United States District Court, S.D. Florida
G. COOKE UNITED STATES DISTRICT JUDGE
brings this action on behalf of the decedent, Rodolfo Pietro
alleging Nursing Negligence and Healthcare Center Liability
by Defendant Total Renal Care, Inc. Plaintiff filed a Motion
for Summary Judgment (ECF No. 35) on August 31, 2018,
arguing, through deposition testimony, that Defendant
essentially admitted that it breached its duty to the
deceased. Defendant also moved for summary
judgment, disputing liability (ECF No. 38). Defendant
subsequently filed an Amended Motion for Final Summary
Judgment (ECF No. 41). Plaintiff thereafter filed a motion to
strike Defendant's expert whose testimony was used in
support of Defendant's Motion for Summary Judgment (ECF
No. 50). Defendant thereafter moved to strike Plaintiff's
Rule 26(a)(2) Disclosure as Untimely, seeking to exclude
Plaintiff's witness as an expert (ECF No. 51).
reviewing Plaintiff's Motion for Summary Judgment,
Defendant's Response (ECF No. 43), Plaintiff's Reply
(ECF No. 44), Defendants' Motion for Summary Judgment,
Plaintiffs' Amended Response (ECF No. 40),
Plaintiff's Daubert Motion to Strike Defendant's
Expert (ECF No. 50), Defendant's Response (ECF No. 54),
Defendant's Motion to Strike Plaintiff's Rule
26(a)(2) Disclosure (ECF No. 51), Plaintiff's Response in
opposition (ECF No. 51), the record, and relevant legal
authorities, all motions are denied.
is a renal dialysis center. ECF No. 38, p. 1. Mr. Prieto was
a 76-year-old man with various health issues, including an
amputated leg. ECF No. 35-1. During the alleged incident, Mr.
Prieto was staying at an assisted living rehabilitation
center and received consistent dialysis treatments at
Defendant's facilities. Id. Since the amputation
of his leg, on August 15, 2015, Mr. Prieto's treating
nephrologist, doctor Hasan Ali, ordered that Mr. Prieto be
transported to and from Total Renal Care via a stretcher.
January 2, 2016, the American Services Company (a third-party
transportation company) transported Mr. Prieto on a stretcher
to Total Renal Care. Id.; ECF No. 35. After Mr.
Prieto received his necessary dialysis, he exited the
facility via wheelchair. Id. On the way to his
nursing home, the transportation van came to an abrupt stop,
causing Mr. Prieto to fly forward, out of his wheelchair,
sustaining various injuries. Id. Mr. Prieto died six
months after the incident. Id.
moves for summary judgment, arguing that Defendant owed the
decedent a duty to ensure that he was transported to and from
their dialysis treatment center via a stretcher and on the
day of the incident, Defendant breached that duty, allowing
Mr. Pierto to leave the facility on a wheelchair, resulting
in his death. Plaintiff argues that but for Total Renal
Care's failure to send Mr. Prieto to his nursing home via
a stretcher, he would not have sustained injuries from a
sudden traffic stop.
moves for summary judgment, arguing that the transportation
service company is the negligent party in this action as they
failed to properly secure Mr. Prieto to his wheelchair.
Defendant essentially contends that “the lack of
properly securing Mr. Prieto, such as the use of a seatbelt
harness, is the superseding cause of Mr. Prieto's
unfortunate injuries.” ECF No. 38 at 2. In support,
Defendant includes an affidavit of an accident reconstruction
specialist, who opined that Mr. Pierto's injuries were
not a result of his transportation method but the
driver's failure to properly secure Mr. Prieto to his
wheelchair. See ECF No. 328-5.
parties disagree over the following: whether the affidavit
Plaintiff attached to her complaint suffices to establish the
applicable standard of care in the instant case; whether the
medical order by decedent's nephrologist, stating that
Plaintiff should be transported via a stretcher, imputes
liability to Defendant for transportation purposes; and
whether Total Renal Care's duty to Mr. Prieto extends to
his transportation by a third-party transportation service
company. These are discussed below.
