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HomeMy WebLinkAbout96-01705 -' ,:o.~, ' ,"",'''"'''";1,,..,,, ,:-;j-:k."i\ 'f"Ifi"" , "::,iI,,' 'I ";,~ 1~1;,~ :;:1 . , - - 'i - 4~t~ FS - " , , " ,I') ....~,... , "" .- --..-.~----:--..._~..-~_._--_.. . ROBERT E, DELL and GWEN E, DELL. : IN THE COURT OF COMMON PLEAS his wife, CUMBERLAND COUNTY, PENNA, Plainliffs CIVIL ACTION - LAW vs, NO. 96.1705 CIVIL TERM GORDON MYERS, M,D,; NAGIB KHALlFA, M,D,; UROLOGY ASSOCIATES OF CIIAMDERSBURG, Pc.; WILLIAM HAREN, M,D,; and WIl.L1AM MIl,ROTlI. MD; Defendants JURY TRIAl. DEMANDED PLAINTIFFS' BRIEF IN OPPOSITION TO I>EFENDAN! MYERS' MOTION FOJ! ~!Ji\_Ii\1ARY JL'I>Gi\lENT I. STATE:\IENT OF FACTS AND PROCEDliRAl. HISTORY --------..-..--------..-- .........-.---.---.--.- - --. ---.--.-.-----.. .-.._.. Plaintiffs <:ommenced this medical malpractice aClion against DelCndant Gordun Myers, M,O, hy Writ of Summons tiled I\larch 2<), 1<)l)6 Thereafter, on or ahout April 26, 1<)<)6, Plaintiffs tiled a COl\lplaillt alleging that Defendant Myers was negligent and grossly negligent in his evaluatilln of lhe Plaintiff, Roben De: II , Specifically, it is alleged and the evidence: will ultimately prove lhat De:fendant Myers performe:d three separate physical examinatinns on lhe Plaintiff. all of which allegedly included a prostate examinalilln, Following each such examination, Defendant Myers advised the Plaintiff. Roben Dell and his employer thaI he was "healthy" and qualitied 10 continue driving lruck, Plaintiff. Rohen Dell. relied nn Defendant Myers' assessment of his medical condition and assumed that he was healthy and needed no addilional medical trealment, However. Defendant Myers' representations regarding Mr De:Il's overall health were at best. inaccurate, In fact. lhe alleged prostale examinations performed by Defendant Myers should have revealed a growing cancerous nodule, Ultimately, Mr, Dell was diagnosed as suffering from prostate cancer in September of 1994._ Due to the delay in diagnosis, more aggressiye surgical imervention was required in an attempt to eradicate the cancer, Although the examinations performed by Defendant Myers were paid for by Roadway Express, Mr, Dell's employer, a physician-patiem relationship between Defendant Myers and Mr, Dell still existed, Following each such e"amination, Defendant Myers gave Mr, Dell a "dean bill of health" and advised him that nothing was revealed during the physical examination that warranted further treatlllent. These assurances of good health dearly comributed [() the delay in diagnosis of !VIr Dell's prostate cancer and the need for more radical surgical treatlllent. II, ISSUE PRESENTED -----.- DID A PHYSICIAN-PATIENT RELATIONSHIP EXIST BETWEEN DEFENDANT MYERS AND MR. DELL SU......IClENT TO IMPOSE A DUTY TO USE REASONABLE CARE IN HIS EVALUATION AND ASSESSi\IENT OF TilE PLAINTIFF'S MEDICAl. CONDITION'! (Suggested answer in the affirmative) III. ARGUMENT A PHYSICIAN-PATIENT RELATIONSHlI' DID EXIST BETWEEN DEFENDANT MYERS AND MR. DELL SUFFICIENT TO IMPOSE A DUTY TO USE REASONABLE CARE IN HIS EV ALUATlON AND ASSESSMENT OF THE PLAINTII"F'S MEDICAl. CONDITION. Pursuant to Pa,R,C.P, 1035,2, a lIlotion tilr summary judgment may only be gramed "whenever there is no genuine issue of any material fact as to a necessary 2 clcnll:nl 01' Ihc ~uusc of a~lIol1 Ill' defcnsc which could be established by additional .hscowry Ill' CSllCrt rcporls" I'u. R, C 1', 1035,2(1), III rcvlcwillll Ihc rccord, the wurt must view the evidence in a light most hlvorllhlc III Ihc lIoll.mllvinll purty und any doubts must be resolved against entry of the judlll11cnl ('ulh~IIr1V K~en~.JDdu~rtlllnsululion, 324 Pa, Super, 123.471 A,2d 493 (I'IK4) Thc nlllvlllll purly hcurs the burdcn of demonslrating lhutthere are no issues of I11l1lcrial flld Rcsslcr v JOJ!l:s~~)lOr Co, Inc.. 337 Pa, Super. 602, 487 A,2d 424 II'lK~) In the installl case, a genuine issue of maleriul fact remains as [() the existence of a physIc lOin pol lie III relallllllshlp hctwecn Defendant Myers alld Mr, Dell and us such clllry Ill' u summary Iud~melli IS imprllpcr. III Ihe pasl. Pennsylvama ('IlUrIS have recogllized [hat the duty owed by a phvsl~lan arises from Ihe phs ",ian'patierll relalillnship und thaI the hreach Ill' [hat duty constllules Iuc<hcalnel!hgen~e Cr:.\lld()~J-,,_0_rt_)~_~, 504 A,2d 1300 (I'a, Super. 1986) IIllwevn, lhe quesllllll he~omes when is a physician-patient relationship estahlished ~ivill~ me III a dUly Ill' care The Iraditional view, which is heing gradually eroded, cllnlaillcd a PrIVilY requirement belweenlhe patient and the phYSician before imposing II dUly III aCI wilh reasllnahle care, If the physician's services were contracted for by somellne Illher lhan the palienl. nil physician-patient relulionship was fllund to have heen esl:\hilshed The ralilll1:l\c underlying this finding of nil physician-patient relallonslup was Ihe lack Ill' an express or implied ~Ol1lracl. Adhen:nce to II such a slriCI detinllilln Ill' a physician-pallen! relationship is gradually falling into disfavor in many stales Peace v. .\Yt:.i.sm~.I!, 368 S.E,2d 319 (1988 Gu. App) (dissenting OplmllnS) Ihe rallllnate underlying the erosion of the privity requirement is basic to a person's Inherent conslilutional right to life, Muny "blue collar" workers, like Mr. Dell, are required to undergo physical esalllinatillns periodrcally in order to maintain their employment posilions, The 3 employees/patienls themselves are aware of the underlying purpose of the examination, that being to certify their health and physical fitness for the particular position. Although the physical examination was being performed at the request of Roadway Express. from Mr, Dell's perspective. .11e wa~ being examined by a doctor and his reasonable expectation was that the examination would be performed properly and that he would be advised of any physical abnormalities discovered by Defendant Myers, Since the underlying purpose of the examination is to determine the physical well-being and fitness of the employee for the stated position, it cannot be said that Mr, Dell's expectations or reliance upon Defendant I\lyers' findings and representations were misplaced, To hold otherwise, would be to foster irresponsibility on the part of such consulting physicians and granting them unfettered immunity for substandard medi.::al evaluations, If this is the current state of law in this Commonwealth, puhlie policy considerations mandate a change, Moving Defendant, in his hrief, repeatedly cites Ervin v, American Guard Life Assurance Co, and Norman S, Knee, 0,0" 37n Pa, Super 132, 153,454 A,2d 354 .. .---.-- (1988), in support of the prupositioll (hat generally speaking a physician who is retained by a third party to conduct an examination of another person does not enter into a physician-patient relationship with the examinee and is therefore not liahle for any lo~ses or damages as a result of the conclusions the physician reached, However, as with any general proposition there must be some exceptions, In suhsequent decisions, the coun has qualified its rationale for not Hnding the existence of a physician-patient relationship, Specifically, in Promubol v, Hacke~t, et ai, 454 Pa, Super, 622,686 A,2d 417 (1996), the lack of a physician-patient relationship was premised on the fact that the plaintiff did not seek or receive medical advice or treatment from the defendant physician, It can be inferred from the Court's holding tbat if, in fact, the physician did provide medical advice or treatment to the examinee, a physician-patient relationship could be established Irrespective of who initially requested the examination, [n the 4 present case, afler performing the periodic physical examinations, Defendant Myers verhally advised Mr, Dell that he was in good health, requiring no additional medical tests or trealment. Thereafter, Defendant Myers provided Roadway Express with a wrillen report of his Iindings and a certificatLon of Mr. Dell's physical Iitness to continue as a truck driver, The fact that Defendant Myers aflirmatively represented to Mr, Dell his Iindings and opinions regarding his overall health and well-being, mandates a linding of a physician-patient relationship, If Defendant Myers had declined to comment on his physical examination findings and the opinions he drew therefrom, a Iinding of a physician-patient relationship may not be warranted. lIowever, under Section 324(a) of the Restatement (2d) of Torts, One who undertakes, gratuitou,ly or for consideration, to render service to another which he should recognize as necessary for the protection of another person or his things, is subject to the liability to the third person for physical harm resulting from his failure to exercise reasonable care to protect his undertaking if (a) his failure to exercise reasonable care increases the risk of such harm, III (b) he has undertaken to perform a duty owed hy the other to the third person, or (c) the harm is suffered because of reliance of the other or the third person upon the undertaking, The circumstances surrounding Mr, Dell's medical examination by Defendant Myers clearly imposes a duty on him to exercise reasonahle care in the performance of the physical examination and any representations he makes to the examinee, Common sense tells us that Mr, Dell, the third party examinee, having suhmitted to the examination itself. will rely on any representations made by the examining physician, Our Supreme Court has imposed a duty on a physician to third parties based upon the foreseeable reliance by the third party on those representations, In DiMarco ':'-cl,ynch Homes, 583 ^, 2d 422 (Pa, 1990), the Court held that a physician owed a duty of care to a third party where the physician failed to properly advise a palient who 5 had been exposed a communicable \!isease, and the patient relying on a physician's advice spread the disease to a third party, In such circumstances, although the physician's original contractual \!uty is to the person or entity who contracted for his services, the third party is clearly within the fores~eable class of persons who might be harmed by the physician's erroneous representations, Consequently, as an extension of the Court's rationale in DiMarco, supra. a duty should be impose\! on "company doctors" when they take it upon themselves to make representations about Ihe examinee's health and well-being to the patient himself. Clearly, the examinee falls squarely within the class of foreseeable persons who would be harmed by false or misleading representations, IV, CONCLUSION For all of the foregoing reasons, Plaintiffs Robert E, Dell an\! Gwen E, Dell, his wife respectfully request [hat Defendant Gordon Myers, M, [), 's Motion for Summary Judgment be denied, Respectfully submitted, R. J, MARZELLA, ESQUIRE & ASSOCIATES, P,C, ,I 6 1. ROBERT E, DELL and GWEN E, DELL, his wife, Plaintiffs IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA v, NO, 96.1705 CIVIL TERM GORDON MYERS, M,D" NAGIB KHALlFA, M,D" UROLOGY ASSOCIATES OF CHAMBERSBURG, P,C" WILLIAM HAREN, M,D, and WILLIAM MILRonl, M,D" Defendants CIVIL ACTION . LAW BRIEF IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT ON BEHALF OF GORDON MYERS, M,D, I. STATEMENT OF FACTSfPROCEDURAL IIISTORY Plaintiffs commenced this causc of action, sounding in medical malpractice against Gordon Myers, M,D, by Writ of Summons filed March 29, 1996 with the Complaint subsequently being filed April 26, 1996, Plainliffs' allege Dr, Myers was negligent and "grossly indifferent" in failing 10, inter alia, cxamine, diagnose and treat Plaintiff Robert Dell for prostate cancer (~116), Dr, Myers' sole contact with the Plaintiff was during Ihe course of three physical examinations performed at the request and direction of Plaintiffs employer, Roadway Express, Inc" over 0 four-year period between July of 1989 and June, 1993, Plaintiffs prostate cancer was nol diagnosed until September of 1994, well over a year following Dr, Myers' last examination, Plaintiff at 011 times relevant to this lawsuit was employed as an interstate truck driver by Roadway Express, Inc, A condilion of Plaintiffs employment, as well as a requirement of federal regulation, was that he submit himself for periodic or recurrent physical examination every two years to detennine his physical capabilities and qualifications to operate a tractor- trailer, Plaintiff consented to these examinalions, which consent was a pre-requisite 10 his hiring by Roadway, He released and assigned all his rights and interest that he might acquire in the - reports that were prepared pursuant 10 these examinations to Roadway, as set forth in the employment application he signed on July 8, 1985 which is attached as an exhibit 10 Defendant Myers' molion for summary judgment. During the years 1989 through 1993 the aforementioned examinations were performed for Roadway by Defendant Gordon Myers, M,D, Acting in his capacity as Roadway's "company doctor", Dr, Myers examined Plaintiff on July 26, 1989, July 19, 1991 and June 30, 1993, Plaintiff acknowledged during his deposition on August 14, 1997 that he was required by his employer to report to a physician for a periodic physical exam and further acknowledged that this requirement was pursuant to federal regulation, (Dep, Robert Dell, p, 85), [he exams were scheduled and paid for by Roadway who instructed Plaintiff of the date and time to report to Dr, Myers office for each physical. (!Jl, p, 86), The only contact Plaintiff ever had with Defendant Myers was during the course of these three employment-related physical examinations, (Id" p, 89), Plaintiff never consulted with Dr, Myers about any injury or illness during the course of these physicals which lasted approximately 20 minutes each, nor did Dr, Myers ever diagnose any illness or injury during Ihe course of these exams, (!.Il). Further, Plaintiff never followed up at any lime after these exams with Dr, Myers for treatment of any medical condition nor did Dr, Myers give any medical advice to Plaintiff during the course of these exams. (!Jl, p, 92). 2 Dr, Myers never requested that Plaintiff return to see him for follow-up treatment or care of any ailment or condition following any of these physical examinations nor did Dr, Myers ever prescribe any medication to Plaintiff, (ll!.., pp, 91-92) During the course of the exam, Dr, Myers completed a form or questionnaire which a~ked for, inter alia, "the diseases and all that", (p, 91, lines 9-(0), However, Plaintiff never received a copy of that document nor had he been provided with one as of the date of his Augusl 1997 deposition, (p, 91), Further, Plaintiff had never obtained a written consent to be advised of the content of Ihe examination reports or to receive copies of those reports, but to the conlrary had waived his right to be advised of the content of the reports or to receive copies Ihereof in his application for employment. Plaintiff was not told to present to Dr. Myers office for treatment of any injury, illness or disease, work-related or otherwise, (p, 92). To the contrary. the only circumstances under which Plaintiff saw Dr. Myers were for the DOT physicals, "That's the only time I saw Dr, Myers was for the DOT physical. And Ihat's who was doing Roadway's physicals at that time," (p, 92, lines 21-23), Roadway did nOI mandate who Plaintiff was to see for any medkal problem and he was free to go to a doctor of his own choosing for any medical condition, (p, 93), Further, Plaintiff has not seen Dr. Myers since his last examination in June of 1993 (p, 97), nor, as stated, did Plainliff have any contact with Dr, Myers other Ihan during these three examinations, (ll!..), There is no allegation nor is there any evidence that Dr, Myers caused harm to Plaintiff during the course of these three examinations, only allegations he negligently failed to diagnose, 3 lsL 412 Pa, Super, 54, 58-59, referring to Ervin v, American Guardian Assurance ComDanv, WIlL Ella v, Erie Insurance ExchaDlze, 398 Pa, Super, 433, 581 A,2d 209 (1990), insurer requested medical exnmination; Craddock v,~, 350 Pa, Super, 575,504 A,2d 1300 (1986), employer's worker's comp carrier requested exnm, There is no issue that Plaintiff was exnmined by Dr, Myers althe sole request and expense of Plaintiffs employer, Roadway, As 0 result, Dr, Myers had a contract not with Mr, Dell but with Roadway Express, There is further no issue that Plainliff neither sough I nor received advice from Dr, Myers, Nor did Plaintiff ever receive copies of the reports prepared by Dr, Myers for Roadway (which all gave Plaintiff a clean bill of health nonetheless and contained no recommendalions for follow up), let alone requesl same. However, even iflhe reports had been provided to Plaintiff, Ihis would still be insufficient 10 create a physician-palienl relationship, Such was the case in Promubol v, Hackel1, 454 Pa, Super, 622,686 A,2d 417 (1996), ccrt, denied, 69ft A,2d 595. wherein Ihe plaintiff (who was 0 physician herself) received a chest x-ray pursuant to a life insurance exam, was subsequently provided with a copy of Ihe x-ray report by Ihe examining physician and proceeded to sue him for failing to diagnose cancer, Judge Hester ruled that "notifying" Ihe plaintiff by providing her with a copy of the report was not the same as "advising" her, 686 A,2d 417 at 420, It is clear thatlhe report does not advise appellant. It was neither prepared for appellant nor directed to appellant and did not provide recommendations for. follow up, There were no personal notations whatsoever on Ihe report. Clearly it represented 0 gratuitous notification that the information contained therein was being sent to the insurance carrier, Is!. 7 The CQUJ1 reiterated the law that "0 patient may not succeed on an action in negligence against a physician when a third party has sponsored the medical examination." lsl. Plaintiffs job requirement that he submit himself to Dr, Myers for periodic examination is no different than one who is examined by insurer's physician as a pre-requisite to obtaining insurance or a job applicant who must pass a physical to be considered for employment. I n all these situations the essential elements are Ihe same; the Ploinliff did nol seek out the physician for advice or treatment of any ailment or condition, Plaintiff was directed to the physician by 0 third party who contracled direclly with the physician to perform Ihe exam, paying the expenses of same, Ihe physician never provided treatment, advice or requested Plaintiff s rerum for follow- up exam and finally, there were no allegations Plaintiff suffered any injury as a result of the manncr in which the exam was performed, The commonality of circumstances leads 10 thc same conclusion regarding the relalionship between patient Dell and examining physician Myers; that no dUly was owed to discover the Plaintiffs particular ailment, or having discovercd ilto inform Mr, Dellthereot'. Dr, Myers was employed by Roadway to advisc it, not the Plaintiff, as required by federal regulation, whether Plaintiff was qualified 10 operate a truck, He was not employed to make a diagnosis regarding Plaintiffs prostale or otherwise, nor to treat Plaintiff for any condition known or subsequently discovered, Therefore, because the physician-patient relalionship does not exist between MJ, Dell and Dr, Myers, the critical element of l!Y!y in suppon of this negligence action is absent as well, Without this element, Plaintiffs' lawsuit against Dr, Myers cannot be sllstained, 8 CERTIFICATE QF SERVICE I hereby certify that a true and correct copy of the within Brief in Support of Motion of Summary Judgment on Behalf of Gordon Myers, M,D, was this date served the following: Robin J. Marzella, Esquire Mahady-Smith & Marzella 311 S-A North Front Street Harrisburg, PA 17110 Katherine B, Kravitz, Esquire Barley, Snyder, Senft & Cohen, LLP 126 East King Street Lancaster, PA 17602-2893 Gary T, Lathrop, ES4uire Thomas, Thomas & Ilafer 30S North Front Street Harrisburg, PA 17101 #'~/ THOMAS R/MILLER, ESQUIRE 10S Locust Street P,O, Box 709 Harrisburg, PA 17108.0709 Al.lorneys for Defendant Gordon Myers, M,D, Dale: November 14, 1997 - I~,,,"ri'in~rl' ," ,::;1"" d. - l ;.'. - 11 - ~,-,,'~SIOIV S " - - , , , , , I --- ....... .-...:--..~~.... employer Roadway Express. Inc, all righl. title and interest that he might subsequently acquire in all records and reports arising out of or in connection with the examinalions and tests and further, Plaintiff Roben E, Dell; waived all rights to be advbed of the content of the records and repons or to receive copies thereof. absent prior wrillen consent of Roadway Express, Inc, (Page 4 I of employment application, Paragraph 3) REOUEST FOR ADMISSION 4: Prior to the physical examinations and tests perfonned by Defendant Gordon Myers. M,D" Plaintiff Robert E, Dell did not obtain wrillen consent from Roadway Express, Inc, to be advised of the content of said records and reports or to receive copies thereof. IillQUEST FOR ADMISSION 5: Plaintiff Robert E, Dell was subsequently hired as a road driver for full time. regular employment by Roadway Express, Inc" on September 23, 1985, REOUEST FOR ADMISSION 6: As a road driver, Plaintiff is required by Federal motor carrier safety regulations to submit himself for periodic or "recurrent" physical examination every two yea.rs, REOUEST FOR ADMISSION 7: As a road driver, Plaintiff is required by his employer. Roadway Express, Inc, to submit himself for periodic or "recurrent" physical examination every two years, 2 REOUEST FOR ADMISSION 8: All recurrent physical examination scheduling, as referenced in Numbers 6 and 7 above, was performed by Roadway Express, Inc, REOUEST FOR ADMISSION 9: All recurrent physical examination fees, as referenced in Numbers 6 and 7 above, were paid by Plaintiff Dell's employer, Roadway Express, Inc, REOUEST FOR ADMISSION 10: Plaintiff Roben E, Dell was never examined, treated, or diagnosed regarding any physical ailment or condition by Gordon Myers, M. D" prior to July 26, 1985, REOUEST FOR ADMISSION II: The only contact Plaimiff Robert E, Dell has ever had with Defendant Gordon Myers, M, D" was during the three physical examinations Defendant Myers performed at the direction of Plaimiff's employer, Roadway Express, Inc" on July 26, 1989, July 10, 1991. and June 30, 1993, RfQ!lfS.I FOR ADMISSION 12: Plaintiff Robert E, Dell never soughl or received medical advice or treatment from Defendant Gordon Myers, M,D. prior or subsequent to the three above-referenced physical examinations, 3 n........"... //,~:"" o "DDU" '........T . 'IU.",1 OV 'I,I""",IUO #6)\ ~ 1::,' ."'1 O. ~. 2)..., . ~ ....."0".11 ':'..~ A"O~ - 'IOi'l,,[ "'OV lV......IUD ,/ ..... ..U O' .... ,f ...; NIYo4.. R I ( 1<' .tro!."'O.... "AIlIol' ."0.0011'" :::: AA. T,... . '1'0'1",1 "'Uv """ 0' .~.,. 'I,III'"",IUO I r I'H' IVM'C" ~Io......... T/oJe.. .<.-, c:1' ....., ~. "'0'" '"'' '0 /171 '1lIol''''O'''III'''A...i.A'''D~' ...O~!.~ "0"'" ,"'.....'.0..'. """..., . . 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"lAD AND IIONIO IY ALL A"LICANTS: CO"'~(lIIrllO '1'111 AlIlII.IC...TION wn," IN NO WA., ...s.sVIII' 'Ii"" I WILl. II ("-'LO.,IO T"ISA"I.IC,uION WA5 COIriIPI,(TIO IY MI. A~~ IN1AIlI ON 11 ANO IN'OAMA110N IN 11 AIIlI "'tVI ANO COlllp~ln '0 T"I IU' 0' 11.I, lII"'Ov,.~IOOl AJ<ojQ A"'" "'I"IP"IIINh'IO"'1I 0' '",'OI'lMA'ION OI~.N IIHA~L .. CO"'IIOIIllID AI AN AC' 0' DIlSHO"'UT'I' IIUltJIC'I"'O ... TO OI!SOU"'~I"C""'O'" OM O..C.......OI . WIL~ 'VIIl"'I'" '''111.' SUCH lI'Il'OH.....'IONOIll D<XVMIN', 'HA' "'Ar II "laulAIO '0 COM'~IlI'" I....'LO'..INT '11.1 IN CONIIOIIllATION 0' M' IIINO CON510lAI0 II0AIM"LOYMINT A"'etO" IIINO IMP10HO I MIA"'I' AQAII TO SUBMI' TO P""$IC"'1. IUMI"'''''IOIIIS AND 'I1T1A' MAY 111Il10uIAle., THI COMP"'N'. AND' DO HIAIU (It OAAN' "hUU "'NO AISIG'" UNTO HOAO.....'I' UPRUS INC "'U RIGIot' rl'~1 AND INTIRUT THAT I ""A' SUI$IOuINH.' "'COUIAIIN ALL "ICOAOI AND RIPORTS AAISING OU' 0' OR IN CONIIIIC'ION 'i't'lhi SAIC IUIll''''''''IO'''S "'J<ojO 'UTS "'~jO 121 WAIVI A~1. RIQ,.1T$ TO II "'OVIUO 0' ''''1 CONTI"" 0' SAIO IIlICOROS "'NO AIPOR'S OR '0 RlC('vl cO",n '...(j:410' AeSI"'" P!>I,O'" W.I"lN CONS!NT 0' MO"O'hA'l' (JtPRln INC . " I"'PI.O'IO l"'OAIII.1 '0 CON'OAM TO TI11 AUI.U"'NO AIOULArIO""SO, RO..O>h....,OpAUI. I/'iC ANOUlI 'H'" M' IM"~O'IIolI"'" "'II.I. III A' '''''I W'~. 0'" SU"liIl,,""CI 0' 1II0"'0"'A' (JPFlISS, I"'C SUIJIC' '0 TlAIIolINo\'ION WITHOUT "ICOU~IE AT ""H 'IMI 'ON ..,." 0101 ""0 R(ASO"" I.CIP' "''!l '!l\JC" TlRMI""'ION 1\tlA't' O'''''IR'hHlIIl QOvIRNEO I'I'''N "'PPUCAI~I C01I.ICnvllA"OA.NINQ ...OlU\I....("" IN ""'UIA~ COIIISIO(R""'OIII 'rJ/'l tr,l, "CC(PT,,..C AN 0"1'" 0' .MPI.O'MI",T t A[SIRVI 'HI UIIIl.lMlflO llI'OI1' '0 VOI.U/'i'AfIlII.Y flRMIN"'I"''I' I"'P~O""["" WI'H 1-10..0......' IJlPI-11~S I"" A' A,... t'''''t 11I011I..."" IIII...r.o/ltj SULlICT 0"'1.'t' '0 I~ """0 wlllllS "'OVA"'CE NOTICE 0' "'Y INTlN'ION '0 'IRMlldTl Iol' I",PI.O'''''[NT "'NO lOt J.lI '!ll:' 1-1. "rIO'" o~ "J<oj' "''''0 "1.1. __UTIO '~I"'OI 81"'1'1T5 TO ~H'CH 1 "M IN'ITI.IO PURSU"'NT TO 'ORMlR OR (IUSlING '''I'''OIIUNi''IT PI-lOGI'lAM5 I'" l"ICT O'.~I"'(j r..t COulllll 0' IMpI.OYtr,lINr I UNOIRS'''''''O TH"" THI TlRMI5 AIIIO CONDITIONS HIRIIN In 'ORll1 M'" O"'l' IU MOO"I[O 8' ....1011""'" AG/'lU""~"" JOI""~' Il[CUTIO I' ""'UI./I "NO THI PH[SIOEN' OA A ~ICI "RISIOV., 0' '"I COM PAN' "IMPlO'l'IO. I 00 ",,'AUY OR..."" RO"'O~.' fJlPAIS5. IPIIC A NON IxCI.U$IVI RIOHr '0 "HAcrICI ..."', IN'{ENr,O'" OH Chl(:E W"''':'' 1101'" CO,..t.;t'd a....IlO_OR '(IlI'ICl DURINe;. THE P(RIODO' MY IMPLO'l'IolINT "'ND TO OU~I.IC"'TI h.E IN'I'["""ON OR OI'l"CE"S OF TEN"S If 101'" ~,"'O OC(:"S'OI--, fC (J.. r.o IN ITS IU$I,..(SS I HIR'" AUh'ORllI 1t0"OWA't' IltPRISS INe OR ITS "GINTSI1I '0 IN~ES'IGATl MY PREVIOUS RI.(;OAO 0' lIIolPlOfMf/'.l TO "'SCtHr"'N ..,.., A"'U "I.~ IN'OR......'IO'" WHICIot....Ar CONCIRN M, "ICOl<O WHfTHIR SAMIIS 0' RICaRD OR NO' ""'0 I REl.IASE Iol' ':ORloI[1ol [MPI.O'EIol "/olO"," "llI.IAe'l'r. Fe.- ANY O........QI 011I ACCOU,",' 0' 'VJolN'SI1I""a Suc" INIIIORM,,'IOIII (21 TO 'N~lSTIOATlIll' PRIVIOUS SCHOLASTIC RfCC,lRO "'''''0 I/'uJ.l~u..."" ro T""E '......IP IOUC:ATtQHAI. IIlIQHflIo AHO "1Il1~AC:'I' AC:' 0' I". I "'VT"ORIll Rl!l.l"!U 0' ""'., l!OUCATION RECORDS BY""" EDuCA"O"''''l AOENe, OR IIIISTITUTION """'IC" HAvl ""INOIO AND 1)1 SECURI "Ill IN__15'IO""I"'1 CONSUMIR RlPOR' PURSU"NT '0 IICTlO"" lOt 0' THI '''IR CR(OI' IIIvo"rlhQ ACT, ''''CloUD''''", IN'O""''''IO... AS TO M'I' CH...RACTlR. GINIRAI. RIPIJ"'TION PIRSONAI. CH"RACTlRIS'ICS ANO MODE 0' 1.1'1"11I0 ""HIC...EvIR ...Ill "PP~'C"8u ItPlOVIOIO 'M"" UPO"l WAI"IN RIOuIS' TO HOAOWAY [)lPRUS, INC IMAY A(CII\l1 TH( NAMI AND ADDRESS 0' THE I"'V(srIO"'ING CO"'SUJ,lER ~(PONtt"'~ AGII'tCY 'ROM WHOM I MAY MA"I ....FlI"IN JlIOVnT fO AICII\lI 'ULL OISCI.OSURE 0' ..~v SUCH INVESTI"A'IVI COIIISVJ,lIP ~EPOR' nlh.l", "vi 0..... 'OU.OWINQ rMI DATI 0' tr,l, VVRI"IN FlIOUEST 'OJ:4IC[IVI SAMI -+-+~~-+ t9--,~~ "A\0 g -R. ~ 7- ~ - J ~ ",PPI.IC.."'T IIIGN"'TUAE O"TE ROADWAY EXPRlSS. tNC, (QUAI. OPPORTUNITY POI.IC'I' AICOQn","9 In. ",''', ot ""'''Q nl/""" l.tQl;'C" 10 ,n,., II/U.'t. AO'dw., (_pt.... tnc "1. .00Qlld tn. pol'c)' 01 II10tljlllg eo.l",I' OPpoIl"",f'r 'ii' ImplOylT14"1 10 III ,"d...dlll', ''''4' J.,,\) of ' Ie. COIot "";'0", nlllO",1 or,;." ".Iuelpl wnl'l I" 'I 1 DOni "dIOCCllPltIO"11 QIIIII"Clt,onj 01 p"',I.ell 01 mlnt.ll'llrIll."P /I.elpt ""111 ,...,;" "."lJ'Clp., I ,oD-III.1e" "''-l.1 ,.,,~ '1C1011 Tn,. eornp,,,, 'IOII,ell', comm,ned IQ Inep',ne'pI'l 0'1tq",llmp1o,rn."t OPporlll",T)'.. I mlln. to '1I11"'e' tnl d'~llopm,,,, Of n...m." "'OIlIC', Tnl'I'OII '''1 C'J'"'LJ4", n... OI..looe<ltr\d ,n.t"lItld po"C''''''<I "'OC"'",,, 10 .n'\I'1 Ihl' It .,11 II) A",,,,l. """, t,.,n ."a promole P411oO'" .ncl"alng a'"ble.J .11".", .nd '111"'" O'lnl ""'1""" I'. ,,, 11!,o0 "....'''CIlOO''. wllP\c)ul 1~"dIO 'r.JI, '.CI CO'u-r, 'l'lglon, "'110"" Orlllln, .... Of P"',"CII Of m.nlll"'.ndICI" (0) au. d""'Ii'" 0" ''''1''0,'''1''1100 It 10 '\lrtn., 'nl p'.I\~ ..'" 01 1Q",1 ,mple,m,"1 OPpgrlu"Il, (c) ell. plomo',on elec'..on. 0" ""OClplll or eq...,1 Oppu"uM~ 0, Impo...ng ont, ".lIa 11>Q1I"lm.nl. IUI promo,.on,' OPPO"II/'1,hll 1(1) "'C'Tlor'l.'I" . ....110/1,...1 .",on. ....en ,. COI'l'lPtnllhon Dln'''t. t'I"""1 11,011'., ,.tlol,n,l,om ,.,011' 1.,m,n,lIon. Ina CompIIlY"j)OnlOl..:l prO'iJ'lm. ""1/'10111 '~.'d 10 Ig. '.el (,OiO' ""<J")~ "Ihon,' Ol'IQ,n II. Of P/'I,"C,1 Of mlnttl n'''dIC'p INVIT A TlON TO 'ARTIC"A TlIN 4011&03 A"IRM" TlV( ACTION PROGRAM Ao.Cw., I.",... Ir'IC 'I' Q").."nml"" conl/.ctO!' '110."110 5<<:lIon ~3 01,,,- R.I1,Odltlhon Ac' 01 19l1 'ncl s.chon &02 01 tn. V,"".m E" VII"ln. ~'la)II,lmlnl "".'ll"C' AC' 01 IiI. wn",,, 'tlQlI'" gel",.,nrn.n. eon"IClO'1 '0 I'.' '''"m",,,. achon to ImplO, In<I la...I\C.." ,mplo,m.nl qu.hhld n'l\t3lclp~ .nd'~'all,l, InC ClIII..r,.o (1'110'1(1.111'1'" ."<':: '"''1''' 01 '1'1' ~illn,m ,'. I"~II"I, II ',ou I" , nl"d'CIpPId Incll..lau.1 II dllln*, 'n U S D.p."ml,,1 or ~100' '1lQ\lI'ho", Inllll-.J AH..mll'''' AChon OOr.;",on. 01 CO"" I,,;',,' \ Ind SIIOCO"t',C10" or Hlnd.c.pPIlJ Wor_,'1 (., CFA 6().l.'1 01 ,I 'Oil .,.. (lllItIIld ~'I,'.n 01 ",t",n or 1"1 V'.ln.m III II a.f'nlC ,n U 5 O.plnm.nt 'It I.nlv' '19...111'0'" .~r".It(l A/tum.h", AcllQll OOh;.hon. Of Conl'.C10t1 .f'Id SutlconllactOtI tor D.lltl1ld ~ll"lnl or 1111 ~I"n,m ('I" (II C,Ft 6().2~J .nC "'O...ltJ hi' 10 01 CO"',d.,.o "nell' ROld..., , .", m,I,.., "..on jjlI'OG'lm. 01.... "Inl,'" ,01l'MU to tl'l. CompI", An, ,,,rOtm.r.on IlIpphlllJ 0, ,0\/' ,11111 tit _.pl Conl,,,,"II.1 ,na ,nlll ani, t'JoIlI.1>IJ .na comm"",CIIIlJ lOot".' 0.'11\ ." accOfdll\C1 ""II; In. Ifo,.m,n"o"td Ac;lI .nd I.J S O,plnm.nr 0' uOOt '1;",I,llon, II )'OU III' qllllilild "'fld'C'PP4d ,nd''''dll,1 0' ,t ,011 "1' qllll".e<I d'~'OIId .111"" 0' ..'.'.,. ot I'" V.f",m "' Ilo.aw., .0",la 1,-. 10 ,n(IUd, 'fOil Und,1 Ihl Comp'''''1 .Hllm,h", .Chon ptogttm. :)I/Omlll,on or l"fo,mIIlO" " ..u1Ilnl.'.., 'I'd ",nil"" Ii' "VI ,V... e'lk I IV ~"".Il. '''''" ,n'O""llIo" ",," not '1I0,eel ,0", '0 a'lCnl'gl a'IC'phl'l'l) &ct,on 01 ot"'I' lel".,.. tll,tm."t "'1.1 SIGN...TURI OAYI ---------f-- I ---- ----r .