HomeMy WebLinkAbout00-02990
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MICHAEL M. BADOWSKI, ESQUIRE
Pa. Supreme Court I.D. No. 32646
MARGOLIS EDELSTEIN
3510 Trindle Road
Camp Hill, Pennsylvania 17011
Telephone:
Fax:
E-Mail:
[717] 975-8114
[717] 975-8124
mbadowski@margolisedelstein.com
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Attorney for Defendants:
GEORGE SYLVESTRI, M.D., AND COWLEY
MEDICAL ASSOCIATES, P.C.
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CARL R. LEBO AND BEVERLY ANN
LEBO, HIS WIFE,
PLAINTIFFS,
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNA.
CML ACTION - LAW
VS.
DOCKET NO. 00,2990 CML TERM
GEORGE SYL VESTRI, M.D., AND
COWLEY MEDICAL ASSOCIATES, P.C.,
DEFENDANTS.
JURY TRIAL DEMANDED
PRE" TRIAL CONFERENCE MEMORANDUM OF DEFENDANTS.
GEORGE' SYLVESTRI. M.D. ANn COWLEY MEDICAL ASSOCIATES. P.c.
1. STATEMENT OF FACTS AS TO LIABILITY
Plaintiff alleges that he sustained an injury to his right shoulder during a
fall in April 1998. At the request of his employer, he was seen by Dr. Richards. who
obtained x-rays and referred Plaintiff to Ernest R. Rubbo, M.D., who first saw Plaintiff
on May 6, 1998. After discussions with Dr. Rubbo concerning treatment options,
Plaintiff opted for surgery to the right shoulder which was performed by Dr. Rubbo on
May 27, 1998, at Polyclinic Medical Center. According to Plaintiff, he was doing well
for the first several days after the surgery, but then he began to experience headache
and ringing in his ears with lights flashing in his eyes and tingling in his right arm.
Plaintiff called Dr. Rubbo's office and spoke to Dr. Rubbo's then partner, John S.
Rychak, M.D. On June 3, 1998, Plaintiff was seen in Dr. Rubbo's office where it was
noted that the surgical site was healing nicely. Plaintiff was instructed to progress
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from a shoulder immobilizer to a sling and begin passive range-of-motion exercises. A
few days later, Plaintiff again experienced the symptoms described above and he
again called Dr. Rubbo's office, once again speaking to Dr. Rychak, who advised
Plaintiff to see his primary care physician.
Dr. Sylvestri saw Plaintiff for the first time on June 9, 1998, and after
obtaining a history, performed a physical examination, ordered a chest x-ray and
obtained a CBC. Dr. Sylvestri further ordered liver function, electrolyte studies, renal
function and SED rate studies. Dr. Sylvestri examined Plaintiffs right shoulder. Dr.
Sylvestri's differential diagnosis included a central nervous system problem and post-
operative infection. By the end of the evaluation, he ruled out pneumonia and
meningitis and was satisfied that there was no wound infection. Dr. Sylvestri
determined that Plaintiff should be seen again in three (3) days' time, but to return
earlier if he felt ill. Plaintiff returned to see Dr. Sylvestri on June 12, 1998, again
containing of fever, frontal headache, sore neck and significant right shoulder pain,
although, overall, he reported feeling a little better. At that time, Dr. Sylvestri had the
results of the blood tests available to him, which showed an elevated sedimentation
rate (although not markedly) as well as the liver function. The liver function tests
were high enough to indicate a hepatitis condition, and the patient informed Dr.
Sylvestri that since 1990 the Red Cross would no longer accept his blood. Dr.
Sylvestri's physical examination on June 12 revealed that he did not look toxic, and
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he had basically the same findings as on June 9. Ears, nose, throat, lungs and heart
were normal. His right shoulder was tender to touch, but there was no effusion,
warmth or redness. The wound was clear and the tissues were close together. Dr.
Sylvestri's differential on June 12 was that of a viral syndrome, including hepatitis, or
perhaps a delayed reaction to an anesthetic that causes hepatitis, rather than a virus.
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No antibiotics were prescribed, and the patient was to follow-up the following week
for a repeat sed rate and liver function study.
Mr. Lebo had a regularly scheduled appointment with Dr. Rubbo on June
16, and by that time his shoulder was oozing and he could see the redness protruding
from outside the bandage. He also told Dr. Rubbo of the episodes of numbness and
tingling in his arm as well as a strange feeling in his head and face. According to Dr.
Rubbo, it was at that time that Plaintiff was offering complaints of pain and fever. Dr.
Rubbo noted that there was some redness at the incision site and he believed that it
was a reaction to a suture. Keflex was ordered because of the redness and pain. Dr.
Rubbo believed that the infection, if any, was superficial. He had not, as of that date,
made a definitive diagnosis of infection. Dr. Rubbo suggested warm compresses to the
wound. Mter doing so that evening, yellow pustules appeared at the site and the
Lebos called Dr. Rubbo and were told to go to the Polyclinic Hospital the following
morning, June 17, 1998, at 8:00 A.M.
At the Polyclinic, Dr. Rubbo took Plaintiff to the "casting room" and
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opened the anterior aspect of the incision where the pustule was with a pair of
scissors. He noted fluid which appeared to be a sign of infection, and which he
continued to believe was superficial in nature.
As a result of his findings, Dr. Rubbo admitted Plaintiff to the hospital
for the administration of IV antibiotics. On June 22, 1998, Dr. Rubbo took Plaintiff
back to surgery to clean out the infected area. It was at this point that he realized that
the infection was not superficial, but was a deep infection.
The next contact Dr. Sylvestri's group had with Plaintiff was during his
subsequent hospitalization when Dr. Rubbo consulted them for medical management.
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Dr. Sylvestri saw the patient on June 20 and discussed with Dr. Fultz, Dr. Rubbo's
partner, the possibility of a second opinion from an infectious disease standpoint
prior to the exploration surgery scheduled for the following day. Dr. Tkatch, an
infectious disease specialist, saw Plaintiff on June 21, 1998, as the result of a request
for consultation by Dr. Sylvestri.
II. STATEMENT OF DAMAGES
See Plaintiffs' Pre-Trial Conference Memorandum.
III. STATEMENT AS TO THE ISSUES OF LIABILITY AND DAMAGES
A. Whether Dr. Sylvestri fell below the accepted standard of care of a
general internist with regard to his professional involvement with Carl
Lebo?
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B. Damages sustained by Plaintiffs.
IV. LEGAL ISSUES
Attached to this Pre-Trial Conference Memorandum is a Motion in
Limine and supporting Brief (respectively marked as Exhibits A and B) to preclude
expert testimony of Robert N. Dunn, M.D. with respect to the standard of care
applicable to internists.
V. IDENTITY OF FACT WITNESSES
A. Plaintiffs - as on cross-examination;
B. Dr. Sylvestri;
C. John S. Rychak, M.D.;
D. Lisa S. Tkatch, M.D.; and
E. Ernest G. Rubbo, M.D.
In addition to these witnesses, Dr. Sylvestri reserves the right to call at the time of
trial, any witness identified in Plaintiffs' Pre-Trial Conference Memorandum or, as
necessary, for the purpose of rebuttal.
VI. IDENTITY OF EXPERT WITNESSES
A. Marie A. Savard, M.D. A copy of Dr. Savard's expert reports dated
June 28, 2001, and April 3, 2003, together with her curriculum vitae, is attached
hereto, incorporated herein by reference and marked collectively as Exhibit C;
B. Lisa S. Tkatch, M.D., consistent with her deposition of May 14, 2002;
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C. Ernest G. Rubbo, M.D., consistent with his deposition testimony of
October 30, 2001;
D. John S. Rychak, M.D., consistent with his deposition testimony of
September 25, 2001; and
E. George Sylvestri, M.D.
VII. LIST OF EXHIBITS
Dr. Sylvestri may utilize one or more of the following exhibits at the time
of trial.
A. Expert reports and curriculum vitae of Marie Savard, M.D.;
B. Deposition transcript of Plaintiff, Beverly Ann Lebo;
C. Deposition transcript of Carl R. Lebo;
D. Deposition transcript of Lisa S. Tkatch, M.D.;
E. Deposition transcript of Ernest G. Rubbo, M.D.;
F. Deposition transcript of John S. Rychak, M.D.
G. Plaintiffs' Answers to Interrogatories;
H. Plaintiffs' Complaint;
I. Plaintiff-Husband's medical records from the following providers:
1. Ernest G. Rubbo, M.D.;
2. Pinnacle Health System;
3. George Sylvestri, M.D.; and
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4. David Richard, M.D.
In addition to these items, Dr. Sylvestri reserves the right to utilize any document
identified in the Plaintiffs' Pre'Trial Memorandum or, as necessary, for the purpose of
rebuttal.
VIII. CURRENT STATUS OF SETTLEMENT NEGOTIATIONS
Plaintiffs have made a settlement demand of $375,000.00. Dr. Sylvestri
believes that this case is defensible and, therefore, no offer has been made.
IX. ESTIMATEID TIME NEEDED FOR TRIAL
Four (4) days.
X. SPECIAL REQUESTS
It is requested that the parties agree to the authenticity and admissibility
of all the medical records identified above, subject only to objections as to relevancy.
Respectfully submitted,
Date:
7//7 JuL}-
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By:
MICHAEL M. BADOWSKI
Attorney for Defendants,
GEORGE SYLVESTRI, M.D., AND
COWLEY MEDICAL ASSOCIATES,
P.C.
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CARL R. LEBO AND BEVERLY ANN
LEBO, HIS WIFE,
PLAINTIFFS,
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNA.
CIVIL ACTION - LAW
VS.
DOCKET NO. 00-2990 CIVIL TERM
GEORGE SYLVESTRI, M.D., AND
COWLEY MEDICAL ASSOCIATES, P.C.,:
DEFENDANTS. JURY TRIAL DEMANDED
ORDER
AND NOW, this
day of
, 2004,
upon consideration of the Motion in Limine of Defendants, George
Sylvestri, M.D. and Cowley Medical Associates, P.C., to preclude
the testimony of Robert N. Dunn, M.D., and Plaintiffs' response
thereto, IT IS HEREBY ORDERED AND DECREED that said Motion is
granted and Robert N. Dunn, M.D. is precluded from offering any
expert testimony concerning the standard of care applicable to
Dr. Sylvestri pursuant to 40 P.S. ~1303.512(b).
BY THE COURT:
J.
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MICHAEL M. BADOWSKI, ESQUIRE
Pa. Supreme Court 1.0. No. 32646
MARGOLIS EDELSTEIN
3510 Trindle Road
Camp Hill, Pennsylvania 17011
Telephone:
Fax:
E-Mail:
[717] 975-8114
[717] 975-8124
mbadowski@margolisede~stein.com
Attorney for Defendants:
GEORGE SYLVESTRI, M.D., AND COWLEY
MEDICAL ASSOCIATES, P.C.
CARL R. LEBO AND BEVERLY ANN
LEBO, HIS WIFE,
PLAINTIFFS,
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNA.
CIVIL ACTION - LAW
VS. DOCKET NO. 00-2990 CIVIL TERM
GEORGE SYLVESTRI, M.D., AND
COWLEY MEDICAL ASSOCIATES, P.C.,:
DEFENDANTS. JURY TRIAL DEMANDED
MOTION OF DEFENDANTS, GEORGE SYLVESTRI. M. D. AND
COWLEY MEDICAL ASSOCIATES. P.C..
TO PRECLUDE TESTIMONY OF ROBERT N. DUNN. M.D.
1. Plaintiffs commenced the above-captioned medical
malpractice action by Complaint on or about May 12, 2002.
2. Plaintiffs allege generally that Defendant, George
Syl vestri, M. D. ("Dr. Syl vestri"), failed to diagnose a post-
operative infection and, as a result of the failure to diagnose,
that Plaintiff sustained economic and non-economic damages.
3. Plaintiffs have now proffered reports from three (3)
physicians: Arnold L. Lentnek, M.D., a family physician; Robert
C. Steinman, M.D., a physiatrist; and Robert N. Dunn, M.D.
4. Dr. Sylvestri is board certified in internal medicine
and was providing medical care to Plaintiff-Husband as a primary
care physician.
5. By letter dated July 2, 2002, one of Plaintiffs'
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proffered expert witnesses, Robert N. Dunn, M.D. (ftDr. Dunn"),
opines that Dr. Sylvestri deviated from the accepted standard of
care by failing to diagnose the infection and by failing to make
a timely referral back to Plaintiff's treating orthopedic
surgeon, Ernest G. Rubbo, M.D. A copy of Dr. Dunn's report is
attached hereto, incorporated herein by reference and marked as
Exhibit A.
6. It is clear from Dr. Dunn's curriculum vitae, a copy of
which is attached hereto, incorporated herein by reference and
marked as Exhibit B, that Dr. Dunn is not board certified in
internal medicine nor any other sub-speciality thereof, but,
rather, is board certified in the medical speciality of
orthopedic surgery. Accordingly, it is submitted, for the
reasons set forth below, that Dr. Dunn is incompetent to testify
as to the standard of care applicable to an internist and is
otherwise incompetent to provide testimony that Dr. Sylvestri's
conduct deviated from that standard of care.
7. Pa. R.E. No. 403 provides for the exclusion of relevant
evidence where presentation will cause undue delay, waste of
time, or needless presentation of cumulative evidence.
8. Inasmuch as Plaintiffs have proffered a report from an
individual certified in internal medicine, Dr. Dunn's anticipated
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testimony is cumulative, at best, and, therefore, for this reason
should be excluded.
9. Moreover, ~5l2 of the MCARE Act, 40 P.S. ~1303.5l2(b),
requires that an expert intending to offer medical opinion in a
medical professional liability action on issues related to a
physician's standard of care:
(1) Be substantially familiar with
the applicable standard of care for
the specific care at issue as of
the time of the alleged breach of
the standard of care.
[and]
(2) Practice in the same sub-
speciality as a defendant physician
or in a sub-speciality which has a
substantially similar standard of
care for the specific care at
issue, except as provided in sub-
sections (d) or (e).
From a reading of Dr. Dunn's curriculum vitae, it is clear that
he does not possess the requisite qualifications required by ~512
of the MCARE Act to express opinions regarding the standard of
care exercised by Dr. Sylvestri and, therefore, his proposed
testimony on this matter must be precluded as a matter of law.
WHEREFORE, Defendants, George Sylvestri, M.D. and Cowley
Medical Associates, P.C., pray this Honorable Court enter an
Order precluding the testimony of Robert N. Dunn, M.D., pursuant
to Pa. R.E. No. 403 and ~512 of the MCARE Act, 40 P.S.
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~1303.03.5l2(b) .
Date:
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Respectfully submitted,
MARGOLIS EDELSTEIN
By:
MICHAEL M. BADOWSKI
Attorney for Defendants,
GEORGE SYLVESTRI, M. D ., AND
COWLEY MEDICAL ASSOCIATES,
P.C.
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ORTHOPAEDIC ASSOCIATES OF PRINCETON, PC
521 Executive Drive
Princeton, New Jersey 08540
(609) 924-4161
FAX (609) 921-1113
July 2, 2002
April Kutay, Esq.
Goldberg, Katzman & Shipman
P.O. Box 1268
Harrisburg, PA 17108-1268
Re: Carl Lebo
Dear Ms. Kutay:
At your request, I have reviewed the following with regarQ to the above-
captioned case:
1. Records of Dr. David Richard;
2. Records of Dr. Rubbo;
3. Records of Dr. Sylvestri;
4. Records of Home Health Care;
S. Report of Arnold 1. Lentnek, M.D. dated 6/27/99;
According to the records, Mr. Lebo had a work-related injury to his right
shoulder. He was seen by Dr. David Richard on 5/5198. Dr. Richard diagnosed the
probable rotator cuff tear and referred him to Harrisburg Orthopaedics.
Dr. Ernest Rubbo saw him on 5/6/98 upon referral from Dr. Richard. He noted
that Mr. Lebo was a 62-year-old male and, after examination, diagnosed a full-thickness
rotator cuff tear. When Mr. Lebo returned to Dr. Richard on 5120/98, after an MRI, he
was diagnosed as having a full-thickness rotator cuff tear. Operative and nonoperative
means of treatment were discussed and repair was scheduled for 5/27/98. At that time, an
open arthrotomy was performed with. a large tear involving the supraspinatus as well as
the subscapula:ris and a portion of the infraspinatus. There was disruption of the biceps
tendon. An acromioplasty was carried out as well as repair of the rotator cuff. Sta-Tek
sutures were used for the subscapula:ris tendon. When seen on 6/3/98, the wound
appeared to be healing nicely. On 6/16/98, Mr. Lebo was complaining of pain in the
right shoulder as well as fever. There was redness in the incision which Dr. Rubbo felt
was because of a reaction to the Vicryl suture. His diagnosis, however, was possible
postop infection, and the patient was started on Keflex orally. Mr. Lebo was to return in
two to three days or sooner if the symptoms worsened.
Ex. 1\"
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April Kutay, Esq.
Re: Carl Lebo
Page 2
On 6/17/98, Dr. Rubbo saw the patient and opened a "pustule" where purulent
fluid was found and a large Vicryl knot was cut out and cultures taken. Mr. Lebo was
admitted to the hospital for IV antibiotics.
On 6/22/98, an incision and drainage was carried out and it was noted that the
rotator cuff repair had fallen apart. All sutures were removed, and the cuff was felt to be
irreparable at this point. It was debrided to viable tissue and drains placed. Mr. Lebo
was discharged home on IV antibiotics on 6/26/98.
As of 6/30/98, he appeared to be doing well and was diagnosed as status post
failed repair of rotator cuff with postoperative infection. IV antibiotics were continued.
Sutures were removed on 717198, with no drainage or redness noted, and physical therapy
was started.
On 7/28/98, there was no pain but there was marked weakness.
On 9/1/98, therapy was decreased to once a week and the patient was to do
exercises on his own. It was felt that he could return to a light-dutY position. The
incision was well healed with no tenderness.
Exams on 9/30/98 and 11/10198 continued to show the marked weakness
which would be consistent with a rotator cuff tear or a failed rotator cuff repair. There is
no indication of further infection. As of 4/6/99, ten months after his repair, he was only
able to abduct the right shoulder 30-350 and he had marked weakness. Dr. Rubbo felt
there was little more he could offer.
DISCUSSION
Surgery was performed on 5/27 and, as of 6/3, according to Dr. Rubbo's notes,
the wound was "healing nicely."
The first mention of any evidence of a possible infection that Dr. Rubbo was
aware of was noted on the 6/16/98 visit. At that time oral antibiotics were prescribed.
The next day a drainage was carried out with a piece of Vicryl being removed and the
patient was immediately admitted to the hospital for IV antibiotics. Five days later, when
that failed to be of help, the patient was taken to the operating room at which time the
repair was found to have been disrupted. The standard of care at that point was to not
attempt to repair the disruption in the face of an infection, as the material used to make
the repair would only perpetuate the infection.
By June 17, 1998, with recognition of infection by Dr. Rubbo, substantial
damage had already occurred. Use of the IV antibiotics beginning on 6/17 certainly
greatly slowed down the infection, although an open debridement was necessary in order
to clean out and eradicate it. The disruption of the repair was substantially present by the
time of the 6/17 visit.
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April Kutay, Esq.
Re: Carl Lebo
Page 3
With respect to Dr. Sylvestri, who saw Mr. Lebo on 6/9/98 and 6/12/98, he
noted that the temperature on 6/9198 was 101.60. He also noted that he had been running
a temperature of 1010 for approximately one week. He noted on examination of the right
shoulder that there was decreased range of motion with no fluctuance or erythema around
the wound, but diagnosed a "fever of unknown origin."
He saw the patient again on 6/12/98, at which time he was still febrile 99-1020,
complaining of frontal headaches and a sore neck. The sedimentation rate was elevated
to 63. The temperature in the office was 990 and Dr. Sylvestri noted that he didn't look
toxic. His impression was a postoperative fever without a source. He noted that he
would expect increasing pain, erythema, swelling, and wound dehiscence if the joint were
infected. He planned to follow up in a week, but at that time the patient was already in
the hospital (6/17).
The records are consistent that on the first postoperative visit to Dr. Rubbo, on
6/3, the patient had no evidence of infection but shortly thereafter began having fevers.
Dr. Sylvestri's note a week later indicates that the patient's symptoms had been present
for about one week. It is most probable that if Dr. Sylvestri had referred the patient for a
possible infection at the time of the 6/9 visit the infection could have been treated without
disruption of the cuff. This was also possible as of 6/12. However, by the time Dr.
Rubbo saw the patient on 6/16, it was most probable that the cuff was already destroyed,
Dr. Rubbo did not take a history of temperature, fevers, chills, etc., when he saw the
patient on 6/16 and, therefore, deviated from the accepted standard of care. By this point
the damage had already been done. Dr. Sylvestri's failure to appropriately diagnose was
a substantial contributing factor in this patient's loss of his rotator cuff repair.
All of the above is stated to a reasonable degree of medical certainty.
This report should be considered preliminary as I would anticipate reviewing
any other records and/or deposition testimony if arid when such becomes available.
Should that cause me to change my opinions to any significant degree, upon your request,
I would then issue a fmal written report.
I am a board certified orthopaedic surgeon.
Please let me know if I can provide you with any further information.
Robert N. Dunn, M.D.
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ROBERT N. DUNN, M.D.
Address:
325 Princeton Avenue
Princeton, N.J. '08540
Date of Birth:
22nd March 1943
Place 0 f Birth:
Orange, New Jersey
Marital Status:
Married, I child
EDUCATION
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College of Physicians and Surgeons, Columbia: University, New York, New York, 1965-
1969, M.D.
Harvard University, Cambridge, Massachusetts, 1961-1965 A.B.
The Choate School, Wallingford, Connecticut, 1957-1961
GRADUATE TRAINING
Chief Resident and Senior Annie C. Kane Fellow, Orthopaedic Surgery, The New York
Orthopaedic Hospital, Columbia Presbyerian Medical Center, New York, New
York, July 1974 -June 1975 "
Resident and Junior Annie C. Kane Fellow, O$opaedic Surgery, The New York
Orthopaedic Hospital, Columbia PresbYterian Medical Center, New York, New
York, July 1973 - June 1974
A.ssistant Resident, Orthopaedic Surgery, The New York Orthopaedic Hospital,
Columbia Presbyterian Medical Center, New York, New York, July 1971 - June
L973
Resident, General Surgery, The Roosevelt Hospital, New York, New York, July 1970 -
June 1971
Intemship, Mixed Surgical, The Roosevelt Hospital, New York, New Yark, July 1969 -
June 1970
EX. "{j"
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UNIVERSITY TEACHING APPOlNTMENTS
Assistant Clinical Professor of Orthopaedic Surgery College of Physicians and Surgeons,
Columbia University, July 1, 1990 - June30, 1997.
Associate in Clinical Orthopaedic Surgery, College of Physicians and Surgeons,
Columbia University, July 1977 thru June 1990
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Instructor in Clinical Orthopaedic Surgery, College of Physicians and Surgeons,
Columbia University, July 1975 - June 1976
Visiting Clinical Fellow Ort!1opaedic Surgery, College of Physicians and Surgeons,
Columbia University, July 1914 - June 1975
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HOSPITAL APPOINTMENTS
Attending Orthopaedic Surgeon, The Medical Center at Princeton, Princeton, New Jersey.
Chainnan of Orthopaedic Surgery, The Medical Center at Princeton, Princeton, New
Jersey
MEDICAL LICENSES
New York
1970 (Inactive)
Florida
1970
New Jeney
1971
South ClU'olina
1971 (Inactive)
Maine
1979
BOARD CERTIFICATION
American Board of Orthopaedic Surgery - September 19, 1975
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PUBLICATIONS
Wisneski, RJ. and IJuJm, R.N.: "The Role of Fusion in Lumbar Disc Disease".
Seminars in Spine Surgery, 6:262-268,1994.
PRon;SSIONAL SOCIETIES
Diplomat, National Board of Medical Examiners
Member, New Jersey Medical Society
Member, Mercer County Medical Society
Member. New Jersey Orthopaedic Society
Fellow, American College of Surgeons "
Fellow, American Academy of Orthopaedic siiigery
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Member, Aerospace Medical Society
Member, Executive Committee of the Board of Trustees, Peer Review Organization of
New Jersey .'
Chairman of the Norms, Standards &: Criteria Committee of the Peer Review
Organization of New Jersey
Member, Board! of Trustees of Area VII PSRO
Member, Board of Trustees of Sports Medicin~ Society of New Jersey
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GENERAL
Senior Aviation Medical Examiner, Federal AViation Administration
Aircraft Accident Examiner, Federal Aviation Administration
Holder of Airline Transport Pilot Certificate Aizplane, Multi and Single Engine Land
with Commercial Privileges, Single Engine Sea
Certified Flight InstrUCtor and Instrument Instmctor - Airplane Single and Multi Engine.
January 2000
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CERTIFICATE OF SERVICE
I HEREBY CERTIFY that I served a true and correct copy
of the foregoing on all counsel of record by placing the same in
the United States mail at Camp Hill, Pennsylvania, first-class
postage prepaid, on the
day of
, 2004, and
addressed as follows:
April L. Strang-Kutay, Esquire
GOLDBERG, KATZMAN & SHIPMAN, P.C.
320 Market Street
P.O. Box 1268
Harrisburg, PA 17108-1268
(Counsel for Plaintiffs)
MARGOLIS EDELSTEIN
By:
Secretary
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MICHAEL M. BADOWSKI, ESQUIRE
Pa. Supreme Court 1.0. No. 32646
MARGOLIS EDELSTEIN
3510 Trindle Road
Camp Hill, Pennsylvania 17011
Telephone:
Fax:
E-Mail:
[717] 975-8114
[717] 975-8124
mbadowski@margolisedelstein.com
Attorney for Defendants:
GEORGE SYLVESTRI, M.D., AND COWLEY
MEDICAL ASSOCIATES, P.C.
CARL R. LEBO AND BEVERLY ANN
LEBO, HIS WIFE,
PLAINT I FFS,
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNA.
CIVIL ACTION - LAW
VS.
DOCKET NO. 00-2990 CIVIL TERM
GEORGE SYLVESTRI, M.D., AND
COWLEY MEDICAL ASSOCIATES, P.C.,:
DEFENDANTS. JURY TRIAL DEMANDED
BRIEF IN SUPPORT OF
MOTION OF DEFENDANTS. GEORGE SYLVESTRI, M. D. AND
COWLEY MEDICAL ASSOCIATES. P.C..
TO PRECLUDE TESTIMONY OF ROBERT N. DUNN. M.D.
I . HISTORY OF THE CASE
Plaintiffs commenced the above-captioned medical malpractice
action by Complaint on or about May 12, 2002. Plaintiffs allege
generally that Defendant, George Sylvestri, M.D.
(~Dr. Sylvestri"), failed to diagnose a post-operative infection
and, as a result of the failure to diagnose, that Plaintiff
sustained economic and non-economic damages. Plaintiffs have now
proffered reports from three (3) physicians: Arnold L. Lentnek,
M.D., a family physician; Robert C. Steinman, M.D., a
physiatrist; and Robert N. Dunn, M.D. Dr. Sylvestri is board
certified in internal medicine and was providing medical care to
Plaintiff-Husband as a primary care physician. By letter dated
July 2, 2002, one of Plaintiffs' proffered expert witnesses,
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Robert N. Dunn, M.D. ("Dr. Dunn"), opines that Dr. Sylvestri
deviated from the accepted standard of care by failing to
diagnose the infection and by failing to make a timely referral
back to Plaintiff's treating orthopedic surgeon, Ernest G. Rubbo,
M.D. It is clear from Dr. Dunn's curriculum vitae that Dr. Dunn
is not board certified in internal medicine nor any other sub-
speciality thereof, but, rather, is board certified in the
medical speciality of orthopedic surgery. Accordingly, it is
submitted, for the reasons set forth below, that Dr. Dunn is
incompetent to testify as to the standard of care applicable to
an internist and is otherwise incompetent to provide testimony
that Dr. Sylvestri's conduct deviated from that standard of care.
Pa. R.E. No. 403 provides for the exclusion of relevant evidence
where presentation will cause undue delay, waste of time, or
needless presentation of cumulative evidence.
Inasmuch as Plaintiffs have proffered a report from an
individual certified in internal medicine, Dr. Dunn's anticipated
testimony is cumulative, at best, and, therefore, for this reason
should be excluded. Moreover, ~512 of the MCARE Act, 40 P.S.
~1303.512(b), requires that an expert intending to offer medical
opinion in a medical professional liability action on issues
related to a physician's standard of care:
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(1) Be substantially familiar with
the applicable standard of care for
the specific care at issue as of
the time of the alleged breach of
the standard of care.
[and]
(2) Practice in the same sub-
speciality as a defendant physician
or in a sub-speciality which has a
substantially similar standard of
care for the specific care at
issue, except as provided in sub-
sections (d) or (e).
From a reading of Dr. Dunn's curriculum vitae, it is clear that
he does not possess the requisite qualifications required by ~512
of the MCARE Act to express opinions regarding the standard of
care exercised by Dr. Sylvestri and, therefore, his proposed
testimony on this matter must be precluded as a matter of law.
Accordingly, Defendants have filed a Motion in Limine to
preclude the proffered expert testimony of Dr. Dunn. This Brief
is in support of that Motion.
II. STATEMENT OF THE QUESTION INVOLVED
WHETHER AN ORTHOPEDIC SURGEON, ,WHO IS NOT
TRAINED IN THE SUB-SPECIALITY OF INTERNAL
MEDICINE, SHOULD BE PRECLUDED FROM OFFERING
EXPERT TESTIMONY ON THE STANDARD OF CARE
APPLICABLE TO AN INTERNIST PURSUANT TO THE
STATUTORY REQUIREMENTS OF ~512 OF THE MCARE
ACT, 40 P.S. ~1303.512(b)?
[Suggested answer in the affirmative.]
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III. DISCUSSION
AN ORTHOPEDIC SURGEON, WHO IS NOT TRAINED IN
THE SUB-SPECIALITY OF INTERNAL MEDICINE,
SHOULD BE PRECLUDED FROM OFFERING EXPERT
TESTIMONY ON THE STANDARD OF CARE APPLICABLE
TO AN INTERNIST PURSUANT TO THE STATUTORY
REQUIREMENTS OF ~512 OF THE MCARE ACT, 40
P.S. ~1303.512(b).
Rule 403 of the Pennsylvania Rules of Evidence allows for
the exclusion of relevant evidence where presentation of the
relevant evidence will cause undue delay, waste of time, or
needless presentation of cumulative evidence. Pa. R.E. 403. In
addition, relevant evidence may be excluded if its probative
value is outweighed by the danger of unfair prejudice. Pa. R.E.
403. The official commentary to Pa. R.E. 403 defines nunfair
prejudice" as na tendency to suggest decision on an improper
basis or to divert the jury's attention away from its duty of
weighing the evidence impartially." Pa. R.E. 403, Comment. See
Morrison v. Commonwealth Dept. of Pub. Welfare, 538 Pa. 122, 646
A.2d 565 (1994) (stating that relevant evidence can be excluded if
its probative value is noutweighed" by unfair prejudice) .
It is a well-established rule of evidence in Pennsylvania
that relevant testimony may be excluded if it is cumulative in
nature. It is proper to exclude testimony that is virtually
identical to prior testimony given by other witnesses at the
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trial since the testimony is merely cumulative evidence.
Schecter v. Watkins, 395 Pa. Super. 363, 577 A.2d 585 (1990).
Admission of cumulative evidence is prejudicial because it tends
to improperly suggest to a jury that the cumulative evidence
should be given additional weight. See Gallegor by Gallegor v.
