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Filing # 198035031 E-Filed 05/10/2024 09:11:54 AM
IN THE CIRCUIT COURT OF THE THIRTEENTH JUDICIAL CIRCUIT
IN AND FOR HILLSBOROUGH COUNTY, STATE OF FLORIDA
CIVIL DIVISION
TODD COPELAND, ESQUIRE, as Guardian
Ad Litem to A.M., ASHLEY ANDREWS,
individually and on behalf of A.M., a minor,
Plaintiff,
CASE NO.: 20-CA-5318 DIV G
v.
HCA, INC., GALENCARE INC. D/B/A
BRANDON REGIONAL HOSPITAL,
Defendants.
DEFENDANTS, HCA, INC, and GALENCARE, INC, d/b/a BRANDON REGIONAL
HOSPITAL’S MOTION IN LIMINE TO STRIKE PLAINTIFF’S AUDIT TRIAL EXPERT,
SCOT SILVERSTEIN, M.D,
COME NOW the Defendants, HCA, INC. and GALENCARE, INC. d/b/a
BRANDON REGIONAL HOSPITAL, by and through undersigned counsel, and hereby file
this Motion in Limine to Strike Plaintiffs Audit Trail Expert, Scot Silverstein, M.D., and in
support thereof, state the following:
1. This is a medical malpractice action arising out of the care and treatment of
Ashley Andrews and her minor son, A.M., rendered at Brandon Regional Hospital.
2. Plaintiff has disclosed Dr. Scot Silverstein as the audit trail expert expected
to offer “a forensic analysis of the electronic medical records in this case, EMR-related
medical errors, audit trail analysis, event and timeline reconstruction, medical record
alteration, and evidentiary issues.” See Plaintiffs Expert Witness Disclosure filed
October 31,2022 attached hereto as “Exhibit A.”
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3. At all material times, Brandon Regional Hospital utilized the Meditech EMR
system. The Labor and Delivery department also used Centricity Perinatal in addition to
Meditech.
4. On September 1, 2023, Dr. Silverstein was deposed. At his deposition, he
offered several opinions regarding the nature, retention, and production of audit trails,
including the following:
a) The audit trail is part of the medical record;
b) Without an audit trail, authentication of a medical record is not possible; and
c) BRH deviated from the standard of care in creating, maintaining, and producing
audit trails. See Scot Silverstein Deposition taken September 1,2023; page 63,
lines 4-17, pages 69-70, lines 25-3; and page 79, lines 19-25 attached hereto
as “Composite Exhibit B.”
5. Of note, Dr. Silverstein states that he has never been a Meditech user. He
has only seen it used and studied the user manuals. Depo. Silverstein, pages 11-12,
lines 23- 9 are attached hereto as Exhibit C.
6. Dr. Silverstein also testified that he has never produced a Centricity Perinatal
audit trail but rather, only did an inspection of one such system at a hospital in Montana
where he asked an operator to print the audit trail. Depo. Silverstein, page 17, lines 14-24
is attached hereto as Exhibit D.
7. Further, as it pertains to Defendants, the Plaintiffs Amended Complaint
(Corrected) contains (1) a claim for breach of a non-delegable duty regarding the regarding
the medical nursing care and treatment rendered; (2) a claim for vicarious liability as it
relates to the alleged negligence of employees of Brandon Regional Hospital in their
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respective roles as healthcare providers; and (3) a claim for negligence against many of
the nurses providing care as it relates to the care and treatment rendered to the Plaintiff,
Ashley Andrews. See Plaintiffs Amended Complaint (Corrected) filed attached hereto as
“Exhibit E.”
9. Nowhere in the Amended Complaint (Corrected) do allegations of the negligent
or fraudulent recordkeeping appear.
10. As they relate to the claims at bar, Dr. Silverstein’s opinions are speculative,
not relevant to the material issues, and could serve to mislead a jury into thinking that
they are required to render a decision regarding the accuracy or completeness of the
medical records.
11. As Dr. Silverstein’s opinions are speculative, improper, unrelated to the issues
at hand, and would only serve to confuse and mislead a jury, he should be precluded
from presenting these opinions at trial.
LEGAL ARGUMENT
When considering a Motion in Limine, a Court has the obligation to exclude
“evidence which will be highly prejudicial to the moving party and which, if referred to in
a question which the court rules inadmissible, would be unlikely to be disregarded by the
jury despite an instruction by the court to do so.” Fischman v. Suen, 672 So.2d 644, 645
(Fla. 4th DCA 1996). Section 90.105 of the Florida Evidence Code allows the court to
hear and determine the question of admissibility outside the presence or hearing of the
jury. Following this inquiry, the Court can then exclude evidence when there is a
substantial danger that the probative value will be outweighed by “unfair prejudice,
confusion of issues, misleading the jury, or needless presentation of cumulative
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evidence.” §90.403 Fla. Stat. (2021); See also Gutierrez v. Vargas, 239 So.3d 615 (Fla.
2018). Further, when an expert’s opinion is based on speculation, the opinions offered
are properly excluded. See M.A. Hajianpour, M.D., P.A. v. Khosrow Maleli, P.A., 932
So.2d 459 (Fla 4th DCA 2006). Finally, “an expert should not be allowed to render an
opinion which applies a legal standard to a set of facts.” County of Volusia v. Kemp, 764
So.2d 770, 774 (Fla. 5th DCA 2000).
From an evidentiary perspective, “duly authenticated medical records are entirely
admissible, notwithstanding the hearsay rule, as substantive evidence of what they contain.”
Sorondo v. Batet, 782 So.2d 540 (Fla 3rd DCA 2001). Generally, medical records are
admissible through Fla. Stat. §90.803(6) (2021), also known as the business records
exception. Fla. Stat. §90.902 (2021) outlines the steps for self-authentication; requiring that
any document that falls within the business records exception is deemed authentic when
the records custodian or “another qualified person certifies] or declares] that the record : a)
was made at or near the time of the occurrence of the matters set forth by, or from
information transmitted by, a person having knowledge of those matters; b) was kept in the
course of the regularly conducted activity; and c) was made as a regular practice in the
course of the regularly conducted activity...”
Expert opinions may be based on evidence that is not admissible at trial; however,
“the expert can neither bolster his or her opinion with a treatise, article, study, etc., nor serve
as the conduit for inadmissible hearsay.” Duss v. Garcia, 80 so.3d 358, 364 (Fla 1st DCA
2012); Linn v. Fossum, 946 So.2d 1032 (Fla. 2006). When opinions are bolstered in this
way, hearsay is improperly introduced since, “the opposing party cannot cross-examine
and impeach the source of the hearsay." In re S.E., 946 So.2d 620,622 (Fla. 2d DCA 2007).
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Testimony that an expert relied on another expert’s opinions is considered improper
bolstering and this kind of inadmissible hearsay should not be presented to a jury. Linn
946 So.2d at 1035.
In addition, “any deficiency in recordkeeping does not affect a doctor’s diagnosis
and treatment...” Barr v. Dept, of Health, Bd. of Dentistry, 954 So.2d 668 (Fla. 1st DCA
2007). Florida case law is clear that, “there is a significant difference between improperly
diagnosing a patient...and properly diagnosing a patient, yet failing to properly document
the actions taken on the patient’s chart...” Id. In this context, the contents of a hospital’s
records are irrelevant when considering questions of a healthcare provider’s care and
treatment rendered, as the two are separate issues, evidenced by the separate statutes
that govern each action. See §395.3015, Florida Statutes; Chapter 766, Florida Statutes;
Fla. Admin. Code R. 64B8-9.003. Further, allegations of deficient medical recordkeeping
are more appropriately addressed through the Department of Health as an administrative
issue, and not through a civil medical malpractice claim. See, e.g., Colbert v. Dept, of
Health, 890 So.2d 1165 (Fla. 1st DCA 2004).
