rdd Doc 336 Filed 08/17/17 Entered 08/17/17 15:47:47 Main Document Pg 1 of 9 UNITED STATES BANKRUPTCY COURT SOUTHERN DISTRICT OF NEW YORK

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1 rdd Doc 336 Filed 08/17/17 Entered 08/17/17 15:47:47 Main Document Pg 1 of 9 UNITED STATES BANKRUPTCY COURT SOUTHERN DISTRICT OF NEW YORK ) In re: ) Chapter 11 ) 21ST CENTURY ONCOLOGY HOLDINGS, INC. et al., ) Case No (RDD) ) Debtors. ) ) MOTION FOR RELIEF FROM AUTOMATIC STAY PURSUANT TO 11 U.S.C. SECTION 362(d)(1) TO ALLOW CIVIL LITIGATION TO PROCEED TO THE EXTENT OF INSURANCE Pursuant to 11 U.S.C. 362(d)(1) and Local Rule , Benjamin Cummings respectfully moves this Court for relief from the automatic stay to allow his Florida medical negligence action to proceed to the extent of insurance. In support hereof, Movant states: 1. Cummings is the plaintiff in a medical negligence action filed in 2015 against Debtor 21st Century Oncology LLC and its then-employee Matei T. Andreoiu, M.D. That lawsuit is Benjamin Cummings v. 21 st Century Oncology LLC et al., Case No. 15-CA , currently pending in the Twentieth Judicial Circuit Court in and for Lee County, Florida (the Florida Malpractice Action ). A true and correct copy of the operative complaint in the Florida Malpractice Action and 21 st Century s answer and affirmative defenses are attached hereto as Exhibits 1 and 2. This lawsuit is currently stayed by Debtor s Chapter 11 filing. 2. In response to pre-stay discovery in the Florida Malpractice Action, 21st Century produced two insurance policies that provide coverage for Mr. Cummings claims: 3. The first is Batan Insurance Company SPC Ltd. Healthcare Professional Liability policy number BAT According to its declarations, this policy provides $1,000,000 per incident ($10,000,000 aggregate) primary professional liability coverage with no self-insured 1 EATON & WOLK PL 2665 S. BAYSHORE DRIVE SUITE 609 MIAMI, FL (305)

2 rdd Doc 336 Filed 08/17/17 Entered 08/17/17 15:47:47 Main Document Pg 2 of 9 retention. The policy also pays Debtor s defense costs. A true and correct copy of policy BAT is attached as Exhibit The second is Batan Insurance Company SPC Ltd. Excess Healthcare Professional and General Liability Policy number SPA It provides an aggregate $15,000,000 in coverage over the $1,000,000 provided by BAT A true and correct copy of policy SPA is attached as Exhibit In short, there is $16 million in liability insurance available to the Debtor, 2 which is more than sufficient to cover a judgment in the underlying malpractice action. Because there is adequate liability insurance for his malpractice claims, Benjamin Cummings respectfully moves the Court to lift the automatic stay to allow the Florida Malpractice Action to proceed, limited to the extent of Debtor s insurance. 6. Granting this motion will cause no harm to the Debtor or the bankruptcy estate because any judgment in the Florida Malpractice Action will be limited to existing liability insurance. In addition, should this motion be granted, Cummings waives all claims in bankruptcy against the Debtor and Estate. WHEREFORE, Benjamin Cummings respectfully moves the Court to lift the automatic stay pursuant to 11 U.S.C. 362(d)(1) and permit the Florida Malpractice Action to proceed to the extent of insurance. 1 Radiation Therapy Services Inc., the first named insured of both policies, is the predecessor corporation to Debtor 21 st Century Oncology LLC. 21 st Century Oncology Inc. merged with and was converted to 21 st Century Oncology LLC on December 31, 2008 (See Exhibit 5 attached). Radiation Therapy Services Inc. in turn changed its name to 21 st Century Oncology Inc. on December 5, (See Exhibit 6). We would note that Exhibits 3 through 6 are admissible under Rule 801(d)(2) as admissions of the Debtor. Exhibits 5 and 6 are also subject to judicial notice. 2 Though not directly relevant to the Court s analysis, Dr. Andreoiu, the physician for whom the Debtor is vicariously liable, is also separately insured under his current employer s $1 million policy, making the total available coverage $17 million, and Dr. Andreoiu s policy most likely covers the first dollar. 2 EATON & WOLK PL 2665 S. BAYSHORE DRIVE SUITE 609 MIAMI, FL (305)

3 rdd Doc 336 Filed 08/17/17 Entered 08/17/17 15:47:47 Main Document Pg 3 of 9 MEMORANDUM OF LAW As this Court knows well, 11 U.S.C. 362(d)(1) allows the bankruptcy stay to be lifted for cause. In re SCO Group, Inc., 395 B.R. 852, 856 (Bankr. D. Del. 2007). While cause is undefined in the Bankruptcy Code, the stated policy behind this provision is that it is often appropriate to allow litigation to proceed in its initial forum, if no prejudice results to the estate, in order to leave the parties to their chosen forum and to relieve the bankruptcy court from duties that may be handled elsewhere. In re Tribune Co., 418 B.R. 116, 126 (Bankr. D. Del. 2009) (quoting legislative history of 362(d)) (internal citations omitted). To determine whether cause exists, most courts balance the hardship to the creditor, if they are not allowed to proceed with their lawsuit, against potential prejudice to the Debtor, Debtor s estate, and other creditors. In re R. J. Groover Constr., LLC, 411 B.R. 460, (Bankr. N.D. Ga. 2008). Sonnax Industries, Inc. v. Tri Component Production Corp. (In re Sonnax Industries, Inc.), 907 F.2d 1280 (2d Cir. 1990) identified 12 factors relevant to a cause analysis: 1. Whether relief would result in partial or complete resolution of the issues; 2. The lack of any connection with or interference with the bankruptcy case; 3. Whether the other proceeding involves the Debtor as a fiduciary; 4. Whether a specialized tribunal with the necessary expertise has been established to hear the cause of action; 5. Whether the Debtor has applicable insurance coverage and said insurer has assumed full responsibility for defending it; 6. Whether the action primarily involves third parties; 7. Whether litigation in another forum would prejudice the interests of other creditors; 3 EATON & WOLK PL 2665 S. BAYSHORE DRIVE SUITE 609 MIAMI, FL (305)

4 rdd Doc 336 Filed 08/17/17 Entered 08/17/17 15:47:47 Main Document Pg 4 of 9 8. Whether the judgment claim arising from the other action is subject to equitable subordination; 9. Whether the Movant s success in the other proceeding would result in a judicial lien available by the Debtor; 10. The interests of judicial economy and the expeditious and economical resolution of the litigation; 11. Whether the parties are ready for trial in the other proceeding; 12. The impact of the stay on the parties and the balance of harm. Id. at See also In re New York Medical Group, P.C., 265 B.R. 408 (Bankr. S.D.N.Y. 2001). In evaluating cause, courts consider only those factors that are relevant to the particular case at issue and need not assign equal weight to each factor. In re Mezzeo, 167 F.3d 139 (2d Cir. 1999). As demonstrated below, it is Movant s contention that all of the relevant Sonnax factors favor lifting the stay on the Florida Malpractice Action and none militate against it. A. LIFTING THE STAY WILL COMPLETELY RESOLVE THE ISSUES BETWEEN THE DEBTOR AND THE MOVANT Sonnax factors 1, 2, 4, 6, 10, and 11 all support lifting the automatic stay. First, this Court can completely resolve the issues between the parties by lifting the automatic stay and allowing the Florida Malpractice Action to proceed (Factor 1). That action is the only connection that exists between the Movant and the Debtor and between the Movant and this Court (Factor 2). If the Court lifts the stay and allows the Movant to litigate his malpractice claim to conclusion, the relationship between the Movant and the Debtor will be ended. Because the Debtor has more than adequate liability insurance (a factor we ll discuss below), doing so will not interfere with the bankruptcy case. As stated in In re Peterson, 116 B.R. 247, (D. Colo. 1990): Numerous Courts have permitted the stay to be lifted when the Movant is simply seeking to establish the fact and amount of the Debtor s liability and, as in these cases the Movant has stipulated that any recovery will be 4 EATON & WOLK PL 2665 S. BAYSHORE DRIVE SUITE 609 MIAMI, FL (305)

5 rdd Doc 336 Filed 08/17/17 Entered 08/17/17 15:47:47 Main Document Pg 5 of 9 sought from the Debtor s insurer or a co-defendant. Additionally, where, as here, the Plaintiffs have agreed that they will not seek any recovery from estate assets, there is no basis for continuing the automatic stay. In re Grace Indus., Inc., 341 B.R. 399, 405 (Bankr. E.D.N.Y. 2006) Because the Florida Malpractice Action is a state law based medical negligence action, the Florida Circuit Court is a specialized tribunal with the expertise to most efficiently adjudicate the dispute (Factor 4). The tangible evidence and majority of witnesses and remaining defendants are situated in Lee County, Florida, and have no connection to this forum apart from the bankruptcy. The malpractice action also primarily involves third parties (Factor 6). As the Court can see from the Fourth Amended Complaint attached as Exhibit 1 hereto, the claims stated against the Debtor are primarily claims for vicarious liability. Until the stay was entered, the Florida Malpractice Action was set for trial during the twoweek trial period beginning November 1, While the trial date will likely slip because of the stay, the underlying case is largely ready for trial (Factor 11). Finally, because Mr. Cummings malpractice claim is unliquidated, and all of the parties to the underlying action have demanded a jury trial, if the Court were to retain jurisdiction, the matter most likely would still have to be tried to liquidation outside of bankruptcy court. Thus, allowing the Florida Malpractice Action to proceed advances the interests of judicial economy and the expeditious and economical resolution of the underlying litigation (Factor 10). See, e.g., In re Palmer Const. Co., Inc., 7 B.R. 232 (Bkrtcy. S.D. 1980) (finding the judicial economy of continuing existing actions in their original forum rather than beginning the suit anew in another forum to significantly favor granting relief from stay). 5 EATON & WOLK PL 2665 S. BAYSHORE DRIVE SUITE 609 MIAMI, FL (305)