Felder, 478 A.2d 34 (Pa. Super. 1984). The trial court has broad
discretion with respect to expert testimony and may in its
discretion exclude witnesses from testifying. Hannis v. Ashland
State General Hospital, 545 A.2d 574 (Pa. Cmwlth. 1989). The
court has the power to limit the number of witnesses on a
particular phase of the case in order to prevent cumulative
testimony, Commonwealth of Pennsylvania v. Amoroso, 239 A.2d 878
(pa. Super. 1968).
Admission of the cumulative expert opinions by Drs. Dunn
and Lentnek concerning the standard of care applicable to
Dr. Sylvestri would be prejudicial to Dr. Sylvestri, because it
would have a tendency to suggest a decision on an improper basis.
Accordingly, Dr. Dunn should be precluded from offering any
testimony regarding the standard of care applicable to Dr. Dunn,
as such testimony would be cumulative of that of Dr. Lentrek.
Dr. Sylvestri is a board certified internist. Dr. Dunn is
an orthopedic surgeon. Dr. Dunn's curriculum vitae demonstrates
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that he does not possess any experience or training in internal
medicine.
In order for expert testimony to be admissible at trial, the
expert must be qualified as an expert in the subject on which he
is testifying. Pa. R.E. 702; Miller v. Brass Rail Tavern, Inc.,
541 Pa. 474, 664 A.2d 525 (1995). If a witness possesses neither
experience nor education in the subject matter under
investigation, he is not to be qualified as an expert witness on
that subject matter. Dierolf v. Slade, 581 A.2d 649 (Pa. Super.
1990) (citing Dambacher v. Mallis, 485 A.2d 408, 418-19 (Pa.
Super. (1984), allocatur denied, 500 A.2d 428 (Pa. 1985)). The
determination of whether a witness is qualified to testify is
within the discretion of the trial court. Corrado v. Thomas
Jefferson University Hospital, 790 A.2d 1022 (Pa. Super. 2001);
West Philadelphia Therapy Center v. Erie Insurance Group, 751
A.2d 166, 1168 (Pa. Super. 2000).
The MCARE Act has codified specific requirements for experts
who intend to provide opinions as to the standard of care
applicable to a defendant physician at the time of trial. The
Act provides:
Section 512. Expert
qualifications.
(a) General rule. - No person
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shall be competent to offer an
expert medical opinion in a medical
profession liability action against
a physician unless that person
possesses sufficient education,
training, knowledge and experience
to provide credible, competent
testimony and fulfills the
additional qualifications set forth
in this section as applicable.
(b) Medical testimony. - An expert
testifying on a medical matter,
including standard of care, risks
and alternatives, causation and the
nature of and extent of the injury
must meet the following
qualification:
(1) Possess an unrestricted
physician's license to practice
medicine in any state or the
District of Columbia.
(2) Be engaged in or retired
within the previous five years from
active clinical practice or
teaching. Provided, however, the
court may waive the requirements of
this subsection for an expert on a
matter other than the standard of
care if the court determines that
the expert is otherwise competent
to testify about medical or
scientific issues by virtue of
education, training or experience.
(c) Standard of care. - In
addition to the requirements set
forth in subsections (a) and (b),
an exert testifying as to a
physician's standard of care also
must meet the following
qualifications:
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(1) Be substantially familiar with
the applicable standard of care for
the specific care at issue as of
the time of the alleged breach of
the standard of care.
(2) Practice in the same sub-
specialty as the defendant
physician or in a sub-specialty
which has a substantially similar
standard of care for the specific
care at issue, except as provided
in subsection (d) or (e).
(3) In the event the defendant
physician is certified by an
approved board, be board certified
by the same or similar approved
board, except as provided
in subsection (e) ....
40 P.S. ~1303.512.'
The law is clear that an expert must be qualified to comment
and express opinions about the specific care at issue, during the
specific time of the alleged breach of the standard of care. 40
P.S. ~1303.512(c) (1). Miller; Dierolf. Being experienced in a
particular sub-specialty is not sufficient to qualify to testify
'40 P.S. Section 1303.512(c), effective sixty (60) days
after the passage of the act in March 2002, was part of the
legislative efforts to reform professional negligence tort law in
the Commonwealth of Pennsylvania. As to the effective date, see
40 P.S. Section 1303.5108. A thorough review of the published
case law of this Commonwealth has failed to reveal any Opinions
construing this section and/or the factors that a court should
find persuasive in applying the equivalency provisions of 40 P.S.
Section 1303.512(b).
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as an expert about a particular procedure if the expert does not
personally have any training or experience in that procedure.
See Britt v. Peff, Phila. CCP, December Term 1999, No. 3206
(October 10, 2003); Callari v. Rosenwasser, 63 Pa. D&C.4th 366
(Phila. CCP, August 7, 2003). "Pennsylvania courts have ruled
that 'it may appear that the scope of the witness' experience and
education may embrace the subject in question in a general way,
but the subject may be so specialized that even so, the witness
will not be qualified to testify.'N Britt, at 15 (quoting
Dambacher v. Mallis, et al., 485 A.2d 408, 419 (Pa. Super.
1984) ) .
The trial courts have recently had the opportunity to
address the expert requirements in the MCARE Act. In Britt, the
Honorable Allan L. Tereshko ruled that a general surgeon did not
possess the specialized training, knowledge or experience to
offer opinions as to the care by an orthopedic surgeon, despite
the fact that the issues in the case involved whether an oblique
x-ray should have been taken and whether the Defendant physician
failed to timely diagnose and treat the patient's RSD. In that
case, the Plaintiff suffered a tibia-fibula fracture, which
Dr. Thomas Peff treated. Dr. Peff is an orthopedic surgeon.
Plaintiff sought to present the expert testimony of Dr. Moshen
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Vahedi, a general surgeon, as to the standard of care applicable
to Dr. Peff. The Court initially denied Defendant's Motion in
Limine to Preclude Plaintiff from Presenting the Expert Testimony
of Dr. Vahedi. However, following voir dire of Dr. Vahedi during
trial, the Court ruled that Dr. Vahedi did not meet the
requirements for an expert permitted to testify against Dr. Peff
as to the standard of care in a medical malpractice case.
Specifically, Plaintiff argued that Dr. Vahedi had sufficient
ftcross-overn training as a surgeon to make him substantially
familiar with the standard of care applicable to Dr. Peff. The
Court found that Dr. Vahedi had virtually no education, training
or experience in orthopedic surgery, was not Board certified in
orthopedic surgery or by a similar board, and he had never
practiced in the subspecialty of orthopedic surgery. The Court
held that under existing Pennsylvania case law and Section 512 of
the MCARE Act, Dr. Vahedi failed to meet the requirements to
testify as an expert against Dr. Peff. The court noted that
ftpennsylvania courts have ruled that 'it may appear that the
scope of the witness' experience and education may embrace the
subject in question in a general way, but the subject may be so
specialized that even so, the witness will not be qualified to
testify.,n Britt, at 15 (quoting Dambacher v. Mallis, et al., 485
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A.2d 408, 419 (Pa. Super. 1984)). The Court ruled that
Dr. Vahedi's experience and education in general surgery did not
qualify him in the specialized are of orthopedic surgery, and he
was not substantially familiar with the standard of care, nor did
he practice in Dr. Peff's subspecialty or in a sub-specialty with
a similar standard of care. Britt, at 16.
More recently, the Honorable Michael F. George of Adams
County had an opportunity to consider the application of the
MCARE Act in a situation where an orthopedic surgeon was being
offered as an expert against four (4) physicians, two (2) of whom
were radiologists, one a board certified emergency room
physician, and the fourth, a board certified family practice
physician. In what can be described as a thoughtful, if not
exhaustive, analysis of Pennsylvania law, including the more
recently enacted MCARE Act, Judge George ultimately determined an
orthopedic surgeon was not qualified under the Act to render
standard of care opinions against a family practice physician. A
copy of Judge George's Opinion in McGlaughlin v. Gettysburg
Hospital, 99 S. 675 (Adams Co. Slip Op. Sept. 12, 2003) is
attached hereto, incorporated herein by reference and marked as
Exhibit A.
There is no indication that Dr. Dunn has any experience or
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training in the area of internal medicine. Certainly, his
training and expertise lies in the area of orthopedic surgery.
Accordingly, Dr. Dunn does not practice in the same speciality or
sub-speciality as does Dr. Sylvestri. Accordingly, Dr. Dunn is
not competent to provide expert testimony regarding the standard
of care applicable to Dr. Sylvestri.
IV. CONCLUSION
For the reasons stated above and in light of the precedent
cited in support thereof, Detendants, George Sylvestri, M.D. and
Cowley Medical Associates, P.C., pray this Honorable Court enter
an Order precluding testimony from Robert N. Dunn, M.D. on the
issue of standard of care or any alleged deviation thereof,
pursuant to Pa. R.E. No. 403 and 40 P.S. 31303.512.
Respectfully submitted,
MARGOLIS EDELSTEIN
By:
MICHAEL M. BADOWSKI
Attorney for Defendants,
GEORGE SYLVESTRI, M.D., AND
COWLEY MEDICAL ASSOCIATES,
P.C.
Date:
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IN THE COURT OF COMMON PLEAS OF ADAMS COUNTY, PENNSYLVANIA
CIVIL
MICHAEL S. McGLAUGHLIN and
TAMMY J. McGLAUGHLIN,
Plaintiffs
99-5-675
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THE GETTYSBURG HOSPITAL,
RUKHSANA K. RAHMAN, M.D.,
GREGORY J. CODORr, D.O., i .'
~nd JOHN DUFENDACH, M.D.,
Defendants
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OPINION
This matter comes before the Court onthe Defendants' Pre-trial Motion in Limine
and concurrent Motion for: Summary Judgm~[1t. Resolution of the issues raised by the
Defendants requires a brief review of the uptortunate history underlying the Plaintiffs'
Complaint.1
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On January 15, 1999, Plaintiff Michael McGlaughlin (hereinafter referred to as
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"McGlaughlin") was transported via ambul~iice to the emergency room of Defendant
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Gettysburg' Hospital. McGlaughlin's family ~'ipembers contacted ambulance personnel
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after their interaction with him that moming:alerted them that he might need medical
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treatment. Apparently. McGlaughlin was piiiyiOUsly diagnosed with juvenile myoclonic
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epilepsy. Prior to the morning of January 1~, 1999, McGlaughlin noticed that previous
minor twitching and occasional jerking of his arms had been steadily increasing. On the
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morning of January 15, 1999, he complained to family members that he was not feeling
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well and wished not to go into work' right away.
1 The factual recitation set forth in this opinion is base4 upon allegations in McGlaughlin's Complaint and
McGlaughlin's experts' reports which w~r~ PrQvided to'lI1El C(llJrt. In considering the Defendants' Moti~n
in Limine, I presume that McLaughlin ..vOl present evidence consistent with the allegations underlying hIS
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08/04/2004 WED 11:03 ~'AA 717 540 3434 !llCIUSSOCK &'Jionmau. r\C
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and 17 are dismissed with prejudice. The1;mefendants' Motion for Summary Judgment
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is denied in regard to Counts 5. 11, 15 and' 21 , however. the Plaintiffs' claims in Counts
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11 and 21 are limited to the negligence, if atty, attribUtable to Dr. Rahman.
BYTHE COURT:
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08/04/2004 WED 11:04 ~AX 717 04U 3434 MCAlSSOCK & tlo!!mau, r~
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Upon McGlaughlin's arrival at the Gettysburg Hospital Emergency Room on the
morning of January 15,1999, Defendant Dr. Gregory Codori, examined him. Dr. Codori
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conducted an initial examination and decide,d to obtain a CT scan of McGlaughlin's
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brain. McGlaughlin was transferred to the,l~rttySbUrg Hospital Radiology Department
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for the CT scan. During the CT scan, McGlaughlin experienced a grand mal seizure
which caused convulsions.
Hospital personnel, including Dr. Codori, injected
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McGlaughlin with the anti-seizure drug, Ativan. However, despite the ongoing seizure,
the Radiology Department continued with the CT scan. From start to finish,
McGlaughlin's seizure lasted approximately thirty minutes. Following his seizure,
McGlaughlin was postictal and developed 'rood's paralysis.2 He remained at the
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emergency room for several hours until h~lwas released to return home. Upon his
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release he was prescribed Depakote and ad\iised to return to the emergency room if he
had any further problems. He was further couhseled to contact a neurologist.
The follOWing day, McGlaughlin complained of substantial pain in his neck and
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shoulder area. He attributed the pain to hi~seizure and remained in bed aU day. On
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January 17, 1999; McGlaughlin's pain w~s unbearable and he returned to the
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Gettysburg Hospital Emergency Room. Accprding to McGlaughlin, Defendant Dr. John
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Dufendach treated him at the Gettysburg H9spital Emergency Room. Dr. Dufendach
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,diagnosed him with thoracolumbar muscle' i~train due to the seizure he suffered on
January 15, 1999. Dr. Dufendach did not cpnduct any x-rays prior to his diagnosis.
"
claim, of which lhe Defendants seek to limit in their Motion in Limine. Commonwealth v. Pikur
/Enterprises, Inc., 596 A.2d 1253, 1259 (pa.Cmwllh. 1991). . .
a Todd's paralysis is post-epilep~c paralysis lasting a few 1T111lutes, hours, or occasionally, several days
after a seizure. Mosby's Medical, Nursing, & Allied Hea)lh Dictionary 1719 (6th ed. 2002).
"
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According to McGlaughlin, Dr. Dufendach suggested as a result of his examination that
McGlaughlin visit a massage therapist.
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Apparently McGlaughlin's pain did nq~'subsist but rather continued to the extent
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that on January 20, 1999 McGlaughlin,:~isited his family physician, Dr. Adam
Wasserman. By order of Dr. Wasserman, an x-ray of McGlaughlin's thoracic spine was
performed at Gettysburg Hospital on Janu~,y 26, 1999. Defendant Dr. Rukhsana K.
Rahman,.a radiologist at Gettysburg Hospit?cl,' interpreted the thoracic spine x-ray. Dr.
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Rahman's interpretation diagnosed a "focal; 'mild, sharp angle scoliosis3 in the upper
. thoracic spine, probably related to a cong13nital anomaly of T-5 and possibly T-4
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vertebral bodies". After receiving continued:\cOmPlaints of pain from McGlaughlin, Dr.
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Wasserman personally reviewed McGlaug,9Iin's thoracic spine x-rayon January 28,
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1999. Dr. Wasserman read the thoraqic'spine x-ray to indicate that McGlaughlin
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suffered from "compression fractures" and di~~cted that an immediate CT scan and MRI
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be performed. The subsequent tests, cond~:Gted at Gettysburg Hospital, confirmed Dr.
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Wassermal'!'s interpretation that McGlaughlin had suffered a fractured vertebra.
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Following discovery of the fractu~~~ vertebra, McGlauglin visited several
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neurologists and neurosurgeons seeking oplriions as to treatment. As a result of the
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recommendation from one of his treating ptiysicians, McGlaughlin underwent surgical
intervention at York Hospital on March 10, 19~9. Currently, he claims that as a result of
his injury, he suffe~ed severe pain in his splrt'e and back. He further alleges that he is
permanently disabled and unable to worlkt in any capacity. He claims to have
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3 Scoliosis is a lateral curvatur!l of the spine. See Mosby's, cited above at n.2, at p. 1546.
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08/04/2004 WED 11:05 ~AX 717 54U 3434 MCKISSOCK & ~orrman. r~
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subsequently endured a substantial loss \:>t life's pleasures.4 On October 7, 1999,
McGlaughlin initiated a medical malpractice action against a number of physicians,
medical personnel and Gettysburg HosPit~1. During the course of the litigation, a
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number of the issues involving several defendants have been resolved. The remaining
defendants and issues for trial consist of the;f,ollowing:
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i) a negligence claim against Dr.,Rukhsana K. Rahman based upon
an alleged failure to properly read McGlaughlin's January 26,1999
thoracic spine x-ray; ,1',
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Ii) a negligence claim against Dt;~, Gregory Codori for his a~tions on
January 15, 1999 for:'
a) failing to properly supervi~~rthe administering of the CT
scan;;
b) failing to appropriately tre,~tMcGlaughlin when he went
into a grand mal seizure; "':,
c) improperly instructing m~~ical personnel to restrain
McGlaughlin during his graq~ mal seizure;
d) failing to call for assistanc19',after McGlaughin went into
grand mal seizure; Xii
e) attempting to administer a q;r scan without the radiologist
present during the scan;;:'"
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f) failing to document the gr.~nd mal seizure McGlaughlin
experienced; J\
g) failing to properly follow-tip and evaluate McGlaughlin
following his seizure; and\;~r..
h) failing to stop the CT scan upon commencement of
McGlaughlin's grand mal seizure.
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iii) a negligence claim against o,r~ John Dufendach based upon Dr.
Dufendach's alleged negligen~:in:
a) failing to properly examine)~lOd diagnose McGlaughlin's
injuries during the examinaponon January 17, 1999;
b) failing to order appropriat~tests during the examination
of McGlaughlin on Januar)i:l7, 1999; and
c) advising McGlaughlin to urtdergo physical therapy.
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4 McGlaughlin's wife, Tammy J. McGlaughlin, jOi~~d McGlaughlin's civil action by filing a loss of
consortium claim against the respective Defendants.::' .
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McGlaughlin's vicarious
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liability claim against the Gettysburg
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Tammy McGlaughlin's loss o~;:consortium claim against the four
above-named Defendants. . .j,
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The several Defendants' current Mption in Limine seeks to preclude the
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testimony of McGlaughlin's two expert witnesses, Dr. Peter G. Bemad and Dr. Thomas
K. Howard. Specifically, the Defendants argue that McGlaughlin's experts lack the
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qualifications necessary to express opinion~i.regarding the standard of care applicable
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to the Defendant doctors. The Defenda~ts further move the Court for summary
judgmel'lt reasoning that since a breach of ?,~tandard of care isa necessary element of
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a, medical malpractice claim, McGlaughli~'s inability to present qualified expert
testimony in this regard necessitates summ~~ judgment in their favor.
Prior to addressing the sUbstantiv~;i~)ssues raised by the Defendants, it is
:-T,
:{,{
important to clarify the procedural posture of,'itlis matter. GeneraJly, the specific training,
(,_L
and experience of a potential expert Witri~~s is to be explored at trial in order to
,/J~;
determine whether the witness qualifies as Jgt'expert in the field at issue. See Rauch v.
tL,:.;::
Mike-Mayer, 783 A.2d 815, 823 n.6 (Pa.~~per. 2001). This principle reflects long-
';~1
standing precedent that the credibility of eviclEi,nce is normally not a proper consideration
;~1~ . .
at the summary judgment stage. See gen~rally Resolution Trust Corp. v. Urban
',~-,>,
,
Redevelopment Auth., 638 A.2d 972, ~75 (Pa. 1994). However, perhaps in
recognition of the significance of the testimctny at issue to the viability of McGlaughlin's
~: .
.rti~,~
causes of action, the current parties hl;\Ve agreed to submit the issue of the
"
qualifications of McGlaughlin's experts to tl1~9ourt for disposition prior to the selection
. ~I ~~~/
of a jury and commencement of trial. purs,ilant to this agreement, the parties have
"'[
.~,;;.
5
08/04/2004 WED 11:07
I' , ,,~ "'__ - . . __, ~__
}l'A.! 71'/ ~4U 3434 M.C1\l.SSOCK &. l10J..LillClU. r\...
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submitted deposition transcripts of Doctors Brrnad and Howard as an offer of proof for
the Court's consideration of this issue. Acckfding1y, in light of the parties' agreement, I
will undertake to rule upon this issue basecl~;upon the offer of proof presented by the
parties.
,i\
Historically, the standard for qualifyiri'das an expert witness in Pennsylvania has
been a fiberal one. Von Der Stuck v. Ajs~~ Concrete, Inc., 779 A.2d 570, 573-74
,,'-'
~Wj, .
(Pa.super. 2001). (n Miller v. Brass R~R Tavern, 664 A.2d 525 (Pa. 1995), the
Hi'
Pennsylvania Supreme Court enunciatedth,~ common law test to be applied when
qualifying an expert witness is "whether thJ~~tness has any reasonable pretension to
'~fj
1':i:
specialized knowledge on the subject unde~ investigation". Id. at 528 (emphasis in
, ,
original). If the expert witness's qualificat\<ms satisfied this very lenient standard,
+.'}'f~,
Pennsylvania common law permitted the ~~pert to testify (eaving the trier of fact to
~#:~K
determine the weight to be given to such tes!imony. Von Der Stuck, cited above.
:~~,t
However. the Medical Care AvailabiIityand Reduction of Error Act's (hereinafter
<,l~t~.
referred to, as "MCARE") enactment on \~i3.rch 20, 2002 preempted Pennsylvania
. 'rt~~';,
common law in this area.5 MCARE, accordihg to its own language, is a by-product of
.'11~!.
the General Assembly's effort to allow for li.:prompt determination of litigation and fair
.:~~.
compensation to those injured as a result .pf: medical negligence. while attempting to
",l.
maintain medical professional liability insurgitce at an affordable and reasonable cost.
, ,t.~;
See 40 P.S. 9 1303.102. In furtherance of"that effort, MCARE codifies the standards
J~i;"
5 Although the conduct at issue occurred on SePtem6~r 15.1999 and MCARE did not become effective
until March 20. 2002. neither party questioned the appUcability of MCARE to the current facts. Because
MCARE sets the'standard a witness must meet in Qrder to provide an expert opinion. a prospective
application of it from its effective date makes it appii&ble to the current issue. Although McGlaughlin
may have retained both experts prior to MCARE's 'enactment, their expert medical testimony will not
occur until trial which has not yet commenced. See, C,~narj v. Rosenwasser, 2003 WL 21911912 (C.P.
,-
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08/0412004 WED 11:07 FAX 717 540 3434 JlICKlssocl< &'HOnman. t'"
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that a witness must meet in order to offer e*;ert medical testimony against a physician
,i::ts .
'V"- .
in a medical professional liability action. M~~RE, in relevant part, provides:
',~
(a) General Rule.-No person s~~1I be competent to offer an expert
medical opinion in a medical. pr,pfessionalliability action against a
physician unless that perso~;; possesses sufficient education,
training, knowledge and experiElnce to provide credible, competent
testimony and fulfills the addjt!pnal qualifications set forth in this
section as applicable. ;;"\'
,-5
,:-, ~
(b) Medical testimony.-An e~~rt testifying on a medical matter,
including the standard of care,i(lsks and alternatives, causation,and
the nature and extent of the ini\!liY' must. . .
r~r~'"
-,;~"
(1) Possess an unrestricted Rbysician's license to practice
medicine...."
{.>,
(2) Be engaged in or retired ~thin the previous five years
from active clinical practice,pr teaching.
;,'l"
- ~~
Provided, however, the court may w~t~e the require~ents of this subs~ction for
an expert on a matter other than the standard of care if the court determmes that
the expert is otherwise competent to1t~stify about medical or scientific issues by
virtue of education, training or experierlce.
':i;:IT"
",'~;'
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(c) Standard of care...,... . . . al!:~?<pert testifying, as to a physician's
~' il;'"''
standard of care must also me~ the following qualifications:
,",
-\t:.;
(1) Be substantially familiar with the applicable standard of
care for the specific care ;;It issue as of the time of the
alleged breach of the stand~r,p of care.
"j'?_~\
(2) Practice in the same sub~peciafty as the defendant
physician or in a subSpeci?J~y which, has a substantially
similar standard of care (elr the specific care at issue,
. except as provided in subse,4tion (d) or (e).
'."*
;;~~ .
(3) In the event the defendarifphysician is certified by an
approved board, be board;,certified by the same or a
similar approved board, eX9~pt as provided in subsection
(e).
I
1/
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II
1/
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Philadelphia Aug. 12, 2003) (this opinion. is. however/an unpublished slip opinion). Since neither party
has challenged the applicability of MCARE. further disfl!ssion on this issue is unnecessary.
,',./;.-
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0&/04/2004 WED 11:08 Fll 717 04U 3434 D1C1\lSSOCK ",,11011W=. ,....
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(d) Care outside specialty.-A court may waive the same
subspecialty requirement for arrexpert testifying on the standard of
care for the diagnosis or tre;atment of a condition if the court
determines thatt
) ~ [L
(1) the expert is trained in the:'9iagnosis or treatment of the
condition, as applicable; an~<;
(2) the defendant physician provided care for that condition
and such care was not wlt~in the physician's specialty or
competence. c '
(e) Otherwise adequate training, experience and knowledge.:"-A
court may waive the sam~~specialty and board certification
requirements for an expert te.s$!fying as to a standard of care if the
court determines that the e?Jipert possesses sufficient training,
experience and knowledge to:rprovide the testimony as a result of
, active involvement In or full;time teaching of medicine in the
applicable subspecialty or a related field of medicine within the
previous five-year time period. ,$::
40 P.S. 9 1303.512.6 . ;"
"--,L
(n reviewing this recent legislation, it i~~apparent the initial issue for determination
"'h_",
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concerns during which time period a pr6spective expert's qualifications are to be
:'J;1, ~,
considered. Specifically, the language of S~ction 512 begs the question of whether the
~~\-,,;:
. 4~
critical foea! point for the five-year period r~renced by subparagraph (b)(2) is the time
of the alleged negligent act; the time the exiiert witness's testimony is presented to the
'f;.'
fact finder; or both. Section 512 does not e'iwresslY provide the answer to this issue. It
is important. therefore, to rely upon the instrHction of our appellate courts in interpreting
.;-]'
statutory language.,
The aim of a court in statutory constfuctionis to ascertain and effectuate the
legislature's intent. 1 Pa.C.S.A. ~ 1921(a); ~onk-SuJIjvan v. State Farm Mut. Auto.
'jl:
6 Appellate court interpretation of this statutory pr9~ision is non-existent since the application of the
statute Is in its infancy. Thus, guidance in addressi~ the issues the Defendants raised is sparse. An
exhaustive search for precedent reve!lJed only two'9lher Courts of Common Pleas addressed issues
\t:i
8
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08/04/.2UU4 W1!:.L> 11:UI:I !'l-A.!. III ,;)4U ,)f.i,)f.i l!U":1\J.SSUc.;K
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';;':-
Ins. Co., 746 A.2d 1118, 1120-21 (Pa.Super. 1999). When construing a statute, a court
begins with the presumption that our legislatu're did not intend any statutory language to
exist as mere surplusage and, accordingly,,~~urts must construe a statute so as to give
:.:--.Ii
effect to every word contained therein whe~~ver possible. Keystone Aerial Surveys,
Inc. v. Pennsylvania Guar,Ass'n, 777 A.2~~84, 90 (Pa.Super. 2001). When words of
a statute are not explicit, courts may consider; among other matters:
.'1,'
. . . the occasion and n~cessity for the statute, the
circumstances under which i(was eritacted, the mischief to
be remedied, the object to be attained, the former law, if any,
including other statutes upon ;t~e same or similar subjects,
the consequences of a p~rticular interpretation, the
contemporaneous legislative~,j~tory and the legislative and
administrative interpretations otthe statute.
Meier v. Maleski, 670 A.2d 755 (Pa.CmwlthJ!;1996) (citing 1 Pa.C.S.A. {; 1921 (c)(1-8)),
("
:~:J'
The General Assembly's declaration ,'91 policy provides insight into the necessity
~'::~i:.
of MCARE. MCARE's purpose, as stat~d by the legislature, is to allow fair
,:i
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!.
, 'i
."-;' .
'compensation to those injured due to medical negligence while insuring that medical
i1:;:::"
care is available throughout the CommonW~~lth. 40 P.::.. 91303.102. The legislature
further recognized that in order to mai&tain high quality health care, "medical
;",!(.
professional liability insurance has to be d,~t.inable ,at an affordable and reasonable
, '~':i,:,;:~
~,;.~ .
cost. . . ." ld. Clearly, MCARE was enacte4:iat a time when the legislature was facing a
o '
health care crisis in the Commonwealth which has been attributed to the soaring costs
':~:::~~'
of professional liability insurance.7 It appear#:that MCARE is an early effort to address
"
,
,
F
;.
\1
related to the applicability and interpretation of this J~btion. See Callari, 2003 WL 21911912; Spotts v.
Small, 61 D.&C.4th 225 (C.P. Lancas(er2003). :ii'
7 While there was substantial debate among the legislature as to the cure for the health care crisis, a
reading of the legislative journal concerning enad~ent of this legislation confirms the legislature's
concern over spiraling medical malpr13ctiefl insurafjqe costs, For instance, see Commonwealth of
Pennsylvania Legislative Journal, House of Representetives, pp. 88-140 (Jan. 29, 2002); pp. 297-323
(Feb. 13, 2002). Additionally, a survey of publishe? leports during the relevant time period reveals a
9:)~r
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08/04/2004 WED 11:09
FAX 717 540 3434 McKlssoc~ & Horrman. ~~
"
-,.-;
'-'.
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this ongoing issue. Legislative efforts to st~f.ll exorbitant professional liability expenses
have been complimented by efforts of the p,~~,psytvania Supreme Court to bring medical
.:~!:~
malpractice litigation under control. For irl~tance, the Pennsylvania Supreme Court
amended the Pennsylvania Rules of Civil pfqcedure to limit the number of appropriate
.",
venues for a medical professional liability a~tion, see Pa.R.C.P. 1006(a.1), and place
",1. ,
_1.-'
additional hurdles on the filing of complaint~which assert a professional liability claim.
,
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, -,
See Pa.R.C..P. 1042~ 1, et. seq. ";'~
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When viewed against this backgrouJ;ld, a reading of the language of MCARE
;::~j~,l,
Section 512 reveals its purpose is to nartSw the liberal common law standard for
'~~i,
admission of expert testimony in medicatLmalpractice actions by placing' a more
stringent standard on the admission of sd6h testimony. At least one other court
-';,; ,\'~
interpreting this section concurs that .the pyffiose of the legislation is restrictive. See
Spotts, 61 D.&CAth at 235.
,-"
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Although the legislative history of Seqtiqn 512 is generally unremarkable, a minor
\i~:f
.r-J~j~
amendment to the section during its enactment is interesting. The legislative history
. ':~~;}:
reveals that the legislation began in Housel(~i11 1802 of the 2001 Legislative Session.
"~I
Initial drafts of House Bill 1802 failed to inclu~~ any reference concerning expert witness
. ~i~;:"
qualifications. However, in a January 2g~02002 amended draft, House Bill 1802
'"j'
'\'l~'
included a section addressing expert witne1~l:qUalifications.8 Significantly, this version
plethora of news articles addressing the leglslalure:~,;,concern over medical malpractice litigation. An
example may be found at: Susie Kozar, Officials: Malpractice crisis needs a quick fix,
http://www.lewistownsentinel.com/news_02194.htm m~,~.19, 2003).
8 The January 29, 2002 amended version of House Bil!),1802 included the following: , .
Section 828-A. Expert witness qualifications.-(A) An expert witness in a medical
professional liability action against a physician must possess sufficient education.
training, knowledge, and experience to provide: credible, competent testimony, and meet
the qualifications set forth in subsection (8), (0), (0), (E) or (F), as applicable.
t/
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08/04/2004 WED 11:10 ~AX 717 54U 3434 MCKISSOCK & ttOIIman, r~
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of House Bill 1802, while similar to the fi~~lenacted version, differed in a material
.~
respect. The January 29, 2002 version required that the expert "must be . . . engaged
in active clinical practice or teaching. . . .. This version also expressly allowed a ~ourt
to permit expert witnesses to testify on the standard of care who did not otherwise meet
the requirements of the section if, among, other criteria, the witness has training,
!:~~: '
experience or knowledge resulting from thel~ctive involvement '1n the practice or full-
,.,""
time teaching of medicine within the five-year.'period before the incident giving rise to
"Of,
the claim".
.)~~:
House Bill 1802, Section 82~-A(E)(emphasis added), 2001 Session,
'-,';I
'!1'.
