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HomeMy WebLinkAbout96-01402 ; . , , i i.. . 1 ~ i ~ I '\ I II " I ~'i ! j f , , I ! i j ! ~ J ~ . d , , J I I J ~ ~ ~ '" , i ~ r--.. I \ I \ ! ." ''\. r-ilFD'urcICE ".- '.- .. ~ -'r ,...., '1 'J'I'( .. " . .~.__ ' ".' ~"." i'... :~ '=:3 S;'-P 11 Pil 4: 19 C I' j' - "~TY 'U".":'{I ':../ ~...) t.{..IUI,. PE(.J:~SYL\~.\N;A i , I I I I I I ! i Exhlbit It. li' I . I h , ;: I , ,i. , . ~~-~:~:r: ~-:~: ~j{ " DEFINITIONS AND INSTRUCTIONS (A) Whenever the term "document" is used herein, it includes (whether or not specifically called for) all printed, typewritten, handwritten, graphic or recorded matter, however formal or informal. (8) Whenever you are asked to "identify" a document, the following information should be given as to each document of which you are aware, whether or not you have possession, custody or control thereof: (1) The nature of the memorandum, computer print-out, recording, etc.); document minutes, (e.g., letter, resolution, tape (2) Its date (or if it bears no date, the date when it was prepared); . (3) The name, address, employer and position of the signer or sig~ers (or if there is no signer, of the person who prepared it); (4) The name, address, employer and position of the person, if any, to whom the document was sent; (5) If you have possession, custody or control of the document, the location and designation of the place or file in which it is contained, and the name, address and position of the person having custody of the document; (6) If you do not have possession, custody or control of the document, the present location thereof and the name and address of the organization having possession, custody or control thereof; and (7) A brief statement of the subject matter of such document. (e) Whenever you are asked to "identify" an oral communication, the following information should be given as to each oral communication of which you are aware, whether or not you or others were present or participated therein: ! ~ " (1) The means of communication (e,g. telephone, personal conversation, etc.); (2) Where it took place; (3) Its date; (4) The names, addresses, employers and positions (a) of all persons who participated in the communication; and (b) of all other persons who were present during or who overheard that communication; (5) The substance of who said what to whom and the order in which it was said; and (6) Whether that communication or any part thereof is recorded, described or referred to in any document (however informal) and, if so, an identification of such document in the manner indicated above. (0) If you claim that the subject matter of a document or oral communication is privileged, you need not set forth the brief statement of the subject matter of the document, or the substance of the oral communication called for above. You shall, however, otherwise "identify" such document or oral communication and shall state each ground on which you claim that such document or oral communication is privileged. (E) Whenever you are asked to "identify" a person, the following information should be given: (1) The name, present address and present employer and position of the person; and (2) Whether the person has given testimony by way of deposition or otherwise in any proceeding related to the present proceeding and/or whether that person has given a statement whether oral, written, or otherwise, and if so, the title and nature of any such proceeding, the date of the testimony, whether you have a copy of the transcript thereof, the name of the person to whom the statement was given, where the statement is presently located if written or otherwise transcribed, and the present location of such transcript or statement if not in your possession. (F) The term "you" shall be deemed to mean and refer to the party to whom these Interrogatories have been propounded for answer and shall also be deemed to refer to, but shall not be limited to, your attorneys, consultants, sureties, indemnitor, insurers, investigators, and any other agents insofar as the material requested herein is not privileged. The term "you" shall also be deemed to refer to Plaintiff(s) . '~ (0) The word "incident" shall be deemed to mean and refer'to the incident as alleged to have occurred and as set forth in your Complaint. I \ ~ 4. Set forth the qualifications of each expert. In doi.ng so, list the schools each has attended, including years in attendance and degrees received, experience in particular fields, including names and addresses of employers with inclusive years of employment, and a list of all publications authored by said persons, including the title of the work, the name of the periodical or book in which it was printed, and the date of its printing. (You may attach a copy of each expert's curriculum vitae and list of publications in lieu of answering this Interrogatory.) ~SWER: I I I I j i I 1 I exhibit B r " I . , " III. ARGUl\IEl'{[: Pennsylvania Rule of Civil Procedure 4005 allows a party to servc written inlerrogalories 10 be answered by any other party, Thc answcrs to intcrrogatories must he in writing and. unless objecled 10, must be answered fully and completely, Pa, R.C,P, 4006, If a party fails 10 serve answers or objections 10 writtcn intcrrogatories, Pa. R,C.P. 4019 allows the court to sanclion that party, PlaitnitTs were served with Moving Defcndants' Wilness/Expcrt Witness interrogatories on or about April 29, 996, PlainlitTs never rcquesled an extcnsion of time in which to provide responses to said discovery requests and providcd responscs on or aboul January 14, 1997, Such rcsponses merely stated that they had not yct delcmlined cxpcrts in this matter and, thercfore, were unable 10 respond, When discovery requests are not complied with, Pa, R,C,P, 4019 establishes a mandatory proccdure to be followed. When a party fails 10 comply with a request for discovery, "a motion must be presented to the Court to detennine the default. Upon finding Ihat a defaull has occurred. the Court may. , . make an appropriate Order," Roman v Pearlstein, 329 Pa, Supcr, 392,478 A,2d 845 (1984) cl1ini Gon1ales v Proeado Brothers Tnlckinll Company, 268 Pa, Super, 245.47 A.2d 1338 (1979), Within ils discretion, the Court may cnter an Order refusing to allow the non-complying party 10 ofTer testimony or any othcr cvidcncc dcsigncd to support the non-complying party's claim or any olher sanctions as the court deems just. Willfulness is not a precedenlto the imposition of sanctions, and a Courl may imposc sanctions even ifthe failure to comply is not willful. s.ce Roman. Supra, at 848, See also, Pa. R,C,P, 4019 explanalory note. 1978 paragraph 2, "In practice. however, -3- sanctions lor failure to respond to discovery requests arc generally not imposed unti I there has been a refusal to comply with a Court Order directing compliance." Dion. v Ciraduate Hospital.oLthl: llJili:ersit)' ofPenn~)'lvania. 360 Pa. Super. 4l6, 520 A.2d 876 at 882 (1987). As such. Moving Defendants' only recourse at this point in time is to ask the Court to enter an Order directing the Plaintiffs to comply with Moving Defendant's request for l!.iscovery and produce their expert testimony. Pa. R.C.P. 4007.4( I) states that a party is under a duty to seasonably supplement his/her response with respect to any question directly addressed to the identity and location of persons having knowledge of discoverable mailers and the identity of each person expected to be called as wilnesses attnal. the subject mailer on which he is expected to testify and the substance of his testimony as provided in Rule 4oo3.5(a)( I), Over two years have elapsed since Plaintiffs were served wilh discovery and they have failed to supplement their responses to requests for expert testimony. 