Pavic v. Laser Spine Institute, LLC et al

Filing 48

ORDER denying 32 Defendants' Motion for Partial Summary Judgment. Signed by Judge Elizabeth A. Kovachevich on 11/10/2014. (KM)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
SANDRA PAVIC, D.O.,
Plaintiff,
v.

CASE NO. 8:13-CV-2578-17EAJ

LASER SPINE INSTITUTE, LLC and
CRAIG R. WOLFF, M.D.,
Defendants.
/
ORDER
This matter comes before the Court pursuant to Defendant Laser Spine Institute
LLC’s and Craig Wolfe, M.D.’s Motion for Partial Summary Judgment, filed September 15,
2014 (Dkt. # 32), to which Plaintiff Sandra Pavic, D.O. has responded in opposition (Dkt.
# 41). In addition, Defendants filed a statement of undisputed facts (Dkt. # 47), and
Plaintiff filed a statement of disputed facts (Dkt. # 46). For the reasons that follow,
Defendants’ motion is denied.
PROCEDURAL HISTORY
In this medical-negligence action, Plaintiff alleges that Defendant Laser Spine
Institute, LLC (“Laser Spine Institute”) markets itself as a provider of minimally-invasive
outpatient surgical procedures, but overstates the benefits these procedures, which only
temporarily treat symptoms. In Count I, Plaintiff claims that Defendant Craig R. Wolff, M.D.
(“Dr. Wolff’) performed a back surgery that was not medically indicated and was beneath
the applicable standard of care, and that he did so for financial gain. In Count II, Plaintiff
claims that Laser Spine Institute is directly or vicariously liable for Dr. Wolff’s conduct.

Plaintiff seeks compensatory and punitive damages. (Dkt. #1). The Court previously
denied Defendants’ motion to dismiss and Defendants’ alternative motion to strike. (Dkt.
# 21).

Defendants now move for partial summary judgment on two issues.

First,

Defendants argue that the complaint fails to state any claim for misleading advertising or
fraudulent inducement, and that Plaintiffs allegations regarding advertising are superfluous
and should be dismissed. Second, Defendants move for summary judgment on Plaintiff’s
punitive damages claim. In response to Defendants’ motion, Plaintiff contests only the
availability of punitive damages; Plaintiff does not contend that she is pursuing a claim for
misleading advertising or fraudulent inducement. (Dkt. #41, p. 17 n.6).
This Court previously held that Plaintiff is not attempting to plead a fraud claim.
(Dkt. # 21, p. 6). This Court also previously denied Defendants’ motion to strike Plaintiff’s
allegations regarding Laser Spine Institute’s advertising practices—the same allegations
Defendants challenge in the instant motion. (Dkt. # 21, pp. 7-8). Defendants’ partial
motion for summary judgment suggests an attempt to revisit those rulings, and the motion
is DENIED.

The remaining discussion pertains only to Plaintiff’s claim for punitive

damages.
FACTUAL BACKGROUND
On August 31, 2011, Dr. Wolff performed back surgery on Plaintiff, involving
destruction by thermal ablation of the paravertebral facet joint nerves at L3-4 and L4-5, as
well as a lumbar laminotomy and foraminotomy, including partial facetectomy with
decompression of the nerve roots, at L4-5. (Dkt. # 42-2, p.1; Dkt. # 1, U 7). At the time of