(B) An expert witness testifying on a medical'iljIalter, including the standard of care, risks
and alternatives, causation and nature an'd'extent of injury, must be:
(1) a physician with an unrestricted license to practice in any state or the
District of Columbia; and "'",
(2) engaged in active clinical practice or teaching and experienced in the
medical care at issue. .
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(C) An expert witness testifying as to a physidlin's standard of care must be:
(1) substantially familiar with the app!icable slandard of care for the
specific care at issue as of the tiirii! of the alleged malpractice;
(2) in the same specialty as the defertdant physician or a specialty which
has a substantially similar stand~td of care for the specific care at
issue; and /r
(3) if the defendant physician is certined by an approved board, certified
by the same or a similar approved,board.
..:,.
.
,.
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(0) In a case in which it Is alleged that a he~(l~ care provider engaged in the process of
diagnosis or treatment fora condition whIch, was not within the health care provider's
specialty or competence, a specialist foul'!dby the court to be trained in treatment or
diagnosis for' such condition shall be cQl1sidered competent to render an expert
, opinion.
(E) An expert witness shall not be precluded from offering testimony as to the standard of
care under subsection (C) if the court ,makes a specific finding that the proposed
expert possesses sufficient training, exp~rfence and knowledge as a result of practice
or teaching in the specially of the defendant or practice or teaching in a related field
of medicine so as to equip the witness' to provide expert testimo!1Y as to the
prevailing professional standard of care il),a given field of medicine. Such training,
experience or knOWledge must be as a result of active involvement in the practice or
full-lime teaching of medicine within the live-year period before the Incident giving
rise to the claim.
11
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(F) An expert witness not offering an opinion.as to the standard of care who otherwise is
competent to testify about mediqal or scientific issues by virtue of education, training
",-,
,11
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08/04/2004 WED 11:11 ~'AA 71'1 04U 3434 lIlCA1SSOCK ",,,110UUlau. rc,
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January 29, 2002 (emphasis added). Interestingly, the version of House Bill 1802 as
amended February 12, 2002 included the a~ditionallanguage in Subsection(b)(2) that
expanded the time period for an expert tdtbe involved in active clinical practice or
,1" .
teaching to the "previous five years". Addifrgnally, this version removed the language
~r
which req,uired the applicable time frame ref~renced in Subsection(e) to be within five
;Lc;f
years prior to the incident. See 40 P.S.s'l303.512(e). Ultimately, the February 12,
. . ;{1.)
"";
2002 version of House Bill 1802, with these changes, was adopted by the legislature.
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In instances such as this, where the l~gislature has changed the language of the
'~-:'4.\ .
,:(.31,
legislation, there is a clear indication of!he legislature's admitted different intent.
~,' ,
Masland v. Bachman, 374 A.2d 517, 52:F22 (Pa. 1977); Deremer v. Workman's
"
_H;_"
Compensation Appeal Bd., 433 A.2d 92~; 928-29 (Pa.Cmwlth. 1981). Thus, an
'_i;',I,
examination of the legislative history of thist:;fction reveals that the legislature rejected
:;(\
defining the five-year focal point of Subsecficm(e) to be prior to "the incident giving rise
to the claim". Moreover, this change in lan4U~ge is indicative of the legislative intent to
" ":t""!'"
require that the focal point of determining ~'~expert's qualification for Subsection(b) be
. '~~.
i'~
from the time that the expert is testifying. l-{~d the legislature intended otherwise, they
would have placed defining language simil~JI,to the original version of MCARE in the
,subsection. In such circumstances, it is i~proper for a court,' under its powers of
:".
;'" .-
construction, to supply omissions in the st;:ute where it appears the legislature may
.,'-"..
have intentionally omitted those matters. Kflsza v. Maximonis, 70 A.2d 329,331 (Pa.
1950). Interpreting Section 512 to call for th'e" consideration of an expert's qualifications
"~~l
~;-:,~~,
12
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08/04/2004 WED 11:12 FA.!. "Ii l)4U ~4~4 1D.Cl\lSSOCK &)_tlUIJ.loaa. rv
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within a period of five years "prior to the date;bf the underlying incident" would appear to
"I,
violate this instruction from our appellate coJHs.
!k11
Although MCARE Section 512 lack~;:!an express, specific direction as to the
.J
relevant time frame for consideration of ~~pert qualifications, the section's general
,','i.
language is revealing in this regard. Secti~rI 512 sets forth the general rule and then
sets forth specific criteria contingent upon t~;~" nature of the respective expert's opinion.
, ;
.','L",
Specifically, Subsection(b) sets forth qualifif?tions for all expert witnesses regardless of
i",
~:~,H;
whether they are testifying as to ''the standard of care, risks and alternatives, causation
"
";~:
and the nature and extent of the injury .';\j, . .. 40 P.S. S 1303.512(b). The dual
Ii}; .
''''h'!
requirements set forth in this subsection are Mat: 1) th'e witness possess an unrestricted
',.-'
.,; .
--~ ~~ ,1.
physician's license and 2) the witness be e??rged in or retired within the previous five
:~t~;
years from active clinical practice or teachirQ. ld. A plain reading of Subsection(b)
)/~( .
\h..
leaves little ambiguity as to the context ofit~ language. The language speaks in the
;:~~;;;;.
current tense requiring that an expert witne,~'~"testifyin9 on a medical matter. . . [b]e
-:;U~~
engaged in. or retired within the previousmve years from active clinical practice or
_:~c~l:
teaching." ld. (emphasis added). Importa~#ly, our Supreme Court admonished that
:(1
tt '
. when the meaning of a statute is plain, a col,lr;!: should not disregard the language of the
, ~~~;l-
law in the context of pursuing its spirit. Com'tjJonwealth v. Kelley, 801 A.2d 551, 554
J-,r'
(Pa. 2002). In such instances, any further deliberation as to its meaning is unwarranted.
"f,--
See generally Id. Based on this instructiori; I read Section 512(b) to require that an
, '"
"
expert testifying on a medical matter in a~}nalpractice action possess the requisite
. -, ,
qualifications at the time the testimony is preJ~nted to the fact finder.
"
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"
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. 11tH.
13
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08/04/2004 WED 11:12 FAX 717 540 3434 MCKISSOCK & ~OTTman. ~~
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This interpretation is consistent with i~e interpretation of our appellate courts in
'(
I
construing competency statutes as of the\date of the witness's testimony. See
. ~J"
Commonwealth v. Boris, 372 A.2d 451 (p{fuper. 1977) (interpreting the competency
'::' )~
of a spouse as a witness in a criminal case td!be as of the date of testimony); Adams v.
Bleakley, 10 A. 884 (Pa. 1887) (noting form~rspouses may testify against each other in
civil matters if divorced at the time the testimqny is presented). Even in the absence of
, '
".:f
statutory consideration, it is axiomatic in P~r}nsylvania law that witness competency is ,
!to?
i.1,t
determined at the time of the witness's testir!lgny before the trier of fact. See generally
~ ; ,: ~
~}:;
upon the date of the incident precipitating tl'J~, litigation but rather made at the time the
:K
~'!%~
witness presents testimony. A statute which':r~quires certain expert qualifications within
't;i"F:
five years prior to the prospective expert'~;',t.estimony is not an aberration from this
~qJ.;
historical practice. See Pa.R.Evid. 609 (aqmlssibility of crimen falsi conviction against
',,,,;;.'
l::~
witness requires conviction or relief of conh6ement from conviction to have occurred
n. .
.',1'
within ten years of the trial date); see ~lff? Commonwealth v. Randall, 528 A.2d
1326 (pa. 1987).
.; ~');. )
""I,
Interpreting Section 512 to require that expert witnesses be engaged in or retired
",:
from active clinical practice or teaching withfry five years of the date of their testimony
':'
"
leads to consequences consistent with the I~gi'slature's intention to place more stringent
~'d.
'..1."
14'
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08/04/2004 WED 11:13 ~AA 717 fi4U 3434 mCKISs0CK & tlOIImau. r~
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qualification requirements on expert witness~~ and, thus, exercise restraint on medical
'...,i-,'
malpractice litigation. Limiti~g qualification :V~qUirements to a period of five years from
i :~
the date of testimony ensures that malpractice claims will be supported by the most
i!'
" -1
recent medical knowledge available whenc~~esenting a malpractice claim to the fact
":{ ,
finder.9
co,
Although I recognize that hypotheticai~circumstances may bring into question the
rationality of this section,10 interpreting the relevant time period as being the date of the
;- ~-:,:.
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expert's testimony consistently results in iJj1e most recent medical expertise being
~'~~~.:;
]- , ~"
· An interpretation requiring that the expert witnes~.,#e engaged in active clinical practice or teaching
within five years previous to the date of the event giving rise to the claim might have a chilling effect on
the fact finder being presented with the most recent"inedical expertise. Section 512 is clear that the
active clinical practice or teaching is to be within the.1'j:jrevious. five years. Since every word of a statute
is to be given effect, Keystone Aerial Surveys, Inc./cjted above, the premier expert in a field at the time
of trial would not be qualified to testify as to causatiol1 or other medical issues concerning an incident if
the incident occurred years prior to when the expen"became an active clinical practitioner or teacher.
Since it is possible for one to assert a medical prof,issional liability claim within seven years after the
alleged tort (or in the event of a minor within twent)/'years of the alleged tort if the tort occurs at the
plaintiff's birth). see 40 P.S. ~ 1303.513, such an abSUrd result is more than remoteiy possible. Similarly,
interpreting the qualifications 10 be within five years previous to the date of the underlying incident may
effectively, and perhaps H1egally, preclude an inju~q,;party from ever collecting from a physician tort-
feasor. Specifically, if a twenty-year old plainlifffiles il!]i:1edical malpractice action for injuries sustained as
a result of medical negligence occurring when the!~illaintiff was two years old, requiring the expert's
quafifications to exist prior to the date of the tort woulg:fequire the plaintiff to locate an expert witness who
was in active clinical practice or teaching at a time eiQh\een years prior to the date the suit is commenced.
While undoubtedly there is an abundance of willing e;xpert witnesses readily available, the mere pessage
of time and the recognition that witnesses, as huma~;peings, are mortal, may, in certain circumstances,
preclude a plaintiff from ever being able to recover,a~ a result of a physician's negligence. Obviously,
such a result is absurd and contrary to the goals of s!i3tutory construction. See Pennsylvania Financial
, Responsibility Assigned Claims Plan v. English.;;~64 A.2d 84, 87 (pa. 1995) (noting courts must
presume that the legislature, in enacting a statute, di,d, not intend a result that is absurd or unreasonable
nor one that would be violative of the United States or:p,ennsylvanla Constitutions.)
10 The Lancaster Court of Common Pleas in addresSirig this same issue reached a contrary result. See
Spotts, cited above. In doing so, the Spotts Court hypOthesizes that using the time of the breach as the
focal point for the expert's qualifications avoids Issue~i'related to an expert' who may be qualified at the
time of commencement of the suit, however, later becomes unqualified due to lengthy litigation. While
such a scenario certainly presents difficulties, thosil:difficultles are not insurmountable. This unlik~IY
scenario would only arise in circumstances where a,l)' expert provides a report and retir,,:s from actIVe
clinical practice or teaching in excess of five years prior to the trial date. In such Circumstances,
regardless of the Section 512 provisions, a party would normally be prudent in obtaining a more recent
expert report closer in time to the date of trial. In 'fact, the Pennsylvania Rules of Civil Procedure
recognize that circumstances may arise where an exl1~rt providing an initial repo.rt is not the expert that
may testify at the time of trial. See PaRC.P. 1042.3, Note. Although Section 512 may place an
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08/04/2004 WED 11:14 FAX 717 540 3434 MCKISSOCK &tlorrman. ~~
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avaIlable to the fact finder from witnesses wn,o are currently qualified in their field. Such
, ; ~ ',-',
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a consistent result is in furtherance of th$:!l~gislature's goal in establishing a more
. ,~.....
stringent standard for the admission of expeJ,lestimony.
't-lL..
For the foregoing reasons, I find that SGbsection 512(b)(2) references a five-year
",.'
time period previous to the date of trial. H~i'ing resolved this issue, it now becomes
,t,
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necessary to apply the statute to McGlaugh/ir!s experts.
r.,_,j.:
-1:,::'
Dr. Thomas K. Howard is curren1iIY licensed to practice medicine in the
tW:;,
Commonwealth of Pennsylvania. He is a gW~duate of the Jefferson Medical College of
/iP, . .
,l"r,
Philadelphia and is board certified by the AllJ'erican Board of Orthopaedic Surgeons11
:IKl
and a diplomat with the American Academy o~ Orthopaedic Surgery. During the course
of his career, he was affiliated with a number;bf hospitals in Pennsylvania and Maryland
,:iH.;
and conducted a private orthopaedic practic~'trom 1968 through September 3D, 1996.
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On September 3D, 1996 he retired from a,-~tively practicing and ceased performing
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surgeries or seeing patients on a daily basi~~:Howard Tr. p. 9. By his own admission,
;-I~{~:'l"
Dr. Howard has not had an active clinica~fiRractice since 1996. Id. at pp. 22, 25.
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Although Dr. Howard has teaching experie~ge in the field of orthopaedics, he has not
, ~ ,. .
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taught since 1979. Id. at pp. 19-21.
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Clearly, Dr. Howard has enjoyed ':,~,n impressive and remarkable career.
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However, as discussed above, the Penl}~ylvania legislature has made a policy
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determination wherein it has set forth spedif,ic qualifications for an expert in medical
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malpractice litigation. Unfortunately for Mcqlaughlin, Dr. Howard does not meet those
,,'
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additional burden on the parties in matters involving 'protracted migation. I do not find such a result to be
absurd In light of the legislature's desire to restrict the:parameters of expert qualifications.
11 Orthopaedic l'\ledicine is a branch of health care that is connected with the prevention and correcllon of
disorders of the musculoskeletal system of the body.S~e Mosby's. cited above at n.2, at 1236.
.
16
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08/04/2004 WED 11:15 ~AX 717 540 3434 mCK1SsOCK & tlOrrman. y~
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qualifications. Although licensed to practic~fnedicine, he has not been engaged in an
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does not end my inquiry.
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Before precluding the testimony of Dri}Howard, it is important to note that Section
,';;",-.';- '
512 provides a waiver provision wherein ~:Wbourt may permit expert testimony by an
, !~{
expert wHo does not meet the specifiedqjJalificat;ons but otherwise possesses an
,i~'''l '
indicia of competency. A thorough review 9f. Dr. Howard's qualifications indicates that
.,'l..
despite his failure to comply with Section 51:~(b)(2), he is otherwise competent to testify
''I
as to the nature and extent of McGlaughlin's'iNuries and causation. Accordingly, he will
be permitted to testify in these areas.
I . ,~:!h:
Although Dr. Howard's impressive\gredentials allow the court to waive the
. -~[":J;'
requirements of Section 512(b) as it reiates;~' his testimony in regard to the nature and
;~.{;;. .
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extent of McGlaughlin's injuries and causil~on, the section necessitates a different
n~.ii;
result in regard to Dr. Howard's proffered ~stimony as to the applicable standards of
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care. The waiver provisions of Section 5t2(b), by express language, apply only to
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experts testifying "on a matter other than;~the standard of care . . . ." 40 P.S. S
1303.512(b) (emphasis added). Thus, waiv~rof the requisite qualifications in regard to
Dr. Howard's opinion on the applicable 11~~ndard of care is statutorily unavailable.
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Accordingly, Dr. Howard's testimony in reg~rd to the applicable standards of care is
.-"1""
inadmissible.
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08/04/2004 WED 11:15 }t.A.!, "1', b4U J4-'4- DlC.lUSSOCK &,__l1().L.LUlCiU. _n..
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McGlaughlin's second expert, Dr. Peter Bemad, is a licensed neurologist12
,
possessing licenses to practice medicin~iin California, the District of Columbia,
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Maryland, Massachusetts and Virginia. Dri !?ernad currently teaches neurology at the
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George WaShington University Medical SCh~,~1 and is an adjunct professor in the field of
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neurology at the Michigan State University ,'Medical School. Bernad Tr., p. 7. He
:ii~'---
currently operates a clinical practice in th~'::field of neurology in the Washington area.
rd. at p. 8. Dr. Bernad is board certifi~d in neurology, internal medicine, pain
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management, sleep disorders, forensic:'medicine, electroencephalography and
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neurophysiology. On the surface, it is apparent that Dr. Bernad enjoys extensive
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credentials necessary to qualify him as an:expert witness in the field of neurology.
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Although the several Defendants do not seftgusly challenge Dr. Bemad's qualifications
I~';':,:~
in the field of neurology, they question hi~":~ompliance with MCARE Section 512 as it
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relates to the substance of his expert testimqny.
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Dr. Bernad's expert report opines ')hat McGlaughlin most likely previously
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suffered from an abnormality involving the thoracic vertebral bodies. However, he
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opines that the delay in proper diagno~is of the fractured vertebra caused by
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misinterpretation of the x-rays, and a lac~!of careful examination in the emergency
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room, exacerbated and worsened McGlaughfin's condition within a reasonable degree
, 1,,,[,
of medical certainty. He concludes that the~elay in actual diagnosis and treatment led
':y;
to McGlaughlin's permanent damages., ,Implicit In his opinion is that the
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misinterpretation of the x-rays and the lack oAareful examination of McGlaughlin in the
emergency room violated the standard of ca?~iapplicable to those circumstances.
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1~ Neurology is the field of medicine that deals with the,' nervous system and its disorders. See Mosby's,
cited above at n.2, at 1176.
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08/04/2004 WED 11:16 FAX 717 54U 3434 MCK1SS0CK "'JioITman. rlC
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In regard to issues concerning caus~~,ipn and the nature and extent of the injury
to McGlaughlin, Dr. Bernad is clearly qualified. In his deposition, he indicated that he is
involved in both the teaching and reading ~f radiological studies, Id. at p. 9; that his
clinical practice causes him to review his own,radiological films, Id. at p. 29; that it is not
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unusual for him to make his own interpretati,Qh of radiological films, Id. at p. 33; that he
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has undergone training in the radiology d,epartment, Id. at p. 34; and that he has
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interpreted thoracic spine x-rays in his cliqi9al practice, Id. at p. 35. MoreOVer, Dr.
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Bernad treats seizure patients on a regul~:~.1basis and has substantial familiarity with
.,'~ !:""j"
juvenile myoclonic seizure disorder. Id. at pp.10-12. Under these circumstances, I am
, ,
satisfied that Dr. Bernad is competent t~' testify as to the nature and extent of
McGlaughlin's injuries, interpretation of the r~~iological films and causation.
:~,d?
Dr. Bernad's qualification to testify/as to the applicable standards of care,
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however, is a different issue. As previouslyr;ri,entioned, in regard to experts testifying as
,Vi:,
to a respective standard of care, MCAij"E Section 512(c) sets forth additional
<,;"10"
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requirements. Specifically, an expert testil};i~g as to a standard of care, in addition to
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the requirements set forth in Subsection(b ),":~ust also: (1) be substantially familiar with
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the applicable standard of care as of the time of the alleged breach of the standard of
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care; (2) practice in the same subspecialty a~Jhe defendant physician or a subspecialty
,',,,
with a substantially similar standard of canffor the specific care at issue; and (3) be
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certified by the same or similar board of wh'ich the defendant is certified. Once again,
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there is a waiver provision of these requireff;ents in regard to standard of care If the
c~urt determines that the proffered expert ~~~sesses sufficient training and knowledge
',{ .~;,
as a result of the active involvement in or fuU~time teaching of medicine in the same or
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08/04/2004 WED 11:17 FAX 717 540 3434 M.cKUsoCl< ~;,lionman. r"
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related field of medicine "within the previous five-year time period". 40 P.S. S
1303.512(e).13 Therefore, it is apparent that resolution of the issues concerning the
1
admissibility of Dr. Bernad's testimony is dependent upon a cursory review of each of
, ~
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the several Defendants' qualifications and t~~j,applicable standards of care at issue.
, f~i:IF
Defendant Dr. Codon is employed, i by Gettysburg Hospital as a licensed
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emergency room physician. He is certified by the American Osteopathic Board of
Emergency Medicine. Defendant Dr. Dufendach is also employed as an' emergency
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room physician by Gettysburg Hospital.,He is licensed in the Commonwealth of
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Pennsylvania and board certified in the speCialty of family practice. Dufendach Tr., p.
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16. Dr. Rahman is employed in the GettyslJurg Hospital Radiology Department and is
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board certified by the American Board of Rad'iology.
,\/;",'-:,-1"
The relevant standards of care rais~~by Dr. Bernad's opinion appear to focus
h"
upon the standard of care rendered by Or. Codon and Dr. Dufendach during the
<'.iJ
emergency room examinations and upon th.~',~tandard of care rendered by Dr. Rahman
",'
in interpreti~g the x-ray films. Thus, the standard of care applicable to the actions of Dr.
:f.J:
Codon and Dr. Dufendach is a standard 9f care exercised by an emergency room
physician in examining and treating a patieriE?The applicable standard of care in regard
:::!:~~~
to Dr. Rahman is the standard of care,,";applicable to a physician in interpreting
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radiological films.
:.: ':~!
13 A review of Dr. Bernad's qualifications indicates lh~~the time period of his credentials is not an iss~e.
Due to the lack of any real issue, and because of theaisposltion herein, it Is unnecessary to determlfle
the focal point for the five-year time period set forth i1iS,ection 512(e). However, as previously noted, the
legislature clearly chose not to include language diresting that the focal point of the five-year, period be
the dale of the alleged negligence. A close revie\,'/'pf the context of the language In Section 512(e)
indicates that the focal point of the fIVe-year time periq9for the purpose of this subsection is also the date
of testimony of the expert witness. '
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081,04/2004 WED 11:17 ~~ 717 ti4U 3434 MCA1SSOCK ~ ~Ol!wau. r~
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With this background, Dr. Bernad's qualifications may now be examined. Initially,
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in regard to board certification, it is clear f\9m Dr. Bernad's deposition testimony and
'! "
curriculum vitae that he is not board certified;'}\' the field of emergency medicine, general
, , ~! ,.
family practice medicine or radiology. S~E:l)3ernad's curriculum vitae at Defendants'
\',.-
Omnibus Motion in Limine at Exhibit 0; Bemad's Tr., pp. 18-22. Additionally, Dr.
; ~
Bernad acknowledges that clinical practice guidelines exist in the fields of emergency
':':1
medicine and general family practice of which he is not familiar. See Bemad's Tr., pp.
. ",'
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27-29,54. In his testimony, Dr. Bemad maRe,S a similar concession when he indicates
::","','
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that he is not familiar with the clinical pract!6e guidelines promulgated for radiologists.
11-"<
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Id. at p. 29. Critically, Dr. Bernad's testimony:lacks any indication that he is familiar with
the standard of care applicable to either 'an emergency medicine or general family
i/:.~:
practice physician. In fact, a reading of hisgeposition as a whole leads to an opposite
conclusion. His testimony in regard to th~:!istandard of care applicable for reading
radiological studies is less clear. Alth049h he implies that he possesses such
. . .
knowledge, ,his deposition testimony lacks~rl,y conclusive acknowledgment that he IS
familiar with such a' standard of care.14 ,:~}
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14 Dr. Bernad's transcript indicates in relevant part .ih~ following exchange while being questioned by
McGlaughlin's counsel: ;;V
Q: And are you familiar with the standard' 9f care for reading radiological studies that
existed in 1999 and today? ,'i',
A; Well, in the sense that I'm not a radiologist, but as a neurologist, we use
radiology as an adjunct, as,an assist. ,In some states like New York, for example,
neurologists can actually read MRls ;~Qd CAT scans, especially Dent Institute in
Northern New York. C;~
In most other facilities, thE\re are radiologists that have taken that
particular aspect of medicine. So iii'our area, we read our own CAT scans,
MRls, x-rays, but we don't charge for''it In the sense of having a code and so
forlh, but It becomes part and parcel iJfevaluating a patient. .
If you were to come in and see; me for a seizure, I would either go to the
x-ray suite and track down your films or ask you to bring it with you so I can
review it. .. . '
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08/04/2004 W1!;V ..11.:.10 l'aA loll <>'l:U ol'iol'i J!I.(..:n..LlSlSvl,.;.t\. Dl.l~,.1fU.1..1.IUC:U.L.
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From the foregoing, it is apparent that Dr. Bernad is not adequately qualified
I
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pursuant to MCARE Section 512 to testify:c\s to the standard of care in the fields of
:rt,/,
emergency medicine or general family pradti~e. He is neither board certified in those
ff~
fields nor can I find that the fields in which ~f~iis board certified are substantially similar
,:t#b
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to those of Defendants Codori and Dufen4~ch. Similarly, in regard to his proffered
opinion concerning the standard of care applicable to Dr. Codori and Dr. Dufendach, the
record lacks any indication that Dr. Bernad is familiar with the applicable standard of
,
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care to these doctors as it existed as of the ,time of the alleged breach. See 40 P.S. S
~/;
1303.512(c)(1 ).15:';f'
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While it appears that Dr. Bemad ma~rAave similar difficulty in being qualified as
~,i~rp
an expert in the standard of care for readin?j'fadiological studies, final determination in
:,~1f
that regard will await trial testimony. ThEO~'is substantial indication in Dr. Bemad's
t:',<
testimony that the field of neurology and ra~l'ology overlap in this regard. Dr. Bemad
,
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indicated that he reads radiological films ona,/egular basis for the purpose of assisting
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in his diagnosis of patients. On the other h,;:md. he has failed to affirmatively indicate
! . N;li~
that he is familiar with the applicable standa.@of care in 1999. Therefore, in the event
!?i?
that Dr. Bernad is able to affirmatively jndica!~ at the time of trial that he is familiar with
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the standard of care in 1999 applicable to~::physician reading radiological studies, he
'i':~:'~~"
will be permitted to offer an expert opinion\rlthat regard. On the other hand, if he is
~~;t:
unable to affirmatively make such an inditation, he will be precluded at trial from
testifying.
Bemad Tr., p. 9, line 21 - p. 10. line 17. A thorough reyiilw of the deposition transcript reveals that the
ultimate'issue was never answered. V (
15 Incidentally, Subsection(c) of Section 512 is consi~tl'mt with previous Pennsylvania case law. Maurer
v. Trustees of Univ. of Pennsylvania. 614 A.2d 754 ,(~a.Super. 1992).
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In sum, I find that Dr. Bernad lacks qualifications sufficient to testify in regard to
the standards of care applicable to Dr. CodM and Dr. Dufendach. However, in regard
: ~:!, !~, .
to his opinion concerning Dr. Rahman, I firi~ that Dr. Bemad has sufficient training,
Wi,
experience and knowledge to provide testirryfilnY in regard to Dr. Rahman's reading of
the radiological films provided thattestimony. reveals that he is substantially familiar with
the applicable standard of care at issue. I ""ill now turn to the Defendants' Motion for
Summary Judgment in light of qisposition of ~~e Defendants' Motion in L1min,e.
It is well settled in Pennsylvania law Ji1t summary judgment may be granted only
,S;"
in those cases in which the record clearly s~6ws that no genuine issue of material fact
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exists and that the moving party is entitled:~q judgment as a matter of law. Capek v.
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Devito, 767 A.2d 1047. 1048 n.1 (Pa. '2001). In considering whether summary
:,+ '
judgment is appropriate, the trial court is req\Jired to review the record in the light most
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favorable to the non-moving party resolving kll doubts as to the existence of a genuine
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issue of material fact against the moving p~rty. Potter v. Herman. 762 A.2d 1116,
1119 (pa.~uper. 2000). 'l::E':
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In order to sustain .a cause of actio~,'for medical malpractice, a plaintiff must
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establish:
1.
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, The physician owed a duty to t~~ patient;
2. The physician breached that d~.W;
"
3. The breach of the duty was 'the 'proximate cause of, or a substantial
factor in, bringing about the ha~t suffered by the patient; and
4. The damages suffered by the"~atient were a direct result of that
harm.'"
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23
U~/04/2004 W~ll ii:i~
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Eaddy v. Hamaty, 694 A.2d 639, 642 (Pa.Super. 1997). Implicit in this burden is a
requirement that the plaintiff offer an expert witness who will testify to a reasonable
degree of medical certainty that the acts of tl)e defendant physician deviated from good
and acceptable standards. /d.; Mitze/felt v.J5amrin, 584 A.2d 888, 892 (Pa. 1990).16
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An exhaustive review of the record .in this matter indicates that McGlaughlin is
f".'.."
unable to present admissible expert tesfi~ony in regard to the standard of care
{if'
applicable to Dr. Codon's and Dr. Dufendach's actions. Accordingly, the Defendants'
,-'} .
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Motion for Summary Judgment will be grcjnted. Counts 6, 7, 16 and 17 will be
, I:
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dismissed with prejudice. There appears to be a question of fact in regard to the ability
of Dr. Bernad to render an expert opinion it'\:'regard to the standard of care applicable to
;.}~
Dr. Rahman's actions. Since a genuine",issue of material facts exists, summary
",~"
judgment in this regard is not appropriate.:?see Capek, cited above. McGlaughlin:s
kr:
:~ ;~~~;:
vicarious liability and loss of consortium~taims against Gettysburg Hospital will be
;\.1,
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limited to the conduct of Dr. Rahman. ,;,~';~;
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For the foregoing, reasons, the Cour(entered the Order of September 5, 2003.
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~/!~ 2o::ry. This being a true
and atte ted copy taken from
and ,ompa.... with the ~
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. Deputy notary
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Date filed: September 12, 2003
M~
MICHAE . EORGE
JUDG
BY THE COURT:
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15 Pennsylvania courts have recognized an exception'to .this general rule where .th~ matter in dispute ~s
so simple and the lack of skill or want of care so"obvlouS as to be comprehensible by lay persons.
Maurer, 614 A.2d at 768 n.2. McGlaughlin has not arQued, nor do I find any support in the reC?rd for the
argument, that the issues involved in the current Iiligation are ~o obvious as to be comprehensible by lay
persons. ' ,
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CERTIFICATE OF SERVICE
I HEREBY CERTIFY that I served a true and correct copy
of the foregoing on all counsel of record by placing the same in
the United States mail at Camp Hill, Pennsylvania, first-class
postage prepaid, on the
day of
, 2004, and
address~d as follows:
April L. Strang-Kutay, Esquire
GOLDBERG, KATZMAN & SHIPMAN, P.C.
320 Market Street
P.O. Box 1268
Harrisburg, PA 17108-1268
(Counsel for Plaintiffs)
MARGOLIS EDELSTEIN
By:
Secretary
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MARIE A SAVARD, MoO,
421 Owen Road
Wynnewood, PA 19096
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April 8, 2003
Telephone: (610) 560.7240
Fax: (610) 64~1
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Michael M. Badowski, Esquire
Margolis Edelstein
P. O. Box 932
Harrisburg, P A 171 08-0932
RE: LEBO VS. SYLVESTRl, ET AL
DOCKET NO. 00-2990 CIVIL TERM
FILE NO. 57300.4-0082
Dear: Mr. Badowski:
ii
I have reviewed the Plaintiff expert reports of Dr. Arnold 1. Lentnek and Dr. Robert N. Dunn
and offi:r the fullowing supplement to my original report dated June 28, 2001.
EXPERT REPORT OF ARNOLD L. LENTNEK. MD:
Dr. Lentoek summarized Carl Lebo's surgical history noting only the office visits with
Dr. George Sylvestri, a general internist, and not noting the multiple contacts with Dr. Rubo,
Mr. Lebo's treating surgical physician, and his covering partner had made. Dr. Lentnek
ignored significant parts of Mr. Lebo's post-operative history and therefore fuiled to take into
consideration the entire context of Mr. Lebo's problems when reviewing the care and
treatment by Dr. Sylvestri.
