Petition for Writ of Certiorari — Rose v. Mount Sinai Medical Center (No. 09-620)

FILED

No.______ 99-620 NOV 4 - 2009

In The OFFICE OF THE CLERK

Supreme Court of the Gnited States

JONATHAN ROSE,

INDIVIDUALLY AND AS PERSONAL REPRESENTATIVE

OF THE ESTATE OF DORA BROWN ROSE,

Petitioner,

MT. SINAI MEDICAL CENTER, STEVEN SONENREICH

AND DR. NATHAN SEGAL, M.D.,

Respondents.

On Petition for Writ of Certiorari

to the Third District Court of Appeal, Florida

PETITION FOR WRIT OF CERTIORARI

Jonathan G. Weber

Counsel of Record

606 East Cross Street

Ypsilanti, MI 48104

(734) 323-2535

Jonathan I. Rose

Licensed in Michigan: P19616

508 Benjamin

Ann Arbor, MI 48104

(734) 757-5921

LANTAGNE LEGAL PRINTING

801 East Mam Strect Surte 100 Ric hm nd Virgin d 23219 (BOO) 847 0477

QUESTIONS PRESENTED:

The Miami-Dade Florida Circuit Court dismissed

Petitioner's case for failure to abide by a court order

to timely replace his attorney, without making a

finding that the violation was intentional, willful

or contumacious as required by Florida Supreme

Court case: Commonwealth Federal Savings and

Loan Association v Tubero 569 So. 2d 1271 (FL

1990). Responding to an appeal to the 31d

District Florida Court of Appeal, defense

(Respondent here) argued that the ruling of

dismissal was “right for the wrong reason,” that the

case would be subject to summary judgment on the

merits if the case were to proceed. The case at point

of dismissal and appeal was before the parties would

likely develop the lower court record with

depositions and affidavits that could have been

filed if there were a motion for summary judgment

in the trial court. The Florida Court of Appeal after

briefing and argument affirmed the dismissal

without opinion, but with a one-word ruling:

“affirmed.” The parties were thus left not knowing

the basis for the ruling. For example whether the

Court of Appeal ignored the Tubero case, or

acknowledged and followed the argument on "right

for the wrong reason". The Florida Supreme Court

dismissed application for leave, before response or

briefing. ‘The Court of Appeal ruling raises two

questions:

(1.)\Should the United States Supreme

Court resolve the difference between

Florida and Oregon's “right for the

wrong reason” Supreme Court rulings, to

favor Oregon’s Supreme Court case law:

“Even if the record contains evidence

sufficient to support an alternative basis for

affirmance, if the losing party might have

created a different record below had the

prevailing party raised that issue, and that

record could affect the deposition of the

issue, then we will not consider the

alternative basis for affirmance.” — Outdoor

Media Dimensions Incorporated, an Oregon

corporation vs State of Oregon et al

Supreme Court of Oregon 20 P 34 180 (Or.

2001) 1998

(2.) Should the Florida Court of Appeal be

required to write at least a terse opinion

rather than a one-word "affirmed" opinion if

it affirms a lower court ruling using the

“right for the wrong reason” doctrine

if it does not use the protections of Oregon's

version of the “right for the wrong reason”

which limits the doctrine to cases in which

the record below could not be developed as a

different record?

ALTERNATIVELY, should The United States

Supreme Court certify to the Florida Supreme Court

to resolve issue (2) as permitted and encouraged by

Florida Rules of Appellate Procedure 9.030 (2)(C)?!

" Rule 9.030 Jurisdiction of Courts

"(a) Jurisdiction of Supreme Court

"(2) Discretionary Jurisdiction.

“(C) Questions of law certified by the Supreme Court of the

PARTIES TO THE PROCEEDING

The Petitioner is Jonathan I Rose,

individually and as personal

representative of the estate of Dora

Brown Rose

The Respondents are Mt. Sinai Medical

Center a/k/a Mt. Sinai hospital, Steve

Sonenreich, CEO of Mount Sinai

Hospital, Nathan Segel, M.D.

United States or a United States court of appeals that

are determinative of the cause of action and for which there

is no controlling precedent of the Supreme Court of Flomda.”

ill

TABLE OF CONTENTS

QUESTIONS PRESENTED

PARTIES TO THE PROCEEDING

TABLE OF CONTENTS

py iF Ae ayy 6) ly yt +. Sree r renee lv

OPINIONS BELOW

JURISDICTION

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

STATEMENT OF THE CASE

PRESERVATION OF THE FEDERAL

QUESTION

REASONS FOR GRANTING THE PETITION

CONCLUSION

APPENDIX

. Circuit Court Dismissal Order..........