-----, 'Olol PIR!)Ol\lNlL DEpAPlTMENr uSl :''''f O"ICIIIl O"'CIA -,,.,/ " ~ ,I p,u. .. " L Roadwa~: :press, Inc., Medical. J ,horlzatlon To Dr: ~ l'\XERS 350 N. 21ST S'mEET CAMP BIlJ., PA 17011 Please accept this as authority 10 examine and/or lest Check alt that are 10 be partormed: DRUG TEST: o Pre. employment 111 Periodic (Recurrent) o Reasonable Cause o B/ood (Probable Suspicion) o POSl,Accldenl o o Check type of work: o Frelghl Handler (Dock Worker) o Mechanic or garage worker ex Road dllver o P&D dllver or sw:tcher -, (OTl-IIRj Appointment: _~_L_J!:!l"I_IO'I\l 10"'[1 II 1:30 P.M. ITIIIoI(1 l1OilERl' E. DELL PHYSICAL EXAMINATION: o Pre,employment ltl Periodic (Recurrenl) o Relurn 10 Work o To determine nature and exlent 01 the lollowlng alleged occupallonallnjury or disease: Examination lee 10 be paid by: IX Roadway Express, Inc, o Individual Shipping Instructions: Q!; U,S. Mall [] Overnight Courier rN"'~EI 1~30-3326 ----I-~5"'O.,--. o Medica/treatment for occupatlonallnlury or disease III DOT Drug TesVPhyslcal Exam (send chain 01 cuslody forms 10 MRO), o Non.DOT Drug TesVPhysical Exam (do not send chain 01 custod lorms to MROl.__,_ Authorlzallon: 100 IlOt\DWA'{ DRIVE lSTFlUT AOORISSI CARLISI,P' PA-__--.l10L1. lCITYI ISTAffl Il'~, -1]17)249-9000 _~ R70 (PI10kE, (1IIh..,,.... COCt, UJ JOONrol .' 61------;- _~~VRj~. - - j7~t.h7tL_, [~Z ';/ / ~t~ll -7"-f-4o( Notice to Persons to Be Examined For DOT Recertlficalion In S8\1an or rnO~6 calendar dayj trom tOday, you will be required 10 submit to BOOT tacurronl phYSical ~"'Jrnln<.Jlll)r'. At Irlol' I 'Ill! you will be SlJbJeCllQ a lull drug setEten ThiS drug screen IS In conlormlly with Article 35 of thl;! National MJ'ilt.Jf FrtJ'gnt Agrl!''''llt'lll and Federal TranSPOrlal.on Workplace Drug Tesllng regulations (49 CFA Pari 40) Notice to All Persons to Be Examined ----~-_.__._,---~---~_.- ._~ ----.. - It ""'Ill be your reSponSlblllly to lake the lollowln!) Itf)m5 With you 10 your phYSical ell am/nation/drug screening , Orl'.,'e(5 license or Olher photo Idenld.callon, , Prescription corrective lenses (If applicable). , PresCription hearlr]g deVice (I' applicable), Company pOlICY and arllcle 35 at Ihe Nallonal Maslsr FrUlghl Agreement requlros Ihat you prOVIde 10 Ihe company a recurlJ 0' prOScrlpt.on and nonprescrlj:'lIon medicatIons you have used 'rom the lime 01 thiS nOllllcatlon untIl your urIne collection (CH..q 1l,J')l) 1$ completeCl Use the space prOVided below Modlcll/on Proscribing doc lor 7 --- Consent and Release .__._~_._-..-..- I voluntaflly consenl to prOVide a urine specimen at a c,'!laclion facilny deSignated by my employer or prospeCllve em. ployer and, 'urlher, consent to haVing the specimen lasted at a laboratory selected by my employer or prospectl..., employer I lurlher agree Ihat the drug 1051 results Including the levels of drug detected by drug category, II any. may be disclosed to my employer or prospective employer. the Medical Review OHicor, and thtt collection SI18 8)(amlOlng pl1yslclan All per$ons are rtlQulfed 10 $Ign thiS notice Soclat Securlly EmploY"'I/Appllclnl'l Nlmo J ROIllli'l' E. DELL _ Number ----l.~~n,~6 Employ..'IIAppllclnl'O Slgnllu," ---iCZLA...,---^--!:/.,L AJL_,__._ - I T----------J Tlmo clock punch Ollollgned --S~ff -(ff--------- ----.- .----.. - - Compln~ CQD~ -Blu. ColI"rlon S", C'lPY4Wl'utl Ernplu)'ltulAlJ1J1lC4I1\1 (:()D~ .c.".,'" EY/J f3 (J, IC () Ohil" Ill. "'ll '"""J II IY"'~IAI"""N"""~~" II 1.....,.'IJI...Il"llNUA~.Il .......llI)lll.ll..llllllU;Ufl'.t.u.1IJ I) ~rl" """""" IJfI at' o.w....w. . I' NtIWI" YO ..., 01 ,... AaovllI ,n. "-tAl. IJUl\AIN /~- ~ -~~~ ~~~ 'OHWAIIl)H III 'OHIM AIO..... 16 Htul......O GOy......" 10 C)II OI6hOftlln AI'tQ """ I. c.-.vw: 'OIl ~1".J1oWt, ACT.... HA$ UAWINU NCll'dD ..,.., wlOlC.Al. '''lAY ME.., 'nIThIH '"I I.AIY TWO GD 'UAA$T t.r,U U NO PHYSICAL lXAMINATIOH (SU O(IlI'~lIHSrHVC'IONS ON "'V'M' 5/'''''0 II COItI,ur,o.'f IUltltNINQ I'''''SIC,...N GIHI"-t.L""" 1- hll('~ YwIU; , I1AlH OlvllOPWIN' 0000 n hllt l) .-00":'. " "7 COl..Q!i.- 'nil ~II\lID [) Wl'..Ol,/l CORAiCTI'i1 Lll\l6U Ifli COfVtICTlvl L""tUS 'OM OIsrANC(; RIOHT 2tiC).I INJUR, OR Ol~f.ASU RlOH' un COl..OM ~l$lOH hOMl.lONJAL. 'l[LO 0' Y1610,. fllOt1r hAS IJl.AMINI.O I I'HOUT CORRIClIV' hfAKlNQ Ohlcr II WIT" CORRICT.Y. hlAJ\jHQ CIVICl ON t J HluH' l~ ,; lift I"" 110."'11\10 r INJUIU OR OlUMU HIO"' LLH ~. RiCH' AUOlOlrll(lRl , II'O'~ AU I.....,....'''''''''' un !.J,.(JHl "OUlM .......,. '-~"""'~ ,0 ....... ,. (Y-- flU ~lO.v ... ~ Lln~ P' ~ v LHI 001" E....I.~ o . 1 ~ ,..l:r ,...... L ~k UI..OOU I'Hl_~~' ,..."......, l';'I), IC; -.., ~.U-..~-;~u::' Z'-JA LUN"'~ V, C----Ll::. L~_ -- .-~-l POH/ -I ------------.---t IHV:>~ ....(.,..r. > H',) ..0 ;\.uJI1J 1---- li '"HO..., ")or , 'S'~ )h., "lAH (JhC""'IC o.::.I....:o( "Ht~i" ~L51 IIUO~( lllHCISI !,CAH5 HI:)i"'I"'? rl Yl$ GASJROINTlSIINAL c.(,..,rOURINARt lJYU o . JULL' """("'::oATEO? II YES IJ,.O I'MJ "INUlLS HUT AHlM UUtCI:!....!t:- AUfiOHlolM, "A~ES '("'Cilk"'l~ I ~ . . "" . ~HIRi? ULCERATION OR OTHER OlSlA~11 r I yl5 kO. I.lJo'UJN SCARS UR(l'''!,Al. OIs,cHARGI ",cr;;:--ff{(..... ----of:' Ie-- "HO~~~~__R"_~.__._.. . . . ~ i Jl",OIWUIRO 1'\,II'II,l.ARY ",.U JIRI\.$ HtMAAIl.S (1:'''1...111(5 U.....(R AADtO\.OGICAL OAIA. II U.IORAH)"" ""'01"'''1 U"'OlOC:iY '- I.IG..., HICHI NORMAl. [) I"CH(ASlO UOI II ABSENT '- ",CO.......OO"'ION LEfr I NOH MAL 1'110111 -U{C- LIfT II I".CkIA:)llJ Ab~l,..r tC(t;;.:;. HfGHT V ACCI~rA8LI (J UNACCIPfA8l.1 UMiHI "'Ie QR A-' ~ _?nc LO....U. aT o\PPUCABLI II'INI AU 600AA IL1C1AOCAfIOIOGJV.PH . . , :; .. II 'JIOUIO """"fa.loU' IU' "''''OfWIO- DDIoI'~O""'IM'UIU'~I'tNU""'1D- ........ _I, . f.l'" ACW"""""C" wll.. ....III'.uo1 " "Of "01 ....:c.u..lJ,IIt,..u WlIH ""'-I'AIlI.. Tur ~I'AN....' 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"""IN WlNU"'O CO"RIClNI 1.1"'"' 1..,r.lb(IUl~ ,",0' OUAU'llD f I OU"U'IID 0,,",1.' ....HIN WI..KINO WM,.ClIYI HUI4l"'O O'YlCII&' 1)9\ .IC/.ll IU ~J01#;;"/~'Ott ':!J?€ EOrU AT Wl 0'7' AT ~R[~)?~AIl. ",WllIIlAMIN.I"C, h'SlCIAN (T) I ~ PRINr LIUI!1-P 51 ATv' 0' 1 CIA'l..~ ? 0 2..V~ V P,,PI ,('J /'1 ',u- _"'" rRPHTtiA'LM I '(:i M '11011' ..c,~ fO II CO..""ITIO 0"'1.' \M4IN 'II&I,j,,1. flil' II CONOVCTIO I'''' LICI,,",UO o....r~AL..cLOO." Oft O"IO..tlMl6f l.l.fl 01 U.t...,,,,lftQlll ,AlX.oftUIOI OfIHIH"I..MUI.OO..' OI'lO"'o..IHU' ;;_C 01 OI'Wf~I.UlJ'SI QlIl O"I{MU~" (Ill" O'l "",NI l1U"~J -.....N..''-''4; 01 ~rH.........l)OAl CoIllJ"tOtllU'WT J\j'... II NO ''"U~ 1'1..1..ol..1.; ..OlA'lUH..... 1...O"C""I. l"'I<JM"ArlUl'o (I "LOU(,) t"M1~;lt MIC..te.. QNoL' / EXAMINING p.nSICIAN'$ COpy I I~Y tf c', ji, I. .1 .' " I .........,,,.. ....~"...hlf't".......,' l ~~, """",. I I~H GENERAL INSTRUCTIONS ON REVERSE SIDE) , 'O~.' .fOlTI La. '~li " 7~V7__._ II '9w tuI'.'lCAhON .0 DAlV'" I J CA OAl'Y.H II OOCIiL (WI ANIt ~C;U"'IIC;A'K)flI lLAC" . ""Y l*'ClULlIO A$ .....U Q' IUIIlI/'iAfIOH 1I't1S 0 HEALTH HISTORY rU' G'N,lUll"UHVC'KJIIS ON ,..-WIM' lJall'O II c.o",ur,o., 'U"",NINO "H"$JC,M, nl hO [) la..<<ll)flIYI)t4U.W u ....~'*t U 1~1I11Jf" U, ~ ~'n 0l'I 1AOl0000""'1OII/II n ~I,.,.rlll..... IActll , U ~:~''''* oUt, UII'U' ft". III 'r1'.g.Ai'lNil6Nb-fDrfIC:t~'\J."IY.'.- .' !).llAN.O" 1ft.UI. 'r'r' ~""Ct1\o1lI""''''''''''IOtW.ta......" 11~'OI"III"lJf"ofUA~ V l) l'w'''' 'IUU 1'1I;1,; utl .... CUtow II '......II'-.II,IH'OII'l1l.11b1.~. . rl C"k1A00II1I'WtH.1JII.IIJI'lU1W'f~ I) ~~ClIKJON (j e.;..:.:=:~~~ g ~~ II ~OfI""...~,.........ItNQJIC,OII II ~LA NI' ~fUMMQ DtUl, tJ ~,u ~..gO'lOI"1JfWM( II IJ,.4lttl\,tMAIIC',""" 'I ., IJICUMAUT.lI/.JINllO Ilc:AIIUIl II \ """'tWoA "'tJ' ........_Jl.........".,~............ LHI........-~~ ....... OIlIM.Cll:MOtoOllOllLlO~OIHCl U ~ j' "'lwP YO ANY 01 .l. I H' AIOVI " .,n, "-J.A$II.JJl\AlH .L ~ ~t-.-::3 . ,/ A...a.-L..-_ rf V iT - ~ AliO AOOMII 01 ,"U6ClAHlll c;O"'UI.YlD ......... "0\1. lXAMl"1l "'CIIVID ANY wlDtCN. '''ur''iN' WIIH.,.. rHI LAST rwo~ 'flAM? IIUI ~ PHYSICAL EXAWINAnON (Sf( OINIRA~ l"srlfUCflO,,5 ON HIVIHSl ~Dl' ro II CO"'U1l0" "'A"I"INO ',fr$IC'''" QI/lrllAAL A CI- Huo~.r I 'nooli' HAlM f u /. tJ tJ hu )- O(V( ONI,..' 000 (] 'AlH () .-0014 lOR OIV~""..... ~L.;.:;2:~ d l .J "l"ULLUUNI WUHOVTCOtlI'tl:"I'l'IUH$Ull'tfITHCI:)AAl.CTlVI~6U fOM TAHCl.:.uQH .r 1,1"1 :JUo-<J- IN"lUA't OM Oi ? ~HT LIH ~J;;~ COlOA YI$fON HOHIlONT..... fino 0' 'l'ISolON "1~ltI -'~~;r / ,/ v'" ~ lAMO lJ.AWINID WITHOUT c.o+vtIC'IVI HlNVNQ Of....IC. II WITH COfUUClIVI Hl.ARIlIIQ OIVICI 01'1I: (I AiGt'lT lion L ltIT~"''' hi t~ HlARI"'Jr.rJ'~ NJUH'I'OH~~lA.Sn 10410,., ~~ Lln ~Ji.F -_ ____ ~=_- ~~~T nv ~o:e'lunRtC l[5~KN:::'0It AU tMal.IU'......~ lWO KI d I '-- ~ _bJr I:~__ MOUTH v- IHHOAI HIAHT " < 't 3 o ~ r {j k . I.UNc,;5 "'.UlA.'""'7L-.r lAAJ~~7~". 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"""All ILICJHOCARO RAJo'tt 4 1Oiil(, 111M ..c.c.oMUll.,.c.a WITH .....'.o.HT H """l. . ~ , I; lr. , II cc...''-JU..ID 1IlM1"""-U Ill' IIfJUQfwHI_ CVNI-.:tU.I.O......''''''US IU' l'OOf 'lNOftwW- L,':!C)l.......-~.......'H:w.AiI'''I(IH OUdAAL COWW[HT, MEDICAL EXAMINER'S CERTIFICATE fSU OIN'RAlINSTHlJCTKJNS ON AlVlASI SJOI, TO II CO*"l'lUIO'1 'U~jNlhc.J ~IH$It:'AH ;f'u -<3 t.. 1'( "T G" ' nEt I CU,"f" THAT I HAVI ~1"'ID .vtO WITH f'.HOWlloc,;l Of IHI5 "LHS/JN ~ WTIES, '111'1I0 hilS ....-~N CtIEC" QNlkOCIl. ONLY PIli '011I OIU14lA1 UNOU II.DllU.&. ..DID" C...,,,,,.... IoUln NQULAhO"'ln ILCUIWI"CA 'WIll'll,.,. ,.... ~ Calli. Sot,." lilluvlalol...l' 1411 0104 lit. 4' r-end Mo.Idw4' ~""..., ""... "",...... bMNnalluft 1ol~1k ; lOll OTMIAA - ..O'HllU14IHQ In ~iJWWA .II"~', ..."".... ""'" !!2'lIWIl.IAmI'la'~~~' CHICIl AU. IlOC"" hi""T APP\.'t ~.llJN.J'IIO NO ~'*"llMl II CluAU'1l0OHL'WkI" Wl~ ~I,;1NllUlW'I.lll' '\l'lIIO~ ;f1-lItO' QUAU'1l1) [I QlJA~I"IO o..~, .....IN ""IMIINa OOklllClNI "IMINO Dt....+Cl.l51I)lll .lbll'U .II' .. I) l'tO'IfolOlt-oij "'NUI"'''' "Ul.al~'1III"1A.Ai. 1I..Uf'MAr........ II jLOOO '141~14[ I4lCJ;llA OHLY ~IITID IMMINATION fOf\w'OH THIS ~'" .u OH~' ~ AI wt (J"K:.& AT -?..rv ,V - .d I for .< 7' /I h.~...r_ AA...lIIII Of I..M.WININQ ....t.w:&M ~"'11 OM-AllJ.I U.iiUl.Y\. I.. ~Q 'lJ.a# ~ ,'J:'fi.. ...~..,e~ R P THA ... R,,'" .!lI}L___ all1" laC-TIOft '0 II cow-..nlO GNU "I" V\6lJ"" ft.,. (..l~lJUl,;"U I'" UUN"O 0I't1! ALWOlQ(,l&f OK O"TOWI1KI!U l;olI.IOll.l.Alil_r.... oWlIrtUI UtI OI'tlhW.~'t:;jl~l_f --------' ----.--- ----- ,---.-- _;;;"11)1 OI'tlf_........=~ UI'IWIU.'IIIl1. ~~_~.:"~~llll--rlH fJ# V"H1~l"O(.,..r IAlI.WTlJtiIlllllr.' EXAMININQ PHYSICIAN':;' COpy '. ~ VIEW '0" ROADwH u~!. ONI' I 11"'IJI Rh'IIWIO Tt'l[ AoolJl IUK)fH Of IHI IJ"'loIINtI'S WIOiCAl CONl..lI'IION ANU I ....... h'wAHI U' It1l 'INOINGS AND Ilh'U'" IollhOAlllJN~ '" I,i" l~INlhG ~11~c..:.LAH ~;';i:..i-I:'~~u..lI.rl~T~~Pt.~ (/ p, .3 Cv l-J :l! ,; LJ "J LI LJ . (J I iJ F 113 ~~ , '. .., ~ U'IF -}l I- I "'l .... _, U,ili I ~ .: ,~ - . ., ~ oJ I ~ 0. .."J S I '~ !, t' '''0 I- ~ .(JI . ..,. ~ !j~ ' ~ a; 0 c - 'I' ., ~ .... ~ 1'1 _ ~t o )1 :. .. j zd.j tz - , -, .. e 1(', sO~ 1"~1 '. - . - - ~Utj " 2'z;~1 ~ r; ., c: " , - ;: 0 ~ Jr, ~ I ' r ;, s~; ;1 -.. - ~- " :'" Z i~ I i~j ~~ 0: <l: ~ ~' - . I . . , ~ > 8 ffi . - -. -' ... .: .,.. . c ~ al 'I . ~ " '"1::"" tlzll ~ ....' ~o'" :I ' , m I.... <J.... m :J I --'.. 1(1 " . z-\) J. '. ~ C/l - l:'\ :ur:l J z~ 8 . ..., :I .:Jo/I J i . :J - -- '..... J!~s ... ~ U ::; a: :J.u':J " z t:l~ a-I l r :. ! ~gl' ~ 0 l.' ... '" \oJ ~ - <l ~ Z -.J ~Yl ~ . ~S-ll" a: ~ - '" I ,<~ " ~ &....~ '" dljI ~ ';;-11 i C/l", . G I . ! ... 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V" .: U ~~>-15~ .:..........:1 " C. _.:.' .'" 'i I ex: -u<(u. ~ '~ ;' I-~ Z-' fI ~ I o a: :r-w IlJ """ .. " _ > ..~ - .... ti - ' . Z ~o!::~~ o "1 ;:. .... "t . ~; "J .l! ~ _ ': T _ ~ ~ o _u::>- it" .:. . 0 '" ~ """"1"'''''. LAAM,""'.."",,, ,U.,.\",;n. ISlE QINIRAL INSrHUC'1OHS OH MIVlR$llllDII [/-.<(, .S '/ AGt. t:: \01)01 . )L2.uru..':' &_ , o 0V\ef: IlnIJ~") o VII G 0 DRUO IlCAUH INCLUOIO AS PAM' 0' I..v.MINATIQN "'It. WIIJ"P'-I .....,., ........1...'" _1I1Wo..........'I..IIW\i1 1.lM."'_fI'\Il_,.lIMo_...", g;:E___ .\fI, ..._.... ___ ~1.I-ptI\f *"-1 ........".,...._.,.~Wlj.,., ~~ .... ., r.l .( 'x "I'''".]: - .-... --- 11'*",...... T..........1t .~.. ..'~# ..,oJ........ -;;, ,,-,. " , /i " , -- v.L I 7.,1." Y I 0'" o "v .. 'of ," ",' ,. ~,.....''''..........................._..ltj a...___ ..._ /~."'lIII""...,..,..,.,_ ...................It_,_ te--.-. """".'~_lII _..... ""' uw.. --.. ...... B.... 1..'1_ wee... ....c_ B'" h. ......, . .,. t_ .' '" ,.' / , . .' ...... . ,...., '\ .... 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I ,.ND HilS PIRSON 'Olll OAIWIIII, UHQlA 'IOC"-'I. 1II0TOII C.UUUU WIrY RIQULA,lION, In '(~IJ&"" .n" IN ,..J"., IroIc)IQl CI"I" s..r.~ "-1i1...I.Honl 141 C'R HI .'.381 4iJ. &t\4 RQt.~.'t lAp'''' Inc -, ~~.IC" Lqmlr\e11Qn SI.~.,IS' o o.....lIhw un'" .,.." '....Mg 0 01.1.1111'" onl., .~n COtIIleU,.I."... fllll4'elloll _.r1/\QCO""'II~ a Qal "".'l"! On'C41111 "'JJ:::i~v,;:, ...~- '1-- ~ ... . (:WI 4 0 1111) 13. Qu.lJI"e1S tf "-,)1 C)..ahl4\J a 1<olo 'n41n9 ~ncs'''Il '~IIlQNI """"c.allllh,lIm'ht,\l'l A COtotPLITIO 1.u""I~TION 'OR... 'CIA hil:i. f'IH:ioQN IS ON 'ILI AT WY OffiCI AT 3V'J)I dol::! .:> ,r.oo(t:-~' r (:''',1 ;, i. L //1 7 J / ),~ ~ IMI"I '~'M, "" jJtl. ol..""........,"v I)n,.",,,,, I"I..J{'{/O,A..! V /"Y~' /"I:) ,,'1. U f.,P<l QI' {>I'11I1".IYlotOI.umll(I"g pII,IIC"" r~,.:.~l,t"'~h. ',/',:,1'1"". ... I,.... ...., --",-,"..uro <~~ R,EA5()N "'>x ..:L- J.) L.1t2QI ,j '.'.-,l. Roynl ,,'. (iI buIll UII l.'!iC L ;>t.;U) ~ll ,~ I, ro......." /,;r,.. , ,,-,- 7,"--'-- . THU5~ "'QI<I/\I1 ~Q""':; AICTA.. .:;. I"oh.l$'.'1 ,., H.\j'" ,- "" .. I.. ll" 01""....., O~M'" " , ~ DRUO ISCAUN Ht:SUL'5 ~1I1'~ UI1..:c'1I1.0,. ',.,.. "."\.:0 ...," fA 'Olll OT);4.&'" - NON D"IVIJrrIQ .....-... -.--. ,...--.. '-_1- o Qr..f,,'_ o a.....'.4 ~"" ...." ._~ """.".._, o Qr..f"I~ ont. .""" __....., ".....".. -"";I ......'"1 o '-lI !.)wo,l.... o .., ......."11 _<<)onll ..101........' ........~. ,"__ o ~__Iy .......ll~ 1*'<10'" aJoJo..._____ ................... I' ,..,"'v \.,. N'(, x. . ....,. , ) '10 / ...'-....l!f\rK_ ,;:, d~t/ i/J-(,../ry 10... ' I,.,... ,........., v.. 'OU.' '.p...lfl 011". ...,m, 1,-'. m..,IG.. CQI'l<.l'hon l"lJ I .," ..." <), In. 'InlJlnll..'ldl"Qotflm.I\\J.III<.lIl.<l'.,...."hlnll'y ptI,"'..,1 AQO UW 01\1.. 1 ! EXAMINING PHYSICIAN'S COpy (l x_ -...,.. '" "'-..- -;;..;;-_.' ~ V /-;' ~ -' - ,j.JJ' 1,\l.V .. - fl.fl41>l wc,s - ':J ~f , , j .' .' " ,I. . . ..-.....,..-.--...--..---.- ROBERT E, DELL and GWEN E. DELL. his wife. Plaintiffs IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA v, NO. 96.1705 CIVIL TERM GORDON MYERS, M,D" NAGlB KlIALlFA, M,D" UROLOG Y ASSOCIATES OF CHAMBERSBURG, P,C" WILLIAM HAREN. M,D, and WILLIAM MILROTH, M,D,. Defendants CIVIL ACTION. LAW NOTICE TO PLEAD To: Rohen E, Dell and Gwen E, Dell, Plaintiffs and Robin J, Marzella, Esquire, thcir allorncy You arc hereby notificd to file a writtcn rcsponsc to the cnclosed New Maller within twel1lY (20) days of service upon you or a default judgment may be cntered against you, MILLER and MILLER By: Thoma R, Miller I.D, #49801 P,O, Box 709 lO5 Locust Slrecl Harrisburg, PA 17108-0709 (717) 232-0750 Allorneys for Defendant Gordon Myers, M,D, DATE: January 21. 1997 , ,,'. , , ROBERT E, DELL and GWEN E, DELL, his wif~, Plaintiffs IN nm COURT Or: COMMON PLEAS CUMBERLAND COUNTY. PENNSYLVANIA v, NO, 96-1705 CIVIL TERM GORDON MYERS, M,D.. NAGlB KHALlFA, M,D" UROLOGY ASSOCIATES OF CHAMBERSBURG, P,C. WILLIAM HAREN. M,D, and WILLIAM MILROTH, M,D, Def~ndants CIVIL ACTION. LAW DEFENDANT GORDON MYERS, M,D.'S ANSWER WITH NEW MATTER TO PLAINTIFFS' COMPLAINT l. Adll1ill~d, 2, Admilled with c1arilkation, Dr, Myers maintains a general ofnc~ practice with a sp~ciahy in surgery, 3, Admilled, 4, Admilled, 5, A('milled, 6, No r~spons~ required from Answ~ring Def~ndant, 7, To the extent this paragraph alleges Defendant Gordon Myers, M,D, (h~reinafter Defendant Myers) was an agent, apparent agent, servant or employee of Defendant Urology Associates, sueh allegation is specifically denied, As 10 all OIher d~f~ndallls, no response is required, 8, Admilled, 9, Denied generally, pursuant to Pa, R,C,P, 1029(e), 10, Admined that Defendant Myers performed physical examinations of Plaintiff al Ihe request of his employer, The remaining averments of Paragraph 10 are denied pursuant to lQ29(e), II. Denied generally, pursuant to Pa. R,C,P, 1029(e), 12, Admined, 13, After reasonable investigation, Answering Defendant is uncertain what Plaintiff is alleging by the use of the term "complete physical examination" and "evaluation of Mr, Dell's prostate (sicl", The allegations are therefore denied, By way nf further response, Defendant Myers was examining Plaintiff pursuant to and at the direction of Plaintiff's employer, Roadway Express, Inc., as required hy Fcderalmolor carrier safety regulations, 14, Admitted, 15, Denied; a urinalysis was requested and perfmmed, 16, Admined that Defendant Myers did not document a nodule on the prostate nor note any enlargement or prostate ahnormality, However, Defendant Myers had no reason to believe that there was a prostate nodule, enlargement or abnormality in existence. and theref(,re denies the presence of same, 17, Denied, Defendant Myers cnnducted the examination at the request, expense and direction of Plaintiff's employer, Roadway Express, Inc" as required by Federal motor carrier safety regulations (49 eFR ~39141.WI.49) and the employer's physical examination standards, Plaintiff consented to sail! examin<llion pursuant to medical authorizations granted by Plaintiff to his employer in consil!eration of his employment, and in turn by his employer 2 to Defendant Myers, At the complelion of the examination, Defendant Myers certit1ed Plaintiff as physically qualified to continue his driving dUlles, It is specitkally denied that he advised Plainliff he was "healthy" or thaI he advised Plaintiff of any diagnosis, It is further specifically denied that Defendant Myers directed or "advised" Plaintiff Ihal he need not relurn for two years, The detenninalion of the frequency of the Plaintiff's employment cerlification exams was controlled solely by his employer in accordance with Federal regulations, 18,.23, No response required, These allegations pertain to parties other than Answering Defendant. To the extent they do pertain to Answering Defendant they arc denied generally, pursuanlto Pa, R,C.P. 1029(e), 24, Admilled Wilh darification Plallltiff retul'lled 10 Defendalll Myers at the direction, requirement amI expense of Plaintiff's employer 1'01' a recurrelll employmelll examination, 25, After reasonable investigation, Answering Defendant is uncertain what Plaintiff is alleging by use of the terms "purporled", "complete physical examination", and "evaluation", The allegations arc therefore denied. 26, Admilled, 27, Admilled, as pleaded, However, it is denied that there were any palpable abnormalities present with reference to Mr, Dell's prostate, 28, Admitted, as pleaded, However, it is denied that there was a firm nodule palpable in Mr, Dell's prostate, 3 I', I 29. Denied for the reasons set forth in Paragraph 17. which are incorporated by reference. Further, Defendant Myers does not understand the meaning ascrihed by Plaimiff to the term "clean bill of health", and demands proof of same. [t is denied that Defendam Myers made such a statemem to Plaimiff Rohert Dell. 30.-41. No respon~e is required. The allegations of these paragraphs are directed to parties other than Answering Defendant. To the extent these allegations are directed to Defendam Myers, they arc denied generally. pursuaIllto Pa, R,C. p, 1029(e), 42, Admined with clarification, as set forth in response to Paragraph 24, which is incorporated by reference, 43, Denied for the reasons set forth in Paragraph 25, which arc incorporated by reference. 44, Admined. 45, Admined as pleaded. but it is denied that there were any palpable abnormalities of Mr, Oell's prostate. 46, Admined. except that urologic studies were performed, 47, Denied for the reasons set forth in response to Paragraphs, 17 and 29. which arc incorporated by reference. 48,-69. No response required, These allegations arc directed to parties other than Answering Oefendam. To the extem these allegations pertain to Defendam Myers, they arc denied generally, pursuam to I'a. RC.I', 1029(e). 7(),-75. Denied generally, pursuam to I'a. R,C.I', 1029(e). 4 COUNT II [ [5. Defendant Myers' responses to Paragraphs 1 through [11 are incorporated herein by reference, [16.-\17, Denied generally, pursuant to Pa, R,C.P, 1029(e), WHEREFORE, Defendam Gordon Myers, M.D" requests dismissal of Plaintiffs' claims against him, with prejudice, COUNT III 118, Defendant Myers' responses to Paragraphs 1 through III arc incorporated herein by reference, 119,-120, No response required, The allegations of these paragraphs arc directed to parties other than Answering Defendam, WHEREFORE, Defendam Gordon Myers, M,D,. requests dismissal of Plaintiffs' claims against him, with prejudice. COUNT [V 12 [, Defendant Myers' responses to Paragraphs 1 through [11 arc incorporated herein by reference, 122,-123. No response required. The allegations of these paragraphs are directed to panics other than Answering Defendant. WHEREFORE. Defendam Gordon Myers, M,D., requests dismissal of Plaintiffs' claims against him, with prejudice. 6 COUNT VII 131. Defendant Myers' responses to Paragraphs 1 through \1 [ are incorporated herein by reference. 132,-133. No response required, The allegations of these paragraphs are directed to panies other than Answering Defendam. WHEREFORE, Defendant Gordon Myers, M.D.. requests dismissal of Plaintiffs' claims against him, with prejudice, COUNT VIII 134. Defendant Myers' responses to Paragraphs [ through III and to Coums 1 through VII arc incorporated herein by reference, 135,-137, Denied generally pursuamto Pa, R,C.P, [029(e), WHEREFORE, Defendam Gordon Myers, M,D" requests dismissal of Plaintiffs' claims against him, with prejudice, NEW MATTER 138, At all times relevam to this cause of action, Plaimiff Rohert E, Dell was examined by Defendam Gordon Myers, M,D, at the request and direction of Plaintiff's employer, Roadway Express, 1nc.. to detemline if Plaintiff was physically qualified to operate Roadway's three-axle trucks, as required by 49 CFR ~391.4[-391.49 and Roadway's physical examination standards, 8 139, No physician-patiem relationship ever existed hetween Defendant Gordon Myers, M,D, and Plaintiff Rohert E, Dell. [4Q, Defendant Gordon Myers, M,D, was not employed or compensateil by Plaintiff Rohen Dell, nor did Plaimiff seck or receivc Defendam Myers' medical advice or treatment. 141. Defendant Gordon Myers. M,D,. was at all times relevamto this cause of action, acting pursuant to an employment agreemem with Roadway Express, 1nc, and was not employed by Roadway to treat Plaintiff Robert E, Dell for any condition which may have been discovered during the course of thc physical examinations, 142, At no timc relcvant to this calise or aClion did Defcndant GOJ'dlln Myers, M,D, undertake to advise or trcat I'laintill RlIbcrt E. Dell. 143, Defendalll GlIrdon Myers. M D, lIwcd nll duty to Plaillliff, either to discover any cnlarged nodule on Plaintiff's prostate during the coursc of his three examinations, the existence of which is specifically denicd. or, !!fl!uendo, if same was discovered, to inform Plaimiff thereof. 144, No profcssional relationship or COlllract, eithcr exprcss or implied, existed hetwecn Plaimiff Dcll and Defendant Gordlln Mycrs. M.D.. whercin Defcndant Myers would treat Plaimiff with proper professional skill. or whercin Plailllill wlluld pay for such service, As a result, no hreach of any profcssillnal duty can he allcged against Defendant Gordon Mycrs. M.D. 9 145, Plaintiffs' Complaint fails to slate a cause of action or claim against Defendant Gordon Myers, M,D, upon which relief may be gmnted, 146, Defendant Gordon Myers' examinations of Plaintiff Rohen E, Dell were not - the cause of his alleged injuries, [47, [I' Plaintiff Roben E, Dell sustained any injuries and damages, as alleged in the Complaim, and of which strict proof is demanded, such injuries and damages may have been caused hy persons. emities, health care providers or others unknown to Defendant Myers, and none of whom was under the supervision. direction or comrol 01 Defendant Myers. thus barring Plaimiffs' from recovcring again.;! Dcfendam Mycrs, 148. Defendam Gordon Myers. MI>. Ill:reby raises any and all dekuscs available to him under the applicable provisions of the Penusylvauia IIcalth Care Service Malpractice Act. 149, Plaimiffs' claims against Defendant GonIon Myers. M. D, may be barred by the applicable statute of limitations. and if evidence of same is established during discovery, or at trial, Delendant Myers reserves the right to raisc the statute of limitations as a partial or complete defense to Plaillliffs' claims 150, Any acts or omissions by Dcfcndant Gordon MYl:rs. M.D. which Plaillliff Robert E. Dcll alleges constitute negligencl: on his part, ,md which acts and omissions are denied. were not substamial contributing factors to thl: injuries ,md damages alleged by PlainllH Robert E. 1>1:11. 10 151. Plaintiffs' injuries and losses, if any, were not caused by ihe conduct or negligence of Defendant Gordon Myers, M, D" but rather were caused by medical conditions - and causes beyond the control of Defendalll Myers, -'Therefore, Plaintiffs may not recover against him, 152, Defendant Gordon Myers, M,D,'s examinations of Plaintiff Rohert E, Dell were exercised in accordance wilh the standards of a substamial body of medical authority and opinion, and to the eXlent it is established that lhere is another body of medical authority and opinion to the cOlllrary, Defendant Myers pleads as a complete defense, the "two schools of thought" doctrine, 153, All examinations rendered to Plaintiff Robert E, Dell, by Defendant Myers were appropriate, reasonable and within the standards sel forth by Federal regulation, Plaintiff's employer, and by acceptable professional standards and were notlhe cause of Plaimiff's alleged injuries. 154, The condUCI of Defendant Myers was not the proximate cause of any injuries sustained by Plaintiffs, in that other persons or entities caused or substantially contributed to any such injuries, 155. If during the course of discovery it is established that Plaintiff Dell may have heen negligent. or failed to exercise due care for his own safety and personal well heing, in connection with the discovery, detection, diagn\Jsis and treatment of his alleged prostate cancer. Defendant Myers rcserves the right to raise the defenses of conlributory IlCgligence, comparative negligence and assumption of risk, I[ 5 At all relevallltimes herein, Defendant William Haren, M.D (hereinat\er Defendant Haren) was 1\ physician licensed to practice medicine in the Commonwealth of Pennsylvania and was engaged in the practice of urology in CllIImbersburg, Fulton County, Pennsylvania. 6 AI all relevant times herein, Delendant Urology Associates of Chambersburg, PC (hereinat\er DefendantlJrology Associates) was 1\ corporate medical institution with ol1ices and lacilities in Chambersburg, Franklin County, Pennsylvania 7. At all relevant times herein, Defendants Khalifa, Haren. all physicians, interns, residents, nurses and the medical stall'were the agents. apparent agents servants and/or employees ofOefendantUrology Associates and acting within the scope ofthcir employment when providing prolessionalmedical services tothe l'laintill' 8. The Plaintitl Robert E Dell, a gentleman in his early 50s was relatively healthy and active lor his age. <) Ilowever, Mr Dell had a fiullily history of prostate disease/C<lI1cer to Periodically Mr Dell was examined. ...valuated, and treated by Detcndants Milroth and Myers II Defendants Milroth and Myers knew or should have known of Mr Dell's family history and its signiticance with regards to Mr Dell's risk of developing prostate cancer 12 On or about 7/26/!l<), Mr Dell was exanllned by Defcndant Myers 11 At the time. Dclcndant Myers purported to perform a complete physical examination including a digital rcctal examination (DRE) with evaluation of Mr Dell's prostrate 14 Delendant Myers recorded that the results of the DRE and prostate examination were "Okay" t 5 No laboratory studies or other diagnostic studies. including but not limited to a PSA, were recommended, ordered or performed by Defendant Myers. 2 16 Defendant Mycrs did not documelllthe presence Ill' a hard, lirm nodule on Mr Dell's prostate Nor did he nole any enlargement or olher palpable abnormalities 17. Defendant Myers advised Mr Dell that he was hcalthy and need not return l(lr repeat physical examination lor two-year period 18 In the interval time period. Mr Dell was regularly evaluated by his family physician, Defendant Milroth. 19 Mr Dell was examined by Defendant Milroth on or about 12/7/89, 1/18/90, 1/26/90. 3/2/90, 12/20/90 and 12/31/90 20. Never during any of those examinations did Defendant Milroth perl()rm a DRE or evaluate Mr Dell's prostale gland in any fashion 21. Defendant Milroth did not question Mr. Dell about any urinary symptomatology including but not limited to urethral ohstructilln. dysuria. slow or dribbling urine stream, urinary retention. hematuria. pain. urethral discharge. etcetera 22 During that time period Detendant Milroth did not recllmmend. order or perl(llnl any diagnostic studies to evaluate lllr the presence of prostate abnorrnahlies 23 Although Mr Dell was in his early 50's with a liunily hishlry of prostate disease, at no time during the af(lrementioned examinations did Delendalll Milroth recommend, order or perform prostate specilic antigen studies (I'SA) to evaluate Mr Dell t(lr prostate abnormalities or cancer 24 On or about July 10th. 1991. Mr Dell returned to Defendant Myers for a physical examination 25. Again, Defendant Myers purported to have performed a complete physical examination on Mr Dell including a I>RE and evaluation of his prostate gland. 26. As his reported findings. Defendant Myers documented the rectal and prostate examination as "Okay" 27 Defendant Myers did 110t document any palpable abnormalities or enlargement of Mr Dell's prostate 3 . 28. Defendant Myers did not document a linn nodule palpable on Mr. Dell's prostate 21). Again. Defendant Myers gave Mr Dell a clean bill of health. 30. On or about August 18th, I <)1) I, Mr Dell returned to Defendant Milroth for a physical examination 31. At this time, Mr. Dell had been treating with Defendant Milroth for at least nine years 32. Still, Defendant Milroth did not pcrform a DRE for cvaluation ofMr Dell's prostate gland. H At the time of this examination. Mr Dcll was beginning to gradually lose weight 34 Mr Dell returned to Defendant Milroth on or about August 26, 1991 and Seplcmber S, 199 I lS Atthc time Mr Dell was complaining of hack pain and Defendant Milroth prescribed Naprosyn and F1exeril 36 However, Defendant Milrnth still did not pcrform a thorough physical examination induding a DRE or an examination of his prostate gland 37. Nor did Defcndant Milroth question Mr Dell about urologic symptoms he might bc experiencing 38 Nor did Defendant Milroth rccommend, ordcr or perform other diagnostic studies including but not limited to a l'SA or urinalysis liJr evaluation of prostate disease or prostatc cancer 39 On or about ')/8/92, Mr Dcll returncd to Defendant Milroth for a rcpcat physical examination 40. As on all prcvious examinations, Defcndant Milroth did not perform a DRE or any other evaluation of Mr Dcll's prostatc gland 4 41. Nor Defendant Milroth recommend, order or pertorm additional diagnostic studies including but not limited to a PSA to further evaluate Mr. Dell for prostate disease or prostate cancer. 