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Dr. Lentnek stated that Carl Lebo developed rever and recurrent shoulder pain that was
"brought to tbe attention of the patient's primary care doctor, Dr. Sylvestri." (Dr. George
Sylvestri was not Mr. Lebo's primary care doctor as he had seen him on June 9 for the first
time, which he subsequently noted in his report, on an urgent basis at the suggestion of Dr.
Rubo's covering physician.) He also fuiled to note that Dr. Sylvestri knew that Mr. Lebo was
already under the continuing postoperative care of Dr. Rubo for evaluation and treatment.
Dr. Sylvestri would have reasonably assumed that any surgical complication would be
recognized and treated by Dr. Rubo, the surgeon, rather than an internal medicine physician.
(To suggest that a primary care physician is expected to diagnose and treat a postoperative
wound infection rather than the surgeon is absurd.)
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Dr. Lentnek went on to report in great detail the comprehensive evaluation that Dr. Sylvestri
performed on Mr. Lebo as a general internist. Dr. Lentnek stated that Dr. Sylvestri did not
advise Mr. Lebo to confer with his orthopedic surgeon or even advise the orthopedic surgeon
of these new complaints. (It is evident from Dr. Sylvestri's deposition testimony, as well as
Mr. Lebo's own actions, that it was well understood that Mr. Lebo was under the ongoing
care of Dr. Rubo's office and that Mr. Lebo had telephoned his treating surgeons on a
number of occasions reporting his numerous complaints.) Dr. Lentnek also does not note that
Mr. Lebo contacted Dr. Sylvestri's office for consultation upon the recommendation of
Dr. Rubo's office. Therefore, Dr. Sylvestri had every reason to believe that Mr. Lebo was
under the ongoing care of Dr. Rubo and his staff and that a postoperative complication would
have been diagnosed and treated by Dr. Rubo, not by Dr. Sylvestri
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Dr. Lentnek further notes that Dr. Rubo evaluated Mr. Lebo on June 16, fuur days after an
office visit with Dr. Sylvestri Dr. Rubo noted that Mr. Lebo had a "possible postop infection"
and prescnbed an oral anubiotic and discharged Mr. Lebo to home. It is therefore
unreasonable to suggest that Dr. Sylvestri is respollSlble for any delay in treatment of
Mr. Lebo's postoperative wound infection when, in filct, Mr. Lebo's surgeon, Dr. Rubo,
evaluated Mr. Lebo after Dr. Sylvestri's evaluation and Dr. Rubo did not recommend
parenteral antibiotics and surgical drainage (which would have been standard to treat a deep-
seated infection).
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Four days after Dr. Sylvestri's last contact with Mr. Lebe Dr. Rubo was uncertain of the
diagnosis, and considered only a "possible post-op infection". It was therefore Dr. Rubo and
his office staff that was not only responsible for the unfortunate development of the
postoperative infection but as well responsible for the delay in the timely and apparently
necessary surgical treatment of the infection. Suggesting that Dr. Sylvestri was responsible
and not Dr. Rubo and his office is ridiculous.
Twenty-four hours after Dr. Rube's evaluation of Mr. Lebo for a "poSSible postop infection,"
Mr. Lebo again returned to Dr. Rube, and again there was significant delay in the diagnosis
and treatment of Mr. Lebo's deep-seated surgical infection.
Dr. Lentnek apparently is critical of Dr. Rubo, the treating surgeon, as well in his report in
that he notes that "a wound infection must be diifurentiated from a stitch abscess. This latter
process, representing a very localized fureign body reaction to suture material is virtually
never associated with fever or systemic symptoms, does not result in wound dehiscence, and
resolves readiIy once the superficial offunding suture is removed. In contrast, a wound
infection, especially severe, may be associated with fever and systemic symptoms and usually
requires both local debridement and systemic antibiotics to resolve."
Of note, Dr. Lentnek stated in his report that during the June 16 visit with Dr. Rubo that
Dr. Rubo himself stated that "on physical examination the incision was read and appears to
be showing some sort of reaction to his Viczyl suture, particularly to the superior aspect of the
incision where his knot has been tied." A surgeon would be expected to make that distinction
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whereas a primary care physician who is evaluating a patient at the suggestion of a surgeon
certainly would not be expected to make that same distinction.
Dr. Lentnek states that the care provided by Dr. Sylvestri on the initial visit met the standard
of care, yet he is critical of the followup visit on June 12, stating that his :fuilure to begin
broad-spectrum antibiotics led to a further delay and soft tissue destruction and long-term
dysfunction. Dr. Rubo :fuiled to diagnose a deep-seated surgical iofection four days later and
was therefore primarily respollSlble for the delay in the apparently necessary surgical and
parenteral antIbiotic treatment.
Dr. Lentnek's fuilure to mention this obvious filet that Dr. Rube and his associates were
primarily responsible for the postoperative care and the diagnosis of the wound iofection was
glaringly apparent from reading his expert report.
Although Dr. Lentnek's curriculum vitae is not included, I presume he is an infectious disease
consultant and one who would commonly manage postoperative wound iofections in a
hospital setting in consultation with an orthopedic surgeon. Dr. Sylvestri, however, is a
general internist, not an infectious disease consultant, and would not necessarily have the
experience and training managing in consultation with orthopedic surgeons postoperative
wound iofections in a hospital setting. The standard of care for Dr. Lentnek, if indeed he is an
infectious disease consultant, in a hospital setting is obviously quite different as the standard
of care for Dr. Sylvestri.
Specifically, an infectious disease consultant in a hospital setting evaluating a postoperative
fever is obviously consulted to aSsess the possibility of iofection and postoperative problems
whereas Dr. Sylvestri was clearly consulted to evaluate a fever that was felt distinct and
unrelated from his postoperative problems, as Dr. Rubo's own staff had referred him to the
internist fur further evaluation of his complaints (that were therefure presumed not to be of
infectious or an operative complication by Dr. Rubo' s staff).
EXPERT REPORT OF ROBERT N. DUNN. MD:
The expert report of Dr. Robert Dunn was reviewed. Dr. Dunn is an orthopedic surgeon.
Dr. Dunn notes in his report that the first mention of any evidence of a possible iofection that
Dr. Rubo was aware of was on the June 16, 1998, visit. (There is evidence in the deposition
transcripts of Mr. and Mrs. Lebo that Dr. Rube's office was apprised of his signs and
symptoms long before the June 16, 1998, visit.)
Dr. Dunn notes that by June 17 the use of IV antibiotics "certainly greatly slowed down the
infuction, although an open debridement was necessary in order to clean out and eradicate it."
This open debridement did not occur, however, fur an additional five days because of Dr.
Rubo's delay (and not the fault of Dr. Sylvestn). Dr. Dunn, the orthopedic expert surgeon,
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therefore suggests that it was Dr. Rubo that failed to recognize the need fur open surgical
debridement and was responsible for the delay in such treatment. Dr. Dunn does not note in
his report the multiple phone calls of Mr. Lebo to Dr. Rubo's office complaining of signs and
symptoms that should have prompted his more thorough evaluation by Dr. Rubo and earlier
diagnosis and treatment.
Dr. Dunn also states that Dr. Rubo "did not take a history of temperature, rever, chills, etc.,
when he saw the patient on June 16 and therefore deviated from the accepted standard of
care. By this point, the damage had already been done." He then notes, "Dr. Syivestri's
fuilure to appropriately diagnose was a substantial contnbuting fuctor in the patient's loss of
his rotator cuffrepair."
Again, as noted previonsly, Dr. Dunn fuiled to note that it was Dr. Rubo's office that was
apprised of his temperature, rever, chills, pain, etc., on a number of occasions, even prior to
Dr. Sylvestri's care and treatment; and therefore it was Dr. Rubo's office that was responsible
fur the significant delay in the diagnosis of infection and treatment. Furthermore, it was
because of Dr. Rubo's office being aware of his postoperative fever, chills, pain, etc., and
subsequent rererral to Dr. Sylvestri that led Dr. Sylvestri to presume that a postoperative
infuction had been considered and excluded by the surgeons and that another source of rever
was to be investigated from an internal medicine perspective.
Of note, Dr. Dunn, did not review the deposition testimony of Dr. Sylvestri and Mr. and
Mrs. Lebo and therefure was not aware of the multiple phone calls and contacts with
Dr. Rubo's office and staff concerning his complaints of postoperative rever, chills, pain, etc.,
and therefore not aware that even prior to Dr. Sylvestri's evaluation that these symptoms
were ongoing and yet a deep wound infection was not suspected by his own treating surgical
statE
Finally, Dr. Dunn was therefore not aware that it was Dr. Rubo's staff that suggested that Mr.
Lebo see an internal medicine physician for evaluation of his rever, chills, etc. (Any
reasonable patient would understand that if they were rererred by their surgeon to see an
internal medicine or primary care physician that a surgical problem was excluded. Certainly,
the diagnosis lU)d treatment of a postoperative wound infection is not a medical one, but
rather one that is diagnosed and treated under the care of the treating surgeon, sometimes in
consultation with infectious disease specialists.)
Summary and Conclusions
It remains my belief to a reasonable degree of medical certainty that both Dr. Rubo and Dr.
Rycbak, Dr. Rubo's associate, were apprised on a number of occasions of Mr. Lebo's
postoperative problems, including rever and pain, and yet they failed to provide the
appropriate and necessary eva1uation and treatment. Rererring the patient to a general
internist for care and treatment of a postoperative wound infuction that requires additional
surgical management is obviously ridiculous and obviously makes no sense.
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Although Mr. Lebo stated in his deposition that he believed Dr. Sy1vestri should have
diagnosed the mrection because Dr. Rubo was "only an orthopedic surgeon," that obviously is
not an opinion shared by practicing physicians and most patients. Any physician or patient
would . understand that an orthopedic surgeon would manage postoperative surgical
complications and that a general internist (or fumily doctor) would manage medical problems.
Finally, Dr. Dunn, the expert orthopedic surgeon, states that had Mr. Lebo received earlier
diagnosis and surgical treatment of his wound in:fuction that he would not have suffered the
damages that he has. Be notes that Dr. Rubo's fuilure to take a history of fever, chills, etc.,
deviated from the accepted standard of care. What he fuiled to know, as well, was not only
did Dr. Rubo deviate from the accepted standard of care by fuiling to ask those questions on
June 16, but that his associate, Dr. Rychak, was told of those symptoms much earlier (and
prior to Dr. Sylvestri's evaluation) in Mr. Lebo's postoperative course and yet Dr. Rychak as
well fuiled to recommend the necessary and timely treatment that would have prevented loss
ofhis rotator cuff function.
IfI can be of further assistance, please do not hesitate to contact me.
Sincerely,
~~
Marie A Savard, MD
MAS!Im1
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MARIE A. SAVARD, MoO,
421 Owen Road
Wynnewood,PA 19096
Telephone: (610) 896-1995
Fax: (610) 649.0431
Email: savardsys@aol.com
June 28, 2001
Michael M. Badowski
Margolis Edelstein
Post Office Box 932
Harrisburg, Pennsylvania l7l08~0932
RE: LEBO v. SYLVESTRI, at al
DOCKET NO. 00-2990 CIVIL TERM
YOUR FILE NO. 57300.4-0082
Dear Mr. Badowski,
I reviewed the records of Carl R. Lebo which included the
following:
1. Plaintiff's complaint;
2. Records from Cowley Medical Associates (Dr. Sylvestri);
3. Records from Polyclinic Medical Center, May 27, 1998;
4. Records from Polyclinic Medical Center, June 17, 1998;
5. Records from Ernest R. Rubbo, M.D.;
6. Records from David Richard, M.D.;
7. Dr. Sylvestri's deposition transcript; and
8. Deposition transcript of Carl and Beverly Lebo.
It is my belief within a reasonable degree of medical certainty
that the care provided Mr. Lebo by Dr. George Sylvestri was well
wi thin the standard of care for a general internist and primary
care physician. Specifically, Dr. Sylvestri evaluated Mr. Lebo on
an urgent basis and performed a comprehensive evaluation and
differential diagnosis and treatment plan. Dr. Syl vestri knew
that Mr. Lebo was under the continued post-operative care of Dr.
Rubbo for evaluation and treatment and would have reasonably
presumed that any complications from that surgery would be handled
by Dr. Rubbo. Dr. Rubbo acknowledged that Mr. Lebo was referred
for a general medical evaluation in search for other causes of his
symptoms believing that his symptoms were unrelated to the
surgery.
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It was Dr. Rubbo and his covering surgical physicians that were
responsible for diagnosing post-operative complications such as a
wound infection. As a general internest, Dr. Sylvestri was asked
to evaluate Mr. Lebo for medical problems, relying on the treating
surgeon to evaluate surgical problems such as deep wound
infection.
Medical History
Medical Records of Dr. Ernest Rubbo
On May 6, 1998 Mr. Carl Lebo presented to Dr. Rubbo for evaluation
of a work related lnJury. He was a 62 year-old grounds keeper at
The Country Club of Hershey when he lost his balance landing on
his b~nt elbow and injuring his right shoulder. He denied
previous problems with his right shoulder until this injury.
Since the injury he described weakness and limitation of motion of
his right upper extremity and he could "not move his arm away from
his side without severe pain". He was taking Motrin without
improvement. His work-related doctor, Dr. David Richards, placed
him on 800 mg. of Motrin and referred him for further evaluation.
His past medical history was significant for a previous left knee
osteotomy in 1996. His only medication was Motrin. His family
history was significant for heart disease. His father had a
previous heart attack. He denied smoking, alcohol or drug abuse.
On physical
and marked
resistance.
exam he had severe decrease of motion because of pain
weakness was noted to external rotation against
He was treated with an injection of 1 cc Dexamethasone and 1 cc of
Aristocort (steroids) to give him relief. He also underwent an
MRI evaluation.
An MRI study revealed full thickness rotator cuff tear of the
right shoulder. He was advised of operative and non-operative
treatment options. He was advised of complications including
"infection, decreased range of motion, pain, swelling and
stiffness". Mr. Lebo decided to proceed with surgical repair
which was scheduled for May 6, 1998.
On May 27, 1998 Dr. Rubbo noted that Mr. Lebo underwent arthrotomy
of his right shoulder. A large rotator cuff tear was noted with
"attachment of the Supr1'lspinatus as well as the subscapularis and
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a portion of the infraspinatus tendon as well. It was described
as "complex in nature as well as destruction of his bicep tendon".
A "Sta-Tek suture was used for the subscapularis repair". The
rest of the tendon repair was with non-absorbable sutures.
On June 3, 1998 Mr. Lebo returned one week post repair of his
right rotator cuff. Dr. Rubbo's notes reveal the following:
"Today his wound appeared to be healing nicely. He was changed
from a shoulder immobilizer to a sling and I've instructed him on
pendulum exercises as well as passive range of motion exercises."
Dr. Rubbo further recommended that he return in 2 weeks for a
follow up visit when physical therapy would be instituted.
Mr. Lebo returned on June 16, 1998 to Dr. Rubbo, 3 weeks post
rotator cuff repair for his regularly scheduled appojntment. Mr.
Lebo had previously telephoned Dr. Rubbo's office, speaking to a
covering doctor complaining of severe pain and fever yet not given
an earlier appointment to be evaluated for this post-operative
problem. Instead he was referred to a general physician to
evaluate him for other medical problems. "He complains of pain in
his right shoulder as well as some fever. He also relates an
episode where he will get numbness and tingling in his arm as well
as a strange feeling in his head and face. He was recently seen
by an internist for this". (Dr. Rubbo notes that his evaluation
by the internist was for evaluation of his episode of numbness and
tingling in his arm and the strange feeling in his head and face.)
On physical examination Dr. Rubbo noted: "Some redness to his
incision and appears he may be showing some sort of reaction to
the Vicryl suture, particularly to the superior aspects of the
incision where his knot has been tied". It was Dr. Rubbo's
impression that Mr. Lebo was "3 weeks status post right rotator
cuff repair with possible staph infection". Mr. Lebo was given a
prescription for oral Keflex and asked to return in 2-3 days time
to see if he shows any improvement or sooner if his pain and
swelling should get worse. "If so, then he may require IV
antibiotics for his right shoulder". Dr. Rubbo specifically did
not contact the internist about his evaluation and findings, did
not request a copy of or order a CBC and sed rate or other
cultures of the possible infection he was treating. Furthermore,
Dr. Rubbo did not comment upon the multiple phone calls that were
made to his answering service in the days following surgery.
On June 17, 1998 Mr. Lebo returned noting that he
pustule on the anterior aspect of his incision
described as quite painful. Purulent material was
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the pustule that was believed to be superficial. Dr. Rubbo
debrided the area and cut out a large vicryl knot. Aerobic and
anaerobic cultures were obtained. (Patient had already received
apparently 3 doses of antibiotic). He was then admitted for
intravenous antibiotic treatment and daily dressing changes.
On June 22, 1998 Mr. Lebo returned in follow up for his recent
hospitalization where he underwent incision drainage and treatment
of the infection of his right shoulder (this was 6 days after Dr.
Rubbo diagnosed a post-operative infection). It was noted that
purulent material was seen underneath the deltoid. It was further
noted: "The rotator cuff repair that was done 3 weeks ago was
completely undone and Ethibond suture was noted to be loose". The
rotator cuff was believed to be massive and "irreparable". The
rotator cuff was "debrided to viable tissue and then left alone".
He was to complete a course of intravenous antibiotics with home
IV for 40 days and a follow up with Dr. Rubbo.
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On June 30, 1998 he returned for a second visit and it was noted
that he no longer had the pain that he had had in the past. It
was Dr. Rubbo's impression that Mr. Lebo was "status post failed
repair of rotator cuff with postoperative infection". He
continued to be followed by Dr. Rubbo and he began physical
therapy.
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In September of ,1998 he was advised that he could perform light
duty with any job that does not involve the use of his right upper
extremity.
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A final office visit on April 6, 1999 with Dr. Rubbo notes that he
is 10 months post rotator cuff repair complicated with infection
postoperatively where the repair came apart. Dr. Rubbo stated:
"He's coming along as well as one can expect with this situation.
He could actively abduct his right shoulder approximately 30-35
degrees and has marked weakness to his right shoulder". Dr. Rubbo
further stated: "I do not feel there is anything more to offer
him and I will see him back on an as needed basis". Mr. Lebo was
placed on permanent restriction of light duty and was working at
the country club on a part time basis, driving golf carts at that
time.
Polyclinic Medical Center Admission 5/27/98
The records of Mr. Lebo's initial hospitalization at the
Polyclinic Medical Center for repair of his right should rotator
cuff injury were reviewed. The records reveal that Mr. Lebo was
given three (3) intravenous doses of the broad spectrum antibiotic
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Kefzol as requested by Dr. Rubbo for prophylaxis against
infection.
Preoperative blood work drawn on May 22, 1998 revealed normal
electrolytes, BUN and creatinine as well as blood sugar and
calcium. His alkaline phosphatase was normal at 87 (30-115 normal
range). His Alt (SGOT) level was elevated at 75 (normal 24-65)
and his total bilirubin was minimally abnormal at 1.1 (normal 0-
1.0). His GGTT, another test of liver function, was elevated at
190 (normal 5-85). In addition, his preoperative white blood
count was elevated at 11,900. (He had recently received a total
of 2 cc of intra-articular steroids which may have been a factor
in the elevated white blood count). On differential he had an
increased percentages of neutrophils at 80% (normal 50-70) and 8%
bands or young neutrophils, with a decreased lymphocyte count of
6% (normal 25-45).
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At discharge Mr. Lebo was instructed to use ice for 24-48 hours
and to take Vicodin, a narcotic analgesic, 1-2 pills every 4 hours
as needed for pain and to resume any regular medication (this
implies he should resume Motrin, 800mg. Tablets). He was also
advised to be seen in 10-14 days with Dr. Rubbo. He was given a
prescription for Vicodin by Dr. Rubbo at discharge.
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The abnormal liver function studies, elevated white blood count
and left shift required evaluation before elective surgery which
was not done. Furthermore Mr. Lebo should have been alerted to
the abnormal tests so that when he was referred to a general
internist for further evaluation, this information could be taken
into consideration.
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Medical Records of Dr. George Sylvestri
On June 9, 1998 Mr. Lebo presented to Dr. Sylvestri for the first
time for evaluation of an acute complaint. His weight was noted
to be 178 pounds, blood pressure 134/82 in his left arm and
temperature 100.6. The medical assistant noted the following
history: "Complained of an episode one week ago of severe pain in
head associated with tingling and numbness of body and dizziness--
patient on Motrin 800 mg. for pain of right shoulder--recent
rotator cuff surgery. Headache persists and fever daily".
Dr. Sylvestri noted the following history: "New patient in 20
minute acute slot. 2 weeks status post right shoulder rotator
cuff surgery. One week headache, facial numbness, shortness of
breath, palpitations. Felt to be reaction to Motrin so
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discontinued (it appears he may have been taking toxic doses of
Motrin, so this was reasonable consideration). Fever to 101
since. Still feels lightheaded. Positive nausea, positive
frontal headache, positive paresthesia of both hands, some pain in
right shoulder, positive cough--dry".
Dr. Sylvestri noted the following medications: Motrin as needed
and that there was no known allergies except anaphylaxis to
shellfish. Past medical history was essentially negative except
for left knee surgery in 1996. He was noted to be a non-smoker
and that he was a retired computer specialist who was also a non-
drinker. It was also noted in parenthesis; "mother died this
morning at time of coronary artery bypass grafting".
On physical examination he was anicteric. His extraocular
movements were normal and his pupils were equal and reactive to
light. His neck was supple. He had no abnormal lymph nodes. His
right shoulder revealed "decreased range of motion, negative
fluctuance or erythema around wound." His lungs were reported to
be clear, heart was normal without a murmur and abdominal exam was
soft, non-tender without liver or spleen enlargement. He had no
peripheral edema. His cranial nerves were intact. He was
oriented. His speech was fluent and his motor exam was non-focal.
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This represents an extremely comprehensive, general physical
examination and neurologic examination (comprehensive evaluation
of the wound was the responsibility of Dr. Rubbo). A chest x-ray
was done and immediately reported to be negative. Hemoglobin was
normal at 14.7 and white blood count normal at 8,700. (In fact,
it was reduced from the preoperative elevated white blood count of
11,900). The impression was postoperative fever of unknown origin
and the treatment plan was "check liver function studies, SMA,
sedimentation rate, and hold off antibiotics but follow up in 3
days".
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This represents an extremely comprehensive emergency evaluation of
a patient who had an unexplained neurologic event and fever.
Although Dr. Sylvestri reasonably considered a postoperative
infection in his differential, his role as a general internist in
a patient who was already receiving ongoing care by the treating
surgeon, was to evaluate Mr. Lebo for general systemic or other
causes of his complaints. A general internist would reasonably
expect the treating surgeon to have the expertise and be in the
best position to diagnose a post-operative wound infection. The
treating surgeon alone knew of the pre-operative abnormal blood
studies, the steroid injection (increases the risk of infection)
and the intra-operative findings and surgical technique.
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Mr. Lebo returned 3 days later as requested. His weight was 178
and his blood pressure was 146/80. According to Dr. Syl vestri' s
notes, Mr. Lebo remained febrile with temperatures between 99 and
102 but "overall may be a little better". He continued with a
frontal headache and sore neck with no abdominal pain or diarrhea.
Dr. Syl vestri noted an increased sedimentation rate of 63 and
abnormal liver function tests. He further noted that Mr. Lebo
"had received letter from Red Cross in '96 that they could no
longer accept his blood". Dr. Sylvestri also noted that Mr. Lebo
was still with significant right shoulder pain. On physical
examination his temperature was 99 and he did not appear toxic.
He again was anicteric (no jaundice). His neck was supple and his
lungs were clear and his cardiac exam was normal. His right
shoulder exam revealed tenderness without increased warmth
erythema and that his "wound is clean" (the treating surgeon and
not the internist would have performed a detailed exam of the
surgical site).
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Dr. Sylvestri's impression was that Mr. Lebo had a postoperative
fever without a source. He further stated: "Would expect
increased erythema swelling of the wound if joint infected". He
further noted increased abnormal liver function studies were non-
specific but needed follow up and that the increased sedimentation
rate was non-specific as well. (In the postoperative setting the
sedimentation rate would be elevated.) The treatment plan was not
to give antibiotics for now but to follow up in one week and check
the sedimentation rate and liver function studies again.
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Blood work drawn by Dr. Sylvestri on June 9, 1998 revealed white
blood count of 8,700 with 82.5% granulocytes, 3.9% monocytes and
13.6% lymphocytes. His hemoglobin was 14.7 and hematocrit 43.1
and his platelets were normal. This essentially represents a
normal complete blood count with a minimal left shift consistent
with recent surgery and pain. In addition, his sedimentation rate
was noted to be 63 (normal 0-10). Again, the increased
sedimentation rate is a non-specific finding of inflammation and
consistent with a postoperative setting and/or chronic
inflammation from previously undiagnosed liver disease.
Other blood studies revealed a hepatic profile that was abnormal
including an elevated alkaline phosphatase of 275 (normal 30-80),
elevated ASP/SGOT of 61 (normal 12-26) and elevated ALT/SGPT 171
(normal 4-31). These abnormal liver function studies are quite
significant and reflect some underlying presumed chronic liver
disease. His history of previous rej ection for blood donations
suggests he has a chronic undiagnosed liver abnormality and it was
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reasonable and medically appropriate for Dr. Sylvestri to
recommend follow up of this condition (which should have been the
recommendation of Dr. Rubbo pre-operatively as well) .
It was reasonable that Dr. Sylvestri would presume that Mr. Lebo's
postoperative care for his shoulder including evaluation of his
wound, complaints of continued pain, etc. would be done by his
treating physician who he would continue to see his patient on an
ongoing basis. It is ridiculous to suggest that a medical
consultant would focus primarily on the surgical problem. Mr.
Lebo's general medical condi tion was the purpose of his
presentation to Dr. Sylvestri in the first place.
Mr. Lebo returned to Dr. Rubbo, his treating surgeon, 4 days after
the second visit with Dr. Sylvestri for his routine follow-up
visit, still complaining of pain and fever. For the first time,
redness and a possible reaction to the suture was noted. Dr.
Rubbo suspected an infection and instituted oral antibiotics
without requesting immediate hospitalization. It was not until
one day later when Mr. Lebo returned with the pustule and purulent
material that Dr. Rubbo then recommended hospitalization.
Mr. Lebo was admitted to the hospital on June 17, 1998 from Dr.
Rubbo's office. He was begun on intravenous antibiotic therapy.
However, because of persistent drainage, he underwent irrigation
and debridement of the wound on June 22, 1998 when he was noted to
have soft fiber tissues and evidence of infection. He had a
coagulase negative staph species on a subculture. In consultation
with an infectious disease specialist his antibiotics were changed
to Vancomycin.
It is evident that once admitted to the hospital another 5
passed before Mr. Lebo received appropriate debridement
antibiotic therapy for his wound infection.
On July 6, 1998 Mr. Lebo returned and was treated by Dr. Sylvestri
for a reaction to his Vancomycin. Dr. Sylvestri consulted the
infectious disease expert as of that visit for advice concerning
his presenting complaints and to recommend appropriate treatment.
days
and
His final office visit on September 10,
noted that he had no new complaints and
Vancomycin previously. He was' advised
physical examination.
1998 with Dr. Sylvestri
that he had finished his
to return for a yearly
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Review of Deposition Test~ony of Car1 Robert Lebo
Mr. Lebo stated that following his injury at Hershey Country Club
he was referred by the company doctor to see a Dr. Richards who
began the Motrin therapy. Mr. Lebo stated that he did well
following the surgery for the first day or so but then during the
weekend he had an episode where he experienced "pounding headache,
ringing in my ears and lights flashing in my eyes and tingling in
my arms that lasted for quite awhile". This episode apparently
occurred before the first post-op visit with Dr. Rubbo yet Dr.
Rubbo did not comment upon this in his evaluation. Mr. Lebo
telephoned his son, a dentist, asking whether or not this could be
a reaction to the Motrin he was taking for his severe pain. His
son advised him to talk to Dr. Rubbo because he did not think
Motrin would do that. This was the Saturday following the
operation and apparently prior to the first postop visit with Dr.
Rubbo.
Dr. Rubbo's office was called and Dr. Rychak was on call. He
suggested that Mr. Lebo cut back on the Motrin. (Mr. Lebo was
taking 6 800 mg. tablets of Motrin and he was advised to cut back
to 4). This represents an excessive dose of Motrin, that is 4800
mg. a day and certainly could explain his toxic side effects.
Cutting back to 4 was inappropriate. He should have discontinued
them altogether. Furthermore, Mr. Lebo did have a prescription
for Vicodin already from Dr. Rubbo and he was advised to take
Vicodin postoperatively at discharge. Mr. Lebo stated that he
started to have fevers and cold sweats ever since that episode.
Mr. Lebo stated that he did tell Dr. Rubbo about the event and the
fever. It was therefore Dr. Rubbo's responsibility to consider
the broad and appropriate differential diagnosis of his complaint
and recommend appropriate evaluation and treatment. Mr. Lebo
stated that infection never crossed his mind. "I didn't even
think that anything-- an infection -- would take place." It is
therefore apparent that Dr. Rubbo did not suggest to Mr. Lebo the
possibility that he could have a postoperative infection, given
his complaints of fever as well as severe shoulder pain.
Following his initial visit with Dr. Rubbo, Mr. Lebo's pain was
getting more intense and he called Dr. Rubbo's office again on a
Saturday morning. He again talked to Dr. Rychak, the covering
physician. Dr. Rychak stated he would speak to Dr. Rubbo about
his complaints. "He also suggested that I see a doctor or
internist and talk to him about my problem". It is therefore
evident, based on Mr. Lebo's deposition testimony that Dr. Rubbo's
covering physician did not consider a post-operative infection and
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had taken the responsibility to refer him to an internist for
further evaluation and that he would also alert Dr. Rubbo to Mr.
Lebo's telephone call.
It is the responsibility of the treating physician to consider
postoperative infection and recommend appropriate evaluation and
treatment. It was the responsibility of the general internist to
exclude other causes for Mr. Lebo's continuing, ongoing
complaints, but not to primarily perform a postoperative
evaluation related to the surgery, per se.
Mr. Lebo stated that he had difficulty finding other doctors to
handle his case because he was a workman's compensation problem.
Dr. Sylvestri, however, was able to see him that following
afternoon immediately after his telephone call for an appointment.
Mr. Lebo stated in his deposition that he told Dr. Rychak about
"the fever, chills and the pain in the shoulder getting worse, and
the look to him as if it were getting red". He stated Dr. Rychak
did not suggest to him the cause of his symptoms. He did state
that Dr. Rychak wanted to talk to Dr. Rubbo about it, however.
Mr. Lebo stated that Dr. Sylvestri did not examine his shoulder
during the visit. Although this statement is in contrast to Dr.
Syl vestri' s documented note of evaluating his shoulder, even if
Dr. Syl vestri had not removed the dressing that Dr. Sylvestri' s
role in evaluating Mr. Lebo was to consider non-surgical causes of
his fever and symptoms. As noted, a comprehensive evaluation of
the surgical site was presumably done by the treating surgeon who
was actively following the patient as well.
Mr. Lebo stated that Dr. Syl vestri prescribed Vicodin for him.
This is in contrast to Dr. Sylvestri's deposition testimony.
Furthermore Mr. Lebo was prescribed Vicodin by Dr. Rubbo as
documented in the discharge summary.
Mr. Lebo stated that he volunteered to Dr. Sylvestri that he was
turned down for blood donations in the past and he believed the
reason was "I had given an excess of 70 pints of blood and I
thought maybe that was enough and they didn't want it anymore".
The Red Cross would not deny blood without suspicion of
abnormality and would have alerted Mr. Lebo to that. Mr. Lebo's
failure to follow up, given the previous letter from the Red
Cross, and evaluate his abnormal liver function studies would have
alerted his subsequent physicians to the possibility of a chronic
infection and need for special precautions in his care and
treatment. Mr. Lebo did nothing following that letter from the
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Red Cross.
