidence demonstrates that Dr. Bass does not provide on-call OB/GYN coverage for
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`patients at either hospital and was never involved in the care of the Plaintiffs during her admission
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`to PLANTATION GENERAL on July 31, 2011.
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`Finally, the record evidence demonstrates that Dr. Abramovici does n_ot advertise to the
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`public, does n_ot provide services to the public and has never received a referral
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`from
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`PLANTATION GENERAL.
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`Instead, his patients are solely referrals from approximately ninety
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`(90) private Obstetricians and Gynecologists. Moreover, in 2011, Dr. Abramovici was one of four
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`high-risk specialists that had privileges at PLANTATION GENERAL, did not have a designated
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`schedule, would go “whenever I get it” and devoted 95% of his professional time in his private
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`practice and only 5% within a hospital. On July 31, 2011, Dr. Abramovici was not notified by any
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`healthcare provider
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`that Plaintiffs presented to PLANTATION GENERAL, was not at
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`PLANTATION GENERAL during Plaintiffs admission and was not involved, in anyway, with
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`her care
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`Based on the foregoing, PLANTATION GENERAL is entitled to partial summary
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`judgment as a matter of law on Count H regarding the allegations that it should be held vicariously
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`liable for the actions of Drs. Epstein, Abramovici or Bass based on an actual agency relationship.
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`La Cava & Jacobson, PA, 4901 NW 17’” Way, Suite 606, Fort Lauderdale, Florida, 33309
`Telephone (754) 301-5060; Facsimile (754) 551-6884
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`CASE NO: CACE14005235
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`c. Apparent Agent
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`As an alternative basis for holding PLANTATION GENERAL liable for the actions of
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`Drs. Epstein, Abramovici or Bass, they contend that Drs. Epstein, Abramovici or Bass were
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`apparent agents ofthe hospital. However, Plaintiffs’ allegations in this regard are similarly without
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`any evidentiary support.
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`To establish an apparent agency between a hospital and a doctor, a plaintiff must show:
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`(1) A representation to the patient;
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`(2) The patient's reliance on the representation; and
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`(3) The patient's change in his or her position as a result of that reliance.
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`See Stone V. Palms West Hosp., 941 So.2d 514, 520 (Fla. 4th DCA 2006). Here, Plaintiffs
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`are required to prove all three elements in order to establish that Dr. Matos-Fraebel was an apparent
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`agent of PLANTATION GENERAL. See Ocana v. Ford Motor Co., 992 So. 2d 319, 326 (Fla. 3d
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`DCA 2008) (citing Mobil Oil Corp. v. Bransford, 648 So. 2d 119, 121 (Fla. 1995)).
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`More importantly, apparent authority does not arise from the subjective understanding of
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`the person dealing with the purported agent or from appearances created by the purported agent
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`himself
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`Izguierdo v. Hialeah Hosp., Inc., 709 So.2d 187, 188 (Fla. 3d DCA 1998). Rather,
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`apparent authority exists only where the principal creates the appearance of an agency relationship.
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`Id. While the existence of an agency relationship is often a question of fact, it is properly addressed
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`on summary judgment when the party opposing summary judgment cannot point to conflicting
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`facts. Quesada v. Mercy Hosp, Inc., 41 So.3d 930 (Fla. 3d DCA 2010) (affirming summary
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`judgment where undisputed evidence did not support claim that doctor was apparent agent of
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`hospital).
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`La Cava & Jacobson, PA, 4901 NW 17’” Way, Suite 606, Fort Lauderdale, Florida, 33309
`Telephone (754) 301-5060; Facsimile (754) 551-6884
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`CASE NO: CACE14005235
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`Here, to establish an apparent agency, Plaintiffs allege in Count H, Paragraph 420'), of the
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`Third Amended Complaint that PLANTATION GENERAL “through words and/or conduct upon
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`Janet Highsmith’s presentation to PLANTATION GENERAL”
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`“caused or allowed Janet
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`Highsmith to believe that” Drs. Epstein, Abramovici or Bass were agents and had authority to act
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`for the hospital. The record evidence demonstrates otherwise.
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`Specifically, the record evidence demonstrates that Plaintiffs chose Dr. Epstein to provide
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`her Gynecologist and Obstetrical care. The record evidence demonstrations that throughout
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`Plaintiffs pregnancy, she received care at Dr. Epstein’s private office. The record evidence
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`demonstrates that Dr. Abramovici never received referrals from PLANTATION GENERAL, but
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`only through private OB/GYNs. In this case, Dr. Abramovici provided care to Plaintiff through a
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`private referral from Dr. Epstein. Furthermore, Dr. Abramovici and Dr. Bass never provided care
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`to Plaintiff during her admission to PLANTATION GENERAL and were never notified of her
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`presentation.
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`Based on the foregoing, PLANTATION GENERAL is entitled to partial summary
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`judgment as a matter of law on Count II regarding the allegations that it should be held vicariously
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`liable for the actions of Dr. Matos-Fraebel based on an apparent agency relationship.
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`WHEREFORE,
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`the Defendant, PLANTATION GENERAL HOSPITAL LIMITED
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`PARTNERSHIP D/B/A PLANTATION GENERAL HOSPITAL, respectfully request this Court
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`enter an order Granting Partial Summary Judgment of Counts I and II of Plaintiffs’ Third Amended
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`Complaint as it pertains to only Drs. Epstein, Abramovici, Ray and Bass, and any further relief
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`this Court deems just and proper under the circumstances.
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`La Cava & Jacobson, PA, 4901 NW 17’” Way, Suite 606, Fort Lauderdale, Florida, 33309
`Telephone (754) 301-5060; Facsimile (754) 551-6884
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`CASE NO: CACE14005235
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`CERTIFICATE OF SERVICE
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`I H