throbber
Filing # 122574037 E-Filed 03/05/2021 11:38:15 AM
`
`IN THE CIRCUIT COURT OF THE SEVENTEENTH JUDICIAL CIRCUIT
`
`IN AND FOR BROWARD COUNTY, FLORIDA
`
`Case No.: CACE 20l4 005235
`
`ARMANDO R. PAYAS as
`
`Guardian Ad Litem for K.K ,
`a minor; JANET HIGHSMITH,
`individually and on behalf ofK.K,
`a minor,
`
`Plaintiffs,
`
`v.
`
`PLANTATION GENERAL HOSPITAL
`LIMITED PARTNERSHIP d/b/a
`
`PLANTATION GENERAL HOSPITAL,
`HERMAN M. EPSTEIN, M.D.,
`HERMAN M. EPSTEIN, M.D., P.A.,
`JEAN B. REYNOLDS, R.N.,
`NEIL P. RAY, M.D., LOUIS TRUJILLO, CSA;
`and SHERIDAN HEALTHCARE, INC.,
`
`Defendants.
`
`
`
`PLAINTIFFS’ RESPONSE TO DEFENDANT, SHERIDAN HEAUri-10311113I INC."Sz
`MOTION TO DISMISS THE THIRD AMENDED COMPLAINT
`
`COMES NOW Plaintiffs, ARMANDO R. PAYAS, as Guardian Ad Litem for K.K., a minor,
`
`and JANET HIGHSMITH,
`
`individually and behalf of K.K., a minor, by and through the
`
`undersigned counsel, hereby files their Response to Defendant, SHERIDAN HEALTHCARE,
`
`INC.’S, Motion to Dismiss the Third Amended Complaint, and state as follows:
`
`1. The above—captioned matter is known to this Court as a medical malpractice lawsuit
`
`wherein the Plaintiffs have alleged that the above—named Defendants were negligent
`
`during the prenatal care and treatment ofJANET HIGHSMITH resulting in severe and
`
`permanent brain injury to newborn K.K., a minor.
`
`Page 1 of6
`
`*** FILED: BROWARD COUNTY, FL BRENDA D. FORMAN, CLERK 03/05/2021 11:38:15 AM.****
`
`

`

`2. Defendant, SHERIDAN HEALTHCARE, INC.’S, Motion to Dismiss should be denied
`
`for being moot, since the Defendant answered the complaint before filing the motion
`
`to dismiss. See Defendant ’s AVISI'I’L’I‘ attached hereto as Exhibit A and Defendant ’5
`
`Motion to Dismiss, attached hereto as Exhibit B.
`
`3. Conversely, the Defendants move to dismiss alleging that the Plaintiffs failed to timely
`
`serve Defendants in the above-captioned matter. The Defendant’s argument fails for
`
`three reasons. First, a statute of limitations defense should be raised as an affirmative
`
`defense, as Defendant did under its Eighth Affirmative Defense. Second, Plaintiffs’
`
`Motion for Extension of Time to Effectuate Service, filed on October 2, 2020, has not
`
`been ruled on. See Plaintifls’ Motion for Extension of Time to Effectuate Service,
`
`attached hereto as Exhibit C. Lastly, the Plaintiff has good cause and/or excusable
`
`neglect for the failure to serve Defendant, SHERIDAN HEALTHCARE, INC.
`
`4. Florida Rule of Civil Procedure 1.0700) states in pertinent part:
`
`If service of the initial process and initial pleading is not made
`upon a defendant within 120 days after filing of the initial
`pleading directed to that defendant the court, on its own initiative
`or after notice or motion, shall direct that service be effected
`within a specified time or shall dismiss the action without
`prejudice or drop that defendant as a party; provided that M
`plaintiff shows good cause or excusable neglect for the failure1
`the court shall extend the time for service for an appropriate
`
`EM:
`
`5. Prior to filing this action,
`
`the Plaintiffs participated in a comprehensive pre—suit
`
`investigation with all of the above—named Defendants,
`
`including SHERIDAN
`
`HEALTHCARE, INC.
`
`6. On November I3, 2013, Plaintiffs sent a Notice of Intent to Defendant, Plantation
`
`General Hospital (hereinafter “PGH”) for failure to produce Plaintiffs’ medical records.
`
`Page 2 of6
`
`

`

`After a notice of intent to initiate litigation was sent via certified mail, PGH failed to
`
`produce requested medical records within the statutory twenty (20) day period. Rather,
`
`PGH produced the requested medical records days before the expiration ofthe pre—suit
`
`period.
`
`On March 16, 2014, Plaintiffs filed their initial Complaint in Broward County against
`
`PGH only.
`
`As a result of PGH’s failure to timely produce Plaintiffs’ medical records, Plaintiffs
`
`were still engaged in the statutory pre-suit period with the remaining prospective
`
`Defendants at the time Plaintiffs’ initial complaint was filed.
`
`Upon receiving Plaintiffs’ medical records and having an expert witness conduct a
`
`comprehensive review, Notices of Intent were sent
`
`to all of the above—named
`
`Defendants. On March 7, 2014, Defendant, Neil Ray, M.D., and Florida Atlantic
`
`Anesthesia received Plaintiffs” Notices of Intent to initiate litigation. At that time,
`
`Plaintiff believed Dr. Ray was employed by Florida Atlantic Anesthesia.
`
`After
`
`further
`
`investigation, Plaintiffs believed that Defendant, SHERIDAN
`
`HEALTHCARE, INC, employed Dr. Ray as well. As such, the Plaintiffs’ sent a Notice
`
`of Intent to initiate litigation to Defendant, SHERIDAN HEALTHCARE, INC. on
`
`April 3, 2014.
`
`Both Dr. Ray and SHERIDAN HEALTHCARE, INC. were represented by William
`
`Carciopollo, from the law firm of Heath & Carciopollo, Chartered, during the pre-suit
`
`period. In fact, both Dr. Ray and SHERIDAN HEALTHCARE, INC. actively engaged
`
`in the pre—suit investigation period.
`
`10.
`
`11.
`
`Page 3 of6
`
`