Mr. Lebo stated that his second postoperative visit with Dr. Rubbo
was a regularly scheduled appointment and that before this
appointment he noted oozing, the bandage was stained and it was
red and yellow with redness protruding from the outside of his
bandage. He then saw Dr. Rubbo who began the oral Keflex
antibiotic as discussed above. He also recalled being advised to
put warm compresses on his wound and incision. He stated that
when the pustules appeared after that visit he telephoned Dr.
Rubbo and again received Dr. Rychak who recommend he return to the
hospital the following morning. '
Mr. Lebo stated that the following morning Dr. Rubbo removed the
bandage and lanced the area. "Everything just exploded out, pus
and green sediment and blood". (Dr. Rubbo did not recognize the
need for hospitalization, IV antibiotics and possible debridement
just 24 hours earlier so how could a general internist know to
recommend such treatment a number of days before?)
Mr. Lebo recalled that it was the infectious disease consultant
who recommended the incision and drainage, not Dr. Rubbo who
simply treated him with intravenous antibiotic after the initial
lancing of the incision. It was also the infectious disease
specialist who recommended the change in antibiotics to
Vancomycin.
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Mr. Lebo's final note when asked about the care provided to him by
Dr. Rubbo and why he did not sue Dr. Rubbo he stated: "I think he
did what he was supposed to do. Of course, he's not an internist,
he's just an orthopedic surgeon. He was concerned about the
repair of the shoulder which was his primary function." This
statement, of course, by Mr. Lebo suggests he has no understanding
of the role of the surgeon and consultant general internist.
Dr. Rubbo recommended surgery and it was his duty to apprise Mr.
Lebo of the potential postoperative complications. It is a
standard part of a surgeon's care and treatment to include
postoperative care and evaluation and treatment of any surgical
complications. It was not the role of a general internist to
provide postoperative care and treatment for postoperative
complications. A general internist is consulted to evaluate for
other general medical problems either in a pre or postoperative
setting, but again, would not provide primary care of the surgical
complications. It is therefore apparent that Mr. Lebo did not
understand the roles of his treating physicians and therefore
erroneously considered Dr. Sylvestri's care as below the standard
11
Dr. Sylvestri stated that he was concerned about a central nervous
system problem because of his headache, fever, numbness and
tingling. He was concerned about illnesses such as meningitis,
encephalitis and rare disorders. He also was concerned about the
usual post operative infections such as infection of the wound and
the chest. He stated that pneumonia was ruled out by the chest x-
ray and examination and he "was pretty much satisfied that there
was no wound infection". He further stated that: "I did know
that Mr. Lebo had been still under the care of his orthopedic
surgeon. He had seen him the week before..."
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of care when, in fact, it was Dr. Rubbo's postoperative care that
should be evaluated as to the appropriateness of the standard of
care and whether that standard of care was breached.
Deposition testimony of Dr. George Sylvestri
Dr. Sylvestri was questioned whether or not he removed the
dressing to look at the wound. He stated: "I know I looked at
the wound because I charted it. I looked at the wound, and the
stand.ard of care when any patient comes in after surgery for
infection would be to have to look at the wound." He stated he
did not put Mr. Lebo through a range of motion of his shoulder
because he was a postoperative patient "so you don't usually--I
wouldn't do that".
Dr. Sylvestri considered his abnormal liver function test as
possibly reflecting viral illness. (His hepatitis serologies were
subsequently negative as was some of his liver tests). Dr.
Sylvestri also considered a delayed reaction to an anesthetic.
(He had ,a previous abnormality related to an anesthetic in the
past) . Toxicity to Motrin is yet another consideration and the
patient had already stopped the Motrin.
Dr. Sylvestri noted that Mr. Lebo returned with a copy of a letter
from the Red Cross and that he apparently had elevated liver
function test in 1991 on blood donation but follow up in 1993 had
shown normalization. This was further reason for him to be
concerned about Mr. Lebo's fluctuating liver function studies and
the possible causes contributing to his postoperative problems.
Summa~ and Conclusions
Carl Lebo was a 62 year-old man when he underwent surgical repair
of a massive right rotator cuff tear. He had a prior history of
abnormal liver function studies and was declined for blood
donation. (Subsequent hepatitis serologies were negative for
12
Hepatitis A, B and C) .
He had received 2 cc of intra-articular steroids in the immediate
preqperative period and was noted to have an elevated white blood
count and abnormal liver function studies preoperatively. The
int~a-articular injection of steroids would increase the risk of
postoperative surgical infection and could contribute to the
abnormal white blood count. His elevated white count and abnormal
liver function studies were not noted or evaluated preoperatively
whiqh would have been standard. He did receive 3 intravenous
dos~s of prophylactic antibiotics during the perioperative setting
as requestE!d by Dr. Rubbo.
Postoperatively he developed increasing shoulder pain, fever,
episodes of headache, numbness and tingling. He was followed by
Dr. Rubbo, his orthopedic surgeon, in the postoperative period who
was apprised of his postoperative difficulties. Furthermore, his
associate, Dr. Rychak, was also apprised by telephone of Mr.
Lebo's ongoing difficulties, including fever and increasing
shoulder pain. At no time in the postoperative setting, until
June 16, was a postoperative infection considered by his treating
or covering orthopedic surgeon. Furthermore, even when an
infection was diagnosed as of June 16, he was treated by his
surgeon with oral antibiotics and not hospitalized for an
additional 24 hours. Following hospitalization there was a delay
of another 5 days before he underwent the necessary surgical
debridement and the change to the appropriate antibiotic.
Dr. Sylvestri was a general internist who evaluated Mr. Lebo for
the first time in the postoperative setting following a suggestion
by Dr. Rychak, Dr. Rubbo's covering physician. Dr. Rychak
suggested that he see an internist for further evaluation.
Although Dr. Sylvestri believed there was no specific evidence of
a wound infection he did consider this in his differential
diagnosis. . He was also aware that Mr. Lebo was being followed by
Dr. Rubbo. (Dr. Sylvestri would not have knowledge that Mr. Lebo
had received a prior intra-articular injection of steroids nor
that his preoperative blood studies were abnormal) .
Dr. Syl vEestri performed a comprehensive internal medicine
evaluation. Dr. Sylvestri noted the abnormal liver function
studies and suggested follow up of his condition. As he did not
diagnose a bacterial infection, he did not begin antibiotics.
Finally, he reasonably relied on Dr. Rubbo to continue
postoperative care of his shoulder as would be standard.
It appears that Mr. Lebo is suing Dr. Sylvestri believing that Dr.
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Sylvestri breached the standard of care. Mr. Lebo's belief that
Dr. Rubbo was "only an orthopedic surgeon" and that the general
internist should have diagnosed the postoperative wound infection
and initiated appropriate treatment is, of course, not reasonable
nor consistent with the practice of internal medicine in providing
consul tation and care in a postoperative setting. A general
internist relies on the surgeon to evaluate and treat
postoperative problems related to the actual surgery. The
internist is consulted to provide general medical care and
evaluation and treatment of general medical problems that would
arise. The wound infection that was subsequently diagnosed was
certainly not a general medical problem but rather a postoperative
surgical problem.
Both Dr. Rubbo and Dr. Rychak were apprised on a number of
occasions of Mr. Lebo's postoperative problems and yet they failed
to recommend the appropriate and necessary evaluation and
treatment.
If I can be of any further assistance, please don't hesitate to
contact me.
Sincerely, I
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Marie A. Savard, M.D.
MAS/mch
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CURRICULUM VITAE
MARIE SAVARD M.D.
ADDRESS:
421 Owen Road
Wynnewood, P A 19096
phone (610) 896-1995
fax (610) 649-0431
email:SavardSys@AOL.com
DATE OF BIRTH:
October 25, 1949
PLACE OF BIRTH~
York, PA
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CITIZENSHIP:
U.S.A.
MARITAL STATUS:
Married to Bradley W. Fenton, M.D.
CHILDREN:
Zachary, 10/4/80
Aaron & Benjamin, 1/18/82
EDUCATION:
1967-1970
1968-72
R.N. Hospital of the University of Pennsylvania School of
Nursing
B.S.N., University of Pennsylvania
1972-76
M.D., University of Pennsylvania School of Medicine
POST GRADUATE TRAINING AND FELLOWSIDP APPOINTMENTS:
1976-79
Residency, Internal Medicine
Hospital of the University of Pennsylvania
1979-81
Fellow, General Internal Medicine
University of Colorado Health Sciences Center
1980-82
Master of Community Health program
University of Colorado Health Sciences Center
ACADEMIC APPOINTMENTS:
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1979-81
Instructor, Clinical Medicirie
University of Colorado Health Sciences Center
1981-89
Assistant Clinical Professor of Medicine
University of Pennsylvania School of Medicine
1989-2000
Associate Clinical Professor of Medicine
University of Pennsylvania School of Medicine
1994-1996
Associate Professor of Medicine
Medical College ofPennsylvaniaIHahnemann
University
1995-199-
Associate Clinical Professor of Medicine
Jefferson Medical College
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HOSPITAL AND ADMINISTRATIVE APPOINTMENTS:
1981-88
Section Chief, General Internal Medicine
Pennsylvania Hospital Department of Medicine
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Medical Director and primary care physician to Cabrini Retirement
Community and Nursing Home
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1988-present
Attending Staff - Pennsylvania Hospital
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1994 through 1996 Medical Director, Center for Women's Health
Medical College ofPennsylvaniaIHahnemann Hospital
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1993 and 1994 Medical Director, Quality Assurance and Utilization Review,
Pennsylvania Hospital
1997-1999
Private Practice, Internal Medicine and
Osteoporosis Consultations at Jeanes Hospital
1998-present
Meniscus Educational Institute, Medical Education Committee
and Consulting Director of Medical Education.
1998
Founder of Savard Systems, patient education and consulting company
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2000-
Senior Medical Consultant to Lifetime Television program, Strong
Medicine (help write and edit the scripts)
LICENSURE:
Pennsylvania - MD 020735-E
v
SPECIALTY CERTIFICATION:
1980
American Board of Internal Medicine
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HONORS AND AWARDS:
1970
Letitia White Award, Highest Graduate in Nursing School Class, Hospital of the
University of Pennsylvania
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1974 Alpha Omega Alpha National Medical Honor Society
1976 A warded Recognition for the Highest Female Graduate Academic
Record in the Class, University of Pennsylvania School of Medicine
American College of Physicians
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1980's - 1996 Philadelphia Magazine, Top Doc in Philadelphia
MEMBERSHIP ][N PROFESSIONAL SOCIETIES:
Society for General Internal Medicine
American Medical Women's Association
Eastern Pennsylvania Osteoporosis Society, Founding Member
EDITORIAL POSITIONS:
1986-88
American Cancer Society Newsletter
1986-90
National Board of Internal Medicine, Prototype Scoring Committee
1993-
University of Pennsylvania Trustees Council of Women
1994-1996
MCP Delegate to the National Academy of Women's Health Education
American BOard ofInternal medicine "Gold Standard" Panel for
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1995-1996
Subcommittee, ABIM, DefIning Clinical Competency and Women's
Health
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RecertifIcation Exam of General Internists
1991-1996
Medical Secretary, American Board ofInternal Medicine
Writing and Review of Internal Medicine Questions, for RecertifIcation
Exam
Pretest examination committee
1995-1996
Women's Dav Magazine. Regular column writer & editor of health issues.
PUBLICATIONS:
Orbrlnal PaDers:
Savard-Fenton, M.A., Fenton, B., Reller, B., Lauer, B., Byyny, R., Single-Dose Amoxicillin
Therapy with Follow-Up Urine Culture: Effective Initial Management for Acute Uncomplicated
Urinary Tract Infection. AJM 73:808,1982
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Savard, Marie A. Et al., Postmenopausal Osteoporosis: Diagnosis, Treatment and Prevention
Journal of Clinical Outcomes Management. Vol. 3, no. 5. September/October 1996 pp. 37-54.
ABIM Subcommittee on Clinical Competencies and Women's Health (M.Savard et al) Core
ComDetencies in Women's Health: What Internists Need To Know Excerpta Medica 1997
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Abstracts:
Savard-Fenton, M.A., Fenton, B., Efficacy of Single-Dose Amoxicillin Therapy with Follow-Up
Urine Cultures in Acute Urinary Tract Infection. Clinical Research 29:48A, 1981
Savard-Fenton, M.A., Fenton, B., Byyny, R. Cost-Effectiveness of Single-Dose Amoxicillin
Therapy with Follow-Up Dipslide Culture in Acute Urinary Tract Infection. Clinical Research
29,1981.
Wigton, R.S., Fenton, B., Savard-Fenton, M.A., Steinmann, W.C. Do Clinical Presentation or the
Antibody Coated Bacteria Test (ACB) Predict Treatment Failure in Urinary Tract Infection?
Presented at SREPCIM National Meeting, 1985.
Book ChaDters:
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Savard-Fenton, M.A., Goals of Primary Care Training. Chapter 4, The Education of the General
Internist. T. Thompson and R. Byyny (ed.)Ovid Bell Press, Inc., Missouri, 1982 pp 29035.
Savard-Fenton, M.A., Incorporating Patient Education Activities Into The Practice of Primary
Care Residents. Chapter 13, The Education of the General Internist. T. Thompson, and R.
Byyny, (ed.) Ovid Bell Press, Inc., Missouri, 1982, pp 113-125.
Savard-Fenton, M.A., The Education of Primary Care Residents in Team Health Care Delivery.
Chapter 14. The Education of the General Internist. T. Thompson and R. Byyny, (ed.) Ovid Bell
Press, Inc., Missouri, 1982, pp 126-133.
Savard-Fenton, M.A., The Female Patient. in Cardiovascular Health and Disease in Women.
Pam Douglas (ed.) W. B. Sauders Co., Philadelphia, 1993, pp 1-2.
Savard, M.A., The Religious Community as Family: The Primary Care Physician's Perspective,
in Grieco, AJ, Kramer EJ, Phelan, G& Glassman, KS (editors), Patient Education and the
Familv. NY, Springer, 1997
Auerbach, MI, Kramer, EJ, Phelan, G, Savard, M & Palacios, D, Educational Strategies. in
Grieco, AJ, Kramer, EJ, Phelan, G & Glassman, KS (editors) Patient Education and the Familv,
NY, Springer, 1997
Books
Savard, Marie, The Savard Health Record.' Six Steps to Managing Your Health Care, VA. Time-
Life, Inc. April 2000
Savard, Marie with Sondra Forsythe, How To Save Your Own Life: The Savard System of
Managing and Controlling Your Health Care, NY, Warner Books, May 2000
WEB Programs
Savard, M.D., Marie and Frances Batzer, M.D. for Meniscus Educational Institute, continuing
medical education program; Medical Decision Making and Hormone Replacement Therapy.
Savard, M.D., et al. US Oncology Group; Risk Reduction Therapy in Breast Cancer.
Lectures: (not inclusive or current list)
Grand Rounds. Hospital of the University of Pennsylvania and Pennsylvania Hospital, Urinary
Tract Infections.
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Women's Health Issues including: Hormone Replacement Therapy, Osteoporosis, Psychosocial
Issues, Vaginitis, Urinary Tract Infections, Coronary Artery Disease, Screening, and
Mammography.
Penn Trustees Council. University Women Groups
World Presidents' Organization Meeting in Florence 1992; Hong Kong, 1994
Senator Allison Schwartz: Yearly Conference on Women's Health, Lecture on Women's Health
Humanities and Medical Literature: Healing and the Doctor-Patient Relationship Workshop.
Meeting of American Academy of Family Practice.
American Psychiatric Association Centennial Meeting, Lecture on Women's Health Care Issues.
Osteoporosis for the Primary Care Physician, a CME Accredited Program
Global Health Alliance Keynote address in Beijing, Fourth World Conference on Women 1995,
"Wellness in the Mature Woman"
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Rome 1999 Women's Health at the Dawn of the New Millenium
Frequent lectures and seminars on patient empowerment and health management
Written Testimony Conference on Medical Mistakes and Patient Safety in Washington,
September 2000
OTHER ACTIVITIES:
1992-1994
Advisor on Health Care to Congresswoman MaIjorie Margolies
Mezvinsky.
1995
Technical Advisor, World Health Organization, Fourth World
Conference on Women, Beijing
1996-1997
Pennsylvania Judicial Evaluation Commission
1997- present
Pennsylvania Commission For Women, appointment Governor
Ridge
Revision 1/01
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CERTIFICATE OF SERVICE
I HEREBY CERTIFY that I served a true and correct copy of the foregoing
on all counsel of record by placing the same in the United States rnail at Camp Hill,
Pennsylvania, first-class postage prepaid, on the _ day of
2004, and addressed as follows:
April L. Strang-Kutay, Esquire
GOLDBERG, KATZMAN & SHIPMAN, P.C.
320 Market Street
P.O. Box 1268
Harrisburg, PA 17108-1268
(Counsel for Plaintiffs)
MARGOLIS EDELSTEIN
By:
Secretary
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SEP 0 1 2004 ~
April L. Strang-Kutay, Esquire
Attorney I. D, No. 46728
David M. Steckel, Esquire
Attorney I.D. No. 82340
GOLDBERG KATZMAN, P.c.
320 Market Street
P.O. Box 1268
Harrisburg, PA 17108-1268
Telephone: (717) 234-4161
Attorneys for Plaintiff
CARL R. LEBO and
BEVERLY ANN LEBO, His Wife,
Plaintiffs
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
CNIL ACTION - LAW
v,
NO. 00-2990 Civil Term
GEORGE SYL VESTRI, M.D. and
COWLEY MEDICAL ASSOCIATES, P.C.,: JURY TRIAL DEMANDED
Defendants
PLAINTIFFS' MEMORANDUM OF LAW IN RESPONSE TO
MOTION IN LIMINE FILED BY DEFENDANT SYL VESTRI
1. mSTORY OF THE CASE
Plaintiff, Carl Lebo, a previously healthy 62 year old male, presented to Dr. Ernest R.
Rubbo (orthopedist), on May 6,1998, approximately two weeks after sustaining a work-related
injury to his right shoulder. On May 6, 1998, Dr. Rubbo ordered an MRI scan pertaining to Mr.
Lebo's right shoulder; this scan demonstrated a full thickness rotator cufftear. On May 27,
1998, Dr. Rubbo admitted Plaintiff to Polyclinic Hospital where he performed a surgical
procedure (an arthrotomy, and an open acromioplasty) torepair the tear. That surgical procedure
was accomplished uneventfully and no unusual incidents or occurrences are noted in the
operative report.
One week following surgery, Plaintiffretumed, as instructed, to Dr. Rubbo's office for a
routine follow-up evaluation; at that time, according to Dr. Rubbo's office note, the shoulder was
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"healing nicely" and Plaintiff was instructed to progress from a shoulder immobilizer to a sling
and to begin passive range of motion exercises.
On June 9,1998, Plaintiff presented to the offIce of Defendant George Sylvestri, M.D., an
internist, for evaluation of symptoms he had developed involving episodic severe headaches,
accompanied by facial numbness, nausea, light headedness, shortness of breath and tingling
feeling in his extremities. On that date Dr. Sylvestri evaluated Plaintiff for the above-stated
complaints and also noted in the record that the patient had been running a fever for
approximately one week. A physical exam on June 9, 1998, conducted by Defendant Sylvestri,
indicated that Plaintiff had a decreased range of motion of his right shoulder. Dr. Sylvestri was
not alarmed by the appearance of the shoulder wound. Based on the above fIndings, Dr. Sylvestri
proposed a diagnosis of "post-op fever, of unknown origin," and elected to withhold antibiotics,
preferring to instruct the patient to return for follow-up in three days.
As requested, Plaintiff saw Dr. Sylvestri on June 12,1998. Plaintiff reported to Dr.
Sylvestri that his fever had ranged, in the past three days, between 990F to 1020F. At that time,
Dr. Sylvestri noted the right shoulder to be tender with increased warmth and swelling. Once
again, Dr. Sylvestri proposed a diagnosis of "post-op fever, of unknown origin", and elected not
to prescribe antibiotics and to re-evaluate him in one week with a repeat sedimentation and liver
function test in the interim.
On June 16, 1998, Plaintiff saw his orthopedic surgeon, Dr. Rubbo for routine follow-up.
Plaintiff complained of pain in his right shoulder, as well as fever. Dr. Rubbo noted that the
incision was red and "appears to be showing some sort of reaction to his Vicryl suture,
particularly to the superior aspect of the incision where his knot has been tied." Dr. Rubbo
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concluded that Plaintiff may be suffering from a "possible post-op infection" and prescribed an
antibiotic, with instructions for the patient to return in two to three days, or earlier, should the
pain and swelling get worse.
Plaintiff returned to Dr. Rubbo the following day. At that time, Dr. Rubbo noted the
presence of a pustule, which he opened, with drainage and culture of purulent fluid "which
appeared to be mostly superficial." Subsequent culture of this material demonstrated infection.
Additional debridement was then carried out with excision of a large Vicryl knot from the
open area, after which Plaintiff was immediately hospitalized by Dr. Rubbo for further evaluation
and treatment. Plaintiff was immediately begun on a regime of intravenous antibiotics, twice-
daily dressing changes and pain medication.
On June 22, 1998, Dr. Rubbo returned the patient to surgery and re-explored his shoulder,
which re-exploration demonstrated an infectious fluid collection found in the subdeltoid space
with failure of the entire rotator cuff repair; the area was then debrided and irrigated, but in view
of the size of the defect, no repair was felt to be feasible, and'the area was closed over a drain.
Plaintiff was ultimately discharged from the Polyclinic Hospital to home the same day as
the surgery with plans to receive a six week course of antibiotics through intravenous
administration.
The net result of the post-op infection, which went untreated, was that Plaintifflost his
rotator cuff repair and the cuff was destroyed. The basis of Plaintiffs claim is that Defendant,
Dr. Sylvestri, should have become aware of the infection during his evaluations, which took
place on June 9,1998 and June 12,1998, and that ifhe had, the problem could have been
resolved without destruction of the rotator cuff.
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II. COUNTER-STATEMENT OF OUESTIONS INVOLVED
1. Whether Dr. Dunn, Who Is Board Certified in Orthopedic Surgery,
Should Be Permitted To Offer Standard Of Care Testimony Against
Defendant Sylvestri, An Internist?
Sug:~ested Answer: NO
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2. Whether Dr. Savard, Who Is Board Certified In Internal Medicine,
Should Be Permitted To Offer Standard Of Care Testimony Against
Treating Orthopedic Surgeons, Drs. Rubbo and Rychak?
SUllgested Answer: NO
III. DISCUSSION
A. Pursuant To Section 512 Of The MCARE Act, Dr. Dunn Is Not
Competent To Offer Standard Of Care Testimony Against
Defendant Sylvestri.
Plaintiffs agree with Defendant's position that Dr. Dunn, an orthopedic surgeon, should
not be permitted to offer standard of care testimony against Defendant, an internist, Dr. Sylvestri,
Dr. Dunn has been retained by Plaintiffs to offer causation, and damage, testimony only. Dr.
Dunn's opinion, as embodied in his expert report, pertains to how, and to what degree, Plaintiff
was damaged by the latent diagnosis of his post-operative infection. In his report, he offers no
testimony concerning the standard of care involving the conduct of an internist for diagnosing
and managing such infection as Plaintiff developed post surgery.
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B. Pursuant To Section 512 Of The MCARE Act, Dr. Savard Is Not
Competent To Offer Standard Of Care Testimony Against
Treating Orthopedist, Dr. Ernest Rubbo and Dr. John Rychak.
Dr. Marie Savard, Defendants' expert, is a Board Certified Internist who possesses no
Board CertifIcation in orthopedic surgery, nor equivalent experience in the orthopedic field. In
her role as a liability expert for the defense, she opines in her expert report that Dr. Sylvestri met
the standard of care in his treatment of Plaintiff. By virtue of her training, credentialing, and
experience, Dr. Savard is competent to evaluate Dr. Sylvestri's treatment, from the perspective of
internal medicine, during the period under scrutiny.
However, in her report, Dr. Savard liberally criticizes treating orthopedists, Dr. Ernest
Rubbo and Dr. John Rychak, by indicating, at several different points in her reports, that the
orthopedists were negligent in their care of Plaintiff, and that their negligent conduct directly
resulted in the damages sustained by Plaintiff.
On pages 8 through 11 of Defendants' Brief in Support of the Instant Motion, the law
clearly set forth, and has particular applicability to Dr. Savard's (Defendants' expert witness) role
in this case. This case law accurately describes that a physician such as Dr. Savard, who is Board
Certified in Internal Medicine, with professional experience limited to this field, is not competent
to testify as to the standards of care governing the practice of an orthopedic surgeon. With
respect to this analysis as set forth by Defendant in his Brief, as noted above, Dr. Savard should
not be permitted to offer testimony critical of the conduct of Plaintiffs treating orthopedic
surgeons. Dr. Savard does not appear to have any experience or training in the area of orthopedic
surgery. She is not Board CertifIed in the specialized area of orthopedic surgery, and, with such
lack of experience and credentialing, cannot be substantially familiar with the standard of care
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governing the conduct of an orthopedic surgeon. Accordingly, Dr. Savard is simply not
competent to provide expert testimony regarding the standard of care applicable to Drs. Rubbo
and Rychak, who were Plaintiffs treating orthopedic surgeons.
If, in fact, Defendant is correct that Dr. Dunn, as an orthopedist, should not be permitted
to offer standard of care testimony against Dr. Sylvestri, then, correspondingly, Dr. Savard, an
internist, should not be permitted to offer testimony critical of the conduct of Plaintiff s treating
orthopedic surgeons.
IV. CONCLUSION
For all of the above reasons, Plaintiffs respectfully request that the Court preclude
standard of care testimony as against Defendant, Dr. Sylvestri, and preclude Dr. Savard from
offering standard of care testimony against Plaintiff s treating orthopedic surgeons.
Respectfully submitted,
GOLDBERG KATZMAN, P,C.
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A;~lJ~~-iu~~~, -- ~ire
Attorney LD. # 46728
David M. Steckel, Esquire
Attorney LD. # 82340
320 Market Street, P. O. Box 1268
Harrisburg,Pennsylvania 17108-1268
(717) 234-4161
Attorneys for Plaintiffs
Dated: August 26, 2004
1131953
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CERTIFICATE OF SERVICE
I HEREBY CERTIFY that I served a true and correct copy of the foregoing document
upon all parties or counsel of record by depositing a copy of same in the United States Mail at
Harrisburg, Pennsylvania, with CertifIed, fIrst-class postage prepaid, addressed to the following:
Michael M. Badowski, Esquire
Margolis Edelstein
3510 Toodle Road
Camp Hill, PA 17011
By:
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A~ril i!. Strang-Kutay, ESquire
Attorney LD. No. 46728
David M. Steckel, Esquire
Attorney LD. No. 82340
320 Market Street, P. O. Box 1268
Harrisburg, PA 17108-1268
(717) 234-4161
Attorneys for Plaintiffs
Date: August 26, 2004
113195.3
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GEORGE SYLVESTRI, M.D. and
COWLEY MEDICAL ASSOCIATES, P.C., :
Defendants
JURY TRIAL DEMANDED
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CARL R. LEBO and
BEVERLY ANN LEBO, His Wife,
Plaintiffs
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION - LAW
v.
NO. 00-2990 Civil Term
AND NOW, this _ day of
, 2004, upon consideration of the Motion in
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ORDER
Limine of Defendants, George Sylvestri, M.D., and Cowley Medical Associates, P.C., to
preclude the testimony of Robert N. Dunn, M.D., and Plaintiffs Response thereto, it is hereby
ORDERED and DECREED that said Motion is GRANTED, and Robert N. Dunn, M.D., is
precluded from offering any expert testimony concerning the standard of care applicable to Dr.
Sylvestri, pursuant to 40 P.S. ~1303.512(b); and, additionally, Marie Savard, M.D. is precluded
from offering any expert testimony concerning the standard of care applicable to Dr. Ernest
Rubbo or Dr. John Rychak, also pursuant to 40 P.S. ~1303.512(b).
BY THE COURT:
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CARL R. LEBO and
BEVERLY ANN LEBO, His Wife,
Plaintiffs
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
V.
CIVIL ACTION - LAW
GEORGE SYLVESTRI, M.D. and
COWLEY MEDICAL ASSOCIATES,
P.C. ,
Defendants
NO. 00-2990 CIVIL TERM
PRETRIAL CONFERENCE
AND NOW, this 18th day of August, 2004, before Edgar
B. Bayley, Judge, present for the plaintiffs was April L.
Strang-Kutay, Esquire, and for the defendants, Michael M.
Badowski, Esquire.
This is a medical negligence claim involving
plaintiff, Carl Lebo, age 62. Plaintiff, Carl Lebo, contends
that on May 27, 1998, he was operated on for a full thickness
rotator cuff tear. On June 9, 1998, he presented to defendant,
George Sylvestri, M.D., an internist, for symptoms he had
developed involving episodic severe headaches, facial numbness,
nausea, shortness of breath and paresthesis. The diagnosis of
Dr. Sylvestri was "post-op FUO". Plaintiff presented a second
time to Dr. Sylvestri with elevated temperatures. Defendant
decided to reevaluate him a week later with a repeat
sedimentation and liver function test in the interim. On June
16, 1998, plaintiff presented to his orthopedic surgeon who
concluded that he may be suffering from "possible post-op
infection". He was prescribed Keflex. On June 17, 1998,
plaintiff again presented to his orthopedic surgeon with
continuing complaints. The surgeon had plaintiff admitted to
the hospital and placed on a regimen of intravenous Cefazolin
and analgesics. On June 22, 1998, the surgeon reexplored the
shoulder which demonstrated infection in the area of the entire
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rotator cuff repair.
Plaintiff claims that as a consequence of the
postoperative infection he lost his rotator cuff repair and the
cuff was destroyed. He seeks damages against the defendant
internist on a claim that his misdiagnosis was below the
standard of care and that his negligence caused plaintiff to
lose his rotator cuff repair. Defendant denies plaintiff's
claim and maintains that his care of plaintiff was within the
standard of care.
Plaintiff seeks general damages and recovery for
medical bills, lost wages and loss of earning capacity.
Estimated time of trial, four days. Because of
witness scheduling problems, this case must start on the first
day of trials.
April L. Strang-Kutay, Esquire
For Plaintiffs
Michael M. Badowski, Esquire
For Defendants
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08/26/2004 15:47 FAX 717 234 6808
GOLOBERG KATZMAN & SHIPM
1t1010/012
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April L. Slrang.Kuloy, Esquire
Attomey I. D. No. 46728
David M. Sleekel, Esquire
Attorney !.D. No. 82340
GOLDBERG KATZMAN, r.C.
320 Market Street
P.O. Box 1268
Hanisbutll. PA 17108.1268
Tolephono, (717) 234-4161
Attorneys for Plaintiffs
CARL K. L.I:iliU and
BEVERLY ANN LEBO, His Wife,
Plaintiffs
IN THE COURT OF COMMON PLEAS
CUMBERLAND COlJNTY, PRNNRY{.v A NT A
CNIL ACTION - LAW
v.
NO. 00-1990 Civil Term
GEORGE SYL VESTRI, M.D. and
COWLEY MEDICAL ASSOCIATES, P.C.,: JURY TRIAL DEMANDED
Defendants
l"LAlNTIFFS' MOTION TO STRIKE CASE
FRO~ SEPTEMDllltt 13. 2004 TRIAL TERM
AND NUW, .Plaintiffs, Carl R. Lebo and Beverly Ann Lebo, by and through their
counsel, Goldberg Katzman, P.C" who state the following in support of the instant Motion to
Strike the Case from the September 13, 2004 Trial Tenn:
I. The above-indicated case is scheduled to be tried during Cumberland County Te.nn of
Court September 13, 2004, with pl"O-uial coufercnc" Illwiu~ tllk.cn pll1Cc before tl:1e
Honorable Judge Bayley on August 18. 2004.