42. On or about June}Oth, 199.l, Mr Dell returned to Defendant Myers tor a.. repeat physical examination 43. As on all previous examinations. Defendant Myers purponed to perform a complete physical examination including a DRE and a prostate examination 44 Again, Defendam Myers noted the rectal and prostate examination to be "Okay" 45 Defendant Myers did not document the presence of a linn nodule or any palpable abnormalities including enlargement of Mr. Dell's prostate 46 Nor did Defendant Myers recomnll'nd. order or perlllrln any additional ,liagnostic studies including but not limited to a PSA or urologic studies to further evaluate Mr Dell for prostate disease or prostate cancer 47 As on all previous occasions. Dcfcndant Myers discharged Mr Dell y,ith a c1can hill of health 48. On or about August 19th. 199.l. Mr Dell returned to Defcndant Milroth with complaints of drainage. coughing and sneezing 49 At the time, Defendant Milrolh prcscribed medication fllr Mr Dell's symptoms 50 However, no physical cxamination was performed 51 No DRE or other physical examination of Mr Dell's prostate was performed hy Oefendanl Milroth 52 No diagnostic studies were recommcnlled. ordered or performed by Defendant Milrolh to evaluate Mr Delllllr prostatc disease or prostate cancer. 5 53. On or about 10/5/93 and 10/11/93, Mr. Dell rcturned to Delendant Milroth with the same complainls Atthc time he was also complaining of being tircd and Icthargic and was experiencing cOlltinued weight loss. 54. Defendant Milroth P!escribed medications lor the symptoms Mr Dell was experiencing. 55. However, Defendant Milroth did not perform a physical examination including a DRE or other prostate examinations 56. Defendant Milrolh did not question Mr Dell about any urinary symptomatology he was experiencing 57 Although hc was his lillllily doctor tilt morc than Icn (10) years, Detendant Milroth still did nol recommend, order or perfilrlll any additional diagnostic studies including a I'SA to funher evaluate Mr Delllllr prostate discasc or prostate cancer 58 Atthc timc. Mr Dell was fceling under the weather and gradually losing weight However, no diagnostic studies were recommended. ordcrcd or pertilrmcd by Defendant Milroth 59. On or about April 28. 1994, Mr Dcll again rcturned to his tiullily physician. Defendant Milroth for a physical cxamination 60. At the time he was complaining of chills, sweating, stomach pain, vomiting, diarrhea, body achcs, continucd weight loss and lilligue 61 During this otlice visit, again Dcfendanl Milroth did not perform a complete physical examination including a DRE or other physical evaluation of his prostate 62 As on all previous officc visits. Defendant Milroth did not evaluate Mr. Dcll for the prescnce or absence of palpable abnormalitics on his prostate 63 Defendant Milroth prescribed medication for Mr Dell's symptoms and for the. tirsttime in a twelve-year period ordered laboratory studies whieh included only a complete blood count and a liver profilc 6 64 However, he did not recommend, order or perlimn laboratory studies including a PSA lor evaluation of Mr. Delllilr prostate disease or prostate cancer. 65. Although he linished the medication as prescribed, Mr. Dell's symptoms continued. 66 On or about 5/9/94. Mr Dell returned 10 his Ismily physician, Defendant Milrolh with the same complaints. 67. Defendant Milrolh performed a urinalysis which was abnormal 68. Thereafter, for the lirsttime in all the years thaI Defendant Milroth treated Mr. Dell as a patient he ordercd SMA 12, a coe with scdimentation rate, a CEA and a PSA 69. Thc I'SA results wcre reported back as abnormal at 10.8 70. At no time prior to performance of the PSA study in May of 1994 did Delendanls Milroth or Myers qucstion Mr Dell about his family history of prostate disease 71 Defendants Milroth and Myers knew or should have known that a positive lSlllily history for prostate disease increased Mr Dell's risk of ultimately developing prostate disease and/or cancer 72. After undcrgoingtwo urologic evaloations, Mr Dcll was advised that he had an enlarged prostate with a palpablc lirm nodule on the right side 73. If Detendant Milroth and/or Myers had been perlimning DRE's regularly and properly, these abnormalities would havc been diagnoscd carlicr 74. Because Delendant Milroth and Myers did not perform DRE's regularly or properly the diagnosis was delayed allowing the cancer to grow and spread 75 A biopsy pertilrmed in Septembcr of 1994 revealcd adenocarcinoma ofthc prostate. 76. Mr. Dell sought treatment for his prostate cancer from Defendants Khalifa. lIaren and Urology Associatcs 7 77. Defendants Khalifa, lIaren and thc stall' of Urology Associates rc~ommended that Mr, Dell undergo a radical rctropubic proslatectomy and pelvic lymph node frozen section biopsy. 78 .~efendants Khalifa, lIaren and the agents, apparent agen!s, servants and/or employees of Urology Associatcs did not adequalely cxplain the potential risks. consequences and alternatives to the radical retropubic prostatectomy with pelvic lymph node frozcn section for thc treatment of prostatc cancer 79. Based on the information provided to him from Defendants Khalifa. lIaren and lhe agenls. apparent agents, servants and/or cmployees of Urology Associates Mr Dell underwenlthe radical retropubic prostatectomy and pelvic lymph node frozen section at Chambersburg 1I0spital on or about IIIJOI<J4 80. Although Mr Dell was not an appropriatc candidaLe. the aloremcntioned surgcry was performed by Delendants Khalifa and Haren 81 The surgcry performed by Detendants Khalifa and Haren on or about 11/J0/94 was perl(lrmcd negligently and improperly in that it rcsulted in impotence and urinary incontinence 82 During the aforementioned procedure. Defendants Khalil'a and lIaren negligently damaged lhe nerves which are located ncar thc prostate gland which effect an individual's continence and potencc 83. At the timc of discharge. Mr Dell was using a Foley catheter and was prescribed Dilripan lor the urinary leakage 84. Subsequent to the original surgery, Mr Dell has undergonc a number of surgeries to try to corrcctthe incontincnce but all have been unsucccssful 85. In addition. Mr Dell has taken various medications and employed various mechanical dcviccs in an allcmptto prevent urinary Icakage and embarrassment Ilowever, these allemplS have also been onsuccessll.1 K 86. Moreover, Mr Dell has been unable to engage in sexual intercourse with his wife since the original surgery in November of 1994 due to his impotence 87. Defendants Khalifa and "laren never explained to Mr Dell the alternative treatments ava!lable to him lilt prostate cancer 88. Delendants Khalifa and Haren minimized the risks associated with the aforementioned procedure when explaining it to Mr Dell 89. Defendants Khalifa and Haren never obtained Mr Dell's informed consent to the radical retropubic prostatetecomy with pelvic lymph node Ihnen section biopsy 90. As a direct and proximate result of the negligence, gross negligence and reckless inditlerence of Defendants Milroth and Myers. the Plaintill~ Robert Dell. now sutlers from advance pro~tate cancer and ultimately underwent a radical retropubic prostatetectomy with pelvic lymph node frozen section biopsy which ultimately re~dered him impotent and incontinent and a claim was made therelore 91 As a direct and proximate result of the negligence, gross negligence and reckless inditlerence of Delendants Milroth and Myers. the Plaintitl's cancer went undetected and was allowed to spread incre<lsing his risk of metastases and decreasing his overall chances of survival and a claim is madc therclilre 92 As a direct and proximate result of the negligence. gross negligence and reckless inditlerence of Delendants Milroth and Myers, the Plaintill~ Roben Dell. was forced to incur liability fi)r medical treatment, medicines, hospitalizations and similar miscellaneous expenses in an etl'on to restore himself to health and because of the nature of said injuries, he has been advised and thercliue avers that he will be forced to incur similar expenses in the lillure and a claim is made theretllre 93 As a direl:t and proximate result of the negligence. gross negligence and reckless indillcrence of Delcndants Milroth and Myers. the Plaintitl~ Robert Dell. was lilrced to undergo the retropubic prost<ltectomy with pelvic lymph node frozen section biopsy rendering him impotent and incontinent and a claim is made therefore (i 94 As a direct and proximate result of the negligence. gross negligence and reckless indifference of Defendants Milroth and Myers, the I'laintill: Robert Dell, has suslained a loss of past and linure earnings, a permanenl impairment of earning power, a permanent impairment of earning capacity, and he may ultimately sustain a compl~te cessation of earnings and a claim is made lheretore 95. As a direct and proximate result of the negligence, gross negligence and reckless indilference of Defendant Milroth and Myers, the I'lainliO: Roben Dell, will be forever impotent and incontinent and ~ claim is made theretore 96. As a direct and proximate result of the negligence, gross negligence, and reckless indifference of Defendants Milroth and Myers, the PlaintiO: Roben Dell, has been and in the lilture will be subjecl to humiliation. embarrass me III and disfigurement and a claim is made therefore. 97. As a direct and proximate result of the negligence. gross negligence and reckless inditlcrence of Defendants Milroth and Myers, the l'laintitl: Robert Oell, has undergone and will undergo in thc future grcatmclllal and physical pain and sutlcring, great inconveniencc in carrying out his daily activities, loss oflite's pleasures and enjoyment and has sustained an insult to his personal and sexual sell~esteem and a claim is made therefore 98. As a direct and proximate result of the negligence, gross negligence and reckless inditlerence of Defendants Milroth and Myers, the I'lailllill: Robert Dell, has a significantly increased risk of reoccurrence and/or spread of his cancer and is al an increased risk of death which would result in greatly increased expenditures for treatmenl and a claim is made therefore lJlJ. As a dircct and proximate result of the negligence, gross negligence and recklt'ss indiOcrence of Defendants Milroth and Myers, the l'laintill: Robert Dell, has a significantly increased risk of spread and/or recurrence of his cancer and/or death and morbidity and a complete diminution of his earning capacity and a claim is made therefore 10 100. As a direct and proximate result of the negligence. gross negligencc and reckless indillel'encc of Delendants Milroth and Myers. the Plaintill: Robert Dell's cancer went undetected IlHeing Plaintills to incur medical expenses and treatmcnt which would not otherwise have becn neccssary and a claim i~ made theret(lrc 101. As of tbis date, Mr. Dell remains at an extremely high risk of rcoccurrence of his cancer and a significant reduction of his lifc span in comparison to what it would have been had the prostate cancer been diagnosed earlicr 102. The l'laintills have been advised and thcrefore avcr that the at(lrcmentioncd injuries are permancnt in nature and a claim is made therelllre 103 The performance of the retropubic prostatcctomy witb pelvic lymph nodc frozcn section biopsy on Mr Dcll by Dcfendants Khalifa. Haren and thc agents, apparcnt agents. servants and/or employces of Urology Associatcs was donc without his inlllrmcd consent and with rcckless disrcgarding complete indillercncc 10 his weltiuc and a claim is madc thercfore 104. As a direct and proximatc result of the negligcncc, gross ncgligcnce and rcckless indillerencc of Dclendants Khalifa. Harcn, the agcnts, apparcnt agcnts. scrvants and/or employees of Urology Associates, thc Plaintill Robert Dell, underwent an unnecessary retropubic prostatectomy with lymph node frozcn scction biopsv and IS now impotent and incontincnt and a claim is made thcrellJre 105. As a dircct and proximate result of the negligence. gross ncgligcncc and rcckless indillercncc of Dc!endants Khalifa, Haren. thc agcnts. apparcnt agcnts. servants and/or employees of Urology Associatcs, the Plaintill: Robert Dcll, has been rendered impotent and incontincnt and will rcmain so Il)r Ihe remaindcr of his life and a claim is Illadc therefore 106 As a direct and prnximate resultnf thc negligence. gross negligencc and recklcss indiffcrcnce of Dclendants Khalifa. Harcn, thc agcnts, apparent agcnts, servants and/or employecs of Urology Associates. the Plaintill Robert Dcll. was forced to incur II , .. ' liability for medicaltrcatmcllt, medicines, hospitalizations and similar miscellalleous expenses in an el1im 10 restore himself to health and because of the nature of said injuries, he has been advised and Iherefore avers that he will be forced to incur similar expenses in the finure and a claim is madc therefllre 107, As a direct and proximate result of the negligence. gross negligence and reckless indifference of Defendants Khalifa, Haren. and/or the agents, apparent agents. servants and/or employccs of Urology Associates, the Plaintiff, Roben Dell. has sustained a loss of earnings. a loss of past and future earnings. a permanent impaifmenl of earning power and earning capacity and a claim is made therefore 108. As a dircct and proximate rcsult ofthc negligence. gross Ilegligence and/or feckless indillerence of Dcfendants Khalifa. Haren and lhe agents. apparcnt agents. servants and/or employees of Urology Associates. the Plainlitl: Robert Dell. has undefgone and in thc future willundcrgo great mental and physical pain and sullcring. great inconvenience in carrying out his daily activities. loss of lite's prcssures and enjoyment and sustained insult III his pcrsonal and sexual scJt~esteem and a claim is made therefore 109 As a direct and proximate result of the negligence, gross negligence and reckless of Defendants Khalifa and Haren. and thc agents. apparent agents. servanls and/or employees of Urology Associates. the Plaintitl: Roben Dell. has been and in the future will bc subjeclto humiliation. cmbarrassment and disfigurement and a claim is made thcrelore 110. Defendants Myers. Khalifa. Haren. Milroth and Urology Associates arc jointly and severally liable to thc Plaintill'tllr the injuries and damages as setlonh herein III As a dircct and proximate rcsult of the negligence. gross negligence and feckless indillerence of Detendants Myers. Khalifa. Haren. Milroth and Urology Associates, Robert Dell's wife. Gwen E Dell. has been and in the futufe will be forced to incur medical expenses relating to her husband's treatment and has also suffered a loss of 12 intimacy, consonium, society, services, advice and companionship and will continue to lose the aforementioned in the future and a claim is made therefore. COllNT I Roben E. I2eIl ;:nd Gwe.llJLPM~~lli.ilntMjlrQ1b..MD.. 112. Paragraphs I through III of this Complaint are incorporated herein by reference as if set forth at length 113 Defendant William Milroth, MD is liablc to the PlaintitTfor the injuries and damages as alleged herein which were directly and proximately caused by his negligence, gross negligence and rccklcss indilTercncc with rcspcctto Robert Dell by (a) failing to properly examine Mr Dell, (b) failing to properly monitor Mr Dell's condition, (c) failing to properly diagnose Mr Dcll's condition. (d) lailing to properly treat Mr Dell's condition, (e) failing to perform digital rectal examination to cvaluate for prostate abnormalities, (I) improperly pCrlf.lrming digital rectal examinations; (g) failing to palpatc the physical abnormalities that were prcsent on Mr. Dell's prostate and ordering the diagnostic tests necessary to confirm or rule out cancer; (h) lailing to recommend, ordcr or pcrlf.lrIn PSA studies at any timc prior to May of 1994, (i) tailing to recommend, ordcr or pcrform diagnostic studies to further evaluate Mr Dell for prostate discase or prostate cancer, (j) delaying the propcr and timely diagnosis Mr. Dell's prostate cancer. which led to the spread of this disease and his diminished chance of survival. 13 (k) failing to recommend, order or perform regular digilal rectal examinations. (I) failing to recommend. order or perform regular hemocult studies; (m) failing to recommilnd, order or perform regular urinary studies to funher evaluate Mr. Dell; (11) failing to recommend or refer Mr Dell to a urologist or another physician for regular proslate examinations/evaluations. (0) failing to recognize Mr Dell's weight loss and fatigue as a potential sign of cancer. (p) failing to palpate Mr Dell's enlarged prostate and the linn nodule present thereon at any time; (q) failing to question Mr. Dell about family history of prostate disease and/or cancer; (r) failing to recognize Mr Dell's family history as a risk lactor lor his development of prostate cancer. (s) failing to recognize Mr Dell's signs or symploms as consistent with prostate disease or prostate cancer and recommending. ordering or perllmning the diagnostic testing necessary to conlirm or rule out same. (t) failing to recognize and asses Mr Dell's symptoms and ordering a diagnostic test necessary to rule out prostate cancer as a source of his problems; (u) failing to refer Mr Dell to a urologist at any time before May, 1994; (v) failing to refer Mr [)elll(lr surgical and/or oncological evaluation; and (w) treating Mr. Dell in an otherwise negligent manner under the circumstances. 14 114. As a direct and proximate result of Defendal1l Milroth's negligence, gross negligence and reckless indifference, the Plaintiffs have sustained injuries and damages as set forth in paragraphs 90 through 102 and 110 through 111 lIbove which lire incorporated herein by reference as if set forth at length WHEREFORE, Robert Dell and Gwen Dell. his wile. demand judgmel1l against Defendant Milroth in an amount in excess ofTWENTY-FIVE THOUSAND DOLLARS (S25.000.00) exclusive of interest and costs and in excess of any jurisdictional amount requiring compulsory arbitration COUNT II ~rLl,. D~!L.!!!!Hi~~nJi De!LYLGorJJlIILMym. M. D. 115 Paragraphs Ilhrough III of this Complail1l arc incorporated hercin by reference as if set fonh at length 116. Dcfcndant Gordon Mycrs, M.IJ is liablc to thc Plaintitf t(lr the injuries and damages as alleged hercin which wcre directly and proximately ciluscd by his ncgligence. gross negligence and rcckless inditlerence with respect to Robert Dcll by (a) failing to properly examine Mr Dell; (b) tailing to properly monitor Mr. Dcll's condition. (c) tailing to properly diagnose Mr. Dell's condition. (d) failing to properly treat Mr. Dell's condition, (e) failing to perform digital rectal examination to evaluate for prostate abnormalities. (I) improperly perfi>nning digital rectal examinations. (g) failing to palpate the physical abnormalities that wcre present on Mr. Dell's prostate and ordering the diagnostic tests necessary to confirm or rule /Jut cancer; 15 -.,. (h) failing to recommend, order or pertorm PSA studies at any time prior to May of 1994; 0) failing to recommend. order or perti.lrm diagnostic studies to funher evaluate ~r. Dell tor prostale disease or prostate cancer; (j) delaying the proper and timely diagnosis Mr Dell's prostate cancer, which led to the spread of this disease and his diminished chance of survival. (k) failing to recommend, order or perform regular digital rectal examinations; (I) failing to recommend, order or perti.lrm regular hemocult studies; (m) failing to recommend. ordcr or perli.mll regular urinary studies to funher evaluate Mr Dell. (n) failing to recommend or refer Mr Dell to a urologist or another physician for regular prostate examinations/evaluations. (0) failing to rccognizc Mr Dell's wcight loss and fatiguc as a potential sign of cancer; (p) failing to palpate Mr. Dell's enlarged prostate and the firm nodule present thereon at any time. (q) failing to question Mr Dell about family history of prostate disease and/or cancer; (r) failing to recognize Mr Dell's llllllily history as a risk fa\~tor for his development of prostate cancer; (s) failing to recognize Mr Dcll's signs or symptoms as consistent with prostate disease or prostate cancer and rccommcnding. ordering or performing the diagnostic testing necessary to conlirm or rule out samc. (I) failing to recognize and asscs Mr Dell's symptoms and ordering a diagnostic test necessary to rule out prostatc cancer as a source of his problems. III (u) 1994; failing to refer Mr Dell to a urologist at any time before May, (v) failing to refer Mr Dell for surgical and/or oncological evaluation; and (w) treating Mr Dell in an otherwise negligent manner under the circumstances. 117. As a direct and proximate result of Defendant Myers's negligence, gross negligence and reckless indifference, the Plaintiffs have sustained injuries and damages as set fllnh in paragraphs 90 through 102 and 110 through III above which arc incorporated herein by reference as if set forth at length WHEREFORE, Robert Dell and Gwen Dell. his wife, demand judgment against Defendant Myers in an amount in excess of TWENTY. FIVE THOUSAND DOLLARS 1$2'\.000(0) exclusive of inter cst and costs and in excess of any jurisdictional amount requiring compulsory arbitration COlINT III &l.!1.w E,.D~ll!tndU~~nJ.,.()~f,liI.YLj'IJ-'U\i1>J.~haJjli!._1YL1J. 118 Paragraphs I through III of this Complaint are incorporated herein by reference as if set fonh at length 119 Defendant Nagib Khalitil, M D is liable to the l'laintifl'for the injuries and damages as alleged herein which were directly and proximately caused by his negligence, gross negligence and reckless inditl'crence with respect to Robert Dell by (a) performing the retropubic prostatcctomy and pclvic lymph node frozcn section on this patient, (b) negligently performing lhe radical retropubic prostatectomy and pelvic lymph node frozen section resulting in impotence and incontinence; 17 (c) negligently performing the retropubic prostetectomy and pelvic lymph node frozen section resulting in damage to the nerves in the area of the prostate; (d) improperly performing the aforem~ntioned surgery in such a negligent fashion as to result in impotence and incontinence; (e) failing to employ nerve sparing techniques to diminish the patient's chances of experiencing incontinence and impotence; and (f) performing this surgery in an otherwise negligent manner under the circumstances. 120 As a dircct and proximate rcsult of Defendant Khalifil's ncgligence. gloss negligcncc and reckless indillerence the PlaintitlS have sustained injuries and damages as forth in paragraphs 102 through III above which are incorporated herein by reference as if set f0l1h at length WIlEREFORE. Plaintill's Robert Dcll and Gwen Dcll. his wile demand judgment against Defendant Nagib Khalitil. M D in an amount in excess of TWENTY -FIVE TIIOUSAND DOLLARS ($25.00000) exclusive of interests and costs and in excess of any jurisdictional amount requiring compulsory arbitration COUNT IV Roben [UklLalld .Owen fi ..QejtYLWiJJii!!!Ll.!!!I~rL~t D. 121. Paragraphs I through III of this Complaint arc incorporated herein by reference as if set forth at length 122 Defendant William Ilaren. M [) is liable to the PlaintilHor the injuries and. damages as alleged herein which were directly and proximately caused by his negligence. gross negligence and reckless indillerence with respect to Robert Dell by 18 (a) performing the retropubic prostatectomy and pelvic lymph node frozen section on lhis paticnl; (b) negligcntly pcrllJrlningthe radical retropubic proslatectomy and pelvic lymph node frozen seclion resulting in impotencc &nd incontinence; (c) negligently perllJrlningthc retropubic prostetectomy and pelvic lymph node frozen section rcsulting in damage to the ncrves inthc area of the prostate, (d) improperly perlbrmingthe all)rcmentioned surgery in such a negligent fashion as to result in impotence and incOlltincncc, (c) liJilingto cmploy nerve sparing tcchniqucs to diminish the paticnt's chances of cxpericncing incontinence and impotence, and (I) per!IJrlning this surgery in an othcrwisc negligent manner undcr the circumstances 123 As a dircct and proximate rcsult of I>clcndant Uarcn's negligencc, gross negligence and recklcss indillcrencc the Plaintills have sustained injuries and damages as fonh in paragraphs 102 thn,ugh III ahove which are incorporatcd herein by refcrence as if set forth at length WHEREFORE. Plaintills Robert Dell and Gwen Dell, his wife demand judgment against Defcndant William Haren, M () in an arnoulll in exccss of TWENTY-FIVE THOUSAND DOLLARS ($25.0{)OOO) exclusive of interests and costs and in cxcess of any jurisdictional amount requiring compulsory arhitration COliNT V Roben 1~..De!t.lllt(L0~~ILlU2~lJys lJmJl)llY Associal~!LOf C1H!mb~~burg.P~ 124. Paragraphs I through III and Counts III, [V, VI, VII and VIII of this Complaint arc incorporatcd herein by referencc as if sct Ibnh allenglh I') 125 At all rclevanttimes herein. Defendants Khalilit. Ilaren. all physicians, interns, residents. nurses and medical slall' were acting as thc agents, apparent agents. servants and/or employees of Detendant lJrology Associates of Chambersburg. I'. C when providing medical scrvices tothe l'laintill' 126 Detendant Urology Associates or Chambersburg, P C acting through its agents. apparent agents, servants and/or employees is liable to the PlaintiO's for the damages as alleged herein which were directly and proximately causcd by its ncgligence, gross negligence and reckless indifferencc through the acts set limh 111 paragraphs 119(a) lhrough 119(1); 122(a) through 122(1). 129(a) through 129(1) and 1.l2(a) through 132(m) of this COlllplailll which are incorporatcd hercin hy rclerence 127 As a direct and proximate result of thc Dcfendants' negligence. gross negligcnce and reckless inditlerence the Plaintitls have sustained injuries and damages as torth in paragraphs 102 through III above which are incorporated herein by rclerence as if set forth at length WIlEREFORE, PlaintiOs Robert Dell and Gwen Dell. his Wile dcmand judgment against DcfendantUrology Associates of Chambers burg. PC in an amount in exccss of TWENTY -FIVE THOUSAND DOLLARS ($25,000 (0) exclusive or interests and costs and in excess of any jurisdictional amount requiring compulsory arbitration. C<HINT VI RQb.~llLD~Jl and G_w~ol'. [leU YS_NlI~il>J<"ha!itit. M D, I.nlaImed G<lnscJ)l 128 Paragraphs I through III arc incorporated hercin by reference as if set tarth at length 129 Dcfendant Khalifa is liable 10 the Plaintitl's for battery in the form on his intentionally innicting harmful and ollensive bodily conduct on Robert Dell by 20 (a) failing 10 oblain MI' Dell's informed conscntlO the proposcd surgery; (b) tailing 10 inform Mr. Delllitlly and propcrly as to Ihc nalure, extent and radical nature of the proposet!. surgery; (c) failing to inform Mr Dclllls to the material risks, consequcnces and altcrnatives to the proposed surgery; (d) failing 10 inform Mr. Dcll as to the alternativc therapics, both surgical and non-surgical, available 10 him tbr Irealmentof his proslate cancer, (e) failing to intbrm Mr Dell ofthc potcl1lial conscquenccs oflhc proposed surgery including the possibility of impotcnce .\Ild incontinence. (I) failing 10 disclose to Mr Ddlthe risks thai were associated with the proposed surgery, (g) failing to disclosc to Mr Dell all inl,mnationmaterial to the decision to undergo the proposed surgcry. (h) failing to disclose to Mr. Dell thc risks, consequenccs and altcrnativcs to the reconuncnded treatment material to the decision whelhcr or not to undergo this surgery, (i) minimizing Ihc malcrial risks and consequences associatcd with the proposed surgery. (j) providing incorre~t and inaccuratc intbrmation to Mr Dell regarding the proposed proccdure which information was crucial to Mr Dell's decision to undcrgo the aforementioned surgery, (k) purposely and knowingly performing the surgery on Mr Dell wilhout his IIllbl'lIled consent and in the absence of a medical cmergency, (I) realizing that the proposed surgcry perl(JI'Illed on Mr Dcll was without his intimned consent and in the absencc of a medical emcrgcncy would result in ollcnsivc contact with Mr. Dell, and 21 (rn) causing permanent and substantial injury to Mr Deli as a result of the non-consentual surgery. 130. As a result of the undisclosed and misinformation, Mr. Dell sustained injuries and damages as set forth in paragraphs 102 througp III above which are incorporated herein by reference as if set fonh at length WHEREFORE, Plaintilfs Robert Dell and Gwen Dell demand judgment against Defendant Nagib Khalifa, M.D. in an amount in excess of TWENTY-FIVE THOUSAND DOLLARS ($25,00000) exclusive of interest and costs and in excess of any jurisdictional amount requiring compulsory arbitration COlJNT VII &1.l2m [Ul~Jl!l_ml G\V.c!1 r" Pel) ~,.w.i!)iamJla[c!1~_MJL Inl~)rll1ed COJ1$CJ1! 131. Paragraphs I through III arc incorporatcd hcrcin by referencc as if set fonh at length 132 Defendant Harcn is Iiablc to thc Plaintiffs Illr battery in the lorm on his intentionally inllicting harmful and otlcnsivc bodily conduct on Robcn Dell by (a) failing to obtain Mr Dcll's informed conscntto thc proposed surgery; (b) failing to inllmn Mr DcllliJlly and properly as tothc naturc. extent and radical nature of thc proposcd surgcry; (c) failing to inlllrll1 Mr Dcll as to the matcrial risks, consequences and alternatives to thc proposed surgcry. (d) failing to inform Mr. Dcll as to the alternative therapies, both surgical and non-surgical, available to him lor treatment of his prostate cancer, 22 . . (e) failing to inform Mr Dell of the potelll;al consequences of the proposed surgery including the possibility of impotence and incontinence; (I) failing to disclose to Mr Dell the risks that were associated with the prgp()sed surgery; (g) failing to disclose to Mr Dell all information material to the decision to undergo the proposed surgery, (h) failing to disclose to Mr Dell the risks, consequences and alternatives to the recommended treatment material to the decision whether or not to undergo this surgery; (I) minimizing the material risks and consequences associated with the proposed surgery. (j) providing incorrect and inaccurate information to Mr Dell regarding the proposed procedure which inl(lrInation was crucial to Mr Dell's decision to undergo the aforementioned surgery. (k) purposely and knowingly pert(mning the surgery on Mr Dell without his int(H1ned consent and ill the ahsence of a medical emergency. (I) realizing that the proposed surgery performed on Mr Dell was without his informed consent and in the ahsence of a medical emergency would result in olTensive contact with Mr Dell, and (m) causing permanent and suhstantial injury to Mr Dell as a result of the non-consentual surgery 133. As a result of the undisclosed and misinformation, Mr Dell sustained injuries and damages as set l()rth in paragraphs 102 through III above which are Incorporated herein by reference as if set l()rth at length WIIEREFORE. Plaintil1's Rohert Dell and Gwell Dell demand judgment against Defendanl Williamllaren Mil in an amount in excess of TWENTY-FIVE TIIOUSAND 2.