`

`12.
`
`On July 17, 2014, Plaintifljfiled a Motion to Amend the Complaint to include Dr. Ray,
`
`which was granted on July 28, 2014. At that time, Plaintiffs were still engaged in pre-
`
`suit with SHERIDAN HEALTHCARE, INC. On or about October 16, 2014. Florida
`
`Atlantic Anesthesia, whom Plaintiffs believed to be Dr. Ray’s employer, provided an
`
`affidavit confirmed that Dr. Ray was in fact employed by SHERIDAN HEALTHCARE,
`
`13.
`
`14.
`
`15.
`
`16.
`
`17.
`
`INC. on the date of the incident.
`
`Based on the above, Plaintiffs filed a Third Amended Complaint
`
`to include
`
`SHERIDAN HEALTHCARE, INC. However, Plaintiffs later discovered that
`
`the
`
`Broward County Clerk never issued a summons on Plaintiffs’ Third Amended
`
`Complaint for Defendant, SHERIDAN HEALTHCARE, INC.
`
`Plaintiffs reasonably believed that Defendant SHERIDAN HEALTHCARE, INC. was
`
`served because counsel appeared on behalf of SHERIDAN HEALTHCARE, INC.’S
`
`employee, Dr. Ray.
`
`On September 15, 2020, a summons was issued by the Broward County Clerk for
`
`SHERIDAN HEALTHCARE, INC. On September 17, 2020, Plaintiffs effectuated
`
`service of the Summons
`
`and Third Amended Complaint
`
`on SHERIDAN
`
`HEALTHCARE, INC.
`
`Defendant, SHERIDAN HEALTHCARE, INC. alleges that Plaintiffs cannot provide a
`
`good faith excuse for the years of failing to serve the Defendant in this matter.
`
`However, Plaintiffs were actively litigating this case with the belief that every
`
`Defendant listed in the above—caption were properly served. The following reasons
`
`show good cause for the Plaintiffs’ mistake: (1) the procedural posture of this case; (2)
`
`the confusion of Dr. Ray’s employer; (3) the number of Defendants involved; (4) the
`
`Page 4 of6
`
`

`

`fact that SHERIDAN HEALTHCARE, INC. has consistently been included in the case
`
`caption since 2015 and SHERIDAN HEALTHCARE, lNC.‘s attorney has been present
`
`and active in the matter; (5) errors of former staff members that were not reported to
`
`lead counsel; (6) the Clerk of Court failing to issue a summons for SHERIDAN
`
`HEALTHCARE, INC.; and (7) a change in staffing who were overseeing the service
`
`ofprocess on the newly added Defendant.
`
`18.
`
`Moreover, Defendant, SHERIDAN HEALTHCARE, INC., has been represented by
`
`competent counsel who has been actively engaged in the discovery process, and has
`
`been furnished significant discovery responses from Plaintiff. Clearly, Defendant,
`
`SHERIDAN HEALTHCARE, INC. and its attorney were fully aware of this lawsuit
`
`since its inception.
`
`WHEREFORE, Plaintiffs respectfully request that this Honorable Court Deny Defendant,
`
`SHERIDAN HEALTHCARE, INC.’S, Motion to Dismiss the Third Amended Complaint.
`
`CERTIFICATE OF SERVICE
`
`I HEREBY CERTIFY that a true and correct copy ofthe forgoing has been electronically filed
`with the Clerk ofthe Court by using the Florida Courts E—Filing Portal and furnished via electronic
`mail to all counsel on the service list below, this fl day ofMarch, 2021.
`
`
`.-
`'5'.
`'_C_'m'fo.s' R. Dim-Argue?!“
`Carlos R. Diez-Arguelles, Esq.
`FBN: 500569
`
`DIEZ—ARGUELLES & TEJEDOR
`505 North Mills Avenue
`
`Orlando, Florida 32803
`
`Telephone: (407) 705-2880
`Attorney for Plaintiffs
`mail@theorlandolawyers.com
`
`Page 5 of6
`
`

`

`SERVICE LIST
`
`Jay Chimpoulis, Esquire
`Chimpoulis, Hunter, & Lynn, PA.
`150 S Pine Island Road, Suite 510
`Plantation, FL 33324
`
`JCltiInpOLIIisifii’Cl-ll .-l .awxom
`Counsel for Neil P. Ray, MD. and Sheridan Healthcare, Inc.
`
`Julia M. Ingle, Esquire
`Lubell & Rosen, LLC
`200 South Andrews Avenue, Suite 900
`Fort Lauderdale, FL 33301
`
`imiffiflubellroscnfiomgalicefillube|lrosen.com
`Counsel for Herman M. Epstein, MD and Herman M. Epstein, MD, PA
`
`Marci Strauss, Esquire
`LaCava, Jacobson, & Goodis, PA.
`
`4901 N.W. 17th Way, Suite 606
`Fort Lauderdale, FL 33309
`
`RE leadinasQRLJGleaalcom; LLaCava@LJGlegal.com; mslraussgtleJGlegalcom;
`mmarrero@LJGlegal.com
`Counsel for Plantation General Hospital and Jean B. Reynolds, R.N.
`
`Page 6 of6
`
`