Here, Dr. Silverstein’s opinion that audit trails are part of the medical record is based
on a combination of conjecture and reliance on hearsay. The Florida General Records
Schedule GS4 for Public Hospitals, Healthcare Facilities, and Medical Providers in effect
in 2016 outlines the contents of various records, including patient medical records. Neither
of the relevant entries, titled “Patient Medical Record” and “Patient Medical Record:
Children Under One Year of Age,” mention audit trails as being a part of the medical
record. Any statement that audit trails are recognized as part of a medical record is
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unfounded and baseless, as there is no authority including the Joint Commission, statute,
or precedent that endorses such an assertion. Dr. Silverstein states this:
Q: I wasn’t asking for your opinion. I’m asking for whether you can point to a
law or statute or regulation that say that it (audit trail is (part of a medical record)?
A: ASTM E2147 standard, I don’t think, has that exact wording. It implies it. I’m
not aware of any statute that specifically says an audit trail is part of a medical record,
and in my view, the statute is not needed because to think otherwise would be
preposterous.
Depo. Silverstein pages 40-41, lines 19-1 attached as Exhibit F.
Further, Dr. Silverstein’s admission that the audit trail does not automatically print out with
the medical record indicates that the documents are separate and distinct from one
another and belies his insistence that they are one and the same. See depo. Silverstein,
page 44, lines 10-23 attached as Exhibit G. To introduce the opinion that audit trails are
deemed part of the medical record would be to offer a statement that is unsupported by
the facts and not independently verifiable. Dr. Silverstein relies on a Products Standard
from a private organization that requires membership for access to its materials and states
that it develops and publishes voluntary consensus technical standards, www.astm.org
Dr. Silverstein’s opinion that audit trails are part of the medical record is unfounded and
should therefore be excluded.
Next, Dr. Silverstein’s insistence that a medical record cannot be authenticated
without an audit trail is both misleading and unfounded. Florida courts have long
recognized authentication of medical records through sworn affidavits, certifications, or
declarations by the records custodian or other qualified personnel. To state unequivocally
that the only way to authenticate a medical record is through the audit trail would confuse
and mislead a jury and completely disregard the statutory procedure for authentication.
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Additionally, when Dr. Silverstein asserts that authentication of a medical record is not
possible without the audit trail, he is applying the legal standard that governs
authentication of documents to the facts of this case, contrary to established precedent.
See Kemp, 764 So.2d at 774. In addition, his opinion completely disregards longstanding
case law and statutes that spell out what authentication entails. To offer the opinion that
medical records cannot be authenticated absent the audit trail is wholly misleading and
would confuse a jury and create undue prejudice, and Dr. Silverstein should not be
allowed to offer it at trial.
Similar to his assertions regarding authentication of medical records and audit trails,
Dr. Silverstein’s assertion that BRH “deviated from the standard of care” as it pertains to
the retention and production of medical records and audit trails is a statement that would
only lead to confusion and prejudice. There are no allegations regarding the recordkeeping
in this matter, and to state that BRH “deviated from the standard of care” regarding audit
trail preservation and production implies that the issue is one that requires a finding by the
jury. Dr. Silverstein’s choice of words will likely confuse the actual claims with his own
contentions regarding maintenance of the audit trails, a claim that has not been alleged. If
allowed to present this opinion, a jury would likely be misled into believing that the
production and retention of audit trails is somehow at issue in this case, and that the jury
could then consider the alleged deviations from the standard of care of audit trail retention
and production as an additional basis for determining damages. To allow testimony
concerning a standard of care that is not at issue and that has not been established would
only confuse and mislead a jury and is properly excluded.
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Further, Dr. Silverstein’s contentions that he has never been a user of Meditech
and has only interacted with the system while standing over someone else’s shoulders
calls into question the foundation of his various opinions.
The admitted lack of knowledge of the specifics of the audit trail software in use at
BRH in 2016 evidences that allowing his testimony would be more prejudicial than
probative as his allegations are highly inflammatory, would introduce unfounded bias, and
would likely serve to confuse and mislead a jury.
Expert testimony is meant to assist the factfinder in resolving a disputed issue, not
create factual issues where there were none before. Dr. Silverstein’s opinions regarding
the classification, retention, and production of audit trails are confusing, misleading, and
unfounded. To state that audit trails are considered part of a medical record with nothing
more than a Product Standard from a private members only organization as a basis for
the statement is improper and should not be offered to a jury. Dr. Silverstein’s contention
that without the audit trails, authentication of a medical record is impossible is not only
misleading and prejudicial, but patently false and should not be offered to a jury. The
remaining opinions insinuate and outright state that the hospital deliberately altered and/or
failed to produce audit trails, which he deems as medical records. These statements are
extremely inflammatory and would introduce severe prejudice to a jury. Finally, Dr.
Silverstein’s assertion that there were deviations in the standard of care as it pertains to
retention and production of medical records improperly introduces claims not alleged and
would serve to confuse the jury and create additional undue prejudice, and should not be
offered at trial.
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WHEREFORE, Defendants respectfully request the entry of an Order by this
Honorable Court enter an order granting the foregoing Motion and any further relief
deemed just and appropriate under the circumstances.
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of this document was forwarded
via e-mail on May , 2024 to Maria D. Tejedor, Esq., and Carlos Diez-Arguelles, Esq.,
Diez-Arguelles/Tejedor, 505 N. Mills Avenue, Orlando, FL 32803,
mail@theorlandolawyers.com, leah@theorlandolawyers.com; John D. Emmanuel, Esq.,
Buchanan Ingersoll & Rooney P.C., 401 E. Jackson Street, Suite 2400, Tampa, FL
33602, iohn.emmanuel@bipc.com, Sabrina.storno@bipc.com; and Louis J. La Cava,
Esq., La Cava Jacobson & Goodis, P.A., 501 E. Kennedy Boulevard, Suite 1250, Tampa,
FL 33602, llacava@liqleqal.com, kharris@liolegal.com. /i .
TRACY^T FAlyKOWIT^dESa
Florida Bar No. 0127396^
BANKER LOPEZ GASSLER P.A.
E-Mail: service-tfalkowitz@bankerlopez.com
service-rhermida@bankerlopez.com
501 East Kennedy Boulevard, Suite 1700
Tampa, Florida 33602
Telephone: (813)221-1500
Facsimile: (813) 222-3066
Counsel for HCA, Inc. and Galencare, Inc.
d/b/a Brandon Regional Hospital
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Filing # 160310697 E-Filed 10/31/2022 02:54:16 PM
IN THE CIRCUIT COURT OF THE THIRTEENTH JUDICIAL CIRCUIT,
IN AND FOR HILLSBOROUGH COUNTY, FLORIDA
CASE NO.: 2020-CA-005318
Todd Copeland, Esquire, as Guardian Ad
Litem to A.M., ASHLEY ANDREWS,
individually and on behalf of A.M., a minor
Plaintiff,
v.
HCA, INC., GALENCARE INC. D/B/A
BRANDON REGIONAL HOSPITAL,
Defendants.
__________________________________ /
PLAINTIFF’S DISCLOSURE OF EXPERT WITNESSES
COMES NOW the Plaintiff, ASHLEY ANDREWS, individually, and on behalf of
ASHTON McFADDEN, a minor, by and through undersigned counsel, and hereby files this
Expert Witness Disclosure pursuant to the Court's Case Management Order:
1. Djenane Adams,
98 West Yaphank Rd.
Coram, NY 11727
Specialty: Nursing
Nurse Adams is expected to testify regarding how the defendant hospital, including its
nurses and staff, deviated from the prevailing professional standard or care. Nurse Adams
will also testify as to how such deviations were the cause of the injuries and damages
sustained by A.M. Nurse Adams is expected to testify based on her review of the medical
records and depositions in this case, along with her education, knowledge, training and
experience as a nurse and may be called to rebut any defenses presented by the
Defendants and/or their expert witnesses.
Djenane Adams, RN’s CV will be provided under a separate cover.
2. Martin Gubernick, M.D.
131 East 65th Street
New York, New York 10065
Specialty: Obstetrics and Gynecology I EXHIBIT
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Dr. Martin Gubernick has reviewed medical records relevant to this case as well as
deposition transcripts and policies and procedures. He will testify how the defendant
hospital, including its doctors, nurses, and staff, deviated from the prevailing professional
standard of care. Dr. Gubernick will also testify as to how such deviations resulted in the
injuries to A.M. Dr. Gubernick is expected to testify based on his education, knowledge,
training and experience as an OB/GYN, his review of records, and will be called to rebut
any defenses presented by Defendants.