6 rdd Doc 336 Filed 08/17/17 Entered 08/17/17 15:47:47 Main Document Pg 6 of 9 B. THE DEBTOR HAS SUFFICIENT LIABILTY INSURANCE COVERAGE AND ITS INSURER HAS ASSUMED FULL RESPONSIBILITY FOR DEFENDING THE FLORIDA MALPRACTICE ACTION One of the most important factors in this analysis is Factor 5: Whether the Debtor has applicable insurance coverage and said insurer has assumed full responsibility for defending it. The answer to both questions is clearly yes. The Debtor s insurance policies, attached as Exhibits 3 and 4, show that the Debtor has $16,000,000 in aggregate liability insurance available, including first dollar defense coverage, with no deductible or self-insured retention. The insurer assumed full responsibility for defending the Florida Malpractice Action since its inception in This coverage, not to mention the physician s additional $1 million, is more than sufficient to satisfy the potential settlement of or likely judgment in the Florida Malpractice Action. Thus, Factor 5 also strongly favors lifting the stay. See, e.g., Elliott v. Hardison, 25 B.R. 305, 308 (E.D. Va. 1982) ( Where the claim is one covered by insurance or indemnity, continuation of the action should be permitted since hardship to the debtor is likely to be outweighed by hardship to the plaintiff (quoting 2 Collier on Bankruptcy [3] (15th ed. 1980)). C. LITIGATION OF THE FLORIDA MALPRACTICE ACTION WILL NOT PREJUDICE THE INTERSTS OF OTHER CREDITORS Litigation of the Florida Malpractice Action outside of the Chapter 11 proceedings will benefit other creditors, not prejudice them, because it removes Movant s claim from the bankruptcy, thus satisfying Factor 7. Should this motion be granted, any judgment entered against the Debtor will be paid solely from the applicable insurance proceeds. Thus, other creditors in the bankruptcy cannot be harmed, because the Movant cannot enforce its judgment against the Debtor or its estate. See, e.g., In re: 6 EATON & WOLK PL 2665 S. BAYSHORE DRIVE SUITE 609 MIAMI, FL (305)

7 rdd Doc 336 Filed 08/17/17 Entered 08/17/17 15:47:47 Main Document Pg 7 of 9 G.S. Distribution, Inc., 331 B.R. 552, (Bankr. S.D.N.Y. 2005) (finding no prejudice to creditors from lifting the stay because movant will not be able to enforce judgment without permission of Bankruptcy Court); and In re Memorial Corp., 382 B.R. 652, 690 (Bankr. D. Del. 2008) (finding that movant s recovery against available insurance proceeds will in no way negatively impact the rights of other creditors ). D. THE BALANCE OF THE EQUITIES FAVORS LIFTING THE STAY It is a core axiom of the law that justice delayed is justice denied. Benjamin Cummings is now 74 years old, and the incident at issue in the Florida Malpractice Action has left him significantly impaired. Making Mr. Cummings wait to prosecute his claim puts him at a considerable disadvantage due to the inevitability of age, the loss of memory and witnesses, and by extending the already considerable time from filing to final judgment. In re Bock Laundry Machine Co., 37 B.R. 564, 566 (Bankr. N.D. Ohio 1984) (The mere existence of a bankruptcy action does not (and should not) deny the movant the opportunity to prosecute his case.). See also In re Memorial Corp., 382 B.R. at 690 (lifting stay because, among other reasons, movant was prejudiced by the lapse of time in terms of its ability to effectively prosecute its claims ). The application of the Sonnax factors demonstrates that the balance of equities in this matter favors lifting the stay. Doing so would also further the policy behind Section 362, as the Bock Laundry Machine court explained well: Id. at 567. The automatic stay was never intended to preclude a determination of tort liability and the attendant damages. It was merely intended to prevent a prejudicial dissipation of a debtor s assets. A lifting of the stay to allow a plaintiff-creditor to determine liability will not affect the estate. If the stay is lifted, the Debtor will suffer no prejudice at all. Its insurance carrier has already assumed the defense of the Florida Malpractice Action, and any judgment the Movant 7 EATON & WOLK PL 2665 S. BAYSHORE DRIVE SUITE 609 MIAMI, FL (305)

8 rdd Doc 336 Filed 08/17/17 Entered 08/17/17 15:47:47 Main Document Pg 8 of 9 obtains will be paid out of insurance proceeds and not by the Debtor or the bankruptcy estate. 3 Indeed, the only party that stands to benefit financially if the stay is not lifted is the Debtor s insurance company. In re Robertson, 244 B.R. 880, 883 (Bankr. N.D. Ga. 2000). As the Robertson court noted in lifting the stay under similar circumstances: In the Court s opinion, it would be grossly unfair for [the Debtor s insurer] to benefit at Movant s expense. Id. See also Owaski v. Jet Florida System, Inc., 883 F.2d 970 (11th Cir. 1989) ( The fresh start policy is not intended to provide a method by which an insurer can escape its obligations based simply on the financial misfortunes of the insured. ). CONCLUSION Because the balance of the equities strongly favors lifting the stay, Benjamin Cummings respectfully moves the Court to enter an order granting relief from the automatic stay and allowing him to proceed to judgment in the Florida Malpractice Action to the extent of insurance. Respectfully submitted on August 17, EATON & WOLK, PL s/ William G. Wolk WILLIAM G. WOLK Florida Bar No S. Bayshore Drive Suite 609 Miami, Florida Telephone: (305) Telecopier: (786) wwolk@eatonwolk.com 3 While we do not expect the Debtor to raise the issue, little to no weight should be given to the argument that the Debtor would be prejudiced by having to produce witnesses from its Florida offices to testify in the Florida Malpractice Action. Few courts have given much weight to the fact that a debtor would be required to participate in its own defense, especially when the debtor's insurer is obligated to provide counsel, because the debtor would have to do so regardless of forum. See, e.g., Holtkamp v. Littlefield (Matter of Holtkamp), 669 F.2d 505, 508 (7th Cir.1982); Bock at EATON & WOLK PL 2665 S. BAYSHORE DRIVE SUITE 609 MIAMI, FL (305)

9 rdd Doc 336 Filed 08/17/17 Entered 08/17/17 15:47:47 Main Document Pg 9 of 9 CERTIFICATE OF SERVICE I HEREBY CERTIFY that on August 17, 2017, I electronically filed the foregoing with the Clerk of the Court using the CM/ECF system, which will send a notice of electronic filing all registered users and parties. EATON & WOLK, PL s/william G. Wolk WILLIAM G. WOLK Florida Bar No EATON & WOLK PL 2665 S. BAYSHORE DRIVE SUITE 609 MIAMI, FL (305)

10 rdd Doc Filed 08/17/17 Entered 08/17/17 15:47:47 Exhibit Ex 1 - Cummings State Court Complaint Pg 1 of 21 IN THE CIRCUIT COURT OF THE TWENTIETH JUDICIAL CIRCUIT IN AND FOR LEE COUNTY, FLORIDA BENJAMIN CUMMINGS, Plaintiff, CIVIL DIVISION CASE NO: 15-CA v. JURY TRIAL DEMANDED 21 ST CENTURY ONCOLOGY, LLC, d/b/a FLORIDA SPECIALISTS IN UROLOGY, SUNCOAST MEDICAL CLINIC, LLC, LEE MEMORIAL HEALTH SYSTEM d/b/a HEALTHPARK MEDICAL CENTER, MATEI T. ANDREOIU, M.D., and ERIC K. DINER, M.D., Defendants. FOURTH AMENDED COMPLAINT BENJAMIN CUMMINGS hereby sues the Defendants 21 ST CENTURY ONCOLOGY, LLC d/b/a SPECIALISTS IN UROLOGY, LEE MEMORIAL HEALTH SYSTEM d/b/a HEALTHPARK MEDICAL CENTER, and MATEI T. ANDREOIU, M.D. and states: JURISDICTION AND VENUE 1. This is a medical malpractice action for damages in excess of $15, The Twentieth Judicial Circuit in and for Lee County, Florida has subject matter jurisdiction over this matter pursuant to Art. V, 5 of the Florida Constitution. 3. Venue is proper in this Court pursuant to Florida Statutes since the cause of action occurred in Lee County and each of the Defendants maintained their principal place of business in Lee County, Florida, or committed torts in Lee County. PARTIES 4. At all times material hereto, 72-year-old Benjamin Cummings was an adult resident of Lee County, Florida. 1

11 rdd Doc Filed 08/17/17 Entered 08/17/17 15:47:47 Exhibit Ex 1 - Cummings State Court Complaint Pg 2 of At all times material hereto, Defendant 21 st Century Oncology, LLC d/b/a Florida Specialists in Urology (hereinafter 21 st Century) was and is a Florida corporation licensed and doing business as a medical practice, maintaining an office for the regular transaction of its business, in Lee County Florida, at 7335 Gladiolus Drive, Fort Myers, FL At all times material hereto, Defendant Matei T. Andreoiu (hereinafter Andreoiu ) was and is a Florida-licensed medical doctor who maintained an office for the regular transaction of his business, in Lee County, Florida, at 7335 Gladiolus Drive, Fort Myers, FL At all times material hereto, Andreoiu was an employee of 21 st Century; acting within the course and scope of his employment and in furtherance 21 st Century s business. 8. At all times material hereto, non-party Eric K. Diner, M.D., (hereinafter Diner ) was and is a Florida-licensed medical doctor maintaining an office for the regular transaction of his business, in Pinellas County, Florida, at th Street North, St. Petersburg, FL At all times material hereto, Defendant Lee Memorial Health System d/b/a HealthPark Medical Center (hereinafter Lee Memorial ) was and is a Florida corporation licensed and doing business as a hospital, maintaining an office for the regular transaction of its business, in Lee County Florida, at 9981 S. Healthpark Drive, Fort Myers, FL FACTS COMMON TO ALL COUNTS 10. On or about May 16, 2012, Benjamin Cummings was referred to Andreoiu by his primary care physician following an abnormal prostate examination and became a patient of Andreoiu and 21 st Century. 11. Andreoiu diagnosed Mr. Cummings with prostate cancer and recommended a course of neoadjuvant hormone therapy followed by laparoscopic removal of the prostate using the da Vinci robot. 2 EATON & WOLK PL 2 SOUTH BISCAYNE BOULEVARD SUITE 3100 MIAMI, FL (305)