`

`Exhibit A
`
`

`

`Filing # 117940947 E-Filed 12/09/2020 04:11:26 PM
`
`IN THE CIRCUIT COURT OF THE 17TH
`
`JUDICIAL CIRCUIT, IN AND FOR
`
`BROWARD COUNTY, FLORIDA
`
`CASE NO.: CACE—14—005235 (12)
`
`ARMANDO R. PAYAS, as Guardian Ad
`
`Litem for K.K., a minor;
`
`JANET HIGHSMITH, individually, and
`on behalf of K.K, a minor,
`
`Plaintiff,
`
`vs.
`
`PLANTATION GENERAL HOSPITAL
`
`LIMITED PARTNERSHIP d/b/a PLANTATION
`
`GENERAL HOSPITAL;
`
`HERMAN M. EPSTEIN, MD;
`
`HERMAN M. EPSTEIN, MD, PA;
`
`JEAN B. REYNOLDS, RN;
`
`NEIL P. RAY, MD; LOUIS TRUJILLO, CSA;
`
`AND SHERIDAN HEALTHCARE, INC.,
`
`Defendants.
`
`
`DEFENDANT, SHERIDAN HEALTHCARE, INC.’Sl ANSWER AND
`AFFIRMATIVE DEFENSES TO PLAINTIFF ’S THIRD AMENDED COMPLAINT
`
`Defendant, SHERIDAN HEALTHCARE, INC, by and through his undersigned
`
`counsel, hereby files its Answer and Affirmative Defenses to Plaintiff’s Third Amended
`
`Complaint, and states as follows:
`
`1.
`
`This Defendant denies each and every allegation in Plaintiffs Third Amended
`
`Complaint and demands strict proof thereof.
`
`

`

`CASE NO: CACE—14—005235 (12)
`
`AFFIRMATIVE DEFENSES
`
`FIRST AFFIRMATIVE DEFENSE
`
`This Defendant states that
`
`the Plaintiffs are barred from recovering from this
`
`Defendant any damages for losses sustained which have been paid or are payable by any
`
`collateral sources of indemnity available to the Plaintiff including but not limited to those set
`
`forth in Florida Statute §768.76.
`
`SECOND AFFIRMATIVE DEFENSE
`
`This Defendant states that that pursuant to Fabre v. Marin, 623 So.2d 1182 (Fla
`
`1993), any damages awarded to the Plaintiffs are subject to the apportionment by the jury of
`
`the total fault of all participants whether parties or non-parties. At this time, it is unknown
`
`Whether or not there are any potential non-party tortfeasors inasmuch as there has been no
`
`discovery. However, if any are identified, this Defendant reserves the right to supplement
`
`this Affirmative Defense as discovery reveals the identity of potentially responsible third
`
`parties. Nash v. Wells Fargo Guard Services, Inc, 678 So. 2d 1262 (Fla. 1996).
`
`THIRD AFFIRMATIVE DEFENSE
`
`This case involves allegations of negligence against various healthcare providers who
`
`currently are co—defendants of SHERIDAN HEALTHCARE, INC. In the event that any of
`
`the co—defendants settle their claims and/or are dismissed from this case prior to trial or for
`
`any other reason become non—parties,
`
`this Defendant reserves her right
`
`to amend his
`
`affirmative defenses to include the then non—parties 0n the Jury Verdict Form for
`
`apportionment of liability if consistent with the evidence.
`
`[‘0
`
`

`

`CASE NO.: CACE—l4—005235 (12)
`
`FOURTH AFFIRMATIVE DEFENSE
`
`This Defendant asserts that the sole and proximate cause of injury sustained by the
`
`Plaintiff was a direct and proximate result of Plaintiffs’ own negligence, and thus, any award
`
`rendered to Plaintiffs should be diminished and proportioned to Plaintiffs’ own negligence.
`
`FIFTH AF FIRMATIVE DEFENSE
`
`This Defendant asserts without admitting any liability, whatsoever, that in the event
`
`that Plaintiff should prevail in his claim against this Defendant, this Defendant would be
`
`entitled to a setoff of any and all collateral source benefits either paid or payable pursuant to
`
`the provisions of Florida Statutes.
`
`SIXTH AFFIRMATIVE DEFENSE
`
`This Defendant affirmatively asserts that all or part of Plaintiffs’ damages herein were
`
`partially or totally caused by others whom this Defendant had no dominion or control, and
`
`therefore,
`
`this Defendant is entitled to the defenses and privileges set forth in Section
`
`768.81(3), Florida Statutes, with respect
`
`to apportionment of fault principals.
`
`This
`
`Defendant is aware that the Plaintiffs have chosen to serve the foregoing Defendants in its
`
`Complaint, namely, PLANTATION GENERAL HOSPITAL LIMITED PARTNERSHIP
`
`d/b/a PLANTATION GENERAL HOSPITAL; HERMAN M. EPSTEIN, MD; HERMAN
`
`M. EPSTEIN, MD, PA; JEAN B. REYNOLDS, RN; DOREL ABRAMOVICI, MD; SINAI
`
`PERINATAL, LLC; FLORIDA ATLANTIC ANESTHESIA, INC.; LOUIS TRUJILLO,
`
`CSA; ROBERT J. BASS, MD and PLANTATION GYNECOLOGIC ASSOCIATES, LLC,
`
`If the Plaintiffs meet the burden of proof against those other parties or non—parties and this
`
`3
`
`

