Filing # 166325850 E-Filed 02/07/2023 04:13:07 PM

IN THE CIRCUIT COURT OF THE FOURTEENTH JUDICIAL CIRCUIT

IN AND FOR BAY COUNTY, FLORIDA

CASE NO:

MATT KIRCHGESSNER,
Individually, and as Personal
Representative of the Estates of
BAYLOR KIRCHGESSNER and
ADDIE KIRCHGESSNER, his
deceased minor children, and on behalf
of statutory survivors, and LAUREN
KIRCHGESSNER,

Plaintiffs,

vs.

TIM M. SMITH, M.D. and BILLY’s

STEAMER & OYSTER BAR, INC.,
and SCOTT DONALDSON,

Defendants.

COMPLAINT

COME NOW the Plaintiffs, MATT KIRCHGESSNER, Individually, and as Personal

Representative of the Estates of BAYLOR KIRCHGESSNER and ADDIE KIRCHGESSNER,

his deceased minor children, and on behalf of all statutory survivors, and LAUREN

KIRCHGESSNER, by and through their undersigned counsel, and hereby sue TIM M. SMITH,

M.D., BILLY’s STEAMER & OYSTER BAR, INC., and SCOTT DONALDSON, and alleges

as follows:

JURISDICTION, PARTIES, VENUE

1. This is a medical malpractice/wrongful death action for damages against

Defendant, TIM M. SMITH, M.D. that exceeds the sum of FIFTY THOUSAND DOLLARS

1
($50,000.00), exclusive of costs, interest and attorneys’ fees (The estimated value of Plaintiff’s

claim is in excess of the minimum jurisdictional threshold required by this Court). Accordingly,

Plaintiff has entered “$50,001” in the civil cover sheet for the “estimated amount of the claim” as

required in the preamble to the civil cover sheet for jurisdictional purposes only (the Florida

Supreme Court has ordered that the estimated “amount of claim” be set forth in the civil cover

sheet for data collection and clerical purposes only). The actual value of Plaintiff’s claim will be

determined by a fair and just jury in accordance with Article 1, Section 21, Fla. Const.

2. This is also a declaratory action as to Defendant, SCOTT DONALDSON.

3. This is also an action pursuant to Florida Statutes §768.125, commonly known as

the Florida DRAM Shop Law against Defendant, BILLY’s STEAMER & OYSTER BAR, INC.

4. This action is being brought pursuant to Florida Statutes §766.102, et seq., Florida

Statutes §768.125, the Florida Wrongful Death Act, the Florida Administrative Code, and the

Florida Rules of Civil Procedure, including Rule 1.650.

5. At all times material to this action, Plaintiffs, MATT KIRCHGESSNER and

LAUREN KIRCHGESSNER (hereinafter referred to as “Mr. & Mrs. KIRCHGESSNER,

respectively), were the parents and natural guardians of their minor children, BAYLOR

KIRCHGESSNER and ADDIE KIRCHGESSNER (hereinafter referred to as “BAYLOR” and

“ADDIE” respectively).

6. At all times material to this action, Plaintiff, MATT KIRCHGESSNER was and is

the duly appointed Personal Representative of the Estate of BAYLOR KIRCHGESSNER and

ADDIE KIRCHGESSNER, his deceased minor children.

2
 7. At all times material to this action, Mr. & Mrs. KIRCHGESSNER and BAYLOR

and ADDIE were residents of Louisville, Kentucky. On or about December 4, 2020, Plaintiffs

visited Bay County, Florida for vacation.

8. At all times material to the action, TIM M. SMITH, M.D. (hereinafter “Dr.

SMITH”) was and is a physician licensed to practice medicine in the state of Florida and was

engaged in the practice of Family Medicine.

9. At all times material to this action, Defendant, Dr. SMITH provided care and

treatment to SCOTT DONALDSON at 100 Doctors Drive, Panama City, Florida 32405.

10. At all times material to this action, Defendant, BILLY’s STEAMER & OYSTER.

INC. (hereinafter “BILLYS”) was and is a Florida for-profit business, engaged in the business of

serving food and beverages, including alcoholic beverages, and with principal place of business

at 3000 Thomas Drive, Panama City, Florida 32408.

11. At all times material hereto, Denise Donaldson and SCOTT DONALDSON were

the owners, operators, employees, agents and/or servants of BILLYS.

12. In addition, BILLYS employed personnel to assist in serving food and beverages,

including alcohol beverages.

13. On information and belief, SCOTT DONALDSON was a frequent patron of

BILLYS, and frequently consumed alcoholic beverages on the premises.

14. Consumption of alcohol beverages was not a part of SCOTT DONALDSON’s

duties as an owner, operator, employee, agent and/or servant of BILLYS.

15. At all times material hereto, SCOTT DONALDSON (hereinafter “Mr.

DONALDSON”), was and is a patient of Dr. SMITH.

3
 16. Venue is proper as the alleged negligence occurred in Bay County, Florida, and as

all Defendants either reside or do business in Bay County, Florida.

STATUTORY COMPLIANCE – MEDICAL MALPRACTICE

17. Pursuant to §766.104, Fla. Stat., the undersigned counsel certifies that a

reasonable investigation has been conducted as to the matters alleged herein, and it has been

determined that there are reasonable grounds for a good faith belief that there was negligence in

the care and treatment of Mr. DONALDSON by the Defendant, Dr. SMITH and that grounds

exist for the filing of this action against Defendants.

18. Certain conditions precedent to the filing of this action, including compliance

with §§ 766.106 and 766.203, Fla. Stat., have been performed by Plaintiffs. A Notice of Intent to

Initiate Litigation, along with the corroborating Affidavits of appropriate health care experts, was

served by certified mail, return receipt requested, upon Defendant prior to the filing of this

Complaint.

19. While the undersigned was able to procure a signed medical records release and

authorization from Mr. DONALDSON, and while such authorization was turned over to the

prospective Defendant, Mr. DONALDON has refused to sign and provide the authorization

designated to accompany the Notice of Intent pursuant to §766.1065, Fla. Stat.

20. This action has been brought within the applicable statute of limitations including

all extensions and tolling provisions, as BAYLOR and ADDIE passed away on December 4,

2020.

VICARIOUS LIABILITY

Employment

21. At all times material hereto, Dr. SMITH and was self-employed.

4
 22. At all times material hereto, the persons serving alcoholic beverages to SCOTT

DONALDSON at BILLYS were the owners, operators, employees, agents and/or servants of

BILLYS.

23. At all times material hereto, including at all times that alcohol was being served to

SCOTT DONALDSON, the employees, agents and or/servants of BILLYS, including but not

limited to SCOTT DONALDSON and Denise Donaldson, were acting within the course and

scope of their employment and/or agency relationship with BILLYS.

FACTS COMMON TO ALL CAUSES OF ACTION

24. On December 4, 2020, BAYLOR and ADDIE were playing miniature golf at the

Coconut Creek Family Fun Park in Panama City Beach, Florida with their parents.

25. At that same time, Mr. DONALDSON was traveling west on US Highway 98

Alternate in a 2007 Chevrolet Silverado.