Dr. Gubernick's CV will be provided under a separate cover.
3. Frederick A. Gonzalez, M.D.
16 Highland Ave
Tarrytown, NY 10591
Specialty: Maternal-Fetal Medicine
Dr. Gonzalez is expected to testify to issues of standard of care and causation. Dr.
Gonzalez will testify how the defendant hospital, including its perinatal physicians,
nurses, residents, staff, and other healthcare providers deviated from the standard of care
and that such deviations caused A.M.’s injuries. Dr. Gonzalez has reviewed the medical
records, depositions transcripts, and other pertinent documents in this case. Dr. Gonzalez
is expected to testify based on his education, knowledge, training and experience as a
neonatologist and will be called to rebut any defenses presented by the defendants.
Dr. Gonzalez’s CV is being provided under a separate cover.
4. Anthony Rodrigues, MD
105 Stanford Dr.
Westwood, MA 02090
Specialty: Pediatric Neurology
Dr. Rodrigues will testify as to causation and damages. Dr. Rodrigues will testify that the
deviations from the prevailing professional standard of care by the hospital, and its nurses
and physicians caused of the injuries to A.M. Dr. Rodrigues has reviewed the medical
records of A.M. and conducted an evaluation of A.M. He will opine regarding his
evaluation of A.M. his injuries, and impact on A.M. as well as future prognosis, care,
needs, and life expectancy. He will also be called to rebut defenses in the case.
Dr. Rodrigues’ CV will be provided under a separate cover.
5. Predrag Bulic, M.D.
Chief Medical Examiner, District 23
4501 Avenue A
St. Augustine, FL 32095
Specialty: Pathology
Dr. Bulic will testify regarding findings on the placental pathology slides, causation, and
the timing of the injuries. Dr. Bulic has reviewed all of the medical records of Ashley
Andrews and A.M. the pathology records, and numerous depositions in this case, and will
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testify based upon his review of the same, as well as his education, knowledge, training
and experience as a forensic pathologist. He will also be called to rebut any defenses
presented by the defendants.
Dr. Bulic’s CV is being provided under a separate cover.
Plaintiff just became aware this expert passed away and reserves the right to amend this
response.
6. Scot Silverstein, MD
2615 Wister Court
Lansdale, PA 19446
Specialty: Healthcare IT/Audit Trail/EMR
Dr. Silverstein will provide a forensic analysis of the medical records in this case
regarding EMR-related medical errors, audit trail analysis, event and timeline
reconstruction, medical record alteration, and evidentiary issues. Dr. Silverstein will
testify as to all medical records systems available well as standards of care required of
hospital for preservation, management, storage and production of medical records. Dr.
Silverstein has reviewed the medical records, audit trail discovery, and depositions in this
case, and will testify based upon his review as well as his education, knowledge, training
and experience. He will also be called to rebut any defenses presented by the defendants.
Dr. Silverstein’s CV will be provided under a separate cover.
7. Joyce Eastridge, MBA
Joyce Eastridge Economist, Inc.
600 S. Magnolia Ave, Ste 100
Tampa, FL 33606
Specialty: Economist
Ms. Eastridge is anticipated to testify about the economic costs and losses in the past and
future experienced by the plaintiffs as a result of A.M.’s injuries that were caused by
defendants’ negligence. Ms. Eastridge will also opine as to the future wage losses of
A.M. and his loss of ability to earn income. Ms. Eastridge’s calculations will be based
upon the continuation of care plan, reflecting what future medical, nursing, rehabilitative,
and other services, equipment, and accommodations will be necessary for the remainder
of A.M.’s life as a result of his injury, infirmity and disability.
Ms. Eastridge’s CV will be provided under a separate cover.
8. Jon Burroughs, MD, MBA, FACHE, FAAPL
President ACEO, The Burroughs Healthcare Consulting Network, Inc.
48 Forest Ledge Road
P.O. Box 540
Glen, NH 03838
Specialty Hospital Administration
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Dr. Burroughs will testify regarding standard of care, credentialing, and non-delegable
duty of the hospital, hospital staff and administration. Dr. Burroughs will opine that the
hospital and it agents, staff, and employees deviated from the prevailing professional
standard of care for administrative hospital credentialing when they negligently
credentialed the physicians involved in this case with medical staff privileges to treat
patients at the hospital. Dr. Burroughs will further opine that due to the hospital’s
negligent credentialing the Plaintiffs sustained damages. Dr. Burroughs has reviewed the
medical records, audit trail discovery, website data and depositions in this case, and will
testify based upon his review as well as his education, knowledge, training and
experience. He will also be called to rebut any defenses presented by the defendants.
Dr. Burroughs’ CV will be provided under a separate cover.
9. Sean Mahan, MD
5840 Red Bug Lake Road, Suite 185
Winter Springs, FL 32708
Specialty: Diagnostic Radiology
Dr. Mahan will testify regarding the timing and cause of A.M’s brain injury and the
findings on the brain studies. Dr. Mahan will testify regarding the nature and extent of the
injuries, and how they relate to the child’s current physical condition. Dr. Mahan has
reviewed all of the records in this case as well as the radiology studies taken of A.M. and
will testify based on his review of the same, as well as his education, experience and
training. Dr. Mahan is also a treating physician who has interpreted A.M.’s MRI. Dr.
Mahan may also be called to rebut defenses presented by the Defendants.
Dr. Mahan’s CV will be provided under a separate cover.
10. Ricardo Lastra, MD
5841 S. Maryland Ave.
MC6101,Rm. J-607A
Chicago, IL 60637
Specialty: Pathology
Dr. Lastra will testify regarding findings on the placental pathology slides, causation, and
the timing of the injuries. Dr. Lastra has reviewed all of the medical records of Ashley
Andrews and A.M., the pathology records, and numerous depositions in this case, and
will testify based upon his review of the same, as well as his education, knowledge,
training and experience as a forensic pathologist. He will also be called to rebut any
defenses presented by the defendants.
Dr. Lastra’s CV will be provided under a separate cover.
11. Paul Doering, M.S.
3723 SW 2oth Street
Gainesville, FL 32608
Specialty: Pharmacology
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Paul Doering is an Emeritus Distinguished Professor in the University of Florida’s
Department of Pharmacotherapy. He also has several years of experience as a licensed
pharmacist in both a community and hospital setting. Mr. Doering will be called to testify
regarding standard of care, causation and damages. It is anticipated that Mr. Doering will
testify regarding the ordering and administration of medication for Ashley Andrews and
any and all drug interactions for Ashley Andrews and A.M. while in utero and the impact
on A.M. Mr. Doering’s testimony will be based upon his education, training and
experience in pharmacology and as a pharmacist.
Mr. Doering's CV be provided under a separate cover.
12. Any and all experts retained and/or disclosed by Defendants.
13. Any and all treating physicians of D. B. B., JR., including
Robert Eilers, MD
3816 Pennsylvania Avenue
Plant City, FL 33566
Specialty/Treating Physician: Physical Medicine & Rehabilitation
Dr. Eilers is not a retained expert. Rather, Dr. Eilers is A.M.’s treating physical medicine
and rehabilitation physician. It is anticipated that he will testify regarding causation and
damages, including life expectancy and rehabilitation potential. Dr. Eilers will also testify
as to the reasons a life care plan will be necessary for the remainder of A.M.’s life. The
life care plan will reflect future medical, nursing, and rehabilitation services; and the life
care plan will provide a break-down of equipment and accommodations deemed
necessary for the remainder of A.M.’s life as a result of his infirmity and disability. Dr.
Eilers is expected to testify based on his education, knowledge, training and experience,
as well as his review of the applicable medical records and deposition transcripts. Dr.
Eilers may also be called to rebut any defenses presented by the defendants or their
experts and his opinions will be stated to a reasonable degree of medical probability.
AS TO ALL EXPERTS
The substance of the facts and opinions about which the experts are expected to testify
will be based on their examination of the medical records, nurses’ notes, and other documents
and materials, and the application of their experience and training and applicable medical
practice guidelines to those materials, physical findings and facts.