`

`CASE NO.: CACE—14—005235 (l2)
`
`Defendant,
`
`then this Defendant
`
`intends to avail
`
`themselves of the then controlling law
`
`concerning apportionment of damages. Specifically stated this Defendant will rely upon the
`
`allegations and the proof to be presented by Plaintiffs as to other parties or nonparties as their
`
`basis for this defense.
`
`SEVENTH AFFIRMATIVE DEFENSE
`
`This Defendant asserts that there may be other persons or nonparties that are yet
`
`unknown to this Defendant who may also be liable to the Plaintiffs for Plaintiffs’ alleged
`
`damages. Pursuant to Nash v. Wells Fargo, 678 So.2d 1262 (Fla. 1996), this Defendant will
`
`seek to amend this affirmative defense as swoon as practicable upon identifying this other
`
`persons or nonparties.
`
`In the alternative,
`
`this Defendant will voluntarily withdraw this
`
`defense as to the unknown persons or nonparties only.
`
`EIGHTH AFFIRMATIVE DEFENSE
`
`This Defendant asserts and specifically states that Plaintiffs’ claim is barred by
`
`Statute of Limitations. Florida Statute 95.11.
`
`NINTH AFFIRMATIVE DEFENSE
`
`Inasmuch as this is not a wrongful death claim, this Defendant asserts its rights with
`
`reference to limitations on noneconomic damages as defined in Florida Statutes Section
`
`766.118 and any damages should be reduced according to the Medical Malpractice Tort
`
`Reform Act 2003 in that regard.
`
`TENTH AFFIRMATIVE DEFENSE
`
`As the tenth affirmative defense, this Defendant would state that Plaintiffs” claims are
`
`subject to coverage by the Neurological Injury Compensation Association as their sole
`
`4
`
`

`

`remedy.
`
`CASE NO.: CACE—l4—005235 (12)
`
`ELEVENTH AFFIRMATIVE DEFENSE
`
`As its eleventh affirmative defense, this Defendant would state that the Plaintiffs have
`
`failed to properly plead a claim for partnership.
`
`TWELFTH AFFIRMATIVE DEFENSE
`
`As its twelfth affirmative defense, this Defendant would state that the Plaintiffs have
`
`failed to comply with Florida Statute 766.102 in that the corroborating affidavit was not
`
`signed by a similar healthcare provider.
`
`THIRTEENTH AFFIRMATIVE DEFENSE
`
`As its fifteenth affirmative defense, this Defendant asserts that the Third Amended
`
`Complaint was filed on June 19, 2015, and the initial summons was issued on this Defendant
`
`on September 14, 2020, well past the limitations of Florida Rule of Civil Procedure 1.070(j).
`
`Therefore the Court should drop this Defendant as a paity from this action for the failure to
`
`serve this Defendant within the prescribed 120 days.
`
`DEMAND FOR JURY TRIAL
`
`This Defendant respectfully demands a trial by jury of all issues triable by a jury as a
`
`matter of right.
`
`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 December 9, 2020 and is to be e—
`
`

`

`CASE NO.: CACE-14—005235 (12)
`
`served by the Court Clerk to all counsel listed on the attached Service List.
`
`CHIMPOULIS & HUNTER, P.A.
`Attorneys for Neil P. Ray, MD. and Sheridan
`Healthcare, Inc.
`
`150 South Pine Island Road, Suite 510
`Plantation, FL 33324
`Phone: (954) 463—0033
`
`BY:
`
`fs/ Jay P. Chimpoulis
`JAY CHIMPOULIS, ESQUIRE
`Florida Bar No.: 561533
`
`Primary email:
`ichimgoulisgmchimpou] ishuntercmn
`
`

`

`CASE NO.: CACE—l4—005235 (12)
`
`w
`
`Counsel for Plaintiff, Janet Hi0,hsmith:
`Maria D. Tejedor, Esq.
`Diez-Arguelles | Tejedor
`505 North Mills Avenue
`
`Orlando, FL 32803
`
`(407) 705—2880 Phone
`Primary um i I(trfatlicorlandola\\-'\-'crs.com
`
`Secondary:
`lcahmitlieorlandolattrvcrscom
`
`Counsel for Plaintiff1 Armando R. Payas1 E591 Guardian Ad Litem for Kayla Kelly
`Edmund MacBryde Haskins, Esq.
`Office of General Counsel - DCF
`201 W Broward Blvd Ste 502
`
`Fort Lauderdale, FL 33301—1839
`(954) 467—4551 Phone
`(954) 467—4562 Fax
`
`ednlund.haskinstrnmyfltaniilies.com
`
`Counsel for Dr. Eastein 8.: his P.A.:
`Julia M. Ingle, Esquire
`Lubell & Rosen, LLC
`200 South Andrews Avenue, Suite 900
`Fort Lauderdale, FL 33301
`(954) 755-3425 Phone
`
`jmigj‘llubellrosencom
`AlicegojLubeIIRosenfiom
`
`For Joan E. Reynolds, RN, Louis Truiillo, CSA and PGl-l:
`Marci Strauss, Esq.
`LaCava & Jacobson, PA.
`4901 NW. 17‘h Way, Suite 302
`Fort Lauderdale, FL 33309
`Tel: 754—301-5060
`
`fill-
`loadings EZ'LJG |eszal.com
`LLaCava (ivLJCieoaLcom
`
`Primary
`
`Secondary
`
`mstrauss@_,LJGleQalcom
`111 man‘erogrfiLJ Glegal .com
`
`