26. At approximately 3:19 p.m., Mr. DONALDSON’s vehicle suddenly veered south,

crossed the eastbound travel lanes, struck a curb and a wooden fence, and then entered the

Coconut Creek Family Fun Park. The front of Mr. DONALDSON’s vehicle directly struck

BAYLOR and ADDIE, and then continued traveling through the property, crossing a body

before coming to a rest.

27. BAYLOR was pronounced dead at the scene. He was four (4) years old at the

time of his death.

28. ADDIE was pronounced dead enroute to the hospital. She was six (6) years old at

the time of her death.

5
 29. It was later determined that Mr. DONALDSON had suffered a seizure while

driving his car, and that the seizure caused him to leave the road and enter the Coconut Creek

Family Fun Park.

SCOTT DONALDSON and DR. SMITH

30. Mr. DONALDSON has a long documented history of significant alcohol abuse

which has resulted in his suffering a seizure disorder, withdrawal seizures, tremors, frequent

falls/injuries, loss of consciousness and several motor vehicle accidents.

31. At all times material to this action, Dr. SMITH was and is Mr. DONALDSON’s

longtime family physician. By October 1996, the earliest chart entry in Dr. SMITH’s records,

Mr. DONALDSON was already an existing patient.

32. At some point between 1996 and 2000, Mr. DONALDSON developed a seizure

disorder, which was most likely a result of his excessive alcohol consumption.

33. In January 2000, Mr. DONALDSON presented to Dr. SMITH’s office following

a motor vehicle accident wherein he slammed on his brakes and slid into an intersection striking

another vehicle. Dr. SMITH made note at that time that Mr. DONALDSON was on Depakote

48mg for a seizure disorder. In June 2000, Dr. SMITH noted that Mr. DONALDSON was on

1500 mg of Depakote daily for seizure disorder.

34. In 2002, Dr. SMITH noted that Mr. DONALDSON was complaining of shaking

and tremors in his hands. The records indicate that Dr. SMITH was routinely ordering refills for

Mr. DONALDSON’s Depakote prescription.

35. On June 12, 2007, Mr. DONALDSON presented to Dr. SMITH’s office following

a fall which injured his left shoulder. During this visit, Dr. SMITH noted that Mr.

DONALDSON had recently been to his neurologist, and that there was concern regarding his

6
drinking alcohol. Two (2) weeks later, Mr. DONALDSON presented to Dr. SMITH’s office

following an automobile accident. Dr. SMITH’s records claim that Mr. DONALDSON was not

at fault for the accident.

36. By November 2009, Mr. DONALDSON was on three anti-seizure medications.

37. On February 24, 2011, Dr. SMITH admitted Mr. DONALDSON to Gulf Coast

Medical Center after he presented to the emergency room following suffering a seizure on his

way to his neurology appointment. In addition to the seizure, Mr. DONALDSON was diagnosed

with a severe electrolyte imbalance, hyponatremia, hypokalemia and hypomagnesemia. As part

of the History and Physical, Dr. SMITH noted as follows:

38. While Dr. SMITH made scant mention of Mr. DONALDSON’s alcohol use, the

consulting cardiologist, Dr. Hari Baddigam, diagnosed Mr. DONALDSON with an abnormal

electrolyte imbalance secondary to drinking, alcoholism and alcohol abuse.

39. On March 4, 2011, a couple of days following discharge from the hospital, Mr.

DONALDSON followed-up with Dr. SMITH in his outpatient office. At that visit, Dr. SMITH

summarized Mr. DONALDSON’s recent hospitalization as an admission for right sided

pneumonia and atrial fibrillation. The records make no reference to the electrolyte imbalances or

the diagnosis of alcoholism/alcohol abuse.

40. Mr. DONALDSON presented again to Gulf Coast Medical Center on March 12,

2011 and was admitted by Dr. SMITH. As part of the History and Physical, Dr. SMITH noted

that Mr. DONALDSON’s family had reported that he had been drinking heavily. During this

admission, a consulting physician, Dr. William McKenzie, diagnosed Mr. DONALDSON with

electrolyte imbalance secondary to alcoholism.

7
 41. On October 12, 2011, Mr. DONALDSON once more presented to Gulf Coast

Medical Center, and once more was admitted by Dr. SMITH. During the History and Physical,

Dr. SMITH noted that Mr. DONALDSON “has been drinking alcohol trying to calm himself

down and this has only added to his agitation.” Despite that reported history, Dr. SMITH did not

make any alcohol-related diagnoses. In contrast, the consulting cardiologist, Dr. Michael

Morrow, charted a history of heavy alcohol intake with a reported history of consuming six (6)

alcoholic beverages a day. While Mr. DONALDSON was discharged by Dr. SMITH the next

day, the latter noted that Mr. DONALDSON “had been drinking a fair amount of alcohol under

lot of stress.” At a follow-up visit two (2) weeks later, Dr. SMITH noted that Mr. DONALDSON

was only drinking an occasional glass of wine.

42. On November 13, 2011, Mr. DONALDSON was involved in a serious motor

vehicle accident wherein he fractured several vertebrae in his neck. Mr. DONALDSON

presented to Dr. SMITH’s office on December 27, 2011, for assessment and evaluation. Dr.

SMITH postulated that Mr. DONALDSON’s accident was likely due to his medications or a

seizure. The record also mentions that Mr. DONALDSON was taken off Ambien due to mental

confusion concerns, however Dr. SMITH goes on to state that he believes that this all due to an

electrolyte imbalance.

43. In June 2012, Mr. DONALDSON reported to Dr. SMITH that he had been put on

a new anti-seizure medication, Lamictal.

44. On June 1, 2014, Mr. DONALDSON was brought to Gulf Coast Medical Center’s

Emergency Room by his mother and sister and with reports that the was “out of his mind” and

acting strange. He was once again admitted by Dr. SMITH. Dr. SMITH noted within the

History and Physical that Mr. DONALDSON “continued to have some alcoholic beverages from

8
time to time,” however commented that his sodium was not as low as it had been in the past, and

that his blood alcohol level was not elevated. Dr. SMITH once again attributed Mr.

DONALDSON’s presentation and issues as secondary to an electrolyte imbalance. As has been

the pattern thus far, the consulting physicians’ evaluations painted a much grimmer picture with

regards to Mr. DONALDSON’s presentation. Cardiology consultant, Dr. Maher Ayoubi, noted

that Mr. DONALDSON was found in his shower with his clothes on, confused, and unable to

answer any questions, and consulting neurologist, Dr. Muhammad Zaman Khan, diagnosed

chronic alcoholism. A June 8, 2014, consultation by Dr. William McKenzie noted that Mr.

DONALDSON was admitted for delirium tremors and alcohol withdrawal. Dr. McKenzie also

noted that Mr. DONALDSON likely had a withdrawal seizure while hospitalized. Dr. SMITH

noted that Mr. DONALDSON suffered severe withdrawals during his hospital admission, and

that he almost coded.

45. Mr. DONALDSON presented to Dr. SMITH’s office for a post-discharge office

visit on June 13, 2014. Dr. SMITH noted within the HPI that Mr. DONALDSON was again

admitted to the hospital for an “extreme electrolyte imbalance” which he attributed to Mr.