The summary of the grounds upon which the experts’ opinions will be based upon is their
training and experience, the review of the Plaintiffs medical records, and any additional relevant
documentation, and their consideration of the appropriate medical guidelines.
The above are the experts retained by the Plaintiff in this case. The Plaintiff retains
the right to call as experts any such treaters. Plaintiffalso reserves the right to supplement
this list, as discovery is ongoing.
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CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the forgoing has been electronically
filed with the Clerk of the Court by using the Florida Courts E-Filing Portal and furnished via
electronic mail to all counsel on the service list below, this 31st day of October, 2022.
/s/ Maria D. Tejedor
Maria D. Tejedor
FBN: 95834
DIEZ-ARGUELLES & TEJEDOR
505 North Mills Avenue
Orlando, Florida 32803
Telephone: (407) 705-2880
Attorney for Plaintiffs
mail@theorlandolawyers .com
leah@theorlandolawyers.com
SERVICE LIST
Tracy M. Falkowitz, Esquire
Banker, Lopez, Gassier, P.A.
501 East Kennedy Boulevard, Suite 1700
Tampa, Florida 33602
service-tfalkowitz@bankerlopez.com lburley@bankerlopez.com
Counsel for HCA, INC. and GALENCARE INC. D/B/A BRANDON REGIONAL HOSPITAL,
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In The Matter Of:
Todd Copeland, Esquire, et al. v.
HCA, Inc., et al.
Scot Mark Silverstein, M.D.
September 1, 2023
Carolyn Louden & Associates, Inc.
(813) 222-4545
5/10/2024 9:11 AM Electronically Filed: Hillsborough County/13th Judicial Circuit Page 16
63
1 so that's why there may be caps in people's knowledge of
2 it.
3 Q. Okay. Fair enough. All right.
4 Then let's talk about your opinions on your
5 opinion pages, and we will — and I understand that one
6 of your opinions is that it's gross negligence to not be
7 able to — or gross deviation from the standard of care
8 to not have those audit trails, correct?
9 A. Well, what I'm saying is it's a gross
10 deviation by not producing audit trails when asked.
11 Q. Okay.
12 A. I don't — it's just, you know — to maintain,
13 store, and produce records, the failure to produce is a
14 deviation from the — what kind of a reasonable medical
15 records director or medical records department would do
16 under similar circumstances, especially in the face of
17 litigation. That's really what --
18 Q. So wouldn't whether a production is a
19 deviation or not be up to a judge?
20 A. It’s a deviation from the standard of care of
21 records production —
22 Q. Okay.
23 A. — by not producing them.
24 I'm using the word "gross." That might be up
25 to a judge.
Carolyn Louden & Associates, Inc.
5/10/2024 9:11 AM Electronically Filed: Hillsborough County/13th Judicial Circuit Page 17
79
1 somebody or yourself try to spend, like, a $50 bill or a
2 hundred dollar bill? And you see what happens. The
3 person receiving the money will take out a marker, some
4 sort of special marker or scan the bill because it alone
5 is not trustworthy. It could have been — it could be
6 counterfeit. I mean -- and the only — the way to
7 eliminate that possibility is through materials testing
8 or whatever they scan or whatever they mark it with to
9 prove that it is trustworthy.
10 And electronic records are the same way. You
11 can't visibly see tampering. You can’t visibly see lost
12 information due to malfunction.
13 Q. Do you -- do you --
14 A. But you can — with an audit trail, you can
15 determine that those things have or have not happened;
16 and if they have not, then the record — as I will do,
17 when I have that information available, deem that the
18 record is — as it is, is trustworthy.
19 Q. Do you assume that all records are
20 untrustworthy unless you have checked it yourself?
21 A. Well, I mean, unless some expert has checked
22 it and verified that it is trustworthy using the audit
23 trail and the comparison of audit trail data to the
24 records data. I mean, it doesn’t have to be me if some
25 credible expert has done the same thing.
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11
1 products?
2 A. I have not. What I did do was — in that time
3 frame that I was teaching up to about 2015, I actually
4 used an electronic medical record to train students in
5 my classes, and that medical record system was the
6 available VA-computerized patient record system or VistA
7 CPRS, which I used in my teaching, an active EMR; but
8 because it was government property, it was made
9 available in its entirety for people to teach and learn
10 on.
11 Q. Have you ever used — well, strike that.
12 Have you ever been employed in a setting where
13 MEDITECH was used?
14 A. Oh, in the setting where MEDITECH was used? I
15 have not.
16 Q. Okay. Have you ever been a user of the
17 MEDITECH system?
18 A. I have not, but I've been involved in quite a
19 number of cases using it. I’ve read some of its
20 technical documentation and have a very good
21 understanding of its modules and its internals and its
22 audit trails.
23 Q. But you have never been a user of that system
24 to document or to retrieve documents from it, correct?
25 A. Well, I have not. Beyond that point, I
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12
1 designed — got to the point where I was designing
2 electronic medical records systems. EMR systems all are
3 essentially the same internally. Their
4 architecture's — they do the same thing.
5 So I’m — I’ve seen MEDITECH. I’ve seen its
6 records. I've seen its user manuals. I've studied its
7 manuals. It's not very much different than a myriad of
8 other electronic record systems with which I'm very
9 familiar.
10 It’s actually not all that different from an
11 electronic medical record system I actually designed,
12 built, and programmed for a hospital in the Middle East.
13 Q. Okay. Anybody — is there any hospital in the
14 United States that uses the eMAR system that you
15 designed?
16 A. eMAR, I'm not sure that's the right —
17 Q. Electronic medical records —
18 A. Medical --
19 Q. — a medical record system that you -- strike
20 that.
21 Okay. Is there any hospital in the
22 United States that uses a medical record system that you
23 designed?
24 A. There is not. It was made for the birth
25 defects clinic of the King Faisal Specialist Hospital in
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17
1 MEDITECH system and tried to print out an audit trail?
2 A. I have, in a site inspection, asked the
3 operator of the console to do that; so MEDITECH. I've
4 done that for Cerner. I've done that for EPIC. I don't
5 touch the keyboard during an inspection because that
6 would risk harm to the system. I've directed and
7 watched systems administrators or corporate designees
8 operating the console to -- to do that.
9 Q. Okay. And you've done that for MEDITECH?
10 A. I, in the past, had for MEDITECH; all the
11 major manufacturers I've done inspections, asked at some
12 point for audit trails to be produced during the
13 inspection.
14 Q. Okay. Have you yourself produced an audit
15 trail from Centricity Perinatal?
16 A. Yes. Again, I did an inspection of the CPN
17 system at the -- it was a hospital in Montana. It was
18 Bozeman Deaconess, and during that inspection, I
19 actually -- I didn't touch the keyboard, but a person
20 sitting right there — sitting right there who was
21 operating the keyboard, using an archived copy of a
22 patient's records, had them bring up the audit trail and
23 print it out for each section of the — of the flow
24 sheets and the charts.
25 So that included the item history audit trail
Carolyn Louden & Associates, Inc.