`

`Exhibit B
`
`

`

`Filing # 117941393 E-Filed 12/09/2020 04:14:34 PM
`
`IN THE CIRCUIT COURT OF THE 17TH
`
`JUDICIAL CIRCUIT, IN AND FOR
`BROWARD COUNTY, FLORIDA
`
`CASE NO.: CACE-l4—005235 (12)
`
`ARMANDO R. PAYAS, as Guardian Ad
`Litem for K.K., a minor;
`JANET HIGHSMITH, individually, and
`on behalf of K.K, a minor,
`
`Plaintiff,
`
`VS.
`
`PLANTATION GENERAL HOSPITAL
`
`LIMITED PARTNERSHIP d/b/a PLANTATION
`
`GENERAL HOSPITAL;
`HERMAN M. EPSTEIN, MD;
`HERMAN M. EPSTEIN, MD, PA;
`JEAN B. REYNOLDS, RN;
`NEIL P. RAY, MD; LOUIS TRUJILLO, CSA;
`AND SHERIDAN HEALTHCARE, INC.,
`
`Defendants.
`
`
`DEFENDANT= SHERIDAN HEALTHCARE: INC.’S, MOTION TO DISMISS THE
`THIRD AMENDED COMPLAINT
`
`Defendant, SHERIDAN HEALTHCARE, INC ., by and through his undersigned
`
`counsel, and pursuant to Florida Rule of Civil Procedure 1.707(j), hereby files this Motion to
`
`Dismiss for the failure to timely serve this defendant, and states as follows:
`
`1.
`
`The Third Amended Complaint was filed by Plaintiff on June 19, 2015. A copy
`
`of the Third Amended Complaint is incorporated by reference herein and attached hereto as
`
`Exhibit “A.”
`
`

`

`CASE NO.: CACE—l4—005235 (12)
`
`2.
`
`The Complaint was amended by agreement of the parties via Agreed Order
`
`entered on June 19, 2015, wherein the parties agreed that the Second Amended Complaint
`
`was dismissed and providing Plaintiff with ten days to file a Third Amended Complaint.
`
`3.
`
`The Second Amended Complaint
`
`(attached hereto and incorporated by
`
`reference herein as Exhibit “B”) did not include SHERIDAN HEALTHCARE, INC. as a
`
`named Defendant. The Third Amended Complaint (Exhibit “A”) is the first pleading where
`
`SHERIDAN HEALTHCARE, INC. appears as a named Defendant.
`
`4.
`
`The first date when Plaintiff issued a summons to serve the Complaint on
`
`SHERIDAN HEALTHCARE, INC. was September 14, 2020.
`
`5.
`
`Florida Rule of Civil Procedure 1.070(j) states in pertinent part:
`
`If service of the initial process and initial pleading is not
`made upon a defendant within 120 days after filing of the
`initial pleading directed to that defendant the court, on its
`own initiative or after notice or motion, shall direct that
`service be effected within a specified time or shall dismiss
`the action without prejudice or drop that defendant as a
`party; provided that if the plaintiff shows good cause or
`excusable neglect for the failure, the court shall extend the
`time for service for an appropriate period.
`
`6.
`
`In Tolura & C0., Inc. v. Williams, 754 So.2d 671 (Fla. 2000), the Florida
`
`Supreme Court held:
`
`In cases where a motion for leave to amend is filed for the
`
`purpose of adding new parties, we direct that the one—year
`period in rule 1.420(e) will begin to run as to proposed new
`parties on the date that the motion is filed.
`.
`. We cannot
`permit procedural maneuvers to further extend periods of
`limitation beyond those necessary to accommodate practical
`application of the motion, hearing, and order process for the
`amendment of a pleading.
`
`