11 is reasonable to conclude that Plaintiffs have determined their expert(s) and the suLstance of such teslimony. Given Ihal determination. they have failed 10 comply with the Pennsylvania Rules of Civil Procedure as slated above and are subject to sanclion by the Court. This is a complex medical malpractice aclion. complicaled further by Ihe delay of Plaintiffs to slate the basis for their cause of action and the substance of their case at hand in the form of expert witness testimony. Discovery is necessary to allow parties to adequately prepare for tnal and. in medical malpractice cases such as the instant case. the infomlalion sought in expert testimony is critical to Moving Defendant and all parties in the action in determining the expeditious resolution of the case. The PlaintilTs' failure to provide the information requested nearly lWO years ago has severely prejudiced .4- CEB.T1f1CAIL-OUiERYIC.E I, JOANN P. TRESCO, an cmploycc of Ihc linn of POST & SCHEll, P.C" do hereby certify Ihat on Ihe date set forth below, I did scrvc a truc and correct copy of thc foregoing Defendant Allen S. Wenger, M.D, andllarrlsburg UrologIcal Assoclates,lnc.'s BrIef In Support of MotIon to Compel Directed to Plaintiffs upon the following person(s) at the following address(es) indicated bclow by scnding same in the Unitcd Statcs mail, Iirsl-c1ass, postage prepaid: Thomas W, Hall, Esquire Allee, Hall & Brookhart, LLP P,O. Box 449 Lancaster, P A 17608-0449 Craig A. Stone, Esquire Melle, Evans & Woodside 3401 North Fronl Street p, 0, Box 5950 Harrisburg, P A 17110 Daniel Grill, Esquire 1850 William Penn Way Suile 209 P. O. Box 10696 Lancaster, PA 17605-0696 Dated: ?}h}m -6- 1" l.: ," '" " ".) i ',....) D -i"') ....~ ~ '- i I It!' (',. r~" 1-:- t.:: , ' r> C... ~ ,J 4.;',' ,.. '. -- 1"' l\. . ,:r--::; -'...J .... -lJ ~ ...:::t "- " -~ ~ '-.J ...... '\-' "':J. - .., '- - -' ~ .-v" ........ ~. I ,.~ , , , Commonwealth of Pennsylvania County of Cumberland Gilbert L. Clouse and patricia L. Clouse, husband and wife v. Allen S. Wenger, M.D. Harrisburg Urological Associates, 890 Poplar Church Road Camp Hill PA 17011 John B. Goedecke, M.D. Sherman Associates and 104 Erford Road Camp Hill PA 17011 Holy Spirit Hospital 503 North 21st Street Camp Hill PA 17011 Inc. Court 01 (;oounoo Pleaa 96-1402 Civil Term No, 19._._ Civil Action - Law In .._______.._....._______.__.____..___________ Allen S. Wenger, MD, Harrisburg Urological Associates, Inc., John B. Goedecke, MD, Sherman Associates and Holy Spirit Hospital: To ._._..._......_._______.__.___..__.._._.____. You are heroby notified that Gilbert L. and Patricia L. Clouse, husband and wife .__...-_.-------~--------------------------------._----------------------------------------------- the PlaintiffS have commenced an action in ._m~.~~~__:_~!__'~~~.!:c:!~?_r:_:.~~.u___._u_______ "llaimt you which you are required to delend or a delault judgment may be entered againsl you. (SEAL) Date _____March..l.4...___u_.__.__ 19..9.6 Lawrence E. Welker ,._..._---_.__..__.p~~~~~..__._.._.._------- " nJ~-'"'---,L1,,;;t.;-ll-ldf-(t------- 'J "f " 'I 'i \ I :,: G'~f .;of:~~:"'\.( lJ "",,..." \ y - : n , L , W~ I .' CJ f'.' ,':; ~" ,., .'. : -' ,. L L I ,. ." t , .. ( 1 VS. ALLEN S. WENGER, M.D" HARRISBURG UROLOGICAL ASSOCIATES, INC" JOHN B. GOEDECKE, M.D., SHERMAN ASSOCIATES and HOLY SPIRIT HOSPITAL, : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA : NO. 96-1402 CIVIL : CIVIL ACTION - LAW GILBERT L. CLOUSE and PATRICIA L. CLOUSE, Plaintiff Defendants PRAECIPE TO THE PROTHONOTARY: Please enter the appearance of Craig A, Stone, Esquire on behalf of the Defendant Holy Spirit Hospital in the above-captioned matter, METTE, EV NS & WOOofuDE 6 . I , 3401 North fr P,O. Box 595 Harrisburg, PA 17110-0950 (717)232-5000 Attorneys for Defendant, Holy Spirit Hospital DATED: 3/22/96 ELLIS , ASSOCIATES, P.C. BY: Leigh A.J. Ellis Identification No. 53229 Darlene K. King Identification No. 75B9B 1B50 William Penn Way suite 209 P.O. Box 10696 Lancaster, PA 17605-0696 (717) 390-3020 GILBERT L. CLOUSE and PATRICIA L. CLOUSE Husband and Wife 60,557 Attorneys for Defendants: John B. Goedecke, M.D., and Sherman Associates COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA . . . . . . v. NO. 96-1402 ALLEN S. WENGER, M.D. and HARRISBURG UROLOGICAL ASSOCIATES, INC. and JOHN B. GOEDECKE, M.D. and SHERMAN ASSOCIATES and HOLY SPIRIT HOSPITAL . . TWELVE JURORS DEMANDED ENTRY OF APPEARANCE TO THE PROTHONOTARY I l(indly enter my appearance on behalf of Defendants, John B. Goedecke, M.D., and Sherman Associates, in the above-captioned matter. ELLIS' ASSOCIATES, P.C. ) /:~ (//IL", LEIGH A.J. ELLIS Attorney or Defendants, John B. oedecke, M.D, and Sherman Associates ELLIS' ASSOCIATES, P.C. BY: Leigh A.J. Ellis Identification No. 53229 Darlene K. King Identification No. 75898 1850 William Penn Way Suite 209 P.O. Box 10696 Lancaster, PA 17605-0696 (717) 390-3020 GILBERT L. CLOUSE and PATRICIA L. CLOUSE Husband and Wife 60,557 Attorneys for Defendants: John B. Goedecke, M.D., and Sherman Associates . . COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA v. ALLEN S. WENGER, M.D. and HARRISBURG UROLOGICAL ASSOCIATES, INC. and JOHN B. GOEDECKE, M.D. and SHERMAN ASSOCIATES and HOLY SPIRIT HOSPITAL NO. 96-1402 . . TWELVE JURORS DEMANDED . . RULE TO FILE COMPLAINT AND NOW, this II I~day of ~I'; I , 1996, a Rule is hereby granted upon Plaintiffs to file a Complaint against defendants, John B. Goedecke, M.D, and Sherman Associates, herein within twenty (20) days after service hereof or suffer the entry of a Judgment of Non Pros. d(,_LL~/ brer.da\96-116\complain, 4, Defendant John B, Goedecke, M.D., is a medical doctor licensed to practice medicine in the Commonwealth of Pennsylvania, with oftices and principal place of business at 104 Erford Road, Camp Hill, PA 17011. 5, Defendant Sherman Associales is a Pennsylvania corporation with a principal place of business located at 104 Erford Road. Camp Hill, PA 17011, 6, Defendant Holy Spirit Hospital is a hospital licensed under Ihe laws of the Commonwealth of Pennsylvania, with its principal place of business at 503 North 21st Street. Camp Hill, PA 17011.. SummarY or the Causes or A~ 7. On or about March 24. 1994, Plaintiff Patricia L. Clouse was admitted to Holy Spirit Hospital for the performance of a Stamey urethropexy procedure after she was diagnosed with a "fallen bladder." 8. Upon information and belief, a portion of the surgery was performed by Defendant Dr. Allen S, Wenger, and a portion was performed by Defendant Dr, John 8. Goedecke. 9, Following the surgery on March 24. 1994. Mrs. Clouse has been unable to void her bladder without catheterization, and has suffered the additional losses and damages described below. 10. In an allemptto remedy Dr, Wenger's negligent surgery, Mrs. Clouse underwent a second surgery at Geisinger Medical Center on September 27, 1995, a take-down of Stamey suspension sutures and urethrolysis, which was unsuccessful. , 2 -- brllnda\96-116\complain. COUNT I PATRICIA L. CWUSE Y. ALLEN S, WENGER. M.D. Nelllillence II. The aVllnnenlS in Paragraphs I-II above are incorporated herein by reference, 12. At all times relevant to the subject matter of this Complaint. Plaintiff Patricia L. Clouse was a patient of Allen S. Wenger, M.D., and was receiving medical care and treatment from him. 13. Defendant Allen S, Wenger, M,D" administered negligent medical care and treatment to the Plainliff in the following particulars: a. negligently perfonning his portion of the Stamey urethropexy procedure in such a maMer as to permanently impair the function of the bladder; b, failing to promptly and properly recognize the need to take immediate measures to remedy the intraoperative harm caused to Mrs, Clouse. 14. As a direct and proximate result of the negligence of the Defendant, Plaintiff has incurred significant medical expenses and will continue to incur such expenses in the future, for all of which damages are claimed, 15. As a direct and proximale result of the negligence of the Defendant. Plaintiff has incurred lost earnings and a decreased earning capacity, for all of which damages are claimed. 16, As a direct and proximale result of the negligence of the Defendant. Plaintiff has experienced extreme pain and suffering, disfiguremenl, embarrassmenl. humiliation and loss of 3 brenda\96-116\complain, the enjoyment of life's pleasures. and will continue to suffer such losses in the future, for all of which damages are claimed, 17, The negligence of the Defendant increased the risk thai Plaintiff would suffer serious injury and was a substantial faclor in causing the damages listed above, WHEREFORE, Plaintiff demands jUdgment against Defendanl Allen S, Wenger, M.D,. in an amount in excess of Twenty Five Thousand Dollars ($25,000), together with interest and costs thereon as allowed by law, COUNT II PATRICIA L. CLOUSE v. ALLEN S. WENGER. M.D. Res Ipsa Loquitur 18, The avennents of Paragraphs I through 17 of Plaintiffs' Complaint are incorporated herein by reference, 19. The injuries suffered by Patricia L. Clouse occurred during the time that she was under anesthesia for the operalion in question, 20. The injuries suffered by Palricia L, Clouse do not occur absent negligence on behalf of those who were in control of her person while she was under said aneslhesia, 21. Palricia L. Clouse did nol cause or contribule to her injuries in any manner, 22, Therefore, one or more of the named Defendants was negligent in the perfonnance of Iheir duties and caused the injuries suffered by Patricia L. Clouse. 