. Circuit Court Dismissal Order..........

. Circuit Order Denying Rehearing......!

. Court of Appeal One-Word Ruling.....‘

}. Court of Appeal Denial of Motion for

Rehearing

‘. State Supreme Court Order of

2 Re Ge tt ee

+. Portions of the 224 Amended

ay obs des euseovaloecasnsssyeetianrl

1V

TABLE OF AUTHORITIES

CONSTITUTIONAL PROVISIONS

14th Amendment to United States Constitution.....7

STATUTES

Be a I I ooo aivn ceca dadevavepecueavcotesscaus 6,7

Florida malpractice statute 766.106

CASES

Outdoor Media dimensions vs State of Oregon et al

Supreme Court of Oregon 20 P 3rd 180 (Or.2001)

10,14,17,19

Dade County School Board vs Radio Station WQBA

731 So. 2d 638; 1999 Fla. L. Weekly S 216

Commonwealth Federal Savings and Loan

Association v Tubero 569 So. 2d 1271 (FL 1990).

F.N.M.A. v Wingate 404 MI 1979.......................... 9

Lee v Porter 63 Ga. ag. OU BOE ss coc uxscanvecenccueaee

Rose v Lundy 455 U.S. 509, 102 S. Ct. 1198, 71

L. ed 2d 379 (1982

Darr v Burford , 339 U.S. 200, 204,

70 S. Ct 587, 590, 94 L Ed. 761 (1950).........

V

Williams v Florida 399 U.S. 78, 80, n.5 1970...... 13

Houssami v Nofal, 578 So. 2d 495, 497

(Fla. 5th DCA 1991)

COURT RULES

Florida Rule of Appellate Procedure 9.030 (2) ...19

ARTICLES

"Tipping the Ole Tipsy Coachman Over in His

Grave - An Inequity of Appellate Review" by H.

Michael Muniz. 81 Florida Bar Journal 7

Jurisdiction to Review decision of State

Courts Cressman, Geller, Shapiro, Bishop

Hartnett, Chapter 3.1 (f)

6

OPINIONS BELOW

The unreported order by the trial court is set forth in

appendix. The Court of Appeal made no oral ruling,

or written opinion other than the one-word opinion

“affirmed,” and that re-hearing is denied.

The Florida Supreme Court dismissed the case on

August 6th 2009 see appendix.

JURISDICTION

The Florida 3rd District Court of Appeal entered its

order affirming the trial court on January 21% 2009,

and entered its order denying re-hearing on June

29th 2009. The Florida Supreme Court decided its

order, denying jurisdiction, and dismissing the

case on August 6% 2009.

The United States Supreme Court has exclusive

power to review the highest State court decisions

involving federal issues under 28 U.S.C. Sec

1257(a)? 3

* (a) Final judgments or decrees rendered by the highest

court of a State in which a decision could be had, may be

reviewed by the Supreme Court by writ of certiorari where

the validity of a treaty or statute of the United States is

drawn in question or where the validity of a statute of any

State is drawn in question on the ground of its being

repugnant to the Constitution, treaties or laws of the United

states, or where any title, right, privilege or immunity is

specially set up or claimed under the constitution or treaties

or statutes of, or any commission held or authority exercised

under the United States. '

7

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

This case involves the 14th Amendment to the

Constitution of The United States.

U.S. Constitution Amendment XIV, Section 1:

“All persons born or naturalized in the

United States, and subject to the

jurisdiction thereof, are citizens of the

United States and of the State wherein they

reside. No State shall make or enforce any

law which shall abridge the privileges or

immunities of citizens of the United States”

nor shall any State deprive any person of

life, liberty, or property, without due process

of law; nor deny to any person within its

jurisdiction the equal protection of the

laws.”

’ Jurisdiction to review Decisions of State Courts" by

Cressman, Geller, Shapiro, Bishop Hartnett, Chapter 3.1 (f)

"The all certiorari Jurisdiction Over State Courts" states at

pg. 146-7: ‘as the linear descendant of Section 25 now

states, 28 U.S.C. Sec. 1257(a), final state court judgments or

decrees involving federal questions 'may be reviewed by the

Supreme Court by writ of certiorari’- and only by writ of

certiorari.”