12 rdd Doc Filed 08/17/17 Entered 08/17/17 15:47:47 Exhibit Ex 1 - Cummings State Court Complaint Pg 3 of Andreoiu chose the da Vinci robot procedure as opposed to a standard laparoscopic procedure or an open prostatectomy. 13. Andreoiu told Cummings that: 1) the da Vinci robot procedure was the best procedure for his condition, with the greatest chance of success and least amount of risk; and 2) that he (Andreoiu) was experienced and trained in performing prostatectomies using the da Vinci robot. 14. In reliance on these statements and his doctor, Andreoiu, Cummings agreed to allow Andreoiu to perform the da Vinci prostatectomy surgery on him. 15. But neither statement was true. 16. Andreoiu also failed to disclose to Mr. Cummings that he was one year out of his fellowship; that prior to the surgery that he had only recently completed his online training on the da Vinci robot; that he had only ever performed two other robotic prostatectomy surgeries as lead surgeon both of which were supervised; and that he was still under supervision of another surgeon. In fact, Andreoiu was not even credentialed by Lee Memorial to perform the robotic procedure on his own, and Lee Memorial required him to have a proctor another doctor in the OR to operate on Mr. Cummings and supervise his use of the da Vinci none of which was disclosed to Ben Cummings, by Andreoiu or Lee Memorial. 17. What was true was that the da Vinci is an extraordinarily complicated surgical robot with a steep learning curve. It was well known in the surgical community that because of this learning curve, inexperienced da Vinci surgeons like Andreoiu were far more likely to injure their patients while they were learning how to use the machine; far more likely to cause surgical complications; and far more likely to take two, three, even four times longer than the norm to 3 EATON & WOLK PL 2 SOUTH BISCAYNE BOULEVARD SUITE 3100 MIAMI, FL (305)

13 rdd Doc Filed 08/17/17 Entered 08/17/17 15:47:47 Exhibit Ex 1 - Cummings State Court Complaint Pg 4 of 21 complete their surgeries, which posed significantly increased risk of injury to patients like Ben Cummings. 18. What was also true was that non-robotic laparoscopic prostatectomies have the same or fewer complications than da Vinci robotic prostatectomies even in the hands of most experienced surgeons; but the da Vinci procedure produced better payment rates to Andreoiu, 21 st Century, and Lee Memorial. 19. But a non-robotic procedure was also not an option for Dr. Andreoiu, because he had only limited experience performing open prostatectomies and less performing laparoscopic prostatectomies which he also failed to disclose to Ben Cummings. 20. Andreoiu also failed to tell Ben Cummings that he was not a good candidate for Andreoiu s third robotic-assisted prostatectomy as lead surgeon because his cancer was advanced and, as Andreoiu knew, his surgery would therefore likely be longer than the 2 ½ hour norm even in the hands of in an experienced surgeon and would certainly take longer in his own inexperienced hands. 21. Because of the complexity of using the da Vinci robot, in 2009 the American Urological Association (AUA) actually adopted and published training guidelines summarized in part in the AUA s Standard Operating Practices (SOP s) for Urologic Robotic Surgery. (Both Diner and Andreoiu are AUA members.) 22. The AUA SOP s state: Informed consent must be obtained from the patient, about the presence and responsibility of the proctor. Neither Andreoiu nor Diner obtained that informed consent or explained to Ben Cummings that a proctor would be present (Diner); what his role would be; and why he was needed (because of Andreoiu s lack of experience). 4 EATON & WOLK PL 2 SOUTH BISCAYNE BOULEVARD SUITE 3100 MIAMI, FL (305)

14 rdd Doc Filed 08/17/17 Entered 08/17/17 15:47:47 Exhibit Ex 1 - Cummings State Court Complaint Pg 5 of None of the defendants disclosed the facts discussed in paragraphs 18-22, or Andreoiu s lack of experience, to Benjamin Cummings at any time before surgery. 24. Mr. Cummings underwent the recommended course of neoadjuvant hormone therapy and was scheduled for surgery on November 15, 2012, using Lee Memorial s da Vinci robot. 25. On November 15, 2012, Mr. Cummings arrived at Lee Memorial to undergo the da Vinci robot assisted laparoscopic prostatectomy without knowing about his surgeon s lack of experience. 26. Before the procedure, Andreoiu met with Ben Cummings to obtain his informed consent. Andreoiu did not inform his patient of his lack of experience; Dr. Diner s participation in the surgery; or any of the facts in paragraphs above, and therefore did not obtain an informed consent from him. 27. Although Andreoiu was the lead surgeon and the physician responsible for Cummings surgery (and identified himself as such in the operative report 1 for the procedure), Diner s role as proctor was to ensure that Andreoiu performed the robot assisted prostatectomy competently i.e., within the standard of care on Benjamin Cummings and to take over the procedure if he did not. To ensure he could do so, Lee Memorial granted Diner temporary surgical privileges even though Diner was not on staff at the hospital; and Diner did in fact assist in performing surgery on Cummings himself, as described below. 28. Diner incorrectly believed his role was limited to teaching Andreoiu how to use the da Vinci machine, and he did not intend to provide surgical guidance to Andreoiu. 1 In fact, in the operative report, which Andreoiu dictated and electronically signed, Andreoiu identified himself as the only surgeon and listed Diner simply as an assistant. See Exhibit 1 attached. 5 EATON & WOLK PL 2 SOUTH BISCAYNE BOULEVARD SUITE 3100 MIAMI, FL (305)

15 rdd Doc Filed 08/17/17 Entered 08/17/17 15:47:47 Exhibit Ex 1 - Cummings State Court Complaint Pg 6 of Unfortunately, for Ben Cummings. He knew none of this. Mr. Cummings was not informed by anyone of any of the facts above, including Diner s involvement or role in the procedure; Andreoiu s lack of experience; and the true risks of and alternatives to the procedure, and he would not have given his consent to allow Andreoiu to perform this surgery had he been informed of the true facts. 30. In fact, Ben Cummings never met Diner; he did not have a doctor-patient relationship with Diner prior to his participation in his surgery; and he did not know that Diner was involved at all in his care and treatment until months after the fact. All Mr. Cummings knew was that Andreoiu was his surgeon. 31. He also did not know that Andreoiu had failed to properly prepare his bowels for surgery. 32. Mr. Cummings was taken to the operating room and Andreoiu placed him in what s known as the steep Trendelenburg position with the operating table angled at 45 degrees and his head down and legs elevated above the heart a position necessary for use of the da Vinci robot but not needed for the performance of non-robotic laparoscopic or open prostatectomy procedures. 33. Andreoiu then proceeded to perform surgery on Mr. Cummings. 34. Robotic prostatectomy procedures like the one Mr. Cummings was scheduled to undergo typically take 2 ½ to 3 hours to complete. The steep Trendelenburg position is appropriate for relatively short procedures of this duration. 35. However, it was (or should have been) well known to Andreoiu, Diner, and Lee Memorial that the steep Trendelenburg position has a high incidence of serious complications, including nerve and vascular damage, if a patient is left in that position for extended periods of time. 6 EATON & WOLK PL 2 SOUTH BISCAYNE BOULEVARD SUITE 3100 MIAMI, FL (305)

16 rdd Doc Filed 08/17/17 Entered 08/17/17 15:47:47 Exhibit Ex 1 - Cummings State Court Complaint Pg 7 of Because of Andreoiu s inexperience and Andreoiu and Diner s poor judgment, all of which deviated from the standard of care, Ben Cummings was left in the steep Trendelenburg position for 10 ½ hours, not 2 ½ to 3, and seriously injured during the procedure. Here s how and why that happened: 37. First, within the first 45 minutes of the robotic procedure, Andreoiu and Diner noted that Mr. Cummings prostate cancer was more involved than they had first thought and therefore knew or should have known that the surgery would be more complicated and take longer than planned. Yet, they elected to continue with the robotic surgery instead of undocking the robot and changing to a standard open or laparoscopic procedure. 38. Second, because of the hormone therapy that Andreoiu had ordered, Mr. Cummings prostate had become sticky and difficult to remove. 39. Third, during the procedure, Andreoiu cut into Mr. Cummings bowels at the rectal wall, a complication that was not part of the procedure. 40. The 1 cm laceration lead to contamination due to Andreoiu s insufficient bowel preparation and their failure to take necessary precautions after the perforation, including antibiotic irrigation and tacking the rectum to the pelvic sidewall to distance the repair from their reconstruction of Ben Cummings ureter. 41. Andreoiu and Diner recognized the laceration and rectal perforation required an intraoperative colorectal surgery consult, yet they proceeded to suture and repair the perforation themselves. It was only after they had finished that Andreoiu obtained a colorectal consult to check their work. Their laceration repair soon failed. 42. Fourth, because of Andreoiu s lack of experience with the da Vinci robotic system, the entire procedure took 4 times longer it would have in the hands of a more experienced surgeon. 7 EATON & WOLK PL 2 SOUTH BISCAYNE BOULEVARD SUITE 3100 MIAMI, FL (305)