EXHIBIT
5/10/2024 9:11 AM Electronically Filed: Hillsborough County/13th Judicial Circuit Page 21
Filing # 140077565 E-Filed 12/09/2021 04:52:34 PM
IN THE CIRCUIT COURT OF THE THIRTEENTH JUDICIAL CIRCUIT,
IN AND FOR HILLSBOROUGH COUNTY, FLORIDA
Todd Copeland, Esquire, as Guardian Ad CASE NO.: 2020-CA-005318
Litem to A.M., ASHLEY ANDREWS,
individually and on behalf of A.M., a minor
Preview
Filing # 198035031 E-Filed 05/10/2024 09:11:54 AM IN THE CIRCUIT COURT OF THE THIRTEENTH JUDICIAL CIRCUIT IN AND FOR HILLSBOROUGH COUNTY, STATE OF FLORIDA CIVIL DIVISION TODD COPELAND, ESQUIRE, as Guardian Ad Litem to A.M., ASHLEY ANDREWS, individually and on behalf of A.M., a minor, Plaintiff, CASE NO.: 20-CA-5318 DIV G v. HCA, INC., GALENCARE INC. D/B/A BRANDON REGIONAL HOSPITAL, Defendants. DEFENDANTS, HCA, INC, and GALENCARE, INC, d/b/a BRANDON REGIONAL HOSPITAL’S MOTION IN LIMINE TO STRIKE PLAINTIFF’S AUDIT TRIAL EXPERT, SCOT SILVERSTEIN, M.D, COME NOW the Defendants, HCA, INC. and GALENCARE, INC. d/b/a BRANDON REGIONAL HOSPITAL, by and through undersigned counsel, and hereby file this Motion in Limine to Strike Plaintiffs Audit Trail Expert, Scot Silverstein, M.D., and in support thereof, state the following: 1. This is a medical malpractice action arising out of the care and treatment of Ashley Andrews and her minor son, A.M., rendered at Brandon Regional Hospital. 2. Plaintiff has disclosed Dr. Scot Silverstein as the audit trail expert expected to offer “a forensic analysis of the electronic medical records in this case, EMR-related medical errors, audit trail analysis, event and timeline reconstruction, medical record alteration, and evidentiary issues.” See Plaintiffs Expert Witness Disclosure filed October 31,2022 attached hereto as “Exhibit A.” 1 5/10/2024 9:11 AM Electronically Filed: Hillsborough County/13th Judicial Circuit Page 1 3. At all material times, Brandon Regional Hospital utilized the Meditech EMR system. The Labor and Delivery department also used Centricity Perinatal in addition to Meditech. 4. On September 1, 2023, Dr. Silverstein was deposed. At his deposition, he offered several opinions regarding the nature, retention, and production of audit trails, including the following: a) The audit trail is part of the medical record; b) Without an audit trail, authentication of a medical record is not possible; and c) BRH deviated from the standard of care in creating, maintaining, and producing audit trails. See Scot Silverstein Deposition taken September 1,2023; page 63, lines 4-17, pages 69-70, lines 25-3; and page 79, lines 19-25 attached hereto as “Composite Exhibit B.” 5. Of note, Dr. Silverstein states that he has never been a Meditech user. He has only seen it used and studied the user manuals. Depo. Silverstein, pages 11-12, lines 23- 9 are attached hereto as Exhibit C. 6. Dr. Silverstein also testified that he has never produced a Centricity Perinatal audit trail but rather, only did an inspection of one such system at a hospital in Montana where he asked an operator to print the audit trail. Depo. Silverstein, page 17, lines 14-24 is attached hereto as Exhibit D. 7. Further, as it pertains to Defendants, the Plaintiffs Amended Complaint (Corrected) contains (1) a claim for breach of a non-delegable duty regarding the regarding the medical nursing care and treatment rendered; (2) a claim for vicarious liability as it relates to the alleged negligence of employees of Brandon Regional Hospital in their 2 5/10/2024 9:11 AM Electronically Filed: Hillsborough County/13th Judicial Circuit Page 2 respective roles as healthcare providers; and (3) a claim for negligence against many of the nurses providing care as it relates to the care and treatment rendered to the Plaintiff, Ashley Andrews. See Plaintiffs Amended Complaint (Corrected) filed attached hereto as “Exhibit E.” 9. Nowhere in the Amended Complaint (Corrected) do allegations of the negligent or fraudulent recordkeeping appear. 10. As they relate to the claims at bar, Dr. Silverstein’s opinions are speculative, not relevant to the material issues, and could serve to mislead a jury into thinking that they are required to render a decision regarding the accuracy or completeness of the medical records. 11. As Dr. Silverstein’s opinions are speculative, improper, unrelated to the issues at hand, and would only serve to confuse and mislead a jury, he should be precluded from presenting these opinions at trial. LEGAL ARGUMENT When considering a Motion in Limine, a Court has the obligation to exclude “evidence which will be highly prejudicial to the moving party and which, if referred to in a question which the court rules inadmissible, would be unlikely to be disregarded by the jury despite an instruction by the court to do so.” Fischman v. Suen, 672 So.2d 644, 645 (Fla. 4th DCA 1996). Section 90.105 of the Florida Evidence Code allows the court to hear and determine the question of admissibility outside the presence or hearing of the jury. Following this inquiry, the Court can then exclude evidence when there is a substantial danger that the probative value will be outweighed by “unfair prejudice, confusion of issues, misleading the jury, or needless presentation of cumulative 3 5/10/2024 9:11 AM Electronically Filed: Hillsborough County/13th Judicial Circuit Page 3 evidence.” §90.403 Fla. Stat. (2021); See also Gutierrez v. Vargas, 239 So.3d 615 (Fla. 2018). Further, when an expert’s opinion is based on speculation, the opinions offered are properly excluded. See M.A. Hajianpour, M.D., P.A. v. Khosrow Maleli, P.A., 932 So.2d 459 (Fla 4th DCA 2006). Finally, “an expert should not be allowed to render an opinion which applies a legal standard to a set of facts.” County of Volusia v. Kemp, 764 So.2d 770, 774 (Fla. 5th DCA 2000). From an evidentiary perspective, “duly authenticated medical records are entirely admissible, notwithstanding the hearsay rule, as substantive evidence of what they contain.” Sorondo v. Batet, 782 So.2d 540 (Fla 3rd DCA 2001). Generally, medical records are admissible through Fla. Stat. §90.803(6) (2021), also known as the business records exception. Fla. Stat. §90.902 (2021) outlines the steps for self-authentication; requiring that any document that falls within the business records exception is deemed authentic when the records custodian or “another qualified person certifies] or declares] that the record : a) was made at or near the time of the occurrence of the matters set forth by, or from information transmitted by, a person having knowledge of those matters; b) was kept in the course of the regularly conducted activity; and c) was made as a regular practice in the course of the regularly conducted activity...” Expert opinions may be based on evidence that is not admissible at trial; however, “the expert can neither bolster his or her opinion with a treatise, article, study, etc., nor serve as the conduit for inadmissible hearsay.” Duss v. Garcia, 80 so.3d 358, 364 (Fla 1st DCA 2012); Linn v. Fossum, 946 So.2d 1032 (Fla. 2006). When opinions are bolstered in this way, hearsay is improperly introduced since, “the opposing party cannot cross-examine and impeach the source of the hearsay." In re S.E., 946 So.2d 620,622 (Fla. 2d DCA 2007). 4 5/10/2024 9:11 AM Electronically Filed: Hillsborough County/13th Judicial Circuit Page 4 Testimony that an expert relied on another expert’s opinions is considered improper bolstering and this kind of inadmissible hearsay should not be presented to a jury. Linn 946 So.2d at 1035. In addition, “any deficiency in recordkeeping does not affect a doctor’s diagnosis and treatment...” Barr v. Dept, of Health, Bd. of Dentistry, 954 So.2d 668 (Fla. 1st DCA 2007). Florida case law is clear that, “there is a significant difference between improperly diagnosing a patient...and properly diagnosing a patient, yet failing to properly document the actions taken on the patient’s chart...” Id. In this context, the contents of a hospital’s records are irrelevant when considering questions of a healthcare provider’s care and treatment rendered, as the two are separate issues, evidenced by the separate statutes that govern each action. See §395.3015, Florida Statutes; Chapter 766, Florida Statutes; Fla. Admin. Code R. 64B8-9.003. Further, allegations of deficient medical recordkeeping are more appropriately addressed through the Department of Health as an administrative issue, and not through a civil medical malpractice claim. See, e.g., Colbert v. Dept, of Health, 890 So.2d 1165 (Fla. 1st DCA 2004). Here, Dr. Silverstein’s opinion that audit trails are part of the medical record is based on a combination of conjecture and reliance on hearsay. The Florida General Records Schedule GS4 for Public Hospitals, Healthcare Facilities, and Medical Providers in effect in 2016 outlines the contents of various records, including patient medical records. Neither of the relevant entries, titled “Patient Medical Record” and “Patient Medical Record: Children