`

`CASE NO.: CACE—l4—005235 (12)
`
`7.
`
`In the instant matter, the Third Amended Complaint was filed pursuant to the
`
`written agreement of the parties, and no motion had been filed requesting leave to amend or
`
`to add new parties,
`
`like SHERIDAN HEALTHCARE, INC., which had never previously
`
`appeared as a Defendant in this matter in this case. Regardless, the Agreed Order was
`
`entered on September 19, 2015 and the Third Amended Complaint was filed on the same
`
`date.
`
`8.
`
`To date, Plaintiff has made no motion or request from this Court to enlarge the
`
`amount of time within which to accomplish service on SHERIDAN HEALTHCARE, INC.
`
`In fact, the docket reflects that a summons was not filed until September 14, 2020, issued
`
`until September 15, 2020, or served until September 17, 2020. A copy of the executed and
`
`served summons is attached hereto and incorporated by reference herein as Exhibit “C.”
`
`9.
`
`Accordingly Plaintiffs first attempt
`
`to effectuate service on SHERIDAN
`
`HEALTHCARE, INC. occurred exactly 1,865 days after the filing of the Third Amended
`
`Complaint (and 1,745 days after the 120, days provided in Fla. R. Civ. P. 1.707(j)), or 5
`
`years, 2 months and 6 days after the filing of the Third Amended Complaint (and 4 years, 2
`
`months, 6 days after the one year rule found in Fla. R. Civ. P. 1.420(e) and discussed in
`
`Totura as cited above).
`
`10.
`
`Therefore, because the statute of limitations expired many years prior to the
`
`Plaintiff’s first attempt at service, Plaintiff cannot provide a good faith excuse for the years
`
`long failure to serve a Defendant
`
`in this matter. This Court should accordingly drop
`
`SHERIDAN HEALTHCARE, INC. as a party to this litigation.
`
`WHEREFORE, Defendant, SHERIDAN HEALTHCARE, INC, by and through the
`
`undersigned counsel, respectfully requests the entry of an Order by this Honorable Court
`
`3
`
`

`

`CASE NO.: CACE—l4—005235 (12)
`
`dropping SHERIDAN HEALTHCARE, INC. as a party to this action, and providing such
`
`further relief as this Court deems appropriate and just.
`
`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 December 9, 2020 and is to be e-
`
`served by the Court Clerk to all counsel listed on the attached Service List.
`
`CHIMPOULIS & HUNTER, P.A.
`Attorneys for Neil P. Ray, MD. and Sheridan
`Healthcare, Inc.
`
`150 South Pine Island Road, Suite 510
`Plantation, FL 33324
`Phone: (954) 463—0033
`
`BY:
`
`/s/ Danielle A. Suarez
`
`DANIELLE A. SUAREZ, ESQUIRE
`Florida Bar No_: 21071
`
`Email: DSuarezfiichimpoulishuntercom
`
`

`

`CASE NO.: CACE—14—005235 (12)
`
`SERVICE LIST
`
`Counsel for Plaintiff3 Janet HiOhsmith:
`Maria D. Tejedor, Esq.
`Diez-Arguelles I Tejedor
`505 North Mills Avenue
`
`Orlando, FL 32803
`(407) 705-2880 Phone
`Primary mai1(thiheorlandolawyerscom
`
`Secondary:
`leal]{5}}.theprlanfiglmvvers.com
`
`Counsel for Plaintiff= Armando R. Pavas, Esgu Guardian Ad Litem for Kayla Kelly
`Edmund MacBryde Haskins, Esq.
`Office of General Counsel — DCF
`201 W Broward Blvd Ste 502
`
`Fort Lauderdale, FL 33301-1839
`(954) 467—4551 Phone
`(954) 467-4562 Fax
`edmund.haskinsgq'flmyflfamilies.com
`
`Counsel for Dr. Egstein & his P.A.:
`Julia M. Ingle, Esquire
`Lubell & Rosen, LLC
`200 South Andrews Avenue, Suite 900
`Fort Lauderdale, FL 33301
`
`(954) 755-3425 Phone
`l
`'mi cfilubellroseneom
`Alice§cfrlLubellRosencom
`
`For Jean B. Reynolds, RN, Louis Trujillo, CSA and PGH:
`Marci Strauss, Esq.
`LaCava & Jacobson, PA.
`4901 N.W. 17‘h Way, Suite 302
`Fort Lauderdale, FL 33309
`Tel: 754—301-5060
`
`filZpleadigngL‘rLJGlegal.com
`LLaCaan’ilLJGleuaieom
`
`Primary
`
`Secondary
`
`mstrauss@LJG legal .com
`mmarrerogrL‘rLJGlegalcom
`
`

`

`EXHIBIT “A”
`
`

`

`Tiling # 28723707 E—Filed 06/19/2015 03:43:44 PM
`
`IN THE CIRCUIT COURT OF THE SEVENTEENTH JUDICIAL CIRCUIT
`
`IN AND FOR BROWARD COUNTY, FLORIDA
`
`JANET HIGHSMITH, individually and on
`
`Case No.: CACE 2014 005235
`
`behalf of KAYLA KELLY, a minor,
`
`Plaintiff,
`
`VS.
`
`PLANTATION GENERAL HOSPITAL
`
`LIMITED PARTNERSHIP d/b/a
`
`PLANTATION GENERAL HOSPITAL,
`
`HERMAN M. EPSTEIN, M.D., HERMAN
`
`M. EPSTEIN, M.D., P.A., JEAN B.
`
`REYNOLDS, R.N., DOREL
`
`ABRAMOVICI, M.D., SINAI
`
`PERINATAL, LLC, SHERIDAN
`
`HEALTHCARE, INC.,NEIL P. RAY,
`
`M.D., LOUIS TRUJILLO, CSA, ROBERT
`
`J. BASS, MD. and FEMCARE
`
`ASSOCIATES, LLC,
`
`Defendants-
`
`
`
`THIRD AMENDED COMPLAINT
`
`COMES NOW the Plaintiff, JANET HIGHSMITH, individually and on behalf of
`
`KAYLA KELLY, a minor, by and through the undersigned attorney and hereby sue the
`
`Defendants, PLANTATION GENERAL HOSPITAL LIMITED PARTNERSHIP d/b/a
`
`PLANTATION GENERAL HOSPITAL (“PLANTATION GENERAL HOSPITAL”),
`
`HERMAN M. EPSTEIN, M.D. (“EPSTEIN”), HERMAN M. EPSTEIN, M.D., P.A.,
`
`JEAN B. REYNOLDS, R.N.
`
`(“REYNOLDS”), DOREL ABRAMOVICI, M.D.
`
`(“ABRAMOVICI”), SINAI PERINATAL, LLC (“SINAI PERINATAL”), SHERIDAN
`
`Page 1 of 35
`
`*** FILED: BROWARD COUNTY, FL HOWARD FORMAN, CLERK 6/19/2015 3:43:44 PM.****
`
`