DONALDSON being put on Trileptal. While the record makes passive mention of

“withdrawals” there is no mention of seizures, withdrawal, alcohol use, and/or withdrawal

seizures.

46. On November 3, 2014, Mr. DONALDSON presented to Gulf Coast Medical

Center following a fall at home. Dr. SMITH was once again the admitting and attending

physician. As part of the admitting History and Physical, Dr. SMITH noted that Mr.

DONALDSON had a history of a seizure disorder, hypertension, prior motor vehicle accidents,

and recurrent a- fibrillation. Dr. SMITH made mention that Mr. DONALDSON has had

9
problems with alcohol requiring hospitalization. Dr. SMITH also made mention that Mr.

DONALDSON experienced withdrawal seizures during his past June hospitalization, and that he

was discharged with a prescription for Campral. Dr. SMITH reported within the H&P that Mr.

DONALDSON “has not been drinking any alcohol” and that despite a “past history of alcohol

abuse” he was not currently drinking.

47. On January 13, 2015, Mr. DONALDSON reported to Dr. SMITH’s office with

complaints of feeling terrible and having difficulty sleeping. Mr. DONALDSON’s sodium was

noted to be low, and Dr. SMITH noted that Mr. DONALDSON was reporting the return of

tremors. There is no indication that Mr. DONALDSON was asked about his alcohol

consumption at this visit.

48. On May 4, 2015, Mr. DONALDSON was admitted to Gulf Coast Medical Center

due to seizures. He was once again admitted by Dr. SMITH. During consultation with Dr. Amir

Haghighat (interventional cardiology), it was reported that Mr. DONALDSON had been

drinking the day prior to having seizures, and that he had forgotten to take some of his

medications prompting him to present to hospital due to seizure activity. Mr. DONALDSON

reported to Dr. Haghighat that he was under a lot of stress and needed to get thing straightened

out. Mr. DONALDSON’s Alcohol Level was 19 during this hospitalization. Of significance, in

discharging Mr. DONALDSON, Dr. SMITH noted that Mr. DONALDSON forgot to take his

seizure medications, was drinking, and as a result suffered two (2) grand mal seizures. Dr.

SMITH also noted that he instructed Mr. DONALDSON to stop drinking alcohol, however, the

record in unclear if that was meant to be temporary or permanent.

49. Mr. DONALDSON presented to Dr. SMITH’s office on May 22, 2015, for

follow-up post- discharge. While Dr. DONALDSON made reference again to Mr.

10
DONALDSON’s a-fib and electrolyte imbalance, there is no mention of alcohol use or abuse, or

suggesting that alcohol was contributing to any of Mr. DONALDSON’s issues.

50. On September 10, 2015, Mr. DONALDSON was brought to Gulf Coast Medical

Center after his mother found him at home with blood everywhere, multiple bruises and

abrasions, and mental confusion. Within the HPI, Dr. SMITH acknowledged that he has been

treating Mr. DONALDSON for chronic problems with alcoholism, seizure disorder, and atrial

fibrillation. Dr. SMITH further acknowledged that he was unaware if Mr. DONALDSON had

been compliant with taking his medications regularly. Dr. SMITH also noted that Mr.

DONALDSON had been suffering from recent anxiety and had been consuming alcohol as a

calming mechanism. During physical examination, Dr. SMITH postulated that Mr.

DONALDSON’s multiple bruises and abrasions were the likely result of seizures “due to not

taking his seizure medication.” Mr. DONALDSON was admitted into the ICU with a diagnosis

of seizure activity, alcohol abuse, chronic a-fib, acute hyponatremia and hypokalemia.

51. During this hospitalization, Mr. DONALDSON was evaluated by several

consulting physicians, including neurologist, Dr. Khurram Nazir. Dr. Nazir noted that Mr.

DONALDSON has been suffering seizures for 8-9 years and was treating with a neurologist. Dr.

Nazir noted that Mr. DONALDSON had a history of alcohol abuse and was on withdrawal

protocols (CIWA). Dr. Nazir noted that he reviewed Mr. DONALDSON’s past hospital

admissions and noticed similar prior admissions where Mr. DONALDSON had been admitted

for “alcohol use and electrolyte imbalances provoking seizures.” Dr. Nazir also noted that Mr.

DONALDSON had not been taking his anti-seizure medications. Following his examination and

evaluation, Dr. Nazir recorded the following Assessment and Plan:

11
 The patient is a 52-year old gentleman, who came in with an episode of seizure, unclear
on how long and how many, but was found to have multiple metabolic derangements
including hyponatremia, hypokalemia, hypomagnesemia, and hypochloremia. He has a
history of similar episodes in the past in the setting of drinking alcohol. All these
derangements have [sic] known to cause seizure threshold even if you are on antiepileptic
coverage, and I think his presentation was due to these provoking factors.

52. During this hospitalization, Mr. DONALDSON was also evaluated by

nephrologist, Dr. Scott Dean. Dr. Dean noted that Mr. DONALDSON reported drinking three

(3) pitchers of beer a day. Dr. Dean noted a long history of chronic alcoholism. Following

examination and evaluation, Dr. Dean recorded the following Assessment/Diagnosis:

Chronic hyponatremia, secondary to long-term alcohol abuse, suspicious for alcoholic

liver disease; Hypokalemia; Trauma from multiple falls; Probable cerebral ataxia from
chronic alcohol cerebellar toxicity; Muscular atrophy, likely from chronic alcoholism;
Atrial fibrillation from acute and chronic alcoholism.

53. Mr. DONALDSON was discharged by Dr. SMITH on September 16, 2015 with

final diagnoses of seizure disorder, anemia, mental confusion secondary to severe electrolyte

imbalance, hyponatremia, hypokalemia, hypertension, and chronic atrial fibrillation. Dr. SMITH

included no alcohol related diagnoses.

54. Less than two (2) weeks later, on September 28, 2015, Mr. DONALDSON

presented to Dr. SMITH’s office for follow-up following discharge. During this visit, Dr.

SMITH noted that “[u]unfortunately, he is drinking alcohol again and I fussed at him one more

time about that.” Dr. SMITH prescribed Camprel on that date to address alcohol withdrawal.

55. On October 9, 2015, Mr. DONALDSON presented to Dr. SMITH’s office with

complaints of difficulty sleeping. Dr. SMITH noted that Mr. DONALDSON had been

“completely off the alcohol” but had not yet started the Camprel. Despite that report, one (1)

week later, Dr. SMITH noted that Mr. DONALDSON was “draggy and mentally confused from

12
time to time.” A little over one (1) month later, on November 13, 2015, Mr. DONALDSON

presented to Dr. SMITH’s office with complaints of right shoulder pain following another fall.