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the surgery, Dr. Wolff was an employee of Laser Spine Institute. (Dkt. # 47, U 5).
Dr. Wolff believed that the surgery was indicated for a number of reasons. First, at
the time Plaintiff presented to Laser Spine Institute, she had failed conservative treatment.
In addition, a lumbar MRI, taken the day prior to Plaintiff’s surgery, revealed facet disease
at L4-5 as well as lateral recess stenosis. Further, the Plaintiff had “a very positive result”
to a selective nerve block at L4-5, also performed on August 30, 2011. As a result, Dr.
Wolff concluded that the pain generator was the L4-5 area, and that the best chance to
alleviate Plaintiff’s symptoms would be decompressing the lateral recess at L4-5. (Dkt.
#36-1, pp. 118-121). Atthetime, Plaintiff, who is a family practice physician, also believed
that surgery was indicated. (Dkt. # 35-1, pp. 168-69).
By letter dated February 14, 2012, Plaintiff’s health insurance carrier denied
Plaintiff’s claims for the surgery. The letter cited the opinion of a board-certified orthopedic
surgeon, as follows:
The services provided are not considered standard of care for the patient’s
condition. Records provided for this review indicate that the patient has
undergone selective nerve root blocks and she should be given time to
demonstrate the efficacy of that block prior to going to other procedures.
The selective nerve root block was performed on 08/30/2011 and the patient
was taken back to surgery on 08/31/2011. Furthermore, the procedure
performed on 08/31/2011, including destruction of the facet joints by ablation
with lumbar laminotomy and foraminotomy and decompression of the nerve
roots on the right at L4-5 is not considered reasonable or necessary. The
medical records submitted, including the MRI of 8/30/2011, do not
demonstrate significant facet joint arthropathy. Records did not demonstrate
significant foraminal stenosis or impingement of the nerve roots. Medical
records do not demonstrate conservative care going before surgery. All these
are recommended per peer-reviewed literature. As such, the services
provided are not considered standard of care for this patient’s condition.
(Dkt. # 41-2, pp. 1-2). The lumbar MRI referenced in this letter was initially interpreted by
Shannon Calhoun, D.O., who noted largely minor or mild degenerative changes to the
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lumbar spine.

At the L4-5 level—which Dr. Wolff identified as the probable pain

generator—those changes included mild facet arthropathy, minor central canal narrowing,
and no significant foraminal stenosis. (Dkt. #41-1, pp. 1-2).
In connection with this litigation, Plaintiff and Defendants retained medical experts.
Plaintiffs expert, Kalman Blumberg, M.D., who is a board-certified orthopedic surgeon,
concluded:
It is my opinion that the surgery performed on August 31, 2011 by Craig R.
Wolff, M.D. was not medically indicated because Dr. Pavic’s presentation,
including her history, diagnostic test results, and imaging studies made plain
that the procedures performed by Dr. Wolff at Laser Spine Institute would not
address her pathology, and would unnecessarily expose her to injury and
damages by traumatizing the spine and adjacent structures. As a result of
this negligent care, Dr. Pavic suffered emotional trauma and permanent,
debilitating physical injury; including arachnoiditis and chronic pain.
Laser Spine Institute is engaged in willful mistreatment or substandard
treatment of patients like Dr. Pavic. The business model it employs
necessarily results in cases like this one, and I have seen many other
patients of LSI who suffered similar, avoidable outcomes as a result.
(Dkt. # 42-2, p. 2) In a supplemental affidavit, Dr. Blumberg further opined:
Sandra Pavic received outrageously deficient care, undergoing the wrong
operation, with no follow up and no followup plan. The lack of followup is built
into the system at Laser Spine Institute, where out of state patients are
targeted, temporarily “fixed” with anesthetizing procedures, and shipped off
to their distant points of origin to be dealt with by an ER physician or family
practice doctor or someone else.
Laser Spine Institute and Dr. Wolff knew or should have known that their
conduct and their business plan was reckless, and amounted to deliberate
endangerment of the life and safety of patients like Sandra Pavic. Dr. Pavic
was injured by such conduct and these injuries are permanent and
continuing.
(Dkt. # 42-3,

5-6).