17 rdd Doc Filed 08/17/17 Entered 08/17/17 15:47:47 Exhibit Ex 1 - Cummings State Court Complaint Pg 8 of 21 This vastly increased the risk that Ben Cummings would be injured from the extreme position the da Vinci robot required; injuries that he, in fact, sustained. 43. Faced with these risks, complications, and the time necessary to address them, the standard of care required Andreoiu to undock the da Vinci robot and continue the surgery as an open procedure. 44. But Andreoiu chose not to undock the robot despite knowing the risks of keeping Ben Cummings in the steep Trendelenburg position; and, even though he was more experienced than Andreoiu and was there to ensure that Andreoiu s inexperience did not place Ben Cummings life and health in jeopardy, Diner did not instruct him to convert to an open procedure. 45. Instead, because this was a teaching exercise, they jointly continued to use the da Vinci robot after this complication rather than undock the robot and convert to a non-robotic open or laparoscopic procedure and, as a result, Andreoiu kept Benjamin Cummings in the steep Trendelenburg position and under anesthesia without relief for 10 ½ hours. 46. Andreoiu s decision to leave Benjamin Cummings in the steep Trendelenburg position without relief for 10 ½ hours a clear deviation from the standard of care -- caused him to sustain severe and permanent nerve and vascular injuries that have left him crippled. 47. Andreoiu and Diner s closure of the bowel laceration leaked and caused Ben Cummings to develop a colovesical fistula literally a tunnel between the colon and the bladder such that urine came out of his rectum and feces out of his penis. 48. At first, these injuries manifested as postoperative delirium, acute respiratory failure, severe rhabdomyolysis, paresthesias, swelling, numbness, and edema of the left leg. 49. Failing to appreciate the reason for these post-operative complications or their severity, Andreoiu failed to properly identify and treat them and failed to obtain timely and 8 EATON & WOLK PL 2 SOUTH BISCAYNE BOULEVARD SUITE 3100 MIAMI, FL (305)

18 rdd Doc Filed 08/17/17 Entered 08/17/17 15:47:47 Exhibit Ex 1 - Cummings State Court Complaint Pg 9 of 21 appropriate consultations, which caused them to worsen. 50. Andreoiu also failed to properly secure the Foley catheter he placed in Mr. Cummings perioperatively. 51. Because the urethra is cut and sutured back together during a prostatectomy, a process known as an anastomosis, surgeons place a catheter through the ureter to bridge the anastomosis and enable the patient to urinate while the ureter heals. The anastomosis is fragile, so it is important that the catheter remain in place undisturbed during the healing process, typically for a period of 7 to 10 days to ensure proper healing. 52. Because Andreoiu failed to properly secure Cummings catheter it slipped out and had to be reinserted, damaging the unhealed anastomosis. 53. Due to insufficient bowel preparation, the laceration Andreoiu s inexperience caused to Ben Cummings bowel; and the substandard repair, Mr. Cummings developed the colovesical fistula described above. He also developed a urethral stricture scarring in the urethra that narrowed it so severely that he was unable to urinate. 54. To repair these new conditions, Benjamin Cummings had to undergo multiple surgeries, including an ileostomy and suprapubic tube catheterization. 55. The suprapubic tube catheterization procedure was performed on September 11, During that procedure, it was found that metal surgical clips used by Andreoiu during the prostatectomy procedure had been improperly placed and left within Mr. Cummings bladder and rectum. 56. The prolonged 10 ½ hour surgical positioning and substandard pre-, post- and perioperative treatment also caused Mr. Cummings to develop a deep vein thrombosis of his left common femoral vein, a complete venous thrombosis of the left deep femoral vein, and a complete 9 EATON & WOLK PL 2 SOUTH BISCAYNE BOULEVARD SUITE 3100 MIAMI, FL (305)

19 rdd Doc Filed 08/17/17 Entered 08/17/17 15:47:47 Exhibit Ex 1 - Cummings State Court Complaint Pg 10 of 21 venous thrombosis of the superficial vein, requiring him to undergo thrombectomy, endarterectomy, and stenting procedures. 57. Because of these injuries, Benjamin Cummings remained hospitalized for almost a year, instead of the 1 to 2 days Andreoiu told him to expect. They also left him crippled and unable to walk without assistance or perform his activities of daily living unaided. 58. The foregoing acts and omissions required Benjamin Cummings to undergo otherwise unnecessary surgical and reconstructive procedures and caused him severe and permanent physical and mental injuries that have left him permanently disabled. COUNT I MEDICAL NEGLIGENCE AGAINST ANDREOIU 59. Plaintiff adopts and realleges paragraphs 1 through 58 above and further states: 60. At all times material hereto, Defendant Andreoiu created and accepted a doctorpatient relationship with Benjamin Cummings. 61. Defendant Andreoiu therefore had a duty to diagnose, care for, and treat Plaintiff in accordance with accepted or prevailing standards of care for physicians practicing urology and performing robotic prostatectomy procedures in Lee County, Florida, or any other similar community. 62. Notwithstanding this responsibility, Defendant Andreoiu breached his duty to Benjamin Cummings and fell below the prevailing standard of care, inter alia, in one or more of the following ways: a. By placing Plaintiff on a hormone regimen preoperatively that caused his prostate to become tacky and stick to the rectal wall; b. Failing to properly prepare Plaintiff s bowels for surgery; 10 EATON & WOLK PL 2 SOUTH BISCAYNE BOULEVARD SUITE 3100 MIAMI, FL (305)

20 rdd Doc Filed 08/17/17 Entered 08/17/17 15:47:47 Exhibit Ex 1 - Cummings State Court Complaint Pg 11 of 21 c. By using the da Vinci robot to perform laparoscopic prostatectomy in a highrisk patient where other, safer, alternatives existed; d. Failing to disclose Diner s involvement in the surgery and obtain consent for same; e. By failing to perform Mr. Cummings surgery within the time, with the skill level, or in the manner of a reasonably prudent urologist; f. By continuing to use the da Vinci robot after he reasonably knew or should have known that its use should be discontinued; g. By perforating Mr. Cumming s rectal wall during the surgical operation that, because of insufficient bowel preparation, led to contamination; h. By improperly repairing the rectal wall laceration he caused and by negligently supervising its repair by Diner; i. By failing to wash Mr. Cumming's rectal perforation with antibiotic irrigation; j. By failing to tack the rectum to the pelvic sidewall to distance the repair from the vesicourethral anastomosis; k. By continuing to use the da Vinci robot after this complication instead of undocking the robot and converting to an open procedure; l. By keeping Plaintiff in an extreme or steep Trendelenburg position for an inappropriate period of time without reversal, causing him permanent injury; m. By failing to properly and timely identify and treat Mr. Cummings injuries postoperatively; n. By failing to timely obtain appropriate consultations; o. By negligently securing Mr. Cummings Foley catheter; 63. These breaches of the standard of care by Defendant Andreoiu directly and proximately caused BENJAMIN CUMMINGS to suffer severe, permanent and crippling injuries. WHEREFORE, Plaintiff demands judgment against Defendant MATEI T. ANDREOIU, M.D., for all damages allowed by law, as set forth more particularly below. 11 EATON & WOLK PL 2 SOUTH BISCAYNE BOULEVARD SUITE 3100 MIAMI, FL (305)

21 rdd Doc Filed 08/17/17 Entered 08/17/17 15:47:47 Exhibit Ex 1 - Cummings State Court Complaint Pg 12 of 21 COUNT II LACK OF INFORMED CONSENT AGAINST ANDREOIU 64. Plaintiff adopts and realleges paragraphs 1 through 58 and states: 65. As Benjamin Cummings surgeon, Dr. Andreoiu had a duty to disclose to Mr. Cummings all of the information that a reasonably prudent medical practitioner under similar circumstances would explain or disclose to a patient to provide the patient with an understanding of the procedure, the medically acceptable alternative procedures or treatments, and the substantial risks and hazards inherent in the proposed procedure. 66. Andreoiu was required to disclose this information to Benjamin Cummings so Cummings could make an informed decision about whether or not to proceed with the da Vinci robot procedure or allow Andreoiu and Diner to be his surgeons. 67. Andreoiu breached this duty by failing to provide Benjamin Cummings with the information that a reasonably prudent medical practitioner would provide his patient under similar circumstances, by, inter alia: a. Overstating the benefits of the da Vinci robotic prostatectomy and minimizing its risks compared with open prostatectomy and laparoscopic prostatectomy procedures; b. Failing to disclose the substantial risks and hazards inherent in the da Vinci robot prostatectomy, especially those presented by his own inexperience; c. Failing to recommend safer and equally effective alternatives to the proposed treatment, namely open prostatectomy and laparoscopic prostatectomy, and explain the reasons why those procedures were safer for Ben Cummings; d. Failing to disclose that he (Andreoiu) had only recently completed his fellowship training in urology and an online course on the da Vinci robot system; 12 EATON & WOLK PL 2 SOUTH BISCAYNE BOULEVARD SUITE 3100 MIAMI, FL (305)

22 rdd Doc Filed 08/17/17 Entered 08/17/17 15:47:47 Exhibit Ex 1 - Cummings State Court Complaint Pg 13 of 21 e. Failing to disclose that he had only performed two other da Vinci robotic prostatectomy surgeries as lead surgeon in his career prior to the Plaintiff s procedure and only one when he first recommended Ben Cummings undergo the da Vinci procedure; f. Failing to disclose that both of his earlier surgeries had been supervised; g. Failing to disclose that he did not yet possess the credentials necessary to perform the robotic procedure on his own; h. Failing to disclose that he would require the supervision of Dr. Diner to perform the procedure; i. Failing to disclose that Diner would participate in the Plaintiff s surgery and actually operate on Ben Cummings; j. Failing to disclose that the da Vinci robot system had a steep learning curve, which meant that Cummings surgery would likely be prolonged; k. Failing to disclose the known risks of prolonged da Vinci robot surgeries; l. Failing to disclose that trainee surgeons on the da Vinci like himself had much higher complication rates from the robotic prostatectomy procedure; m. Failing to disclose that Andreoiu s lack of skill meant the procedure would take longer and be riskier than an open prostatectomy or a laparoscopic prostatectomy especially one done by another surgeon; n. Failing to disclose that Cummings cancer was advanced making him a poor candidate for da Vinci robot surgery, i.e. at high risk for otherwise avoidable injuries and complications, especially at the hands of an inexperienced surgeon like Andreoiu; and o. Otherwise failing to properly, adequately, thoroughly and fully inform Plaintiff of facts of and risks and alternatives to the procedure at issue. 68. By depriving Ben Cummings of this information, Andreoiu breached the standard of care and prevented Cummings from giving his informed consent for the da Vinci robot procedure; any consent given by Cummings based on the incomplete information Andreoiu did provide was null and void. 69. A reasonably prudent person in Plaintiff s position would not have undergone the procedure at issue if had been fully informed of the foregoing facts and risks, and, in fact, Benjamin 13 EATON & WOLK PL 2 SOUTH BISCAYNE BOULEVARD SUITE 3100 MIAMI, FL (305)