8

Florida Statute 766.106. Is the malpractice

statute under which the action was initially

brought, but interpretation of the statute is

not at issue in the instant case nor is its

validity contested.

STATEMENT OF THE CASE

Petitioner (plaintiff below) is eyewitness, estate

personal representative, Michigan attorney pro hac

vice by consent in the Florida Court of Appeal and

son, of decedent Dora Brown Rose.

Petitioner alleges his mother was

buoyantly recovering from pneumonia (000339 2d

Amended Complaint) on her doctor’s first morning

round after her afternoon hospital admission

(000339 2d Am. Complaint) Following that, the

critical medicines due in the afternoon were

forgotten all night, (000339 2d Amended complaint)

and the illness relapsed. Rejecting an offer of active

euthanasia, Dora Rose struggled through recovery in

the midst of poor hospital hygiene. (000342 2d

Amended Complaint) There was an 11 day interval

(000341 2d Amended Complaint) between

the diagnosed need for tube feeding and its

implementation Dora Rose was made prone (000342

2d Amended Complaint) inviting aspiration

pneumonia, and Dora Rose got aspiration

pneumonia. Worse, the critical medicines due in the

afternoon were again forgotten for the whole night

for the second time (000342 2d Amended Complaint)

The physician on learning this in his morning

rounds exclaimed "Omigod!" (000343

2d Amended Complaint)

There are other severe malpractices alleged.

No ordinary judgment call is alleged to be

malpractice in 20/20 hindsight. A short successful

hospitalization turned into a long, expensive failed

one, but the litigation's first importance is on the two

pneumonias, because in each, the forgetting to

administer critical medicines in the afternoon was

not discovered or corrected until the next morning, a

death-dealing time interval. It is not the ordinary

forgetting that is the worst hospital crisis, but

instead the absence of proper systems for

ascertaining and correcting missed doses (000346 2d

Amended Complaint). The principal focus of the

lawsuit was the failure of the hospital and its CEO

to have an effective system to ascertain and correct

critical error before correction is futile.

The Florida malpractice statute has modern

tort reform limiting most damage awards for the

elderly to the cost of the funeral. There are

exceptions for punitive damages, also restricted.

These caps also logically would deter contingent fee

attorneys. The Florida malpractice statute is at FL

statutes 766.106. There were state court issues that

do not warrant the attention of the United States

Supreme Court. Such as, Petitioner’s failure to

replace his outgoing lawyer within thirty days as

ordered by the court. Dismissal of the case was

appealed; Petitioner raised the issue of lack of

willfulness required by Florida case law

Commonwealth Federal Savings and Loan

Association v Tubero 569 So. 2d 1271 (FL 1990)

In the defense before the Court of Appeal

10

defense raised under the right decision for the wrong

reason, or tipsy coachman doctrine, de facto motions

for summary judgment.

Petitioner responded that, the summary

judgment issues alleged for the first time in the

Court of Appeal would fail on a developed record

that would be allowed under the "Oregon rule."

Defense had not yet filled an answer in the case.

This case was dismissed before much development.

PRESERVATION OF THE FEDERAL

QUESTION

Petitioner adequately preserved the federa!

question of due process in this case in particular

given the circumstances that there was no federal

question or due process issue in the trial court nor at

the time of filing Appellant’s initial brief in the

Court of Appeal nor prior to the time of Appellee

filing the response brief in which the “nmght for the

wrong reason” or “tipsy coachman” was first raised

Given that the court of Appeal dismissed the appeal

with a one word per curiam “Affirmed” and

dismissed the motion for rehearing with the word

“Denied” and given the State Supreme Court

dismissing the case before briefing.

Alternatively to granting certiorari this court

should certify for the State Supreme Court the issue

of whether Florida will adopt the Oregon rule set

forth in the “Outdoor Media Dimensions Inc. vs

State of Oregon” and if not, will the State Supreme

Court require the Court of Appeal to issue at least a

succinct opinion rather than one word

L]

“Affirmed” in “tipsy coachman” cases

Alternatively this Court should postpone

action until development of the record by each party

being allowed three depositions.

The purpose for a Petitioner preserving the

federal question in State court is set out in Rose v

Lundy 455 U.S. 509, 102 S. Ct. 1198, 71 L. ed 2d 379

(1982). “The exhaustion doctrine is principally

designed to protect the state court’s role in

enforcement of federal law and prevent disruption of

state judicial proceedings.” Id at 518, S. Ct at 1203.