2. On August 26, 2004, Plaintiffs' counsel learned of an urgent medical emers=ey
affecting a member of the family such that counsel will not be able to participate in the
upcoming trial, as scheduled.
08/28/2004 15:48 FAX 717 234 6808
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GOL08ERG KATZMAN & SHIPM
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3. On August 27, 2004, Plaintiffs' counsel communicated this urgent concern to defense
counsel, Michael Badowski, who, in turn, conferred with his client, advising that there
would be no opposition to removing the case from the September] 3, 2004 trial term
WHEREFORE, Plaintiffi respectfully request that thi~ Court grant Plai.atiIfs' Mution,
about which lJetendants have concurred, and remove the case from the September 13, 20041rial
term.
GOLDBERG KATZMAN, P.C.
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Ap - . Strang-K . Esquire
AttnmeylD, #46728
David M. Steckel
Attorney I.D, Ii 82340
320 Market Street
P. O. Box 1268
Harrisburg, P A 171OR-121l8
(717) 234-4161
Vate: August 26, 2004
Counsel for Plaintiffs
08/26/2004 15:48 FAX 717 234 6808
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GOL08ERG KATZMAN & SHIPM
141012/012
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CERTIFICATE OF SERVICE
I HEREBY CERTIFY that I served a true and Correct copy of the foregoing document
upon all counsel of record by depositing the same in the United States Mail, filS! class, postage
prepaid, at Harrisburg, PennsylVania, on the 26lh day of August, 2004, addressed as follows:
Michael M. Badowski, Esquire
Margolis TIdclstciu
3510 TrindleRoad
Camp Hill, P A 17011
GOLDBERG KATZMAN, P.C.
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April L. S6=<lIl!S.Kutay~ Esquire
Attorney !.D. # 46728
David M. Steckel
Attorney 1.n. # 82340
320 Market Street
P. O. Bull. 1268
Harrisburg, PA 17108-1268
(717) 234-4161
Counsel ful" PhrinLiffs
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AUG 1 3 2004 ~
April L. Strang-Kutay, Esquire
Attorney L D. No. 46728
David M. Steckel, Esquire
Attorney LD. No, 82340
GOLDBERG KATZMAN, P.C.
320 Market Street
P.O. Box 1268
Harrisburg, PA 17108-1268
Telephone: (717) 234-4161
Attorneys for Plaintiffs
CARL R. LEBO and
BEVERLY ANN LEBO, His Wife,
Plaintiffs
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYL VANIA
CIVIL ACTION - LAW
v.
NO. 00-2990 Civil Term
GEORGE SYLVESTRI, M.D, and
COWLEY MEDICAL ASSOCIATES, P.C.,: JURY TRIAL DEMANDED
Defendants
PLAINTIFFS' MOTION TO LIST CASE FOR SEPTEMBER 13. 2004 TRIAL TERM
AND NOW, come Plaintiffs, Carl R. Lebo and Beverly Ann Lebo, by and through their
counsel, Goldberg Katzman, P.C., who state the following in support of the instant Motion to List
this Case for Trial during the Court's September 13, 2004 term and, further, to request that the trial
begin on Monday, September 13, 2004:
1, Following a status conference before The Honorable Kevin A. Hess on December 4,2003,
the Court issued an Order which stated, in pertinent part, as follows:
"3. This matter shall be tried during the week of civil trials commencing September
13,2004, and counsel are deemed by this order to be attached for trial during that
week.
Counsel for the plaintiffs will take the responsibility oflisting this case for trial prior
to the cut-off date of July 26,2004."
2. Through an oversight, Plaintiffs' counsel did not list the case for trial prior to July 26,2004.
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3. Nevertheless, the parties were of the belief that the case was attached for trial beginning on
September 13, 2004,
4. In reliance thereon, the parties arranged for their expert witnesses to appear as though the
case, which is expected to last approximately four (4) days, were to begin on the morning of
Monday, September 13th.
5. Counsel for the respective parties jointly request that this case still be set for trial beginning
on the morning of September 13th.
6. If the above request presents an inconvenience for this Court and is, in fact, not feasible,
counsel jointly requests that this case be scheduled for trial during the fIrst trial term of2005.
WHEREFORE, Plaintiffs respectfully request that this Court grant Plaintiffs' Motion, which
Defendants concur with, and schedule this case for trial beginning in the morning of September 13,
2004.
GOLDBERG KATZMAN, P.C.
By
April . Strang-Kut , E
Attorney LD. # 46728
David M. Steckel
Attorney LD. # 82340
320 Market Street
P. O. Box 1268
Harrisburg, PA 17108-1268
(717) 234-4161
Date: '6/0}01..}
Counsel for Plaintiffs
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CERTIFICATE OF SERVICE
I hereby certify that I served a copy of the foregoing document upon the person( s) indicated
below by depositing a copy of the same in the United States mail, postage prepaid, at Harrisburg,
Pennsylvania and addressed as follows:
Michael M. Badowski, Esquire
Margolis Edelstein
3510 Trindle Road
Camp Hill, PA 17011
GOLDBERG KATZMAN, P.C.
By L~. (jE~
Legal Secretary for
April 1. Strang-Kutay, Esquire
Attorney for Plaintiffs
Date: ~113/oL{
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AUG 1 3 20041Y
April L Strang-Kutay, Esquire
Attorney L D. No, 46728
David M. Steckel, Esquire
Attorney LD, No. 82340
GOLDBERG KATZMAN, P.C.
320 Market Street
P.O, Box 1268
Harrisburg, PA 17108-1268
Telephone: (717) 234-4161
Attorneys for Plaintiff
CARL R. LEBO and
BEVERLY ANN LEBO, His Wife,
Plaintiffs
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION - LAW
v.
NO. 00-2990 Civil Term
GEORGE SYL VESTRl, M.D. and
COWLEY MEDICAL ASSOCIATES, P.C.,: JURY TRIAL DEMANDED
Defendants
PLAINTIFF'S PRE-TRIAL MEMORANDUM
AND NOW, come Plaintiffs, Carl R. Lebo and Beverly Ann Lebo, by and through their
attorneys, Goldberg Katzman, P.C., and submit the following Pre-Trial Memorandum in
anticipation of a Pre-Trial Conference on August 18, 2004 in the Cumberland County
Courthouse.
1. STATEMENT OF FACTS ON LIABILITY AND DAMAGES
Plaintiff, Carl Lebo, a previously healthy 62 year old male, presented to Dr. Ernest R.
Rubbo (orthopedist), on May 6,1998, approximately two weeks after sustaining a work-related
injury to his right shoulder. On May 6, 1998, Dr. Rubbo ordered an MRI scan pertaining to Mr.
Lebo's right shoulder; this scan demonstrated a full thickness rotator cuff tear. On May 27,
1998, Dr. Rubbo admitted Plaintiff, Carl Lebo, to Polyclinic Hospital where he performed an
arthrotomy, and lID open acromioplasty. That surgical procedure was accomplished uneventfully
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and no unusual incidents or occurrences are noted in the operative report.
One week following surgery, Mr. Lebo returned, as instructed, to Dr. Rubbo's office for a
routine follow-up evaluation; at that time, according to Dr. Rubbo's office note, Mr. Lebo's
shoulder was "healing nicely" and the Plaintiff was instructed to progress from a shoulder
immobilizer to a sling and to begin passive range of motion exercises.
On June 9, 1998, Plaintiff, Carl R. Lebo, presented to the office of George Sylvestri,
M.D., for evaluation of symptoms he had developed involving episodic severe headaches,
accompanied by facial numbness, nausea, light headedness, shortness of breath and paresthesis,
On that date Dr. Sylvestri evaluated Mr. Lebo for the above-stated complaints and also noted in
the record that the patient had been febrile for approximately one week. A physical exam on
June 9, 1998, conducted by Dr. George Sylvestri, indicated that Mr. Lebo had a decreased range
of motion of his right shoulder. Dr. Sylvestri noted that there was no erythema or fluctuance
around the wound. Based on the above [mdings, Dr. Sylvestri proposed a diagnosis of "post-op
FUO," and elected to withhold antibiotics, preferring to instruct the patient to present for re-
evaluation in three days time.
As requested, Mr. Lebo presented again to Dr. Sylvestri's office on June 12, 1998; in the
office that day, Mr. Lebo's recorded temperature was 990F; however, the patient reported to Dr.
Sylvestri that his fever had ranged, in the past three days, between 990F to 1020F. On June 12,
1998, Dr. Sylvestri noted the right shoulder to be tender with increased warmth and erythema,
but no obvious effusion. Once again, Dr. Sylvestri proposed a diagnosis of "post-op fever
without source", and elected to continue the patient off antibiotics and re-evaluate him in one
week with a repeat sedimentation and liver function test in the interim.
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On June 16, 1998, Mr. Lebo presented again to the office of his orthopedic surgeon, Dr.
Rubbo. Dr. Rubbo's office notes confirm that Mr. Lebo complained of pain in his right shoulder,
as well as fever; on physical exam, Dr. Rubbo noted that the incision was red and "appears to be
showing some sort of reaction to his Vicryl suture, particularly to the superior aspect of the
incision where his knot has been tied." Based on his impressions as a result of the June 16, 1998
examination of Mr. Lebo, Dr. Rubbo concluded that the Plaintiff may be suffering from a
"possible post-op infection" and prescribed "Keflex", with instructions for the patient to return in
two to three days, or earlier, should the pain and swelling get worse.
On the following day, June 17, 1998, in response to Mr. Lebo's ongoing complaints, Dr.
Rubbo re-evaluated Mr. Lebo's shoulder. At that time, Dr. Rubbo noted the presence of a
pustule, which he opened, with drainage and culture of purulent fluid "which appeared to be
mostly superfIcial." Subsequent culture of this material demonstrated coagulase negative
staphylococci and Propionibacterium acnes.
On June 17, 1998, additional debridement was then carried out with excision of a large
Vicryl knot from the open area, after which Mr. Lebo was hospitalized immediately for further
evaluation and treatment. Carl Lebo, was admitted to Dr. Rubbo's service at Polyclinic Hospital
on June 17, 1998, and was immediately begun on a regime of intravenous Cefazolin, twice-daily
dressing changes and analgesics.
On June 22, 1998, Dr. Rubbo returned the patient to surgery and re-explored his shoulder,
which re-exploration demonstrated a purulent fluid collection found in the subdeltoid space with
failure and dehiscence of the entire rotator cuff repair; the area was then derided and irrigated,
but in view of the size of the defect, no repair was felt to be feasible, and the area was closed
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As a result of consultation with an infectious disease consultant, Dr. Tkatch, Mr. Lebo's
antibiotic regime was changed from Cefazolin to Vancomycin. Carl Lebo, was ultimately
discharged from the Polyclinic Hospital to home on June 22, 1998 with plans to receive a six
week course of Vancomycin.
As a consequence of the substantial damage effectuated by Carl Lebo's post-operative
infection, he lost his rotator cuff repair and the cuff was destroyed.
II. SEPARATE LIST OF ISSUES AS TO LIABILITY AND DAMAGES
Plaintiffs appreciate no unusual legal issues with respect to this matter. The case is
founded in medical negligence, and will involve the usual issues of standard of care and
causation.
III. TRIAL WITNESSES
I. Carl R. Lebo, Plaintiff
2. Beverly Ann Lebo, Plaintiff
3. Carl Gary Lebo, D.D.S., son of Carl and Beverly Lebo
4. Dr. Lentnek, expert in orthopedic surgery
5. Dr. Dunn, expert in orthopedic medicine (by video)
6. Dr. Ernest Rubbo
7. Dr. Steinman, expert in physical medicine
8. Dr. Sylvestri (as if on cross)
In addition to the preceding, Plaintiffs reserve the right to supplement or amend this list
4
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of witnesses prior to the time of trial and upon appropriate notice to opposing counsel.
IV. TRIAL EXHIBITS
At the trial of this case, Plaintiffs may utilize as exhibits any or all of the following,
which relate to this matter:
1. Records of Dr. Rubbo
2. Records of Dr. Sylvestri
3. Records from Polyclinic Medical Center
4. Expert report of Dr. Robert Dunn, Orthopedist
5. Expert report of Dr. Arnold Lentnek, Surgeron
6. Expert report of Dr. Robert Steinman, Physiatrist
7. C.V. of Dr. Dunn
8. C.V. of Dr. Lentnek
9. C.V. of Dr. Steinman
10. Anatomical diagrams and medical models of the shoulder
11. Summary of medical expenses
12. Medical literature
In addition to the preceding, Plaintiffs may utilize all pleadings of record, discovery
responses, transcripts of depositions taken in connection with the Plaintiffs' civil action, and the
CV s and reports of all experts exchanged throughout discovery in this case. Plaintiffs also
5
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reserve the right to utilize any exhibits listed by the Defendants in their Pre-Trial Conference
Memoranda. Plaintiffs also reserve the right to supplement or amend this list of exhibits prior to
the time of trial and upon appropriate notice to opposing counsel.
v. DEPOSITION TRANSCRIPTS TO BE USED IN LIEU OF TESTIMONY
None at present.
VI. STIPULATIONS SOUGHT
Plaintiffs request a stipulation as to the authenticity of records documenting the care and
treatment rendered to Carl Lebo.
Respectfully submitted,
GOLDBERG KATZMAN, P.C.
By:
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Attorney LD. # 46728
David M. Steckel, Esquire
Attorney LD. # 82340
320 Market Street, P. O. Box 1268
Harrisburg, Pennsylvania 17108-1268
(717) 234-4161
Attorneys for Plaintiffs
Dated: August 13, 2004
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I hereby certify that I served a copy of the foregoing document upon the person( s) indicated
below by depositing a copy of the same in the United States mail, postage prepaid, at Harrisburg,
Pennsylvania and addressed as follows:
Michael M. Badowski, Esquire
Margolis Edelstein
3510 Trindle Road
Camp Hill, P A 17011
GOLDBERG KATZMAN, P.C.
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320 Market Street
P.O. Box 1268
Harrisburg, PA 17108-1268
Telephone: (717) 234-4161
Attorney for Plaintiffs
CARL R. LEBO and
BEVERLY ANN LEBO, His Wife,
Plaintiffs
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION - LAW
v.
NO. 00-2990 Civil Term
GEORGE SYLVESTRI, M.D. and
COWLEY MEDICAL ASSOCIATES, P.C.,: JURY TRIAL DEMANDED
Defendants
ORDER OF COURT
AND NOW, this /61J day of You'!. 0 _ , 2003, upon consideration of the
attached MOTION FOR STATUS CONFERENCE, it is hereby ORDERED that the parties and
their respective counsel appear on the~ day of 111 ~ ' 2003 at02 ; .30 0' clock j2.. m.,
before the Honorablt'~ O.~ in Cumberland County Courthouse in Court Room
~, at Carlisle, Pennsylvania, in the above-referenced matter.
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Attorney 1. D. No. 46728
GOLDBERG, KATZMAN & SHIPMAN, P.C.
320 Market Street
P.O. Box 1268
Harrisburg, PA 17108-1268
Telephone: (717) 234-4161
Attorney for Plaintiffs
CARL R. LEBO and
BEVERLY ANN LEBO, His Wife,
Plaintiffs
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION - LAW
v.
NO. 00-2990 Civil Term
GEORGE SYLVESTRI, MD, and
COWLEY MEDICAL ASSOCIATES, P.C.,: JURY TRIAL DEMANDED
Defendants
PLAINTIFFS' MOTION FOR STATUS CONFERENCE
AND NOW, comes Plaintiffs, Carl R Lebo and Beverly Ann Lebo, by and through their
counsel, Goldberg, Katzman & Shipman, P.C., and April L. Strang-Kutay, Esquire, who states the
following in support of this Motion for Status Conference made pursuant to Local Rule of Court 206:
1, Petitioners are Carl R. Lebo and Beverly Ann Lebo, Plaintiffs in the above-captioned
matter,
2, Respondents are George Sylvestri, M,D. and Cowley Medical Associates, P.C.,
Defendants.
3. This case commenced on May 12, 2000 with the filing of a Complaint in Cumberland
County Court sounded in medical malpractice.
4. The Plaintiffs and Defendant's depositions have been taken.
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5, Plaintiffs have furnished Defendants with all oftheir expert reports.
6. To date, Defendants have not provided expert reports.
7. Plaintiffs request that the Court set deadlines for discovery, including exchange of
expert reports in this matter,
8, Plaintiffs also request that the Court set a date-certain for trial in order for Plaintiffs
to coordinate three experts who will be called to testifY at trial.
WHEREFORE, it is respectfully requested thatthe Court enter an orderrequiringDefendants
to complete discovery and that the Court permit Plaintiffs to list the case for trial at a time when
attendance of multiple experts can be coordinated,
Respectfully Submitted,
Dated: r-
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April . Strang-Kutay,
I.D, #46728
320 Market Street
P.O, Box 1268
Harrisburg, PA 17108-1268
(717) 234-4161
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Attorney for Plaintiffs
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I hereby certifY that I served a copy of the foregoing document upon the person(s) indicated
below by depositing a copy of the same in the United States mail, postage prepaid, at Harrisburg,
Pennsylvania and addressed as follows:
Michael M. Badowski, Esquire
Margolis Edelstein
3510 Toodle Road
Camp Hill, PA 17011
GOLDBERG, KATZMAN & SHIPMAN, P.C.
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IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
v,
NO. 00-2990 Civil Term
GEORGE SYLVESTRI, M.D. and
COWLEY MEDICAL ASSOCIATES, P.C.,: JURY TRIAL DEMANDED
Defendants
ORDER OF COURT
AND NOW, this ~ day of
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, 2003, it is hereby Ordered that the
status conference in the above-captioned matter is rescheduled to December 4, 2003, at 2:00 p.m.
in the Cumberland County Courthouse, Courtroom 4, at Carlisle, Pennsylvania.
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GOLDBERG, KATZMAN & SHIPMAN, P.c.
320 Market Street
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Harrisburg, PA 17108-1268
Telephone: (717) 234-4161
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agreement by all parties, it is hereby Ordered that the status conference in the above-captioned
matter scheduled for July 23,2003, at 2:30 p.m. has been rescheduled for August 27,2003, at
3:00 p.m. in the Cumberland County Courthouse in Courtroom 4, at Carlisle, Pennsylvania.
BY THE COURT:
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Attorney I D. No. 46728
GOLDBERG, KATZMAN & SHIPMAN, P.C.
320 Market Street
P,O. Box 1268
Harrisburg, I? A 17108-1268
Telephone: (717)234-4161
Attorney for Plaintiffs
CARL R. LEBO and BEVERLY ANN
LEBO, his wife,
Plaintiffs
: IN THE COURT OF COMMON PLEAS
: CUMBERLAND COUNTY, PENNSYLVANIA
: CIVIL ACTION - LAW
: NO. m - ;)990
GUl(T~
v.
GEORGE SYLVESTRl, M.D.
Cowley Medical Associates
425 North 21" Street
Camp Hill, PA 17011
and
COWLEY MEDICAL ASSOCIATES, P.CO
425 North 21" Street
Camp lIill, PA 17011
Defendants
,
: JURY TRIAL DEMANDED
YOU HAVE BEEN SUED IN COURT. If you wish to defend against the claims set forth
in the following pages, you must take action within twenty (20) days after this Complaint and Notice
are served, by entering a written appearance personally or by attorney and filing in writing with the
Court your defenses or objections to the claims set forth against you. You are warned that if you fail
to do so the case may proceed without you and a judgment may be entered against you by the Court
without further notice for any money claimed in the Complaint or for any other claim or relief
requested by the Plaintiff. You may lose money or property or other rights important to you.
YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT
HAVE ALA WYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET
FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP.
CUMBERLAND COUNTY BAR ASSOCIATION
2 Liberty Avenue
Carlisle, PA 17013
Telephone: (717) 249-3166
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NOTICIA
Le han demandado a usted en la corte, Si usted quiere defenderse de estas demandas
expuestas en las paginas siguientes, usted tiene viente (20) dias de plazo al partir de la fecha de la
demanda y la notificacion. Usted debe presentar una apariencia escrita 0 en persona 0 por abogado
y archivar en la corte en forma escrita sus defensas 0 sus objectiones alas demandas en contra de
su persona. Sea adisado que si usted no se defiende, la sin previo aviso 0 notifIcacion y por cualquier
quja 0 puede perder dinero 0 sus propiedades 0 otros derechos importantes para usted.
LLEVE ESTA DEMANDA A UN ABOGADO IMMEDIATAMENTE. SI NO TIENE
ABOGADO 0 SINO TIENEELDINERO SUFICIENTEDE PAGAR TAL SERVICIO, VAYA
EN PERSONA 0 LLAME POR TELEFONO A LA OFICINA CUY A DIRECCION SE
ENCUENTRA ESCRITA ABAJO PARA AVERIGUAR DONDE SE PUEDE CONSEGUIR
ASISTENCIA LEGAL.
CUMBERLAND COUNTY BAR ASSOCIATION
2 Liberty Avenue
Carlisle, PA 17013
Telephone: (717) 249-3166
Apri11. Strang-Kubly, Esquire
Attorney 1 D. No, 46728
GOLDBERG, KATZMAN & SHIPMAN, P.C.
320 Market Street
P.O. Box 1268
Harrisburg,PA 17108-1268
Telephone; (717)234-4161
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LEBO, his wife,
: IN THE COURT OF COMMON PLEAS
: CUMBERLAND COUNTY, PENNSYLVANIA
Plaintiffs
v.
: CIVIL ACTION - LAW
: NO, tlf) - ;2 990 {l;;J 7~
GEORGE SYL VESTRI M D
, . .
Cowley Medical Associates
425 North 21" Street
Camp Hill, PA 17011
and
COWLEY MEDICAL ASSOCIATES, P.C,
425 North 21" Street
Camp Hill, P A 17011 : JURY TRIAL DEMANDED
Defendants
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AND NOW, come the Plaintiffs, Carl R. Lebo and Beverly Ann Lebo, by and through their
attorneys, Goldberg, Katzman and Shipman, P.C., who respectfully represent as follows:
1. The Plaintiffs are adult individuals, husband and wife, residing at 638 Springhouse
Lane, Hummelstown, Pennsylvania, 17036.
2. ThattheDefendant, George Sylvestri, M.D., hereinafterreferred to as "Dr, Sylvestri",
is a physician licensed to practice medicine in the Commonwealth of Pennsylvania at 425 North 21"
Street, Camp Hill, P A 170 II.
3. That the Defendant, Cowley Medical Associates, p, C., is a business entity located at
425 North 21" Street, Camp Hill, PA 17011,
4. That at all times relevant hereto, Dr. Sylvestri was acting as an employee and/or agent
of the business entity known as Cowley Medical Associates, P.C.
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5. Plaintiff, Carl Lebo, a previously healthy 62 year old male, presented to Dr. Ernest R.
Rubbo (orthopedist), onMay 6, 1998, approximately two weeks after sustaining a work-related injury
to his right shoulder.
6. That on the date of May 6, 1998, Dr. Rubbo ordered an MRI scan pertaining to Mr.
Lebo's right shoulder; this scan demonstrated a full thickness rotator cuff tear,
7. That on May 27, 1998, Dr. Rubbo admitted Plaintiff, Carl Lebo, to Polyclinic Hospital
where he performed an arthrotomy, and an open acromioplasty.
8. That the surgical procedure which took place on May 27, 1998 was accomplished
uneventfully and no unusual incidents or occurrences are noted in the operative report.
9. That one week following surgery, Mr, Lebo returned, as instructed, to Dr. Rubbo's
office for a routine follow-up evaluation; at that time, according to Dr. Rubbo's office note, Mr,
Lebo's shoulder was "healing nicely" and the Plaintiff was instructed to progress from a shoulder
immobilizer to a sling and to begin passive range of motion exercises.
10. On June 9, 1998, Plaintiff, Carl R. Lebo, presented to the office of George Sylvestri,
M.D., for evaluation of symptoms he had developed involving episodic severe headaches,
accompanied by facial numbness, nausea, light headedness, shortness of breath and paresthesis.
11. That on the date of June 9, 1998, Dr. Sylvestri evaluated Mr, Lebo for the above-
stated complaints and also noted in the record that the patient had been febrile for approximately one
week.
12. A physical exam on June 9, 1998, conducted by Dr, George Sylvestri, was essentially
normal except for decreased range of motion of the right shoulder. SpecifIcally, Dr. Sylvestri noted
that there was no erythema or fluctuance around the wound,
13. That a chest x-ray and complete blood count ordered by Dr. Sylvestri were normal,
however, the sedimentation rate was markedly elevated.
14. That based on the above findings, Dr. Sylvestri proposed a diagnosis of "post-op
FUO," and elected to withhold antibiotics, preferring to instruct the patient to present for re-
evaluation in three days time.
2
15. That, as requested, Mr. Lebo presented again to Dr. Sylvestri's office on June 12,
1998; in the office that day, Mr. Lebo's recorded temperature was 990F; however, the patient
reported to Dr. Sylvestri that his fever had ranged, in the past three days, between 990F to 1020F.
16. That on June 12, 1998, Dr. Sylvestri noted the right shoulder to be tender with
increased warmth and erythema, but no obvious effusion.
17. Once again, Dr. Sylvestri proposed a diagnosis of"post-op fever without source", and
elected to continue the patient off antibiotics and re-evaluate him in one week with a repeat
sedimentation and liver function test in the interim.
18. That on June 16, 1998, Mr. Lebo presented again to the office of his orthopedic
surgeon, Dr. Rubbo, Dr. Rubbo's office notes confirm that Mr. Lebo complained of pain in his right
shoulder, as well as fever; on physical exam, Dr. Rubbo noted that the incision was red and "appears
to be showing some sort of reaction to his Vicryl suture, particularly to the superior aspect of the
incision where his knot has been tied,"
19. That based on his impressions as a result of the June 16, 1998 examination of Mr.
Lebo, Dr. Rubbo concluded that the Plaintiff may be suffering from a "possible post-op infection" and
prescribed "Ketlex", with instructions for the patient to return in two to three days, or earlier, should
the pain and swelling get worse.
20. On the following day, June 17, 1998, in response to Mr, Lebo's ongoing complaints,
Dr. Rubbo re-evaluated Mr. Lebo's shoulder. At that time, Dr. Rubbo noted the presence of a
pustule, which he opened, with drainage and culture of purulent tluid "which appeared to be mostly
superficial."
21. That subsequent culture of this material demonstrated coagulase negative
staphylococci and Propionibacterium acnes.
22. That on or about June 17, 1998, additional debridement was then carried out with
excision of a large Vicryl knot from the open area, after which Mr. Lebo was hospitalized
inunediately for further evaluation and treatment.
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23. That Plaintiff, Carl Lebo, was admitted to Dr. Rubbo's service at Polyclinic Hospital
on June 17, 1998, and was immediately begun on a regime of intravenous Cefazolin, twice-daily
dressing changes and analgesics.
24. That on June 22, 1998, Dr. Rubbo returned the patient to surgery and re-explored his
shoulder, which re-exploration demonstrated a purulent fluid collection found in the subdeltoid space
with failure and dehiscence of the entire rotator cuff repair; the area was then derided and irrigated,
but in view of the size of the defect, no repair was felt to be feasible, and the area was closed over
a drain.
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25. That as a result of consultation with an infectious disease consultant, Dr. Tkatch, Mr.
Lebo's antibiotic regime was changed from Cefazolin to Vancomycin.
26. The Plaintiff, Carl Lebo, was ultimately discharged from the Polyclinic Hospital to
home on June 22, 1998 with plans to receive a six week course of Vancomycin.
27. That as a result of substantial damage effectuated by Plaintiff's, Carl Lebo's, post-
operative infection, the patient lost his rotator cuff repair and the cuff was destroyed.
COUNT I
CARL R. LEBO v. GEORGE SYLVESTRI. M.D.
28. Plaintiffs incorporate by reference hereto each and every paragraph of this Complaint
as if each had been set forth at length herein.
29. Thatthe Defendant, Dr. Sylvestri, was negligent and careless in the medical treatment
and/or advice provided to Carl R. Lebo in that he:
a. failed to appropriately diagnosePlaintifI's deep-seated post-operative infection,
thus delaying treatment;
b. failed to recognize the signifIcance of Plaintiff's persistent, elevated
temperature, accompanied by systemic symptoms which should have induced suspicion of bacterial
infection associated with his recent rotator cuff repair;
c. failed to timely recognize that Mr. Lebo's persistent fever, localized pain, and
loss of joint mobility were suspicious for a deep post-operative infection;
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d. failed to appropriately recognize that a deep-seated post-operative infection,
the symptoms of which Mr. Lebo displayed, has the potential to cause severe, systemic illness and
sepsis, and to result in long-term dysfunction ifnot promptly recognized and treated;
e. failed to recognize the signifIcance of Plaintiff's, Mr, Lebo's, markedly
elevated sedimentation rate, which, along with this other symptoms as described above, was strongly
suggestive of a deep post-operative soft-tissue infection which required urgent treatment;
f inappropriately elected to advise patient to simply observe his symptoms for
an additional week upon the June 12, 1998 evaluation;
g. failed to refer Mr, Lebo for immediate work-up and treatment for deep post-
operative infection or for June 9, 1998 and June 12, 1998; and
h. through his failure to appropriately diagnose Plaintiff's deep-seated, post-
operative infection, delayed treatment of this serious condition such that Mr. Lebo was exposed to
the increased risk that his surgery to repair a torn rotator cuff would ultimately fail.
30. That as a result of Dr. Sylvestri's conduct as described in the preceding paragraph of
this Complaint, Plaintiff was exposed to the development of serious infection, and further exposed
to the risk that this infection would ultimately result in the complete destruction of his rotator cuff
repair, which complications did, in fact, occur.
31. That as a result of Dr. Sylvestri's conduct, Plaintiff was exposed to prolonged
hospitalization, prolonged treatment and permanent injury/deformity with respect to the failed rotator
cuff repair, which complications did, in fact, occur.
32. That as a result of Dr. Sylvestri's conduct as described in paragraph 29 above,
Plaintiff's treatment of his deep seated post-operative infection was delayed, compromising his
recovery from this infectious process.
33. That as a result of Dr. Sylvestri's conduct as described in paragraph 29 above, Plaintiff
incurred medical bills.
5
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34. That as a result oIDr. Sylvestri's conduct as described in paragraph 29 above, Plaintiff
has been caused to sustain, and will, in the future, continue to sustain pain, suffering, inconvenience,
emotional distress, embarrassment, scarring, disfigurement and loss oflife's pleasures,
35. That with respect to Dr. Sylvestri's conduct as described in paragraph 29 above,
Plaintiff has lost wages, and may anticipate a diminution of his earning capacity in the future_
WHEREFORE, the Plaintiff; Carl K Lebo, demands judgment against George Sylvestri, M_D_
for a sum in excess of the jurisdictional amounts of arbitration, together with interest and cost of suit.
COUNT II
CARL R LEBO v. COWLEY MEDICAL ASSOCIATES. P.C. - NEGLIGENCE
36. Plaintiffs incorporate by reference hereto each and every paragraph of this Complaint
as if each had been set forth at length herein.
37 _ That at all times material hereto, Dr. Sylvestri was an agent, servant and/or employee
of the business entity known as Cowley Medical Associates, P .C., acting within the course and scope
of that agency and/or employment.
38. That Defendant, Cowley Medical Associates, p, C, acted negligently with respect to
the treatment of Carl R. Lebo as set forth in paragraph 29 above.
WHEREFORE, the Plaintiff, Carl K Lebo, demands judgment against Cowley Medical
Associates, P .C. for a sum in excess of the jurisdictional amounts of arbitration, together with interest
and cost of suit.