4 brenda\96-116\complain. 30. &:cause of Dr. Wenger'~ failure to oblaln Plainlirr~ informed COI1~ent, Dr, Wenger is liable as a mailer of law Iilr the injuric:~ Ihill llo:~o:lopc:1l ilOO were not disclosed to Plaintiff when obtaininll her cnl1~em III surgery. WHEREFORE, Plaillliff demaoosjudllmenl against [Jc:(endant in an amount in excess of Twenty Five Thousaoo Dollars (S2~,OIX)), IOllelhc:r wilh imerest and coslS thereon as allowed by law, COUNT IV PATRICIA L. CLOUSE Y. HARRISBURG UROLOGY ASSOCIATES VICllrloUll Llllblllty 31. The a~ermenL~ in Paragraphs 1.30 abow ar.: incorporal.:d herein by reference. 32, AI all times r.:levaOl to th.: subject mailer of Ihls Complaint, Allen S, Wenger, M,D.. was an oslell8ible or aClllal allllnt, employee. or servant of Harrisburg Urology Associates and was aCling wllhin the course and ~'ope of his employment. 33, DefendantllarrlsburgllrolollY Associales is, therefore. vicariously liable for Ihe negligence of Allen S. Wenger, M. D. as a mailer of law and Is Ilabl.: for the damages sustained by PlaiOliff lisled above. WHEREFORE, Plainliff d.:mands judgment agail1~1 DefendaOl Harrisburg Urology Associates in an amouOl in excess of TWllnlY Fi~e Thousand Dollars <$25,(00), together with interest and COSL~ thereon as allowed by law. 6 brenda\96-116\complain, COUNT V PATRICIA L. CLOUSE v. JOHN B. GOEDECKE. M.D. Negligence 34, The avermenls in Paragraphs 1-33 above are incorporated herein by reference, 35, At all times relevant to the subjecl matter of this Complaint, Plaintiff Patricia L, Clouse was a patient of John B, Goedecke, M,D.. and was receiving medical care and treatment from him. 36. Defendant John B. Goedecke, M,O" administered negligent medical care and treatment to Ihe Plaintiff in Ihe following particulars: a, negligently performing his portion of the Stamey urethropexy procedure in such a manner as 10 permanently impair the function of Ihe bladder; b. failing to promptly and properly recognize the need 10 take immediate measures to remedy the inlraoperative harm caused to Mrs. Clouse. 37, As a direct and proximate result of the negligence of Ihe Defendant, Plaintiff has incurred significant medical expenses and will continue to incur such expenses in the future, for all of which damages are claimed, 38. As a direct and proximate result of the negligence of the Defendant, Plaintiff has incurred lost earnings and a decreased earning capacity, for all of which damages are claimed. 39, As a direct and proximate result of the negligence of the Defendant, Plaintiff has experienced extreme pain and suffering, disfigurement. embarrassment, humiliation and loss of 7 brenda\96-116\complain. Ihe enjoyment of life's pleasures, and will continue to suffer such losses in the future. for all of which damages are claimed, 40, The negligence of the Defendant increased the risk that Plaintiff would suffer serious injury and was a substantial factor in causing the damages listed above, WHEREFORE, Plaintiff demands judgmenl against Defendant John B. Goedecke. M,D.. in an amount in excess of Twenty Five Thousand Dollars ($25.000), together with interest and costs Ihereon as allowed by law, COUNI...YJ PATRICIA I.. CI.OUS..: v. JOliN B. GOEDECKE. M.D. Res Ipsa loquitur 41. The avennenls of Paragrnphs I through 40 of Plainliffs' Complaint are incorporated herein by reference, 42, The injuries suffered by Patricia L. Clouse occurred during the time that she was under anesthesia for the o(lCralion in queslion, 43, The Injuries suffered by Patricia L, Clouse do not occur absenl negligence on behalf of those who were in conlrol of her peuon while she was under said anesthesia, 44, PUlricin L, Clouse did not cnuse or contribule to her injuries in any manner. 45. Therefore, one or more of the numed Defendants was negligent in the performance of their duties nmJ caused the injuries suffered by Patricia L. ClolJse, WHEREFORE. Plaintiff demands judgment agninst Defendant John B, Goedecke, M,D. in nn 1I01ount in excess of Twenly Five Thousand Dollars ($25,000), together with interest and cosls thereon ns 1I11owed by law. 8 brenda\96-116\complain, COUNT VII PATRICIA L. CLOUSE v. JOHN B. GOEDECKE. M.D. Lack of Informed Consent 46. The averments of paragraphs 1 through 45 of Plaintiffs' Complaint are incorporated herein by reference. 47, Lack of informed consent is. at all times. relevant to the subject matler of this action, There was a physician/patient relationship between Patricia L, Clouse and Dr, Goedecke, 48, The performance of a Stamey urethropexy procedure is an invasive surgical procedure for which the patient's informed consent must be obtained, 49. The Stamey urethropexy procedure performed on Patricia L, Clouse was not emergency surgery and at all times the patient was capable of giving consent to this surgery. 50, The risk of the injury that occurred to Mrs, Clouse during the surgery is a risk that a reasonable person would have found material in making her decision whether or not to undergo this surgery. 51. Upon information and belief. at no time prior to the Stamey urethropexy procedure did Dr, Goedecke discuss the risk that Plaintiff could sustain the injury that she. in fact. sustained. 52, The risk not disclosed to Plaintiff has occurred and caused her severe and extensive injuries as set forth above, 9 brenda\96-ll6\complain. 53. Becaus<: of Dr. Goedecke's failure 10 obtain Plaintiffs infonned consent, Dr, Goedecke is liable as a mailer of law for the injuries that developed and were not disclosed to Plaintiff when obtaining her consent to surgery. WHEREFORE, Plainliff demands judgment against Defendant in an amount in excess of Twenty Five Thousand Dollars ($25,000), logether with interest and costs thereon as allowed by law. COUNT VIII PATRICIA L. CLOUSE v. SHERMAN ASSOCIATES Vicarious Liability 54, The avennents in Paragraphs I-53 above are incorporated herein by reference. 55, At all times relevant to the subject mailer of Ihis Complaint. John B. Goedecke, M,D., was an ostensible or actual agent, employee, or servant of Shennan Associates and was acting within the course and scope of his employment, 56, Defendant Shennan Associates is, Iherefore, vicariously liable for the negligence of John 8. Goedecke, M,D. as a mailer of law and is liable for Ihe damages sustaine~ by Plaintiff listed above. WHEREFORE, Plaintiff demands judgment against Defendant Shennan Associates in an amount in excess of Twenty Five Thousand Dollars ($25,000), together Wilh inlerest and costs thereon as allowed by law. 10 brenda\96-116\complain. COUNT IX PATRICIA L. CLOUSE v. HOLY SPIRIT HOSPITAL Vicarious Liability 57, The averments contained in Paragraphs I-56 above are incorporated herein by reference, 58. At all times relevant to the subject mailer of this Complaint, Defendants Allen S, Wenger, M,D, and John B, Goedecke, M,D, were ostensible or actual agents, employees, or servanls of the Holy Spirit Hospital and were acting wilhin Ihe course and scope of their apparent authorilY, 59, Defendant Holy Spirit Hospital held out Allen S, Wenger. M,D, and John B, Goedecke. M,D, as its employees, agenls, andlor servants at all times relevant to the subject matter of Ihis Complaint. 