During his deposition, Dr. Wolff was questioned as to his plan for Plaintiffs follow-up
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care. Dr. Wolff did not testify that he had a follow-up plan specific to Plaintiff, but he
testified that Laser Spine Institute has “very specific plans.” For instance, if a patient
experienced post-surgical pain, the patient could be assessed by a nurse over the
telephone. Dr. Wolff conceded that a telephone assessment was not “the best thing,” and
stated:
I’ve always talked to patients and said, “Come in.” They say, “Well, I’m in
Michigan.” Then I’m like, “Well, why are you in Michigan? I mean, you had
surgery, you’re in Michigan, and now you want me to tell you what’s wrong?
How am I going to do that over the phone?” So I would hope that people
wouldn’t go home if they were having pain.
Dr. Wolff also testified that he did not have privileges in any area hospital, should any of
his patients need hospital care. (Dkt. #36-1, pp. 165-70).
In response, Defendants present the testimony of their own expert, James B.
Macon, M.D., a board-certified neurosurgeon, who specializes in spine surgery and pain
procedures. As to Plaintiff’s surgery, he opined:
Pre-operative assessment of her complaints, physical and detailed
neurological exam, lumbar MR scan and a positive response (85% pain
reduction with anesthetic injection) to the right L4-5 selective nerve root block
confirmed that she was an appropriate candidate for the treatments
performed by Dr. Wolff on 8/31/2011 at LSI. It is reasonable that Dr. Wolff
thought preoperatively that the L4-5 area was the potential pain generator,
that he could help her and that the surgery was medically indicated.

It is my opinion that the care given to Sandra Pavic as treatment for chronic
back and lumbar radicular pain by Dr. Wolff and Laser Spine Institute, to a
reasonable degree of medical probability, was appropriate and medically
necessary consistent with the standard of care as recognized by reasonable
prudent spine surgeons practicing under similar circumstances. In addition,
there is absolutely no objective evidence that Ms. Pavic was neurologically
injured by the care provided in 2011 by Dr. Wolff or the Laser Spine Institute,
despite the persistence of her complaints following treatment.
(Dkt. #34-1, pp. 5-6, 11-12).
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LEGAL STANDARD
Summary judgment is appropriate if the pleadings, discovery, disclosure materials
on file, and any affidavits demonstrate there is no genuine issue as to any material fact and
the movant is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a).
[T]he plain language of [Rule 56] mandates the entry of summary judgment,
after adequate time for discovery and upon motion, 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).
The appropriate substantive law will guide the determination of which facts are
material and which facts are irrelevant. Anderson v. Liberty Lobby. Inc.. 477 U.S. 242,248
(1986). All reasonable doubts about the facts and all justifiable inferences are resolved in
favor of the non-movant. Fitzpatrick v. City of Atlanta. 2 F.3d 1112,1115 (11th Cir. 1993).
A dispute is genuine if the evidence is such that a reasonable jury could return a verdict
for the non-moving party. See Anderson. 477 U.S. at 246. However, if the evidence is
merely colorable, or is not significantly probative, summary judgment may be granted. ]cL
at 249-50.
ANALYSIS
A. Punitive Damages
In this diversity action, the Court applies the substantive law of Florida, the forum
state. Tech. Coating

A p p s ..

Inc. v. U.S. Fid. & Guar. Co.. 157 F.3d 843, 844 (11th Cir.

1998). “Under Florida law, the purpose of punitive damages is not to further compensate
the plaintiff, but to punish the defendant for its wrongful conduct and to deter similar
misconduct by it and other actors in the future.” Owens-Coming Fiberqlas Corp. v. Ballard.