`

`HEALTHCARE, INC. (“SHERIDAN HEALTHCARE, INC”), NEIL P. RAY, M.D.
`
`(“RAY”), LOUIS TRUJILLO, CSA (“TRUJILLO”),ROBERT J. BASS, M.D. (“BASS”),
`
`and FEMCARE ASSOCIATES, LLC,and alleges:
`
`JURISDICTION/VENUE/STATUTORY COMPLIANCE
`
`1.
`
`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.
`
`2.
`
`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.
`
`3.
`
`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.
`
`4.
`
`This action is being brought prior to KAYLA KELLY’S eighth birthday and in
`
`accordance with Florida Statute 9S.11(4)(b) is not barred by any statute of
`
`limitations.
`
`5.
`
`JANET HIGHSMITH only recently became aware of a reasonable possibility that
`
`the injuries sustained by KAYLA KELLY were the result of medical malpractice.
`
`Therefore, in accordance with Tanner v. Hat-tog, 618 So.2d 177 (Fla. 1993), the
`
`statute of limitations did not begin to run Lmtil JANET HIGHSMITH and
`
`KAYLA KELLY became aware of such reasonable possibility.
`
`w
`
`Page 2 of 35
`
`

`

`JANET HIGHSMITH is the natural parent of KAYLA KELLY, a minor.
`
`At all times material hereto, Defendant, PLANTATION GENERAL HOSPITAL
`
`was and is a licensed hospital providing medical care, treatment and services in
`
`Broward County, Florida.
`
`At all times material hereto, EPSTEIN, was and is a physician licensed to practice
`
`medicine in the State of Florida, and an employee, agent, and/or apparent agent
`
`PLANTATION GENERAL HOSPITAL.
`
`At all
`
`times material hereto, HERMAN M. EPSTEIN, M.D., PA, was a
`
`corporation authorized to do business within the State of Florida and with its
`
`principal place of business located in Lauderdale Lakes, Broward County,
`
`Florida-
`
`10.
`
`ll.
`
`12.
`
`13.
`
`At all times material hereto, EPSTEIN, was and is a physician licensed to practice
`
`medicine in the State of Florida, and an employee, agent, apparent agent with
`
`HERMAN M. EPSTEIN, M.D., P.A.
`
`At all times material hereto, REYNOLDS, was a registered nurse licensed to
`
`practice nursing in the State of Florida, and an employee, agent, and/or apparent
`
`agent with PLANTATION GENERAL HOSPITAL.
`
`At all
`
`times material hereto, TRUJILLO, was a certified surgical assistant
`
`licensed in the State of Florida, and an employee, agent, and/or apparent agent
`
`with PLANTATION GENERAL HOSPITAL.
`
`At all times material hereto, ABRAMOVICI, was and is a physician licensed to
`
`practice medicine in the State of Florida, and an employee, agent, and/or apparent
`
`agent PLANTATION GENERAL HOSPITAL.
`
`Page 3 of 35
`
`

`

`14.
`
`15.
`
`I6.
`
`17.
`
`18.
`
`19-
`
`20.
`
`21.
`
`At all times material hereto, SINAI PERINATAL, was and is a for—profit entity
`
`licensed to business in the State of Florida, and in the business of providing
`
`medical care, treatment and services in Broward County, Florida.
`
`At all times material hereto, ABRAMOVICI, was and is a physician licensed to
`
`practice medicine in the State of Florida, and an employee, agent, and/or apparent
`
`agent SINAI PERINATAL.
`
`At all times material hereto, SHERIDAN I-IEALTI-ICARE, INC ., was and is a for—
`
`profit entity licensed to business in the State of Florida, and in the business of
`
`providing medical care, treatment and services in Broward County, Florida.
`
`At all times material hereto, RAY, was and is a physician licensed to practice
`
`medicine in the State of Florida, and an'employee, agent, and/or apparent agent
`
`SHERIDAN HEALTHCARE, INC.
`
`At all times material hereto, RAY, was and is a physician licensed to practice
`
`medicine in the State of Florida, and an employee, agent, and/or apparent agent
`
`PLANTATION GENERAL HOSPITAL.
`
`At all times material hereto, BASS, was and is a physician licensed to practice
`
`medicine in the State of Florida, and an employee, agent, and/or apparent agent
`
`PLANTATION GENERAL HOSPITAL.
`
`At all times material hereto, FEMCARE ASSOCIATES, LLC was and is a for-
`
`profit entity licensed to business in the State of Florida, and in the business of
`
`providing medical care, treatment and services in Broward County, Florida.
`
`At all times material hereto, BASS was an employee, agent and/or apparent agent
`
`of FBMCARB ASSOCIATES, LLC.
`
`Page 4 of35
`
`