23 rdd Doc Filed 08/17/17 Entered 08/17/17 15:47:47 Exhibit Ex 1 - Cummings State Court Complaint Pg 14 of 21 Cummings would not have undergone the da Vinci robot procedure with Andreoiu had he been properly informed by him. 70. Andreoiu s lack of informed consent is therefore the proximate cause of the injuries suffered by Plaintiff for which recovery is sought. 71. The treatment rendered by Andreoiu described herein was not emergent treatment, an emergency procedure, or emergency surgery. 72. As a result of Andreoiu s lack of informed consent, Plaintiff suffered severe and permanent injuries. WHEREFORE, Plaintiff demands judgment against Defendant MATEI T. ANDREOIU, for all damages allowed by law, as set forth more particularly below. COUNT III VICARIOUS LIABILITY AGAINST ANDREOIU 73. Plaintiff adopts and realleges paragraphs 1 through 58 and states: 74. In order to complete his training on the da Vinci robot and obtain full privileges at Lee Memorial, Defendant Lee Memorial and Intuitive Surgical (the da Vinci s manufacturer) required Andreoiu to hire another doctor to supervise him during his first four da Vinci surgical procedures as lead surgeon. That supervising physician is known as a proctor. 75. To meet this requirements, Andreoiu ed Diner on Friday, September 7, 2012, and asked Diner to proctor him on what was then his second da Vinci robot prostatectomy. Andreoiu offered Diner $2,200 and told Diner what he needed to do to obtain temporary privileges at Lee Memorial so he could act as his proctor. See Exhibit 2 attached. 14 EATON & WOLK PL 2 SOUTH BISCAYNE BOULEVARD SUITE 3100 MIAMI, FL (305)

24 rdd Doc Filed 08/17/17 Entered 08/17/17 15:47:47 Exhibit Ex 1 - Cummings State Court Complaint Pg 15 of Diner accepted Andreoiu s offer and assisted him with his second da Vinci robot prostatectomy surgery. 77. On October 26, 2012, Andreoiu hired Diner a second time to proctor him on his third da Vinci robot prostatectomy surgery Benjamin Cummings offering Diner $2,500 this time. Diner accepted. See Exhibit 3 attached. 78. By Andreoiu s own admission, he was the lead surgeon for the Cummings procedure and Diner was his assistant. See Exhibit Andreoiu hired diner, paid Diner, and arranged for Diner to obtain temporary privileges at Lee Memorial all for the purpose of helping Andreoiu obtain full privileges to use Lee Memorial s da Vinci surgical robot on his own. 80. At all times material hereto, Diner was therefore an employee or agent of Andreoiu acting for Andreoiu s benefit within the course and scope of his employment or agency. 81. Accordingly, Andreoiu is vicariously liable for any negligence by Diner and all damages caused thereby. WHEREFORE, Plaintiff demands judgment against Defendant MATEI T. ANDREOIU, M.D., for all damages allowed by law, as set forth more particularly below. COUNT IV VICARIOUS LIABILITY FOR ANDREOIU AGAINST 21 ST CENTURY ONCOLOGY, LLC d/b/a FLORIDA SPECIALISTS IN UROLOGY 82. Plaintiff adopts and realleges paragraphs 1 through 72 above and further states: 83. At all times material hereto, including while treating and performing surgery upon Benjamin Cummings, Andreoiu was an employee of Defendant 21 st Century and was acting within the course and scope of his employment for the benefit of 21 st Century. 15 EATON & WOLK PL 2 SOUTH BISCAYNE BOULEVARD SUITE 3100 MIAMI, FL (305)

25 rdd Doc Filed 08/17/17 Entered 08/17/17 15:47:47 Exhibit Ex 1 - Cummings State Court Complaint Pg 16 of Accordingly, Defendant 21 st Century is vicariously liable for the negligence of Andreoiu and all damages caused thereby. WHEREFORE, Plaintiff demands judgment against Defendant 21 ST CENTURY ONCOLOGY, LLC d/b/a FLORIDA SPECIALISTS IN UROLOGY for all damages allowed by law, as set forth more particularly below. further states: COUNT V DIRECT LIABILITY LEE MEMORIAL HEALTH SYSTEM d/b/a HEALTHPARK MEDICAL CENTER 85. Plaintiff adopts and realleges paragraphs 1 through 63 and 74 through 78 above and 86. Lee Memorial has a duty to act in compliance with the standard of care for similarly situated hospitals in Florida or any similar community. 87. Lee Memorial has a further duty to limit the use of its facilities, including the use of its da Vinci robot system to properly trained and credentialed physicians who hold staff privileges at the hospital. 88. Lee Memorial breached those duties and fell below the standard of care, inter alia, in one or more of the following ways: a. By encouraging, approving, and incentivizing Andreoiu s use of the da Vinci robot in patients like Mr. Cummings for whom its use was inappropriate and for which Andreoiu was untrained; b. By failing to have appropriate guidelines in place for the appropriate use of the da Vinci robot surgery, including limitations on the time that patients may be kept in the extreme or steep Trendelenburg position; c. By failing to have appropriate guidelines in place for the appropriate evaluation of patients as candidates for da Vinci robot surgery; 16 EATON & WOLK PL 2 SOUTH BISCAYNE BOULEVARD SUITE 3100 MIAMI, FL (305)

26 rdd Doc Filed 08/17/17 Entered 08/17/17 15:47:47 Exhibit Ex 1 - Cummings State Court Complaint Pg 17 of 21 d. By negligently promoting Andreoiu as qualified in the use of the da Vinci system or by negligently credentialing Andreoiu; e. By allowing Andreoiu to treat patients with the da Vinci system even though he was not qualified to do so; f. By allowing Diner to perform da Vinci surgery on Mr. Cummings without appropriate privileges; g. By failing to ensure that Diner complied with the Lee Memorial s policy on the provision of informed consent; and h. Through the direct acts of negligence of its medical and nursing staff in Mr. Cummings operative and post-operative care, including by allowing Mr. Cummings to be kept in the extreme or steep Trendelenburg position for 10 hours; by failing to properly identify and treat his resulting injuries postoperatively; and by the negligent placement of Mr. Cummings Foley catheter. 89. As a direct and proximate result of the foregoing negligent acts and omissions, Benjamin Cummings sustained severe, permanent, and crippling injuries, as set forth below. WHEREFORE, Plaintiff demands judgment against Defendant LEE MEMORIAL HEALTH SYSTEM d/b/a HEALTHPARK MEDICAL CENTER for all damages allowed by law, as set forth more particularly below. COUNT VI JOINT VENTURE AGAINST 21 ST CENTURY ONCOLOGY, LLC d/b/a FLORIDA SPECIALISTS IN UROLOGY AND LEE MEMORIAL HEALTH SYSTEM d/b/a HEALTHPARK MEDICAL CENTER 90. Plaintiff adopts and realleges paragraphs 1 through 58 above and further states: 91. At all times material hereto, Defendants 21st Century and Lee Memorial had a community of interest in the performance of da Vinci robot procedures and entered into a contract for the common purpose of providing surgical services at Lee Memorial, whereby Lee Memorial 17 EATON & WOLK PL 2 SOUTH BISCAYNE BOULEVARD SUITE 3100 MIAMI, FL (305)

27 rdd Doc Filed 08/17/17 Entered 08/17/17 15:47:47 Exhibit Ex 1 - Cummings State Court Complaint Pg 18 of 21 provided the facility, equipment, tools, supplies, nursing staff, technical and administrative personnel, and ancillary medical and non-medical services, and 21st Century provided the patients and physician and other professional staffing Both entities were jointly responsible for controlling the medical staff supplied by 21st Century, and ensuring that they adhered to protocols, rules, regulations, and the standards of practice that governed physicians and nurse practitioners at Lee Memorial, including compliance with Florida law. 93. Both entities shared in the financial gains and losses from this relationship. 21st Century provided Lee Memorial with patients and physicians and therefore an opportunity to bill for its professional services and particularly for its very expensive da Vinci robot system; and Lee Memorial provided 21st Century with access to its da Vinci robot, facility, equipment, tools, supplies, nursing staff, technical and administrative personnel, and ancillary medical and nonmedical services, without which 21st Century could not perform da Vinci robotic surgical procedures. 94. This mutually beneficial relationship made 21st Century and Lee Memorial joint venturers under the law for the provision of da Vinci robotic surgical services at Lee Memorial, including the surgery performed on Benjamin Cummings. 95. Both are therefore liable for the damages sustained by Benjamin Cummings as a result of their joint venture. WHEREFORE, Plaintiff demands judgment against Defendants 21 ST CENTURY ONCOLOGY, LLC. d/b/a FLORIDA SPECIALISTS IN UROLOGY and LEE MEMORIAL 2 The agreements between 21st Century and Lee Memorial that govern this relationship are in the defendants sole custody and control and will be obtained in discovery. 18 EATON & WOLK PL 2 SOUTH BISCAYNE BOULEVARD SUITE 3100 MIAMI, FL (305)