749 So. 2d 483, 486 (Fla. 1999). The imposition of punitive damages is governed by
Section 768.72 of the Florida Statutes, which permits punitive damages “only if the trier of
fact, based on clear and convincing evidence, finds that the defendant was personally
guilty of intentional misconduct or gross negligence.” Fla. Stat. § 768.72(2); Mee Indus.
v. Dow Chem. Co.. 608 F.3d 1202, 1220 (11th Cir. 2010). Florida courts describe “clear
and convincing evidence” as an “intermediate burden of proof,” which:
requires that the evidence must be found to be credible; the facts to which
the witnesses testify must be distinctly remembered; the testimony must be
precise and explicit and the witnesses must be lacking in confusion as to the
facts in issue. The evidence must be of such weight that it produces in the
mind of the trier of fact a firm belief or conviction, without hesitancy, as to the
truth of the allegations sought to be established.
S. Fla. Water Mam’t Dist. v. RLI Live Oak. LLC. 139 So. 3d 869, 872 (Fla. 2014);
Owens-Corninq Fiberalas Corp.. 749 So. 2d at 486 n.4. A court may grant summary
judgment on an unsupported claim for punitive damages. Tavlorv. Gunter Trucking Co..
Inc.. 520 So. 2d 624,624 (Fla. 1st DCA1988); cf. Mee. 608 F.3d at 1221 (affirming district
court’s grant of Rule 50(a) motion).
Section 768.72 specifically defines both intentional misconduct and gross
negligence. Intentional misconduct requires “actual knowledge of the wrongfulness of the
conduct and the high probability that injury or damage to the claimant would result.” Fla.
Stat. § 768.72(2)(a). Gross negligence is defined as conduct that is “so reckless or
wanting in care that it constituted a conscience disregard or indifference to the life, safety,
or rights of persons exposed to such conduct.” Fla. Stat. § 768.72(2)(b). In the case of an
employer, punitive damages may be imposed based on an employee’s conduct only if the
employee’s conduct evinces intentional misconduct or gross negligence, and the employer:

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(1) actively and knowingly participated in the conduct; (2) condoned, ratified, or consented
to the conduct; or (3) engaged in grossly negligence conduct. Fla. Stat. § 768.72(3).
Defendants maintain that Plaintiff cannot present the requisite “clear and convincing
evidence” of intentional misconduct or gross negligence by Dr. Wolff.

In particular,

Defendants argue that there is no evidence that Dr. Wolff had actual knowledge of any
wrongful conduct, given his detailed explanation as to the indications for surgery. In
addition, Defendants maintain that Plaintiff is unable to prove gross negligence because
Dr. Macon has opined that the surgery was appropriate and medically necessary, and
Plaintiff, herself, testified that she thought the surgery was indicated. Defendants further
assert that, because the Plaintiff is unable to prove the requisite culpability on the part of
Dr. Wolff, she is unable to prevail as to Laser Spine Institute.
In response, Plaintiff relies heavily on the opinion of her own expert, Dr. Blumberg.
Plaintiff also cites the denial of her health insurance claim, and the August 30, 2011 MRI
results, which Dr. Calhoun interpreted as showing minor or mild degenerative changes.1
Finally, Plaintiff maintains that there is sufficient evidence that Laser Spine Institute
participated in and ratified Dr. Wolffs conduct.
Taking the requisite inferences in Plaintiffs favor, the Court finds that Plaintiff has
identified sufficient evidence to create a triable issue of fact as to whether Dr. Wolff
engaged in conduct that constituted a “conscious disregard or indifference to the life,
safety, or rights” of Plaintiff. That evidence includes Dr. Blumberg’s opinion that Plaintiff
underwent the wrong surgery, that there was no follow-up plan, and that she received

1
Defendants do not raise any objection to the admissibility of this evidence. See
Fed. R. Civ. P. 56(c)(2).
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outrageously deficient care. See Pavton Health Care Facilities. Inc. v. Estate of Campbell.
497 So. 2d 1233,1240 (Fla 2d DCA1986) (holding that the testimony of a qualified expert
was sufficient to sustain an award of punitive damages). Dr. Blumberg’s opinion is
generally consistent with the August 30, 2011 lumbar MRI results, the denial letter from
Plaintiff’s health insurance carrier, and Dr. Wolff’s failure, during his deposition testimony,
to identify a specific follow-up plan for Plaintiff.
Although Dr. Macon provides a conflicting opinion, that conflict is not for this Court
to resolve at this stage of the litigation. Likewise, Plaintiffs own opinion that she believed
surgery was indicated is minimally probative—she is not a specialist, and she testified that
her decision to proceed with the surgery may have been clouded by a desire to achieve
pain relief. (Dkt. # 35-1, pp. 131-32). Defendants’ motion is therefore DENIED as to the
punitive damages claim against Dr. Wolff.
As to Laser Spine Institute, Plaintiff produces limited evidence regarding the
company’s culpability, instead asserting that her ability to obtain evidence has been
hindered by the Magistrate Judge’s discovery rulings. (Dkt. 41, p. 14 n.5; Dkt. 46, U 5).
Notably, however, Plaintiff fails to provide an affidavit or declaration stating why she is
unable to present evidence in opposition to the summary judgment motion, pursuant to
Rule 56(d) of the Federal Rules of Civil Procedure.2 Although Plaintiff requested an
extension of time to respond to the summary judgment motion, she did not base that
request on the need to conduct additional discovery. (Dkt. # 38). Moreover, Plaintiff has