56. On September 22, 2016, Mr. DONALDSON was readmitted into Gulf Coast

Medical Center. As with his prior admission, Dr. SMITH was the admitting, attending and

discharging physician. At this encounter, Dr. SMITH noted that Mr. DONALDSON “has had a

problem with alcohol in the past.” Dr. SMITH also noted that Mr. DONALDSON was suffering

from nausea, vomiting and diarrhea, and due to his ill appearance and mental confusion, was

ordered to be admitted into this hospital. Dr. SMITH commented that upon arrival to the

hospital, Mr. DONALDSON suffered a grand mal seizure. Dr. SMITH noted that Mr.

DONALDSON was very mentally confused and dehydrated during examination, andalso charted

that Mr. DONALDSON had “been drinking alcoholic beverages every day for several days.”

Dr. SMITH made no diagnoses, but instead noted that Mr. DONALDSON was being admitted

for further therapy and electrolyte replacement.

57. While hospitalized, Mr. DONALDSON was attended to by the Critical Care

Service. In contrast to Dr. SMITH, the providers on that service diagnosed Mr. DONALDSON

with the following: Alcohol Withdrawal, Acute Encephalopathy secondary to Alcohol

Withdrawal, Seizure Disorder Secondary to Alcohol Withdrawal, Aspiration Pneumonia,

Hypertensive Urgency, Leukocytosis, Thrombocytopenia and Hyponatremia.

58. Mr. DONALDSON was put on CIWA alcohol withdrawal protocols throughout

this admission. It was reported that Mr. DONALDSON’s last known alcohol beverage was

earlier that day. Dr. SMITH discharged Mr. DONALDSON with an underwhelming summary of

his conditions and issues, this time claiming that Mr. DONALDSON was brought in for severe

gastroenteritis, nausea, vomiting, diarrhea and because he suffered a seizure at home. While Dr.

13
SMITH made no mention of Mr. DONALDSON’s alcohol use, he did postulate that Mr.

DONALDSON’s seizure was secondary to not taking his seizure medications.

59. Mr. DONALDSON presented to Dr. SMITH’s office for post-discharge follow-up

on October 4, 2016. Dr. SMITH noted that he recently had Mr. DONALDSON in the hospital

for electrolyte imbalance but commented that “he is off the alcohol now.”

60. On December 30, 2016, Dr. SMITH noted that Mr. DONALDSON had suffered a

seizure on Christmas Eve after missing a single dose of his anti-seizure medication, and that a

head laceration was repaired in the ER. Dr. SMITH made no mention of the fact that the seizure

occurred, once again, while Mr. DONALDSON was driving and resulted in him leaving the road

and crashing his car.

61. On February 15, 2017, Mr. DONALDSON was notified by the Florida

Department of Highway Safety and Motor Vehicles that their agency had received information

regarding Mr. DONALDSON’s ability/inability to drive safely due to his medical condition.

This was in response to the automobile accident which occurred on December 23, 2016. Within

the chart there is a questionnaire from the DMV directed to Dr. SMITH which was filled out as

part of evaluating whether or not Mr. DONALDSON would be safe to operate a motor vehicle.

62. Despite having been recently hospitalized for several serious alcohol related

illnesses, Dr. SMITH made no mention of them in response to the DMV’s questionnaire which

asked “what is the probable cause of the loss of consciousness and what treatment, if any, is the

patient currently receiving?” In response, Dr. SMITH merely responded “electrolyte

imbalance.”

63. Although Dr. SMITH had recently opined that Mr. DONALDSON’s recent

seizure was due to not taking his seizure medications, he likewise failed to inform the DMV of

14
that history and conclusion. With the opportunity to freely provide additional comments and

information, Dr. SMITH merely checked the block indicating that from a medical standpoint,

Mr. DONALDSON was safe to drive.

64. On a separate form, filled out on April 17, 2017, Dr. SMITH continued to provide

wholly inadequate and/or inaccurate information, as follows:

a. In response to a question regarding ALL serious illnesses or physical

impairments, Dr. SMITH put Seizures Secondary to Electrolyte Imbalance.

Despite clear and longstanding diagnoses for alcoholism, alcohol use, alcohol

abuse, alcohol withdrawal, alcohol withdrawal seizures, and seizures

secondary to alcohol use, none of these conditions were referenced or

mentioned.

b. In response to a request to list all prescribed medications, Dr. SMITH left it

blank and failed to notify the DMV that Mr. DONALDSON was on several

medications including anti-seizure medications and psychotropic medications.

c. In response to a question regarding other physicians seen by Mr.

DONALDSON in the previous two (2) years, Dr. SMITH listed only Dr.

Elzawahry, the outpatient neurologist.

d. Dr. SMITH failed to disclose Mr. DONALDSON’s hospitalizations over the

past two (2) years including:

i. May 2015: Admitted due to seizures, which Dr. SMITH postulated

were due to missing medication and alcohol use;

ii. Sept 2015: Admitted after mother found him at home post-seizure;

reported drinking up to 3 pitchers of beer a day;

15
 iii. Sept 2016: Admitted for seizures; dx with seizure disorder secondary

to alcohol withdrawal;

e. When questioned about any emotion problems or mental illness, Dr. SMITH

made no editorial comments other than “see attached” which was in likely

reference to office records which were provided;

f. While he did reference that Mr. DONALDSON showed signs of addiction,

Dr. SMITH did not expand or clarify as to what signs;

g. Dr. SMITH also failed to reference Mr. DONALDSON’s numerous hospital

admissions due to alcohol related issues and failed to reference that Mr.

DONALDSON had suffered seizures while driving even prior to the

December 23, 2016 crash;

h. Dr. SMITH concluded the form by answering “yes” as to whether or not in his

opinion Mr. DONALDSON could safely operate a motor vehicle;

65. It would be only two (2) weeks before Mr. DONALDSON would be admitted

again into Gulf Coast Medical Center for seizures related to alcohol use. On May 2, 2017, Mr.

DONALDSON was once again admitted into Gulf Coast Medical Center by Dr. SMITH. The

chief complaint was “passing out and seizure.” Dr. SMITH noted that Mr. DONALDSON had

chronic problems with electrolyte imbalances, and that his family had reported that he had be

drinking “a lot of beer.” Dr. SMITH postulated that Mr. DONALDSON’s recent seizure was a

direct result of an electrolyte imbalance due to drinking alcohol. Dr. SMITH continued on that

he was unsure if Mr. DONALDSON was regularly taking his anti-seizure medications. Once

again, no admitting diagnoses were made, but instead, Dr. SMITH commented that Mr.

DONALDSON would be admitted for IV fluids and Librium.

16
 66. As was the case during prior admissions, the consulting physicians were able to

gather an accurate history which included that Mr. DONALDSON had a history of alcohol

abuse, and a social history which included excessive beer drinking. Mr. DONALDSON was

examined and evaluated by consulting cardiologist, Dr. Hashem Mubarak, who noted the

following impression: Chronic a-fib, Alcohol abuse, Hypertension, Seizure Disorder. “Not sure

whether it is related to the alcohol abuse or not,” slight encephalopathy possibly related to

alcohol.

67. Within his discussion and recommendations, Dr. Mubarak communicated to Dr.

SMITH that following: “I hope he will be compliant with taking the medication although I would

raise a flag since he is alcoholic and has higher than average chance to fall and therefore, we

need to watch him carefully and consider switching to aspirin.”