60, Defendant Holy Spirit Hospital is. Iherefore, vicariously liable for the negligence of Defendants Allen S. Wenger, M,D. and John B, Goedecke. M.D. under principles of respondeal superior and is liable for the damages sustained by Patricia L, Clouse specified above. WHEREFORE, Plaintiff demands judgment againsl Defendant Holy Spirit Hospilal in an amount in excess of Twenty Five 1'housand ($25,000). togelher with inlerest and costs thereon as allowed by law, 11 brenda\96-116\complain, COUNT X GILBERT L. CLOUSE v. ALLEN S. WENGER. M.D. Loss of Consortium 61. The avermenls contained in Paragraphs 1-60 above are incorporated herein by reference, 62, As a direct and proximate result of the negligence of Defendant Allen S, Wenger, M,D. Plaintiff Gilbert L. Clouse has been deprived of the care, companionship and services of his wife, Patricia L, Clouse. for all of which damages are claimed, WHEREFORE, Plaintiff Gilbert L. Clouse demands judgment against the Defendant, Allen S, Wenger, M,D" in an amount in excess of Twenty Five Thousand Dollars ($25.000). together with interests and costs Ihereon as allowed by law and other relief allowable by law and delermined appropriale by Ihis Court, COUNT XI GILBERT L. CLOUSE v. JOHN B. GOEDECKE. M.D. Loss of Consortium 63, The averments contained in Paragraphs 1-62 above are incorporated herein by reference, 64, As a direct and proximate result of the negligence of Defendant John B, Goedecke, M,D. Plaintiff Gilbert L. Clouse has been deprived of the care, companionship and services of his wife. Patricia L. Clouse, for all of which damages are claimed. 12 brenda\96-116\complain, WHEREFORE, Plaintiff Gilbert L, Clouse demands judgment against the Defendant, Holy Spirit Hospital, in an amount in excess of Twenty Five Thousand Dollars ($25,000), together with interests and costs thereon as allowed by law, A TLEE & HALL By: ~~ S, Barnell Allorneys for Plaintiff 8 North Queen Street p, 0, Box 449 Lancaster, PA 17608-0449 (717) 393-9596 ID No, 33092 & 66122 14 brenda\96-116\complain. VERIFICATION I hereby verify that the facts crmtained in the foregoing Complaint are true and correct to the best of my knowledge. information and belief, I understand that false statements herein are made subject to the penalties of 18 Pa,C,S,A, ~ 4904 relating to unsworn falsification to authorities. Dated: ? I/'; :~ , . / .1 ,,-;.. ./: " ./.~. #'//,./ / ,/ ,,' ,.'> J/ " : '/ ,. / ,,:~ ,- . ',/ .,... /" / /' ..0-/... /. /"~//"~"'1..-". " ., .' Oil rt L,' Clouse' ,.> .', '- j ----.-/ T.. L' . kt'?1 tee' erL ,)( (? (/U.?-L Patricia L. Clouse Daled: 7~~/~y 15 brenda\96-116\complain, CERTIFICATE OF SERVICE I hereby certify that I have this day caused a true and correct copy of the foregoing document. to be served upon the following persons by placing a copy of the said document in the United States mails, fint class mail, directed to their office addresses as follows: Evan Black, Esquire Post & Schell, P,C, 101 North Front Street Harrisburg, PA 17101 Leigh A, }, Ellis, Esquire 1850 William Penn Way Suite 209 P.O, Box 10696 Lancaster, PA 17605-0696 Craig A, Stone, Esquire Melle, Evans & WOodside 3401 North Front Street P,O, Box 5950 Harrisburg, PA 17110-0950 A TLEE & HALL By: 8 North Queen Street p, O. Box 449 Lancaster, PA 17608.0449 (717) 393-9596 ID No. 33092 & 66122 Dated: ..;,..." {,..... t~.. .) _.1996 16 ..' .. ':t:-, ~: ,- ,-. .. ~ ll'. -' ) l.. .> (I j ,. C' , , ! G' ., f.&'!l ",j , . '- \. e c. ) You are hereby notified to plead to the within document within twenty (20) days after service hereof, or a default judgment may be entered against you. ME By: Craig A. Ston, squire Sup. Ct, I. J;l. 15907 I 3401 North ront Street P. O. Box 5950 Harrisburg, PA 17110-0950 (717) 232-5000 Attorneys for Defendant Holy Spirit Hospital Dated: July 22, 1996 721:LU 3. Plaintiff saw Dr. Wenger in his private office on March 8, 1994 on referral from Dr. Goedecke to discuss the surgery referred to in Plaintiffs' Complaint. 4. Plaintiff chose to have Dr. Wenger perform his part of the surgery of March 24, 1994 without reference to any representations made to her by Hospital. 5. At the time Plaintiff was admitted to Holy Spirit Hospital on March 24, 1994, she was aware that surgical services would be provided to her by Drs. Wenger and Goedecke as had been previously discussed with each of those physicians in their private offices. 6. Hospital did not "provide" Dr. Goedecke, Dr. Wenger, or their groups, in cc.nnection with surgical services performed for Mrs. Clouse as referred to in Plaintiffs' Complaint. 7. Hospital did not act to lead Plaintiff to a reasonable belief that she was being treated surgically by employees of the Hospital. 8. At the time of her admission to Holy Spirit Hospital on March 24, 1994, Plaintiff was aware that Drs. Wenger and Gnedecke were independent staff physicians who were not employed by Holy Spirit Hospital. . 11 - 16. The damages alleged by Plaintiffs did not result from the acts or omissions of Hospital, its agents, servants or employees, but from acts or omissions of other persons and/or entities over whom answering Defendant had no control or right of control. 17. Plaintiffs' claims are barred by operation of Sections 103, 602, and 606 of the Health Care Services Malpractice Act of 1974, as amended, 40 P.S. 11301, et sic. 18. If it is determined that Defendant Hospital is vicariously liable on a theory of Respondeat Superior for the actions of the co-Defendants, which finding is specifically denied as set forth hereinabove, then Defendant Hospital is entitled to indemnification in full over and against said Defendants and a claim over is hereby asserted. 19. Pennsylvania Rule of Civil Procedure 238 is unconstitutional on its face and as applied herein. 20. Answering Defendant hereby demands trial by jury on all issues raised in Plaintiffs' Complaint. - 13 - . ~ S. After reasonable investigation, Defendants are without knowledge or information sufficient to form a belief as to the truth of Ihe avermenls of the corresponding paragraph of Plaintiffs' Complaint. Strict proof is demanded at trial, if relevant. 6. After reasonable investiglllion, Defendanls are without knowledge or information sufficient to form a belief as to the truth of the avermenlS of Ihe corresponding paragraph of Plaintiffs' Complaint. Strict proof is demanded at trial, if relevant. 7. Admitted in part and denied in part. To the exlent that the medical records of Plaintiff Patricia L. Clouse from Defendants Allen S. Wenger, M.D.. and/or Harrisburg Urological Associates reflect the facts alleged in the corresponding paragraph of Plaintiffs' Complaint, it is admitted only that such is recorded therein. Otherwise, and to the extent that the medical records do not so reflect and/or contradict the allegations, denied for the reasons indicated in Paragraph I, above. 8. Admitted in part and denied in part. To the extent Ihat the medical recordn of Plaintiff Patricia L. Clouse from Defendants Allen S. Wenger, M.D., Harrisburg Urological Associates and/or Holy Spirit Hospital reflect the facts alleged in the corresponding paragraph of Plaintiffs' Complaint, it is admitted only that such is recorded therein. Otherwise, and to the extent that the medical records do not so reflect and/or contradict the allegations, denied for the reasons indicated in Paragraph I, above. 2 , . 9. After reasonable investigation, Defendants are without knowledge or information sufficient to form a belief as to the truth of the averments of the corresponding paragraph of Plaintiffs' Complaint. Strict proof is demanded at trial, if relevant. 10. After reasonable investigation, Do:fendants are without knowledge or information sufficient to form a belief as to the truth of the averments of the corresponding paragraph of Plaintiffs' Complaint. Strict proof is demanded at trial, if relevant. For further answer and response, it is specifically denied that Dr. Wenger performed surgery on Plaintiff in a negligent manner. COUNT I Patricia L. Clouse v. Allen S. Weneer. M.D. NEGLIGENCE 11. The incorporated averments of Paragraphs I through 11 (sic) are denied for the reasons indicated above. 12. It is admitted that Plaintiff Patricia L. Clouse was a patient of Allen S. Wenger, M.D.. and was receiving medical care and treatment from him at certain times relevant to the subject matter of this Complaint. Defendant is without specific knowledge to admit or deny that Plaintiff received medical care and treatment from Dr. Wenger at i!lItimes relevant to Ihis Complaint, and thus denies the same. 3 WHEREFORE, answering Defendant denies liability to any and all parties to the within litigation, and demands that judgment be enlered in his favor and against Plaintiffs, and/or demands that Plaintiffs' claims against him be dismissed with prejudice. COUNT IV Patricia L. Clouse v. Harrlsburl! Uroloev Assoclatu VICARIOUS LIABILITY 31. The incorporated averments of Paragraphs I through 30 of Plaintiffs' Complaint are denied for the reasons indicated above. 