`

`22.
`
`23.
`
`24.
`
`25.
`
`26.
`
`FACTS GIVING RISE TO THE CLAIM
`
`Around January of 2011, the Plaintiff, JANET HIGHSMITH, began her prenatal
`
`care with EPSTEIN and ABRAMOVICI.
`
`Numerous ultrasounds were performed throughout her pregnancy revealing a
`
`normal and healthy fetus. EPSTEIN and ABRAMOVICI failed to monitor and
`
`respond to Ms. HIGHSMITH’S consistently high blood pressures.
`
`On July 28, 2011, EPSTEIN diagnosed the fetus with mild growth retardation and
`
`decreased blood flow. Despite these clear signs of complications, EPSTEIN
`
`simply sent JANET HIGHSMITH home to rest and did not take any actions to
`
`treat her complications.
`
`On July 28, 2011, EPSTEIN consulted with ABRAMOVICI regarding his
`
`evaluation of JANET HIGHSMITH and her present complications.
`
`Three (3) days later, on July 31, 2011, JANET HIGHSMITH called an ambulance
`
`because she was experiencing severe abdominal pain. She was rushed to the
`
`PLANTATION GENERAL HOSPITAL.
`
`27.
`
`Prior to delivery, JANET HIGHSMITH was receiving obstetrical care and
`
`treatment from BASS.
`
`KAYLA KELLY was delivered via Caesarian section at 9:55 am. on July 31,
`
`2011. Her pre-operative diagnoses were placental
`
`abruption and severe
`
`bradycardia of the fetus.
`
`29.
`
`At birth, physicians and staff, including but not limited to EPSTEIN, TRUJILLO
`
`and REYNOLDS, noted that KAYLA KELLY was flaccid and lifeless, barely
`
`Page 5 of 35
`
`

`

`30.
`
`31.
`
`had an audible heart rate, and was not breathing. She was admitted to the neonatal
`
`intensive care unit at a high risk for hypoxia ischemic encephalopathy.
`
`As a direct and proximate result of the foregoing, KAYLA KELLY suffers from
`
`significant brain damage, cerebral palsy, and developmental delays.
`
`Furthermore,
`
`the Defendants,
`
`PLANTATION GENERAL HOSPITAL,
`
`EPSTEIN, and REYNOLDS failed to comply with a request for medical records
`
`pursuant to Florida Statute 456.057. After a notice of intent to initiate litigation
`
`was sent Via certified mail, PLANTATION GENERAL HOSPITAL failed to
`
`produce requested medical records within the statutory twenty (20) day period. It
`
`produced the requested medical records just days before the expiration of the pre-
`
`suit investigation period. PLANTATION GENERAL HOSPITAL’S failure to
`
`comply with the requirements of Florida Statute 766.106 constitutes grounds for
`
`dismissal of any claims or defenses ultimately asserted.
`
`COUNT I: PLANTATION GENERAL HOSPITAL’S BREACH OF ITS
`NONDELEGABLE DUTIES
`
`Plaintiffs re-allege and incorporate by reference paragraphs 1 through 31 above as
`
`though fully set forth herein and further allege the following:
`
`32. Defendant PLANTATION GENERAL HOSPITAL held itself out to the public
`
`as a health care provider having the facilities, competence, staff, and trained
`
`personnel to examine, diagnose, advise, and treat the patients such as JANET
`
`HIGHSMITH and KAYLA KELLY, a minor.
`
`33. PLANTATION GENERAL HOSPITAL undertook to perform services on behalf
`
`of JANET HIGHSMITH and/or KAYLA KELLY, a minor, when she presented
`
`to PLANTATION GENERAL HOSPITAL fo

This document is available on Docket Alarm but you must sign up to view it.


Or .

Accessing this document will incur an additional charge of $.

After purchase, you can access this document again without charge.

Accept $ Charge
throbber

Still Working On It

This document is taking longer than usual to download. This can happen if we need to contact the court directly to obtain the document and their servers are running slowly.

Give it another minute or two to complete, and then try the refresh button.

throbber

A few More Minutes ... Still Working

It can take up to 5 minutes for us to download a document if the court servers are running slowly.

Thank you for your continued patience.

This document could not be displayed.

We could not find this document within its docket. Please go back to the docket page and check the link. If that does not work, go back to the docket and refresh it to pull the newest information.

Your account does not support viewing this document.

You need a Paid Account to view this document. Click here to change your account type.

Your account does not support viewing this document.

Set your membership status to view this document.

With a Docket Alarm membership, you'll get a whole lot more, including:

  • Up-to-date information for this case.
  • Email alerts whenever there is an update.
  • Full text search for other cases.
  • Get email alerts whenever a new case matches your search.

Become a Member

One Moment Please

The filing “” is large (MB) and is being downloaded.

Please refresh this page in a few minutes to see if the filing has been downloaded. The filing will also be emailed to you when the download completes.

Your document is on its way!

If you do not receive the document in five minutes, contact support at support@docketalarm.com.

Sealed Document

We are unable to display this document, it may be under a court ordered seal.

If you have proper credentials to access the file, you may proceed directly to the court's system using your government issued username and password.


Access Government Site

We are redirecting you
to a mobile optimized page.





Document Unreadable or Corrupt

Refresh this Document
Go to the Docket

We are unable to display this document.

Refresh this Document
Go to the Docket