68. Dr. Mubarak also commented that he had advised Mr. DONALDSON against

continuing to drink alcohol. Despite this alcohol-related hospital admission, Dr. SMITH once

again drafted a discharge summary which made absolutely no reference to his alcohol use and

abuse.

69. On June 13, 2017, Dr. SMITH noted that two (2) days prior, Mr. DONALDSON

had been involved in another motor vehicle automobile accident. While Dr. SMITH noted that

“he has not been drinking any alcohol today,” he did not mention or reference Mr.

DONALDSON’s recent level of alcohol use. Dr. SMITH merely provided Mr. DONALDSON

with Gatorade and salty peanuts.

70. On August 30, 2017, Mr. DONALDSON was brought to Bay Medical Beach ER

via ambulance after being found on the floor post seizure. The ER attending physician made

17
note of a history of seizures, a-fib, and alcohol abuse. A laceration on Mr. DONALDSON’s ear

was sutured and bandaged.

71. On January 7, 2018, Mr. DONALDSON was once again admitted into Gulf Coast

Medical Center by Dr. SMITH. Dr. SMITH noted that Mr. DONALDSON had recently

consumed excessive amounts of beer, and that he [DONALDSON] was unsure if he had missed

taking several of his seizure medications because he had recently had several seizures. Dr.

SMITH noted that Mr. DONALDSON had a history of hyponatremia “because of drinking

excessive water.” Mr. DONALDSON’s sodium and potassium levels were noted to be low, and

his liver markers were abnormal. While Dr. SMITH did formulate an admitting diagnosis

(seizure activity; electrolyte imbalance), he once again failed to make any reference to Mr.

DONALDSON’s alcohol use and/or abuse, and once again commented that the hospital

admission was merely for intravenous [fluid] replacement.

72. Upon admission, Mr. DONALDSON was evaluated by consulting neurologist,

Dr. David Sinclair. Dr. Sinclair noted that Mr. DONALDSON was brought to the hospital due to

generalized seizure activity. According to Mr. DONALDSON, he had at least five (5) seizures

lasting approximately 45 seconds each. Dr. Sinclair noted that Mr. DONALDSON reported

consuming 4-5 beers per day on average, and that he had not had a drink in the 12 hours prior to

the episodes. As part of his diagnosis, Dr. Sinclair included “[e]pilepsy-intractable-likely related

to chronic alcohol use” and “Alcoholic polyneuropathy.” At discharge, Dr. SMITH once again

attributed Mr. DONALDSON’s seizure to missed medications, however noted that “he had been

drinking some alcohol.”

73. Less than one (1) month later, on February 2, 2018, Mr. DONALDSON was

admitted into Gulf Coast Medical Center following an automobile accident wherein Mr.

18
DONALDSON suffered a seizure while driving which caused his car to lose control and leave

the road. This constitutes the fifth motor vehicle accident which has occurred since Mr.

DONALDSON became a patient of Dr. SMITH’s.

74. As with the prior admissions, Dr. SMITH was the admitting physician. Dr.

SMITH noted that Mr. DONALDSON’s sodium was low and made conspicuous mention that his

alcohol levels were normal. Despite a hospitalization less than one (1) month prior, wherein Mr.

DONALDSON reported drinking 4-5 beers per day, Dr. SMITH commented that “he is not

supposed to be drinking any alcohol and rarely drinks a beer.”

75. On October 22, 2018, Mr. DONALDSON received notice from the Florida DMV

indicating that it was time for a follow-up on his medical condition. The notice included

attached forms for Dr. SMITH to complete. The records indicate that Dr. SMITH filled out the

forms on June 14, 2019.

76. In between Dr. SMITH’s last submission to the DMV (April 18, 2017), and his

filling out of this form (June 14, 2019), the following had transpired and was within Dr.

SMITH’s collective knowledge and understanding:

a. May 2, 2017 – Admission to Gulf Coast Medical Center for “passing out and

seizure” wherein it was reported that he had been drinking “a lot of beer,” and

where Dr. SMITH postulated that Mr. DONALDSON’s recent seizure was a

direct result of an electrolyte imbalance due to drinking alcohol;

b. June 11, 2017 – Automobile accident wherein Dr. SMITH noted that “he has

not been drinking any alcohol today;”

c. August 30, 2017 - Bay Medical Beach ER via ambulance after being found on

the floor post seizure;

19
 d. January 7, 2018 - Admission into Gulf Coast Medical Center for multiple

seizures by Dr. SMITH wherein it was noted that Mr. DONALDSON had

recently consumed excessive amounts of beer, and that he [DONALDSON]

was unsure if he had missed taking several of his seizure medications. This

was also where Mr. DONALDSON was diagnosed with “Epilepsy-

intractable-likely related to chronic alcohol use” and “Alcoholic

polyneuropathy;”

e. February 2, 2018 - Admission into Gulf Coast Medical Center following an

automobile accident wherein Mr. DONALDSON suffered a seizure while

driving which caused his car to lose control and leave the road;

77. By this point in time, Dr. SMITH had supervised and cared for Mr.

DONALDSON through five (5) car crashes, at least twelve (12) hospitalizations (all of which

were for seizures and/or alcohol abuse), and multiple falls. Despite those serious alcohol related

events, Dr. SMITH once again filled out the forms without highlighting any of the above

information. When asked to list all serious illnesses and physical impairments, Dr. SMITH

merely put “seizure disorder (electrolyte imbalance)” and made no mention of Mr.

DONALDSON’s other health issues such as alcoholism. When asked about what physicians Mr.

DONALDSON has seen in the past few years, Dr. SMITH merely listed Dr. Elzawahry, and

failed to reference the numerous hospitalizations, all of which were related to seizures and

alcohol use.

78. When asked about frequency of blackouts and fainting spells, Dr. SMITH put that

Mr. DONALDSON had not had one since February 2018, and that the possible cause of his

blackouts was an electrolyte imbalance.

20
 79. Despite a known history of dizziness and sleep issues, Dr. SMITH answered that

there were none. Despite several hospitalizations for alcohol use, abuse and withdrawals, Dr.

SMITH made no mention when asked about hospitalizations related to mental or emotional

illness.

80. Dr. SMITH also reported to the DMV that Mr. DONALDSON was “off all

alcohol” despite a known history of addiction, excessive alcohol consumption, and binge

drinking. Dr. SMITH once again verified that in his opinion Mr. DONALDSON was safe to

operate a motor vehicle. At no time did Dr. SMITH inform the DMV that since his last

submission, Mr. DONALDSON had been involved in two (2) other seizure-related automobile

accidents.

81. On June 6, 2018, Mr. DONALDSON presented to Dr. Elzawahry’s office for

evaluation of his seizure disorder. At that visit, Dr. Elzawahry acknowledged a history of

traumatic brain injury and a breakthrough seizure in April 2018. Dr. Elzawahry noted with this

chart that Mr. DONALDSON was experiencing tremors and a worsening of tremors, and within

that diagnosis recorded a social history of drinking 2-3 beers a night.