32. It is admitted only that Dr. Wenger was an employee of Harrisburg Urology Associates at all times relevant. The remaining allegations of the corresponding paragraph are denied as conclusions of law. 33. Denied generally and as conclusions of law. For further answer and response, it is specifically denied that Allen S. Wenger, M.D., was negligent as alleged. WHEREFORE, answering Defendant denies liability to any and all parties to the within litigation, and demands that judgment be entered in his favor and against Plaintiffs, and/or demands that Plaintiffs' claims against him be dismissed with prejudice. 7 COUNT V Patricia L. Clouse v. John B. GOE:decke. M.D. NEGLIGENCE 34. The incorporated averments of Paragraphs 1 through 33 of Plaintiffs' Complaint are denied for the reasons indicated above. 35. The corresponding paragraph of Plaintiffs' Complaint is not addressed to answering Defendants, and thus requires no response. To the extent Ihat a response may be deemed required, however, denied for the reasons indicated in Paragraph I, above. 36. The corresponding paragraph of Plaintiffs' Complaint is not addressed to answering Defendants, and thus requires no response. To the extent that a response may be deemed required, however, denied for the reasons indicated in Paragraph I. above. 37. The corresponding paragraph of Plaintiffs' Complaint is not addressed to answering Defendants, and thus requires no response. To the extent that a response may be deemed required, however, denied for the reasons indicated in Paragraph I, above. 38. The c:orresponding paragraph of Plaintiffs' Complaint is not addressed to answering Defendants, and thus requires no response. To the extent Ihat a response may be deemed required, however, denied for the reasons indicated in Paragraph I, above. 39. The corresponding paragraph of Plaintiffs' Complaint is not addressed to answering Defendants, and thus requires no response. To the exlent that a response may be deemed required, however, denied for the reasons indicated in Paragraph I, above. 8 56. The corresponding paragraph of Plaintiffs' Complaint is not addressed to answering Defendants, and thus requires no response. To the extent that a response may be deemed required, however, denied for the reasons indicaled in Paragraph 1, above. WHEREFORE, answering Defendants deny liability 10 any and all parties to the within litigation, and demand that judgment be entered in their favor and against Plaintiffs, and/or demand that Plaintiffs' claims against them be dismissed with prejudice. COUNT IX Patricia L. Clouse v. Holv Spirit Hospital VICARIOUS LIABILITY 57. The incr.lrporated averments of Paragraphs Ilhrough 56 of Plaintiffs' Complaint are denied for the reasons indicated above. 58. The corresponding paragraph of Plaintiffs' Complaint is not addressed to answering Defendants, and thus requires no response. To the extent that a response may be deemed required, however, denied for the reasons indicated in Paragraph I, above. 59. The corresponding paragraph of Plaintiffs' Complaint is not addressed to answering Defendants, and thus requires no response. To the extenl that a response may be deemed required, however, denied for the reasons indicated in Paragraph I, above. 60. The corresponding paragraph of Plaintiffs' Complaint is not addressed to answering Defendants, and thus requires no response. To the extent that a response may be deemed required, however. denied for the reasons indicated in Paragraph 1, above. For further answer 12 . ., . and response, it is specifically denied that Defendant Allen S. Wenger, M.D.. was negligent as alleged. WHEREFORE, answering Defendants deny liability to any and all parties to the within litigation, and demand Ihat judgment be entered in their favor and against Plaintiffs, and/or demand that Plaintiffs' c1.lims against them be dismissed with prejudice. NEW MATTER Answering Defendants hereby raise the following New Matter pursuant to Pa. R.C.P. 1026, 1030, and 1032. 67. The Plaintiffs have failed to state a cause of action upon which relief can be granted. 68. The applicable statule of limitations may have expired prior 10 the institution of this action. 69. Answering Defendants were not negligent. 70. Any acts or omissions of answering Defendants alleged to constitute negligence were not a substantial cause or factor of the subject incident and/or did not result in the injuries and/or losses alleged by Plaintiffe. 71. The negligent acts or omissions of other individuals and/or entities may have constituted intervening, superseding causes of the damages and/or injuries alleged to have been sustained by the Plaintiffs. IS , . . . VERIFICATION JOHN R. KANTNER, ESQUIRE, slales that he is the allorney for Ihe party filing the foregoing document; that he makes this affidavit as an allorney because he has sufficient knowledge or information and belief, based upon his investigation of the matters averred or denied in the foregoing document; that time is of the essence in the filing of this document; and that this slatement is made subject to the penalties of Pa. C.S. ~4904. relating to unsworn falsification to authorities. Date: July 29, 1996 JOH R. KANTNER, ESQUIRE ~ r- ?:; ~- r: .,. l~ .. ~':':) N ')~ :r: u .... u.. .._~ F C'~ r- .~~ ct ..... I .:i ,,' ~~ L.~ j!- ='1 \,"l at l). VI '-j U Co' n t" ',~ t. ~ f-. .~ t': 1-- ~ .. I~ N :.... "'~ ,:: .>~ ... >. "'" .?f '" .... cr. , . 'J .... ~~ff :r c.~ -- - l3 (~ u. \0 '0 U. 96-116120009196 Thomas W. Hall, Esquire A TLEE & HALL 8 North Queen Street P. O. Box 449 Lancaster, PA 17608.0449 (717) 393-9596 ID No. 33092 Anorney for Plaintiff GILBERT L. CLOUSE and PATRICIA L. CLOUSE, IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PA vs. ALLEN S. WENGER, M.D., HARRISBURG UROLOGICAL ASSOCIATES, INC., JOHN B. GOEDECKE, M.D., SHERMAN ASSOCIATES, HOLY SPIRIT HOSPITAL NO.: 96-1402 JURY TRIAL DEMANDED PLAINTIFFS' RESPONSE TO THE NEW MATTER OF DEFENDANT WENGER. M.D. 67 - 75. Denied. The averments of Paragraphs,67 through 75 are conclusions of law to which no response is required and the same are therefore denied. A TLEE & HALL By: //1. lk(( Thomas W. Hall Attorney for Plaintiff 8 North Queen Street P. O. Box 449 Lancaster, PA 17608.0449 (717) 393-9596 ID No. 33092 96-116\20009196 { CERTIFICATE OF SERVICE I hercby certify that I havc this day caused a true and correct copy of the foregoing document. to be served upon the following persons by placing a copy of the said document in the United States mails, first class mail, directed to their office addresses as follows: Evan Black, Esquire Post & Schell, P.C. 101 North Front Street Harrisburg, PA 17101 Leigh A. J. Ellis, Esquire 1850 William Penn Way Suite 209 . P.O. Box 10696 Lancaster, PA 17605-0696 Craig A. Stone, Esquire Mette, Evans & Woodside 3401 North Front Street P.O. Box 5950 Harrisburg, PA 17110-0950 A TLEE & HALL By: ( . I. I \ . ( /. ire , Thomas W. Hall Attorney for Plaintiff 8 North Queen Street P. O. Box 449 Lancaster, PA 17608-0449 (717) 393-9596 ID No. 33092 Dated: fl, il (I.; t , 1996 2 ~.~ . ~ ..;:r " ..:i ., ... c:: .~~ ~ ~t:l - l.~ ~ .... );,.::; ic '" om r:~ \ .~, ..... ,~ :!"# ft"'. ~ im F' -' Jo.. ..~ ~ ..0 a C' - C'.: '- r , I .. Ull, '. ; <.]; , t1. . , i II.: . , t{ 1 (i' -~; " . ~.. I, , l' d ft..' , ;.:... ,,- 1I. \.0 1 U Ii . , ) M ~ ~ ~ Q . ;: Q . P ~ j ~ a ~ d : n~ II i <<z o' .i: · III ~ a. .: !r! c ~ ~ I J: ~ I . 8~403 VERIFICATION I, Allen S. Wenger, M.D., do hereby swear and affirm that the facts and matters set forth in the foregoing Answer of Defendants to Plaintiffs' Complaint are true and correct to the best of my knowledge, information, and belief. The undersigned underslands that the statements made therein are made subject to the penalties of 18 Pa. e.s. ~4904 relating to unsworn falsification to authorities. (]JJ~ -.-A ALLEN S. WENGER, M.D. r-- DATE: e:r ( )'" I- (. (; q'J ~ c '. .- ., t--. ~ c.~ :'i~ ( , ~~-' I'):. ~r :Ie .,.J~t; .:.. ,~ . ":""4 -,"!, 'Ul ~- . J:-. "Z F, '1 t.o:\!' ,1\1 f'" - '.~U. ..... L', <D :3 0 (1\ U GILBERT L. CLOUSE and PATRICIA L. : IN TIlE COURT OF COMMON PLEAS CLOUSE. : CUMBERLAND COUNTY, PENNSYLVANIA Plaintiffs I , ,- I I .