2
Rule 56(d) provides: “If a nonmovant shows by affidavit or declaration that, for
specified reasons, it cannot present facts essential to justify its opposition, the court may:
(1) defer considering the motion or deny it; (2) allow time to obtain affidavits or declarations
or to take discovery; or (3) issue any other appropriate order.” Fed. R. Civ. P. 56(d).
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not appealed the Magistrate Judge’s discovery rulings to this Court. Accordingly, the Court
finds no reason to delay consideration of Defendants’ motion for summary judgment as it
pertains to Laser Spine Institute.
Nonetheless, Defendants have failed to discharge their burden, as the moving
parties, on Plaintiffs punitive damages claim against Laser Spine Institute.

In two

sentences, Defendants conclusorily state that Laser Spine Institute is not liable for punitive
damages because Plaintiff failed to demonstrate Dr. Wolffs culpability, and there is no
evidence that Laser Spine Institute “directly” caused harm to Plaintiff. (Dkt. # 32, p. 21).
As discussed above, however, there is a factual issue as to Dr. Wolffs culpability. And
Defendants wholly fail to address the statutory grounds for imposition of punitive damages
against a corporate entity: participation, ratification, and grossly negligent conduct. See
Fla. Stat. § 768.72(3)(a)-(c).
The Court is mindful that the burden on the party moving for summary judgment
“may be discharged by ‘showing’—that is, pointing out to the district court—that there is an
absence of evidence to support the nonmoving party’s case.” Celotex Corp.. 477 U.S. at
325; see also Fed. R. Civ. P. 56(c)(1). Defendants’ failure to address the statutory grounds
for imposition of punitive damages against a corporate entity does not satisfy that burden.
Defendants’ motion is therefore DENIED as to the punitive damages claim against Laser
Spine Institute.
B. Dr. Macon’s Qualifications
In her response in opposition to the motion for summary judgment, Plaintiff briefly
challenges the qualifications of Defendants’ expert, Dr. Macon, under Fla. Stat.

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§ 766.102(5),3 on the ground that he is a neurosurgeon rather than orthopedic surgeon
(Dkt. # 41, p. 6 n.3). The Court need not resolve the issue for purposes of this motion, as
Plaintiff prevails even with consideration of Dr. Macon’s testimony. The Court does note,
however, that Plaintiff appears to be relying on the current version of Section 766.102,
which became effective on July 1, 2013. That section provides, in relevant part, that an
expert must “specialize in the same speciality as the health care provider against whom
or on whose behalfthe testimony is offered.” Fla. Stat. §766.102(5)(a)1. (2013) (emphasis
added). However, the prior version of the statute also allowed testimony from an expert
who specializes “in a similar specialty that includes the evaluation, diagnosis, or treatment
of the medical condition that is the subject of the claim[.]” Fla. Stat. § 766.102(5)(a)1.
(2011) (emphasis added). To the extent that Plaintiff wishes to assert a challenge to
Dr. Macon’s qualifications, she is directed to do so in a fully-briefed motion, with citation
to relevant and controlling authority.
Based on the foregoing, it is ORDERED that Defendants’ Motion for Partial
Summary Judgment (Dkt. # 32) is DENIED.
DONE AND ORDERED, in Chambers, in Tampa, Florida on this

//D

day of

3 Section 766.102(5) specifies the standards for expert witnesses in medicalnegligence actions, which apply in this diversity action. Fed. R. Evid. 601; McDowell v.
Brown. 392 F.3d 1283, 1295-96 (11th Cir. 2004).
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