28 rdd Doc Filed 08/17/17 Entered 08/17/17 15:47:47 Exhibit Ex 1 - Cummings State Court Complaint Pg 19 of 21 HEALTH SYSTEM d/b/a HEALTHPARK MEDICAL CENTER, for all damages allowed by law, as set forth more particularly below. DAMAGES COMMON TO ALL COUNTS 96. Plaintiff adopts and realleges paragraphs 1 through 95 above and states: 97. As a direct and proximate result of the negligence set forth above, Benjamin Cummings suffered vascular and nerve injuries that have left him unable to walk without the use of walker; underwent extensive and otherwise unnecessary surgical and reconstructive procedures; required extended hospitalization, rehabilitation, medical and nursing care; sustained damage to his anastomosis, deep vein thrombosis, urethral stricture, and the development of a colovesical fistula, among other injuries, causing him severe pain and suffering and mental and emotional distress, disability and loss of quality of life. 98. The Plaintiff, Benjamin Cummings has also sustained economic damages for medical and nursing care. 99. As direct and proximate result of the Defendants foregoing negligence and denial of informed consent, Plaintiff suffered damages for: a. bodily injury; b. conscious pain and suffering; c. disability; e. disfigurement; f. mental anguish; g. loss of enjoyment of life; i. medical, nursing and rehabilitative expenses; j. inconvenience; and 19 EATON & WOLK PL 2 SOUTH BISCAYNE BOULEVARD SUITE 3100 MIAMI, FL (305)

29 rdd Doc Filed 08/17/17 Entered 08/17/17 15:47:47 Exhibit Ex 1 - Cummings State Court Complaint Pg 20 of 21 k. all other compensatory damages allowed by law. WHEREFORE, Plaintiff demands judgment against all Defendants in this matter for damages in excess of this Court s jurisdictional limits, plus interest and taxable costs. CERTIFICATE OF COMPLIANCE PURSUANT TO FLORIDA STATUTE This action is brought pursuant to the Florida Medical Malpractice Act, Chapter 766 Florida Statutes Pursuant to F.S , the undersigned attorneys certify that they have made a reasonable investigation, as permitted by the circumstances, and that this investigation has given rise to the good faith belief that the named Defendants were negligent in providing medical care and treatment to Plaintiff Benjamin Cummings, and that this negligence caused injury to the Plaintiff. Based on this investigation, Plaintiff certifies that reasonable grounds exist for the filing of a medical negligence action against the Defendants named herein and those defendants who bear a legal relationship to them Pursuant to , Florida Statutes, the undersigned attorneys certify that they have consulted with medical experts and have obtained opinions from them that corroborate, to the extent required by law, that there exist reasonable grounds to support the claims of medical negligence against the Defendants named herein The Plaintiff has complied with Florida Statute , and the mandated presuit screening period has expired with respect to each Defendant before this action is served Plaintiff further certifies that they have filed this action within the time proscribed by F.S , as modified by the extensions and tollings provided by F.S (2), and Fla.R.Civ.P A true and correct copy of Plaintiff s petition for extension of the statute of limitations pursuant to F.S is attached hereto as Exhibit EATON & WOLK PL 2 SOUTH BISCAYNE BOULEVARD SUITE 3100 MIAMI, FL (305)

30 rdd Doc Filed 08/17/17 Entered 08/17/17 15:47:47 Exhibit Ex 1 - Cummings State Court Complaint Pg 21 of 21 DEMAND FOR JURY TRIAL 105. Plaintiff further demands trial by jury of all issues so triable as of right. CERTIFICATE OF SERVICE I HEREBY CERTIFY that on January 27, 2017, a true and correct copy of the foregoing was electronically filed with the Clerk of Court using the E-Portal Filing System which shall serve a copy of the same by e-service upon the following: Brendan W. Rowe, Esq., at rjosepher@jbfirm.com, browe@jbfirm.com, and lwilson@jbfirm.com; Tiffany N. Hampton, Esq. at napcrtpleadings@wickersmith.com; and Douglas B. Lumpkin, Esq., at dlumpkin@wickersmith.com. FARR, FARR, EMERICH, EATON & WOLK, P.L. HACKETT, CARR & HOLMES, P.A. Attorneys for Plaintiff Attorneys for Plaintiff 2 South Biscayne Boulevard 99 Nesbit Street Suite 3100 Punta Gorda, FL Miami, Florida Phone: (941) Telephone: (305) Fax: (941) Facsimile: (786) gwilliamson@farr.com wwolk@eatonwolk.com By: By: GEORGE T. WILLIAMSON WILLIAM G. WOLK Florida Bar No Florida Bar No EATON & WOLK PL 2 SOUTH BISCAYNE BOULEVARD SUITE 3100 MIAMI, FL (305)

31 Filing # E-Filed 04/10/ :42:42 PM rdd Doc Filed 08/17/17 Entered 08/17/17 15:47:47 Exhibit Ex 2 - Debtors Answer & Aff Defenses Pg 1 of IN THE CIRCUIT COURT OF THE TWENTIETH JUDICIAL CIRCUIT IN AND FOR LEE COUNTY, FLORIDA BENJAMIN CUMMINGS, Plaintiff, CIRCUIT CIVIL DIVISION CASE NO. 15-CA-1293 vs. 21ST CENTURY ONCOLOGY, LLC d/b/a FLORIDA SPECIALISTS IN UROLOGY, SUNCOAST MEDICAL CLINIC, LLC, LEE MEMORIAL HEALTH SYSTEM d/b/a/ HEALTHPARK MEDICAL CENTER, MATEI T. ANDREOIU, M.D., and ERIC K. DINER, M.D., Defendants. / DEFENDANT, 21 ST CENTURY ONCOLOGY, LLC d/b/a FLORIDA SPECIALISTS IN UROLOGY S ANSWER AND AFFIRMATIVE DEFENSES TO PLAINTIFF S FOURTH AMENDED COMPLAINT Defendant, 21 ST CENTURY ONCOLOGY, LLC, d/b/a FLORIDA SPECIALISTS IN UROLOGY by and through the undersigned counsel, files this ANSWER AND AFFIRMATIVE FOURTH AMENDED COMPLAINT served herein, and responds as follows: JURISDICTION AND VENUE 1. Defendant is without knowledge regarding the allegations set forth in Paragraph 1 of Plaintiff s Fourth Amended Complaint; therefore, denies those allegations and demands strict proof thereof.

32 rdd Doc Filed 08/17/17 Entered 08/17/17 15:47:47 Exhibit Ex 2 - Debtors Answer & Aff Defenses Pg 2 of 16 CASE NO. 15-CA Defendant is without knowledge regarding the allegations set forth in Paragraph 2 of Plaintiff s Fourth Amended Complaint; therefore, denies those allegations and demands strict proof thereof. 3. Defendant admits venue is appropriate in Lee County. The remainder of the allegations in Paragraph 3 of Plaintiff s Fourth Amended Complaint are denied as phrased and Defendant demands strict proof thereof. PARTIES 4. Defendant is without knowledge regarding the allegations set forth in Paragraph 4 of Plaintiff s Fourth Amended Complaint; therefore, denies those allegations and demands strict proof thereof. 5. Admitted. 6. Admitted. 7. Admitted that Dr. Andreoiu was an employee of 21 st Century Oncology, LLC, d/b/a Specialists in Urology acting within the course and scope of employment. 8. Defendant is without knowledge regarding the allegations set forth in Paragraph 8 of Plaintiff s Fourth Amended Complaint; therefore, denies those allegations and demands strict proof thereof. 9. Defendant is without knowledge regarding the allegations set forth in Paragraph 9 of Plaintiff s Fourth Amended Complaint; therefore, denies those allegations and demands strict proof thereof

33 rdd Doc Filed 08/17/17 Entered 08/17/17 15:47:47 Exhibit Ex 2 - Debtors Answer & Aff Defenses Pg 3 of 16 CASE NO. 15-CA-1293 FACTS COMMON TO ALL COUNTS 10. Defendant is without knowledge regarding the allegations set forth in Paragraph 10 of Plaintiff s Fourth Amended Complaint; therefore, denies those allegations and demands strict proof thereof. 11. Defendant denies the allegations set forth in Paragraph 11 of Plaintiff s Fourth Amended Complaint as phrased and demands strict proof thereof. 12. Defendant denies the allegations set forth in Paragraph 12 of Plaintiff s Fourth Amended Complaint as phrased and demands strict proof thereof. 13. Defendant denies the allegations set forth in Paragraph 13 of Plaintiff s Fourth Amended Complaint as phrased and demands strict proof thereof. 14. Defendant is without knowledge regarding the allegations set forth in Paragraph 14 of Plaintiff s Fourth Amended Complaint; therefore, denies those allegations and demands strict proof thereof. 15. Defendant denies the allegations set forth in Paragraph 15 as phrased in Plaintiff s Fourth Amended Complaint and demands strict proof thereof. 16. Defendant denies the allegations set forth in Paragraph 16 of Plaintiff s Fourth Amended Complaint as phrased and demands strict proof thereof. 17. Defendant denies the allegations set forth in Paragraph 17 of Plaintiff s Fourth Amended Complaint as phrased and demands strict proof thereof. 18. Defendant denies the allegations set forth in Paragraph 18 of Plaintiff s Fourth Amended Complaint as phrased and demands strict proof thereof

34 rdd Doc Filed 08/17/17 Entered 08/17/17 15:47:47 Exhibit Ex 2 - Debtors Answer & Aff Defenses Pg 4 of 16 CASE NO. 15-CA Defendant denies the allegations set forth in Paragraph 19 of Plaintiff s Fourth Amended Complaint as phrased and demands strict proof thereof. 20. Defendant denies the allegations set forth in Paragraph 20 of Plaintiff s Fourth Amended Complaint as phrased and demands strict proof thereof. 21. Defendant denies the allegations set forth in Paragraph 21 of Plaintiff s Fourth Amended Complaint as phrased and demands strict proof thereof. 22. Defendant denies the allegations set forth in Paragraph 22 of Plaintiff s Fourth Amended Complaint as phrased and demands strict proof thereof. 23. Defendant denies the allegations set forth in Paragraph 23 of Plaintiff s Fourth Amended Complaint as phrased and demands strict proof thereof. 24. Defendant is without knowledge regarding the allegations set forth in Paragraph 24 of Plaintiff s Fourth Amended Complaint; therefore, denies those allegations and demands strict proof thereof. 25. Defendant is without knowledge regarding the allegations set forth in Paragraph 25 of Plaintiff s Fourth Amended Complaint; therefore, denies those allegations and demands strict proof thereof. 26. Defendant denies the allegations set forth in Paragraph 26 of Plaintiff s Fourth Amended Complaint as phrased and demands strict proof thereof. 27. Defendant denies the allegations set forth in Paragraph 27 of Plaintiff s Fourth Amended Complaint as phrased and demands strict proof thereof. 28. Defendant denies the allegations set forth in Paragraph 28 of Plaintiff s Fourth Amended Complaint as phrased and demands strict proof thereof

