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Filing # 149646157 E-Filed 05/16/2022 01:01:25 PM
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`IN THE CIRCUIT COURT FOR THE 11TH
`JUDICIAL CIRCUIT IN AND FOR MIAMI-
`DADE COUNTY, FLORIDA
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`CIVIL DIVISION
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` CASE NO: 2022-002526-CA-01
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`ARIEL MORALES,
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`Plaintiff,
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`v.
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`ARTURO ESPINAL, M.D., and
`MD NOW MEDICAL CENTERS, INC.,
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`Defendants.
`______________________________/
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`DEFENDANTS’ ANSWER AND AFFIRMATIVE DEFENSES TO
`PLAINTIFF’S COMPLAINT FOR DAMAGES
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`The Defendants, ARTURO ESPINAL, M.D., and MD NOW MEDICAL CENTERS,
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`INC., by and through the undersigned counsel, and pursuant to the Florida Rules of
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`Civil Procedure, files this, their Answer and Affirmative Defenses to Plaintiff’s Complaint
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`for Damages, and as grounds state as follows:
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`JURISDICTION & PARTIES
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`1.
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`Defendants deny the allegations contained in paragraph 1 of the Plaintiff’s
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`Complaint, and demand strict proof thereof.
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`2.
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`Defendants admit that the events complained of in the Plaintiff’s Complaint
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`occurred in Miami-Dade County, Florida and this court has subject matter jurisdiction.
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`3.
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`Defendants admit that the events complained of in the Plaintiff’s Complaint
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`occurred in Miami-Dade County, Florida and venue is proper there.
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`4.
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`Defendants are without knowledge to either admit or deny the allegations
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`contained in paragraph 4 of the Plaintiff’s Complaint and demand strict proof thereof.
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`5.
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`Defendants deny as phrased the allegations contained in paragraph 5 of
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`the Plaintiff’s Complaint and demand strict proof thereof.
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`6.
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`Defendants admit the allegations contained in paragraph 6 of the Plaintiff’s
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`Complaint.
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`7.
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`Defendants admit the allegations of Paragraph 7 of the Plaintiff’s
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`Complaint.
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`8.
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`Defendants are without knowledge to either admit or deny the allegations
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`in Paragraph 8 of the Plaintiff’s Complaint, and demand strict proof thereof.
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`9.
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`Defendants admit the allegations in Paragraph 9 of the Plaintiff’s
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`Complaint.
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`10. Defendants deny as phrased the allegations in Paragraph 10 of the
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`Plaintiff’s Complaint and demand strict proof thereof.
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`11. Defendants deny as phrased the allegations in Paragraph 11 of the
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`Plaintiff’s Complaint, and demand strict proof thereof.
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`12. Defendants deny as phrased the allegations in Paragraph 12 of the
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`Plaintiff’s Complaint, and demand strict proof thereof.
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`13. Defendants admit the allegations in Paragraph 13 of the Plaintiff’s
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`Complaint.
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`14. Defendants admit the allegations in Paragraph 14 of the Plaintiff’s
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`Complaint.
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`15. Defendants admit the allegations in Paragraph 15 of the Plaintiff’s
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`Complaint.
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`16. Defendants are without knowledge to either admit or deny the allegations
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`contained in paragraph 16 of the Plaintiff’s Complaint and demand strict proof thereof.
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`17. Defendants are without knowledge to either admit or deny the allegations
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`contained in paragraph 17 of the Plaintiff’s Complaint and demand strict proof thereof.
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`18. Defendants are without knowledge to either admit or deny the allegations
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`contained in paragraph 18 of the Plaintiff’s Complaint and demand strict proof thereof.
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`19. Defendants are without knowledge to either admit or deny the allegations
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`contained in paragraph 19 of the Plaintiff’s Complaint and demand strict proof thereof.
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`20. Defendants are without knowledge to either admit or deny the allegations
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`contained in paragraph 20 of the Plaintiff’s Complaint and demand strict proof thereof.
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`21. Defendants are without knowledge to either admit or deny the allegations
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`contained in paragraph 21 of the Plaintiff’s Complaint and demand strict proof thereof.
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`22. Defendants are without knowledge to either admit or deny the allegations
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`contained in paragraph 22 of the Plaintiff’s Complaint and demand strict proof thereof.
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`23.
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`. Defendants are without knowledge to either admit or deny the allegations
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`contained in paragraph 23 of the Plaintiff’s Complaint and demand strict proof thereof.
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`24. Defendants deny the allegations contained in paragraph 24 of the
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`Plaintiff’s Complaint and demand strict proof thereof.
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`25. Defendants are without knowledge to either admit or deny the allegations
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`contained in paragraph 25 of the Plaintiff’s Complaint and demand strict proof thereof.
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`26. Defendants deny the allegations contained in paragraph 26 of the
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`Plaintiff’s Complaint and demand strict proof thereof.
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`COUNT I
`NEGLIGENCE AGAINST ARTURO ESPINAL, M.D.