82. Mr. DONALDSON returned to Dr. Elzawahry’s office on January 23, 2019, with

report that his tremors were worsening, especially in the afternoon. Dr. Elzawahry again noted

that Mr. DONALDSON was consuming 2-3 beers every day.

83. Mr. DONALDSON returned to the office on July 23, 2019, and was once against

seen by Dr. Elzawahry. At this visit, Dr. Elzawahry diagnosed Mr. DONALDSON with

hyponatremia which he postulated was likely due to alcohol abuse. Within the chart, Dr.

Elzawahry noted that Mr. DONALDSON “underwent rehab 12/2018 but may or may not have

21
fallen off the wagon.” Within the same chart, Dr. Elzawahry noted that Mr. DONALDSON was

still continuing to consume 2-3 beers daily.

84. An August 12, 2019, EEG was normal indicating that Mr. DONALDSON’s

current problems were not related to any type of epilepsy, but rather was a result of his alcohol

abuse.

85. On October 7, 2019, Dr. SMITH noted that Mr. DONALDSON had not had a

seizure in about a year, and also commented that this information was “sent in” presumably to

the Florida DMV. Dr. SMITH further noted that it had not been received, and that a copy of the

last visit would be resent.

86. Less than two (2) weeks later, on October 18, 2019, Mr. DONALDSON’s mother

brought him into the office due to an alleged medication error. At that visit, Dr. SMITH noted

that Mr. DONALDSON had been recently drinking beer. There is no indication that Dr. SMITH

reported this to the Florida DMV, or that he created an addendum which would alert the DMV

that Mr. DONALDSON had starting consuming alcohol again.

87. Four (4) days letter, on October 22, 2019, Mr. DONALDSON presented to Dr.

Elzawahry’s office due to disequilibrium, which Dr. Elzawahry’s attributed to Mr.

DONALDSON being prescribed several psychotropic medications. At that visit, Dr. Elzawahry

commented that he was having significant difficulty with getting Mr. DONALDSON to

comprehend his explanation of his medical issues. Dr. Elzawahry noted that he was ordering

labs due to concern for Mr. DONALDSON’s alcohol history.

88. Mr. DONALDSON presented to Dr. Elzawahry once again on June 2, 2020. At

that visit, Dr. Elzawahry noted that Mr. DONALDSON was no longer on Ativan (a hypnotic),

and that he had not seen his primary care physician for over six (6) months. Also at this visit,

22
Dr. Elzawahry noted that Mr. DONALDSON’s tremors and restless leg syndrome were “much

worse.” Mr. DONALDSON reported that he was still consuming 2-3 beers a day.

89. On December 2, 2020, Mr. DONALDSON presented to Brain & Spine Specialist,

but instead of seeing Dr. Elzawahry, Mr. DONALDSON was seen by Dr. Achraf Makki. At that

visit, Mr. DONALDSON reported that he was drinking 6-8 beers per day. Dr. Makki noted that

Mr. DONALDSON had fallen at the gym resulting in a concussion. Dr. Makki also noted that

Mr. DONALDSON was experiencing alcohol withdrawal symptoms including tremors in the

office. Mr. DONALDSON reported to Dr. Makki that his tremors seemed worse that day and

that he had a recent heavy workload.

90. Two (2) days later, Mr. DONALDSON suffered a seizure while driving resulting

in the deaths of BAYLOR and ADDIE.

FACTS RELEVANT TO DRAM SHOP CLAIMS

91. At all times material hereto, Mr. DONALDSON and Denise Donaldson were the

owners and operators of BILLYS.

92. Upon information and belief, Mr. DONALDSON frequented BILLYS and during

his time there, consumed copious amounts of alcohol while present at BILLYS.

93. Consumption of alcohol is not a part of Mr. DONALDSON’s duties as an owner,

operator, employee and/or servant of BILLYS, and therefore, his consumption was as a patron of

BILLYS.

94. Upon information and belief, Denise Donaldson and other employees/agents of

BILLYS furnished alcoholic beverages to Mr. DONALDSON while he was present at BILLYS.

95. Upon information and belief, at all times material hereto, Denise Donaldson, as

well as the employees/agents of BILLYS, were aware of Mr. DONALDSON’s struggles with

23
alcohol, including that he was a habitual drinker who had been hospitalized on numerous

occasions for alcohol related incidents including multiple falls and multiple seizures.

96. Upon information and belief, at all times material hereto, Denise Donaldson as

well as the employees/agents of BILLYS were aware that Mr. DONALDSON had crashed his

car several times due to alcohol related seizures.

97. At all times material hereto, the employees and agents of BILLYS knew or should

have known that it would be unsafe for Mr. DONALDSON to consume alcoholic beverages due

to his known medical history which strongly indicated that he was struggling with alcohol

addiction. In addition, Mr. DONALDSON’s appearance and actions were such that even a lay

person would recognize his struggles with alcohol.

98. Despite knowledge of the above, BILLYS, by and through their employees and/or

agents, willfully continued to serve Mr. DONALDSON copious amounts of alcohol drinks on a

regular basis, including at or around the time of this incident.

99. In the days prior to the December 4, 2020, crash, Mr. DONALDSON continued to

consume copious amounts of alcoholic beverages, including those provided to him at BILLYS

while on the premises.

100. Habitual alcohol consumption resulted in Mr. DONALDSON suffering from

seizures which were poorly controlled due to his alcoholism and non-compliance with anti-

seizure medications.

101. All of Mr. DONALDSON’s seizures have been related to alcohol consumption

and non-compliance with his medications.

24
 FACTS RELEVANT TO DECLARATORY ACTION

102. Prior to initiation of mandatory Pre-Suit, pursuant to Chapter 766, Florida

Statutes, the Plaintiffs enjoyed cooperation from Defendant, Mr. DONALDSON in investigating

whether or not his physicians had committed medical negligence. Through the aid of his

personal counsel, the undersigned was able to obtain a general Authorization for Release of

Protected Health Information (PHI) pursuant to the Health Insurance Portability and

Accountability Act, more commonly known as HIPAA. The authorization allowed unfettered

access to Mr. DONALDSON’s medical records from the relevant facilities.

103. That same authorization included acknowledgement by the signatory, Mr.

DONALDSON, as follows:

The undersigned acknowledges that once the PHI is disclosed, it may be re-disclosed
to individuals or organizations that are not subject to the federal privacy regulations
such as expert witnesses, litigants, insurance companies, and even may become public
record if filed with a court of law.

104. That same authorization was used by the Plaintiffs to obtain Mr. DONALDSON’s

relevant medical records, including the records from Dr. SMITH and Mr. DONALDSON’s

treating neurologists.

105. That same authorization was provided to Defendant, Dr. SMITH, as part of the

Notice of Intent to Initiate Medical Malpractice Litigation. In addition, the Plaintiffs provided

copies of all relevant medical records they were able to obtain as part of their investigation.

106. Unfortunately, prior to initiation of Pre-Suit, and while Plaintiffs were still

engaged in their own investigation of these claims, Mr. DONALDSON withdrew his cooperation

in that he failed to provide the Plaintiffs with the requested authorization that typically

accompanies a Notice of Intent to Initiate Medical Malpractice Litigation as required by Chapter

25
766, Florida Statutes. That statutory authorization allows prospective defendants to obtain any

and all of claimant’s medical records.