Under One Year of Age,” mention audit trails as being a part of the medical record. Any statement that audit trails are recognized as part of a medical record is 5 5/10/2024 9:11 AM Electronically Filed: Hillsborough County/13th Judicial Circuit Page 5 unfounded and baseless, as there is no authority including the Joint Commission, statute, or precedent that endorses such an assertion. Dr. Silverstein states this: Q: I wasn’t asking for your opinion. I’m asking for whether you can point to a law or statute or regulation that say that it (audit trail is (part of a medical record)? A: ASTM E2147 standard, I don’t think, has that exact wording. It implies it. I’m not aware of any statute that specifically says an audit trail is part of a medical record, and in my view, the statute is not needed because to think otherwise would be preposterous. Depo. Silverstein pages 40-41, lines 19-1 attached as Exhibit F. Further, Dr. Silverstein’s admission that the audit trail does not automatically print out with the medical record indicates that the documents are separate and distinct from one another and belies his insistence that they are one and the same. See depo. Silverstein, page 44, lines 10-23 attached as Exhibit G. To introduce the opinion that audit trails are deemed part of the medical record would be to offer a statement that is unsupported by the facts and not independently verifiable. Dr. Silverstein relies on a Products Standard from a private organization that requires membership for access to its materials and states that it develops and publishes voluntary consensus technical standards, www.astm.org Dr. Silverstein’s opinion that audit trails are part of the medical record is unfounded and should therefore be excluded. Next, Dr. Silverstein’s insistence that a medical record cannot be authenticated without an audit trail is both misleading and unfounded. Florida courts have long recognized authentication of medical records through sworn affidavits, certifications, or declarations by the records custodian or other qualified personnel. To state unequivocally that the only way to authenticate a medical record is through the audit trail would confuse and mislead a jury and completely disregard the statutory procedure for authentication. 6 5/10/2024 9:11 AM Electronically Filed: Hillsborough County/13th Judicial Circuit Page 6 Additionally, when Dr. Silverstein asserts that authentication of a medical record is not possible without the audit trail, he is applying the legal standard that governs authentication of documents to the facts of this case, contrary to established precedent. See Kemp, 764 So.2d at 774. In addition, his opinion completely disregards longstanding case law and statutes that spell out what authentication entails. To offer the opinion that medical records cannot be authenticated absent the audit trail is wholly misleading and would confuse a jury and create undue prejudice, and Dr. Silverstein should not be allowed to offer it at trial. Similar to his assertions regarding authentication of medical records and audit trails, Dr. Silverstein’s assertion that BRH “deviated from the standard of care” as it pertains to the retention and production of medical records and audit trails is a statement that would only lead to confusion and prejudice. There are no allegations regarding the recordkeeping in this matter, and to state that BRH “deviated from the standard of care” regarding audit trail preservation and production implies that the issue is one that requires a finding by the jury. Dr. Silverstein’s choice of words will likely confuse the actual claims with his own contentions regarding maintenance of the audit trails, a claim that has not been alleged. If allowed to present this opinion, a jury would likely be misled into believing that the production and retention of audit trails is somehow at issue in this case, and that the jury could then consider the alleged deviations from the standard of care of audit trail retention and production as an additional basis for determining damages. To allow testimony concerning a standard of care that is not at issue and that has not been established would only confuse and mislead a jury and is properly excluded. 7 5/10/2024 9:11 AM Electronically Filed: Hillsborough County/13th Judicial Circuit Page 7 Further, Dr. Silverstein’s contentions that he has never been a user of Meditech and has only interacted with the system while standing over someone else’s shoulders calls into question the foundation of his various opinions. The admitted lack of knowledge of the specifics of the audit trail software in use at BRH in 2016 evidences that allowing his testimony would be more prejudicial than probative as his allegations are highly inflammatory, would introduce unfounded bias, and would likely serve to confuse and mislead a jury. Expert testimony is meant to assist the factfinder in resolving a disputed issue, not create factual issues where there were none before. Dr. Silverstein’s opinions regarding the classification, retention, and production of audit trails are confusing, misleading, and unfounded. To state that audit trails are considered part of a medical record with nothing more than a Product Standard from a private members only organization as a basis for the statement is improper and should not be offered to a jury. Dr. Silverstein’s contention that without the audit trails, authentication of a medical record is impossible is not only misleading and prejudicial, but patently false and should not be offered to a jury. The remaining opinions insinuate and outright state that the hospital deliberately altered and/or failed to produce audit trails, which he deems as medical records. These statements are extremely inflammatory and would introduce severe prejudice to a jury. Finally, Dr. Silverstein’s assertion that there were deviations in the standard of care as it pertains to retention and production of medical records improperly introduces claims not alleged and would serve to confuse the jury and create additional undue prejudice, and should not be offered at trial. 8 5/10/2024 9:11 AM Electronically Filed: Hillsborough County/13th Judicial Circuit Page 8 WHEREFORE, Defendants respectfully request the entry of an Order by this Honorable Court enter an order granting the foregoing Motion and any further relief deemed just and appropriate under the circumstances. CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of this document was forwarded via e-mail on May , 2024 to Maria D. Tejedor, Esq., and Carlos Diez-Arguelles, Esq., Diez-Arguelles/Tejedor, 505 N. Mills Avenue, Orlando, FL 32803, mail@theorlandolawyers.com, leah@theorlandolawyers.com; John D. Emmanuel, Esq., Buchanan Ingersoll & Rooney P.C., 401 E. Jackson Street, Suite 2400, Tampa, FL 33602, iohn.emmanuel@bipc.com, Sabrina.storno@bipc.com; and Louis J. La Cava, Esq., La Cava Jacobson & Goodis, P.A., 501 E. Kennedy Boulevard, Suite 1250, Tampa, FL 33602, llacava@liqleqal.com, kharris@liolegal.com. /i . TRACY^T FAlyKOWIT^dESa Florida Bar No. 0127396^ BANKER LOPEZ GASSLER P.A. E-Mail: service-tfalkowitz@bankerlopez.com service-rhermida@bankerlopez.com 501 East Kennedy Boulevard, Suite 1700 Tampa, Florida 33602 Telephone: (813)221-1500 Facsimile: (813) 222-3066 Counsel for HCA, Inc. and Galencare, Inc. d/b/a Brandon Regional Hospital 9 5/10/2024 9:11 AM Electronically Filed: Hillsborough County/13th Judicial Circuit Page 9 Filing # 160310697 E-Filed 10/31/2022 02:54:16 PM IN THE CIRCUIT COURT OF THE THIRTEENTH JUDICIAL CIRCUIT, IN AND FOR HILLSBOROUGH COUNTY, FLORIDA CASE NO.: 2020-CA-005318 Todd Copeland, Esquire, as Guardian Ad Litem to A.M., ASHLEY ANDREWS, individually and on behalf of A.M., a minor Plaintiff, v. HCA, INC., GALENCARE INC. D/B/A BRANDON REGIONAL HOSPITAL, Defendants. __________________________________ / PLAINTIFF’S DISCLOSURE OF EXPERT WITNESSES COMES NOW the Plaintiff, ASHLEY ANDREWS, individually, and on behalf of ASHTON McFADDEN, a minor, by and through undersigned counsel, and hereby files this Expert Witness Disclosure pursuant to the Court's Case Management Order: 1. Djenane Adams, 98 West Yaphank Rd. Coram, NY 11727 Specialty: Nursing Nurse Adams is expected to testify regarding how the defendant hospital, including its nurses and staff, deviated from the prevailing professional standard or care. Nurse Adams will also testify as to how such deviations were the cause of the injuries and damages sustained by A.M. Nurse Adams is expected to testify based on her review of the medical records and depositions in this case, along with her education, knowledge, training and experience as a nurse and may be called to rebut any defenses presented by the Defendants and/or their expert witnesses. Djenane Adams, RN’s CV will be provided under a separate cover. 