Motions for summary judgment
Summary Judgment Standard
judgment “shall be granted if the pleadings,
depositions, answers to interrogatories, and admissions on
file, together with the affidavits, if any, show that there
is no genuine issue as to any material fact and that the
moving party is entitled to a judgment as a matter of
law.” Allen v. Tyson Foods, Inc., 121 F.3d 642
(11th Cir. 1997) (quoting Fed.R.Civ.P. 56(c)) (internal
quotations omitted); Damon v. Fleming Supermarkets of
Florida, Inc., 196 F.3d 1354, 1358 (11th Cir. 1999).
Thus, the entry of summary judgment is appropriate
“against a party who fails to make a showing sufficient
to establish the existence of an element essential to that
party's case, and on which that party will bear the
burden of proof at trial.” Celotex Corp. v.
Catrett, 477 U.S. 317, 322 (1986).
moving party bears the initial burden to show the district
court, by reference to materials on file, that there are no
genuine issues of material fact that should be decided at
trial.” Clark v. Coats & Clark, Inc., 929
F.2d 604, 608 (11th Cir. 1991). “Only when that burden
has been met does the burden shift to the non-moving party to
demonstrate that there is indeed a material issue of fact
that precludes summary judgment.” Id. Rule 56
“requires the nonmoving party to go beyond the
pleadings and by her own affidavits, or by the
‘depositions, answers to interrogatories, and
admissions on file,' designate ‘specific facts
showing that there is a genuine issue for trial.”
Celotex, 477 U.S. at 324. Thus, the nonmoving party
“may not rest upon the mere allegations or denials of
his pleadings, but must set forth specific facts showing that
there is a genuine issue for trial.” Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 248 (1986) (internal
quotation marks omitted).
factual dispute is genuine if the evidence is such that a
reasonable jury could return a verdict for the non-movin g
party.” Damon, 196 F.3d at 1358. When deciding
whether summary judgment is appropriate, “the evidence,
and all inferences drawn from the facts, must be viewed in
the light most favorable to the non-moving party.”
Bush v. Houston County Commission, 414 Fed.Appx.
264, 266 (11th Cir. 2011).
Complaint is an action for medical negligence against Total
Renal. Florida Statute § 766.106(1)(a) defines a claim
for “medical negligence” or “medical
malpractice” as “a claim arising out of the
rendering of, or the failure to render, medical care or
services.” J.B. v. Sacred Heart Hosp., 635
So.2d 945, 948-49 (Fla. 1994). To prevail on a Florida
medical-negligence claim, a plaintiff must establish the
standard of care that the defendant owed, the defendant's
breach of the standard of care, and that the breach
proximately caused the damages claimed. Furthermore, in order
to qualify as a medical malpractice claim, the wrongful act
alleged “must be directly related to the improper
application of medical services and the use of professional
judgment or skill.” Quintanilla v. Coral Gables
Hosp., Inc., 941 So.2d 468, 469 (Fla. 3d DCA 2006)
(citing Lynn v. Mount SinaiMed. Ctr., Inc., 692
So.2d 1002, 1003 (Fla. 3d DCA 1997)). Moreover, the alleged
injury “must be a direct result of receiving medical
care or treatment by the healthcare provider.”
Id. (citing Goldman v. Halifax Med. Ctr.,
Inc., 662 So.2d 367, 371 (Fla. 5th DCA 1995)).
766.102, Florida Statutes, defines the standard of care for
medical malpractice claims as “that level of care,
skill, and treatment which, in light of all relevant
surrounding circumstances, is recognized as acceptable and
appropriate by reasonably prudent similar health care
providers.” § 766.102(1), Fla. Stat. (2009);
Price v. United States, No. 3:09-cv-1165-J-MCR, 2012
U.S. Dist. LEXIS 128017, (M.D. Fla. Sept. 10, 2012). A
plaintiff bears the burden of proving a breach of the
“prevailing professional standard of care for a
particular health care provider by the greater weight of the
evidence.” Estate of McCall v. United States,
663 F.Supp.2d 1276, 1288 (N.D. Fla. 2009) (quotation
omitted). Expert testimony is generally required to establish
the standard of care prevalent in a particular medical field.
Torres v. Sullivan, 903 So.2d 1064, 1068 (Fla. 2d
Plaintiff's Motion ...