35 rdd Doc Filed 08/17/17 Entered 08/17/17 15:47:47 Exhibit Ex 2 - Debtors Answer & Aff Defenses Pg 5 of 16 CASE NO. 15-CA Defendant is without knowledge regarding the allegations set forth in Paragraph 29 of Plaintiff s Fourth Amended Complaint; therefore, denies those allegations and demands strict proof thereof. 30. Defendant is without knowledge regarding the allegations set forth in Paragraph 30 of Plaintiff s Fourth Amended Complaint; therefore, denies those allegations and demands strict proof thereof. 31. Defendant is without knowledge regarding the allegations set forth in Paragraph 31 of Plaintiff s Fourth Amended Complaint; therefore, denies those allegations and demands strict proof thereof. 32. Defendant denies the allegations set forth in Paragraph 32 of Plaintiff s Fourth Amended Complaint as phrased and demands strict proof thereof. 33. Defendant denies the allegations set forth in Paragraph 33 of Plaintiff s Fourth Amended Complaint as phrased and demands strict proof thereof. 34. Defendant denies the allegations set forth in Paragraph 34 of Plaintiff s Fourth Amended Complaint as phrased and demands strict proof thereof. 35. Defendant denies the allegations set forth in Paragraph 35 of Plaintiff s Fourth Amended Complaint as phrased and demands strict proof thereof. 36. Defendant denies the allegations set forth in Paragraph 36 of Plaintiff s Fourth Amended Complaint as phrased and demands strict proof thereof. 37. Defendant denies the allegations set forth in Paragraph 37 of Plaintiff s Fourth Amended Complaint as phrased and demands strict proof thereof

36 rdd Doc Filed 08/17/17 Entered 08/17/17 15:47:47 Exhibit Ex 2 - Debtors Answer & Aff Defenses Pg 6 of 16 CASE NO. 15-CA Defendant denies the allegations set forth in Paragraph 38 of Plaintiff s Fourth Amended Complaint as phrased and demands strict proof thereof. 39. Defendant denies the allegations set forth in Paragraph 39 of Plaintiff s Fourth Amended Complaint as phrased and demands strict proof thereof. 40. Defendant denies the allegations set forth in Paragraph 40 of Plaintiff s Fourth Amended Complaint as phrased and demands strict proof thereof. 41. Defendant denies the allegations set forth in Paragraph 41 of Plaintiff s Fourth Amended Complaint as phrased and demands strict proof thereof. 42. Defendant denies the allegations set forth in Paragraph 42 of Plaintiff s Fourth Amended Complaint as phrased and demands strict proof thereof. 43. Defendant denies the allegations set forth in Paragraph 43 of Plaintiff s Fourth Amended Complaint as phrased and demands strict proof thereof. 44. Defendant denies the allegations set forth in Paragraph 44 of Plaintiff s Fourth Amended Complaint as phrased and demands strict proof thereof. 45. Defendant denies the allegations set forth in Paragraph 45 of Plaintiff s Fourth Amended Complaint as phrased and demands strict proof thereof. 46. Defendant denies the allegations set forth in Paragraph 46 of Plaintiff s Fourth Amended Complaint as phrased and demands strict proof thereof. 47. Defendant denies the allegations set forth in Paragraph 47 of Plaintiff s Fourth Amended Complaint as phrased and demands strict proof thereof. 48. Defendant denies the allegations set forth in Paragraph 48 of Plaintiff s Fourth Amended Complaint as phrased and demands strict proof thereof

37 rdd Doc Filed 08/17/17 Entered 08/17/17 15:47:47 Exhibit Ex 2 - Debtors Answer & Aff Defenses Pg 7 of 16 CASE NO. 15-CA Defendant denies the allegations set forth in Paragraph 49 of Plaintiff s Fourth Amended Complaint as phrased and demands strict proof thereof. 50. Defendant denies the allegations set forth in Paragraph 50 of Plaintiff s Fourth Amended Complaint as phrased and demands strict proof thereof. 51. Defendant denies the allegations set forth in Paragraph 51 of Plaintiff s Fourth Amended Complaint as phrased and demands strict proof thereof. 52. Defendant denies the allegations set forth in Paragraph 52 of Plaintiff s Fourth Amended Complaint as phrased and demands strict proof thereof. 53. Defendant denies the allegations set forth in Paragraph 53 of Plaintiff s Fourth Amended Complaint as phrased and demands strict proof thereof. 54. Defendant denies the allegations set forth in Paragraph 54 of Plaintiff s Fourth Amended Complaint as phrased and demands strict proof thereof. 55. Defendant is without knowledge regarding the allegations set forth in Paragraph 55 of Plaintiff s Fourth Amended Complaint; therefore, denies those allegations and demands strict proof thereof. 56. Defendant denies the allegations set forth in Paragraph 56 of Plaintiff s Fourth Amended Complaint as phrased and demands strict proof thereof. 57. Defendant denies the allegations set forth in Paragraph 57 of Plaintiff s Fourth Amended Complaint as phrased and demands strict proof thereof. 58. Defendant denies the allegations set forth in Paragraph 58 of Plaintiff s Fourth Amended Complaint as phrased and demands strict proof thereof

38 rdd Doc Filed 08/17/17 Entered 08/17/17 15:47:47 Exhibit Ex 2 - Debtors Answer & Aff Defenses Pg 8 of 16 CASE NO. 15-CA-1293 COUNT 1 MEDICAL NEGLIGENCE AGAINST ANDREOIU 59. Defendant re-alleges and incorporates by reference its responses to Paragraphs 1-58 as though fully set forth herein These allegations are not directed at Defendant 21 st Century Oncology, LLC, d/b/a Specialists in Urology. Therefore, Defendant, 21 st Century Oncology, LLC, d/b/a Specialists in Urology, is not required to respond to these allegations. To the extent they are applicable to Defendant, 21 st Century Oncology, LLC, d/b/a Specialists in Urology, all allegations are hereby denied and Defendant demands strict proof thereof. COUNT II LACK OF INFORMED CONSENT AGAINST ANDREOIU 64. Defendant re-alleges and incorporates by reference its responses to Paragraphs 1-58 as though fully set forth herein These allegations are not directed at Defendant 21 st Century Oncology, LLC, d/b/a Specialists in Urology. Therefore, Defendant, 21 st Century Oncology, LLC, d/b/a Specialists in Urology, is not required to respond to these allegations. To the extent they are applicable to Defendant, 21 st Century Oncology, LLC, d/b/a Specialists in Urology, all allegations are hereby denied and Defendant demands strict proof thereof. COUNT III VICARIOUS LIABILITY AGAINST ANDREOIU 73. Defendant re-alleges and incorporates by reference its responses to Paragraphs 1-58 as though fully set forth herein

39 rdd Doc Filed 08/17/17 Entered 08/17/17 15:47:47 Exhibit Ex 2 - Debtors Answer & Aff Defenses Pg 9 of 16 CASE NO. 15-CA These allegations are not directed at Defendant 21 st Century Oncology, LLC, d/b/a Specialists in Urology. Therefore, Defendant, 21 st Century Oncology, LLC, d/b/a Specialists in Urology, is not required to respond to these allegations. To the extent they are applicable to Defendant, 21 st Century Oncology, LLC, d/b/a Specialists in Urology, all allegations are hereby denied and Defendant demands strict proof thereof. COUNT IV VICARIOUS LIABILITY FOR ANDREOIU AGAINST 21 ST CENTURY ONCOLOGY, LLC, d/b/a FLORIDA SPECIALISTS IN UROLOGY 82. Defendant re-alleges and incorporates by reference its responses to Paragraphs 1-72 as though fully set forth herein. 83. Admitted. 84. Defendant denies the allegations set forth in Paragraph 84 of Plaintiff s Fourth Amended Complaint as phrased and demands strict proof thereof. COUNT V DIRECT LIABILITY LEE MEMORIAL HEALTH SYSTEM d/b/a HEALTHPARK MEDICAL CENTER 85. Defendant re-alleges and incorporates by reference its responses to Paragraphs 1-63 and as though fully set forth herein These allegations are not directed at Defendant 21 st Century Oncology, LLC, d/b/a Specialists in Urology. Therefore, Defendant, 21 st Century Oncology, LLC, d/b/a Specialists in Urology, is not required to respond to these allegations. To the extent - 9 -