2. Martin Gubernick, M.D. 131 East 65th Street New York, New York 10065 Specialty: Obstetrics and Gynecology I EXHIBIT 5/10/2024 9:11 AM Electronically Filed: Hillsborough County/13th Judicial Circuit Page 10 Dr. Martin Gubernick has reviewed medical records relevant to this case as well as deposition transcripts and policies and procedures. He will testify how the defendant hospital, including its doctors, nurses, and staff, deviated from the prevailing professional standard of care. Dr. Gubernick will also testify as to how such deviations resulted in the injuries to A.M. Dr. Gubernick is expected to testify based on his education, knowledge, training and experience as an OB/GYN, his review of records, and will be called to rebut any defenses presented by Defendants. Dr. Gubernick's CV will be provided under a separate cover. 3. Frederick A. Gonzalez, M.D. 16 Highland Ave Tarrytown, NY 10591 Specialty: Maternal-Fetal Medicine Dr. Gonzalez is expected to testify to issues of standard of care and causation. Dr. Gonzalez will testify how the defendant hospital, including its perinatal physicians, nurses, residents, staff, and other healthcare providers deviated from the standard of care and that such deviations caused A.M.’s injuries. Dr. Gonzalez has reviewed the medical records, depositions transcripts, and other pertinent documents in this case. Dr. Gonzalez is expected to testify based on his education, knowledge, training and experience as a neonatologist and will be called to rebut any defenses presented by the defendants. Dr. Gonzalez’s CV is being provided under a separate cover. 4. Anthony Rodrigues, MD 105 Stanford Dr. Westwood, MA 02090 Specialty: Pediatric Neurology Dr. Rodrigues will testify as to causation and damages. Dr. Rodrigues will testify that the deviations from the prevailing professional standard of care by the hospital, and its nurses and physicians caused of the injuries to A.M. Dr. Rodrigues has reviewed the medical records of A.M. and conducted an evaluation of A.M. He will opine regarding his evaluation of A.M. his injuries, and impact on A.M. as well as future prognosis, care, needs, and life expectancy. He will also be called to rebut defenses in the case. Dr. Rodrigues’ CV will be provided under a separate cover. 5. Predrag Bulic, M.D. Chief Medical Examiner, District 23 4501 Avenue A St. Augustine, FL 32095 Specialty: Pathology Dr. Bulic will testify regarding findings on the placental pathology slides, causation, and the timing of the injuries. Dr. Bulic has reviewed all of the medical records of Ashley Andrews and A.M. the pathology records, and numerous depositions in this case, and will 5/10/2024 9:11 AM Electronically Filed: Hillsborough County/13th Judicial Circuit Page 11 testify based upon his review of the same, as well as his education, knowledge, training and experience as a forensic pathologist. He will also be called to rebut any defenses presented by the defendants. Dr. Bulic’s CV is being provided under a separate cover. Plaintiff just became aware this expert passed away and reserves the right to amend this response. 6. Scot Silverstein, MD 2615 Wister Court Lansdale, PA 19446 Specialty: Healthcare IT/Audit Trail/EMR Dr. Silverstein will provide a forensic analysis of the medical records in this case regarding EMR-related medical errors, audit trail analysis, event and timeline reconstruction, medical record alteration, and evidentiary issues. Dr. Silverstein will testify as to all medical records systems available well as standards of care required of hospital for preservation, management, storage and production of medical records. Dr. Silverstein has reviewed the medical records, audit trail discovery, and depositions in this case, and will testify based upon his review as well as his education, knowledge, training and experience. He will also be called to rebut any defenses presented by the defendants. Dr. Silverstein’s CV will be provided under a separate cover. 7. Joyce Eastridge, MBA Joyce Eastridge Economist, Inc. 600 S. Magnolia Ave, Ste 100 Tampa, FL 33606 Specialty: Economist Ms. Eastridge is anticipated to testify about the economic costs and losses in the past and future experienced by the plaintiffs as a result of A.M.’s injuries that were caused by defendants’ negligence. Ms. Eastridge will also opine as to the future wage losses of A.M. and his loss of ability to earn income. Ms. Eastridge’s calculations will be based upon the continuation of care plan, reflecting what future medical, nursing, rehabilitative, and other services, equipment, and accommodations will be necessary for the remainder of A.M.’s life as a result of his injury, infirmity and disability. Ms. Eastridge’s CV will be provided under a separate cover. 8. Jon Burroughs, MD, MBA, FACHE, FAAPL President ACEO, The Burroughs Healthcare Consulting Network, Inc. 48 Forest Ledge Road P.O. Box 540 Glen, NH 03838 Specialty Hospital Administration 5/10/2024 9:11 AM Electronically Filed: Hillsborough County/13th Judicial Circuit Page 12 Dr. Burroughs will testify regarding standard of care, credentialing, and non-delegable duty of the hospital, hospital staff and administration. Dr. Burroughs will opine that the hospital and it agents, staff, and employees deviated from the prevailing professional standard of care for administrative hospital credentialing when they negligently credentialed the physicians involved in this case with medical staff privileges to treat patients at the hospital. Dr. Burroughs will further opine that due to the hospital’s negligent credentialing the Plaintiffs sustained damages. Dr. Burroughs has reviewed the medical records, audit trail discovery, website data and depositions in this case, and will testify based upon his review as well as his education, knowledge, training and experience. He will also be called to rebut any defenses presented by the defendants. Dr. Burroughs’ CV will be provided under a separate cover. 9. Sean Mahan, MD 5840 Red Bug Lake Road, Suite 185 Winter Springs, FL 32708 Specialty: Diagnostic Radiology Dr. Mahan will testify regarding the timing and cause of A.M’s brain injury and the findings on the brain studies. Dr. Mahan will testify regarding the nature and extent of the injuries, and how they relate to the child’s current physical condition. Dr. Mahan has reviewed all of the records in this case as well as the radiology studies taken of A.M. and will testify based on his review of the same, as well as his education, experience and training. Dr. Mahan is also a treating physician who has interpreted A.M.’s MRI. Dr. Mahan may also be called to rebut defenses presented by the Defendants. Dr. Mahan’s CV will be provided under a separate cover. 10. Ricardo Lastra, MD 5841 S. Maryland Ave. MC6101,Rm. J-607A Chicago, IL 60637 Specialty: Pathology Dr. Lastra will testify regarding findings on the placental pathology slides, causation, and the timing of the injuries. Dr. Lastra has reviewed all of the medical records of Ashley Andrews and A.M., the pathology records, and numerous depositions in this case, and will testify based upon his review of the same, as well as his education, knowledge, training and experience as a forensic pathologist. He will also be called to rebut any defenses presented by the defendants. Dr. Lastra’s CV will be provided under a separate cover. 11. Paul Doering, M.S. 3723 SW 2oth Street Gainesville, FL 32608 Specialty: Pharmacology 5/10/2024 9:11 AM Electronically Filed: Hillsborough County/13th Judicial Circuit Page 13 Paul Doering is an Emeritus Distinguished Professor in the University of Florida’s Department of Pharmacotherapy. He also has several years of experience as a licensed pharmacist in both a community and hospital setting. Mr. Doering will be called to testify regarding standard of care, causation and damages. It is anticipated that Mr. Doering will testify regarding the ordering and administration of medication for Ashley Andrews and any and all drug interactions for Ashley Andrews and A.M. while in utero and the impact on A.M. Mr. Doering’s testimony will be based upon his education, training and experience in pharmacology and as a pharmacist. Mr. Doering's CV be provided under a separate cover. 12. Any and all experts retained and/or disclosed by Defendants. 