The court further stated: “Because it would be

unseemly in our dual system of government for a

federal district court to correct a state court

conviction without an opportunity to the state courts

to correct a constitutional violation, federal courts

apply the doctrine of comity, which teaches that one

court should defer action on causes properly within

its jurisdiction until the courts of another

sovereignty with concurrent powers, and already

cognizant of the litigation, have had an opportunity

to pass upon the matter.” (Citing Darr v Burford, 12

339 U.S. 200, 204, 70 S. Ct 587, 590, 94 L Ed. 761

(1950)

Petitioner in the Circuit Court was faced with

no federal question. The issue was of violation of a

court order to replace counsel. In the Court of Appeal

the issue Appellant (Petitioner) raised was whether

the Court violated state law that required a finding

of willfulness or contumaciousness. Only at the

defendants’ (Respondents) response in the Court of

Appeal did defendant (Respondent) raise “tipsy

coachman” issues and in reply to that Appellant

12

(Petitioner) raised was whether the Court violated

state law that required a finding of willfulness or

contumaciousness. Only at the defendants’

(Respondents) response in the Court of Appeal did

defendant (Respondent) raise “tipsy coachman”

issues and in reply to that Appellant (Petitioner)

raised the difference between the Florida practice

and the Oregon rule that restricts “Tipsy Coachman”

when the record below might be differently

developed. Due process was implicitly raised then

and explicitly in a rehearing motion.

At Pg. 20 Of Petitioner’s Court of Appeal

rehearing motion Petitioner stated that the Oregon

standard doesn’t offend due process. At Pg. 21

Petitioner wrote “We want the Court to write an

opinion which would provide the legal basis for

Supreme Court review because the Court should

review the tipsy coachman standard as relevant to

this case and should adopt the standard in Oregon

for Florida to ensure due process.”

Par. 25 of Petitioner’s “corrected Motion for

Rehearing” in the Court of Appeal stated: “The tipsy

coachman doctrine as applied by the Court denies

Plaintiffs constitutional] right to meaningful access

to the Courts.”

But the State Court of Appeal did not seek the

desire to pass upon the matter but dismissed the

appeal with a one-word opinion ‘Affirmed” and

13

declined a motion for rehearing with the word

“Denied.”

Preservation of the question of federal due

process was adequate but would have been made

more so before the State Supreme Court, but the

State Supreme Court dismissed the case before

briefs could be timely filed.

One of the bases for State Supreme Court

jurisdiction would be to advance a good faith

extension or modification of existing law as to

whether the Court of Appeal or the State Supreme

Court is the gatekeeper to access to the state

Supreme Court for determination of an important

question. Another would be to ask the state Supreme

Court to hold its discretionary jurisdiction decision

in abeyance pending application to this Court as is

being made here, for certification of an issue for

state Supreme Court determination. Florida Rules of

Appellate Procedure provide for Supreme Court

review of important questions both after and during

the pendency of a matter in the Court of Appeal, the

rule explicitly providing that the Court of Appeal

makes the certification of the importance of the issue

in case of review during pendency in the Court of

Appeal. The rule is silent but case law provides that

the Court of Appeal is the determiner of the

certification of the important issue after the Court of

Appeal has determined the issue.

Williams v Florida 399 U.S. 78, 80, n.5 1970

mentions that decision of an intermediate state

appellate court may be final and unreviewable, but

Stratton v Stratton, 239 U.S. 55, 1915 provides that

if there is discretionary review by the state Supreme

14

Court it must be sought. In the instant case

Petitioner sought the review of the state Supreme

Court, where due process issues were made ripe by

the response brief in the Court of Appeal raising

“tipsy coachman” issues.

If this Court finds the preservation of the due

process issue inadequate or if it is insufficient that

the Court of Appeal and Supreme Court seemed to

not take up the issues raised by presentation of the

Oregon rule in Petitioner’s Court of Appeal reply and

rehearing briefs, then this case is perfect for the U.S.

Supreme Court to certify for consideration by the

Florida Supreme Court the question, not heretofore

decided by it: whether due process requires that in

cases of the doctrine of “right decision for the wrong

reason” or “tipsy coachman doctrine”, Florida either

adopt the Oregon rule In “Outdoor Media...” supra

that tipsy coachman will not be used in cases where

a record below could be developed as a different

record; or at minimum that the Court of Appeal

would be required to write a succinct opinion in tipsy

coachman cases and not a one word affirmance.