\ v. NO. 96-1402 ALLEN S. WENGER, M.D., HARRISBURG UROLOGICAL ASSOCIATES, INC., JOHN B. GOEDECKE, M.D.. SHERMAN ASSOCIATES, and HOLY SPIRIT HOSPITAL, Defendants JURY TRIAL DEMANDED PRAECIPE TO THE PROTHONOTARY: PLEASE substitute the attached Verilications for the Attorney Verification which was attached to Defendants Allen S. Wenger, M.D., and Harrisburg Urological Associates, Inc.'s New Matter Pursuant to Pa. R.C.P. 22S2(d) Directed to Defendant Holy Spirit Hospital. Respectfully submitted, POST & SCHELL, P.C. By, f! J!;l-h EVAN BLACK. ESQUIRE JOHN R. KANTNER, ESQUIRE 101 North Fronl Street Harrisburg, PA 17101 (717) 232-5931 1.0. No. 17884 1.0. No. 75741 Attorneys for Defendants. Allen S. Wenger. M.D., and Harrisburg Urological Associates. Inc. 83403 VERIFICATION I, Allen S. Wenger. M.D., do hercby swcar and affirm that the facts and matters set forth in the foregoing New Matter Pursuant 10 Pa. R.C.P. 2252(d) Directed to Defendant Holy Spirit Hospilal are true and correct to thc best of my knowledge. information, and belief. The undersigned understands that the statements made therein are made subject to the penalties of 18 Pa. C.S. ~4904 relating to unsworn falsificalion 10 authorities. OJ;lA \.J /--- .....-............ ALLEN S. WENGER, M.D / 'Ge~cJ {...( DATE: ~ 83403 VERIFICATION I, Allen S. Wenger, M.D.. do hereby swear and affirm that the facts and matters set forth in the foregoing Answer 10 Defendant Holy Spirit Hospital's New Maller to Plaintiffs' Complaint are true and correct 10 the best of my knowledge. information, and helief. The undersigned understands that the statements made therein are made subject to Ihe penalties of 18 Pa. C.S. fi4904 relating to unsworn falsificalion to aUlhorities. CUJ~w ALLEN S. WENGER, M.D. ---. DATE: ~ ~~ (qC CERTIFICATE OF SERVICE I, SHERRY L. MOUERY, an employee of the law firm of Post & Schell, P.C.. do hereby certify that on the date set forth below, I did serve a true and correct copy of the foregoing document upon the following persons at the following addresses indicated below by sending same in Ihe United States mail, first-class, postage prepaid: Thomas W. Hall, Esquire Atlee & Hall Eight North Queen Slreet P.O. Box 449 Lancaster, PA 17608-0449 Leigh A. J. Ellis, Esquire Ellis & Associates, P.C. 1850 William Penn Way Suite 209 P.O. Box 10696 Lancaster, PA 17605-0696 Craig A. Stone. Esquire Mette. Evans & Woodside 3401 North Front Street P.O. Box 5950 Harrisburg, P A 1711 0-0950 ,~).~ of'~7 SHERRY L. OVERY Date: q-~-9(p .. I ,., , " I' C:" &:. I --.( . .i l... L <.. t , U " , 1:\u'."\ca'.s\96-1I6\~1lO11896 Z;_J~ Evan Black, Esquirc Posl & Schell, P.C. 101 North Frolll Slreet Harrisburg, PA 17101 Attorney for Defendants Wengcr, M.D. and Harrisburg Urology Associatcs Leigh A. J. Ellis, Esquire 1850 William Penn Way Suite 209 P.O. Box 10696 Lancasler, PA 17605-0696 Attorney for Defendants Goedecke, M.D. and Sherman Associates Wlp J C'r:l!e A. jllone, ~Iui Mette, Evans & We side 3401 North Front Slreet P.O. Box 5950 Harrisburg, PA 17110-0950 Allorney for Defcndant Holy Spirit Hospilal 2 .....~._--- ELLIS' ASSOCIATES, P.C. BY: Leigh A.J. Ellis Identification No. 53229 Darlene K. King Identification No. 1850 William Penn Way Suite 209 P.O. Box 10696 Lancaster, PA 17605-0696 (717) 390-3020 60,557 Attorneys for Defendants: John B. Goedecke, M.D., and Sherman Associates 75898 GILBERT L. CLOUSE and PATRICIA L. CLOUSE Husband and Wife COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA v. NO. 96-1402 ALLEN S. WENGER, M.D. and HARRISBURG UROLOGICAL ASSOCIATES, INC. and JOHN B. GOEDECKE, M.D. and SHERMAN ASSOCIATES . . . . TWELVE JURORS DEMANDED PRBLIMIHARY OBJBCTIONS OF DEFENDANTS, JOHN B. GOBDECKB, M.D., AHD SHERMAN ASSOCIATES TO PLAINTIFFS' COMPLAINT Defendants, John B. Goedecke, M.D., and Sherman Associates, by their attorneys, hereby file the following Preliminary Objections to Plaintiffs' Complaint and in sup~ort thereof avers as follows: 1. On or about July 4, 1996 Plaintiffs filed a Complaint against Defendants. (A copy of said Complaint is attached hereto and marked as Exhibit "A".) 2. Plaintiff contends that as a result of Defendants, John B. Goedecke, M.D.'s and Sherman Associates' negligence, Plaintiff's function her bladder is permanently impaired. 3. The Complaint contains boilerplate language in violation of the Rules of Civil Procedure. MOTION TO STRIKB MOTION WOR MORE SPECIWIC PLEADING 4. Pa. R.C.P. l019(a) requires material facts upon which a cause of action or defense is based shall be stated in concise and summary form 5. This provision is designed to apprise the opposing party of what the pleading party intends to establish at trial. 6. The following paragraphs of Plaintiffs' Complaint contain boilerplate language in vJolation of the Rules of civil Procedure: 36. Defendant, John B. Goedecke, H.D., administered negligent medical care and treatment to the Plaintiff in the following particulars: 36(a). negligently performing his portion of the stamey urethropexy procedure in such a manner as to permanently impair the function of the bladder; 36(b). failing to promptly and properly recognize the need to take immediate measures to remedy the intraoperative harm caused to Hrs. Clouse. 42. The injures suffered by Patricia L. Clouse occurred during the time that she was under anesthesia for the operation in question. 43. The injuries suffered by Patricia L. Clouse do not occur absent negligence on behalf of those who were in control of her person while she was under anesthesia. 44. Patricia L. Clouse did not cause or contribute to her injuries in any manner. 45. Therefore, one or more of the named Defendants was negligent in the performance of their duties and caused the injuries suffered by Patricia L. Clouse. 47. Lack of informed consent is, at all times relevant to the subject matter of this action. There was a physician/patient relationship between Patricia L. Clouse and Dr. Goedecke. 48. The performance of a stamey urethropexy procedure is an invasive surgical procedure for which the patient's informed consent must be obtained. 49. The stamey urethropexy procedure performed on Patricia L. Clouse was not emergency surgery and at all times the patient was capable of giving consent to this surgery. 50. The risk of the injury that occurred to Mrs. Clouse during the surgery is a rick that a reasonable person would have found material in making her decision whether or not to undergo this surgery. 51. Upon information and belief, at no time prior to the stamey urethropexy procedure did Dr. Goedecke discuss the risk that Plaintiff could sustain the injury that she, in fact, sustained. 52. The risk not disclosed to Plaintiff has occurred and caused her severe and extensive injuries as set forth above. 53. Because of Dr. Goedecke's failure to obtain Plaintiff's informed consent, Dr. Goedecke is liable as a matter of law for the injuries that developed and were not disclosed to Plaintiff when obtaining her consent to surgery. 55. At all times relevant to the subject matter of this Complaint, John B. Goedecke, M.D., we an ostensible or actual agent, employee or servant of Sherman Associates and was acting within the course and scope of his employment. 56. Defendant, Sherman Associates, is therefore, vicariously liable for the negligence of John B. Goedecke, M.D., as a matter of law and is liable for the damages sustained by Plaintiff listed above. 7. The aforecited paragraphs fail to apprise Defendants of material facts, upon which Plaintiffs bases their claim. S. As such, it is respectfully requested that this Court strike paragraphs 36, subparagraphs (a) and (b), 42 through 45, 47 through 53 and fifty-five and fifty-six as violations of the Pennsylvania Rules of Civil Procedure regarding pleading. WHEREFORE, it is respectfully requested that this Court strike paragraphs 36, subparagraphs (a) and (b), 42 through 45,47 through . (i) \ I , Exhibit A "',' ~ ir- , j , :} \ ~ . 'r , .... j ii' I . , I ,i- brcnda\96-116\complain. 4. Defendant John B. Goedecke, M.D., is a medical doctor Iicenscd to practicc mcdicine in thc Commonwcalth of Pcnnsylvania, with offices and principal placc of busincss at 104 Erford Road, Camp Hill, PA 17011. S. Defendant Shcrman Associatcs Is a Pennsylvania corporation with a principal placc ofbuslncss located at 104 Erford Road, Camp Hill, PA 17011. 