COUNT m
BEVERLY ANN LEBO v. GEORGE SYLVESTRI, M.D. and
COWLEY MEDICAL ASSOCIATES. P.C. - LOSS OF CONSORTIUM
39. Plaintiffs incorporate by reference hereto each and every paragraph ofthis Complaint
as if each had been set forth at length herein_
40. That as a result of the conduct of Defendants, George Sylvestri, M_D. and Cowley
Medical Associates, P .C, Beverly Ann Lebo, wife of Carl K Lebo, has sustained damages as a result
of the loss of services, guidance, companionship, society, affection and consortium of her husband,
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WHEREFORE, Plaintiff demands judgment against Defendants, George Sylvestri, M.D. and
Cowley Medical Associates, P,c, for a sum in excess of the jurisdictional amounts of arbitration,
together with interest and cost.
Respectfully submitted,
GOLDBERG, KATZMAN & SHIPMAN, P.C.
By:
~4~ (t--
April L. Str -K , E~;-- {J
Attorney I. D. No. 46728
P. O. Box 1268
Harrisburg, PA 17108-1268
Attorneys for Plaintiffs
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DATE: May 11, 2000
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VERIFICATION
I hereby acknowledge that I have read the foregoing Complaint and that the facts stated
herein are true and correct to the best of my knowledge, information and belief
The undersigned understands that the statements therein are made subject to the penalties
of 18 Pa. C.S. ~4904 relating to unsworn falsifications to authorities.
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Carl R. Lebo
DATE: Vf~ /7 ,;MtN)
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VERIFICATION
I hereby acknowledge that I have read the foregoing Complaint and that the facts stated
herein are true and correct to the best of my knowledge, information and belief
The undersigned understands that the statements therein are made subject to the penalties
of 18 Pa, C.S. ~4904 relating to unsworn falsifications to authorities,
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Beverly A Lebo
DATE: ~) 7/h CIti)
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SHERIFF'S RETURN - REGULAR
CASE NO: 2000-02990 P
COMMONWEALTH OF PENNSYLVANIA:
COUNTY OF CUMBERLAND
LEBO CARL R ET AL
VS
SYLVESTRI GEORGE MD
SHANNON SUNDAY
, Sheriff or Deputy Sheriff of
Cumberland county, Pensyl vania , who being duly sworn according to law,
says, the within COMPLAINT & NOTICE
was served upon
SYLVESTRI GEORGE M D
the
DEFENDANT
, at 0012:15 HOURS, on the 22nd day of May
, 2000
at COWLEY MEDICAL ASSOCIATES
425 NORTH 21ST STREET
CAMP HILL, PA 17011
NANCY MORGAN (NURSING SUPV)
by handing to
a true and attested copy of COMPLAINT & NOTICE
together with
and at the same time directing Her attention to the contents thereof.
Sheriff's Costs:
Docketing
Service
Affidavit
Surcharge
18.00
9.30
.00
10.00
.00
37.30
So An7~~L,t
R. Thomas Kline
OS/23/2000
GOLDBERG, KATZMAN & SHIPMAN
Sworn and Subscribed to before
By:
1l~rY\ 711. J,~J7f
- Deputy Sheriff
me this ,,2 ~ day of
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SHERIFF'S RETURN - REGULAR
CASE NO: 2000-02990 P
COMMONWEALTH OF PENNSYLVANIA:
COUNTY OF CUMBERLAND
LEBO CARL R ET AL
VS
SYLVESTRI GEORGE MD
SHANNON SUNDAY
, Sheriff or Deputy Sheriff of
Cumberland County, Pensylvania, who being duly sworn according to law,
says, the within COMPLAINT & NOTICE
was served upon
COWLEY MEDICAL ASSOCIATES P C
the
DEFENDANT
, at 0012:15 HOURS, on the 22nd day of May
2000
at 425 NORTH 21ST STREET
CAMP HILL, PA 17011
NANCY MORGAN (NURSING SUPV)
by handing to
a true and attested copy of COMPLAINT & NOTICE
together with
and at the same time directing Her attention to the contents thereof.
Sheriff's Costs:
Docketing
Service
Affidavit
Surcharge
So
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10.00
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R. Thomas Kline
OS/23/2000
GOLDBERG, KATZMAN & SHIPMAN
Sworn and Subscribed to before
By:
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me this ,2 ~ day of
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MICHAEL M. BADOWSKI, ESQUIRE
Pa. Supreme Court I.D. No. 32646
MARGOLIS EDELSTEIN
3510 Trind1e Road
Camp Hill, Pennsylvania 17011
Telephone:
Fax:
Direct E-Mail:
[717] 975-8114
[717] 975-8124 GEORGE
mbadowski@margolisedelstein.com
Attorney for Defendants:
SYLVESTRI, M.D., AND COWLEY
MEDICAL ASSOCIATES, P.C.
CARL R. LEBO AND BEVERLY ANN
LEBO, HIS WIFE,
PLAINTIFFS,
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNA.
CIVIL ACTION - LAW
VS.
DOCKET NO. 00-2990 CIVIL TERM
GEORGE SYLVESTRI, M.D., AND
COWLEY MEDICAL ASSOCIATES, P.C.,:
DEFENDANTS. JURY TRIAL DEMANDED
PRAECIPE TO ENTER APPEARANCE
TO THE PROTHONOTARY OF CUMBERLAND COUNTY, PENNSYLVANIA:
Kindly enter my appearance on behalf of Defendants,
GEORGE SYLVESTRI, M.D., AND COWLEY MEDICAL ASSOCIATES, P.C., in
the above-captioned matter.
Date:
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By: / "0
ICHAEL ..
Attorney for Defendants,
GEORGE SYLVESTRI, M.D., AND
COWLEY MEDICAL ASSOCIATES,
P.C.
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I HEREBY CERTIFY that I served a true and correct copy
of the foregoing on all counsel of record by placing the same in
the United States mail at Camp Hill, Pennsylvan~a
poe'age prepaid, 00 "e J31L day of ~ . ,
addressed as follows:
first-class
April L. Strang-Kutay, Esquire
GOLDBERG, KATZMAN & SHIPMAN, P.C.
320 Market Street
P.O. Box 1268
Harrisburg, PA 17108-1268
(Counsel for Plaintiffs)
MARGOLIS EDELSTEIN
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CERTIFICATE
PREREQUISITE TO SERVICE OF A SUBPOENA
PURSUANT TO RULE 4009.22'F
IN THE MATTER OF:
COURT OF COMMON PLEAS
LEBO
TERM,
-VS-
CASE NO: 00-2990
SYLVESTRI, ET AL
As a prerequisite to service of a subpoena for documents and things pursuant
to Rule 4009.22
MCS on behalf of MICHAEL M. BADOWSKI, ESQUIRE
defendant certifies that
(1) A notice of intent to serve the subpoena with a copy of the subpoena
attached thereto was mailed or delivered to each party at least
twenty days prior to the date on which the subpoena is sought to be
served,
(2) A copy of the notice of intent, including the proposed subpoena, is
attached to the certificate,
(3) No objection to the subpoena has been received, and
(4) The subpoena which will be served is identical to the subpoena which
is attached to the notice of intent to serve the subpoena.
nATE: 07/05/2000
~aj~#-"~'
MICHAEL M. BADOWSKI, ESQUIRE
Attorney for DEFENDANT
DEll-190837 31323-LOl
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COMMON~EALTH OF PENNSYLVANIA
COUNTY OF CUMBERLAND
IN THE MATTER OF:
COURT OF COMMON PLEAS
LEBO
TERM,
-VS-
CASE NO: 00-2990
SYLVESTRI, ET AL
NOTICE OF INTENT TO SERVE A SUBPOENA TO PRODUCE DOCUMENTS
POLYCLINIC,HOSPITAL
ERNEST RUBBO, M.D.
MEDICAL
MEDICAL
TO: APRIL L. STANG-KUTAY ESQ
MCS on behalf of MICHAEL M. BADOWSKI, ESQUIRE intends to serve a subpoena
identical to the one that is attached to this notice. Yeu have twenty (20)
days from the date listed below in which to file of record and serve upon the
undersigned an objection to the subpoena. If no objection is made the subpoena
may be served pursuant to the applicable Pennsylvania Rules of Civil Procedure
4009.24. Complete copies of any reproduced records may be ordered at your
exppnse by completing the attached counsel card and returning same to MCS or
by contacting our local MCS office.
DATE: 06/15/2000
MCS on behalf of
MICHAEL M. BADOWSKI, ESQUIRE
Attorney for DEFENDANT
CC: MICHAEL M. BADOWSKI, ESQUIRE
WILLIAM BOLTZ
- 57300-4-0082
- 3359610103
Any questions regarding this matter, contact
THE MCS GROUP INC.
1601 MARKET STREET
1800
PHILADELPHIA, PA 19103
(215) 246-0900
DE02-l24534 31323-C02
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COMMONWEALTH OF PENNSYLVANIA
COUNTY OF CUMBERLAND
LEBO
VS
File No. 00-2990
SYLVESTRI, ET AL
SUBPOENA TO PRODUCE DOCUMENTS OR THINGS
FOR DISCOVERY PURSUANT TO RULE 4009.22
TO: CUSTODIAN OF RECORDS FOR: POLYCLINIC HOSPITAL
(Name of Person or Entity)
Within twenty (20) days after service of this subpoena, you are ordered by the court to produce the following documents or
things: . SEE ATTACHED .
at
MCS GROUP INC.
1601 MARKET STREET
SUITE 800
PHILADELPHIA PA 19103
(Address)
You may deliver or mail legible copies of the documents or produce things requested by this subpoena. together with the
certificate of compliance, to the party making this request at the address listed above. You have the right to seek, in
advance, the reasonable cost of preparing the copies or producing the things sought.
If you fail to produce the documents or things required by this subpoena, within twenty (20) days after its service, the party
serving this subpoena may seek a court order compelling you to comply with it.
THIS SUBPOEN A WAS ISSUED AT THE REQUEST OF THE FOLLOWING PERSON:
NAME: MICHAEL M. BADOWSKI, ESQUIRE
ADDRESS: 3510 TRINDLE ROAD
CAMP HILL PA 17011
TELEPHONE: (215) 246-0900
SUPREME COURT ID It:
ATTORNEY FOR: THE DEFENDANT
'--
DATE:
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,
Seal of the Court
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EXPlANATION OF REQUIRED RECORDS
TO: CUSTODIAN OF RECORDS FOR:
POL YCLlNIC HOSPITAL
2601 NORTII TIIIRD STREET
HARRISBURG, PA 17105
RE: 31323
CARL LEBO
Any and all records, correspondence, files and memorandums, handwritten
notes, relating to any examination, consultation care or treatment.
Dates Requested: up to and including the present.
. Subject: CARL LEBO
638 SPRINGHOUSE LANE, HUMMELSTOWN, PA 17036
. Social Security #: 181-26-9950
Date of Birth: 01-20-1936
SUlO-252200 31323-LOl
.
CERTIFICATE
PREREQUISITE TO SERVICE OF A SUBPOENA
PURSUANT TO RULE 4009.22'F
IN THE MATTER OF:
COURT OF COMMON PLEAS
LEBO
TERM,
-VS-
CASE NO: 00-2990
SYLVESTRI, ET AL
As a prerequisite to service of a subpoena for documents and things pursuant
to Rule 4009.22
MCS on behalf of MICHAEL M. BADOWSKI, ESQUIRE
defendant certifies that
(1) A notice of intent to serve the subpoena with a copy of the subpoena
attached thereto was mailed or delivered to each party at least
twenty days prior to the date on which the subpoena is sought to be
served,
(2) A copy of the notice of intent, including the proposed subpoena, is
attached to the certificate,
(3) No objection to the subpoena has been received, and
(4) The subpoena which will be served is identical to the subpoena which
is attached to the notice of intent to serve the subpoena.
DATE: 07/05/2000
MICHAEL M. BADOWSKI, ESQUIRE
Attorney for DEFENDANT
DEl1-190838 31323-L02
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COMMON~EALTH OF PENNSYLVANIA
COUNTY OF CUMBERLAND
IN THE MATTER OF:
COURT OF COMMON PLEAS
LEBO
TERM,
-VS-
CASE NO: 00-2990
SYLVESTRI, ET AL
NOTICE OF INTENT TO SERVE A SUBPOENA TO PRODUCE DOCUMENTS
POLYCLINIC HOSPITAL
ERNEST RUBBO, K.D.
MEDICAL
MEDICAL
TO: APRIL L. STAHG-KUTAY ESQ
KCS on behalf of MICHAEL K. BADOWSKI, ESQUIRE intends to serve a subpoena
identical to the one that is attached to this notice. You have twenty (20)
days from the date listed below in which to file of record and serve upon the
undersigned an objection to the subpoena. If no objection is made the subpoena
may be served pursuant to the applicable Pennsylvania Rules of Civil Procedure
4009.24. Complete copies of any reproduced records may be ordered at your
exppnse by completing the attached counsel card and returning same to KCS or
by contacting our local KCS office.
DATE: 06/15/2000
KCS on behalf of
MICHAEL K. BADOWSKI, ESQUIRE
Attorney for DEFENDANT
CC: MICHAEL K. BADOWSKI, ESQUIRE
WILLIAM BOLTZ
- 57300-4-0082
- 3359610103
Any questions regarding this matter, contact
THE KeS GROUP mc.
1601 MAUET STREET
#800
PHILADELPHIA, PA 19103
(215) 246-0900
DE02-124534 31.32.3 -CO 2.
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COMMONWEALTH OF PENNSYLVANIA
COUNTY OF CUMBERLAND
LEBO
VS
File No. 00-2990
SYLVESTRI, ET AL
SUBPOENA TO PRODUCE DOCUMENTS OR THINGS
FOR DISCOVERY PURSUANT TO RULE 4009.22
TO: CUSTODIAN OF RECORDS FOR: ERNEST RUBBO, M.D.
(Name of Person or Entity)
Within twenty (20) days after service of this subpoena, you are ordered by the court to produce the following documents or
things: SEE ATTACHED
at MCS GROUP INC.
1601 MARKET STREET SUITE 800
(Address)
PHILADELPHIA PA 19103
You may deliver or mail legible copies of the documents or produce things requested by this subpoena, together with the
certificate of compliance, to the party making this request at the address listed above. You have the right to seek. in
advance, the reasonable cost of preparing the copies or producing the things sought.
If you fail to produce the documents or things required by this subpoena, within twenty (20) days after its service, the party
serving this subpoena may seek a court order compelling you to comply with it.
THIS SUBPOENA WAS ISSUED AT THE REQUEST OF THE FOLLOWING PERSON:
NAME: MICHAEL M. BADOWSKI, ESQUIRE
ADDRESS: 3510 TRINDLE ROAD
CAMP HILL PA 17011
TELEPHONE: (215) 246-0900
SUPREME COURT ID It:
ATIOR."<EY FOR: THE DEFENDANT
DATE: '),10 )p
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Seal of the Court
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EXPlANATION OF REQUIRED RECORDS
TO: CUSTODIAN OF RECORDS FOR:
ERNEST RUBBO, M.D.
2800 GREEN STREET
HARRISBURG, PA 17104
RE: 31323
CARL LEBO
Any and all records, correspondence, files and memorandums, handwritten
notes, billing and payment records, relating to any exam;nation,
consultation, tare or treatmen~.
Dates Requested: up to and including the present.
Subject: CARL LEBO
638 SPRINGHOUSE LANE, HUMMELSTOWN, PA 17036
Social Security #: 181-26-9950
Date of Birth: 01-29-1936
SU10-252202 31323 -L02
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MICHAEL M. BADOWSKI, ESQUIRE
Pa. Supreme Court I.D. No. 32646
MARGOLIS EDELSTEIN
3510 Trindle Road
Camp Hill, Pennsylvania 17011
Telephone:
Fax:
E-Mail:
[717] 975-8114
[717] 975 - 8124
mbadowski@margolisedelstein.com
Attorney for Defendants:
GEORGE SYLVESTRI, M.D., AND COWLEY
MEDICAL ASSOCIATES, P.C.
CARL R. LEBO AND BEVERLY ANN
LEBO, HIS WIFE,
PLAINTIFFS,
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNA.
CIVIL ACTION - LAW
VS.
DOCKET NO. 00-2990 CIVIL TERM
GEORGE SYLVESTRI, M.D., AND
COWLEY MEDICAL ASSOCIATES, P.C.,:
DEFENDANTS. JURY TRIAL DEMANDED
NOTICE TO PLEAD
TO:
PLAINTIFFS and their counsel,
April L. Strang-Kutay, Esquire
GOLDBERG, KATZMAN & SHIPMAN, P.C.
320 Market Street
P.O. Box 1268
Harrisburg, PA 17108-1268
YOU ARE HEREBY NOTIFIED to plead to the enclosed NEW
MATTER within twenty (20) days of service hereof, or a default
judgment may be entered against you.
Date:
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MICHAEL M. BADOWSKI, ESQUIRE
Pa. Supreme Court I.D. No. 32646
MARGOLIS EDELSTEIN
3510 Trind1e Road
Camp Hill, Pennsylvania 17011
Telephone:
Fax:
E-Mail:
[711] 975-8114
[711] 975-8124
mbaaowski@margolisedelstein.com
Attorney for Defendants:
GEORGE SYLVESTRI, M.D., AND COWLEY
MEDICAL ASSOCIATES, P.C.
CARL R. LEBO AND BEVERLY ANN
LEBO, HIS WIFE,
PLAINTIFFS,
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNA.
CIVIL ACTION - LAW
VS.
DOCKET NO. 00-2990 CIVIL TERM
GEORGE SYLVESTRI, M.D., AND
COWLEY MEDICAL ASSOCIATES, P.C.,:
DEFENDANTS. JURY TRIAL DEMANDED
DEFENDANTS' ANSWER AND NEW MATTER
TO PLAINTIFFS' COMPLAINT
1. Admitted upon information and belief.
2. It is admitted that Dr. Sylvestri is a physician
licensed to practice medicine in the Commonwealth of
Pennsylvania.
3. Denied. By way of further answer, current to the
events alleged in the Plaintiffs' Complaint, Cowley Medical
Associates, P.C., was not a business entity. Prior to the events
giving rise to this lawsuit, Cowley Medical Associates, P.C., was
purchased by Beacon Medical Group, P.C., at which time Cowley
Medical Associates, P.C., ceased to exist.
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4. Denied. By way af further answer, at the times
alleged in Plaintiffs' Camplaint, Dr. Sylvestri was acting as a
physician emplayee af the Beacan Medical Graup, P.C.
5-9. Denied. After reasanable investigatian, Dr.
Sylvestri is withaut knawledge ar infarmatian sufficient to. farm
a belief as to. the truth af the averments of these paragraphs af
Plaintiffs' Camplaint and, therefare, said averments are denied.
10-12. Admitted to. the extent reflected in Dr.
Sylvestri's 6/9/98 affice recard entry.
13. It is admitted that a chest x-ray and camplete
blaad caunt ardered by Dr. Sylvestri were reparted as being
within narmal limits with the exceptian af the sedimentatian rate
which was elevated.
14. Admitted as mare accurately and campletely
reflected in Dr. Sylvestri's affice recard entry af 6/9/98.
15. Admitted as mare accurately and campletely
reflected in Dr. Sylvestri's affice recard entry af 6/12/98.
16. Denied. To. the cantrary, as reflected in Dr.
Sylvestri's affice recard entry af 6/12/98, Mr. Leba's right
shaulder was examined and faund to. be tender withaut effusian,
increased warmth ar erythema.
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17. Admitted as more accurately and completely
reflected in Dr. Sylvestri's office record entry of 6/12/98.
18-25. Denied. Currently, Dr. Sylvestri is without
knowledge or information sufficient to form a belief as to the
truth of the averments of these paragraphs of Plaintiffs'
Complaint and, therefore, said averments are denied.
26. Admitted upon information and belief.
27. Denied. Currently, Dr. Sylvestri is without
knowledge or information sufficient to form a belief as to the
truth of the averments of this paragraph of Plaintiffs' Complaint
and, therefore, said averments are denied.
COUNT I
CARL R. LEBO VS. GEORGE SYLVESTRI. M.D.
28. Dr. Sylvestri incorporates herein by reference his
answers to paragraphs 1 through 27 of the Plaintiffs' Complaint
as if the same were set forth in their entirety.
29. (a)-(h) Denied. The averments of this paragraph
and its subparagraphs of the Plaintiffs' Complaint recite medical
and legal conclusions to which no response is required. Dr.
Sylvestri avers, however, that at all times and for all purposes
relevant to his professional involvement in this matter, he acted
appropriately and in a fashion commensurate with acceptable
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standards of health care applicable under similar circumstances
and he in no way negligently caused any injury or damage to
Plaintiffs.
30-35. Denied. The averments of these paragraphs of
the Plaintiffs' Complaint recite medical and legal conclusions to
which no response is required, Dr. Sylvestri avers, however,
that at all times and for all purposes relevant to his
professional involvement in this matter, he acted appropriately
and in a fashion commensurate with acceptable standards of health
care applicable under similar circumstances and he in no way
negligently caused any injury or damage to Plaintiffs.
WHEREFORE, Defendant, George Sylvestri, M.D., demands
judgment in his favor and against Plaintiffs.
COUNT II
CARL R. LEBO VS. COWLEY MEDICAL ASSOCIATES. P.C.
NEGLIGENCE
36. Dr. Sylvestri incorporates herein by reference his
answers to paragraphs 1 through 35 of the Plaintiffs' Complaint
as if the same were set forth in their entirety.
37. Denied. To the contrary, at all times relevant to
his professional involvement in the health care of Carl Lebo, Dr.
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Sylvestri was an employee of the Beacon Medical Group, P.C., and
not Cowley Medical Associates, P.C.
38. Denied. As of June 1998 and before, the business
entity of Cowley Medical Associates, P.C., was no longer in
existence.
WHEREFORE, Defendants demand judgment in their favor
and against Plaintiffs.
COUNT III
BEVERLY ANNN LEBO VS. GEORGE SYLVESTRI. M.D.. AND
COWLEY MEDICAL ASSOCIATES. P.C. - LOSS OF CONSORTIUM
39. Dr. Sylvestri incorporates herein by reference his
answers to paragraphs 1 through 38 of the Plaintiffs' Complaint
as if the same were set forth in their entirety.
40. With respect to the allegations regarding Cowley
Medical Associates, P.C., Dr. Sylvestri specifically incorporates
his answers to paragraphs 36 through 38 of the Plaintiffs'
Complaint as if the same were set forth in their entirety. By
way of further answer, at all times and for all purposes relevant
to his professional involvement in the health care of Carl Lebo,
Dr. Sylvestri acted appropriately and in a fashion commensurate
with acceptable standards of health care applicable under similar
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circumstances and he in no way negligently caused any injury or
damage to Plaintiffs.
WHEREFORE, Dr. Sylvestri demands judgment in his favor
and against Plaintiffs.
NEW MATTER
41. To the extent that Plaintiffs have sustained any
injury or damage as alleged in their Complaint, any such injury
or damage being specifically denied, any such injury or damage
was the result of the acts or omissions of third persons other
than Dr. Sylvestri and for whom Dr. Sylvestri is in no way
responsible.
42. At all times and for all purposes relevant to his
professional involvement in the health care of Carl Lebo, Dr.
Sylvestri acted appropriately and in a fashion commensurate with
acceptable standards of health care applicable under similar
circumstances.
43. Dr. Sylvestri did not cause or contribute to cause
any injury or damage to Plaintiffs.
44. At all times relevant to his professional
involvement in the health care of Carl Lebo, Dr. Sylvestri acted
within the course and scope of his employment with the Beacon
Medical Group, P.C., and not Cowley Medical Associates, P.C.
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45. To the extent applicable, or to the extent that it
may later become applicable, Defendants plead the statute of
limitations referable to personal injury actions in Pennsylvania
to preserve this affirmative defense for the record.
46. To the extent discovery reveals, Dr. Sylvestri
pleads Plaintiffs' contributory negligence and/or assumption of
risk to preserve these affirmative defenses for the record.
Dated:
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By:
MICHAEL M,ADO SKI
Attorneys for Defendants,
GEORGE SYLVESTRI, M.D., AND
MEDICAL ASSOCIATES, P.C.
COWLEY
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I, GEORGE SYLvEST~I, M.D., have read the foregoing
DBFENDAN'l" S ANSWER AND 'd~:.:~'1"l'ER TO P;t.AIlITTIFF'S' CON1'LAJ:1lI'l' which
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haa been drafted by my couJ:).sel"'.. The factual statements contained.
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therein a.re known by me., ~!i>aJ::e erue and. correct to the best of
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my knowledge, informatioI?- .andbelief.
This statement andverificat:i.on is made subject to the
penal ties of 16 Pa, C. S ,.A., Section 49 04. relating- to unsworn
falsifications to autho~it,~(;lS~; .JIlhich providelJ that, if I
knowingly make false aVEl:t1llSI).1;'S, 1 may };le su!:lject to criminal
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CERTIFICATE OF SERVICE
I HEREBY CERTIFY that I served a true and correct copy
of the foregoing on all counsel of record by placing the same in
the United States mail at Camp Hill, Pennsylvania, first-class
postage prepaid, on the Ig~ day of ~
, 2000, and
addressed as follows:
April L. Strang-Kutay, Esquire
GOLDBERG, KATZMAN & SHIPMAN, P.C.
320 Market Street
P.O. Box 1268
Harrisburg, PA 17108-1268
(Counsel for Plaintiffs)
MARGOLIS EDELSTEIN
ByUkJ~~t~
S retary
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April L. Strang-Kutay, Esquire
AttorueyI.D,}[o.46728
GOLDBERG, KATZMAN & SHlPMAN, P.C.
320 Market Street
P.O. Box 1268
Harrisburg, PA 17108-1268
Telephone: (717) 234-4161
Attorney for Plaintiffs
CARL R. LEBO and BEVERLY ANN
LEBO, his wife,
: IN THE COURT OF COMMON PLEAS
: CUMBERLAND COUNTY, PENNSYL VANIA
Plaintiffs
v.
: CIVIL ACTION -LAW
: NO. 00-3'110
GEORGE SYLVESTRI, M.D.
Cowley Medical Associates
425 North 21" Street
Camp Hill, PA 1701]
and
COWLEY MEDICAL ASSOCIATES, P.C.
425 North 21" Street
Camp Hill, P A 17011 : JURY TRIAL DEMANDED
Defendants
PLAINTIFFS' RESPONSE TO NEW MATTER
41. Denied.
42. Denied.
43. Denied.
44. Admitted as stated on belief
45. Denied as applicable.
46. Denied,
Goldberg, Katzman & Shipman, P.C.
Date: 1H/'4~
BY~~
Aprlf 1. rang-Kutay, Esquire
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CERTIFICATE OF SERVICE
I hereby certify that I served a copy of the foregoing document upon the person(s)
indicated below by depositing a copy of the same in the United States mail, postage prepaid, at
Harrisburg, Pennsylvania and addressed as follows:
Michael Badowski, Esquire
3510 Trindle Road
Camp Hill, PA 17011
By:
N & SIDPMAN, P.e.
Date:August 29,2000
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CERTIFICATE
PREREQUISITE TO SERVICE OF A SUBPOENA
PURSUANT TO RULE 4009.22'F
IN THE MATTER OF:
COURT OF COMMON PLEAS
LEBO
TERM.
-VS-
CASE NO: 00-2990
SYLVESTRI. ET AL
As a prerequisite to" service of a subpoena for documents and things pursuant
to Rule 4009.22
MCS on behalf of MICHAEL M. BADOWSKI, ESQUIRE
defendant certifies that
(1) A notice of intent to serve the subpoena with a copy of the subpoena
attached thereto was mailed or delivered to each party at least
twenty days prior to the date on which the subpoena is sought to be
served,
(2) A copy of the notice of intent. including the proposed subpoena, is
attached to the certificate,
(3) No objection to the subpoena has been received, and
(4) The subpoena which will be served is identical to the subpoena which
is attached to the notice of intent to serve the subpoena.
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DATE: 09/28/2000
MICHAEL M. BADOWSKI. ESQUIRE
Attorney for DEFENDANT
DEll-209527 3~3Z3 -L03
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COMMONWEALTH OF PENNSYLVANIA
COUNTY OF CUMBERLAND
IN THE MATTER OF:
COURT OF COMMON PLEAS
LEBO
TERM,
-vs-
CASE NO: 00-2990
SYLVESTRI, ET AL
NOTICE OF INTENT TO SERVE A SUBPOENA TO PRODUCE DOCUMENTS
DAVID RICHARD, M.P.
MEDICAL
TO: APRIL L. STANG-KU'l'AY ESQ
MCS on behalf of MICHAEL M. BADOWSKI, ESQUIRE intends to serve a subpoena
identical to the one that is attached to this notice. You have twenty (20)
days from the date listed below in which to file of record and serve upon the
undersigned an objection to the subpoena. If no objection is made the subpoena
may be served pursuant to the applicable Pennsylvania Rules of Civil Procedure
4009.24. Complete copies of any reproduced records may be ordered at your
expense by completing the attached counsel card and retuming same to MCS or
by contacting our local MCS office.
DATE: 09/08/2000
MCS on behalf of
MICHAEL M. BADOWSKI, ESQUIRE
Attomey for DEFENDANT
CC: MICHAEL M. BADOWSKI, ESQUIRE
WILLIAM BOLTZ
- 57300-4-0082
- 3359610103
Any questions reg~rding this matter, contact
THE MCS GROUP INC.
1601 MARKET STREET
#800
PHILADELPHIA, PA 19103
(215) 246-0900
DE02-131768 31323 -C02
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COMMON\\'EAL TH OF PENNSYLVANIA
COUNTY OF CUMBERLAND
LEBO
VS
File No.
00-2990 CIVIL
SYLVESTRI, ET AL
SUBPOENA TO PRODUCE DOCUMENTS OR THINGS
FOR DISCOVERY PURSUANT TO RULE 4009.22
TO: CUSTODIAN OF RECORDS FOR: DR. DAVID RICHARD, FAMILY MEDICINE CENTER OF HERSHEY
(!'o:.a.m~ of Person or Enrit)')
\-\"ithin n-."enty (20) days after ser\'ice of this subpoena. you are ordered by the court to produce the following docuI::lents or
thin9" SEE ATTAr.l1F.D
.t MCS GROUP INC., 1601 MARKET ST., #800, PHlLA., PA 19103
(Address)
You nt2:~. deli\'er or mail legible copies of the documents or produce things requested by this subpoena, together ",,;th the
certificate of compliance, to the party making this request at the address listed above. You have the right to seek. in
advance, the reasonable cost of preparing the copies or producing the things sought.
Ii you fail to produce the documents or things required by this subpoena.. within twenty (20) days after its sen.ice. t:"e part)"
sen."ing this subpoena may seek a court order compelling you to comply with it.
THIS SUBPOENA WAS ISSUED AT THE REQL'EST OF THE FOLLO\VING PERSON:
1>:AME: MH~HAET, M. RADOWSKT. F.SQIJTRE
ADDRESS: 3S10 TRINDLE RD.
CAMP HILL, PA 17011
TELEPHONE: (215) 246-0900
SUPREME COURT ID II:
ATTOR.:'lEY FOR: THE DEFENDENT
DATE: xljE ",-1"", ~ ~ .:M-t-v
BY THE COURT:p .
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Prothonowy/c!fe;k. ~il Division
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Seal of the Court
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EXPlANATION OF REQUIRED RECORDS
TO: CUSTODIAN OF RECORDS FOR:
DAVID RICHARD, M.D.
1135 W. GOVERNOR ROAD
HERSHEY, PA 17033
RE: 31323
CARL LEBO
Any and all records, correspondence, files and memorandums, handwritten
notes, billing and payment records, relating to any examination, .
consultation, care or treatment.
Dates Requested: up to and including the present.