\ . It . VERIFICATION I, Robert Dell, hereby verilY that the facts set forth in the forgoing Complaint information and belief are true and correct 10 the best of my knowledge, 1 understand that any false statement therein ~re made subject to the penalties of 18 Pa. C,S. Sec, 4904, relating to unsworn falsification to authorities. WITNESS VLdu~~~~' /!~<f["Shl/ Roben Dell ( information and knowledge to form a belief regarding the matters stated and therefore the same are denied and strict proof is demanded at the time of trial. 2. - 3. These allegations pertain to Co-Defendants and require no response from Answering Defendants. 4, Admitted. S. Admitted in part, denied in part. It is denied that Dr. Haren was practicing in Fulton County during the time period that he cared for Mr. Dell. To the contrary, he was practicing in Franklin County. 6. Denied as stated. To the contrary, Urology Associates of Chambersburg, p,c. is a professional corporation organized and existing under the laws of this Commonwealth. 7. Admitted in part and denied in part. It is admitted that Drs, Haren and Khalifa are and were the agents of Urology Associdtes of Chambersburg, p,c. All remaining allegations are denied, as Plaintiffs have not in their Complaint identified any "physicians, interns, residents, nurses or medical staff" by name or description (other than Drs. Haren and Khalifa), or otherwise alleged any specific acts on the part of such persons. By way of further response, after rea.sonable investigation Answering Defendants are without sufficient information and knowledge to form a belief regarding the matters stated and therefore the same are denied and strict proof is demanded at the time of trial. 8. Admitted in part and denied in part. It is admined that Plaintiff Robert E. Dell is a man in his early 50's. The remainder is denied. To the contrary, after 2 , , rcasonable invcstigatlon Answcring Defendants are without sufficient information and knowledge to form a belief regarding the matters stated and therefore the same are denied and strict proof is demanded at th~ time of trial. 9, Denied. To lhe contrary, the patient/s medical records indicate that his family hl~tory was negative for a family history of Prostate Cancer, 10 - 74. Denied. These allegations pertain to care and treatment Mr. Dell received while under the treatment of Co-Defendants, and thus require no response from Answering Defendants. To the extent that an additional response may be requlred, after reasonable investigation, Answering Defendants are without sufficient information and knowledge to form a belief regarding the mailers stated and therefore the same are denied and strict proof is demanded at the time of trial. 75. Admitted. 76. Admitted in part and denied in part. It is admitted that subsequent to his diagnosis with Prostate Cancer, Plaintiff sought treatment. for the same flom Dr. Khalifa. It is denied that Plaintiff sought treatment for his prostate cancer from Dr. Haren. It is denied that Plaintiff sought treatment from Urology Associates in that Urology Associates is a corporate entity which does not practice medicine, or "treat patients." 77. Admitted in p.lrt and denied in pan. It is admilled that Dr. Khillifa offered radical prostatectomy as one of the lreatment oplions for Mr. Dell's prostate cancer. By WdY of further respons(', in doing so, Dr. Khalifa acted reasonably, properly and wilhin the applicable standard of care. It is denied Ihal Dr. Haren or of Urology Associates 3 made any treatment recommendations to Plaintiff prior to his radical prostatlJctomy. To the contrary, they did not. 78, Denied. To the contrary, Dr. Khalifa diq explain the risks, consequences and alternatives to Mr. Dell, including but not limited to the risks of incontinence and Impotence. By way of further response, Dr. Khallfa obtained the patient's Informed consent; Dr. Haren and Urology Associates were not Involved in this process. 79. Admllled in part and denied In parI. It is admilled that Mr. Dell underwent a radical retropubic prostatectomy and pelvic lymph node frozen section at Chambersburg Hospital on 11/30/94. It is denied that Mr. Dell underwent the procedure "based upon information provided to hifll from Defendants Khalifa, Haren and the agents, apparent agents, servants or employees of Urology Associates." To the ('ontrary, . it was Dr. Khalifa who obtained the patient's informed consent for the procedurl!, and Dr, Haren was not involved in this process, By way of furthm response, Plaintiffs' complaint does not identify any other alleged agents apparent agents, serv,mt or employees of Urology Associates, and thus any allegations as to any such persons must also be denied. 80. Admilled in pMt alld denied ill parI. It Is admilled that Dr. Khalifa performed the 11/30/94 surgery. It is denied that Dr, Haren performed the surgery, To the contrary, Dr. Haren assistpd, It is further denied that Mr, Dell was not an appropriate candidate for the surgery, To the contrary, Mr. Ddl was an appropriate candidate for the surgery. By way of further response, under the particular facts and 4 circumstances of this case, Answering Defendants acted reasonably, properly and within the applicable slandard of care In their care and treatment of Mr, Dell. 81. Denij!d. It Is denied that the 11/30/94 surgery was negligently and/or improperly performed. To the contrary, under the particular facts and circumstances of this case, Answering Defendants acted reasonably, properly and within the applicable standard of care in their care and treatment of Mr, Dell. By way of funher response, impotence and incontinence are known, disclosed risks of radical prostatectomy which can occur in lhe absence of negligence. 82. Denied. To the contrary, they do not. The remainder of this allegation is also dlmied. To the contrary, Dr. Khalifa's surgery on Mr, D,~II was carefully and properly performed, By way of further response, l)r, Haren did not pl'rforrn the surgery, but rather assisted, By way of further response, under the particular facts and circumstances of this case, Answering Defendants acted reasonably, properly and within the applicable standard of care in their care and tre,ltment of Mr. Dell. 83. Admilled in part and denied in parI. It is admilled that Mr. Dell was discharged from the hospital with an indwelling Foley catheter in place, and was prescribed Ditropan. It is denied that Ditropan was prpscribed for urinary leakage. To the contrary, Ditropan was prescribed for bladder spasms. By way of further response, under the panicular facts and circumstilnces of this case, Answering Defendants acted reasonably, properly and within the applicable standard of care in their care and treatment of Mr. Dell. 5 64. Admitted In part and denied in part. It Is admitted that post-operatively, Dr. Haren treated the patient's incontinence with contigen, with some success. Defendants are aware of no other tr~atment. Accordingly, after reasonable investlgatlon_ Answering Defendants are without sufficient information and knowledge to form a belief as to the matters stated and therefore the same are denied and strict proof is demanded at the time of trial. 65. Denied, It is denied that the patient experienced no improvement from Dr. Haren's treatment of his incontinence, To the contrary, Mr. Dell did experience improvement from these treatments. The remainder of this allegation is ;)150 denied. To the contrary, after reasonable investigation Answering Defendants are without sufficient information and knowledge to form a belief as to the matters stated and therefore the same are denied and strict proof is demanded at the time of trial. 86. Denied. To the contrary, after reasonable investigation Answering Defendants are without sufficient information and knowledge to form a belief as to the matters stated and therefore the same are denied and strict proof is demanded at the time of trial. 87. Denied, Answering Defendants response to paragraph 78 of Plaintiffs' Complaint is inc;orporated herein by reference, 88. - 89. Denied. Answering Defendants' response to Plaintiffs' Complaint is incorporated herein by reference. By way of further response, Dr. Khalifa did not minimize the risks of the proposed procedure. 6 90. - 100. These allegations pertain to Co-Defendants and require no response from Answering Defendants, To the extent an additional response maybe is required, after reasonable investigation, Answering Dl!fendants are without sufficient information and knowledge to form a belief as to the matters stated and therefore the same are denied and stricl proof is demanded at the time of trial. 101. - 102. Denied. To the contrary, after reasonable investigation Answering Defendants are without sufficient information and knowledge to form a belief as to the matters stated and therefore the same are denied and strict proof is demanded at the time of trial. 103. Denied. Dr. Khalifa performed the surgery. Dr. Haren did not perform the surgery, but rather, assisted Dr, Khalifa, Moreover, Urology Associates is a corporate entity which does not legally practice medicine. Additionally, Plaintiffs have not in their Complaint identified any ""gents, apparent agents, servants and/or employees of Urology Assodates" by name or description (other than Drs, Haren and Khalifa), or otherwise alleged any specific acts of negligence on the part of such persons, Thus, Plaintiffs have failed to state a claim against any such individuals. Furthermore, no specific conduct indicative of reckless disregard or complete indifference" to Plaintiff's welfare on the part of Drs. Haren and Khalifa has been plead, By way of further response, the surgery in question was performed properly and within the applicable standard of care, and with the patients full and l!ffeclive informed consent, 104 - 109, Denied. These allegations are conclusions of law requiring no response. Insofar as an additional response may be required, it is specifically denied that 7 - . Answering Defendants were negligent, grossly negligent or recklessly indifferent to Mr. Dell's rights in their care and treatment of him. To the contrary, Answering Defendants acted reasQnably properly and within the applicable standard of care in their care and treatment of Mr, Dell. It is further denied that Mr. Dell has in fact sustained all of the injuries alleged. To the contrary, after reasonable investigation Answering Defendants are without sufficient information and knowledge to form a belief as to the matters stated and therefore the same are denied and strict proof is demanded at the time of trial. 110. Denied. This allegation is a conclusion of law and is d(mied as such. 111. Denied. These allegations are conclusions of law requiring no response. Insofar as an additional responsl' may be required, it is specifically denied that Answering Defendants were negligent, grossly Ilegligent or recklessly indifferent to Mr. Dell's rights in their care and treatment of him. To the contrary, Answering Defendants acted reasonably properly and within the applicdble standard of care in their care and treatment of Mr. Dell. It is funher denied that Mrs. Dell has in fact sustained all of the injuries alleged. To the contrary, after reasonable investigation Answering Defendants are without sufficient information and knowledge to form a belief as to the mailers stated and therefore the same are denied and strict proof is demanded at the time of trial. " , COUNl' 1 Rohert E, Dell and Gwen E. Dell vs. William Milroth. M.D. 112. Answering Defendants' responses to Paragraphs 1 through 112 of Plaintiffs' complaint are incorporated herein by reference. 8 113. - 114. These allegations pertain to Co.Oefendant and require no response from Answering Defendants. WHEREFORE, Defe"dants Naglb Khallfa, M.D., William Haren, M.D. aDd Urology Associates of Chambersburg, P.c. respectfully request that this court enter judgment In their favor and against Plaintiffs Robert and Gwen Dell. COUNT II Robert E. Dell and Gwen E. Dell vs, Gordon Myers. M.D. 115. Answering Defendants' responses to Paragraphs 1 through 114 of Plaintiffs' complaint are incorporated herein by reference, 116. - 117, These allegations pertain to Co-Defendant and ,require no response from Answering Defendants. WHEREFORE, Defendants Nagib Khalifa, M.D., William Haren, M.D. and Urology Associates of Chambersburg, P.c. respectfully request that this court enter judgment in their favor and against Plaintiffs Robert and Gwen Dell. COU_NT III Robert E. Dell and Gw~n E. Dell vs, Nagib Kh,1Iifa. M.D. 116. Answering Defendants' responses to Paragraphs 1 through 117 of Plaintiffs' complaint are incorporated herein by reference, 119(a) - (e) Denied. The allegations in paragraph 11 a(a) through (c) are conclusions of law requiring no response. Insofar as an additional response may be ,:1 9 required, it is specifically denied that Dr. Khalifa was negligent, grossly negligent, or recklessly Indifferent to the rights of Mr. Dell as plead In paragraphs 119(.1) through (el of the Complaint. To the contrary, under the particular facts and circumstances of this case, Dr. Khalifa acted reasonably, properly and within the applicable standard of care in his care and treatment of Plaintiff Robert Dell and did not directly or proximately cause the injuries alleged, It is further denied that Mr. Dell has in fact sustained all of the injuries alleged. To the contrary, after reasonable investigation Answering Defendants are without sufficient information and knowledge to form a belief as to the mailers stated and therefore the same are denied and strict proof is demanded at the time of trial. 119(f). Stricken by Order of Court. 120. Denied, This allegation is.! conclu'iion of law requiring no response. Insofar as an additional response may be required, it is specific.llly denied th.!t Dr, Khalifa was negligent, grossly negligent, or recklessly indifferent to the rights of Mr. Dell. To the contrary, under the particular facts and circulllstances of this case, Dr. Khdlifa acted reasonably, properly and within the applicable standard of care in his care and treatment of Plaintiff Robert Dell and did not directly or proximately cause the injuries dlleged, It is further denied that Mr. Dell has in fact sustained all of the injuries alleged. To the contrary, after reasonable investigation Answering Defendants are without information and knowledge regarding the mailers stated and therefore the same are denied and strict proof is dem,mded at the time of trial. 10 WHEREFORE, Defendants Nagib Khalifa, M.D., William Haren, M.D, and Urology Associates of Chambersburg, P.c. respectfully request that this court enter judgment in their favor _and against Plaintiffs Robert and Gwen Dell. COUNT IV Robert E. Dell and Gwen E. Dell vs, William Haren. M,D, 121. Answering Defendants' responses to Paragraphs 1 through 120 of Plainliffs' Complaint arc Incorporated herein by reference. 122(a) - (el Denied. The allegations In paragraphs 122(a) through (e) are conclusions of law requiring no response. Insofar as an additional response may be required, it is specifically denied that Dr, Haren was negligent, grossly negligent, or recklessly indifferent to the rights of Mr, Dell as alleged in paragraphs 112(a) through (e) of the Complaint. To the contrary, under the particular facts and circumstances of this case, Dr. Haren acted reasonably, properly and within the applicable standard of care in his care and treatment of Plaintiff Robert Dell and did not directly or proximately cause the injuries alleged. By way of further response, Dr. Haren did not perform the 11/30/94 surgery, but rather assisted Dr. Khalifa, who performed the surgery, It is further denied that Mr. Dell has in fact sustained all of the injuries alleged, To the contrary, after reasonable investigation Answering Defendants are without sufficient information and knowledge to form a belief regarding the mailers stated and therefore the same are denied and strict proof is demanded at the time of trial. 122(f). Stricken by Order of Court. 11 COUNT V 8Q.bert E. Dell and Gwen E, Dell vs. Urolol1.v Associates of Chambersburl1.. P.c. 124, Answering Defendants' responses to Paragraphs 1 through 123 of Plaintiffs' Complaint are incorporated herein by reference. 125. Denied. These allegations are conclusions of law to which no response Is required. By way of further response, Plaintiffs have not identified which "physicians, Interns, residents, nurses and medical staff" they are referring to in addition to Drs. Khalifa and Haren, and therefore the same is denied and strict proof is demanded at the time of trial. 126. - 127, Denied, This allegation is a conclusion of law to which no further response Is required. Insofar as an additional response may be required, under the panicular facts and circumstances of this case, Urology Associates of Chambersburg, P.c. acting through its agents, servants and employees, acted reasonably, properly and within the applicable standard of care and did not, either directly or proximately, cause the injuries alleged and is not liable to Plaintiffs for such injuries. By way of further response, Defendants' answer to paragraph 125 above is incorporated herein by reference. WHEREFORE, Defendant Nagib Khalifa, M,I)" William Haren, M.D. and Urology Associates of Chambersburg, f',c. respectfully request that this Court enter judgment in their favor and against Plaintiffs Robert E. Dell and Gwen E. Dell. 13 COUNT VI Robert E. Dell and Gwen E. Dell v. Na~lb Khalifa, M,D. Informed Consent 128. Answering Defendants' responses to Paragraphs 1 through 127 of Plaintiffs' Complaint are Incorporated herein by reference. 129. Denied. This allegation Is a conclusion of law requiring no response. Insofar as an additional response may be required, it is denied that Dr. Khalifa Is liable to Plaintiffs for ballery, It is funher denied that Dr. Khalifa Intentionally inflicted any harmful and offensive bodily contact upon Plaintiff Robert E. Dell. It is further denied that Dr. Khalifa failed to obtain Plaintiff Robert E. Dell's informed consent prior to the retropubic prostatectomy pr<:lcedure. To the contrary, Dr. Khalifa discussed with the Plaintiff the material risks and alternatives to the procedure in question and his informed consent was obtained. It is specifically denied that Dr. Khalifa inflicted harmful and offensive bodily contact upon Robert Dell in any of the following ways: a. Failing to obtain Mr. Dell's informed consent to the proposed surgery. To the contrary, Dr. Khalifa described the procedure in question, advised Plaintiff of the material risks and altematives to the procedure, and obtained his informed consent for the procedure. b. Failing to inform Mr. Dell fully and properly as to the nature, extent and radical nature of the proposed surgery. To the contrary, Dr. Khalifa described the procedure in question and apprised Plaintiff of the material risks and alternatives to lhe procedure, and his informed consent for the procedure was obtained. 14 c. Falling to Inform Mr. Dell as to lhe material risks, consequences and alternatives to the proposed surgery. To the contrary, Dr. Khalifa described the procedure in guestion and apprised Plaintiff of the material risks a.nd alternatives to the procedure, and his Informed consent for the procedure was obtained. d. Failing to inform Mr. Dell as to lhe alternative therapies, both surgical and nonsurgical, available to him for treatment of his prostate cancer. To the contrary, Dr. Khalifa described the procedure in question and apprised Plaintiff of the material risks and alternatives to the procedure, and his informed consent for the procedure was obtained, e. Failing to inform Mr, Dell of the potential consequences of the proposed surgery including the possibility of Impotence and inrontlncnce. To the contrary, Dr, Khallfa described the procedure in question and apprised Plaintiff of the material risks and alternatives to the procedure, and his informed consent for the procedure was obtained. f. Failing to disclose to Mr. Dell the risks that were associated with the proposed surgery. To the contrary, Dr. Khallfa described the procedure in question and apprised Plaintiff of the material risks and alternatives to the procedure, and his informed consent for the procedure was obtained, g, Failing to disclose to Mr, Dell all information material to the decision to undergo the proposed surgery, To the contrary, Dr, Klhlllfa described the procedure in question and apprised Plaintiff of the material risks and alternatives to the procedure, and his informed consent for the procedure was obtained. 15 h. Failing to disclose to Mr. Delltf1e risks, consequences and alternatives to the recommended treatment material to the decision whether or not to undergo the surgery, To the contrary, Dr. Khalifa fully and completely described the procedure in question and apprised Plaintiff of the material risks and alternatives to the procedure, and his informed consent for the procedure was obtained. i. Minimizing the material risks and consequences associated with the proposed surgery. To the contrary, Dr. Khalifa described the procedure in question and apprised Plaintiff of the material risks and alternatives to tll(! procedure, and his informed consent for the procedure was obtained, j. Providing incorrect and inaccurate infornloltion to Mr. Dell regarding the proposed procedure which information was crucial to Mr. Dell's decision to under~o the aforementioned surgery, To the contrary, Dr. Khalifa described the procedure in question and apprised Plaintiff of the material risks and alternatives to the procedure, and his informed consent for the procedure was obtained, k. Purposely and knowingly performing the surgery on Mr. Dell without his informed consent and in the absence of a medical emergency. To the contrary, Dr, Khalifa described the procedure in question and apprised Plaintiff of the material risks and alternatives to the procedure, and his informed consent for the procedure was obtained. I. RealiLing that the proposed surgery performed on Mr. Dell was without his informed consent and in the absence of a medical emergency would result in offensive contact with Mr. Dell. To the contrary, Dr. Khalifa described the procedure in 16 question and apprised Plaintiff of the material risks and alternatives to the procedure, and his Informed consent for the procedure was obtained. m. Causing permanent and substantial injury to Mr. Dell as a result ol the non-consensual [sic] surgery. To the contrary, Dr. Khalifa described the procedure In question and apprised Plaintiff of the material risks and alternatives to the procedure, and his informed consent for the procedure was obtained. By way of further response, it is denied that Mr. Dell has In fact sustained all of the injuries alleged. To the contrary, after reasonable investigation, Dr. Khalifa is without sufficient information and knowledge to form a belief as to the matlers stated and therefore the same are denied and strict proof Is demanded at the time of trial. 130, Denied. This allegation is a conclusion of law requiring no response, Insofar as an additional response may be required, it is denied that Dr. Khalifa failed to obtain Robert E. Dell's inbrmed consent prior to the surgery performed upon him. To the contrary, Dr. Khalifa did obtain the patient's informed consl'nt. It is further denied that Mr. Dell has in fact sustained all of the injuries alleged, To the contrary, after reasonable Investigation Dr, Khalifa is without sufficient infomhltion and knowledge to form a belief as to the matters stated and therefore the same are denied and strict proof is demanded at the time of trial. WHEREFORE, Defendants Nagib Khalifa, M,D., William Haren, M.D. and Urology Associates of Chambersburg, P.c. respectfully request that this Court enter judgment in their favor and against Robert and Gwen Dell. 17 c. Failing 10 inform Mr. Dell as to the material rlsks, consequences and alternatives to the proposed surgery. To the contrary, Dr. Haren only assisted in the pro.fedure, and Dr. Khalifa, the primary surgeon, did II'! fact obtain the patient's informed consent for the procedure. d. Falling to inform Mr. Dell as to the alternative therapies, both surgical and nonsurglcal, available to him for treatment of his prostate cancer, To the contrary, Dr. Haren only assisted in the procedure, and Dr. Khalifa, the primary surgeon, did in fact obtain the patlent/s informed consent for the procedure, e, Failing to inform Mr. Dell of the potential consequences of the proposed surgery including the possibility of impotence and incontinence. To the contrary, Dr, I.taren only assisted in the procedure, and Dr, Khalifa, the primary surglmn, did in f,let obtain the patient's informed consent for the procedure. f. Failing to disclose to Mr, Dell the risks that were associated with the proposed surgery. To the contrary, Dr, Haren only assisted in the procedure, and Dr. Khalifa, the primary surgeon, did in fact obtain the patient's informed consent for the procedure. g. Failing to disclose to Mr, Dcll all information material to the decision to undergo the proposed surgery. To the contrary, Dr. Haren only assisted in the procedure, and Dr. Khalifa, the primary surgeon, did in fact obtain the patient's informed consent for the procedure. h, Failing to disclose to Mr. Dell the risks, consequences and alternatives to the recommended treatment material to the decision whether or not to 19 undergo the surgery. To the contrary, Dr. Haren only assisled In the procedure, and Dr. Khalifa, the primary surgeon, did in fact obtain the patient's Informed consent for the procedure. _ i. Minimizing the material risks and consequences associated with the proposed surgery. To the contrary, Dr. Haren only assisted in the procedure, and Dr. Khalifa, the primary surgeon, did in fact obtain the patient's informed consent for the procedure. j. Providing incorrect and inaccurate information to Mr. Dell regarding the proposed procedure which information was crucial to Mr. Dell's decision to undergo the aforementioned surgery. To the contrary, Dr. Haren only assisted in the procedure, and Dr. Khalifa, the primary sllrgeon, did in fdet obtain the patient's informed consent for the procedure, k. Purposely and knowingly performing the sllrgery on Mr. Dell without his informed consent and in the abs(!nce of a medical emergency, To the contrary, Dr. Haren only assisted in the procedure, and Dr. Khalifa, the primary surgeon, did in f,l(t obtain the patient's informed consent for the procedure. I. Realizing that the proposed surgery performed on Mr. Dell was without his informed consent and in the absence of a medical emergency would result in offensive contact with Mr. Dell. To the contrary, Dr. Haren only assisted in the procedure, and Dr. Khalifa, the primary surgeon, did in fact obtain the patient's informed consent for the procedure. 20 . . m, Causing permanent and substantial Injury to Mr. Dell as a result of the non-consensual (sic) surgery. To the contrary, Dr. Haren only assisted In the procedure, and Dr, Khalifi,l, the primary surgeon, did in fact obtain the patienj's Informed consent for the procedure. It is further denied that Mr. Dell has in fact sustained all of the injuries alleged. To the contrary, after reasonable Investigation, Dr. Khallfa is without ~ufficlent information and knowledge to form a belief as to the matters stated and therefore the same are denied and strict proof is demanded at the time of trial. 133. Denied. This allegation is a conclusion of law requiring no response. Insofar as an additional response may be required, Dr. Haren did not perform the 11/30/94 surgery, and as such had no legal duty to obtain the patient's informed consent. By way of further response, Dr. Khalifa performed the surgery, dnd did obtain the patient's informed consent beforehand, It is further denied that Plaintiff Roben Dell has in fact sustained the injuries and damages alleged. To the contrary, after reasonable investigation Dr. Haren is without sufficient information and knowledge to form a belief regarding the matters stated and therefore the same are denied and strict proof is demanded at the time of trial. WHEREFORE, Defendants Nagib Khalifa, M.D., William Haren, M.D. and Urology Associates of Chambersburg, P.c. respectfully request that this Court enter judgment in their favor and against Robert and Gwen Dell, COUNT VIII Gwen E. Dell v. Gordon Myers, M.D., Nagib Khalifa, M.D., Urology Associates of Chambersburll. P.C.. William Haren. M.D. and William Milroth. M.D, 21 , . Loss of Consortium 134, Answering Defendants' responses to Paragraphs 1 through 133 and Counts I through VII of this Complal'lt are Incorporated herein by reference. 135.- 137. Denied. These allegations are conclusions of law requiring no response, Insofar as an additional response may be required, it Is specifically denied that Mrs. Dell has In fact sustained the Injuries alleged. To the contrary, after reasonable investigation Answering Defendants are without sufficient information and knowledge to form a belief as to the mailers stated and therefore the same are denied and strict proof Is demanded at the time of trial. WHEREFORE, Defendants Nagib Khalifa, M,D., William Haren, M.D. and Urology Associates of Chambersburg, P.c. respectfully request that this Court enter judgment in their favor and against Plaintiff Gwen E., Dell. NEW MATTER 138. Plaintiffs have failed to stale a claim upon which relief can be granted. 139. Plaintiff's claims are barred In whole or in part by his own contributory negligence. 140. Plaintiff's claim is barred in whole or in pan by the applicable statute of limitations. 