ARMANDO PAYAS, as personal Representative of the Estate of Bernardo Galarza, deceased, and on behalf of the Estate of Ana Galarza, deceased, Appellant,
ADVENTIST HEALTH SYSTEM/SUNBELT, INC. d/b/a FLORIDA HOSPITAL d/b/a CELEBRATION HEALTH; FLORIDA HOSPITAL MEDICAL GROUP, INC. d/b/a ADVANCED MINIMALLY INVASIVE & BARIATRIC SURGICAL CONSULTANTS; EDUARDO PARRA DAVILA, M.D.; FLORIDA HEALTH SCIENCES CENTER, INC. d/b/a TAMPA GENERAL HOSPITAL; MICHAEL ALBRINK, M.D.; MURRAY SHAMES, M.D.; STEVEN GOLDIN, M.D.; JOHN CHIPKO, M.D.; USF HEALTH, INC.; and INTUITIVE SURGICAL, INC., Appellees.
FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF
from the Circuit Court for Hillsborough County; E. Lamar
E. Diez-Arguelles and Maria Tejedor of Diez-Arguelles &
Tejedor, P.A., Orlando; and Heather M. Kolinsky and Susan W.
Fox of Fox & Loquasto, P.A., Orlando, for Appellant.
D. Hall and Ryan P. Kopf of Adams Hall Schieffelin &
Smith, P.A., Winter Park, for Appellee Adventist Health
System/Sunbelt, Inc. d/b/a Florida Hospital.
appearance for remaining Appellees.
Payas, as personal representative of the estates of Bernardo
Galarza and his wife, Ana Galarza, appeals a final order
dismissing with prejudice his fourth amended complaint
against Adventist Health System/Sunbelt, Inc., d/b/a Florida
Hospital d/b/a Celebration Health. The complaint alleged that
Mr. Galarza died from complications following surgery
performed by Dr. Parra-Davila at Celebration Health to repair
Mr. Galarza's paraesophageal hernia and two subsequent
surgeries performed by other surgeons at different hospitals.
In this appeal, Payas argues that the trial court erred in
dismissing the fourth complaint against Celebration Health
with prejudice because it contains sufficient allegations for
causes of action for vicarious liability, breach of a
nondelegable duty, and negligence. We agree and reverse the
decision of the trial court.
following facts are alleged in Payas's fourth amended
complaint. In July 2009, Dr. Parra-Davila performed a
paraesophageal hernia repair surgery on Mr. Galarza using a
surgical robot. Celebration Health provided the surgical
suite, medical staff, and the medical equipment, including
the surgical robot. During the surgery, part of the surgical
robot detached and became embedded in Mr. Galarza's
esophagus. As a result, Mr. Galarza developed complications
over the following months and years. A second surgery was
performed by a different surgeon at Tampa General Hospital in
July 2012 to determine the cause of his worsening symptoms,
but the surgery was unsuccessful. In January 2013, a third,
exploratory surgery was performed at Tampa General Hospital.
During that surgery, Mr. Galarza's vena cava vein was
ruptured, causing considerable blood loss, cardiac arrest,
and ultimately his death. An autopsy revealed the presence of
a thin, coiled band encircling the gastroesophageal junction.
Payas alleged that this foreign object was part of the
surgical robot that became detached during the first surgery
in July 2009. Payas also alleged that a foreign object was
observed during a CT scan of Mr. Galarza performed in April
2012 prior to his second surgery, although Mr. Galarza was
never informed of this discovery.
named numerous defendants in his lawsuit. Relevant to this
appeal are the counts involving the first surgery in 2009
performed by Dr. Parra-Davila at Celebration Health. In count
I, Payas alleged a count against Celebration Health for
negligence for breach of a nondelegable duty during the first
surgery. In count II, Payas alleged a direct negligence count
against Celebration Health for negligent maintenance and
operation of the surgical robot and training regarding use of
the robot prior to the first surgery. In count III, Payas
alleged negligence against Dr. Parra-Davila. In count IV,
Payas alleged vicarious liability against Celebration Health
for the negligence of Dr. Parra-Davila during the first
surgery. In count V, Payas alleged vicarious liability
against Celebration Health for the negligence of staff during
the first surgery. Payas also alleged counts against other
defendants relating to the first and third surgeries.
Health filed a motion to dismiss Payas's complaint with
prejudice, arguing that the fourth amended complaint was
Payas's fourth attempt to state claims against
Celebration Health. Three prior complaints had been dismissed
without prejudice, and Payas had been given leave to amend.
Celebration Health claimed that the counts alleged in the
fourth amended complaint failed to state proper causes of
action, that Payas failed to comply with chapter 766, Florida
Statutes (2015), and that the claims are barred by the
statute of limitations. After a hearing, the trial court
granted Celebration Health's motion and dismissed the
counts against Celebration Health with prejudice because it
contained "co-mingling of allegations" and the
allegations were "still too vague."
review de novo the trial court's dismissal of Payas's
complaint with prejudice. See Meadows Cmty. Ass'n v.
Russell-Tutty, 928 So.2d 1276, 1278 (Fla. 2d DCA 2006).
For purposes of a dismissal with prejudice, all factual
allegations in the complaint must be taken as true and all
reasonable inferences should be drawn in the appellant's
favor. Wallace v. Dean, 3 So.3d 1035, 1042-43 (Fla.
2009) (quoting Ralph v. City of Daytona Beach, 471
So.2d 1, 2 (Fla. 1983)); Toney v. C. Courtney, 191
So.3d 505, 507 (Fla. 1st DCA 2016). "It is not for the
court to speculate whether the allegations are true or
whether the pleader has the ability to prove them."
Meadows Cmty. Ass'n, 928 So.2d at 1279 (quoting
Fox v. Prof'l Wrecker Operators of Fla., Inc.,
801 So.2d 175, 178 (Fla. 5th DCA 2001)).
complaint must allege "a short and plain statement of
the ultimate facts showing that the pleader is entitled to
relief." Fla. R. Civ. P. 1.110(b)(2). "[T]he phrase
'ultimate facts' is used to refer to logical
conclusions that are deduced from evidentiary facts. Ultimate
facts are the final effect of legal reasoning from the
evidentiary facts." Philip J. Padovano Florida Civil
Practice § 7.13 at 246, 246 (2018 ed.). "It is
not necessary or even proper ...