107. In this matter, such authorization was not required as the claimants are BAYLOR

and ADDIE, and not Mr. DONALDSON. While statutory authorizations for the children were

not provided along with the NOI, in an effort to satisfy the rigors of the statute, the Plaintiffs

provided those authorizations in February 2023.

108. Upon information and belief, Mr. DONALDSON suffered another recent fall

which saw him hospitalized and later transferred to a rehab facility. As such, and because Mr.

DONALDSON remains a represented person, the undersigned was unable to procure any

additional authorizations from Mr. DONALDSON.

Table of Claims

COUNT ONE (1): Medical Malpractice/Wrongful Death - TIM M. SMITH, M.D.

COUNT TWO (2): DRAM SHOP/Wrongful Death - BILLYS
COUNT THREE (3): Declaratory Action – SCOTT DONALDSON

COUNT ONE (1)

NEGLIGENCE OF TIM M. SMITH, M.D.
Medical Malpractice

109. Plaintiffs reallege and reaver all of the allegations contained in paragraphs 1

through 97 as though fully set forth herein.

110. At all times material hereto, there existed a physician-patient relationship between

Dr. SMITH and Mr. DONALDSON.

111. By virtue of that physician-patient relationship, Defendant, Dr. SMITH, had a

duty to provide Mr. DONALDSON with medical care and treatment consistent with the

prevailing professional standard of care, which is that level of medical care, skill and treatment

26
which, in light of all relevant surrounding circumstances, is recognized as acceptable and

appropriate by a reasonably prudent similar health care provider.

112. The duty owed by Dr. SMITH to Mr. DONALDSON extended to BAYLOR and

ADDIE as his conduct and actions foreseeably created a broader zone of risk which posed a

threat of harm to others. BAYLOR and ADDIE were within that foreseeable zone of risk, as it

would be foreseeable that Mr. DONALDSON would continue to drive his automobile despite his

ongoing medical and substance abuse problems.1

113. Defendant, Dr. SMITH, was negligent and breached the prevailing professional

standard of care with regards to the care and treatment provided to Plaintiff, Mr. DONALDSON,

in the following respects:

a. Failing to provide timely and appropriate medical care and treatment;

b. Failing to accurately and adequately document patient’s history;
c. Failing to appropriately address Mr. DONALDSON’s struggles and problems with
alcohol;
d. Improperly diagnosing Mr. DONALDSON with electrolyte imbalances without
addressing alcohol abuse as the primary cause;
e. Failing to adequately consider, address, and manage Mr. DONALDSON’s seizures;
f. Failing to appreciate, consider, address and diagnose Mr. DONALDSON with
alcohol abuse and/or dependency;
g. Failing to counsel Mr. DONALDSON regarding the risks associated with operating
his motor vehicle despite a history of uncontrolled seizures;
h. Failing to counsel Mr. DONALDSON regarding the risks associated with consuming
alcohol despite a history of seizures;
i. Failing to counsel, warn and/or caution Mr. DONALDSON that his excessive
alcohol use/abuse would substantially increase his risks of breakthrough seizures;
j. Failing to counsel, warn and/or caution Mr. DONALDSON that he should not drive
an automobile during times that he is routinely consuming alcohol;

1
McCain v. Fla. Power Corp., 593 So. 2d 500, 501 (Fla. 1992)(The duty element of negligence focuses on whether
the defendant's conduct foreseeably created a broader “zone of risk” that poses a general threat of harm to
others. See Kaisner [v. Kolb], 543 So.2d [732][at] 735 [Fla. 1989] (citing Stevens v. Jefferson, 436 So.2d 33, 35
(Fla.1983)). The proximate causation element, on the other hand, is concerned with whether and to what extent the
defendant's conduct foreseeably and substantially caused the specific injury that actually occurred. In other words,
the former is a minimal threshold legal requirement for opening the courthouse doors, whereas the latter is part of
the much more specific factual requirement that must be proved to win the case once the courthouse doors are
open. As is obvious, a defendant might be under a legal duty of care to a specific plaintiff, but still not be liable for
negligence because proximate causation cannot be proven.”)

27
 k. Improperly recommending reinstatement of Mr. DONALDSON’s driver’s license
despite him being medically unfit to drive;
l. Failing to perform thorough and comprehensive examinations and evaluations of Mr.
DONALDSON;
m. Failing to consider and conclude that Mr. DONALDSON’s frequent electrolyte
imbalances and seizures were the result of excessive alcohol use;
n. Failing to recommend inpatient treatment for alcohol abuse/dependency;
o. Failing to caution and/or warn Mr. DONALDSON that his chronic alcohol use could
lower his threshold for seizures;
p. Failing to create adequate and complete medical records;

114. As a direct and proximate result of the acts and/or omissions of Defendant, Dr.

SMITH, hereinabove alleged, Mr. DONALDSON suffered a predictable seizure which resulted

in his vehicle leaving the road on December 4, 2020, and which then resulted in the deaths of

BAYLOR and ADDIE due to injuries sustained when his vehicle collided with them.

115. Plaintiff, MATT KIRCHGESSNER, Individually, and as Personal Representative

of the Estates of BAYLOR KIRCHGESSNER and ADDIE KIRCHGESSNER, his deceased

minor children, and on behalf of all statutory survivors, and LAUREN KIRCHGESSNER,

claims the following damages pursuant to the Florida Wrongful Death Act:

a. Estate of BAYLOR KIRCHGESSNER: Loss of future earnings; loss of

prospective net accumulations of the estate; any medical or funeral expenses

charged to the estate and/or paid on behalf of the decedent;

b. Estate of ADDIE KIRCHGESSNER: Loss of future earnings; loss of

prospective net accumulations of the estate; any medical or funeral expenses

charged to the estate and/or paid on behalf of the decedent;

c. MATT KIRCHGESSNER, surviving parent: Loss of future services, medical

and funeral expenses, and mental pain and suffering, both past and future;

28
 d. LAUREN KIRCHGESSNER, surviving parent: Loss of future services,

medical and funeral expenses, and mental pain and suffering, both past and

future.

WHEREFORE, Plaintiffs, MATT KIRCHGESSNER, Individually, and as Personal

Representative of the Estates of BAYLOR KIRCHGESSNER and ADDIE KIRCHGESSNER,

his deceased minor children, and on behalf of all statutory survivors, and LAUREN

KIRCHGESSNER, demand judgment for all damages allowed by law, costs, interest (if and

when applicable), against Defendant, TIM M. SMITH, M.D., and further demand trial by jury on

all issues so triable.

COUNT TWO (2)

NEGLIGENCE OF BILLYS STEAMER & OYSTER BAR, INC.
Dram Shop Liability

116. Plaintiffs reallege and reaver all of the allegations contained in paragraphs 1

through 100 as though fully set forth herein.

117. On or about December 4, 2020, Defendant, BILLYS owned and operated a

restaurant which served, furnished and provided alcohol beverages.