REASONS FOR GRANTING PETITION

The United States Supreme Court should grant

certiorari, or alternatively certify to the Flonda

Supreme Court to rule on the question presented to

them. The "Right Ruling for the Wrong Reason"

15

judicial doctrine is sometimes called the "Tipsy

Coachman" doctrine, named after a poem by Oliver

Goldsmith, "Retaliation: a Poem, first cited in a case

in "Lee v Porter," 63 Ga. 345. (Ga. 1879):

“The pupil of impulse, it forc'd him along,

His conduct still right, with his argument wrong;

Still aiming at honor, yet fearing to roam,

The coachman was tipsy, the chariot drove home."

The law shouldn’t be based on the charm of poems,

which can be intoxicating and distract from analysis.

We shouldn’t have to wait a century before

dispatching charming poems to their appropriate

nursery rhyme status.

The charm of the poem notwithstanding, it says

nothing about the risks inherent to fairness in ruling

that the lower court was right for the wrong reason —

by an appellate court applying the night reason to fit

a ruling, the court is not only failing in its own

critical analysis of the case... it is depriving the

litigants of their own critical analysis of the case

The Oregon Rule by honoring the right of the

litigants to develop their different record to support

the new rational for a ruling is restoring at least

some of the critical analysis that the litigants, in all

fairness, have a right to present.

The tipsy coachmen poem beneath its charm is a

nihilistic device to allow judges to take shortcuts in

making their rulings.

16

The "Tipsy Coachman” doctrine is highly criticized

including in The Florida Bar Journal, Vol. 81,

Number 7, July/August 2007 "Tipping the Ole Tipsy

Coachman Over in His Grave - An Inequity of

Appellate Review" by H. Michael Muniz. In the

instant case, the doctrine was invoked by defense to

inject de facto motions for summary judgment and

an allegation of statute of limitations, into a

response brief in the Court of Appeal, in a case of

dismissal on a technicality. Real summary judgment

motions made below would allow depositions and

affidavits for development of the record.

The principal forensic effect of loading an appellate

review of a technical dismissal with massive

dispositive motions set up to be first heard in the

Court of Appeal precluding record development, is to

have these heard with half a chess board or less, in a

short response brief and 10 minute oral argument

without developed record. But if the effect is to

crowd out and smother the merits of a systems

malpractice case, then it is crowding out and

smothering the important litigation, which in the

instant case, is about systems malpractice affecting

lives. Not all litigation is greedy, or trivial, and the

appellate courts need to separate wheat from chaff

by hearing the facts and arguments as properly

developed.

The Oregon Rule mitigates the issue avoidance

damage of the "right for the wrong reason"

a/k/a "tipsy coachman" doctrine, and so does the

requirement suggested here that the Court of Appeal

17

issue at least some sort of opinion in a tipsy

coachmen case. At least this latter would identify the

issue ruled upon and allow intelligent determination

whether and what to file for re-hearing.

The Florida rule of unfettered tipsy coachman, and

the Oregon rule precluding its application in cases

where the Appellant might develop a different record

below, create a disparity between State Supreme

Courts that should be resolved by the United States

Supreme Court.

The Oregon rule in "Outdoor Media Dimensions Inc.

vs State of Oregon”, Supreme Court of Oregon 20 P

3rd 180 (OR 2001) 1998, states "even if the record

contains sufficient evidence to support an alternative

basis for affirmance, if the losing party might have

created a different (emphasis provided) record below

had the prevailing party raised that issue, and the

record could affect the disposition of the issue, then

we will not consider the alternative basis for

affirmance."

Florida by contrast has no such protection and its

Supreme Court is starkly in contrast to Oregon’s on

the issue.

In Dade County School Board vs Radio Station

WQBA, et al, 731 So. 2d 638, 1999 Fla. Lexis 117; 24

Fla. L. Weekly S 216, the Flonda Supreme Court in

marked distinction from the Oregon rule in

“Outdoor Media...” supra, states “...if a trial court

18

reaches the right result, but for the wrong reasons, it

will be upheld if there is any basis which would

support the judgment in the record. This Court has

adhered to this principle on many other occasions.”