141. Plaintiff's claims are barred in whole or in part by his assumption of a known risk. 22 . . 142, Plaintiff's Injuries, If any, were sustained as a result of natural or unknown causes and not as the result of any alleged negligence on the part of the Answering Defendants. 143, At all times material hereto, answering Defendant provided appropriate medical care and treatment in accordance with the applicable standard of care. 144. No conduct on the part of the Answering Defendant was a substantial factor In causing or contributing to any harm which the Plaintiff may have suffered. 145, All claims and causes of action pleaded against the Answering Defendant are barred by Plaintiff's knowing and voluntary informed consent of the care in question, 146. All or some of the injuries alleged by Plainti(f were pre-existing conditions not legally caused by the ml!dical care provided by Answering Dl'fendants, 147. Plaintiffs' claims are barred in whole or in part to the extentthattlll)Y executed a release in compensation (or and release o( all or some of the injuries and damages for which they seek compensation herein. 148. Plaintiff's alleged injuries are the result of his underlying disease process and not any negligence on the part of the Answering Defendants 149. Plaintiffs' damages, i( any, were caused by other and not the Answering Defendants. 150. Plaintiff's claims are barred in whole or in pan to the extent that the doctrines o( res judicata or collateral estoppel apply to this action. 23 " . . . " VERIFICATION 1/ Naglb Khalifa, M.D., being duly affirmed according to law, depose and say that the facts set forth In the foregoing Defendants' Nagib Khalifa, M.D., William Haren, M.D, and Urology Associates of Chambersburg, P.C.'s Answer and New Maller to Plaintiffs' Complaint are true and correct to the best of my knowledge, information, and belief. This Verification is made subject to the penalties of 18 Pa. C.S.A. S4904, relating to unsworn falsification to authorities. Dated: ~,)) )~ 147 , ,I /. /' j t. /J: I:. -.~ (\~lvo.. '7~1!) Nagib, alifa, M.D. " . . VERIFICATION //i1 A ,<:;'111/4 /7/7> accordlnB to law, depose and say that I am C~" I, , being duly affirmed ~f;f{. Urology Associates of Chambersburg, P.c.; that I am authorized to make this Verification of on its behalf and that the facts set forth in the foregoing Defendants' Nagib Khalifa, M.D, William Haren, M.D. and Urology Associates of Chambersburg P.C.'s Answer and New Maller to Plaintiffs' Complaint are true and correct to the best of my knowledge, " information, and belief. This Verification is made subject to the penalties of 18 Pa. C.S.A. ~4904, relating to unsworn falsification to authorities. Dated: ?-(2 \ Ii 7 U}L1"'" L , I j ~_C-l"~ , '-ZetA ROBERT E, DELL and GWEN E. DELL, lIis Wife, Plaintiffs v, IN TilE COURT OF COMMON PL~~S CUHBERL~ND COUNTY, PENNSYLV~NI~ NO. 96-1705 CIVIL ~CTION - I.~W GORDON HYERS, H.D., NAGIB KII~LIF~, H.D., UROLOGY ~SSOCIATES OF C,IIAMBERSBURG, P.C., WILLIAM II~REN, H.D. and WII.LIAM MILROTII, H.D. Defendants JURY TRI~L DEM~NDED PRAECIPE FOR RULE TO FILE COMP~INT TO TilE CUMBERL~ND COUNTY PROTHONOTARY: Please issue a Rule directing Plaintiff to file a Complaint against Defendant within twenty (20) days or suffer a judgment of non pros. , " ROBERT E, DELL and GWEN E. DELL, his wife, IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNA. Plaintiffs vs, CIVIL ACTION - LAW NO. (/ ~ . I / () .~ - (t~ (}\ ( ,j( '\.rl'-- GORDON MYERS, M D.; NAGlB KHAL.lFA, MD, UROLOGY ASSOCIATES OF CHAMBERSBURG. PC, WILLIAM HAREN, MD~ and W[LLlAM M1LROTH, M.D.; Defendants JUR Y TRIAL DEMANDED PRAEC[PE FOR WRIT m' SUMMONS TO THE PROTHONOT AR Y Please issue a Writ of Summons against the following Defendants: I Gordon Myers, MD. 1 SO North 21 st Street Camp Hill, PA 17011 2. Nagib Khalifa, MD. 767 5th Avenue Chambersburg, P A 1720 I 3. Urology Associates of Chambers burg, P,C 767 5th Avenue Chambersburg, P A 1720 I 4, William Haren, MD 767 5th Avenue Chambersburg, PA 17201 , ' ROBERT E. DEl.l. and GWEN E. DEl.1., his wife, IN TIlE COURT OF COMMON Pl.EAS CUMBERl.AND COUNTY, PENNA. Plaintiffs CIVil. ACTION - I.A W vs, NO, 96-1705 CIVIL TERM GORDON MYERS, M,D,; NAGlB KlIALlFA. M,D,; UROl.OGY ASSOCIATES OF CHAMBERSBLJRG, p,c.; W[LLlAM HAREN, M,D,; and WIl.LlAM Mll.ROTlI, M,l),; Defendants JURY TRIAl. DEMANDED PLAINTIFFS' RESPONSE TO NEW MATTER OF NAGIB KIIALlFA. M,D.. WILLIAM lIAREN. M.D. AND UROLOGY ASSOCIATES OF CIIAM8ERSBURC;. P.c. , 138, The allegations herein state a conclusion of 1,lw to which no response is necessary, To the extent that an answer may he required. it is specifically denied that Plaintiffs have railed to state a claim upon which relief can he granted. 139. The allegations herein state a conclusion of law to which no response is necessary, To the extent that an answer may he required. it is specitically denied that Plaintiff's claims are harred in whole or in part hy his own alleged contrihutory negligence. said negligence being specilically denied, 140, The allegations herein state a conclusion of law to which no response is necessary, To the extent that an answer may he required. it is specifically denied thaI Plaintiffs claim is harred in whole or in part by the applicahle statute of limitations, 141. The allegations herein state a conclusion of law to which no response is necessary. To the extent that an answer may he required, it is specitically denied that Plaintiffs claims are barred in whole or in part hy any assumption of a "known risk", said assumption of the risk heing speci fically denied, 142, The allegations herein state a conclusion of law to which no response is necessary, To the extent that an answer may he required, it is specifically denied lhat PlaintilTs injurics wcre sustaincd as a result of natural or unknown causcs and not as a result of thc negligence on the purt of the Answering Defendants, 143. The ullegations herein stnte a conclusion of law to which no responsc is necessary. To the extent that un answer may bc rcquired, it is spccifically denied that Answering Defendants providcd appropriate medicnl care and treatmcnt in accordance with the applicable standard of care, 144, The allegations herein state a conclusion of law to which no rcsponse is necessary, To the extent that an answer may bc required, it is specifically dcnicd that no conduct on the part of thc Answering Dcfcndants was a substantial factor in causing or contributing to the harm which the Plaintiff has suffered, 145. rhc allegations hercin statc a conclusion of law to which no responsc is necessary, To thc extcnt thaI. an answcr may be re'luired. it is specifically denied that all claims and causes of action pleadcd against the ^nswering Defendants arc barred by l'laintiff's "knowing and voluntary informed consent" to the care in question 146, The allegations hcrein state a conclusion of law to which no response is necessary, To the cxtent that an answer may he required. it is specifically denied that the injuries allcged by Plaintiff against Answering Defcndants wcre prc-existing conditions notlcgally caused by thc medical carc provided by Answering Dcfcndants. 147. Thc allegations hcrcin state a conclusion of law t.1 which no rcsponse is necessary, To thc cxtent that an answcr may be requircd. it is specifically denicd that Plaintiffs' claims are barrcd in wholc or in part by any release in compensation for and rclcasc of all or somc of the injuries and damagcs for which they arc secking compensation herein, 148, The allegations herein state a conclusion of law to which no rcsponse is necessary, To the extent that an answcr may bc requircd, it is specifically denied that. Plaintiff's injuries alleged to havc been causcd by the Answcring Dcfcndants arc the result 142. Denied, It is specifically denied that Defendant Gordon Myers, M,D, did not undenake to advise and/or treat Plaintill Robert E, Dell. Moreover. the allegations contained herein are conclusions of law to which no response is necessary, 143. The allegations herein state a conclusion of law to which no response is necessary. To the extent that an answer may be required, it is specifically denied that Defendant Gordon Myers, M,[}, owed no duty to Plaintill, either to discover his enlarged prostate and/or the nodule contained thereon during the course of his cxaminations of the Plaintiff, Moreover. it is specifically denied that Defendant Gordon Myers, M,I>, hud no duty to intilrm Plaillliff of his tindings. more specifically. of enlargement and/or a nodule on his prostate, 144. The allegations herein state a conclusion of law to which no response is necessary, To the exh:nt that un answer ma~ be required. it is specifically denicd thut no protessional relationship or <.:ontracl. either express or implied e.xisled between Plaintiff. Mr Dell and Delendant Gordon Myers. M D. wherein Myers v.ould treat Plaintiff with proper professional skill. or wherein Plaintiff would pay lilr such services. It is specilically denied that there was no brea<.:h of any professional duty of cure owned by Delendunt Gordon Myers to the Plaintifr. It is specifically denied that Plaintiff fuiled to allege a brcach of a professional duty by Defendant Gordon Myers to the Plaintiff. 145, The allegations herein state a conclusion of law to whieh no response is necessary. To the extent that an answer lIlay be required. it is specilically denied thaI Plaintiffs' Complaint fails to state a cause of action or claim against Defendam Goruon Myers upon which relief can be granted. 146, The allegations herein stale a conclusion of law to which no response is necessary, To the extent that an answer lIlay be required. it is specifieally denied thaI llctendant Gordon Myers' examinutions of Plaintiff Roberl E, Dell were not the cause of his 1l1juries, 147, The allegations herein state u conclusion of law to which no response is necessary, To the extent that an answer may he required, it is specilicully denied thnt the injuries and damages suslllined by the Plainti Os were caused by persons, entities, health care providers qr others unknown to Defendant Myers, and none of whQIll \'-ere under the supervision. direction or colllrol of Defendant Myers. The above-named Defendants are joimly and severally liable for the injuries and damages sustained by the Plaimiff which were the direct and proximate cause of the negligence of all of the named Defendants, 148, The allegations herein state a conclusion of law to which no response is necessary. To the extentthut an answer may be required. it is speeilic.llly denied that any defenses under the provisions of thc Pennsylvania Ilcalth ('arc Scrvices Malpractice Act arc applicable to the case at bar, Morcover. it is specilicully d,~nied that Defendant (iordon Mycrs. M,D.'s liability is limited in any fashion hy any provisions of thc l'ennsylv[lIlia lIelllth ('arc Scrvices Malpractice Act. 149, rhe allegations herein Slate 1I conclusion of law to which no response is neccssary, To the extent '.hat an answer mllY he required. it is spccifically denied that Plaintiffs e1aims against Defendant (jordOll Myers arc harred hy the [Ipplicllhle statutc of limitations, It is specilically dcnied that the statute of limitations is a partial or complete defense to Plaintiffs' claims against Defendant (iordon Myers. M,\), \50, The allegations hcrcin state a conclusion of law to which no response is necessary, To the extent that an answer may he required. it is specilically denicd the negligcnt [ICts and/or omissions of Delendllnt (;ordon Myers. M,D, were not substantial contributing fllctors to the injuries and danHlges sustained hy the Plaintiffs, 15\, '1 hc allegations hercin state a conclusion of law to which no rcsponse is necessary. To Ihe extent that an answer may h,. re'luired. it is spccilically denied thaI Plaintiffs injuries and losses wcrc not caused by the conduct or negligence of Defendant (jordol1 Myers. M,D, but rather wcre caused by medical conditions and causcs hcyond the control of Defendant Myers. It is specilically denied that Plaintiffs lIlay not recover against Defendant Myers tilr his negligent acts allllior omissions which caused and/or eonlributed to Plaintiffs' injuries, 152. The allegalions herein state a conelusion of law to which no response is necessary, TOJhe extent that an answer may be rcquircd, it is specifically denied that , Delendant Gordon Myers, M,D.'s examinutions of Pluintifl' Roben E, Dcll were exerciscd and perlormed in uccordance with the standards of a substantial body of medical authority and opinion. It is specifically denied that there is another body of medical authority and opinion that supports thc substundard trcutmcnt rcndercd by Dclcndant Gordon Myers to the Plaintill' Robcn Dcll. It is specificully dcnicd thtll thc "two schools of thought doctrine" is applicable to the facts and circulJlstances that gave rise to this uction. 153, The allegations herein statc a conclusion of law to which no response is necessary, To thc extcnt that an answcr may hc reqlllrcd. it is spccilically dcnicd thut ull cxuminations rcndered to Plaintill' Robcrt t:. Dell h) Deli:ndant Mycrs wcrc appropriatc. reasonable and within the standards set lilrth h) ti:deral regulation. Plaintiffs cmploycr. and by acccptable proli:ssional standards, Morcover. it is specilkally dcnicd that the substandard carc und treatment rcndcrcd h) Ddi:ndalll Myers to the Plaintiff Robcrt Dcll wcre notthc causc of Plaintiffs injuries, 154. The allegations herein state a conclusion of law to which uo response is neccssary, To the extent that an answer may hc rcquircd. it is specifically denied thatthc conduct of Defcndant Myers wus not the proximatc causc of thc injurics sustaincd hy thc Plaintiffs. in that other persons or entitics cuuscd or substantially conlributcd to any such injuries, Allthc named Delcndants arc jointly und scverally liable for thc injuries and damages sustained by the Plaintiffs, 155, Thc allegations herein statc a conclusion of law to which no response is necessary, To thc extcnt lhut un answcr may bc rcquircd, it is specilicully denied that Plaintiff Dell may have been negligent or failed to cxcrcise due care lilr his own safety and personal wcll being, It is spccifically dcnied Ihat Plaintiff Robert E, Dell was , Defendant. All the named Delcndants arc jointly und scverally Iiablc lllr the injuries and damages alleged hercin, 141, The allegations herein stute u cunclusiun uf law to which no rcsponse is necessary, To .LIlc extent thut un answcr may bc rCljuired, it is specilicnlly denied lhalthe injuries and damuges sustained by the Plaintiffs wcrc caused in whole or in part by persons or entities OWl' whom the responding Dclendmll had no duty to supcrvise or control. It is spccilically denied that rcsponding Defcndant is not liable to the Plaintiffs and it is specilically dcnied that Plaintiffs may not rccovcr against responding Dcfcndant. 142. Thc allcgations hercin statc a conclusion of law to whi<;h no rcsponsc is m'cessary, To the extcnt that an answcr Illay bc rcquircd. it is spccilically dcnicd that Plaintiffs' injurics and losses werc nol causcd by the conduct or ncgligencc of the responding Defcndant. It is spccilically dcnicd that Plaintifls' injurics and losscs werc caused hy medical conditions and causes beYtllld thc contmlo!' (hc rcsponding Ikfendant. It is specilically denied that PlaintiUs may not rccovcr against responding Dcfendant. 143, Thc allcgations hercin statc a conclusion of law to which no rcsponse is necessary, To the extcnt thai an ans\\er may he requircd. it is specilically dcnied th.Hthe ncgligent acts and omissions uf the rcsponding Delendant wcrc not suhstantial contributing factors to thc injuries and damagcs sustained by the PlaintiUs, 144. The allegations herein slale a conclusion of law to which no rcsponse is neccssary, To thc extent that an ans\\er Illay be requircd. it is specilically dcnied that the acts and/or omissions of others and not thc rcsponding Delendant constitutcd intervening and/or superseding causes of the injuries and/or damagcs alleged to havc been sustained hy Plaintiffs, It is specilically (knied that responding Defendant cannot be held liable for (he injuries sustaincd by thc PlaintiU:s. 145, The allegations herein statc a cunclusion of law to which no response is nccessary. To the cxtcntthat an ans\,er Illay be required. it is specilically denied that the sole respunsibility lllr thc damages sustained hy the "Jaintiffs rests with the Plaintiffs or -' l,,-; ''tV;! . - CO\lK),S ~~ - "'..............,,,,'"' ,----. , , " , , -' " - )i' ",'O.t:! ./W .. t:>,~(Ov ttl-Y - G.(N,~L- I I, " - ..","B..............'."........."......."""...,.- I I " ... I, i 1,1 ,I' .".., -,II' \H-~;i.;! " , . ...---.-..----:- ."...._,-,~.~.-.,. owed by Defendant Myers to Roadway Expn:ss, Deli:ndant Myers owes an independent duty to his patient. Roben Dell, to provide him with any and all medical records penainin!! to his care and treatment. which he has luiled to do 16. Admitted in pan Durin!! the conversation on May 16. 1966. Plaintiffs' counsel was advised by Detendant Myers' counsel that due to his most recent communications with Roadway Express. it was his understand in!! that a Court issued Order or a subpoena would be sufficient lllr Dc!endant Myers to produce Plaintiffs' medical records. 17. Denied Aller the initiation of this action. Plaintills properly served wunsel for Defendant Myers with written discovcry requests which included a request tor copies of Mr Dell's medical records Based on both verbal representations and the \\; ritten representations of counsel tor Defendant Myers which is attached to I'laimills' Motion to Compel. il is c1t~ar that Delendant Myers wnuld nnt Ihlnnr the properly served discllverv requests. Any unnecessary expense. a!!gra\ atinn llI' incnllvellience sutlered by Dc!endanr Myers or his counsel was precipitated by their ",vn act Inns and nllt the actions of the Plaintiffs WHEREFORE the PlaintillS. Rnbert E Dell and Gwen E Dell. his wite request thaI Plaintiffs' Motion to Compel Production of the Medical Records be granted and Detendant Myers' request lor counsel fees be dismissed MAHADY-SMITH & MARZELLA PC Date RiV'lft ~)//I ,/ -r.l/~fdLk~__.___.._._____.._ R(\~in' J Marlella. Esquire , / I D #IJIJX56 j 115-'\ North Frllnt Slreet fhmisburg, PA 17110 (717) 2j6-6012 CIlunsellllr I-'Iaintill's /' , .....1 CERTIFICATE OF SERVICE . I hereby certiiY.that I, Diane R Lutes. an employee of Mahady-Smith & Marzella. I' C . have this ,--i IS r_ day of May. 1996, served a true and correct copy of the PLAINTIFFS' RESPONSE TO DEFENDANT GORDON MYERS, M.D. NEW MATTER IN RESPONSE TO PlAINTIFFS' MOTION TO COMPEL PRODUCTION- OF CERTAIN DOCUMENTS on detendams by sending same United States tirst class mail, addressed as lollows G Thomas Miller, Esquire MILLER AND MILLER 105 Locust Street PO Box 709 Harrisburg, PAl 7108-0709 Attorney tor Detendant Gordon Myers. M D James W Saxton, Esquire BARLEY, SNYDER. SENFT & COllEN 126 East King Street Lancaster, PA 17602-2X'J} Attorney tllr Defendants William Haren. M [) . Na!!ib Khalitu. I\tD and Lrology Associates ofChalllbcrsbur!!. PC Joseph I' Hafer. Esquirc THOMAS, THOMAS & IfAFER 305 North From Street PO Box 999 Harrisburg. P A 171011-09t)9 Attorney for Detendam William Milroth. M 0 ,- .' /-~ Ji.>/~/~t'/ ,'/ c.2i~/ _ Diane R. Lutes '---< ROBERT E. DELL and GWEN E. DELL, his wile, PlaintitTs IN TIlE COURT OF COMMON Pl.EAS CUMBERl.AND COUNTY, PENNSYLVANIA v. NO. 96.1705 CIVIL TERM GORDON MYERS, M,D., NAGlB KHAl.IFA, M.D., UROLOGY ASSOCIATES OF CHAMBERSBURG, P.c.. WILLIAM HAREN, M.D, and WIl.L1AM MILROnl. M.D., Defendants CIVIL ACTION. LAW CERTII"ICAn: 01,' SUVICE I hereby cenify thaI a true certifkd copy of thc within Answer on Behalr or Derendant Myers to Plalnliffs' Rule to Show Cause W;l~ this datc scrvcd upon counsel lor the Plaintifl Robin 1. Mar/ella. Esquirc. by Unitcd States first class mail. postagc prcpaid, addressed as lilllows' Robin 1. Mar/clla. Esquire Mahady,Smith & Mar/clla J 115.A North Front Slrect lIarrisburg. PA 17110 Copies of same werc also concurrcntly maIled to all olhcr counscl of rccord. ;k' \\ I', I ,: , ' : \i . '. I. IJ l.'. ---.---- (J, TOMAS Mll.IH{. ESQUIRE 105 I.ocust Strcct P.o. Bo" 709 Harrisburg, PA 171011-0709 Date' May 24, 1996 Attorney lor Dcfendant . Gordon Mycrs, M.D, 12, All physical examinations of Plaintiff Robert Dell performed by Defendant Myers were done at the request of Roadway Express. Plainlilrs employer, in order to comply with DOT regulations. 13. Roadway Express paid for Defendant Myers's services in connection with said physical examinations, and the reports of such examinations were furnished by Dr. Myers to Roadway Express, which reports thereafter became the property of Roadway Express. 14, Roadway had previously made Dr. Myers aware of its policies regarding the production of such reports of its drivers' physical examination which, ill brief, provides that the examining physician is not authorized to furnish a copy of his physical cxamination to any person or entity except Roadway, and is particularly dirccted nollo furnish a copy to the driver concerned or anyone acting on the driver's behalf, Roadway's policy also provides that it will not voluntarily furnish such reports to persons or entities othcr than DOT, but will, without objection, honor a court-issued subpoena for such repons, I~, If Dr, Myers voluntarily produces such physical examination reports in r;:sponse to Plaintiffs' Motion, without a Court order, he would be in breach of his employer's direction, and would undoubtedly lose Roadway's further patronage, and possibly face legal action by Roadway, 16, However, Plaintiffs' counsel on May 16, 1996, was advised via telephone by Defendant Myers's counsel that after further communication with Roadway Express' legal department, Dr, Myers has been given clearance to honor a Court subpoena in usual form directing him to produce the subject records at an appropriate time and place, and Plaintiffs' 2 . 12, All physical cxwninations of Plaintitl' Robcrt Dcll pcrformed by Dcfendant Myers were done at the requcst of Roadway Exprcss. Plaintill's employcr, in order to comply with DOT regulations. 13. Roadway Express paid for Dcfendant Mycrs's serviccs in connection with said physical examinations, and lhe reports of such examinalions were furnished by Dr, Mycrs to Roadway Express, which rcports therealler bccamc the propeny of Roadway Express, 14, Roadway had prcviously made Dr. Mycrs awarc of its policies rcgarding thc production of such rcports of its drivers' physical examination which. in briel: providcs that the examining physician is nol authorized to furnish a copy of his physical e,xamination to any person or cnlity cxccpt Roadway, and is particularly directcd not to furnish a wpy to the drivcr coneerncd or anyone acting on the driver's behalf. Roadway's policy also provides that it will not voluntarily furnish such rcports to persons or cntities olher than DOT. but will. without objcction, honor a court-issued subpoena for such reports. 15. If Dr. Mycrs voluntarily produces such physical cxarnination reports in response to Plaintiffs' Motion, without a Court ordcr, he would bc in breach of his cmployer's direction, and would undoubtedly lose Roadway's furthcr patronagc, and possibly face legal action by Roadway. 16, However, Plaintiffs' counscl on May 16. 1996, was advised via telephone by Dcf::ndant Myers's counsclthat aftcr further communication with Roadway Express' legal department, Dr, Mycrs has bcen given c1carancc to honor a Court subpocna in usual lorm directing him to producc lhc subject rccords al an apPrt1priatc timc and placc. and Plaintiffs' 2 ..' ..' - ".-.'-. _,... ,,,... .~1"'''I\t''''If,,,;,,,,.;.,~'):_Mfl,i'/:~~ml'JJ4.~V'j;~L i"I"l' {'-i; ',"-'.',';,1 -" " ", . ~ &. - b,Pos.tilDIUS - :, '/ " -__....H_._.__....""'"'''-._,.._.., ~..~.,..,~,---- - ---" ,. " " " , li',;1 , , , , " "'I' ,,' " " " f" ", " " " .., " " , ,Li il " , , "/, " "~I ':' , " '. I :,' ,; ,', , 1,,'/'; 'I, r''--''''1' u ROBERT E. DELL AND GWEN E, DELL, HIS WIFE, PLAINTIFFS IN THE COURT OF COMMON PLEAS. CUMBERLAND COUNTY, PENNSYLVANIA v CIVIL ACTION - LAW GORDON MYERS, M.D" NAGIB KHALIFA, M.D., UROLOGY ASSOCIATES OF CHAMBERSBURG, P.C., WILLIAM HAREN, M.D., AND WILLIAM MILROTH, M,D, , NO. 96-1705-CIVIL TERM DEFENDANTS JURY TRIAL DEMANDED DEPOS IT ION OF: TAKEN BY: BEFORE: ROBERT E. DELL DEFENDANT MILROTH DONNA E. RICHARDS, RPR NOTARY PUBLIC AUGUST 14, 1997. 9:20 A.M. THOMAS, THOMAS & HAFER 305 NORTH FRONT STREET HARRISBURG, PENNSYLVANIA DATE: PLACE: APPEARANCES: R.J. MARZELLA & ASSOCIATES, P.C. BY: ROBIN J. MARZELLA, ESQUIRE (' .:', FOR - PLA INTIF'FS " . , MILLER & MILLER BY: THOMAS R. MILLER. ESQUIRE , -: ~1 ; " , i r") rt1 .' , ~'J .J '" '. (T. ..; FOR - DEFENDANT MYERS BARLEY, SNYDER, SENFT & COHEN BY: KATHERINE B. KRAVITZ, ESQUIRE FOR - DEFENDANTS HAREN, KHALIFA AND UROLOGY ASSOCIATES OF CHAMBERSBURG, P,C. THOMAS, THOMAS & HAFER BY: GARY T. LATHROP. ESQUIRE FOR - DEFENDANT MILROTH ALSO PRESENT: GWEN E, DELL TIM01'HY J. COLGAN ~ :7l1brigk. 'Folh lr J/af4k ~ &rlile, {I"" l1S PINE STREET. HARRISBURG, PA 17101 H.."l!\hl,ro 111.2:12-~~" FIIlf 111.23:1.9":17 LlInr.Rl'tfftr "7.393-S101 - , - 'Mr'l1 ,r1:1\I .. - JIU"tf~6"70~lS - - j'. " "I ., ir -' - , 'I -,." S~ t"J41O~ o~.s .. - , , I, I, " ' [' , , '\ " , ' ;,,1 , "-.1 ,-, I '" , " 'j-' ,I.; PRAECIPE FOR LISTING CASE FOR ARGUMENT (Must be typewritten and subnitted in duplicate) TO THE PROTHONOTARY OF CUMBERLAND COUNTY: Please list the within matter far the next Argunent Court. --------------------------------------------------------------------------------------- CAPTION OF CASE (entire caption must be stated in full) (Plaintiff ~ (') d) ,~ ~~-,: ._1 !" ". , (Itj .~ --1 ~.' , , I " , I i ._J ) '. . ',.', '. . - " I " .. .', .' , , .. , r:-.j - ~r. . i :") ". , -'" .-- ". RorERT E. DELL and GWEN E. DElL, his wife, VB. GORDON MYERS, M. D., NAGIB KHALIFA, M. D., UROLOGY ASSOCIATES OF CHAMBERSBURG, P.C., WILLIAM HAREN, M. D. and WILLIAM MILR01'H, M. D. , (Defendant )s lib. 96- 1705 Civil 1996 -----. l. State matter to be argued (Le.. plaintiff's IlDtion for new trial. deferxldnt's demurrer to complaint, etc.): Defendant Gordon D. Myers, M.D.'s Motion for Summary JUdgment 2. Identify counsel who will argue case: (ALSO SEE ATTACHED SHEET) (a) for ~~~~~v;q~g~~yFf.r'Mi ti:J>i, Esqu ire Address: 113 Locust Street (P.O. Box 709) Harrisburg, PA 17108 (b) Plaintiff for ~: Address: Robin J. Marzella, Esquire 3513 North Front Street Harrisburg. FA 17110 3. I will notify all parties in writing within t'olO days that this ClIIIe has been listed for argurent. 4. Argunent Court Date: December 10, 1997 DB too: Nov~'mbe r 1,1. 1 997 Attorney Thomas R. Mi2er, Esquire far Deretf!;;.' uordon I"l}'''CR, M.t>. SHERIFF'S RETURN - OUT OF COUNTY CASE NOI 1996-0170~ P CO""ONWEALTH OF PENNSYLVANIA I COUNTY OF CU"BERLAND DELL ROBERT E ET AL VS. "YERS GORDON "0 ET AL R. ThoMilR Kl in" , Sheriff, who being duly sworn according and inquiry for the within to law, Bays, that he made 8 diligent search named defendant, to witl "ILROTH W~AK 1'10 but waa unable to locate deputized the sheriff of to Berve the w~thin WRIT Him FULTON OF SUMMONS in his bailiwick. County, He therefore Pennsylvania. On June 21at, 1996 , th~a office waa ~n receipt of the attached return from FULTON County. Pennsylvania. Sheriff's Costa: Dockltting Out of County Surcharge Fulton County So anawera: 6,00 9.00 2.00 22.00 839.00 I'IAHADY-SKITH MARZELLA PC 06/21/1996 - ..~:.~ J . R. 'lhomas Kline, Sheriff Sworn and aubscribed to ....' this ~~ day of 19 en.. A. D. beforlt me _t. ~ " " '~ ~"1 '-- c.. 1 k...(.h- ~'l~' Prothonotar)' , 'i SHERIFF'S DEPARTMENT 157 LINCOLN WAY EAST, CHAMBERSBURO, PENNSYLVANIA 17201 (717) 261.3877 SHERIFF SERVICE IIN~TIIUCIIONS FOR SERVICF. or PflOCI SS 1'1.",,, Iypo or p",,1 PROCESS RECEIPT. and AFFIDAVIT OF RETURN Icijlbly Do 001 dolilch ""y CUPlO' I 1'1 AINIIt J IS/ , CIHIIlI NUMIIf II Robert E. 60 Gwen E. Dell 1996-1705 :IDI:'INlJANllSl 'NaSlb Khal1fn, M.D., Urolo~y A.."oclllto" of . IYI'I Of Willi llllCOMPIA'NI Chambersburg. P.C. 60 William lIar,,", M.D. Summolls Sf,RYE { " HAMa Of INIIII/IIHJAL Ie IMI'MlY I '1111' HlIlp Ij I H II) ',111'111 I IJlIIll ',I 1l11'IU1NlIl Pill lI'IIO Y leI III II \l111l AI IAI 111111111 ',11111 . I>. Naglb Kl)al1faLlI.ll. 2) Urology As.oc. of Chbll. l) Willlum Haren, M.D. 6 AOOIUSS ISlu.H.'lv, fU.o AOdrlrlll'fll No! (II~ !.lOll) '.....1) '11..11' .JlulllP Ludl') _A! 7.675th Ave., Chambersburs, Pa. 17201 I INI~CAII UNUSUAl. S"'VICI II COMMON Of I'A I J III I'll II/I , ! llTtlr II Now. 10.1 SHEFIIFF OF FJlANKlIN COUNrV. I'll, do hl!lnby dnpul!'" Iho Sh",," of Counly In I"UH;U!t' Ihls Writ and muku wturn thmeol ilccordlnq to law ThiS dcJ)Utnhon bOlnn rn.ldu at tht' r(lQIH~sl .lI1ft rt:-ik 01 ttw p11lUl1l1f '",iLiJii l'ut i-li"\JlJ!UfllW:~j" i.. 8.siiiiCIAlINSllIUCllONS oR OTII'E-Ii INFORMATION THAT WILL ASSIST IN EXPEOlnNG SERVICE: NOtt ONLY APPlICABlE ON WRIT OF EXECUTION: N B WAIVER OF WATCHMAN-AllY dl'pul__ ~;hl"IIIIL"JVlIllJ "pon III oIlLlCtlllllj dny jlfOlll'tly IIlld,', wllhln Will may k'ilVI' !iOlnll' wlthoul ,I w;llchlll,11l II)' II',!, Ii', ! ,,1"Hllt'V"f I', l, )lI,Hl 'II IllJ~;'il",'lI()f1 ;jIll', Illlll'YIIl'IIll""'H1 01 1"10< ~ or .!II,lfhnll','1 wlltullJI Ii"h,lllyun IIIt'l',ul 01 ~UChlh'pllly 1)( lh.. ',1, 1111 I'J 1'/1,11' f III, I' ,n! 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I,., j.rl ,~"ll'flf"I' tll ',,'rVII.I' .I', ',IlIJwrr III 1;"111.1110', r I lid"'" ''If'l.ld.'d ..~ 'JtJlJWI1 III "ftl'm,uk~". th~ ItIIIt' ", (;Urnpldl/II ''''','.111'1'11 '1'111" '", I" ,I 11!J1!l.!lI,' "11",1.1111)1' l'll. .,llh,' ddlh,",', .,tUlWII.lh'J"," lH '111 Ih., 'f\.!rvlrllldl. C()lnp:HI__ ,orpur:'lum. HI<: , illlht~ illlclfl!')~ Hl~;i'r"!rllll'l()w tJy 11.11,.,111"1.1 TRUE and ATTESTED COPY Itwrl'lll 11 ~_J I htl'l:hy C:l~r"'y and rtl~llr/l II NOT FOUND tH:'.dll',I' I ,,"l "1,11:1" I,. I, ". ,.I,~ Ih.' <llll.~IIIII,11 ';ompilny, c(lrpllf ,llrl)l1. ,'Ie tl,HIII.'1l ..tlfllo<l' (')Ilt' 'l!m,1rks bl'lllwl In NOIme ,mcf h1k! or 1nc1lv.dualsl!f\lI'11 (.11<01 "tvlwn ,Itl' l'J'.1 I' IJ "I" ",,,,, '01 ,,,d,ll>li' ,I'/!, ,,,., "." "'1",1' Ihl';' J d M (0 f f i M ) IWIN1"',! ," IIN' .h'r.'I~1dnI1 "~",II 1,1,11." 01 U .y. onn.. c.e .st.. "',,,',' " ;'0 AddrC\>5 nl whl.-m served (comph!11' l)Illy +, dill"rl'Ht th.1I1 ',h[N,1i .LlIfIV.'II~;IrI'I'1 or H~()_ ^~);1f1r1ll'J11 NIl ;l I 110111',.1 ~'lt.'fY.I' ")") rlln~'. CIIV.lk>ro, rwp Slain and lip COdH) Same l:1 ATTEMPn; [ oa.. 4-4 ").. AdvRnc.! (;0I'1t5 as 1/6 [ Mjl;.'.I:~i.~~L~a,::J 18.00 -- ..- --- . M,le. I Dep Inl I [.>1, N'~,:,~~"" Dole \ M,lo. [[)eO Inl') Oe'e f;11 M.I''.UII~ or>tQ~ 2.80 AM "" '" I!mH 4-4-96 11;15 am 1 M,le. [ Dep Inl [ Oe'o [ Mil..