118. The actions, or inactions, of BILLYS, by and through its agents, employees

and/or servants, more particularly described above, were in the course and scope of their

employment with the Defendant in serving alcoholic beverages to SCOTT DONALDSON.

119. At all times material hereto, Mr. DONALDSON was habitually addicted to

alcoholic beverages.

120. At all times material hereto, the employees, agents and servants of BILLYS knew

that Mr. DONALDSON was habitually addicted to alcoholic beverages and knew that he was

someone who was susceptible to alcohol-related seizures.

29
 121. At all times material hereto, there was in full force and effect Florida Statutes

§768.125, which states that a person who willfully and unlawfully sells or furnishes alcoholic

beverages to a person not of lawful drinking age, may become liable for any injury or damage

caused by or resulting from the intoxication of said minor.

122. On numerous occasions prior to December 4, 2020, one or more agents, servants

and/or employees willfully and unlawfully furnished alcoholic beverages to SCOTT

DONALDSON, whom said agents, servants and/or employees knew and/or should have known

was habitually addicted to alcoholic beverages.

123. As a direct and proximate result of Defendant, BILLYS’ violation of Section

768.125, Florida Statutes, specifically in continuing to routinely furnish alcohol to a person

known to be habitually addicted, Mr. DONALDSON suffered an alcohol-related seizure while

driving his automobile on December 4, 2020, which resulted in the wrongful deaths of two (2)

minor children, ADDIE and BAYLOR.

124. Plaintiff, MATT KIRCHGESSNER, as Personal Representative of the Estate of

BAYLOR KIRCHGESSNER a, claims the following damages pursuant to the Florida Wrongful

Death Act:

a. Estate of BAYLOR KIRCHGESSNER: Loss of future earnings; loss of

prospective net accumulations of the estate; any medical or funeral expenses

charged to the estate and/or paid on behalf of the decedent;

b. Estate of ADDIE KIRCHGESSNER: Loss of future earnings; loss of

prospective net accumulations of the estate; any medical or funeral expenses

charged to the estate and/or paid on behalf of the decedent;

30
 c. MATT KIRCHGESSNER, surviving parent: Loss of future services, medical

and funeral expenses, and mental pain and suffering, both past and future;

d. LAUREN KIRCHGESSNER, surviving parent: Loss of future services,

medical and funeral expenses, and mental pain and suffering, both past and

future.

125. WHEREFORE, Plaintiffs, MATT KIRCHGESSNER, Individually, and as

Personal Representative of the Estates of BAYLOR KIRCHGESSNER and ADDIE

KIRCHGESSNER, his deceased minor children, and on behalf of all statutory survivors, and

LAUREN KIRCHGESSNER, demand judgment for all damages allowed by law, costs, interest

(if and when applicable), against Defendant, BILLY’S STEAMER & OYSTER BAR, INC., and

further demand trial by jury on all issues so triable.

COUNT THREE (3)

DECLARATORY ACTION AS TO SCOTT DONALDSON

126. Plaintiffs reallege and reaver all of the allegations contained in paragraphs 1

through 107 as though fully set forth herein.

127. Chapter 766, Florida Statutes sets forth several requirements and conditions

precedent for initiation of a medical malpractice civil action. Among those is a requirement to

put the prospective Defendants on notice of the intent to initiate litigation by service of a formal

Notice of Intent which contains affidavits of merit and copies of all relevant medical records.

128. In addition, Section 766.1065, Florida Statutes requires that an Authorization for

Release of Protected Health Information be provided to the prospective Defendants. The

purpose of this authorization, is to allow the prospective Defendants access to protected health

information that is potentially relevant to the claim. While the undersigned did not provide this

authorization along with their Notice of Intent, they did provide Mr. DONALDSON’s relevant

31
medical records and a signed medical authorization, pursuant to HIPAA, which allowed access

to his relevant medical records.

129. In addition, Dr. SMITH, as Mr. DONALDSON’s primary care physician, had

electronic access to all of his relevant medical records including his own office chart, records

relevant to Mr. DONALDSON numerous hospitalizations (wherein Dr. SMITH was the

admitting physician and therefore would have full access), and records from the neurology office

as Dr. SMITH was the referring physician. The provided authorization also allowed Dr. SMITH

and his legal team to share those records and information regarding Mr. DONALDSON’s PHI.

130. Despite said access, Defendant, Dr. SMITH has alleged that the Plaintiffs have

not satisfied the requirement of Chapter 766, specifically that they have not provided a signed

766.1065 authorization, and with anticipated argument that this somehow resulted in prejudice in

investigating these claims.

131. Given the unique nature of these claims, whereby the medical records and history

of the decedent is not relevant, but where the medical records and history of a non-claimant are

relevant, said rules create an impracticality with regards to complying with the rigors of the

statute. As such, Plaintiffs’ right and access to the courts is potentially and unjustifiably limited.

WHEREFORE, the Plaintiffs, MATT KIRCHGESSNER, Individually, and as Personal

Representative of the Estates of BAYLOR KIRCHGESSNER and ADDIE KIRCHGESSNER,

his deceased minor children, and on behalf of all statutory survivors, and LAUREN

KIRCHGESSNER, seek a declaratory ruling confirming their satisfaction of the requirements of

Chapter 766, as Dr. SMITH and his legal team were provided with all relevant medical records

with which to evaluate these claims, and as Dr. SMITH and his legal team were provided with a

signed authorization for release of Mr. DONALDSON’s medical records.

32
 In the alternative, Plaintiffs seek a declaratory ruling which relaxes the statutory

requirement for submission of a 766.1065 authorization, so that this matter may proceed on its

merits.

In the alternative, Plaintiffs seek a declaratory ruling compelling Mr. DONALDSON to

provide said 766.1065 authorization so that the statutory requirements can be satisfied.

In the alternative, the Plaintiffs seek a declaratory ruling, wherein this Court would use its

own authority and power to compel production of Mr. DONALDSON’s medical records under

Florida law to the satisfaction of the Defendant, and so that he and his legal team may evaluate

these claims.

CERTIFICATE OF GOOD FAITH INVESTIGATION

I, Jack T. Cook, Esq., hereby certify that there has been a reasonable investigation

conducted pursuant to Chapter 766, Florida Statutes, in order to determine if there are grounds

for a good faith belief that there has been negligence in the care and treatment of SCOTT

DONALDSON by each named Defendant.

/s/ Jack T. Cook

___________________________
Jack T. Cook, Esq.

Respectfully submitted and filed this February 7, 2023.

/s/ JACK T. COOK________

Jack T. Cook, Esq.
FBN: 88589
Rebecca Williamson, Esq.
FBN: 118965
Clay Townsend, Esq.
FBN: 363375
Morgan & Morgan, P.A.
20 North Orange Avenue, Ste 1600
Post Office Box 4979
Orlando, Florida 32802-4979
Telephone: (407) 420-6926

33
Facsimile: (407) 236-8161
Primary Email: jcook@forthepeople.com
Secondary: rwilliamson@forthepeople.com
ctownsend@forthepeople.com
ashleywilliams@forthepeople.com

Attorneys for Plaintiffs

34