6. Dcfcndant Holy Spirit Hospital Is a hospital Iiccnsed undcr thc laws of the Commonwcalth of Pcnnsylvania, with its principal place of business at 503 North 21st Strcct, Camp Hill, PA 17011.. Summarv of the Causes of Action: 7. On or about March 24, 1994, Plainliff Patricia L. Clousc was admitted to Holy Spirit Hospital for thc performance of a Stamcy urethropexy procedure aftcr shc was diagnosed with a "fallen bladder." 8. Upon information and belicf, a portion of thc surgery was performcd by Dcfcndant Dr. AlIcn S. Wenger, and a portion was performed by Defcndant Dr. John B. Goedeckc. 9. Following the surgcry on March 24, 1994, Mrs. Clouse has been unablc to void hcr bladdcr without cathetcrization, and has suffered thc additional losses and damages described below. 10. In an attcmpt to remedy Dr. Wenger's negligent surgery, Mrs. Clouse underwent a second surgery at Geisinger Medical Center on September 27, 1995, a take-down of Stamey suspension sutures and urethrolysis, which was unsuccessful. 2 . brenda\96-116\complain. COUNT I PATRICIA L. CLOUSE v. ALLEN S. WENGER. M.D. Negligence 11. The averments in Paragraphs 1-11 above are incorporated herein by reference. 12. At all times relevant to the subject mailer of this Complaint, Plaintiff Patricia L. Clouse was a patient of Allen S. Wenger, M.D., and was receiving medical care and treatment from him. 13. Defendant Allen S. Wenger, M.D., administered negligent medical care and treatment to the Plaintiff in the following particulars: a. negligently performing his portion of the Stamey urethropexy procedure in such a manner as to permanently impair the function of the bladder; b. failing to promptly and properly recognize the need to take immediate measures to remedy the intraoperative harm caused to Mrs. Clouse. 14. As a direct and proximate result of the negligence of the Defendant, Plaintiff has incurred significant medical expenses and will continue to incur such expenses in the future, for all of which damages are claimed. 15. As a direct and proximate result of the negligence of the Defendant, Plaintiff has incurred lost earnings and a decreased earning capacity, for all of which damagcJ are claimed. 16. As a direct and proximate result of the negligence of the Defendant, Plaintiff has experienced extreme pain and suffering, disfigurement, embarrassment, humiliation and loss of 3 'brenda\96-116\complain. the enjoyment of life's pleasures, and will continue to suffer such losses in the future, for all of which damages are claimed. 17. The negligence of the Defendant increased the risk that Plaintiff would suffer serious injury and was a substantial faclor in causing the damages Iisled above. WHEREFORE, Plaintiff demands judgment against Defendant Allen S. Wenger, M.D., in an amount in excess of Twenty Five Thousand Dollars ($25,000), together with interest and costs thereon as allowed by law. COUNT II PATR!CIA L. CLOUSE v. ALLEN S. WENGER. M.D. Res Ipsa Loquitur 18. The averments of Paragraphs 1 through 17 of Plaintiffs' Complaint are incorporated herein by reference. 19. The injuries suffered by Patricia L. Clouse occurred during the time that she was under anesthesia for the operation in question. 20. The injuries suffered by Patricia L. Clouse do not occur absent negligence on behalf of those who were in control of her person while she was under said anesthesia. 21. Patricia L. Clouse did not cause or contribute to her injuries in any manner. 22. Therefore, one or more of the named Defendants was negligent in the performance of their duties and caused the injuries suffered by Patricia L. Clouse. 4 brenda\96-116\complain. 30. Because of Dr. Wenger's failure to obtain Plaintiff's informed consent, Dr. Wenger is liable as a matter of law for the injuries that developed and were not disclosed to Plaintiff when obtaining her consent to surgery. WHEREFORE, Plaintiff demand~ judgment against Defendant in an amount in excess of Twenty Five Thousand Dollars ($25,000), together with interest and costs thcreon as allowed by law. COUNT IV PATRICIA L. CLOUSE v. HARRISBURG UROLOGY ASSOCIATES Vicarious Liability 31. Thc avermcnts in Paragraphs 1-30 abovc arc incorporated herein by reference. 32. At all times rclcvant to the subject matter of this Complaint, Allen S. Wenger, M.D., was an ostensible or actual agent, employec, or servant of Harrisburg Urology Associates and was acting within the coursc and scope of his cmployment. 33. Dcfendant Harrisburg Urology Associates is, therefore, vicariously liable for the negligence of Allen S. Wenger, M.D. as a matter of law and is liable for the damages sustained by Plaintiff listed above. WHEREFORE, Plaintiff demands judgment against Defendant Harrisburg Urology Associates in an amount in exccss of Twenty Five Thousand Dollars ($25,000), together with interest and costs thereon as allowed by law. 6 'brenda\96-116\complain. COUNT V PATRICIA L. CLOUSE v. JOHN D. GOEDECKE. M.D. Negligence 34. The averments in Paragraphs 1-33 above are incorporated herein by reference. 35. At all times relevant to the subject matter of this Complaint, Plaintiff Patricia L. Clouse was a patient of John B. Goedecke, M.D., and was receiving medical care and treatment from him. 36. Defendant John B. Goedecke, M.D., administered negligent medical care and treatment to the Plaintiff in the foUowing particulars: a. negligently performing his portion of the Stamey urethropexy procedure in such a manner as to permanently impair the function of the bladder; b. failing to promptly and properly recognize the need to take immediate measures to remedy the intraoperative harm caused to Mrs. Clouse. 37. As a direct and proximate result of the negligence of the Defendant, Plaintiff has incurred significant medical expenses and will continue to incur such expenses In the future, for aU of which damages are claimed. 38. As a direct and proximate result of the negligence of the Defendant, Plaintiff has incurred lost earnings and a decreased earning capacity, for all of which damages are claimed. 39. As a direct and proximate result of the negligence of Ihe Defendant, Plaintiff has experienced extreme pain and suffering, disfigurement, embarrassment, humiliation and loss of 7 brenda\96-116\complain. the enjoyment of Iifc's pleasures, and will continue to suffer such losses in the future, for all of which damagcs arc claimed. 40. The negligence of the Defendant increased the risk that Plaintiff would suffer scrious injury and was a substantial factor in causing the damagcs lis led abovc. WHEREFORE, Plaintiff demands judgment against Defendant John B. Goedcckc, M.D., in an amount in cxcess of Twenty Fivc Thousand Dollars ($25,000), togcthcr with intcrest and costs thereon as allowed by law. COUNT VI PATRICIA L. CLOUSE v. JOHN B. GOEDECKE. M.D. Res Ipsa Loquitur 41. The avcrmcnts of Paragraphs 1 through 40 of Plaintiffs' Complaint arc Incorporated herein by refercnce. 42. The injuries suffered by Patricia L. Clouse occurred during thc timc that shc was under anesthesia for thc operation in qucstion. 43. The injuries suffered by Patricia L. Clouse do not occur absent negligence on behalf of those who were in control of her person while she was under said anesthesia. 44. Patricia L. Clouse did not cause or contribute to her injuries in any maMer. 45. Therefore, one or more of the named Defendants was negligent in the performance of their duties and caused the injuries suffered by Patricia L. Clousc. WHEREFORE, Plaintiff demands judgmenl against Defendant John B. Goedecke, M.D. in an amount in excess of Twenty Five Thousand Dollars ($25,000), together with interest and costs thereon as allowed by law. 8 brenda\96-116\complain. COUNT VII PATRICIA L. CLOUSE v. JOHN B. GOEDECKE. M.D. Lack of Informed Consent 46. The averments of paragraphs I through 45 of Plaintiffs' Complaint are incorporated herein by reference. 47. Lack of informed consent is, at all times, relevant to the subject matter of this action. There was a physician/patient relationship between Patricia L. Clouse and Dr. Goedecke. 48. The performance of a Stamey urethropexy procedure is an invasive surgical procedure for which the patient's informed consent must be obtained. 49. The Stamey urethropexy procedure performed on Patricia L. Clouse was not emergency surgery and at all times the patient was capable of giving consent to this surgery. SO. The risk of the injury that occurred to Mrs. Clouse during the surgery is a risk that a reasonable person would have found material in making her decision whether or not to undergo this surgery. 