- -[ DeP. 'oj [,II rl!~'~ ~'~'~s 1'9 2tT2~ ;:~'=- .10 n~ MAflK5 .14 "".y "', Ap_!j..J \l~' .....- -_. ..., I _ If l.c~,~,u. ..ll, .. J<,.':c"...L_ ................."lloot..II"-~". M_Y l:;Q!iI~'SSKJtjI,l!.I'ffi(&._ _. _ ..O'=C_ . ___ . . '18 I ACKNOWII.OOE nECEIPl Ofl,nftt'IttEIIIIIt'silEtURN SIGNATURE I Of AUlltOIlI/EOISSlHNOiloIHHOm'tlrAlIIIUITlI1:." I ".' '.lI"r,\r'-,~~,. ,.~.", .1_f} 96 1.' "'ll"oIILU,'ol (l.,p ',h.'"'' .Lt:/~~4../ ,D_alle M. Anthonl___, f" 0". '~~ih:_':_ 4-4-96 " Af flUMf () ilnd !Wb!\crtbm1Io hlllom 11I1' Itw, 4th I', '""""Ii'''''ll'ihl.,,1I SHERIFF Of fRANIlUIlCOUNTV tlJltt;'-ill't-.flVf!...... '(.!lO.1I1Wl I., ' "~::IT~'~';'~~~ t 'cr. "';".j "'... I I. ISSUING AUTHORITY SHERIFF'S DEPARTMENT 157 LINCOLN WAY EAST, CHAMBERSBURG, PENNSYLVANIA' 7201 (717) 261.3077 SHERIFF SERVICE "N.SlflLJCJIONS FOf1 'lfllVIC, Of PIlOCfSS 1'1.0.. J,p. or p"nt PROCESS RECEIPT, and AFFIDAVIT OF RETURN '''Ilbl, 00 ,.,1 ""'od1 "", ""I"'" f1lAINJlff/SI .' UHIIII NllMIH 1/ . -- Llburt .... 6 to'Ven ~. 0.11 1996-l70~ 10HENOANlISI N.a1l1b I(haUf... 11.0., Uro1QIIY "uod"u. of .. I VI'I '" Willi ,"<C,()MPIAINJ Chllllbullbura, P.C. 6 Wll11". ".ar.m. H.D. SU"OI\H SERVE {" HAMI In INIlIVIIJlIAI (11~"ti.~j, 1111!.ATI"fj I' I IINIIIIIIIIII ',11111'11111'41" 1'11111'1111. llllU II VII/l /\IIAl HI lltlll')Illll . .1> Na1l1b lo;h.sI1L:a, 1\.0. :1) Uro1ollY All"".. uf Chba. J) 1111110111 H,lr"n, 1'1.0.. 6 AUOflE SS t~illl'f'II)1 IH IJ AI).1111111 III No-, LII, UUl.J IWII ')1.111' ,11I11 "" (,nth') AT_. 767 Ith Ave., Chamber.burg. Pa. l7201 llNDICArfUNUSUAl HUIVICf IICUMMUNC)f PA 11IHPIJII.'llllllIHH N()w,_~______ HI, I. SHtHIH" OF FHANKllN C( HINTY. PA , do Il"rt!hV dflPIlI11P Ihl~ ~Hwrllt of (;OIJllty h) l'lU'UJ!t> thiS Writ ,UlIJ milkp rt!lllflllhf!rPol dl'cordlllU 10 law ThiS depulnhon ht~If\lJ milt'" nlHl!' '1'1111.";1 dill! 'I!';k 01111" pl,lInll" ,1'll'll I vi '.f',..;;~'l,i,',.uu;iJJ.' ~.~'':~~~-_-:--' 8, SPECW: lNinRucnONs OR OTHER INFORMATION THAT WilL-ASSIST IN EXPEDITING SERVICE, Non; ONlV APPlICABLE ON WRIT OF EXECUTION NO WAIVEA OF WATCtIMAN-Any dl'Pllly Itll'III1II'\lYln'l >1P'"1 'I' It! I' tUIl!) .Ifly ptIlP""V 1111<1.'. Nllhm W'lt nlilY 11!;I\l1' ~iilllli' Wllhr/ld.j Ii,ildllll,jll 'I', "',I,,,!', " 1'/11,,111, , I, t H,nd 1111"1',',1""11011 .1111" 'hlldYlllq PI", 'I ill \"\11 rlt .111.11 hmr>nt Wlttllllil 'dtlllllylll1 thl' poltl 01 !';IICh d"pul)' 'J, III, "",., ,lll" "J I I ,1 ".III" "'111 I. r "J ,!! ,1'1/' hnn 01 ,..m"\I II, ,I Illy", hi r II ' II, j t'''IlP ',hp"ft " ',..'" n" r,' ,f · SIONAJURE..lliATTORNEV '" I,ltl.., OAICJINATOJ1 llll III f PlhlNI NIJMfll II 11 11M!! PayaD . 'I .'I.ohdd)'-:;'Ultll & :~,lr.',.ll:1 (,lObi" .J. ~I.>r""j l~) 2)b-liUI:. Il SEND NOnCE OF SUtvICf. COpy TO NAME' ANn ADOHfSS BElOW I I hi'} .lIl1a rtIu,,1 bt! c,tllllph!lud II notlf.l! 1', III hi: Ill.lIll..~dl )ll~-A 3. lrual St., H~rri.bu[~, r.. l711u SPACE BElOW FOR USE OF SHERIFF ONLY - DO NOT WRITE BELOW THIS LINE lill;knt)wh'IJIII"I~(;I~lplclllltl'wrd' SIC.NATUF~E 'kl!l""..,.~FCSOfltp,d,'ir(,I!'rk,.ndrllll' 11.'11.,10 Il,'", 1'" or (.:nm'll;unt il~ I1ldlc.lh'cl ,Il)ll~l' , 4- )-96 I ~llIIdtlllll II, ',11'11'1 ddf.. I h"tt~by CERllFY ,llld nF TURN 111,11 : : I. '.' In'J~l'm;uk~i", !h.. w"lllr 1I11I1pl.l'1\! ,h'" 101", I corpurilllon, f'I('. allhp ..ddll~"'J IIt',"rl,',II,,'I, 4-31)-91> ,!I, "",1 .11"vl,h'II".,)I'"",,,,,,.!,, ,'",...., '1111./'1,"" t',I"'I' "."'.lIll'd ,I , . to, ,,/;,, 1I 1111' IIhhvllhl.ll , ,1'tIPIII', ",1. 0" It loll " i , "110 11.1111111 ,.r. .\! Iii,' .,,1, Jr,' ,', . ,I I' 1'1" I .~, , 1,IIIdlllPj ,I TRUE ,lIlCI ATTESTEO COPY III"H,.i! [ II ht.,uby cl',IIly .IIKI '1'111"1 d NOT FOUND II' III Nilml! ilnd !rIle 01 mdl\lultJill ~;I)r\l!',1 (II 111.1 ',It, ;','," II Judy Honn (Office Mgr.) , 1.1111 1,11,1111. I. F, ,I, !/ll- IIld'\lldLJ.d I 'J/l11101llV r <1'111,1.11"111 "I, /," '.." " ,,,r''''1 """" I '0 AlkJrmHi 01 WhUH~ Sf.'f\lI'I! (l:lll11l1l,,", 11111'( d ,1'!!""'11 11'0111 ',It''Wll II. ,!'II';trl'pl Ilf fl~D, Ap,ullfl"'11 No City, nom, Twp Slilll! and lip Lrul", 'jllll. '01 ,1/11'\11', (~jl'I' "'111.1110.', IJI'IO'N1 ;",'1 ".1 rI '. ",' ""1-""'''''''(111"., II.. 1,1"",!,'''''''I','''llpl,jO,. ,,, "II,t. "1''''1,",, ;)/ Tllllt' 'M PM t ~.1 IIl'if Same as If> 4-4 -96 11; l~ :lCl " ATTEMP-r.; [ Oale I Mile, Oep In' I Dille M,le, I Oep/n' I o.ller M,le, I Oep :J Dale I Mil.. [ Oop In' / 0",. I MH.'l Oep,lnt 4-4 10 V:l I I '" Ad'lllnCIl Costs ;"l ~-;prYI!" (")',1-; /.'n N'~,:,O~'P' I [, I ~'~'8'~""~ . ' /"'\ 1,,1.11 Cnsh ["n COST DUI OR RIfUND 18.00 24.80 25.20 rt!fund 10 UF MAW<S 1'./ 4th 96 so ANSWER. \, Af f IffMI 0 aryl Nouhril:uhf'lllo Il..tnrf' rill! till'; 1~"ft.".",~,.I~'I"" '~""" "."", SHERIFF Of FRANKLIN COUNTY . f' ,.---. ',. 1,10",. 4-4-96 . ..-.---- ..,- ------ .It\ OIlIU . -~----"---- ..--. ,... ctny 01 AjlrU I' "'i"d!r",.,)! 1i"I' ,1l1'1,1! Dane H. AnthAny ''''.''.I!"""I'''''l'tI II MY CQ.MMI~SION I X'~II! S III I ACKNOWlI lKOI II! elll'l 01 1111 SHERifF S RETURN SIGNArURE I .. .Of AU ,tK>fU/. 0 IS~lJIN(, A~!!!!!.~.!.~NfJ.r .'.L~~ _~~____..... _'. ,. ,~~.__tt~~:_':I~';'Wd -- FO;o 111'JlI:I 4. SHERIFF'S OEPARTMENT SHERIFF'S DEPARTMENT 157 LINCOLN WAY EAST, CHAMBERSBURG, PENNSYLVANIA 11201 (717) 261.3877 SHERIFF SERVICE I INSTflUCTlONS fOil SFIIVICF OF PlloeFS,; Ph'"", Iyp" 0' PliO' PROCESS RECEIPT, and AFFIDAVIT OF RETURN IO'llhly Do 1101 dolo1<:h ,my ""1''''' fll AIN'IIff IS! 'j nllHlt NUMBf II Robert E. 60 c.'wen E. DOIll 1996-1705 'IDlflNIlANr/~;1 N<1gib KhalHlI, M.D., Urology ABBoci"t~K of ,.IYPI ," WIIII"ll'(lMI'IAINI Chambllrsburll' P.C. 60 WillIam Huren, M.D. SUlDlDOIlB SERVE {~IN"MI III INlUVI[IlIAI lli~.~I'M,." I.', lii.II'I,'" I"" I,'"", """"" '''''''''N''' "11,",,"1; ,,,"' ,IVII" M'^' "",,'" "'II . I) NagIb KhlllHa. ~1.O. ;1) Urology AOKOC. of Chbg. 3) William Haren. M.D. o AI~)Itf- ss 1~;"~'I't lit In I) ^fI.lIlll,tl)f ~j" '<II' IJ"'II l\Np ~iLlI.. ,1Ild lIP Cw.JIII AT 767 'th Ave., Chambersburg, Po. 17201 (INUICAlfUNlJSlJAI Sf'WICf fJ{,()MMI)Nt)f I'A I 1IlI'I)!1/1 [()[IIII/ Now, HI I SHUUfT t)1 F HANKllN COUN rv, PA . do ~l(!fl!hy depull/t' 1I11! Stll)f11f ot (~(lIlfltl !I) t'lCl'l:uh' Ihm Writ illlll milk(! II!!urn ttH!h!nlllc.cnrdtllll 10 law ThiS deputatlun hWllq "';Jd,' .II Ill., rl'ql!!':,! ,1!1d tl')k lit tilt, 111,lllllltt 'I"LII;I! c." ,,,,.,,~0FI"',IJ~!' 8, 5Pf:CIAlINSTilucnONS OR OTHER INFORMATION THAT Will ASSIST IN EXPEDITING'SERVICE: N01'E ONLY APPUCAOlE ON WFIIT OF EXECUTION N II WAIVER OF WATCHMAN-Any 1l"lud, ',III'flll lo'IIY""1 'lp'll1 <110111.11 t""'I"I', 1'1"1,,'11', dlld"I N.lhm WIll m;lY h~i1\1" ""HlU' wiltlllld .1,1,.11. 11)).111 ", " :,j" r'" "'"lid III pl)"';"~";It)1I dll,'r 11"III,IIllj lll"'."JII or Il'~, 'll dt.ulill,"llr ....,rt"Jill 'dlllr.l)l'lIlHII'Pilflol"IIC.hd"IHII)',llh, . ,,'II, '" '1,,,,IIIJlIl<'HI(lfll'lIl11y.ll<lI.1I1/'''''''I'''I''IIj'IIl'I,,, ,1I,(ft II',." ,f ,) SIGNATURE ul ATTORNEY", ..nUl ORIGINATOR 1111 I! I! fllHlNt N(JMI\I H 1'1 Ilf.ll Payable Mahady-Smith & :~"r,,~llll (ROb!', J. i"lilrzdla) ;136-6012 SENO NOTICE or Sf nVICF COPY TO ~lAM[ MHl ,'Ill I 1111 '-,'i III (OVJ I rill'; dr.:,. '11U',1 hfl cnrllpll!h'.1 ,I 1111'11 .' (', 1'1 tll' m,Hh:dJ I dl.kF10wh~dlll' fnc.~I,,1 "I II,,' ....11' , 'IF f:lJmpl,llnl il:i ,ndlCdl.'(j .tll"'1" J 3115-A N. Froal St.. Harrisburg, ['iI. 17!lO SPACE BELOW FOR USE OF SHERIFF ONLY - DO NOT WRITE BELOW THIS LINE , ' p~N^TtJR[ " fCS[}(I'1 ,I, "(t"I~,jI.,,ldl,' III !1,1,!j, '.,"'.1 .!I(L1..L ,1-C l / ~iJJ.JL; 4-:1-96 .' " , "'''1 1"11"- ,,1 ','or ." .. d', ',I '",'" I,', t'f. , 1.01 ,Ii "11")1' "1. ,11 !t", Iddl' ,10.".'. ,I ,." ,,,,II.. '1"1,,." TfllJt: ,lJld ATTESTEO COPY Itl""'''! 1 'I' ,I,,', Ih,u"""lol!' I t'l'IdlY CEfOlFY ,jrool Uf'l'UnN ", ,I ' ,11111'11I",11.:;", thl' W,II ", 'iI~ll,I,'I"t I, ('lfpO(,II,rm.l'k, dt Ih.' .Iddr..' '1""..1, 4-)1)-'16 ,I, f ,It,,,,,, I, .1,,\ ""p.II', /11 hf"l'lly c"tllly .Hlll ,.'111'" ,I NOT FOUND ("" "I Nmn,' afllt hlle 01 11111....111.1;.1 'i""".,1 (,1'11" ',I:<!w', .1 d., p", '(II!".'d'l.tI., nrllpdFly ","IP", dl"" "I, ""lilt'", .dl"." '''I' "'I1'.llk',IJl'lolwl Judy Honn (OfCtce Mgr.) 'n Alt("l!~;~i 01 wtll!rt! !;l'rlll'd (( OFliph'l" ,Ii, ,j ,1,11"1",,' t, " Clly noro, rwp ~ilill.. .11111/." ('Id... /'" ",.... ,,"_,,1'"'1 "j,,,,tl'I, I ,,,1..1'" "I' ",'I' ""'.10",,,,1...., 'I" tI ." ""1".'1 or IU D, Ap;ulfFll'Fll NO) " (1,110" II ~ ~ " y ~ . ! , ' f" . " ^M I'M ",1 .11'" g,lme , I ^TTEMPTS I Dalf!' 4-4 '.1 AdVIlfll'I! Cnsb a3 1/6 I Mllp.~ nl!p tnl I Dilla II' 10 V3 18.00 M,I.,., i n"~ In' i 0..1" [ MIlo. ,I Oolp Int'l [.,.. N.d.i'/I."ft !,,/ Mlh~illlnOl~ 4.00 l.BO Oalc 4-4-96 ll;15 am I M,lo, IlloP lot I 0,,10 I M'lo. [ Dop, '0' I"" I"~'~(:'~'~' I:'" ~:~:';(~. ;e";~:~ ,", ~J"I II" " en',", 1/ J Ht M^fft<~; , ~J 4th 96 so ANSWER. il A' f IUMf n IInl1 !\llh~inltH"11 I"l h"/n/I' Ill" '''I', j.. .Inyof Apr 11 "1"'''lIl''! 111'1""",.11 Dane M. An t h6ny 111),lh, "I" ,',,'" .,1 ',lll'FlU if.notll! , ~':"~::?!..._- \I .~'lllu.ll,,,,'I.',,,,,, '~'"", d"" SHE iliFF OF FRANKLIN COUNTY lA" COMMISSION I xmu s 111 I ACI<liOWII llGI III Cf II'I (II 1111 SItE RIFF'S RE TURN SIGNATURE, 0' AlJf'K}fUlU)m~illINttAllTH(JflIIY AND rlflf --.. ----.----...----.. __ J~~~_~'~~::~:~'~____~_ ~C~tl. III'MI'1 . '" I,.,(J[:'( - , LAS~ UAY rUN S~HVIC~: In the Court ci C':mmO~i M1Y I. 1 'J'Jb , ;: "'-s cr' C"~"-""~l-"'...l,"'." '-""1 , -- ...,..-...... -,..... ........-...,' Panr:sy !'1cr:i:: /lobe t. t E:. De 11 .., t ,,1 'is. ~aglb Khallf", M.Q. ;:.ie. 96-1705 Civil .~ ---,. -.-- :iow. April 02 '996 T S._--:'''''''~~ O~ "~""":-:n ",..., CO'.....-v "'-' ,l __... ___.. _ .....~..,:)__^""'JJ ......,.....-...,....Q ::::-.J:y ci..-;u= t!:.= .ra.:;-:.s .,0; franklin C~u.;:::r :0 :.,,::":".:t.: ::is 'tV:!:., =.s ~u=:!cu . , . '::.:.:1.1' -"I.". u :::.ic. ~i :.::.e ?'~:_=. ~ =='~ . :':Q. r~~-~~ .s4e..-.,:! ct C==er..:u:ci C.nery, ?:1. .o\.Sdavit or Se::-vie= So 3.:SW::i. Sh.c:S .i c:...u"h. 5_:: uc! s:.:Qc:-:::':: beer: =::::.:s_ o!:syal COSTS s:c:J......,c::;: ~rn....::.>.G Z --'-::IDA',.. 3 .0 .-- ----- s r_.~ . LAC DAY f'OJl~ERVICE: 1:l.1Y 1 1~9t " I T ......... ""T .mm........ - "'_S. '"'T ..- ,,- '\Wl-n- ,.'.., '-""1 p.""r:'-"Vl\ _ . n ne """"'''' -. AI -... --... ..,..-.::..;. -,... ",-,,,,,"'w"',f .:.. ..." I...nl:: Robe~t E. Dell et al 'is. U~ology Associates of Chambe~sbu~~. P.C. :-10, 96-170'1 C Iv it ----. :?_- :'iow, Ap~ il 02 .~ 96 T S".:":',,:)T-:''::' OP "---(3-T ",..., CO......,-v ':I" ,: .~_.... ----.. _......,.... ..j~..._~,;.J tw.,.. ., ...--., _Q =~ c:..~= cl:.: S"~.3 oi f'~anklln Cwu:r:r :0 :..-::::-.::.: '::is ',V:!-.. . - =:.:s e...",?u:= =ek:1t -"'.:. :u == ~~ =ci ~ oi :.:: ?!.:tl:.:.:r. ~~ 1 ~J:~(' !i:le..-~ :t C:.::::::er~u CJ\Cty, :'3. Affida.vit Or Se:-vi~ 50~~.,. S=a' c/ c......rr. l:a. 3-.:~ :I:IC s:::.c-:c.e:i be:"= =: :.:..:s_"~YQi 19_ COSTS snVIQ: ~cru:.'.G?: ..I..::wA"v'" s ---- s t_ '-1 LAol UAk rU~ ti~HV1~~: I., 'ihE! Court cT C.::mmO;'i Robert E. Dell et al William Haren, 14~'O. ~I} k 1. ";1==:s l~~b . C I, ." or .,~ ..-.:.:"1....,... I -"'~"''1 ....,..-....... -".. ....,"-',.. I' ?snr:syl'/::r;i = 96-[705 ::-10. Civil :?_- ------, ~ow, Apr il 02 :9~ !. S:~~'F OF C0G::::?..!.)_'m co~;.r':'? .?..~ CQ =::-..ily .:.;:u= S:-= S'c.::'S ci Franklin C",u.::r :0 ::::::-.:t:: =.is ',V:-i:, .. :!::s ~u=::.c: =:l:1i -.....:- u ~ ~ ::ct :.:~ \:Ii :.:: ?!~=. t'~~J'~ .s:ae..-~ ::'l C=er...:t:Q C.n:..::tr. :3. Affidavit or Se:-ne= So :J.::.tWe;. ~.I ~...u,..l'~ Swr::: =C! r.:~::.:-J ee:r::r: COST3 SZJ.v'1C ~m..z.'.GZ .~:rnA VIT s == ~'::s _ Q:r~l t!?_ --~-_. s 1-....... PRAECIPE FOR LISTING CASE rOR ARGUMENT (Mu.t be typewritten and .ubmitted in duplicate) TO THE PROTHONOTARY or CUMBERLAND COUNTY, Please list the within matter for the next Argument Court, CAPTION OF CASE: (entire caption must be stated in full) ROBERT E. BELL and GWEN E, DELL, his wife, No. 1705 Civi I ( , \ t.' ... ,,"'; .',! t1 ~ . , "-' , :l .,., . (', ,fd .. " 19...ll for new trial, vs. GORDON MYERS, M.D, NAGIB KHALIFA, M.D., UROLOGY ASSOCIATES OF CHAMBERS BURG , P,C., WtLLIAM HAREN, M,D., and WILLIAM MILROTH, M,D" (De f endant) (Plaintiff) vs. 1. State matter to be argued (i.e" plaintiff'a motion defendant'S demurrer to complaint, etc.): Preliminary Objections filed by Defendant William Milroth, M.D. Similar Preliminary Objections have been flied 011 behalf of Defendant, Gordon Myers, M.D., it may be that the Court would wish to hear argument at the same time. 2, Identify counsel who will argue case: la) for plaintiff: Robin J. Marzella, Esquire Address, Mahady Smith & Marzella 3115-A North Front Street HarriSburg, PA 17110 (bl for defendant, Gary T, Lathrop Address: Thomas, Thomas & Hafer 1'.0. Box 999 Harrisburg, PA 17108 3. t will notify all parties in writing within two days that this ca... been listed for at'gument, 4, Argument Court Date; December 11, 1996 ')" Dated: I, /'7,. \.J,'l.} ',ffi:1?/ Attorrley for ~efendant, William Milroth, M,D. PRAECIPE FOR LISTING CASE FOR ARGUMENT (Must be typewritten and subnittedin duplicate) TO THE PROTHONOTARY OF CUMBERLAND COUNTY: Please list the within matter far the next Argunent Court. ------------------------------------------------------------------------------..-------- CAPTION OF CASE (entire caption must be stated in full) ROBERT E. Dt:LL dnd GWEN E. Dt:t.l., his wife, (Plaintiff) l') ..0 :'I ~: ../ " :-.-, .'"(: h, I,"~ ," . , " ,;OJ , {I; '':,.J 1.11 " J , , ;,." . -'.1 .. ; :rl Jo ., J ~. 1.J ,-,,if" '') '.' ." ~. t:'1 ~ . j VB. GORDON MYERS, M.D., NAGIB KHALIPA, M.D., UROLOGY ASSOCIATES OP CHAMBERSBURG, P.C., WIr.I.IAM f1AREN, M. 0" dnd WIt,I.IAM MILRO'rfl, M.D., (Deferxiant) No. 170<; Civil 19 % 1. state matter to be argued (Le.. plaintiff's IRltion for new trial, defendant's den..trrer to cCJIl>laint, etc.): Motion to Dismi.ss [)cf~'nd,lnt. WILL Ldm 8. Hclnm, M.D. 2. Identify counsel who will argue case: (b) for defcn:lant: Address: Robin J. Mdrz(lLl,], Esqlli.r,~J ~ I) North F'ront Street H-lnisbucg, l'^ ['11LO C. Thomas MilLf)r, Esqui.re 1'.0. flax '109 f1-lnl"bu~g, P^ l'lL08--0'/09 JOGeph P. HaEer, f:squire P.O. Box 9')<) f1dCt'isburg, PA 1'7108-0999 (a) for plaintLff: Address: Hqhurt ^. ~:Vdlt:;, f':squin. 1 )(1 r:d~lt K i nq St rent r.dnC'''~Jtl)r, PA l'/602-2Hc)] 3. 1 will notify ail parties in writing within tloIO days that this case has been listed for argunent. 4 . ArgI.ment Court 1la te: Sf~ptcmber 199'J D1ted: Wllll,lm :::I.@;~ ~OflEN' [M Attorney for Ndqln ~nrrl[d, PI.{)., Udren, M.D. and Uroloqy Associates ot Chdmbersburg, PC -' - J' "-rf ~fJfi ,. - r1fdt\Olt..) to t>1S....~ t""~t"3- n-.~.q.-,'.'n..,.~lfIII'IW' - ,I I'" ,,' :, j , : , . ,I ~ " ( I :""'4 -_.._-...... -.---.. ROBERT E. DELL and GWEN E. DELL, husband and wife, Plllintiffs IN THE COURT OF CO~~O~ PLEAS OF CUNBERLAND COUNTY, PENNSYLVANIA v. I I I I I I I CIVIL ACTIOI~ - LAII GORDON MYERS, M.D., NAGIB KHALIFA, M.D., UROLOGY ASSOCIATES OF CHAMBERSBURG, P.C., WILLIAM HAREN, M.D., and WILLIAM MILROTH, M.D., Defendants NO. 96-1705 CIVIL TERM IN RE: MOTION TO DISMISS DEFE~DANT WILLIAM E. HAREN. M.D.. PURSUAl~'r TO THE HEALTH CARE SERVICES ~~LPRACTICE ACT BEFORE HOFFER and OLER. JJ. ORDER OF COUR'l' AND NOW, this ~\Jday of Octobec, 1997, upon consldeJ:'ation of the Motlon To Dismiss Defendant \Hll lil1l\ E. Har,,,,, !oI. D., Purliluant: to the Health Care Services Halpractica Act, "nd of Plainti f ft!' Response thereto, and following oral arCJulilclnt. hclld on October 1, 1997, the motion to dismiss is DE~IBD. BY TaE COUR'l', J Robin J. ~Iarzella, Esq. 35 North Front Street Harrisburg, PA 17110 Attorney for Plaintiffs ,- " . .,~j ") " , , 'q I " , G. Thomas Miller, Esq. P.O. Box 709 Harrisburg, FA 17108-0709 Attorney for Defendant Gordon Myers c.....~.~ ,m,-",..L.A, /" /. J ~ '1. ~J ...l V ..1 r;-. ~1I " II, ISSUE PRESENTED WHETHER DEFENDANT HAREN'S MOTION TO DISMISS THIS ACTION PURSUANT TO THE HEALTH CARE SERVICES MALPRACTICE SHOULD BE DENIED'! Suggested answer ill the affirmative. III. DISCUSSION Although he Health Care ServIces Malpractice A~t, 40 P,S, Seetion 1301.103, et seq provides for the dismissal <Jf a defendant upon the tiling uf an Mtidavit <Jf :-Juninvolvement, an amdavit ,tatlng that the defendam's Invulvement was unly limited, is nut suftkient for purpose, uf disllllssal. The plalll meaning ,)f the tt~rm "n'H1involvement" requires that the named defendant have nu involvement whatsoever in the care rendered to the patient or the performance uf the surgical procedure, By hIS own admission, Dr. Haren was ill fa~t IIlvulved in the sampling llf the lymph nodes which is part of the surgical procedure whi~h Plaintiffs have alleged were performed negligently causing his injury Until such time as diswvery is cuncluded. specltkally, the depositions of Dr. Khalitil alld Dr. Haren, any decisiuns regarding the dismissal of Dr, Haren as a defendant would be premature, Accordingly, Dr, Haren sh<Juld not be dismissed from this action, '! ,d IV. CONCLUSION Based upon lhe foregoing, including Dr. Haren's own admission of involvement in his Affidavit, Defendant's Motion to DishJiss. should be denied. R,], MARZELLA. ESQUIRE & ASSOCIATES, P.C, 'I,! MAEllJl7J1110lMJll'17 II. ISSUE. WHETHER DEFENDANT WILLIAM E, HAREN. M.D, SHOULD BE DISMISSED FROM THIS CASE PURSUANT TO THE HEALTH CARE SERVICES MALPRACTICE ACT'I Suggested Answer; Yes. III, D1SCUSSIRt{, The Health Care Servkes Malpractice Act, 40 P.S, * 1301.\03 et seq. provides for lhe dismissal of a defendant upon lhe filing of an affidavit of non-involvement. Specifically, 40 P,S. ~1301.827-A ("*827-A") stales: "Any health care provider named as a defendant in a medical malpractice action may cause the action against thaI provider to be dismissed upon the filing of an aftidavit of non-involvemcnt with thc court." Pursuant co *827-A, Defendant William E, Haren, M, D. has executed an affidavit of nun-involvemcnt, detailing the extelll of his care and treatment of Plaillliff in the above.captioned matter. :\ true and correct copy of the affidavit of non-involvemelll of Willian' E, Haren, M. D. is attached to Moving Defendant's MOlion to Dismiss as Exhibit A. Plaillliff's complaint alleges that Dr, Haren performed a prostatectomy in a negligent mar..ner upon Plaillliff, resulting in both incontinencc and impotencc, and also that Dr, Haren f,liled to obtain Plaintiff's informed consent for the surgery, Dr, Haren apparelllly was named as a defendant in Plaintiff's Complaint mercly because his name was listed on the operalive report as the assistalll surgeon for Plaillliff's prostatectomy, However, as delailed in Dr. Haren's affidavit of non.involvemelll, Dr. Haren's only role in the surgery was unrelated to lhe performance uf the prostatectomy. Rather. he 2 IlAElll17ll,IIUl1497 CERTIFICATE OF SER-VICE I HEREBY CERTIFY that a true and correct eopy of the foregoing Brief in Support of Motion to Dismiss Defendant William E, Haren, M.D. Pursuant to the Health Care -{ Services Malpraclice Act has been served this l~ day of August, 1997, by first class mail, postage prepaid, upon: Robin J. Marzella, Esquire RJ, Marzella, Esquire & Associates, P,C, 35 North Front Street Harrisburg,l'A 17110 G. Thomas Miller, Esquire Miller and Miller P. 0, BOl( 709 Harrisburg, PA 17108-0709 Joseph p, Hafer, Esquire Thomas, Thomas & Hafer p, 0, BOl( 999 Harrisburg, PA 17108-0999 BARLEY, SNYDER, SENFT & COHEN, LLP By: (/PO. ~-.,. Katherine B. Kravitz Robert A. Evarts Attorneys for Defendants 126 East King Street Lancaster. PA 17602-2893 (717) 299-5201 Court I.D, No. 59263 Court I.D, No. 75767 3. The crux of Plaintiffs' Complaint Jgalnst Dr, Haren is that a prostatectomy was performed In a negligent manner, resulting In both Incontinence and impotence, and also that Dr. Haren failed to obtain Plaintiff's informed consent for this surgery, 4. It Is believed, and therefore averred, that the only reason Dr, Haren was named as a defendant In this matter was because his name was on the operative report as the assistant surgeon, 5, However, Dr, Haren's only role as assistant surgeon was dissection of lymph nodes on the left side of the pelvis, He was not involved in the performance of the actual prostatectomy, See Exhibit "A." 6, Rather, it is undisputed that the prostiltectomy WilS performed by Dr. Khillifil and that Dr. Khillifa had sole responsibility for obtaining informed consent prior to the su rgery. 7, Accordingly, pursuant to 91l27.A, Dr, Hilren should be dismissed from this action and his name removed from the cilption, WHEREFORE, Defend,lnt William E, Haren, M.D" respectfully requests that this Honorable Court dismiss Counts IV and VII ilnd those portions of Counts V and VIII referring to Dr, Haren of Plaintiffs' Complaint and remove the name of William E. Haren, 2 ... M,O. from the caption of Plaintiffs' Complaint pursuanlto S827.A of the Health Care Services Malpractice Act, Respectfully submitted... Dated:J ..I".~l- BARLEY, SNYDER~T & COHEN, UP By: ~ ,J::;r;;:, " Katherine B, Kravitz Robert A, Evarts Attorneys for Defendants 126 East King Street Lancaster, PA 17602.2893 (717) 299-5201 Court I.D, No, 59263 Court I.D, No, 75767 " , ' 'i , " 11. I performed this procedure in order to eliminate the need for Or. Khalifa, the surgeon, to switch sides of the patient twice during the procedure. 12. There is no claim in this case that the left-sided pelvic lymph node dissection affected Mr. Dell's potency or continence, which are the main complaints of Mr. Dell, and in fact, it did not. 13, I was also involved in the patient's care subsequent to his prostatectomy, but no claim has been raised by Mr, Dell with regard to this aspect of his care. 14. As stated in his response to Plaintiffs' complaint, Or. Khalifa, as the surgeon on this case, had a duty to obtain the patient's informed consent. 15. I had no duty, under the facts or the law, to obtain Mr. Dell's informed consent for the surgery performed by Or. Khalifa. See, Shaw v, Kirschbaum, 439 Pa, Super. 24, 653 A,2d 12 (1994) (holding that only the surgeon actually perfot'ming the surgery has a duty to discuss with the patient the medically established risks associated with the surgery) . 16, The nerves which affect potency and continence are not located near or around the left sided pelvic lymph node. 17. I did not provide, and was not obligated to provide, the care and treatment which is challenged in this case. 2 ......, , - 'f.P ,'i,~'~)l- ." ,j...~'1i" T:r;J," ~ ; - .. - f"INt4L - - O,,/J/O/u "-'...~.,.~-"""""''''''-'''-'''''''' ,',1\ - ; i , , III - ~ft..t('llMli4J ~ ct t>1Jf(;I~ ,',', - " " ---~..._-- KBK/PLOO/292284,L/LOL596 negligence in connection with Plaintiff's care and treatment of Mr. Dell's prostate cancer subsequent to the diagnosis. 5, Count III of Plaintiffs' Complaint alleges negligence against Dr. Khalifa, 6, Count IV of Plaintiffs' complaint alleges negligence against Dr. Haren, 7. Count V of Plaintiffs' Complaint alleges negligence based on an agency theory against Urology Associates of Chambersburg, P.C. 8. Count VI of Plaintiffs' Complaint alleges a lack of informed consent against Dr, Khalifa in connection with the radical retropubic prostatectomy and pelvic lymph node frozen section biopsy performed upon Mr, Dell by Dr. Khalifa on November 30, 1994. 9. Count VIr of Plaintiffs' Complaint alleges a lack of informed consent against Dr, Haren in connection with the radical retropubic prostatectomy and pelvic lymph node frozen section biopsy performed upon Mr. Dell by Dr. Khalifa on November 30, 1994. 10. Prior to the filing of these Preliminary Objections, counsel for Moving Defendants contacted Plaintiffs' counsel in an attempt to resolve the points of contention. 2 KBK/PLDG/292284,l/101596 11. Plaintiffs' counsel granted counsel for Moving Defendants an extension for the filing of Preliminary Objections pending these negotiations. 12, Thereafter, Plaintiffs' counsel directej counsel for Moving Defendants to go ahead and file Preliminary Objections, as it did not look like a resolution was immediately forthcoming. 13. Accordingly, due to defects and deficiencies in Plaintiffs' Complaint, Moving Defendants hereby file the following preliminary objections: I, DEMURRER TO PLAINTIFFS' CLAIM FOR PUNITIVE DAMAGES 14. Paragraphs 1 through 13 are incorporated herein by reference. 15, In Paragraph 103 of the Complaint, Plaintiff makes the unsupported allegation that Moving Defendants operated on Mr. Dell without his informed consent and wi th "reckless disregard in [sic] complete indif ference" to his welfare. 16. In Paragraphs 104 t.hrough 109 and 111, Plaintiffs again make blanket accusations of "negligence, gross negligence and reckless indifference" on the part of Moving Defendants, 17. In Count III, paragraphs 119 and 120, Plaintiffs again make unsupported allegations of "negligence. gross negligence and reckless indifference" against Dr, Khalifa. 3 KBK/PLDG/2922B4.1/101596 18. In Count IV, paragraphs 122 and 123, Plaintiffs make similar allegations of "negligence, gross negligence and reckless indifference" against Dr, Haren. 19. In Count V, par.agraphs 126 and 127, Plaintiffs make similar allegations against Defendant Urology Associates of Chambersburg, P.C, 20. It is believed and therefDre averred that the above-referenced allegations are intended to plead a claim for punitive damages. 21. However, Plaintiffs' Complaint is devoid of any allegations which, if true, would Hupport a claim for punitive damages under Pennsylvania law, 22, The above-referenced allegations constitute nothing more than isolated use of punitive damages "buzz words" which do not, as a matter of law, sufficiently set forth a claim in support of punitive damages. 23. Moreover, allegations of lack of informed consent, as pled in Counts VI and VII of Plaintiffs' Complaint are, by definition, allegations of conduct without harmful intent which also cannot support a claim for punitive damages. 24. Accordingly, Plaintiffs' claim for punitive damages should be dismissed with prejudice, WHEREFORE, Defendants Nagib Khalifa, M.D" William Haren, M,D. and Urology Associates of Chambersburg, P.C, respectfully 4 KBK/PLDO/2922B4,l/101596 demur to Plaintiffs' claim for punitive damages and ask that this Court strike the same with prejudice, II. MQTION FOR A CHANGE OF VENUE 25, Paragraphs 1 through 24 are incorporated herein by reference, 26. Plaintiffs allege in their Complaint that they, themselves, reside in Franklin County, Pennsylvania. 27, Similarly, as alleged in Plaintiffs' Complaint, Moving Defendants Khalifa and Haren are both engaged in the practice of urology in Franklin County, Pennsylvania, where the offices of Defendant Urology Associates of Chambersburg, r,c, are located, 28, Plaintiffs have brouCJht this action in Cumberland County, although the only ties this case has to cumberland County are Plaintiff Robert E, Dell's two visits to Defendant Myers, who was at the time engaged in the practice of family medicine in Cumberland County. 29. Furthermore, Franklin County is the more convenient forum for the majority of the parties, including Plaintiffs. 30. In light of the foregoing, it is believed that Franklin County is the appropriate venue for this case, and that the Court should accordingly order a transfer of venue, WHEREFORE, Defendants Nagib Khalifa, M.D" William Haren, M.D. and Urology Associates of Chambersburg, P,C, respectfully 5 KBK/PLDG/2922B4.1/101596 ". request this Court to grant their motion for change of venue and transfer this case to the Flanklin County Court of Cornman Pleas. III. MOTION TO S'rRIKE PURSUANT TO Pa, R.C.P, 1028 31, Paragraphs 1 through 30 are incorporated herein by reference. 32. Pennsylvania Rule of Civil Procedure 1019(a) requires that the material facts upon which a cause of action or defense is based shall be stated in a concise and summary form. The Pennsylvania Supreme Court has noted that allegations which fail to abide by this mandate are appropriately the subject of preliminary objection. See Connor v. Alleqhenv General Hospital, 501 Pa, 306, 461 A,2d 600 (1983), 33, Paragraph 119(a) through (d) and (f), as well as paragraph 122(a) through (d) and (f) of Plaintiffs' Complaint, fail to plead allegations of negligence against Doctors Khalifa and Haren with the requisite specificity, in violation of Rule 1019 (a) . 34. Paragraphs 119 (a) through (d) and paragraphs 122 (a) through (d) contain nothing more than conclusory statements that Doctors Khal ifa and Haren were negligent and caused injuries. 35. Paragraphs 119(f) and 122(f) allege, as did plaintiffs in the notorious Connor case, that Moving Defendants were 6 KBK/PLDG/292284.1/1Q1596 Chambersburg, P.C., other than Defendants Khalifa and Haren, who were allegedly negligent. - 44. It is well-established in Pennsylvania jurisprudence that Plaintiffs are required to specifically identify any agents, servants or employees of Defendant Urology Associates of Chambersburg, P.C., whom they allege are liable to Plaintiffs for injuries. 45. Moreover, in failing to do so, Plaintiffs are also again in violation of Rule l019(a). 46. Accordingly, Plaintiffs should be directed to file a more specific pleading which specifically identifies those individuals, if any, whom Plaintiffs claim were the agents, servants or employees of Defendant Urology Associates of Chambersburg, P.C., or be precluded from pursuing such claims baspd upon the conduct of anyone other than Defendants Khalifa and Haren (whom Plaintiffs do allege were the agents, apparent agents, servants and/or employees of Defendant Urology Associates of Chambersburg, P.C.). WHEREFORE, Defendants Nagib Khalifa, M.D., William Haren, M.D. and Urology Associates of Chambersburg, P.C. respectfully request that this Court grant their Preliminary Objections and direct Plaintiffs to file a more specific pleading or be precluded from pursuing any claims against Defendant Urology Associates of Chambersburg, P.C. based upon an agency or 9 KBK/PLDO/292284.1/101596 ...' employment relationship between the corporation and anyone other than Defendants Khalifa and/or Haren. COHEN, LLP By: James W. Saxton Katherine B. Kravit Attorneys for Defendants Nagib Khalifa, M.D., William Haren, M.D. and Urology Associates of Chambersburg, P.C. 126 East King Street Lancaster, PA 17602 -2893 (717) 299-5201 Court I.D. No. 36815 Court I.D. No. 59263 10 - THOMAS, THOMAS , HArlR BY. Q.~y T. Lathrop, .aquire IDINTI'IC~TION NO. 76582 305 No~th '~ont St~eet P.O. Box U9 Ha~riabur~, PA 17101-0999 Atto~neya for William Mil~oth, M.D., on. of the Defendanta ROBERT E. DELL and GWEN E. DELL, husband and wife, Plaintiffs IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PA v. CIVIL ACTION - LAW GORDON MYERS, M.D., "NAGIB KHALIFA, M.D., UROLOGY ASSOCIATES OF CHAMBERSBURG. P.C., WILLIAM HAREN, M.D., and WILLIAM MILROTH. M.D., Defendants NO. 96-1705 JURY TRIAL DEMANDED AND now this ORDER day of , 1996, it is hereby ORDERED and DECREED that Subparagraph 113(w) of Plaintiffs' Complaint be stricken. BY THE COURT J. , 5 At all relevant times herein. Defendanl William Haren. M D (hereinafter Defendant H.