H. Michael Muniz writes in the Florida Bar Journal

Vol. 81 No 7 July/August 2007, “Tipping the Ole

Tipsy Coachman Over in his Grave — an Inequity of

Appellate Review”, “Virtually every Florida

appellate court has described the tipsy coachman

doctrine as a doctrine of appellate efficiency” cites at

footnote 70, “and also reasoned that the tipsy

coachman arises from the presumption of correctness

with which the judgment of the trial court is clothed”

footnote 71. : At least one Florida court has described

it as the pragmatic Tipsy Coachman rule” citing at

footnote 72, Houssami v Nofal, 578 So. 2d 495, 497

(Fla. 54 DCA 1991). Muniz comments: “One is

compelled to wonder when appellate efficiency or

pragmatism came to exceed or overcome the search

for truth, justice and fundamental constitutional

rights.”

This Court should grant certiorari and for ultimate

relief in this case, determine that the Oregon rule is

the correct rule in that it goes further to provide

fundamental fairness. Additionally or in the

alternative, this Court should rule that in tipsy

coachman cases, the appellate court should provide a

written opinion, at least tersely setting out its

ruling.

Providing an opinion in one word "Affirmed", in a

19

tipsy coachman case adds insult to injury to the

litigants and lawyers, who are not apprised of

whether the reason for the affirmance was the

argument as made below, or the argument as made

by the tipsy coachman doctrine. Knowing the basis

for the ruling would assist the litigant and counsel to

determine whether a motion for rehearing should be

made, and its basis if appropriate.

ALTERNATIVELY THE COURT SHOULD ASK

THE FLORIDA SUPREME COURT TO ANSWER

THE ISSUES PRESENTED.

Citing Florida rules of Appellate Procedure: Rule

9.030 Jurisdiction of Courts in pertinent part, allows

and encourages the United States Supreme Court to

certify issues to the Florida Supreme Court.

“(a) Jurisdiction of Supreme Court

"(2) Discretionary Jurisdiction.

"(C) Questions of law certified by the Supreme Court

of the United States or a United States court of

appeals that are determinative of the cause of action

and for which there is no controlling precedent of the

Supreme court of Florida"

Petitioner asks the United States Supreme Court in

alternative or addition to granting certiorari on the

questions presented, to certify to the Florida

Supreme Court this question of law: "If Florida does

not adopt the ‘Oregon rule" — set forth in Outdoor

Media Dimensions Incorporated, an Oregon

corporation vs State of Oregon et al Supreme Court

20

of Oregon 20 P 34180 (Or. 2001) 1998, i.e. if Florida

continues to allow its Courts of Appeal to affirm a

trial court ruling finding it “right for the wrong

reason" without the Oregon protection disallowing

that doctrine when the record below could be

developed differently than that presented in the

Court of Appeal, should the Florida Court of Appeal

write at least a terse opinion and not only a one-

word "affirmed" in granting the affirmance as a

matter of fairness? Put another way, the Florida

Supreme Court would be asked to consider ruling

whether Florida state court appellants would either

have the benefit of being able to develop the record

with depositions and affidavits before the Court of

Appeal affirms based on the "right ruling for the

wrong reason" doctrine or at least the Appellant

would be protected by the Court of Appeal being

expected to write some sort of opinion even a terse

one, in cases where it applies the doctrine.

In this manner Appellant and Appellee as well could

better expect the Court of Appeal to use critical

analysis in arriving at the opinion; and would be

able in appropriate cases to intelligently exercise the

right to seek rehearing not blindly but on the ruling

actually made if it appeared to have some

fundamental error

The respect for the judiciary is higher when litigants

and attorneys see the merits decided according to

the law, applying critical analysis. Time saving

devices for judges compromises this integrity. The

integrity as a furtherance of judicial quality is

21

replaced in part with the appearance of quality as

lawyers are expected to be silent critics if judges

sidestep an issue and write a per curiam one word

affirmance. This might not matter a lot in a case

that is just about money, such as some

malpractice and other tort cases, but in a case of

systems malpractice, any lack of critical analysis of

appellate courts is known in the hospital boardrooms

of those cutting corners allowing the systems

negligence. The CEOs and their associates should

not be facilitated to prefer forensic solutions, to

critical systems changes.

CONCLUSION

We request this honorable court to grant certiorari

for the forgoing reasons. Dated: 11/3/2009

Or certify the question to the Florida Supreme

Court.