51. Upon information and belief, .at no time prior to the Stamey urethropexy procedure did Dr. Goedecke discuss the risk that Plaintiff could sustain the injury that she, in fact, sustained. 52. The risk not disclosed to Plaintiff has occurred and caused her severe and extensive injuries as set forth above. 9 brenda\96-116\complain. 53. Becausc of Dr. Goedecke's failure to oblain Plaintiff's informed consent, Dr. Goedecke is liable as a matter of law for the injuries that developed and were not discloscd to Plaintiff when obtaining her consent to surgery. WHEREFORE, Plaintiff demands judgment against Defendant in all amount in excess of Twenty Five Thousand Dollars ($25,000), together with interest and costs thereon as allowed by law. COUNT VIII PATRICIA L. CLOUSE v. SHERMAN ASSOCIATES Vil:arlous L1ablUty 54. The averments in Paragraphs 1-53 above are incorporated herein by reference. 55. At all times relevant to the subject matter of this Complaint, John B. Goedecke, M.D., was an ostensible or actual agent, employee, or servant of Sherman Associates and was acting within the coursc and scope of his employment. 56. Defendant Sherman Associates is, therefore, vicariously liable for the negligence of John B. Goedecke, M.D. as a matter of law and is liable for the damages sustainM by Plaintiff listed above. WHEREFORE, Plaintiff demands judgment against Defendant Sherman Associates in an amount in excess of Twenty Five Thousand Dollars ($25,000), together with interest and costs thereon as allowed by law. 10 brenda\96-116\complain. COUNT IX PATRICIA L. CLOUSE v. HOLY SPIRIT HOSPITAL Vicarious Liability S7. The averments contained in Paragraphs 1-56 above are inccrporated herein by reference. 58. At all times relevant to the subject matter of this Complaint, Defendants Allen S. Wenger, M.D. and John B. Goedecke, M.D. were ostensible or actual agents, employees, or servants of the Holy Spirit Hospital and were acting within the course and scope of their apparent authority. S9. Defendant Holy Spirit Hospital held out Allen S. Wenger, M.D. and John B. Goedecke,' M.D. as its employees, agents, and/or servants at all times relevant to the subject matter of this Complaint. 60. Defendant Holy Spirit Hospital is, therefore, vicariously liable for the negligence of Defendants Allen S. Wenger, M.D. and John B. Goedecke, M.D. under principles of respondeat superior and is liable for the damages sustained by Patricia L. Clouse specified above. WHEREFORE, Plaintiff demands judgment against Defendant Holy Spirit Hospital in an amount in excess of Twenty Five Thousand ($25,000), together with interest and costs thereon as allowed by law. 11 brenda\96-116\complain. COUNT X ~ILBERT L. CLOUSE v. ALLEN S. WENGER. M.D. Loss of Consortium 61. The averments contained in Paragraphs 1-60 above are incorporated herein by reference. 62. As a direct and proximate result of the negligence of Defendant Allen S. Wenger, M.D, Plaintiff Gilbert L. Clouse has been deprived of the care, companionship and services of his wife, Patricia L. Clouse, for all of which damages are claimed. WHEREFORE, Plaintiff Gilbert L. Clouse demands judgment against the Defendant, Allen S. Wenger, M.D., in an amount in excess of Twenty Five Thousand Dollars ($25,000), together with interests and /,;osts thereon as allowed by law and other relief allowable by law and determined sppropriate by this Court. COUNT XI GILBERT L. CLOUSE v. JOHN B. GOEDECKE. M.D. Loss of Consortium 63. The averments contained in Paragraphs 1-62 above are incorporated herein by reference. 64. As a direct and proximate result of the negligence of Defendant 10hn B. Goedecke, M.D, Plaintiff Gilbert L. Clouse has been deprived of the care, companionship and services of his wife, Patricia L. Clouse, for all of which damages are claimed. 12 . brenda\96-116\complain. VERIFICATION I hereby verify tlu.t the facts contained in the foregoing Complaint are true and correct to the best of my knowledge, information and belief. I understand that false statements herein are made subject to the penalties or 18 Pa.C.S.A. A 4904 relating to unsworn falsification to authorities. Dated: 7)yJ~" ~tt..L/ /a {l.ted~-X (]~ Patricia L. Clouse Dated: ~/p t 15 , ~. ... -1J/ w I .is..... ELLIS , ASSOCIATES, p.e. BY: Leigh A.J. Ellis Identification No. 53229 60,557 Attorneys for Defendants: John B. Goedecke, M.D., and Sherman Associates Darlene K. King Identification No. 75898 1850 William Penn Way Suite 209 P.O. Box 10696 Lancaster, PA 17605-0696 (717) 390-3020 GIL~ERT L. CLOUSE and PATRICIA L. CLOUSE Husband and Wife COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA v. NO. 96-1402 ALLEN S. WENGER, M.D. . . and . . HARRISBURG UROLOGICAL . . ASSOCIATES, INC. . . and JOHN B. GOEDECKE, M.D. . . and . . SHERMAN ASSOCIATES . TWELVE JURORS DEMANDED . CBRTI~ICATB O~ SERVICE I, Lee A. Ciccarelli, Esquire, do hereby certify that I caused a copy of the foregoing Preliminary Objections and Supporting Brief, to be served this day by United States first class mail, postage prepaid to: Jan S. Barnett, Esquire Atlee , Hall 8 N. Queen Street, 4th Floor P.O. Box 449 Lancaster, PA 17603 Evan Black, Esquire POST , SCHELL 101 North Front Street Harrisburg, PA 17101 i I I 1 I I I I I ! ~ . \ '. . . . '" '>; ,(J , ~ ,..,. U J'~ 1.....: - ( , I'~ , t) (',' I ~_, fL' , " , i :;'.J t ...... l l... 0' U &. ~ ~ t; ~ ~ w .. -Q OX 0 .. E '-i .. .. .. .. .. i ~ ... z .. Q 0 " ci t OX .. 0 OX Q .. :> ~ % 0 .. .. .. OX ii ~ 0 .. ~ z OX Ii .. C % ~ 0 ... ~ '. '.",. " (i) \ ExhIbit A i J t, r I" , >- (:, c: . < "-0, ..:1 " , lo! ~ (', ~ ,O- F ..,~. c; ':.....J 0 , e ~c: {:. l.' , , k I' 0" c... G. 'J 96.116IS0019298 Thomas W. Hall, Esquire A TLEE & HALL 8 North Queen Street P. 0, Box 449 Lancaster, PA 17608-0449 (717) 393-9596 ID No. 33092 Attorney for Plaintiff GILBERT L. CLOUSE and PATRICIA L. CLOUSE, IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY. PA VS. ALLEN S. WENGER. M.D., HARRISBURG UROLOGICAL ASSOCIATES, INC., JOHN B. GOEDECKE, M.D., SHERMAN ASSOCIATES, HOLY SPIRIT HOSPITAL NO.: 96-1402 JURY TRIAL DEMANDED STIPULATION TO AMEND CAPTION 96.1I61501l19298 It is hcreby STIPULATED AND AGREED by and betwcen Ihe undersigned counsel that an Amended Caption may be filed as follows: GILBERT L. CLOUSE and PATRICIA L. CLOUSE, IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PA vs. ALLEN S. WENGER. M.D.. HARRISBURG UROLOGICAL ASSOCIATES, INC., JOHN B. GOEDECKE, M,D. and SHERMAN ASSOCIATES NO,: 96-1402 JURY TRIAL DEMANDED By: By: ) .) , I . / -: "'t. '/....&.-1 >.,', "j~t.J'~T''-j JalY'S. Barnell, Esquire Attorney for Plaintiffs, Gilbert L. Clouse and Patricia L. Clouse L. P.C. A TLEE & HALL /V {' in Evan Black, Esquire Attorney for Defendants Allen S. Wenger, M.D. and Harrisburg Urology Associates, Inc. LEIGH ELLIS & ASSOCIATES. P.C. By: ~A(]~Y. e King, Esquire Attorney or efendants John B. Goedecke, M.D. and Sherman Associates 96-116150019298 CERTIFICATE OF SERVICE I hereby certify that I have this day caused a true and correct copy of the foregoing document to be served upon the following persons by placing a copy of the said docur.lent in the United States mail, first class mail, directed to their office addresses as follows: Evan Black, Esquire Post & Schell. P.C. 101 North Front Street Harrisburg, PA 17101 Darlene King, Esquire Leigh Ellis & Associates 1850 William Penn Way Suite 209 P,O. Box 10696 Lancaster, PA 17605-0696 A TLEE & HALL By: I ) ,'l ,. .--- Th as W. Hall }- S. Barnell Attorneys for Plaintiffs 8 ~~orth Queen Street P. 0, Box 449 Lancaster, PA 17608-0449 (717) 393-9596 ID No. 33092 & 66122 ;J (1 ():) Dated: t . '! I () ,- 'X) >- c- ,,~ I'" . ~.:' ~ I.IJe; " c; (...... ,",,', L".:"\ ,,- ,- (!){~.- .I:::j 8~ 'n '.,f.~ , J.;..o -::-]1 ' ~ '-'=:% I,U l.l~. . ~I :'!i.L " , ',<, ~ :':> 0 (J' U 1 ......... CERTIFICATE OF S~RVICE I hereby certify that on this date I caused a true and correct copy of the foreqoinq Praecipe to Withdraw to be served upon the individual named below by first class mail. Thomas W. Hall, Esquire Atlae, Hall , Brookhart 8 North Queen street P. O. Box 449 Lancaster, PA 17603 Evan Black, Esquire POST' SCHELL, P.C. 240 Grandview Avenue Camp Hill, PA 17011 Date: r:.1/J/q~ ~ 11, Esqu re 2 .". .:!' tr; - ..; . , ., , ,~ UJ~:: , " CI" ,.,'.',,1 t- :1 t... ("'j'." . 1 .. .;--..1 .'} I,J' .' "1" ;:-.-\ , , .J .., . - , ::') t..:: 'J. , ,I rr c.; 0' U . .....