\Iren) was a physician licensed to practice medicine in the Commonwealth of Pennsylvania and was engaged in the practice of urology in Chambersburg, Fulton County. Pennsylvania. 6 At all relevant times herein. Defendant Urology AS30ciates of Chambers burg, PC (hereinafter Defendant Urology Associates) was a corporate medical institution with offices and facilities in Chambersburg, Franklin County, Pennsylvania 7. At all relevant times herein, Defendants Khalifa, Haren. all physicians, interns, residcnts. nurses and the me"dical statr were the agents, apparent agents servants and/or emplovees of Defendant L'rology Associates and acting within the scope of their employment when providing professional medical services to the Plaintilf 8 The Plaintitl: Robert E Dell, a gentleman in his earlv 'i()s was rcl.ltively healthy and active for his age. 9. However. Mr Dell had a family history of prostate disease/cancer 10 Periodically Mr Dell was examined, evaluated. and treated by Defendams Milroth and Myers II. Defendants Milroth and Myers knew or should have known of Mr Dell's family history and its significance with regards to Mr Dell's risk of developing prostate cancer 12 On or about 7/26/80, Mr Dell was examined by Defendant Myers 13. At the time, Defendam Myers purported to perform a complete physical exanunation including a digital rectal examination (DRE) with evaluation of Mr Dell's prostrate 14 Defendant Myers recorded that the results of the DRE and prostate exal11lT1ation were "Okay" 15. No laboratory studies or other diagnostic studies. including but not limited 10 a PSA. were recommended, ordered or performed by Defendam Myers 2 I b Defendant Myers did not document the presence of a hard. firm nodule on Mr. Uell's pn15liue Nor did he note any enlargement or other palpable abnormalities 17 Uefendant Myers advised Mr Dell that he was healthy and need not return for rl~peat phYSICal examination for two-year period I" In the tntervaltime period, Mr Dell was regularly evaluated by his family physl~lan. Dut'endllnt Milrolh I~) Mr Dell was examined by Delcmdant Milroth on or about 1217/89. 1/18/90, 1/2l>i'JO, 1/2190, 12/20/90 and 12/31/90 10 Never during any of those examinations did Defendant rvlilroth perform a DIU, .lr eVllluute Mr Dell's prostate gland in any fashion 21 Delendant Milrolh did not question Mr Dell about any urinary 1ymplllmuwlogy includin~ but not limited to urethral obstruction. dysuria. slow or lllihhhn~ urine stream, urmary retention. hem.lturia. pain, urethral discharge, etcetera. 2:! During that lime period Defendant Milroth did not recommend. order or peltonll any diagnostic sludies to evaluate lor the presence of proslate abnormalities 2J f\lthough Mr Dell WIlS in his early 50's with a family history of prostate disease. at no time during the aforementioned cxaminations did Defendant Milroth recommend, order or perform prostate specilic antigen studies (PSA) to evaluate Mr Dell li.lr prostate abnormalities or cancer 24 On or about July 10th. 1991. Mr Dell returned to Defendant Myers for a physical examination. 25 Again, Delendant Myers purported III have pertormed a complete physical e~anllnation on Mr Dell including a DRE and evalualion of his prostate gland 26 As his reported lindings, Defendant Myers documented the rectal and prostate e~anllnation as "Okay" 27 Delendant Myers did not document any palpable abnormalities or cnlargement lIt'Mr Dell's prostate J 28. Defendant Myers did not document a firm nodule palpable on Mr. Dell's prostate. 29 Again, Defendant Myers gave Mr Dell a clean bill of health. 30. On or about August 18th, 1991, tvlr Dell returned to Defendant Milroth for a physical eltamination. 31 At this time, Mr Dell had been treating with Defendant Milroth for at least nine years. 32. Still, Defendant Milroth did not pertorm a DRE for evaluation of Mr. Dell's prostate gland 33. At the time of this cxamination. Mr Dell was bcginning to gradually lose wcight 34 Mr Dell rcturned to Dcfcndant i\li\roth on or about :\lI!!U~t 26. 1991 and September S, 1991. 3S Atlhe time Mr Dell was complaining of back pain and Defendant Milroth prescribed Naprosyn and Flexcril. 36 However. Defendant Milroth still did not perform a thorough physical examination including a DRE or an examination of his prostate gland 37 Nor did Defendant Milroth question Mr Dell about urologic symptoms he might bc cxperiencing 38 Nor did Defendant Milroth recommcnd, order or pcrtorm other diagnostic studics including but notlimitcd to a PSA or urinalysis for cvaluatlon of prostate disease or prostate canccr 39 On or about 9/8/92, Mr Dell rcturncd to Defendant i\li\roth tor a rcpcat phYSical examination. -10 A~ on all previous cxammations, Defendant Milroth did not pertorm a DRE or any other cvaluation of Mr Dcll's prostate gland. 4 41. Nor Defendant Milroth recommend. order 01' perform additional diagnostic studies incl4,ding but not limited to a PSA to furthcr cvaluate Mr Dell for prostate disease or prostate cancer. 42. On or about June 30th. 1993, Mr Dell returned to Detendant Myers for a repcat physical examination. 43. As on all previous examinations, Dcfendant Myers purported to perform a complcte physical examination including a DRE and a prostate examination. 44. Again, Defendant Myers noted thc rcctal and prostate examination to be "Okay" 45. Delendant Myers did not documclll the presence of a lirm nodule or any palpable abnormalities including cnlargcmcnt of :>'Ir Dell's prostate 46. Nor did Detendant Mycrs rccommend. order or perform any additional diagnostic studies including but not limilcd to a PSA or urologic studics to furthcr evaluate Mr. Dell for prostate disease or prostatc cancer 47. As on all previous occasions. Dcfcndant Myers discharged Mr Dell with a c1can bill of health 48 On or about August 19th, 1993. Mr Dell returned to Delendant MilrOlh with complaints of drainage, coughing and sneezing 49. At the time, Dcfendant Milroth prescribed medication for Mr Dell's symptoms. 50. However, no physical examination was performed 51. No DRE or other physical examinauon of JI, Ir Dell's prostatc was performed by Dcfcndant Milroth 52. No di?gnoslic studics were recllnuTlcndcd. ordered or performed by Defendant Milroth to cvaluate Mr Dell for prostate discase or prostatc canccr 5 t' I 53 On or about 10/5/93 and 10/11/93. Mr Dell returned t<J Delcmdant Milroth with the sa"1c complaints Atthc time he was also complaining of being tired and lethargic and was experiencing continued weight loss 54 Defendant Mitrot" prescribed medications tor the symptoms Mr Dell was expenencing. 55 However. Defendant Milroth did not perlorrn a physical examination including a DIU: or other prostate examinations 56. Defendant Milroth did not question Mr Dell about any urinary symptomatology he was expcriencing 57. Although he was his family doctor for more than ten (10) ycars. Defendant Milroth still did not recommend, ordcr or perform any additional diagnostic studies including a PSA to further cvaluate Mr Dell for prostate discase or prostate cancer 58 At the time, i\lr Dcll was feeling under the weathcr and graduallv losing weight However. no diagnostic studics were recommendcd, ordercd or perf(lrmcd by Dclendant Milroth 59. On or about April 28, 1994, Mr Dell again returned to his family physician. Defendant Milroth for a physical examination. 60 At the time he was complaining of chills, sweating. stomach pain. vomiting, diarrhea. body aches. continued weight loss and fatiguc 61. During this otlice visit, again Defendant Milroth did nO! perform a complctc physical examination including a DRE or other physical evaluation of his prostate 62. As on all previous ollice visits, Defendant Milroth did not evaluate Mr Ddl lor thc prescnce or absencc of palpable abnormalities on his prostatc 03 Defendant Milroth prescribed medication tor Mr Dell's symptoms and tor the tirst lime in a twelve"year period ordered laboratory studies which included llllly a completc blood count and a livcr prolile. 6 64. However, he did not recommend, order or perform laboratory studies including a ~SA for evaluation of Mr Dcll tor prost ale disease or prostate cancer 65 Although he linished thc medicalion as prescribed, Mr Dell's symptoms continued 66 On or about 5/9/94, Mr Dell rcturned to his family physician. Defendant Milrolh with lhe samc complaints 67 Defcndant Milroth perlormcd a urinalysis which was abnormal 68. Thereal\er, for the tirst time in all lhe years thaI Delimdant MilrOlh treated Mr Dell as a patient hc ordered "SMA I:. a CBC with scdimentation rate. a CEA and a PSA 69 The PSA results wcre reported back as abnormal at 10 8 70. At no time prior to pert"Jrmance of the PS A. study in MayoI' 1994 did Detcndams Milrolh or Mycr~ question :\Ir Dell abour his family hlslllry of proslale diseasc 71 Delendants Milroth and :\Ivers kncw 'lr should have known thaI a positivc larmly pistory lor prostate disease incrcased Mr Dcll's risk of ullimately devcloping proslalc disease andlor canccr 72 After undergoing two urologic evaluations. Mr Dell was adviscd lhat hc had an enlarged prostate with a palpable linn nodule on lhe right side 73 If Dcfendant Milrolh and/or Mycrs had becn performing ORE's regularly and properly, these abnormalitics would have been diagnoscd earlier 74 Bccause Defendant 1\1iIroth and Myers did not perform DRE's regularly or proper Iv the diagnosis was delayed allowlJ\!! the canccr to grow and sprcad 75 A hiopsv performed Ul Seplemher of 1994 revealed adcnocarcinoma oflhe prostatc 76 Mr Dell sought treatment tilr his prl.lslate cancer Irom Defendants Khalifa, Haren and lIrology Associatcs 7 77. Defendants Khalifa, Uaren and the statl' of Urology Associates recommended that Mr Dell undergo a radical retropubic prostatectomy and pelvic lymph nodc frozen . section biopsy. 78. Defendants Khalifa. Uaren and thc agents. apparcnt agents, servants and/or employees of Urology Associates did not adequatcly explain thc potential risks, consequences and alternatives to the radical retropubic prostatectomy with pelvic lymph node frozen section for the treatment of prostate cancer. 7Q. Based on the information provided to him from Defendants Khalila. Haren and the agcnts, apparent agenrs: servants and/or employees ofl!rology Associates Mr Dell underwent the radical retropubic prostatectomy and pelvic lymph node frozen section at Chambcrsburg Hospital on or about 11130/94 80. Although ~lr Dcll was not an appropriate candidate. the aforemcntioned surgcry was performed by Delendants Khalifa and Harcn 81. The surgery performed by Delendants Khalila and Uaren on or abolll 11130/94 was performed negligently and improperly in that It resulted in impotencc and unnary incontinence 82. During thc alorementioned proccdure, Delendants Khalifa and Harcn negligently damaged the nerves which are located near thc prostatc gland which etrect an individual's continence and potencc 83. At the time of discharge, Mr Dell was using a Foley catheter and was prescnbed Ditripan lor the urinary leakage 84 SubsequemlO the original surgcry. Mr Dcll has undergone a number of surgcries to try to correct the incomincnce but all have becnunsuccessful 85 In addition. Mr Dcll has takcn various medications and employcd various I1Icchitnical devices in an attempt to prevent urinary Icakagc and cmbarrassment However, these attempts have also bcen unsuccessful 8 86. Moreover, Mr. Dell has been unable to engage in sexual intercourse with his wife since the original surgery in November of 1994 due to his impotence . 87 Defendants Khalifa and Haren ncver cxplained to Mr Dellthc alternative treatments available to him for prostate cancer 88 Defendants Khalifa and Haren minimizcd the risks associated with the aforementioned procedure when explaining it to Mr Dell 89 Defendants Khalifa and Haren never obtained Mr Dcll's informed consent to the radical retropubic prostatetecomy with pelvic lymph nodc frozen section biopsy 90. As a direct and proximate result of the negligence. gross negligence and rcckless i"difference of Delendants 1\liIroth and ~Ivers. the Plaintill Robert Dell, now sutlers Irom advance prostate cancer and ultimately underwent a radical retropubic prostatctectomy with pelvic lymph node lrozen section biopsy which ultimately rendercd him impotent and incontinent and a claim was made therelorc 9 \. As a direct and proximatc result of the negligence. gross negligence and reckless indifference of Defendants Milroth and ~lyers, the PlaintitYs cancer went undetected and was allowed to spread increasing his risk of mctastascs and decrcasing his overall chances of survival and a claim is made therefore 92. As a direct and proximate result of the negligencc. gross ne!!li~encc and reckless indifference of Delendants Milroth and ~lyers, thc Plaintilf. Robert Dell, was forced to incur liability for mcdical treatment, medicines. hospitalizations and similar misccllaneous expenses in an etfort to rcstorc himself to health and because ofthc nature of said mjuries. he has been adviscd and therefore avcrs that he will be forced to incur similar expenses in the luture and a claim is made therelore 9) As a direct and proximate result of the negligence. gross ncgligence and reckless indifference of ()elendants MilrlHh and Myers. the Plamtiff. Robcrt Doll, was forced to undergo the retropubic prostatectomv with pclvic lymph node Irozcn section bIOpsy rendering him Impotent and incontinent and a claim IS made therefore I) 94. As a direct and proximate result of the ncgligence. grllss negligence and reckless indifference of Defendants MilrOlh and Myers. the Plaintitl Robert Dell. has . sustained a loss of past and future earnings, a permancnt impairment of earning power, a permanent impairment of earnin!,; capacity, and hc may ultimately sustain a complcte cessation of earnings and a claim is made therefore. 9S As a direct and proximate result of the ncgligence. gross ncgligencc and rcckless indifference of Defendant Mill'Oth and Myers, the Plaintiff, Robert Dcll. will be forever impotent and incomincnt and a claim is madc therefore. 96 As a direct and"proximate result ofthc negligencc. gross negligence. and rccklcss indifference of Defendants Milroth and Mycrs. the Plaintitr Robert Dell. has been and in thl) future will bc subjcctto humiliation, cmbarrassment and distigurement and a claim is made therefore 97. As a dircct and proximatc result of thc ncgligence. gross ncgligence and rccklcss indifferencc of Dctimdants l\Iilroth and Myers. the Plaintitr Robcrt Dell. has undcrgone and will undcrgo in the tuture grcat mental and physical pain and suttering, great inconvenience in carrying out his daily activities. loss of life's plcasures and cnjoymcnt and has sustained an insult to his personal and sexual selt:csteem and a claim is made therefore 98. As a direct and proximate result of the ncgligencc. gross negligence and reckless indifference of Defendants Milroth and Myers, the Plaintitr Robert Dell, has a significantly increased risk of reoccurrcnce and/or sprcad of his canccr and is at an increased risk of dcath which would result in grcatly increased expenditures for treatment and a claim is made thcrcforc 99. As a direct and proximate result of the negligence. gross ncgligence and rccklc'ls indifference of Defendants Milroth and Myers. the Plainlitr Robert Dell. has a signitkantly increased risk of spread anulor rccurrcncc of his canccr and/or dcath and morbidity and a complete diminution of his earning capacity and a claim is made therefore 10 100 As a direct and proximate result of the negligence. gro~s negligence and recklcss indifference of Defendants Milroth and Myers. the Plaintitl: Robert Dell's cancer wcnt undetected forcing Plaintiffs to incur medical expenses and treatment which would not otllerwise have been necessary and a claim is made therefore 101. As of this date. Mr Dell remains at an extremely high risk of reoccurrence of his cancer and a signiticant reduction of his life span in comparison to what it would have been had the prostate cancer been diagnosed earlier 102. The Plaintiffs have bccn advised and therefore aver th31the atorementioned injuries are pcrmanent in nature and a claim is made thcrefore 103 The pertormancc of the retropubic prostatectomy with pelvic lymph node trozcn scction biopsy on Mr Dcll by Defcndants Khalifa. Haren and thc agents, apparent agents. scrvants and/or employccs of Urology Associates was done without his informed conscnt and with reckless disrcgarding clJmplcte indiflercnce to his wclfare and a "aim is madc thcrefore. 104 As a direct and proximate result lJr the negligence. gross ncgligence and recklcss indiffercnce of Defcndants Khalita. Haren, the agents. apparcnt agents. servants andlor employecs of Urology Associates. the Plaintitl Robert Dell. undcrwent an unnecessary retropubic prostatcctomy v.ith Ivmph node trozcn section biopsy and is now impotcnt and incontinent and a claim is made theretore 105 As a direct and proximate result of the negligcnce. gross negligence and recklcss indiflercnce of Defcndants Khalit:\. Haren, the agcnts. apparent agcnts. servants and/or employecs of Urology Associates. th,~ PlaintitT. Robert Dell. has been rendcrcd Imp0tent and incontinent and will rcmain ,0 tll[ the remainder of his lite and a claim is made therctore 106 As a direct and proximate result of the negligence. gross negligence and recklcss inditrercnce of Defendants Khalita. Haren, the agents. apparent agents. servants and/or cmployees of Urology Associales. the PlaintJll: Robert Dcll. was torccd to incur II liability for medical treatment, mcdicines, hospitalizations and similar misccllaneous e1\penscs in. an effort to rcstore himself '0 hcalth and becausc of the nature of said injurics. he has been advised and theretorc avers that hc will be forccd to incur similar expenses in the future and a claim is madc thcretore 107. As a dircct and proximalc rc~ul! of thc ncgligcncc, gross negligcnce and reckless indifference of Dcfendants Khalifa. Haren, andlor the agents, apparent agents. servants and/or employecs of Urology Asso~iatcs. the Plaintill Robert Dell, has sustained a loss of earnings. a loss of past and future carnings. a permancnt impairment of earning powcr and earning capacity and a claim is made therelore. 108. As a direct and proximatc rcsult of the negligencc. gross ncgligence and/or rcckless indifference of Defcndants Khalifa, Haren and the agents. apparent agcnts, servants and/or employees of l'rology Asso~iatcs. the I'laintil[ Robert Dell. has undergone and in the future will undcrgo great mcntal and phvslcal pain and sutl'ering. great inconvcnience in carrying out his daily activities. loss of life's pressurcs and cnjoyment and sustaincd insult to his personal and sexual sclt~csteem and a claim is made thcreforc. 109. As'! dircct and proximatc result of the ncgligcnce. gross negligence and recklcss of Defendants Khalifa and Haren, and the agents, apparcnt agents. scrvants and/or cmployces of Urology Associates. the Plaintit[ Robert Dell. has been and in thc future will be subJcctto humili:.tion. embarrassment and distigurcment and a claim is madc theretiJrc 110. Defendants Mycrs. Khalifa. Haren. Milrolh and Urology Associates are jointlv and severally liable to the Plaintitr lilr thc injuries and damages as set I'lrth hercm III. As a direct and proximatc rcsult of the negligence. gross negligence and recklcss indifference of D.:fendants [\lyers. Khalita. Haren. !\li1roth and Urology ,\ssociates, Robert Dell's wlfc, (jwen E Dell. has been and In the tillurc will bc tilrced to incur medical expenses relating to her husband's trcatmcnt and has also suffered a loss of 12 (h) tailing to recommend. order or pertorm PSA studies at any time prior to May of 1994, . (i) tailing to recommend. order or perform diagnosllc studies to funher evaluate Mr Dell lor pl'ostate diseasc or prostate cancer; (j) delaying the proper and timely diagnosis Mr Dell's prostate cancer, wl1ich led to the spread of this diseasc and his diminished chance of survival. (k) tailing to rccommend. order or perform regular digital rectal examinations, (I) tailing to.recommend. <lrder or pertorm regular hemocult studies, (m) failing to recommend. order or pertorm rcgular urinary studies to funher evaluate Mr. Dell. (n) failing 10 recommend or refer Mr Dell to a urologist or another physician for regular prostatc e~aminalions/evaluations, (0) tailing to recognize ~lr Dell'> wcightloss and fatigue as a potential sign of cancer: (p) tailing 10 palpate !\Ir Dell's enlarged prostatc and the lirm nodule present thereon at any time. (q) failing to question :VIr Dell about tamily history of prostate disease and/or cancer. (r) tailing to recognize Mr Dcll's lamily history as a risk tactor tor his development of prostate cancer. (s) failing to recognize :VIr Dcll's signs or symptoms as consistent with prostate disease or prostatc canccr and rccumrnending, ordcring or performing the diagnostic tcsting necessary to conlinn or rule out same, (t) lailing to rccoglllle and asses Mr Dell's symptoms and ordcring a diagnostic test ncccssary to rule Ollt prostate cancer as a source of his problems. 16 (11) performing the retropubic prostatectomy and pelvic lymph node frozen section on this patient: (b) negligently pcrtorming the radical retropubic prostatectomy and pelvic lymph node frozen section resulting in impotencc and incontinence; (c) negligently pcrtorming the retropubic prostetectomy and pelvic lymph node frozen section resulting in damage to thc nerves in the area of the prostate; (d) improperly pertorming the allJrementioned surgery in such a negligent fashion as to result in impotcnce and incontinence, (e) failing to employ ncrvc sparing techniqucs to diminish thc patient's chances of experiencing incontinence and impotence, and (t) performing this surgcry in an otherwisc ncgligent manncr under the circumstances 123. As a direct and proximatc result nf Defendant Harcn's negligence, gross negligence and reckless indill'erencc the Plaintill'> havc sustained injuries and damages as fonh in paragraphs 102 through 1)1 above which are incorporated herein by relerencc as if sct forth at length WHEREFORE. Plaintitrs Roben Dell and Gwen Dell, his wife demand judgment against Defendant William Haren. M D in an amollnt in excess of TWENTY. FIVE THOUSAND DOLLARS ($25.00000) exclusive ofintcrcsts and costs and in excess of any jUl isdictional amount rcquiring compulsory arbitration COUNT V R..Ql1m E Dell and vwmLDlill-vs Urolo!!):,Associates ofChambersbur3,. P C 124 Paragraphs I through III and Counts III, IV, VI. VII and VIII of this Complaint arc Incorporated hercin by reterence as if set tonh at length 19 (a) failing to obtain Mr Dell's informed consent to the proposed surgery; . (b) failing to intllrm !\Ir Dell tillly and properly as to the nature. extent al\d radical nature of thc proposed surgery, (c) failing 10 inform Mr Dcll as 10 the material risks, consequences and alternatives to thc proposed surgery; (d) failing to int,>rm Mr Dcll as to thc alternative thcrapics. both surgical and non"surgical. available to him tor trcatmcnt of his prostate cancer, (e) failill!! 10 inform i\1r Dell of the potential consequenccs ofthc proposcd surgery including lhe possibililV of impotence and incontinence, (t) failing to disclose to Mr Dell the risks thaI were associated with the proposed surgcry, (g) failing to disclose to:'vlr Dell all information matcriallO lhe dccision to undergo the proposed surgcry. (h) failing to disclose to:'vlr Dell the risks, consequences and alternatives to the rccommended trcatment material to the decision whcther or nOl to undergo this surgery, (i) minimizing the material risks and consequcnces associated with the proposed surgery; (j) providing incorrect and inaccuratc information to Mr Dcll regarding the proposed proccdure which intormation was crucial to Mr Dell's decision to undcrgo [he atorementioned surgcry; (k) purposely and krllminglv pcrtimning thc surgery on Mr Dell without his inl,>rmed consem and in the abscnce of a medical cmcrgency, (I) realizing that thc proposed surgery pertormed on Mr. Dell was without his informed consem and in the absence of a mcdical emergency would result in offensive contact with !\lr Dell. and 21 (e) tailing to int(lrm Mr Dell uf the putential conscquences llf the proposed surgery including the pussibilitv of imputence and incontinence. (I) lailing to disclose to i\lr Dell the risks that were associated with the proposed surgcry, (g) lailing tu discluse tu I>lr Dell all inlormation material to the decision to undergo the proposed surgery, (h) failing to disclose to ~Ir Dell the risks. consequences and alternatives to the recommended treatment material to the decision whcther or not to undergo this surgery, (i) minimizing the material risb and consequences associated with the proposed surgery. (j) providing incorrect and inaccurate inllmllallon to MI. Dell regarding the proposed procedure 1IIIIdl intll[matiun was cnlcialto Mr Dell's decision to undcrgu the aforemenlloned surgery, (k) purposely and knOWingly per!llrfTling the surgery on Mr. Dell without his informed conscnt and in the absence of a medical emergency, (I) rcalizing that the proposcd surgery performed on Mr. Dcll was without his informcd conscnt and in the absence of a medical emergency would result in offensive contact with Mr Dell. and (m) causing permanent and substantial injUry 10 Mr Dell as a result of the non-consentual surgery 133. As a result of the undisdosed and mismtllrfllation. Mr. Dell sustained inJurics and damagcs as set !lmh in paragraphs 102 through III above which arc incorpurated hcrein by reference as if set lllrlh at length WHEREFORE. Plamtitl's Robert Dell and (iwen Dell demand judgment against Defendant William Haren 1'\'1 D in an amount In cxcess ufTWENTY-FlVE THOUSAND ~J CERTIFICATf; OF SERVICE I hereby certify that a true copy of the within Defendant Gordon Myers, M,D.'s Preliminary Objections to Plaintiffs' Complaint was this date served upon those persons listed below, by United States first class mail, postage prepaid, addressed as follows: Robin J. Marzella, Esquire Mahady-Smith & Marzella 3115-A North Front Street Harrisburg, PA 17110 James W, Saxton, Esquire Barley, Snyder. Senft & Cohen 126 East King Street Lancaster, PA 17602 I Joseph II. Hafer. Esquire Thomas, Thomas & lIafer 305 North Front Street Harrisburg, PA 17101 If{;( Ttiomas R. Miller Date: September 27, 1996 , ; " ROBERT E. DELL AND GWEN E. DELL, HIS WIFE, PI.AINTIFFS IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION.LAW V, GORDON MYERS, M.D., NAGIB KHALlFA, M.D., UROLOGY ASSOCIATES OF CHAMBERSBURG, P.C., WILLIAM HAREN, M.D, AND WILLIAM MILROTH, M.D., DEFENDANTS 96-1705 CIVIL TERM BEFORE BAYLEY, J, AND HESS, 4., ORDER OF COURT AND NOW, this 12th day 01 December, 1996, IT IS ORDERED: (1) The preliminary objection of delondant William Milroth, M.D. to strike paragraph 113W of plaintiffs' complaint, IS GRANTED. (2) The preliminary objection of defendant Gordon Myers, M.D. to strike paragraph 116W of plaintiffs' complaint, IS GRANTED, All other preliminary objections of this defendant, ARE DISMISSED, (3) The preliminary objection of defendants Nagib Khalifa, M.D., William Haren, M.D. and Urology Associates of Chambersburg, P.C. to strike paragraphs 119F and 122F of plaintiffs' complaint, IS GRANTED, All other preliminary objection$ of these defendants, ARE DISMISSED, ;' By the CoU:'J Edgar B, Bayley, J, .I Robin J, Marzella, Esquire For Plaintiffs Robert A. Evarts, Esquire For Naglb Khalifa, M,D., William Haren, M,D, ahd Urology Associates of Chambersburg, P,C, Thomas R. Miller, Esquire For Gordon Myers, M,D. Gary T. Lathrop, Esquire For WIlliam Mllroth, M.D. :saa eoF'" """o...L",.\. 1..1./' ~J"", -./:, f', , , , , " , , " ." , fj\ '.l I. tl ; ./; fl : 'I i~' I' 'i' . " ~;' I I" ,1-, ['y- 'II. 1_' \j : i !:"ii ~i\;L -; ~h I ri .' ..J. , " , i , ,I , I i i i.'j"i .,,). " '. , I i ~ t . ~ r? ~ f ~ I " , 'I I' i,.., 8. Admilled. 9. Adrnilled. 10. Denied. Plaintiff sought and receivcd from Defendllnt Myers mediclll lIdvice and treatment. Specifically, PlaintilI suhmilled to the aforementioned physical eltarnination to ensure his health and well-being. II. Denied as slated. Although it is admilled that Defendant Myers nevcr diagnosed or treated Plaintiff for any ailment or l:ondition discovered during the l:ourse of these cltaminations. it is denicd that Plaintiff never requested trelltmem from Defendant Myers for any ailment or condition. Spccilically, Plaintiff suhmilled to thc aforemcntioned physical eltaminations [0 ensure his health and well-heing. In Sl) doing, Plaintiff expel:tcd to he advised of any medical problems or wmJitions disl:overed during the wurse of those examinations. 11. Denied as stated Defendant Myers did, in fa,t. !live the Plaintiff a "clean ~ill of health". 13. Denied. The Complaint with its numerous paragraphs and subparagraphs specilically outline.s the harm caused to the I'laimiff hy Del~ndanl Myers' negligent wnducl. 14. Admilled in part. Although it is admitted that Plaintiff was never provided. nor did hc request. ,opies of the wrillen physical examination reports. it is dcnied that Plaintiff was never adviscd of the results of those physical eltaminations. Specitically, Defendant Myers .ldvised the Plaintiff that he was healthy and capable of continuing in his empl('yment as a truck driver 15. Denied. Plaintiff's position as an employee of Roadway hpress, Inc. created the employment relationship between he and Defendant Myers 16. Denied. There was in fact a physician.patient relationship betwecn Plaintiff and Defendant Myers and therefore he owed a duty [0 ust: reasonablc cart: in the cvaluation, trelltment and diagnosis of the Plaintiff's condition. employcr, Roadway, to submit himsclf for medical examination every two years, to dctermine his physical qualifications to operatc a tractor-trailer. 5, During the years 1989 through 1993, thc llforcmentioncd Dcpartment of Transportation cxaminations (hereinafler "DOT exmninations") were being performcd for Roadway by Dr. Myers. Acting in his capacity as Roadway's "Company Dr.", Dr. Myers examined Plaintiff on July 7.6, 1989. July 10, 1991 llnd Junc 30, 1993. 6. The only contact Plaintiff has ever had with Defcndant Myers WllS during the course of these thrce employment physicllls. 