Jonathan G. Weber Esq,

Attorney of Record

606 E. Cross St.

Ypsilanti MI 48104

(734) 323-2535

Jonathan I. Rose Esq,

Supporting attorney

508 Benjamin

Ann Arbor, MI 48104

(734) 757-5921

22

APPENDIX (A)

IN THE CIRCUIT COURT OF 1174 JUDICIAL

CIRCUIT IN AND FOR MIAMI DADE

COUNTY, FLORIDA

Case No: 05 12074 CA 15

Rose

Vv

Segel ET AL

)

FINAL ORDER OF DISMISSAL

THIS CAUSE having come on to be heard on

Defendant’s Dr. Segel’s Amended Motion for final

judgment of dismissal and the Court having heard

argument of counsel, and being otherwise advised

in the Premises, it is hereupon,

ORDERED AND ADJUDGED that said

Motion be, and the same is hereby granted a final

judgment of dismissal is entered for failure of

plaintiff to retain counsel in violation of the Court’s

December 13*t» 2006 order DONE AND ORDERED in

chambers, at

ao

This 7“ day of March 2007

(Mindy S Glazer’s Signature)

County (sic) Judge

Copies furnished:

Jonathan I Rose, ESC

Steve Solomon, ESC.

(unintelligible) ESC

24

APPENDIX (B)

IN THE CIRCUIT COURT OF THE

117 JUDICIAL CIRCUIT IN AND FOR

MIAMI-DADE COUNTY, FLORIDA

GENERAL JURISDICTION DIVISION

CASE NO: 05-12074 CAI15

Jonathan I. Rose as personal

Representative of Dora Brown Rose

Plaintiff(s),

Mt. Sinai Medical Center

a/k/a Mount Sinai Hospital

Defendant(s)

ORDER GRANTING DEFENDANT'S

MSMC’”s and Steve Sonenreich’s

motion to dismiss

THIS CAUSE having come on to be heard on

March 7 2007 On Plaintiffs/Defendant’s Motion to

dismiss this complaint with prejudice and for

sanctions

and the Court having heard argument of counsel and

being otherwise advised in the premises it is

hereupon

ORDERED AND ADJUDGED that said

motion be, and the same is hereby Granted final

order of dismissal is hereby entered because of

failure by plaintiff to retain counsel in violation of

this court’s December 13, 2006 order

DONE AND ORDERED in Chambers at

Miami-Dade County Florida 7** day of March 2007

Mindy S Glazer’s signature

CIRCUIT COURT JUDGE

Copies furnished to: Counsel of record

26

APPENDIX (C)

IN THE CIRCUIT COURT OF THE 117#

JUDICIAL CIRCUIT IN AND FOR

MIAMI-DADE COUNTY, FLORIDA

GENERAL JURISDICTION DIVISION

CASE NO.: 05-12074 CA 15

JONATHAN I. ROSE, individually

And as Personal Representative of the Estate of

Dora Brown Rose,

deceased,

Plaintiff,

VS.

MOUNT SINAI MEDICAL CENTER

a/k/a MOUNT SINAI HOSPITAL AL,

NATHAN SEGEL M.D., AND

STEVEN SONENREICH, M.D., CEO

of Mount Sinai Hospital,

Defendants,

/

ORDER DENYING PLAINTIFF’S MOTION

FOR REHEARING

THIS CAUSE came before the Court on the

Motion for Rehearing filed by the Plaintiff,

JONATHAN I. ROSE, individually and as Personal

Representative of the Estate of Dora Brown Rose,

27

deceased, on the Order of Dismissal entered March

7, 2007, and the court having reviewed the Motion

and being otherwise fully advised in the premises, it

is

ORDERED AND ADJUDGED that the

Plaintiffs Motion for Rehearing is DENIED.

DONE AND ORDERED in Miami-Dade

County, Florida on this APR 12 2007day of April,

2007.

Mindy S. Glazer

Circuit Court Judge

Circuit Judge

Copies furnished to:

Jonathan I. Rose

Scott E. Solomon

Richard T. Woulfe

28

APPENDIX (D)

Third District Court

of Appeal

State of Florida, January Term, A.D.

2009

Opinion filed January 21, 2009.

Not final until disposition of timely filed motion for

rehearing

No. 3d07-1269

Lower Tribunal No. 05-12074

Jonathan I. Rose, individually and as

Personal Representative of the

Estate of Dora Brown Rose, deceased,

Appellant,

VS.

Mount Sinai Medical Center a/k/a Mount

Sinai Hospital, Nathan Segel, M.D., and

Steve Sonenreich, M.D.,I,

Appellees.

29

An Appeal from the Circuit Court for Miami-

Dade County, Mindy S. Glazer, Judge.

Jonathan I. Rose, (Michigan) in proper person,

and Charles M. Baron, for appellant.