40 rdd Doc Filed 08/17/17 Entered 08/17/17 15:47:47 Exhibit Ex 2 - Debtors Answer & Aff Defenses Pg 10 of 16 CASE NO. 15-CA-1293 they are applicable to Defendant, 21 st Century Oncology, LLC, d/b/a Specialists in Urology, all allegations are hereby denied and Defendant demands strict proof thereof. COUNT VI JOINT VENTURE AGAINST 21 ST CENTURY ONCOLOGY, LLC d/b/a FLORIDA SPECIALISTS IN UROLOGY AND LEE MEMORIAL HEALTH SYSTEM d/b/a HEALTHPARK MEDICAL CENTER 90. Defendant re-alleges and incorporates by reference its responses to Paragraphs 1-58 as though fully set forth herein. 91. Defendant denies the allegations set forth in Paragraph 91 of Plaintiff s Fourth Amended Complaint and demands strict proof thereof. 92. Defendant denies the allegations set forth in Paragraph 92 of Plaintiff s Fourth Amended Complaint and demands strict proof thereof. 93. Defendant denies the allegations set forth in Paragraph 93 of Plaintiff s Fourth Amended Complaint and demands strict proof thereof. 94. Defendant denies the allegations set forth in Paragraph 94 of Plaintiff s Fourth Amended Complaint and demands strict proof thereof. 95. Defendant denies the allegations set forth in Paragraph 95 of Plaintiff s Fourth Amended Complaint and demands strict proof thereof. WHEREFORE, Defendant, 21 st Century Oncology, LLC, d/b/a Specialists in Urology, respectfully requests that this Honorable Court enter judgment in its favor and against Plaintiff, Benjamin Cummings, and enter an Order dismissing Plaintiff s claims and awarding to 21 st Century Oncology, LLC, d/b/a Specialists in Urology, its attorneys fees and costs incurred in defending this matter, whether they be awarded as a result of

41 rdd Doc Filed 08/17/17 Entered 08/17/17 15:47:47 Exhibit Ex 2 - Debtors Answer & Aff Defenses Pg 11 of 16 CASE NO. 15-CA-1293 statute or the contract/release/waiver between the parties, and for any further and additional relief as the Court deems just and equitable as a matter of law. DAMAGES COMMON TO ALL COUNTS 96. Defendant re-alleges and incorporates by reference its responses to Paragraphs 1-95 as though fully set forth herein. 97. Defendant denies the allegations set forth in Paragraph 97 of Plaintiff s Fourth Amended Complaint as phrased and demands strict proof thereof. 98. Defendant is without knowledge regarding the allegations set forth in Paragraph 98 of Plaintiff s Fourth Amended Complaint; therefore, denies those allegations and demands strict proof thereof. 99(a-k). Defendant denies the allegations set forth in Paragraph 99(a-k) of Plaintiff s Fourth Amended Complaint as phrased and demands strict proof thereof. CERTIFICATE OF COMPLIANCE PURSUANT TO FLORIDA STATUTE Defendant is without knowledge regarding the allegations set forth in Paragraph 100 of Plaintiff s Fourth Amended Complaint; therefore, denies those allegations and demands strict proof thereof Defendant is without knowledge regarding the allegations set forth in Paragraph 101 of Plaintiff s Fourth Amended Complaint; therefore, denies those allegations and demands strict proof thereof

42 rdd Doc Filed 08/17/17 Entered 08/17/17 15:47:47 Exhibit Ex 2 - Debtors Answer & Aff Defenses Pg 12 of 16 CASE NO. 15-CA Defendant is without knowledge regarding the allegations set forth in Paragraph 102 of Plaintiff s Fourth Amended Complaint; therefore, denies those allegations and demands strict proof thereof Defendant is without knowledge regarding the allegations set forth in Paragraph 103 of Plaintiff s Fourth Amended Complaint; therefore, denies those allegations and demands strict proof thereof Defendant denies the allegations set forth in Paragraph 104 of Plaintiff s Fourth Amended Complaint as phrased and demands strict proof thereof. DEMAND FOR A JURY TRIAL 105. This is not a statement of fact that can be admitted or denied in a pleading phase. If a response is necessary, Defendant is without knowledge regarding the allegations set forth in Paragraph 105 of Plaintiff s Fourth Amended Complaint. WHEREFORE, Defendant, 21 st Century Oncology, LLC, d/b/a Specialists in Urology, respectfully requests that this Honorable Court enter judgment in its favor and against Plaintiff, Benjamin Cummings, and enter an Order dismissing Plaintiff s claims and awarding to 21 st Century Oncology, LLC, d/b/a Specialists in Urology, its attorneys fees and costs incurred in defending this matter, whether they be awarded as a result of statute or the contract/release/waiver between the parties, and for any further and additional relief as the Court deems just and equitable as a matter of law. AFFIRMATIVE DEFENSES 1. Defendant affirmatively asserts that Plaintiff was guilty of negligence and Plaintiff s negligence was the sole, proximate or contributing cause of the damages

43 rdd Doc Filed 08/17/17 Entered 08/17/17 15:47:47 Exhibit Ex 2 - Debtors Answer & Aff Defenses Pg 13 of 16 CASE NO. 15-CA-1293 complained of, and the recovery, if any, should be barred or reduced proportionately pursuant to the doctrine of comparative negligence. 2. Defendant affirmatively asserts, without admitting any liability whatsoever to Plaintiff, that in the event that Plaintiff should recover on the claims, Defendant would be entitled to any credit and set-off of any and all collateral source benefits either paid or payable for any damages alleged in the Complaint from any collateral source whatsoever pursuant to the provisions of Florida Statutes Section Defendant affirmatively asserts that at all times material to the Complaint, Plaintiff knew, or in the exercise of reasonable care, should have known and/or discovered the potential hazards and dangers alleged in the Complaint and Plaintiff voluntarily chose to remain exposed to the potential hazards and dangers for which Plaintiff now complains and, therefore, Plaintiff is barred from recovery against Defendant as he assumed the risk. 4. Defendant affirmatively asserts that any alleged negligence that caused or contributed to Plaintiff s alleged injuries was solely the result of negligence on the part of third parties who were not under the care, custody, control, or supervision of Defendant and Defendant is not legally responsible for those who acted as separate and distinct causes, or intervening causes and, therefore, Plaintiff cannot recover against Defendant. Further, Defendant reserves the right to amend this Answer and Affirmative Defenses pursuant to Nash v. Wells Fargo Guard Services, Inc., 678. So.2d 1262 (Fla. 1996) and the Fabre doctrine and Florida Statute section and, therefore, reserves the right to

44 rdd Doc Filed 08/17/17 Entered 08/17/17 15:47:47 Exhibit Ex 2 - Debtors Answer & Aff Defenses Pg 14 of 16 CASE NO. 15-CA-1293 place others who may be determined to be liable as discovery progresses on the verdict form in this cause at the time of trial, including, but not limited to SUNCOAST MEDICAL CLINIC, LLC, LEE MEMORIAL HEALTH SYSTEM d/b/a/ HEALTHPARK MEDICAL CENTER, and ERIC K. DINER, M.D. 5. Defendant affirmatively asserts that Plaintiff failed to mitigate damages as required under Florida law and any such recovery should be proportionately reduced as a result of this failure. 6. Defendant specifically claims any credit or set-off to which the Defendant may be entitled for any and all payments paid or payable to the Plaintiff for any damages alleged in the Complaint from any collateral source whatsoever. 7. Defendant affirmatively asserts that Plaintiff s damages, if any, for past medical expenses are limited to that amount actually paid or owed to the health care providers, and specifically, are not equal to the amounts charged by those health care providers. 8. Defendant affirmatively asserts that the Plaintiff s injuries allegedly sustained as a result of the incidents described in the Complaint resulted from the natural and inexorable process of pre-existing conditions and/or injuries, and/or human disease and/or unique physiology of the Plaintiff, and not as a result of any act or omission on the part of this Defendant. 9. Defendant affirmatively asserts that the subject incident was not reasonably foreseeable

45 rdd Doc Filed 08/17/17 Entered 08/17/17 15:47:47 Exhibit Ex 2 - Debtors Answer & Aff Defenses Pg 15 of 16 CASE NO. 15-CA Defendant affirmatively asserts that the Complaint fails to state a cause of action for which relief can be granted. 11. This action was not brought within the applicable Statute of Limitations period and is therefore barred pursuant to Florida Statute This Defendant affirmatively alleges that Plaintiffs have failed to comply with the requirements of a good faith pre-suit investigation and therefore, this Court lacks subject matter jurisdiction and the case should be dismissed for failure to comply with Florida Statutes Section 766 et. seq. 13. This Defendant affirmatively asserts that any and all claims of vicarious liability for Dr. Diner against this Defendant have been dismissed by this Honorable Court with prejudice. If it is determined that Dr. Andreoiu is vicariously liable for the actions/inactions of Dr. Diner, this Defendant affirmatively states that it is not vicariously liable for the actions/inactions of Dr. Diner, even through vicarious liability of Dr. Andreoiu for Dr. Diner. 14. Defendant reserves the right to amend these affirmative defenses should additional information become available. DEMAND FOR JURY TRIAL Defendant, 21 ST CENTURY ONCOLOGY, LLC, d/b/a FLORIDA SPECIALISTS IN UROLOGY hereby demand a trial by jury of all issues triable as of right by a jury

46 rdd Doc Filed 08/17/17 Entered 08/17/17 15:47:47 Exhibit Ex 2 - Debtors Answer & Aff Defenses Pg 16 of 16 CASE NO. 15-CA-1293 WE HEREBY CERTIFY that a copy hereof has been electronically served via Florida eportal to: Douglas B. Lumpkin, Esquire, dlumpkin@wickersmith.com, jstjohn@wickersmith.com; Brendan W. Rowe, Esquire, rjospher@jbfirm.com browe@jbfirm.com; lwilson@jbfirm.com; William G. Wolk, Esquire, wwolk@eatonwolk.com, cmartinez@eatonwolk.com; George T. Williamson, Esquire, gwilliamson@farr.com; on this 10th day of April, /s/ Tiffany N. Hampton Ashley P. Withers, Esquire Florida Bar No Tiffany N. Hampton, Esquire Florida Bar No WICKER SMITH O'HARA MCCOY & FORD, P.A. Attorneys for 21st Century Oncology, LLC d/b/a Florida Specialists in Urology 9128 Strada Place Suite Naples, FL Phone: (239) Fax: (239) napcrtpleadings@wickersmith.com

47 rdd Doc Filed 08/17/17 Entered 08/17/17 15:47:47 Exhibit Ex 3 - Debtors Primary Liability Policy Pg 1 of 25

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72 rdd Doc Filed 08/17/17 Entered 08/17/17 15:47:47 Exhibit Ex 4 - Debtors Excess Liability Policy Pg 1 of 40

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