7. Plllintiff consented to lhese DOT eXllIllinations llS II condition of his employmcnt llnd further rclellsed and llssigned llll rights and interests thllt he might subseljuently llcljllire in the reports preparcd purslllllH to these eXllminations to Roadway, and rurthcr waived his right 10 be advised of the content of the reports or to receive copies thereof. (See p. 4. ~13 of Plailllitrs July 8. 1985 application /l)r employment to Roadway Express, Inc.. attached hereto as ExhiIJit "A"). 8. Plaintiff never obtained written conscnt to be advised of the content of the examination reports or to receive copies of thcse rcports. 9. Each of the three DOT eXllminations of Plaintiff conducted by Dr. Myers were schcduled. coordinated and paid for by ROlldway. (See Roadway Express Mcdical Authorizations for cxaminations of 7/26/89, 7/10191 llnd 6/30/93. attllched hereto as Exhibit "B", Defendant Myers' Requcsts fll[ AdmiSSIOns to Plllintirf. Nos. II and 9 llS ExhiIJit "e'" and Plllintiff"s Answers to Reljuests for Admissions of Dr. Myers, Nos. 8 llnd 9. attached hereto llS Exhibit "D"). I O. Plaintiff has never sought nor receivcd medical lldvice or treatment from Dr. Myers. 2 II. Dr. Myers has never diagnosed or treated Plainliff for any ailment or condition discovered during the course of these threc DOT examinations, nor has Plaintiff at any time ever requested treatment from Dr. Myers for any ailmcnt or condition. 12. Dr. Myers has never given Plaintiff any mcdicaladvice, prescribed medications or requested that Plaintiff return to sce him for follow-up treatment or care of any ailment or condition. 13. There is no allegation nor is therc any evidence that Dr. Myers harmed Plaintiff in any way during the course of these three examinations. 14. Plaintiff was never provided with a copy of the DOT examination reports which werc prepared by Dr. Mycrs at the time of or immediately following thc examinations. nor did Plaintiff evcr rcquest a copy of same fmm Dr. Myers. 15. Because Plaintiff did not contributc to any part of thc cost of the DOl examinations conductcd by Dr. Myers, he therefore did not employ him. 16. As a result, no physician-patient relationship was created bctwecn Plaintiff and Dr. Mycrs and no duty was owed to Plaintiff by Dr. Mycrs to discover or diagnose a canccrous nodule on Plaintiffs prostate which allegedly existcd at the timc of these threc cxaminations. 17. 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COMM[RCIAlMOTQR V[HICLl OP(RATOR" I,.IC(N5[5 ON PIRMITS __,....-_::-_ P", . Co~m . 1.IC[NS( NO STATI DAT( ISSU[O OAT( [)CP.RB TVPE OOlolblu.le \1 T,,,,elo n_.... ..,...-- ~'ml ll.n'l --"- v ~F J,.. t'(..- i _ '" l'i p~ I'" 8'7.. I<;~ "- -- '...11",11'1 ----- 00' '1,lllt ----..-_..- Q,,,,, ------ (CONTINUE ON UPARATI SHEIT,.' NECESSARV.1 HAVE vOV ~ HAO [ITM(M YOUR P[NSONAL. OR COMMERCIAL. MOTOR V[HICL[ OPlRATOR'S ....~(NH PIAM'T OR PRI....'L.IGI OINI(O, A[\lO"-(O OR SUSPENDED' ....'.. e....... .............1 TYPE 0'" LI(INil DATI STATI 'OR MOW LONO c;J Vu.-/\ ., VES Q.-f'fQ 1/ COMPI,.[T[ B[I"Ow N(A\l,)N I HAVE vQU BEEN CONVICTED OR 'OR'[ITEO BONO OR COLLATERAL 'O~ VIOLATION OF MOTOA VEHICLE LAWS OR OADINANCES 10TH[R THAN PARtolilNGI OURING "'t[ PAST PQ R I,!.!. V[ARIj ~~O"'" 'HE DAT[ 0' U-.I!I APPLICATION' ~ ~~ IF vES, LI~T THO\[ V'Ou~' IONS BlLOw ._~~ I'l_~ ~_!..v___.__l!O' ~ ~_M '.___._.,. _ M___'___~__ [ _._U:~'~~ NATUR( OF VIOLATION !lTATE ___'_.n_ --.--------"--- I I ---..----1---- t" -- '- ----.,-. f I ._---.---------...-- ...o.V( "YOU HAD ANY ~ ~I\ LI!lT BELOWAJ..'-ACCIO[NTS YOU HAVE HAQ WI>uLE OP[RATlf'.lG ,_ _ _ ~92~~~["'ICL( p:CCIOENTS' ~O_-V~_ /lNY TVI": 0' MOTOR VEHtCl[ OU~W~C T~~E P.o.!.T 'IV[ I~t "Y[AR~l-.!'~~! T....P[ _~2.!.__ "ATUR' O' ACCI~'''T ..0 O'ATH' ~"'-'-"-'.l!.,~" TVP' V['~'C" -"{;;"t;;;~- .~~ ..~"'- -r I I i -t ~- -i INDICATE AN.... AWAAO\ VOU HAV[ A(C(IV[O ,"'OR SA'E DRIVING ANO "'ROM WHOM n ~,'-J? OAT [ 0' LA!!T OOT IS.. p7', P".V!!ICAl, /' ~ f 3 ~ 010 you ~[!1 r\ QUALI'Y' 0 NO II DOCTOA'S NAM[ AND ADOAIS!! W, II,..~ r'h.lf.l't... I;-he(', / 1,1,.. P-1 (l PuR!lUANT TO THI "~OVISION$ 0' PAAACJtAP~i 1011101 0' SleTION )91 2l 0' TH[ 'IO[RAL MOTOA CAFn\'IR SA'IT'f R[GULATIONS vOU ARI HIR(IN NOTI'I(O THAT IF YOU AR[ TO HI eQNSIO[R[O 'OR (MPLO"M[Nl DY AOAOWA'f [)lPRESS, t/'le TH(IN'ORMATION WHIC... "YOU HA'II PRQVIO(Q IN A(COROANe[ WITH THIS PAAAGRAPH MAY 8( uno, AND "OUA PRIOR EMPi.OY(RS MA"Y BI CON TACTlO, 'OR THI PUA"OU 0' INV(STIGATING "YOuR BACKGROUND AS R[QUI"[O BV SleTtON J91,U -+-+-+-+-+ _If) J/. 7- )? 7QJ..fl ORt\lIR APPLICANT SIGNATUR( .j-i"f \.~_ OAT'. \11 Appl".nu Cot'tllt'tl,t' To P'\I' , iv h ' ! I / 11/ i , (! ., J ~.,. oJ or 4 lQUIPM(NT (lCP(RI(NC , VIARS lQuIPM[NT []vut\ oNO V T~AINING V[ . V.'GA' ~V"'O'E'E'- ()(P(RIt:NCE V[A~ 'OR ClARAClIA"LICANTI ONLY: HAVI YOU HAD 8 NVOIS ~ NO AUTO SHOIt (lCPIAIINCE' TRAINING V[AR 0" VIARS. HAVE VOU HAD T RUC~ 5~mp IlCP[RI[NCU AI, e,.k.. 5oHf)W VOUR AR'::A OJ' SP[CIALllATION tlEL.Ow r-, "A ,,,... G~'C!<Pi::~~l~~ r-; Vf,AH!) .!.. .yt:~~ O.)'.,.I)'I.n. WIIO" _ __ I [QUIPMENT WOOCJ....O'.ln' 5""1 M.III (I"""" A.tl~lIdln, 01"'''''11'1 A.tl T"",,,,lnlo,, R.D .oo~ Wo,. III(. , I,nltlon r."I"'I' R'O",,1l0ln, Olll.II"I"lIon 111(1,1, WllcJ" P"nl S.Q"~'~fI Olrl"1 TO II "EAD AND SIGNED BY ALL A"LICANTI: If IS AQRIID AND UNDERSTOOD THAT THIS APPLICATION WILL REMAIN ACTIVE FOR A PERIOD OF TWO (2) MONTHS FROM THE DATE OF APPLICATION. COMPLlllNQ THIS A'PUCATION WILL IN NO WAy A$5UIIl( THAT I WILL IIIMPLOYlO THII APPUCAnON WAS CQwpu;no IY Mil, A\..L INTRIU ON IT AND IN'ORMATION IN IT ARI H~UI ANO COhlPLlTl TO THE BUT 0' ~l KNOWLIOlJl M,D ANY WllS~"'Il(UNTATION' 0' IN'ORMATION QIVIN SHALL 81 CONlSlOERID AI AN ACT 0' DUSHONE5TY SU8JECn....o MI TO DI~OUALIl'ICATIO.... Ol'l DI$CHARQI IWILL 'URNIISH 'RilLY aUCH IN'ORMATlON OR OQGUMINTST"'AT MAY Bi REQUIIUO TOCOMPLETE M' llolPLO'MINT 'ILl IN CONlSIDI~fIO'" 0' ...Y IIINO CONI510(AIO 'OR IMPLOYMINf ANO/OR BEI,..o, (MPLOvID IH(RUV AOAEE TO lUBMIT TO PHl51CAL nAMINATIONS AND TISTS A$ MAY II FlIOUIRED.Y THI COMPA,..Y, A,..O I 00 HIREB' PI GRANT RH(ASE AND AS510.... UNTO ROAOWA.' HPAf55 INe ALL RIGHI TIr ~E AND INURESf THAT I "'AV SU8510UENTL Y ACQUIRE IN ALL REC"Roe AND REPORfS ARISINQ OUT OF OR IN CONN(CTlO.... ....ITH $AIO E.AAMIN...TlON5 A,..,:; TUTlS .......0 121 ~...IVI ALL RIGHTS fa BE ADVISED 0' THI CONTENT Ofl SAID RECORDS ANO RlPORTS OR TO RECIIVI COPIES THEAEOF. ABSENT PRIU!i, WRITTIN CONSENT 0' ROADWAY [)tPRE55,I"'C . IflIMPLOYID, I AQRllt.1 fOCONlI'ORM TO THE RULUANOREOuLAnONSOfl FtOAOWA1[)l,PRI!SS I....C "NO lOI THAT 1,1, E,l,lPI.O'IIAH,T ....Il. BE AT T~H: .....Ill lH' SUflll'lRANCI Oll' ROADWAY fltPRESS. INC SUBJECT TO TERMINATION WlTHOUf RECOURSf. AT ANY TIME FOR A,..' Ol'l NO J.ltASUN E).CEPT A'j S\..l'" T("MINAT/ON MAY OTHERWI51'E GOVERNED 8V AN APPLICABLE COLllCTlVE BARQA.ININQ AGREEMENT IN J.lAHTIAL CO....SIOE~ATlm, ~OR Ml ACCEPT".,,; AN Oll'flER all' I!MPLOVMENT, I RESIR\I( THE UNLIMITED RIGHT TO \lOLUNTAHILY T(RMI....AlE lol' IMPLOYMENT WITH RO"0,.,A1 flPHE~,S, INC AT A/'i' T''''t, 'OR AN' Rf.A~ON SUBJECT ONLY fO 1&1 TWO WEEI\;S AD\lANCE NonCE OF MY INTENTION TO TERMINATE M' I!MPlO"M(N' "NO lOI R~~ER\lATION OF AI.' AND ALL Vl5TlO 'RING I elNE"T5 TO WHICH I Alol ENT/fLEO PuRSUANT '0 FORMER OR f)l,IS'ING FRINGE BI....HIT Pr;jOGRAMS I.... H~ECT OURlfooO T~.E COUR51 Ofl EMPLOYMENT I UNDERSTAND THAT 'HE T1!RMS AND t;oNolnONS HEREIN SET lI'OIHH 11.4"" O....LY BE holOOIFIEO II' ....IIITTIN AGRHMt';1 JOINTLY E.llECu'EO BY MVSElF AND THE PRES1DINT C~ A \lICE PAE5!OE~TOF THE COMPA/\jY II' EMPLO'ID. I 00 Hf.Rl!ev ORANT ROAOWA' IXPR~SS, INC A NON ExC_lJ51'v'E RIGH' '0 PHACTI(~ AI-;' IN'v'ENTION 0/.1 Ut','d ......" ~, , ~.A' ':')r;'~l', t DE\lUOPOA P(RlffCT DURINO THE PIAIOOOF 11.4, IMPLOYMENT AND rOOUPLICATE THE IN'v'E~tION (Jf, OEvl(E AS OFT!:/<i A~.t loU.1 ~'r,u QC':'Slojr, IlJ: 50 IN If 5 BUSI/<iESS IHERIBY AUTHORIZE ROADWAY EXPRESS, INC OR ITS "OF.NTS III TO IN\lESTIGATE MY PRE\lIOUS RE(vAl) OF EMPLOlMtr.1 If) .ASC'tll!AI'" A/<it ArlU A..~ INflORMATlON WI1ICH lolA1 CONCERN M' RECORD WHETH(R SAME IS OF RC:COAD OR NOT AND I AELfA'iE MY FORMER (MPLO.ER FAO",", A_L LIA8111r. F:II ANY DAMAOE ON ACCOUNT 0' FUI1NISHING Sl.ICH INFORMATION. 121 TO IN\lESTIOATE MY PAE\lIOUS 5CI~0LASTIC RECORD A"O PUH'),JANT TO THE 'AMll' IDUCAnOHAL ~IOHTS AND 'RIVACY ACT 0' "'4' AUTHORIZE RELEASE 01' M' EDUCATION "(CORDS B' AN" EDUCATIO....AL AIJtNO OR '''~TITUTION WHIC... . HA\lf. ATl(NOED AND IJI SECURE AN IN\lESTIOATI'v'( CONSUMf.R REPOAT PURSUANT TO neT ION 106 OF THI 'AlA CAEOIT RlJPDRTINQ ACT, INClI;OI/',,:, INFORMATION AS TO MY CHARACTER, OENERAL AEPUTAnON, PERSONAL CHARACTERISTiCS, AND MODE OF LI\lING WHIOIE'~Efl ARE "'PPll':AB.: PROVIOIO THAT UPON WAITTEN REQueST TO ROAOWAY ExPRESS.l....C I MAY RECEI\lE THE NAME ....ND AOORESS OF THE 1,..\lESTILlA II""J (O"'SUMEA f.lEfJl.H.tll,l, AGENC' flAOM WHDloll MAY MAI\;E WRITTEN REOUEST TO Rf-:EI\lf FULL DISCLOSURE OF AN' SUCH IN'~EsnGArl'/E CON5UMEI'l HEP(JIl! WITHI/'ol FivE CAI', FOLlOWINO THE DATE 0' MY WRlrTf.N REaUESt TO RECEI\lE SAME -+-+-+-+-+ ~J~l\Jo.u APPLICANT SIGNATURE 2- f - J::, DATE ROADWAY EXPRESS. INC. (QUAL OPPORTUNITY POLICY R"'OVnlll"g Ih. ....1\1. at UllnQ hum." rllou'clIlo ll'lglr I""U".t, A~ljw.V E.pl...., Int "AI ."opl~ Ih. poIIC~ <JI'"Qlljln~ eo1"".1 oPPOI,,,,,nIfy 'UI .,npIUY"'llnllO .1I1"dl~'''""al, 'it'oJ"'\llwu 01 lac.. COl()t, '.liglan, nllhon.l OI'~ln, "1I1'lIc.pl wn.tI... I.. bon. M. OCcl.Ip.honll Q..,.hflc.llonj ar phVIIC.1 01 m.nlll hilndIC,j:l ('lIe.p! w".'. luetl hil"tJ..;"p I' . lObo,.lal." ')'~Q"'1I1 tying I,Clo') TI'III CamP'"V II o..lClny comml"1lJ la In. j)<ln(lpl.1 alltQU.I.mrlovm.nl Opportunity... "1'.1'1110 Iurtl'l., ,,,. d,v.IOj:lm"nl 01 h""m.n 'lSoJ"'l'U~ Th.,.fo,. Ih. C,},'\p. '. 1'1.. O.w.loped.nd mllltul~ pollClI..nd pt'octdUtl. 10 ."."",, lh.' II Will' (. RIe'Ull, ",ra, I"'" .nd plomol' Pll'loOnl ."clvdl" 01"I)II(I...l.'lIn5 .nll '",'.'.ns of ,tI. V'lln,!'1 "i1 In.1I 101) cl....f1C.llOnl wl,noul '891'0 10 ag.. tic., C~"'. tI/iglon, n.llon.1 01 gin, "., or pl'lV,ICaJ 01 m.nt.1 h.nclIC'j:l (OJ B... ~~"'0f15 on "ml)lo~'l1lnl I:>') U 10 1""lth.' "" U'1l1o.;lt.lol ar Iqull.mplaym.nr oQpol1"",,"Y (c::j B... ptl)mouon OIeI'lon, on pl'lr'lC:lpl., af Iqll" oppof'lunlly by Impoalng only ~.lid 'fI<,I<Ju.m.nt. rOl ptumCl,on.1 OJ:lW'I,,,,"III.' ro) """""<11" .' PllllCln".1 .Cllon. '""c"" ca"1Pll",.tlon, bln.flII, ".n.f"I, Ilvul1., IlIurn. from I.~off. 1""1ln'llo". ,"d Co"1p.n"",pol1llor~ prog,.m. w<'110..'II~.rtjloJ 1'.1' I.C' COIO' '''''Q'Q!' n.Mnll OUgll'l, ... Of phVIIClf Of m."I., handlC.p INVITATION to PARTICIPATE IN 4021503 A",RMATIV( ACTION PROGRAM Ro.ow'.,. Ellpt"" Ine; I" QO~"'nm."1 cont,.C!OI .uOIIeIIO SectIOn $03 of If,. R.h,aOlllt.llon Ac;1 of 1973 .nd 5<<llon 4U2 of lh. V'aln.," E'II "Il.,.nl RUlll"".I"1.nl AaSlllot"" "~T 0' 1974. wl1lClI 'fQ""ltI gov.,nm.nl cOn'r'CIOII 10 I.~. ."1'''1111\1' echon 10 .mploy.nd .1j..nc,ln .mploym.nt q"",Ii'I(f<j h.nolc.pP1t4 IMOI~IUUIIII .f'l1l QlIlIhl,.1j Ijlllblaoj ~'II'af\~ ''',j w.l"ln. 01 'h. VIlln.m If'. I.tpeClIv.ly II Vau .r. II l'I'nd!C~pl(llnGr"'ldu.' I. d.fined In U 5 D,p'rlm.nl of L&bor rll';jlll.hon, ."tillV<j "All'/rTllll... ACM" O~lig'''u''a or Co'-""ctV1 'nd SuOc;ontlKlorl of HandiCapped W()t~If'" (41 CFFl eo. 7. I) 01 II you ." . dlIlOI..., w.t".n 0' "ill",.n of ,tI. VI.tn.m ,f. 'S Cluhn~ In U S OIf.!I"''',.nl ,)1 L.bol ''',IuI41'0n, .,jf<I'u~ 'At1llm.tl~' Acllon Obhglllon. at Conl,aclOf. If\d S""bcol1l1lC'OflfOf Ol"tlled VII".n. 0111"1. Vl.ln,m Ell" loll CFR W.2~) In!] wOlll<1 h~.. 10 o. ~on"O"'lkl untl., Ac.Il....J, ' .u" m.tl". .ctlon prOOf.ml, pI....Id.nllt',! YOU'NlIla Ih. Comp.ny AnV Information luPpll,1j by Vou ,11.11 be ~.pl ca"fl!;!en!lill .n(j .h.11 Of'lly be Uloo 11l,1 o.;of'Ul1un,calf\11o oJlh..' poll',,,) In .CtOto.nCI wllh tl'l' "OI.m,ntlontd Act,'nd'J S D.p.Mm.", al L&oo, '''iful.llon. If you ". I qll.llfie<j h.&nIlIC~p~ ."o....I"u.1 IJf II yo"" !If II a qu.I,IIW (l,..OI"" .'1"11" C' _81",\., olIn. \I.lnlifTI .rl. Roadwly WOuld 11~'lo InCI""d. yOU ""neI" Ih. Comp'"\l"'''II''1.II~' IClion ploor.ms SuOmlulo" a' ,nfo,mllllon '. 'oOIU"lll,...,. 11"<1 wtl.tnu' 0' nOI (0"" "lK'II,. ,HU.. _)11 ....'11 .nl~m'lIa" WIll nol .""bJetl you 10 IjIAChll'ga, dIACIPIl"'')I action 01 Olh" '13"".. II..t"1'"' APPROVALS IllQl"OI4'oor,.ullontv ~~nl TITLE SIGNATuRE DOIOlOIWIIt'III11owT""L""1 DATE TITLI SIGNATURE DATE FDA PERSONNEl DEPARTMENT USE ClIlE ~----.- -----___. ____..u_____._., ., " I' ., , RoadwatJ:xpress, Inc., Medical .jlthorizatlon To Dr:. ~ I'IXERS 350 N. 21ST S'mEIl'l' . CAKP BILL. PA-l1011 Please acclIptthis as authority to examine andlor te$I____ ~_~ ~.___ IMM[1 Check alllhat are to be pertormed: DRUG rEST: o Pre.employment 111 Partodic (Recurrent) o Raasonable Cause o Blood (Probable Suspicion) o Post-Accident o o Check Iype of work: o Freight Handler (Dock Worker) o MechanIC or garage worker IJC Road driver L] P&D driver or swilcher U.. IOT/IER) WEOOESDAY JUL1 lcmJ ..._-~------_... -- 10ATEI Appointment: PHYSICAL EXAMINATION: U Pre-employment ltl PeriodIC (Recurrent) U Return to Work o To delermine nalure and extent 01 the following alleged occupational InJury or disease: - Examinalion lee to be paid by: IX Roadway Express, Inc. [J Individual ----_._~_.- Shipping Instructions: ;It U.S. Mall : Overnight Courter 1I 1:30 P.M. ..'___~__H_'_I'~I______'___' ...- 18!)-30-3326 i"ss'';o"I'-- _._~_.--._-----------_._- l J Medical treatment lor ___ oc:.upatl~~al in~rY-.5'~I~eas: IX DOT Drug TesVPhysical Exam (send chain 01 custody forms 10 MRO). o Non,DOT Drug TesVPhyslcal Exam (do not send chain 01 custody !o!ms to /..!f'!.QL.____ Authorization: 100 ~ OOlVE -_._--~-- '(ST-RETT-.OORf s;;i-'. CARL ISLP. ____PA ___. lelT'f) I~TAtl.'i __1?.!71~4~.!!Q99_ ~ !f'HUI'1Ej ITEIl""I""', ((y,[, lJl JOIINS:JN 7 mVIl mP'1' ~>- &1- -';~/;~t/" <'1-'~~/ ,/ l. I' . lul<b -7':"4~' _ .11013 <0'1+', .. R70 Notice to Persons to Be Examined For DOT Recertification - In ~e\len or lTlora calendar days Irom today, you Will be reQ'Jlred to submll to a DOT recurrent phYSical tJl(.Jnlllldhm At ln,l' !.Ih] you Will tle 5ubjeCllO a lull drug screen. ThiS drug scret.in IS Ifl conlormHy \/wllh Artlclo 35 ollho Ni.lllcnal ~.lJs!iH Fr'!IQrl1 Aql'."!"'."n and Fed~rJI TranspOrlallon Workplace Drug Te~.Hlng regulallons (49 CFA Port 40) . ---- - --------.---.- .__.~.._. -.--. ..---------.----- Notice 10 All Persons to Be Examined II Will be your responSlblllly 10 take lhe laHawlng Items With you to your physlC,J1 o)(Jnllnatlon/urug 5cre~nln!1 . 0"V8'S license or other photo Identlflr.allon . PreSCrlptlorl corrective lenses (II applIcable) . Prescription hea"ng deVice (If applicable) .. -_.---._~-_._~--_..__.----_._.__. .-----..--.------ - ---- ._-.---.__. ..-.....---.-. ---.- Company policy and article 35 of lhe National Master Frelghl Agreement requires thai you provide 10 the company a recoru 01 preSCrlpllon and nonprescrlplion medlcatlon3 yOl; have used from the time ollhls notification unlll your uflne collechon (drug test) IS compleled Use the space provided below MedlceUon Prescribing doclor -_.._-----.----~----- --------.-.-----.----.------.-.---.--- --- ---~.._---.._- ----......--.-------... ---- -----.-.----r----.----. -~._--------------.--_._- Consent and Release ---~---_..-..- -~---_. -..------. .._...,-_._-.----.-----~~--- .----.. - -.-.- ---. I voluntarily consenllo prOVIde a urine specImen al a collecllon facility deSIgnated by my employer or prOSptfctlve em. player and. further. consenl to haVing the speCimen lesled at a laboratory selected by my employer or pro~peCI!'r'fJ employer Ilurther agree that the drug lest results Including the levels 0' eJrug delected by drug calegory, If any, may be dIsclosed 10 my employer Or prospectl'JO employer, the Modlcal Rev:ew Ottlcer, and the collection Silo oxamlnlng phy51clan All persons are reqUIred to $Ign thiS nOllco Soclel Securlly _ _ _ Number EmploY"'IIAppllclnt" Nlml_____j,'J~_E, __D~~_________._ Employ,,'IIAppIlClnl', Signature ---ltLLr....L."-crf_ E_&g,l ... . l:r -j Tlml clock punch Olte 'Igned --,;;-~6.::..'11__'_._ . -------- - Compln~ C.AJPV-U1lJ. COIlItCIIO" 51111 Cl)p~~Whll. Emplo'("./Applllllnr CUlJV -C.nlll)l . , _ )8!)-30::P26 ) ..... .. Roadway .press, Inc., ~~~~.~~.~.1~~!~~~.... ~ C~ e. DIlL~~~~:::J ~'''''~1 (~ '..'-::'\ . JtN 30m 10:30 ~=_~) j IJI, IUlOC1I IaD\S ITNITADOfIfN J!lO II, 21Sr SDl!e'I' l;ITl'UI'I."~ CNIP BILl.. PA 17011 II D01'OM.IQ""'~ac....lMW o NDJrt.(lIJ,~"",rw.lIoC.Iri.l.U/III o OO'""""",,IAAWOJc.' o '''IlQIfYtWO...IIlIltlIJOl\M')llAJ1lI1 o "ow.co-.QoUW)I.~" III 1WJoII00000YI" o o 'lllOOllytllllJlll"""'Ptl" 0"'" ,....~..D- UIWIlc;c;l.UCfKlJIIIDl'uQn,' o "'4.W\O'l'UlHf II NNOOC r"'o.JMINTJ o ......... o ~'.toCoCIOtN' D.~.t.\lA' o ..OOU".........IIJIII'I(....I CJ ..... lIIth1oll;N.1..-'.... o ""4-...0'......' all "'''''XlII; INCUMIlINT} o ""n.- 10""'" o ILOOOI'N....,....01l~ o =~'::::~NI'OIl~uI'.,-........ 0 IlllollI o JO 01 lIlW1N1 .....fVlO. "",ou',,,,, l.lf !lot '....~UWl...1 ",,"UIUIHI'';C;....,.,U-..- OlooN'n D.H)!bl.... .~no."1 'ON 'AIlI" iii 1IlWM.' IJ.POAfU H: 0..........,'.,,,"', oauo ""'11 '01"1olO IT UII...._~~-!!!-~_~~.~_..... ~.J ')~I_,....,.......It.."..t>I'Jyt'" [J .u'f'I_',"'lOJM'lll """lU".."'''' It} ... b "',0.[ '-~'~~~~~~~-:,.:"~'~~~~" I', J II o o o ,.......""".,................: ............".,It"" U....""'OI '.UOMl.....' OllOt" 'UlI I ..'.....IIOt.ol"..j"~..... "l-. .......;IU...U....... ...tI;.,......"..""""){JjOi'..."..-1I M}''''''''"JU.IlUI a4I1ltOIIlI.MOlIIIC~""'tOlol'.IlC;' --rmr .--...-.v>T;;o------..7...'7fi.-.-.-.~if ..- - """,voc.u K ~~~~~~::~l~, ~:4~:~:---L~ RIO~/14/"~ J NOTICE TopiitsONS TO BE EXAMINED FOR DOT RECERTIACArION""""--_u-, 'OU AN ltlWA<<O TO IlAlMlT TO" o ~1lO'OMJQr"',"'Tl1IIDotTl '...N<<I...."'tHloC.Artn..JY. o IIIIIQIMlHf ~1oC.... ....-u.,IOI'I.. IIVlJo1 OIII....~ !M"'** roo", D OMII n..llNUQ".,...~wr"'o\I4'W;U ..JlIlilI....r~ "AI"II'IU.~' AUAllWl"" oIoIC).tot""" ,.....,.~""_nuoo~1 ~ ""IHQ I.t'''-''-'''...~,.. CI""IoII'1lOI [ ---.----pjDTICE TO ALLPERS~-'. _J ITWIU. I'OUl'N~""'''' flJ ,""". 'WI "U<.M.....rllt,lS."H 'w IQ >()O,I"'.....III<...I4I.........'...'... OM,~, ~1l.I1'''..... . l)NWIIII.l.l;U.MOIIIOfHI"....OHJlotHllh.:..".... . ,"IIlSC"''''Il:.to Clllllll<; "'0'1 ~f"'~l ~ Itf """'-Jl:.I.ItII, . "" !IoI:M," 'ILl<'< ,ot "1I1to<.; ~"VII;I "' ..."..,.1(.Ajl;, I Con..nl .nd R.I.... ~ . YOIunlarllyClOl\MnI to pIO\II6e .~... ~'*' II .ouIl....1IOn rll;lht)i lMI'II""tN b~ m~ .mplo~.r 01 Pf1).~;1,... .mpkl111 and. rurthtt o;)nMO"O .....11'~ ,ht IpltCImIn INled 1'llaDoIlIOtY Nlectld b>>' m~ .~It 01 ~I'" .mplo~" . turtrwlr torI..nllo lht lJlvg I... 'lI"nt e..,1'lQ d,lCtoMIJ to m, ~.,., .... ~'ImClIOy.,. It\t tNdIc:M ,....,... otfur 11/101 U'II wllel;bQn "1,11"oI(J,~1 '.'",""'10 1tl.11.I11..I..llrllllllow.,j Oy IW...aboII,... and ,~",.llOf' 13 '~:;IIS-- ROlIUlT ~ oo.L r-~~. Y r -D.aj-:-:-:-:'-:: """- l!l';-J(). 3326 ~"ilCi;II'in...Jwiinr-- . ;;K-..dP.: '!:!. - r \, " 1,. I ~ ; ~ I ,. '\ 1" , ~ . ..: , '. ",.1 " l' ;.- l ) , ~ , ' , , ,f ',1 i , ! , , ! , i ,i j Il' f. I ..j' ' . , ,',1 . L, ,/ ;, il" 'I. :, ,.:: . , ':: .- i Ii, ~ :' ~ I "l- -\"; It' , ' t ' ' 'f:,(1 l '1 ' ~"I. , .t -J :j- I '/;~:;' ,:t, ' '1 I :1 ,~~;, 1','1 '.1.,', ' i' · . I ' 'I. i I i ' . , , ..'......L. .. , , I , .' . \J j '. '" ~I "I 0-. , I , -' ~'i , , " ; "I NO. 96-1705 CIVIL TERM S391.41-39l.49 and Roadway's examination standards. physical Plaintiff's reply did not refute this allegation.' Defendant Myers has filed a motion for summary judgment based upon the proposition that. in his capacity as a physician acting on behalf of an employer in examining an employee or potential employee for purposes of determining fitness for employment or continued employment, he did not assume the duty asserted to the person being examined. 'l'he pre-trial evidentiary record with respect to the relationship between Defendant, Plaintiff' s employer and Plaintiff consists of a deposition of PlaLntiff and answers to requests propounded by Defendant for admissions. The deposition of Plaintiff confirmed that the examinatLons conducted by Defendant Myers were at the instance and expense of Plaintiff's employer, and were for the purpose of determining his fitness for employment or continued employment. Nowhere in the deposition does Plaintiff suggest that Defendant Myers told him that he was healthy, that he did not need another physical Plaintiff's reply stated as follows: Admitted in part, It is admitted that Robert Dell was examined by Defendant Gordon Myers, M.D. at the request of Roadway Express, Inc. It is denied that Plaintiff has any specific knowledge as to why the requests were made. Moreover, the allegations herein contain conclusions of law to which no response is necessary. 3 NO. 96-1705 CIVIL TERM examination for two years, or that he was being given a clean bill of health. The admissions of the Plaintiffs prescnt the following factual background with respect to the case against Defendant Myers: Plaintiff Robert E. Dell completed an application for employment with Roadway Express, Inc. on July 8, 1995.... As consideration for being considered for employment and/or being employed, Plaintiff Robert E. Dell agreed to submit to physical examinations and tests as required by the company, and Plaintiff released and assigned to his employer Roadway Express, Inc, all right. title and interest that ho might subsequently acquire in all records and reports arising out of or in connection with the examinations and tests and further, Plaintiff Robert E. Dell, waived all rights to be advised of the content 01 t1w reccH-ds and reports or to receiv~ uo[)ie~ thereot, absent prior written consent of Roadway Expross, Inc... . Prior to the physical examinations and tests performed by Deftmdant Gordon Myers, M.D., Plaintiff Robert E, Dell did not obtain written consent from Roadway Express, Inc. to be advised of the content of said records and reports or to receive copies thereof. Plaintiff Robert E. Dell was subsequently hired as a road driver for full time, regular employment by Roadway Express, Inc., on September 23, 1985. As a road driver. Plaintiff is required by Federal motor carrier safety regulations to submi t himself for periodic or "recurrent" physica 1 examination every two years. As a road driver Plaintiff is required by his employer. Roadway Express, Inc. to submit himself for periodic or "recurrent" physical examination every two years, All recurrent physical examination scheduling was performed by Roadway Express, Inc. All 4 NO. 96-l705 CIVIL TERM "Under subparagraph (2) [of the rule], the record contains insufficient evidence of facts to make out a prima facie cause of action or defense and, therefore, there is no issue to be submitted to a jury.... To defeat this motion, the adverse party must come forth with evidence showing the existence of the facts essent.Lal to the cause of action or defense." COllunittee Note, Par R.C.P. l035.2 (emphasis added). The purpose of this portion of the rule is obviously to pI'otect a party against whom an essential allegation cannot be supported with evidence from the burden of going to trial in order to secure a resol u tion of the matter. S,)e Eaddy v. Hamaty, _ Pa, Super. __, _, 694 A.2d 639.643 (1997). With respect to professional nugligence in tho form of medical malpractice. it has been said t1hlt "'[t]he term "malpractice" denotes a breach of the duty owed by one in rendering professional services to a person who has contracted tor such services; in physician-malpractice cases, the duty owed by the physician arises from the physician-patient relationship. '" Ervin v. American Guardian Life Assurance Co., 376 Pa. Super. 132, 135, 545 A.2d 354, 356, (l988), appeal denied. 522 Pa, 604. 562 A.2d 826 (1989), quoting Rogers v. Horvath. 65 Mich, App. 644. 646-47, 237 N.W.2d 595, 596-97 (l975). The general rule as to medical malpractice in the present context has been stated by the Pennsylvania Superior Court as follows: 7 NO. 96-1705 CIVIL TERM 65 S, Ct. 152, 89 L. Ed. 101 (1944).J Based upon the foregoing authority, the evidence does not show a relationship between the Plaintiff and the moving- Defendant sufficient to support the existence of a duty to Plaintiff as asserted, and the motion for summary judgment of Defendant Gordon Plaintiffs suggest that the present case can be encompassed by the rule set forth in Section 324A of the Restatement (Second) of Torts (l965). which provides as follows: One who undertakes, gratuitously or for consideration, to render services to another which he should rocognize as necessary for the protection of a third person or his things, is subject to liability to the third person for physical harm resulting fr.om his failure to eXerc.i~H:! reasonable core to protect hi.s undertaking, if (a) his faiLure to exercise reasonable care increases the risk of such harm. or (bl he has undertaken to perform a duty owed by the other to the third person, or (c) the harm is reliance of the other or the undertaking, suffered because of the third person upon Although Plaintiffs' counsel states in her brief on Defendant's motion that "Defendant Myers verbally advised Mr. Dell that he was in good health, requiring no additional medical tests or treatment," the court, as noted in the text of this opinion, has boen unable to find corroboration for this assertion in the evidentiary record, See Plaintiffs Drief in Opposition to Dofendant Myers' Motion for Summary Judgment, at 5. Even had Mr, Dell been provided with copies of Dofendant's reports to his employer. appellate authority in Pennsylvania does not support the proposition that a cause of action would exist against the examining physician, SC1e Tomko v. Marks. 4U Par Super. 54, 57, 602 A, 2d 890, 891 (1992) (per Olszewski, J.. with Cavanaugh and McEwen. JJ., concurring in result). 10 CERTIFICATE OF SERVICE I, Jack M. Hartman, Esquirc, hcreby ccrtify that I am this day serving a copy of the foregoing document upon the person(s) and in the manncr indicatcd bclow, which service satisfies the requirements of the Pennsylvania Rules of Civil ProceJure, by depositing a copy of same in the United States mail, first-class postagc prepaid, as follows: Robin J. Marzclla, Esquire R.J. Marzella, Esquire & Associatcs, P,C. 35 North Front Strcct Harrisburg, P A 17110 (Counsel to Plaintiff.5) G. Thomas Millcr, Esquirc Millcr and Millcr 105 Locust Strect P. O. Box 709 Harrisburg, P A 17108-070<) (Counsclto Gordon Myers, M.D.) Joseph P. Hafcr, Esquire Thomas, Thomas & Hafcr 305 North Front Strcet P. O. Box <)99 Harrisburg, P A 17108-0999 (Counsel to William Milroth, M.D,) Katherinc B. Kravitz, Esquirc Barlcy, Snydcr, Senft. & Cohcn, LLP 126 East King Street L.ancaster, P A 17602-2893 (Prior counscl to Nagib Khalifa, M.D., William Haren, M.D., and Urology Associates ofChal11bcl'sburg, P.c.) HARTMAN & MILLER, r.c. Oatcd: .3/3-0 /t/,f I By:5~~ ~M. Hartman, Esquire , .". counsel of record pursuanllo Pa. R.C,P. 236. BY THE COURT: J ll/,f{{r-;{). J Copies to: Robin J. Marzella. Esquire R.J. Marzella, Esquire & Associates, P,C. 35 North Front Street Harrisburg, P A 17110 (Counsel for Plaintiffs) Gary T. Lathrop, Esquire Thomas, Thomas & Hafer 305 North Front Street P. O. Box 999 Harrisburg, I' A 17108-0999 (Counsel for Dclcndant, Wilham Milroth, M.D.) Jack M. Hartman, Esquire Hartman & Miller, ('.Co 126 - 128 Walnut Strect Harrisburg, PAl 710 1 (Counsel for Defendants, Naglb Khahfa, M.D" William Harcn, M,D. and Urology Associatcs ofChamhcrsburg, P.c.) /' n'l.c,,(,..( /<'/",I'i~.Jr '- "1f"'1. 4.- 2 S. A prior Co-Defendant, Gonion Myers, M.D., who has been dismissed from this action, is a physician engaged in the practice of medicine in Camp Hill, Cumberland County, Pennsylvania. (Complaint, '12; Defendant Myers' Answer with New Mallcr, '12). 6. The above-captioned action was apparently initiated by Plaintiffs in Cumberland County based solely upon Dr. Myers' involvemcnt. 7. Plaintiffs could have brought this action in Franklin County, Pennsylvania, because Petitioning Defendants could be scrvcd in Franklin County and bccause Plaintiffs' alleged cause of action arose. in part, from trcatmcnt rendercd in Franklin County, Pcnnsylvania. 8. Following thc dismissal of Dr. Myers from this action, livc of the six remaining parties are locatcd in Franklin County. Pcnnsylvauia. 9 It would hc more convenicnt l<lr all partics involved, and anticipated witncsscs, if this mallcr wcre transferred to Franklin County, PCllnsylvania. 10. Robin J. Marzclla, Esquirc, coullsclto Plainti ffs, and Gary T. Lathrop, Esquire, counsel for Dr. Milroth, concur in this motion. WHEREFORE, Pctitioning Dcfendants, Nagib Khalifa, M.D., William Haren, M.D., and Urology Associates of Chul1lbersburg, P.c.. respcctfully requcstthat this Honorable Court grant thcir Petition for Transfcr ofVcnuc. 2 . , fit, ROBERT E, DELL and GWEN E, DELL, his wife, Plaintltls IN HIE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY. PENNS YL VANIA v. CIVIL ACTION - LAW GORDON MYERS, M,D.. : NAOIB KHALIFA, M,D,. : UROLOGY ASSOCIATES: OF CHAMBERSBURG. : p,c., WILLIAM HAREN, : M,D.. and WILLIAM MILROTH, M.D" Defendants NO, 96.1705 CIVIL TERM n ..(, ...., ..,.:, ...., ':, ~ ~~ , ,. ..'01.' '''; r'..""1.' I"~ !'" ., r,) , " i I , ~, ; 1,1 , I .~ .. ~ ~:' '. ' " , ... 1i') . ( . in t;>.~ .) ;.' \ I . ,. ::.j '.) ':Q -.. ()'\ ORDER OF COURI AND NOW, this:J.I~t day of August, 1999, upon consideration of the Stipulation of Counselliled in the above-captioned matter on August 6, 1999, and it appearing that this case has been transferred to Franklin County by order of court dated October 4. 1998. the Prothonotary is directed to forward the stipulation for filing to the prothonotary of Franklin County. BY THE COURT, ~,j , I I r I ~~ley~;:;'Jr,. ..; ,/1 , / C '/ ' - ~/:" Robin J. Marzella. Esq. 3513 North Front Street Harrisburg, PA 17110 Attorney for Plaintiffs '. . " . Gary T, Lathrop, Esq. 30S North Front Street Sixth Floor P,O, Box 999 Harrisburg, P A 17108 Attorney for Defendant Milroth , I , I I I i 'i Jack M. Hartman, Esq, 126-128 Walnut Street Harrisburg, P A 17 to I Attorney tor Defendants Khalifa and Haren " :rc ('''''''';'''41 ,..~J... ~/:B/"', ~r-- "J..'f. " s , , ~ I I ....,r " . ~ ~ , , ,. , ! ' ,. I -.J ,f " ~ , , : i I ' ,;',' :', \ J i f" , I . ! .j ,I 'j, I I I , I , , ',' i ~ , ~ , , , . , ... --- ) .J J ~ cs , I " ~ R ~ .~ " "' '/ I ~ ~ . - '.... , I '.., I , t"""" (>0 .f{) ~ ~ f}~ ~~ (Xi?~ ~ ~~ -: ~ 00 ~ ~ I. - , . I , 1 , I i , i ( I I , . \ . H ) :r- , ID ~ 1"~ I. 1J~ I {' /-r.Vld ; ~rf} I' ~ _J? iil*~ I ' . " , I. . ' ,..A . . . . . ' I, i \ l ~ ~ tl I f ~ '. I ~. . , l . I j', I I - D-Htil ~ ~ def- ex\; }t~ ) -,} 7- "1 <1 {U -tVUJJ; fv\')...JL J {Lnl Lc~ aj1~ f: o{J J::uc k .-ir ~o...../l:l ),I:}L (~,nJ.lLf(, l:JaPV\i~ 1..>> CCtLL<.JJ, d l'~t d a.. 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