Bunnell Woulfe Kirschbaum Keller &

Gregoire, Nancy W. Gregoire and Richard T. Woulfe,

(Ft. Lauderdale), for appelle, Nathan Segel, M.D.;

Falk, Waas, Hernandez, Cortina, Solomon & Bonner

and Paul H. Field, for appellees, Mount Sinai

Medical Center and Steve Sonenreich, M.D..

Before WELLS, SHEPHERD, and SUAREZ, JJ.

PER CURIAM.

Affirmed.

30

APPENDIX (E)

7/28/2009 16:00 3059339992 CHARLES M BARON

PAGE 02/02

IN THE DISTRCIT COURT OF APPEAL

OF FLORIDA

THIRD DISTRICT

JANUARY TERM, A.D. 2009

JUNE 29, 2009

JONATHAN I. ROSE, ETC.,CASE NO.: 3D07-1269

ET AL.,

Appellant(s) / Petitioner(s),

VS.

LOWER TRIBUNAL

MOUNT SINAI MEDICAL NO. 05-12074

CENTER, ETC., ET AL.,

Appellee(s) / Respondent(s).

Upon consideration, appellants’ corrected

motion for rehearing, written opinion and to certify

appellate questions is hereby denied.

Upon consideration of the motion for

attorney’s fees and costs filed by appellee Mount

Sinai Medical Center a/k/a Mount Sinai Hospital, it

is ordered that said motion is hereby denied.

WELLS, SHEPHERD AND SUAREZ, JJ., concur

(Seal of Court of Appeal of Florida)

31

ce:

Charles M. Baron

Jonathan I. Rose

Norman M. Waas

Paul H. Field

Richard T. Woulfe

32

APPENDIX (F)

Supreme Court of Florida

THURSDAY, AUGUST 6, 2009

CASE NO: SC09-1393

Lower Tribunal No(s) 3D07-1269, 05-12074

JONATHAN I. ROSE, ETC.

VS.

MOUNT SINAI MEDICAL CENTER, ETC., ET AL.

Petitioner(s) Respondent(s)

Having determined that this Court is without

jurisdiction, this case is hereby dismissed. See

Stallworth v. Moore, 827 So. 2d 974 (Fla. 2002);

Jenkins v. State, 385 So. 2d 1356 (Fla. 1980)

No motion for rehearing will be entertained by

the Court.

A True Copy

Test:

(Thomas D. Hall, Clerk of Supreme Court of

Florida’s signature)

(Supreme Court of Florida Seal)

kb

Served:

33

JOSHUA R. FINK

RICHARD T. WOULFE

NORMAN M. WAAS

PAUL H. FIELD

HON. MARY CAY BLANKS, CLERK

HON. HARVEY RUVIN, CLERK

HON. MINDY SUE GLAZER, JUDGE

34

APPENDIX (G)

(Portion of Second Amended Complaint)

9. The wrongful conduct as exemplified without

limitation to the following, by attempt to induce No

Code and to do active euthanasia after malpractice

but while there was a chance of recovery and there

was a first recovery, and by the allowance of a

second pneumonia and by failure to get the

antibiotics administered a second time, and by

refusal to let a physician...have access to his

mother’s chart, and by not having available

physician for crisis with the bipap until the E.R.

physician rescue against ...Sonenreich’s protocol;

and by the security guard responding to the question

“is there always a party in the ICU, “ with the

response that he would not say as he does not want

lawsuits...and by the hospital worker making the

bed prone facilitating aspiration...”

Pg. 000337

16. In the ensuing days leading up to Dora rose’s

death she would be subjected to multiple, severe

systemic malpractices.

17. “Systemic” in the preceding paragraph means

that there were systems failures. The principal but

not the only systems failure was that there was no

patient centered management of a case. That is

there was no intelligent qualified person engaged in

effective ongoing management of the patient’s care:

35

knowing the orders and intended orders, the

changing conditions, and the implementation of the

orders and any errors or omissions for correction,

and prompt securing of intelligent qualified

attention to changes.

P/ 000339

35. During Dora Rose’s stay at Mount Sinai, hygiene

was sub-optimal. Staffers would not always change

gloves when going from one patient room to another

and staffers would not aalways change gloves when

going from the lavatory to the patient.

36. Dora Rose got a new pneumonia in the hospital.

P. 000342

40. ... Jonathan stated that the I.V. request didn’t get

on the chart. The physician threw his hands to his

face and said “Omigod” or similar.

P000343