13. Any and all treating physicians of D. B. B., JR., including Robert Eilers, MD 3816 Pennsylvania Avenue Plant City, FL 33566 Specialty/Treating Physician: Physical Medicine & Rehabilitation Dr. Eilers is not a retained expert. Rather, Dr. Eilers is A.M.’s treating physical medicine and rehabilitation physician. It is anticipated that he will testify regarding causation and damages, including life expectancy and rehabilitation potential. Dr. Eilers will also testify as to the reasons a life care plan will be necessary for the remainder of A.M.’s life. The life care plan will reflect future medical, nursing, and rehabilitation services; and the life care plan will provide a break-down of equipment and accommodations deemed necessary for the remainder of A.M.’s life as a result of his infirmity and disability. Dr. Eilers is expected to testify based on his education, knowledge, training and experience, as well as his review of the applicable medical records and deposition transcripts. Dr. Eilers may also be called to rebut any defenses presented by the defendants or their experts and his opinions will be stated to a reasonable degree of medical probability. AS TO ALL EXPERTS The substance of the facts and opinions about which the experts are expected to testify will be based on their examination of the medical records, nurses’ notes, and other documents and materials, and the application of their experience and training and applicable medical practice guidelines to those materials, physical findings and facts. The summary of the grounds upon which the experts’ opinions will be based upon is their training and experience, the review of the Plaintiffs medical records, and any additional relevant documentation, and their consideration of the appropriate medical guidelines. The above are the experts retained by the Plaintiff in this case. The Plaintiff retains the right to call as experts any such treaters. Plaintiffalso reserves the right to supplement this list, as discovery is ongoing. 5/10/2024 9:11 AM Electronically Filed: Hillsborough County/13th Judicial Circuit Page 14 CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the forgoing has been electronically filed with the Clerk of the Court by using the Florida Courts E-Filing Portal and furnished via electronic mail to all counsel on the service list below, this 31st day of October, 2022. /s/ Maria D. Tejedor Maria D. Tejedor FBN: 95834 DIEZ-ARGUELLES & TEJEDOR 505 North Mills Avenue Orlando, Florida 32803 Telephone: (407) 705-2880 Attorney for Plaintiffs mail@theorlandolawyers .com leah@theorlandolawyers.com SERVICE LIST Tracy M. Falkowitz, Esquire Banker, Lopez, Gassier, P.A. 501 East Kennedy Boulevard, Suite 1700 Tampa, Florida 33602 service-tfalkowitz@bankerlopez.com lburley@bankerlopez.com Counsel for HCA, INC. and GALENCARE INC. D/B/A BRANDON REGIONAL HOSPITAL, 5/10/2024 9:11 AM Electronically Filed: Hillsborough County/13th Judicial Circuit Page 15 In The Matter Of: Todd Copeland, Esquire, et al. v. HCA, Inc., et al. Scot Mark Silverstein, M.D. September 1, 2023 Carolyn Louden & Associates, Inc. (813) 222-4545 5/10/2024 9:11 AM Electronically Filed: Hillsborough County/13th Judicial Circuit Page 16 63 1 so that's why there may be caps in people's knowledge of 2 it. 3 Q. Okay. Fair enough. All right. 4 Then let's talk about your opinions on your 5 opinion pages, and we will — and I understand that one 6 of your opinions is that it's gross negligence to not be 7 able to — or gross deviation from the standard of care 8 to not have those audit trails, correct? 9 A. Well, what I'm saying is it's a gross 10 deviation by not producing audit trails when asked. 11 Q. Okay. 12 A. I don't — it's just, you know — to maintain, 13 store, and produce records, the failure to produce is a 14 deviation from the — what kind of a reasonable medical 15 records director or medical records department would do 16 under similar circumstances, especially in the face of 17 litigation. That's really what -- 18 Q. So wouldn't whether a production is a 19 deviation or not be up to a judge? 20 A. It’s a deviation from the standard of care of 21 records production — 22 Q. Okay. 23 A. — by not producing them. 24 I'm using the word "gross." That might be up 25 to a judge. Carolyn Louden & Associates, Inc. 5/10/2024 9:11 AM Electronically Filed: Hillsborough County/13th Judicial Circuit Page 17 79 1 somebody or yourself try to spend, like, a $50 bill or a 2 hundred dollar bill? And you see what happens. The 3 person receiving the money will take out a marker, some 4 sort of special marker or scan the bill because it alone 5 is not trustworthy. It could have been — it could be 6 counterfeit. I mean -- and the only — the way to 7 eliminate that possibility is through materials testing 8 or whatever they scan or whatever they mark it with to 9 prove that it is trustworthy. 10 And electronic records are the same way. You 11 can't visibly see tampering. You can’t visibly see lost 12 information due to malfunction. 13 Q. Do you -- do you -- 14 A. But you can — with an audit trail, you can 15 determine that those things have or have not happened; 16 and if they have not, then the record — as I will do, 17 when I have that information available, deem that the 18 record is — as it is, is trustworthy. 19 Q. Do you assume that all records are 20 untrustworthy unless you have checked it yourself? 21 A. Well, I mean, unless some expert has checked 22 it and verified that it is trustworthy using the audit 23 trail and the comparison of audit trail data to the 24 records data. I mean, it doesn’t have to be me if some 25 credible expert has done the same thing. Carolyn Louden & Associates, Inc. 5/10/2024 9:11 AM Electronically Filed: Hillsborough County/13th Judicial Circuit Page 18 11 1 products? 2 A. I have not. What I did do was — in that time 3 frame that I was teaching up to about 2015, I actually 4 used an electronic medical record to train students in 5 my classes, and that medical record system was the 6 available VA-computerized patient record system or VistA 7 CPRS, which I used in my teaching, an active EMR; but 8 because it was government property, it was made 9 available in its entirety for people to teach and learn 10 on. 11 Q. Have you ever used — well, strike that. 12 Have you ever been employed in a setting where 13 MEDITECH was used? 14 A. Oh, in the setting where MEDITECH was used? I 15 have not. 16 Q. Okay. Have you ever been a user of the 17 MEDITECH system? 18 A. I have not, but I've been involved in quite a 19 number of cases using it. I’ve read some of its 20 technical documentation and have a very good 21 understanding of its modules and its internals and its 22 audit trails. 23 Q. But you have never been a user of that system 24 to document or to retrieve documents from it, correct? 25 A. Well, I have not. Beyond that point, I Carolyn Louden & Associates, Inc. 5/10/2024 9:11 AM Electronically Filed: Hillsborough County/13th Judicial Circuit Page 19 12 1 designed — got to the point where I was designing 2 electronic medical records systems. EMR systems all are 3 essentially the same internally. Their 4 architecture's — they do the same thing. 5 So I’m — I’ve seen MEDITECH. I’ve seen its 6 records. I've seen its user manuals. I've studied its 7 manuals. It's not very much different than a myriad of 8 other electronic record systems with which I'm very 9 familiar. 10 It’s actually not all that different from an 11 electronic medical record system I actually designed, 12 built, and programmed for a hospital in the Middle East. 13 Q. Okay. Anybody — is there any hospital in the 14 United States that uses the eMAR system that you 15 designed? 16 A. eMAR, I'm not sure that's the right — 17 Q. Electronic medical records — 18 A. Medical -- 19 Q. — a medical record system that you -- strike 20 that. 21 Okay. Is there any hospital in the 22 United States that uses a medical record system that you 23 designed? 24 A. There is not. It was made for the birth 25 defects clinic of the King Faisal Specialist Hospital in Carolyn Louden & Associates, Inc. 5/10/2024 9:11 AM Electronically Filed: Hillsborough County/13th Judicial Circuit Page 20 17 1 MEDITECH system and tried to print out an audit trail? 2 A. I have, in a site inspection, asked the 3 operator of the console to do that; so MEDITECH. I've 4 done that for Cerner. I've done that for EPIC. I don't 5 touch the keyboard during an inspection because that 6 would risk harm to the system. I've directed and 7 watched systems administrators or corporate designees 8 operating the console to -- to do that. 9 Q. Okay. And you've done that for MEDITECH? 10 A. I, in the past, had for MEDITECH; all the 11 major manufacturers I've done inspections, asked at some 12 point for audit trails to be produced during the 13 inspection. 14 Q. Okay. Have you yourself produced an audit 15 trail from Centricity Perinatal? 16 A. Yes. Again, I did an inspection of the CPN 17 system at the -- it was a hospital in Montana. It was 18 Bozeman Deaconess, and during that inspection, I 19 actually -- I didn't touch the keyboard, but a person 20 sitting right there — sitting right there who was 21 operating the keyboard, using an archived copy of a 22 patient's records, had them bring up the audit trail and 23 print it out for each section of the — of the flow 24 sheets and the charts. 25 So that included the item history audit trail Carolyn Louden & Associates, Inc. EXHIBIT 5/10/2024 9:11 AM Electronically Filed: Hillsborough County/13th Judicial Circuit Page 21 Filing # 140077565 E-Filed 12/09/2021 04:52:34 PM IN THE CIRCUIT COURT OF THE THIRTEENTH JUDICIAL CIRCUIT, IN AND FOR HILLSBOROUGH COUNTY, FLORIDA Todd Copeland, Esquire, as Guardian Ad CASE NO.: 2020-CA-005318 Litem to A.M., ASHLEY ANDREWS, individually and on behalf of A.M., a minor