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`Defendants readopt each and every response to Paragraphs 1 through 26
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`27
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`inclusive.
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`28. Defendants deny as phrased the allegations contained in paragraph 29 of
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`the Plaintiff’s Complaint and demand strict proof thereof.
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`29. Defendants admit the allegations contained in paragraph 29 of the
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`Plaintiff’s Complaint.
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`30. Defendants deny the allegations contained in paragraph 30, including
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`subparts a through g, of the Plaintiff’s Complaint and demand strict proof thereof.
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`31. Defendants deny the allegations contained in paragraph 31 of the
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`Plaintiff’s Complaint and demand strict proof thereof.
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`COUNT II
`VICARIOUS LIABILITY AGAINST MD NOW MEDICAL CENTERS, INC.
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`32. Defendants readopt each and every response to Paragraphs 1 through 31
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`inclusive.
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`33. Defendants admit the allegations contained in paragraph 33 of
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`the Plaintiff’s Complaint.
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`34. Defendants admit the allegations contained in paragraph 34 of the
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`Plaintiff’s Complaint.
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`DAMAGES COMMON TO ALL COUNTS
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`35. Defendants readopt each and every response to Paragraphs 1 through 34
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`inclusive.
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`36. Defendants deny the allegations contained in paragraph 36 of the
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`Plaintiff’s Complaint and demand strict proof thereof.
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`37. Defendants deny the allegations contained in paragraph 37, including all
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`subparts a through k, of the Plaintiff’s Complaint and demand strict proof thereof.
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`CERTIFICATE OF COMPLIANCE
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`38.
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`The Defendants are without knowledge to admit or deny the allegations in
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`Paragraph 38 of the Plaintiff’s Complaint and demand strict proof thereof.
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`39.
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`The Defendants are without knowledge to admit or deny the allegations in
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`Paragraph 39 of the Plaintiff’s Complaint and demand strict proof thereof.
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`38.
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`The Defendants are without knowledge to admit or deny the allegations in
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`Paragraph 40 of the Plaintiff’s Complaint and demand strict proof thereof.
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`DEMAND FOR JURY TRIAL
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`The Defendant demand trial by jury and all issues so triable as a matter of right.
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`AFFIRMATIVE DEFENSES
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`1. The Defendants would show that the Plaintiff’s condition was a result of
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`the natural and continued sequence of events resulting from Plaintiff’s medical condition
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`and/or prior medical treatments and not the result of the negligence of any parties to this
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`action.
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`2. The Plaintiff was himself negligent by, inter alia, failing to follow or obey
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`physicians’ advice, failing to follow the instructions for prescribed medications or
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`treatment, failing to accurately report symptoms or history, and other acts of negligence
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`not yet discovered, which were the sole, proximate or contributing cause of his
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`damages and, as a result, any recovery should be barred or reduced proportionately.
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`3. The Plaintiff has failed to mitigate his damages.
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`4. The Defendants would show that for all medical treatment rendered by to
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` Plaintiff, Defendant possessed and exercised that degree of skill, care, and treatment
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`recognized as acceptable and appropriate by reasonably prudent similar health care
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`providers.
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`5. The Defendants further specifically deny that any act or omission
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`attributable to them was a legal cause of the injuries or damages suffered by the
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`Plaintiff.
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`6. The Defendants would further show that he is entitled to the limitations,
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`protections, and immunities afforded under the medical malpractice reform act,
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`including but not limited to alternate methods of payment or judgment, standards of
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`proof required at trial and limitations on damages.
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`7. Any recovery awarded to the Plaintiff must be reduced by all recoveries
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`from collateral sources, as defined within Florida Statutes Section 768.76, including any
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`settlements with other parties for the same damages.
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` CERTIFICATE OF SERVICE
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`WE HEREBY CERTIFY that a true and correct copy of the foregoing has been
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`electronically served via Florida e-portal this 16th day of May, 2022, to: Daniel R.
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`Schwartz, Esq. and Douglas F. Eaton, Esq., Eaton & Wolk, P.L., Attorneys for Plaintiff,
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`2665 South Bayshore Drive, Suite 609, Miami, FL 33133 (deaton@eatonwolk.com;
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`dschwartz@eatonwolk.com; cgarcia@eatonwolk.com).
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`QUINTAIROS, PRIETO, WOOD & BOYER, P.A.
`Attorneys for ARTURO ESPINAL, M.D., and MD
`NOW MEDICAL CENTERS, INC.
`2400 East Commercial Blvd., Suite 520
`Fort Lauderdale, FL 33308
`Telephone: (954) 523-7008/(954) 523-7009
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`/s/ Robert J. Cousins
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`______________________________________
`ROBERT J. COUSINS, ESQ.
`Fla. Bar Number 307017
`Email: rcousins@qpwblaw.com
`SCOTT C. SANKEY, ESQ.
`Fla. Bar No. 520314
`Email: ssankey@qpwblaw.com
`Service email: rcousins.pleadings@qpwblaw.com
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