Subject: CARL LEBO
638 SPRlNGHOUSE LANE, HUMMELSTOWN, PA 17036
Social Security #: 181-26-9950
Date of Birth: 01-20-1936
5U10-266388 31323 -L 0 3
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CARL R. LEBO and
BEVERLY ANN LEBO, His Wife,
Plaintiffs
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
CNIL ACTION - LAW
v.
NO. 00-2990 Civil Term
GEORGE SYLVESTRI, M.D. and
COWLEY MEDICAL ASSOCIATES, P.C.,: JURY TRIAL DEMANDED
Defendants
ORDER
AND NOW, this _ day of
,2004, upon consideration of the Motion in
Limine of Defendants, George Sylvestri, M.D., and Cowley Medical Associates, P.C., to
preclude the testimony of Robert N. Dunn, M.D., and Plaintiffs Response thereto, it is hereby
ORDERED and DECREED that said Motion is GRANTED, and Robert N. Dunn, M.D., is
precluded from offering any expert testimony concerning the standard of care applicable to Dr.
Sylvestri, pursuant to 40 P.S. g1303.512(b); and, additionally, Marie Savard, M.D. is precluded
from offering any expert testimony concerning the standard of care applicable to Dr, Ernest
Rubbo or Dr. John Rychak, also pursuant to 40 P.S. g1303.512(b).
BY THE COURT:
J.
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April L, Strang-Kutay, Esquire
Attorney J. D. No. 46728
David M. Steckel, Esquire
Attorney J.D. No. 82340
GOLDBERG KATZMAN, P.c.
320 Market Street
P.O. Box 1268
Harrisburg, PA 17108-1268
Telephone: (717) 234-4161
Attorneys for Plaintiffs
CARL R. LEBO and
BEVERLY ANN LEBO, His Wife,
Plaintiffs
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION - LAW
v.
NO. 00-2990 Civil Term
GEORGE SYL VESTRl, M.D. and
COWLEY MEDICAL ASSOCIATES, P.C.,: JURY TRIAL DEMANDED
Defendants
PLAINTIFFS' MOTION TO STRIKE CASE
FROM SEPTEMBER 13. 2004 TRIAL TERM
AND NOW, Plaintiffs, Carl R. Lebo and Beverly Ann Lebo, by and through their
counsel, Goldberg Katzman, P.C., who state the following in support of the instant Motion to
Strike the Case from the September 13, 2004 Trial Term:
1. The above-indicated case is scheduled to be tried during Cumberland County Term of
Court September 13, 2004, with pre-trial conference having taken place before the
Honorable Judge Bayley on August 18, 2004.
2. On August 26, 2004, Plaintiffs' counsel learned of an urgent medical emergency
affecting a member of the family such that counsel will not be able to participate in the
upcoming trial, as scheduled.
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3. On August 27, 2004, Plaintiffs' counsel communicated this urgent concern to defense
counsel, Michael Badowski, who, in turn, conferred with his client, advising that there
would be no opposition to removing the case from the September 13, 2004 trial term.
WHEREFORE, Plaintiffs respectfully request that this Court grant Plaintiffs' Motion,
about which Defendants have concurred, and remove the case from the September 13, 2004 trial
term.
GOLDBERG KATZMAN, P.C.
../......\
By./
Ap . 1. Strang-K , Esquire
Attorney LD. # 46728
David M. Steckel
Attorney LD. # 82340
320 Market Street
P. O. Box 1268
Harrisburg, PA 17108-1268
(717) 234-4161
Counsel for Plaintiffs
Date: August 26, 2004
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CERTIFICATE OF SERVICE
I HEREBY CERTIFY that I served a true and correct copy of the foregoing document
upon all counsel of record by depositing the same in the United States Mail, fIrst class, postage
prepaid, at Harrisburg, Pennsylvania, on the 26th day of August, 2004, addressed as follows:
Michael M. Badowski, Esquire
Margolis Edelstein
3510 Trindle Road
Camp Hill, PA 17011
GOLDBERG KATZMAN, P.C.
By -- .I'->.-A
A rilL. S ang-Kutay,'E-squ'
Attorney I.D. # 46728
David M. Steckel
Attorney I.D. # 82340
320 Market Street
P. O. Box 1268
Harrisburg, PA 17108-1268
(717) 234-4161
Counsel for Plaintiffs
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Plaintiffs
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GEORGE SYL VESTRI, M.D. and
COWLEY MEDICAL
ASSOCIATES, P.C.,
Defendants
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00-2990 CIVIL
CIVIL ACTION - LAW
JURY TRIAL DEMANDED
IN RE: PLAINTIFFS' MOTION TO LIST CASE FOR SEPTEMBER 13, 2004 TRIAL TERM
ORDER
AND NOW, this If' day of August, 2004, the motion of the plaintiffs to list this
case for the September 13, 2004 trial term is GRANTED.
pril 1. Strang-Kutay, Esquire
For the Plaintiffs
~ichael M. Badowski, Esquire
For the Defendants -.J
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BY THE COURT,
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April L Strang-Kutay, Esquire
Attorney J. D. No. 46728
David M, Steckel, Esquire
Attorney J.D. No. 82340
GOLDBERG KATZMAN, P.e.
320 Market Street
P,O, Box 1268
Harrisburg, PA 17108-1268
Telephone: (717) 234-4161
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Attorneys for Plaintiffs
CARL R. LEBO and
BEVERLY ANN LEBO, His Wife,
Plaintiffs
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
CNIL ACTION - LAW
v.
NO. 00-2990 Civil Term
GEORGE SYLVESTRI, M.D. and
COWLEY MEDICAL ASSOCIATES, P .C.,: JURY TRIAL DEMANDED
Defendants
PLAINTIFFS' MOTION TO LIST CASE FOR SEPTEMBER 13. 2004 TRIAL TERM
AND NOW, come Plaintiffs, Carl R. Lebo and Beverly Ann Lebo, by and through their
counsel, Goldberg Katzman, P.C., who state the following in support of the instant Motion to List
this Case for Trial during the Court's September 13, 2004 term and, further, to request that the trial
begin on Monday, September 13, 2004:
1. Following a status conference before The Honorable Kevin A. Hess on December 4,2003,
the Court issued an Order which stated, in pertinent part, as follows:
"3. This matter shall be tried during the week of civil trials commencing September
13,2004, and counsel are deemed by this order to be attached for trial during that
week.
Counsel for the plaintiffs will take the responsibility oflisting this case for trial prior
to the cut-off date of July 26, 2004."
2. Through an oversight, Plaintiffs' counsel did not list the case for trial prior to July 26,2004,
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3. Nevertheless, the parties were ofthe beliefthat the case was attached for trial beginning on
September 13, 2004.
4. In reliance thereon, the parties arranged for their expert witnesses to appear as though the
case, which is expected to last approximately four (4) days, were to begin on the morning of
Monday, September 13th.
5. Counsel for the respective parties jointly request that this case still be set for trial beginning
on the morning of September 13th.
6. If the above request presents an inconvenience for this Court and is, in fact, not feasible,
counsel jointly requests that this case be scheduled for trial during the fIrst trial term of2005.
WHEREFORE, Plaintiffs respectfully request that this Court grant Plaintiffs' Motion, which
Defendants concur with, and schedule this case for trial beginning in the morning of September 13,
2004.
GOLDBERG KATZMAN, P,C.
By ~
April . Strang-Kut y, E
Attorney LD. # 46728
David M. Steckel
Attorney LD. # 82340
320 Market Street
P. O. Box 1268
Harrisburg, PA 17108-1268
(717) 234-4161
Date: '6JI]JO~
Counsel for Plaintiffs
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CERTIFICATE OF SERVICE
I hereby certify that I served a copy of the foregoing document upon the person( s) indicated
below by depositing a copy of the same in the United States mail, postage prepaid, at Harrisburg,
Pennsylvania and addressed as follows:
Michael M. Badowski, Esquire
Margolis Edelstein
3510 Trindle Road
Camp Hill, P A 17011
GOLDBERG KATZMAN, P.C.
By:
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Glenda J. Ebersole, t
Legal Secretary for
April 1. Strang-Kutay, Esquire
Attorney for Plaintiffs
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CARL R. LEBO AND BEVERLY ANN
LEBO, HIS WIFE,
PLAINTIFFS
.: IN THE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYLVANIA
V.
GEORGE SYLVESTRI, M.D., AND
COWLEY MEDICAL ASSOCIATES,
P.C.,
DEFENDANTS
: 00-2990 CIVIL TERM
ORDER OF COURT
AND NOW, this
1<6"
day of August, 2004, following a review of the
motion of defendants to preclude the testimony of Robert N. Dunn, M.D., IT IS
ORDERED that plaintiff shall file a response memorandum in the chambers of this
judge not later than Thursday, August 26, 2004.
~ril L. Strang-Kutay, Esquire
For Plaintiffs
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vMichael Badowski, Esquire
For Defendants
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CARL R. LEBO AND BEVERLY ANN
LEBO, HIS WIFE,
PLAINTIFFS
V.
GEORGE SYLVESTRI, M.D., AND
COWLEY MEDICAL ASSOCIATES,
P.C.,
DEFENDANTS
AND NOW, this
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00-2990 CIVIL TERM
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ORDER OF COURT
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day of August, 2004, on the motion of plaintiff
to strike the case from the September 13, 2004, trial term, not opposed by the defense,
the motion IS GRANTED. The case is stricken and may be relisted for trial as of course
by either party.
.,;(pril L. Strang-Kutay, Esquire
For Plaintiffs
~chael Badowski, Esquire
For Defendants
Court Administrator
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Edgar B. Bayley, J.
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03-27-oi
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PRAECIPE FOR LISTING CASE FOR TRIAL
(Must be typewritten and submitted in duplicate)
TO THE PROTHONOTARY OF CUMBERLAND COUNTY
Please list the following case:
IZI for JURY trial at the next term of civil court
o for trial without a jury,
CAPTION OF CASE
(entire caption must be stated in full)
CARL R. LEBO and BEVERLY ANN LEBO,
his wife
(check one)
GJ Civil Action - Law
o Appeal from arbitration
o
(other)
(Plaintiff)
vs,
The trial list will be called on
and
6/21/0';
GEORGE SYLVESTRI, I1.D. and
COWLEY M:EDICN, ASSOCIATES, P.C.
(Defendant)
Trials commence on 7/ tg.' Q ';
vs,
Pretrials will be held on fi 17.910 ';
(Briefs are due 5 days before pretrials
No, 00-2990
,CIVIL Term
Indicate the attorney who will try case for the party who files this praecipe:
David M. Steckel,Esq.
Indicate trial counsel for other parties ifknown:
Michael M. Badowski, Esq.
Signed: ~-~
This case is ready for trial.
Print Name: nmlin M. Srprk,,1, ,ERq.
3/30/05
Attorney for: Pbmtifh
Date:
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CARL R. LEBO and BEVERLY
ANN LEBO, his wife,
Plaintiffs
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
vs,
00-2990 CIVIL
CIVIL ACTION - LAW
GEORGE SYLVESTRI, M"D. and
COWLEY MEDICAL
ASSOCIATES, P.C.,
Defendants
JURY TRIAL DEMANDED
IN RE: PRETRIAL CONFERENCE
Present at a pretrial conference held this date were David Steckel, Esquire, attorney for
the plaintiffs, and Michael Badowski, Esquire, attorney for the defendants.
This is a medical malpractice case in which the plaintiff contends that Dr. Sylvestri' s
treatment of him following shoulder surgery, and particularly the doctor's failure to detect and
treat infection, fell below the standard of care. There are no particularly unusual or complicated
procedural or evidentiary issues in the case.
The trial should be of approximately four days' duration. Dr. Rubbo, who performed the
shoulder surgery, is available to testify on Tuesday afternoon of the trial week and counsel
agreed that they would accommodate his schedule even if it meant taking Dr. Rubbo's testimony
out of order.
The parties will share the usual number of juror challenges.
David Steckel, Esquire
For the Plaintiffs
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June 29, 2005
Michael M. Badowski, Esquire
For the Defendants
Court Administrator
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FILED-OfFICE
OF THE PROTHONOT,4RY
2005 JUN 29 PH 2: 3 I;
CUMBERLNiO COUNTY
PENNSYLVANIA
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April L Strang,Kutay, Esquire
Attorney I D" No, 46728
David M Steckel, Esquire
Attorney rD, No" 82340
GOLDBERG KATZMAN, P. C.
320 Market Street
P.O" Box 1268
Harrisburg, PA 17108,1268
Telephone: (717) 234-4161
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CARL R LEBO and
BEVERLY ANN LEBO, His Wife,
Plaintiffs
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION - LAW
v"
NO. 00-2990 Civil Term
GEORGE SYLVESTRI, M.D. and
COWLEY MEDICAL ASSOCIATES, P"C,. JURY TRIAL DEMANDED
Defendants
PLAINTIFF'S PRE-TRIAL MEMORANDUM
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AND NOW, come Plaintiffs, Carl R. Lebo and Beverly Ann Lebo, by and through their
attorneys, Goldberg Katzman, P"C, and submit the following Pre-Trial Memorandum in
anticipation of the trial set to commence on July 18, 2005 in the Cumberland County Courthouse"
1. STATEMENT OF FACTS ON LIABILITY AND DAMAGES
Plamtiff, Carl Lebo, a previously healthy 62 year old male, presented to Dc Ernest R.
Rubbo (orthopedist), on May 6, 1998, approximately two weeks after sustaining a work-related
injury to his right shouldee On May 6, 1998, Dc Rubbo ordered an MRI scan pertaining to Me
Lebo's right shoulder; this scan demonstrated a full thickness rotator cuffteae On May 27, 1998,
Dc Rubbo admitted Plaintiff, Carl Lebo, to Polyclinic Hospital where he performed an
arthrotomy, and an open acromioplasty, That surgical procedure was accomplished uneventfully
and no unusual incidents or occurrences are noted in the operative report.
One week following surgery, Me Lebo returned, as instructed, to Dr. Rubbo's office for a
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routine follow-up evaluation; at that time, according to DL Rubbo's office note, ML Lebo's
shoulder was "healing nicely" and the Plaintiff was instructed to progress from a shoulder
immobilizer to a sling and to begin passive range of motion exercises"
On June 9, 1998, Plaintiff, Carl R. Lebo, presented to the office of George Sylvestri,
M.D., for evaluation of symptoms he had developed involving episodic severe headaches,
accompanied by facial numbness, nausea, light headedness, shortness of breath and paresthesis"
On that date DL Sylvestri evaluated ML Lebo for the above-stated complaints and also noted in
the record that the patient had been febrile for approximately one week. A physical exam on June
9, 1998, conducted by DL George Sylvestri, indicated that Mr, Lebo had a decreased range of
motion of his right shouldeL DL Sylvestri noted that there was no erythema or fluctuance around
the wound. Based on the above findings, DL Sylvestri proposed a diagnosis of "post-op FUO,"
and elected to withhold antibiotics, preferring to instruct the patient to present for re-evaluation in
three days time"
As requested, ML Lebo presented again to DL Sylvestri's office on June 12, 1998; in the
office that day, ML Lebo's recorded temperature was 990F; however, the patient reported to DL
Sylvestri that his fever had ranged, in the past three days, between 990F to I020P, On June 12,
1998, DL Sylvestri noted the right shoulder to be tender with increased warmth and erythema, but
no obvious effusion, Once again, DL Sylvestri proposed a diagnosis of"post-op fever without
source", and elected to continue the patient off antibiotics and re-evaluate him in one week with a
repeat sedimentation and liver function test in the interim"
On June 16, 1998, ML Lebo presented again to the office of his orthopedic surgeon, Dr.
Rubbo. Dr. Rubbo's office notes confirm that ML Lebo complained of pain in his right shoulder,
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as well as fever; on physical exam, Dr. Rubbo noted that the incision was red and "appears to be
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incision where his knot has been tied:' Based on his impressions as a result of the June 16, 1998
examination of Mr. Lebo, Dr. Rubbo concluded that the Plaintiff may be suffering from a
"possible post-op infection" and prescribed "Keflex", with instructions for the patient to return in
two to three days, or earlier, should the pain and swelling get worse.
On the following day, June 17, 1998, in response to Mr. Lebo's ongoing complaints, Dr.
Rubbo re-evaluated Mr. Lebo's shoulder. At that time, Dr. Rubbo noted the presence ofa
pustule, which he opened, with drainage and culture of purulent fluid "which appeared to be
mostly superficial:' Subsequent culture of this material demonstrated coagulase negative
staphylococci and Propionibacterium acnes"
On June 17, 1998, additional debridement was then carried out with excision ofa large
Vicryl knot from the open area, after which Mr. Lebo was hospitalized immediately for further
evaluation and treatment. Carl Lebo, was admitted to Dr. Rubbo's service at Polyclinic Hospital
on June 17, 1998, and was immediately begun on a regime of intravenous Cefazolin, twice-daily
dressing changes and analgesics,
On June 22, 1998, Dr. Rubbo returned the patient to surgery and re-explored his shoulder,
which re-exploration demonstrated a purulent fluid collection found in the subdeltoid space with
failure and dehiscence of the entire rotator cuff repair; the area was then derided and irrigated, but
in view of the size of the defect, no repair was felt to be feasible, and the area was closed over a
drain.
As a result of consultation with an infectious disease consultant, Dr. Tkatch, Mr. Lebo's
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antibiotic regime was changed from Cefazolin to Vancomycin, Carl Lebo, was ultimately
discharged from the Polyclinic Hospital to home on June 22, 1998 with plans to receive a six
week course of Vancomycin.
As a consequence of the substantial damage effectuated by Carl Lebo's post-operative
infection, he lost his rotator cuff repair and the cuff was destroyed.
II. SEPARATE LIST OF ISSUES AS TO LIABILITY AND DAMAGES
Plaintiffs appreciate no unusual legal issues with respect to this mattec The case is
founded in medical negligence, and will involve the usual issues of standard of care and causation"
m. TRIAL WITNESSES
1. Carl K Lebo, Plaintiff
2" Beverly Ann Lebo, Plaintiff
3. Carl Gary Lebo, D,D,S", son of Car] and Beverly Lebo
4" Dc Lentnek, expert in orthopedic surgery
5. Dc Dunn, expert in orthopedic medicine
6, Dc Ernest Rubbo
7" Dc Steinman, expert in physical medicine (by video)
8. Dc Sylvestri (as on cross)
In addition to the preceding, Plaintiffs reserve the right to supplement or amend this list of
witnesses prior to the time of trial and upon appropriate notice to opposing counseL
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IV. TRIAL EXHIDITS
At the trial of this case, Plaintiffs may utilize as exhibits any or all of the following, which
relate to this matter:
L Records ofDL Rubbo
2, Records ofDL Sylvestri
3, Records from Polyclinic Medical Center
4. Expert report ofDL Robert Dunn, Orthopedist
5. Expert report ofDL Arnold Lentnek, Surgeon
6" Expert report ofDL Robert Steinman, Physiatrist
7. C.Y ofDL Dunn
8, CY ofDL Lentnek
9" C.Y ofDL Steinman
10" Anatomical diagrams and medical models of the shoulder
11. Summary of medical expenses
12" Medical literature
In addition to the preceding, Plaintiffs may utilize all pleadings of record, discovery
responses, transcripts of depositions taken in connection with the Plaintiffs' civil action, and the
CVs and reports of all experts exchanged throughout discovery in this case, Plaintiffs also
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reserve the right to utilize any exhibits listed by the Defendants in their Pre-Trial Conference
Memoranda" Plaintiffs also reserve the right to supplement or amend this list of exhibits prior to
the time of trial and upon appropriate notice to opposing counseL
V. DEPOSITION TRANSCRIPTS TO BE USED IN LIEU OF TESTIMONY
None at present.
VI. STIPULATIONS SOUGHT
Plaintiffs request a stipulation as to the authenticity of records documenting the care and
treatment rendered to Carl Lebo.
Respectfully submitted,
GOLDBERG KATZMAN, P"C.
By:
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April L Strang-Kutay, Esquire
Attorney LD" # 46728
David M" Steckel, Esquire
Attorney LD. # 82340
320 Market Street, p" 0, Box 1268
Harrisburg, Pennsylvania 17108-1268
(717) 234-4161
Attorneys for Plaintiffs
Dated: June 29, 2005
112920"2
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CERTIFICATE OF SERVICE
I HEREBY CERTIFY that I served a true and correct copy of Plaintiffs' Pre,Trial
Memorandum upon the following counsel of record via hand delivery:
Michael M, Badowski, Esquire
Margolis Edelstein
3510 Trindle Road
Camp Hill, PAl?O 11
By:
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April L Strang,Kutay, E~
Attorney ID. No, 46728
David M" Steckel, Esquire
Attorney ID" No" 82340
320 Market Street, p, O. Box 1268
Harrisburg, PA 17108-1268
(717) 234-4161
Attorneys for Plaintiffs
Date: June 29,2005
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RECEIVED JUN 2 & 2005
P
MICHAEL M. BADOWSKI, ESQUIRE
Pa. Supreme Court 1.0. No. 32646
MARGOLIS EDELSTEIN
3510 Trindle Road
Camp Hill, Pennsylvania 17011
Telephone:
Fax:
E-Mail:
[7171 975-8114
[7171975,8124
mbadowski@margolisedelstein.com
Attorney for Defendants:
GEORGE SYLVESTRI, M.D., AND COWLEY
MEDICAL ASSOCIATES, P.c.
CARL R. LEBO AND BEVERLY ANN
LEBO, HIS WIFE,
PLAINTIFFS,
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNA.
CIVIL ACTION - LAW
VS.
DOCKET NO. 00-2990 CIVIL TERM
GEORGE SYLVESTRI, M.D., AND
COWLEY MEDICAL ASSOCIATES, P.C.,
DEFENDANTS.
JURY TRIAL DEMANDED
PRE-TRIAL CONFERENCE MEMORANDUM OF DEFENDANTS.
GEORGE SYLVESTRI. M.D. AND COWLEY MEDICAL ASSOCIATES. P.C.
1. STATEMENT OF FACTS AS TO LIABILITY
Plaintiff alleges that he sustained an injury to his right shoulder during a
fall in April 1998. At the request of his employer, he was seen by Dr. Richards, who
obtained x-rays and referred Plaintiff to Ernest R. Rubbo, M.D., who first saw Plaintiff
on May 6, 1998. After discussions with Dr. Rubbo concerning treatment options,
Plaintiff opted for surgery to the right shoulder which was performed by Dr. Rubbo on
May 27, 1998, at Polyclinic Medical Center. According to Plaintiff, he was doing well
for the first several days after the surgery, but then he began to experience headache
and ringing in his ears with lights flashing in his eyes and tingling in his right arm.
Plaintiff called Dr. Rubbo's office and spoke to Dr. Rubbo's then partner, John S.
Rychak, M.D. On June 3, 1998, Plaintiff was seen in Dr. Rubbo's office where it was
noted that the surgical site was healing nicely. Plaintiff was instructed to progress
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Dr. Sylvestri saw Plaintiff for the first time on June 9, 1998, and after
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from a shoulder immobilizer to a sling and begin passive range-of-motion exercises. A
few days later, Plaintiff again experienced the symptoms described above and he
again called Dr. Rubbo's office, once again speaking to Dr. Rychak, who advised
Plaintiff to see his primary care physician.
obtaining a history, performed a physical examination, ordered a chest x-ray and
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obtained a CBC. Dr. Sylvestri further ordered liver function, electrolyte studies, renal
function and SED rate studies. Dr. Sylvestri examined Plaintiffs right shoulder. Dr.
Sylvestri's differential diagnosis included a central nervous system problem and post-
operative infection. By the end of the evaluation, he ruled out pneumonia and
meningitis and was satisfied that there was no wound infection. Dr. Sylvestri
determined that Plaintiff should be seen again in three (3) days' time, but to return
earlier if he felt ill. Plaintiff returned to see Dr. Sylvestri on June 12, 1998, again
containing of fever, frontal headache, sore neck and significant right shoulder pain,
although, overall, he reported feeling a little better. At that time, Dr. Sylvestri had the
results of the blood tests available to him, which showed an elevated sedimentation
rate (although not markedly) as well as the liver function. The liver function tests
were high enough to indicate a hepatitis condition, and the patient informed Dr.
Sylvestri that since 1990 the Red Cross would no longer accept his blood. Dr.
Sylvestri's physical examination on June 12 revealed that he did not look toxic, and
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he had basically the same findings as on June 9. Ears, nose, throat, lungs and heart
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were normal. His right shoulder was tender to touch, but there was no effusion,
warmth or redness. The wound was clear and the tissues were close together. Dr.
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Sylvestri's differential on June 12 was that of a viral syndrome, including hepatitis, or
perhaps a delayed reaction to an anesthetic that causes hepatitis, rather than a virus.
Mr. Lebo had a regularly scheduled appointment with Dr. Rubbo on June
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No antibiotics were prescribed, and the patient was to fOllOW'UP the following week
for a repeat sed rate and liver function study.
16, and by that time his shoulder was oozing and he could see the redness protruding
from outside the bandage. He also told Dr. Rubbo of the episodes of numbness and
tingling in his arm as well as a strange feeling in his head and face. According to Dr.
Rubbo, it was at that time that Plaintiff was offering complaints of pain and fever. Dr.
Rubbo noted that there was some redness at the incision site and he believed that it
was a reaction to a suture. Keflex was ordered because of the redness and pain. Dr.
Rubbo believed that the infection, if any, was superficial. He had not, as of that date,
made a definitive diagnosis of infection. Dr. Rubbo suggested warm compresses to the
wound. After doing so that evening, yellow pustules appeared at the site and the
Lebos called Dr. Rubbo and were told to go to the Polyclinic Hospital the following
morning, June 17, 1998, at 8:00 A.M.
At the Polyclinic, Dr. Rubbo took Plaintiff to the "casting room" and
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opened the anterior aspect of the incision where the pustule was with a pair of
scissors. He noted fluid which appeared to be a sign of infection, and which he
continued to believe was superficial in nature.
As a result of his findings, Dr. Rubbo admitted Plaintiff to the hospital
for the administration of IV antibiotics. On June 22, 1998, Dr. Rubbo took Plaintiff
back to surgery to clean out the infected area. It was at this point that he realized that
the infection was not superficial, but was a deep infection.
The next contact Dr. Sylvestri's group had with Plaintiff was during his
subsequent hospitalization when Dr. Rubbo consulted them for medical management.
Dr. Sylvestri saw the patient on June 20 and discussed with Dr. Fultz, Dr. Rubbo's
partner, the possibility of a second opinion from an infectious disease standpoint
prior to the exploration surgery scheduled for the following day. Dr. Tkatch, an
infectious disease specialist, saw Plaintiff on June 21, 1998, as the result of a request
for consultation by Dr. Sylvestri.
II. STATEMENT OF DAMAGES
See Plaintiffs' Pre-Trial Conference Memorandum.
III. STATEMENT AS TO THE ISSUES OF LIABILITY AND DAMAGES
A. Whether Dr. Sylvestri fell below the accepted standard of care of a
general internist with regard to his professional involvement with Carl
Lebo?
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B. Damages sustained by Plaintiffs.
IV. LEGAL ISSUES
Issue with respect to precluding testimony of Robert N. Dunn, M.D. with
respect to the standard of care applicable to internists.
V. IDENTITY OF FACT WITNESSES
A. Plaintiffs' as on cross,examination;
B. Dr. Sylvestri;
C. John S. Rychak, M.D.;
D. Lisa S. Tkatch, M.D.; and
E. Ernest G. Rubbo, M.D.
In addition to these witnesses, Dr. Sylvestri reserves the right to call at the time of
trial, any witness identified in Plaintiffs' Pre, Trial Conference Memorandum or, as
necessary, for the purpose of rebuttal.
VI. IDENTITY OF EXPERT WITNESSES
A. Marie A. Savard, M.D. A copy of Dr. Savard's expert reports dated
June 28, 2001, and April 8, 2003, together with her curriculum vitae, is attached
hereto, incorporated herein by reference and marked collectively as Exhibit A;
B. Lisa S. Tkatch, M.D., consistent with her deposition of May 14, 2002;
C. Ernest G. Rubbo, M.D., consistent with his deposition testimony of
October 30, 2001;
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D. John S. Rychak, M.D., consistent with his deposition testimony of
September 25, 2001; and
E. George Sylvestri, M.D.
VII. LIST OF EXHIBITS
Dr. Sylvestri may utilize one or more of the following exhibits at the time
of trial.
A. Expert reports and curriculum vitae of Marie Savard, M.D.;
B. Deposition transcript of Plaintiff, Beverly Ann Lebo;
C. Deposition transcript of Carl R. Lebo;
D. Deposition transcript of Lisa S. Tkatch, M.D.;
E. Deposition transcript of Ernest G. Rubbo, M.D.;
F. Deposition transcript of John S. Rychak, M.D.
G. Plaintiffs' Answers to Interrogatories;
H. Plaintiffs' Complaint;
1. Plaintiff-Husband's medical records from the following providers:
1. Ernest G. Rubbo, M.D.;
2. Pinnacle Health System;
3. George Sylvestri, M.D.; and
4. David Richard, M.D.
In addition to these items, Dr. Sylvestri reserves the right to utilize any document
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identified in the Plaintiffs' Pre-Trial Memorandum or, as necessary, for the purpose of
rebuttal.
VIII. CURRENT STATUS OF SETTLEMENT NEGOTIATIONS
Plaintiffs have made a settlement demand of $375,000.00. Dr. Sylvestri
believes that this case is defensible and, therefore, no offer has been made.
IX. ESTIMATED TIME NEEDED FOR TRIAL
Four (4) days.
X. SPECIAL REQUESTS
It is requested that the parties agree to the authenticity and admissibility
of all the medical records identified above, subject only to objections as to relevancy.
Respectfully submitted,
Date:
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By:
MARGOLIS E LST~//
rt~!I
MICHAEL M. BADOWSKI
Attorney for Defendants,
GEORGE SYLVESTRI, M.D., AND
COWLEY MEDICAL ASSOCIATES,
P.C.
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MARIE A. SAVARD. MD.
421 Owen ROad'
Wynnewciod. PA 19096
Telephone: (610) 8~1995
Fax: (610) 649.0431
Emall:.savardSYS@aol.com
June 28,2001
Michael M.. Badowski
Margolis Edelstein
Post Office Box 932
Harrisburg, Pennsylvania l7l08~0932
RE: LEBO v. SYLVESTRJ:, et al
DOCKIilT NO. 00-2990 CJ:VJ:L ''rB1lH
YOUR FILE NO. 57300.4-0082
Dear Mr. Badowski,
I reviewed the records of Carl R. Lebo which included, the
following:
l. Plaintiff's complaint;
2. Records from Cowley Medical Associates (Dr. Sylvestri) ;
3. Records from Polyclinic Medical Center, May 27, 1998;
4. Records from Polyclinic Medical Center, June 17, 1998;
5. Records from Ernest R. Rubbo, M.D.;
6. Records from David Richard,'M.D.;
7. Dr. Sylvestri's deposition transcript; and
'8. Deposition transcript of Carl and Beverly Lebo.
.It' is my belief within.a .reasonable degree of medical certainty
that the care provided Mr. Lebo by Dr. GeorC]eSylvestri was well
within.the standard of care for a general internist and primary
.' care physician.. Specifically, Dr. Sylvestri . evaluated Mr. Lebo on .
an. urgent bas.is and' performed a comprehensive evaluation and
differential diagnosis and treatment plan. Dr. Sylvestri. knew
. that Mr. Lebo was under the continued post-operative care of Dr.
RUbbo for evaluation . and treatment and would have reasonably
preslimedthatany complications. frotnthat surgery w.ould be>hand,led
by <Dr. Rubbo. Dr. Rubboacknowled,ged that Mr. . Lebo was referred,
for a general medical evaluation in searCh for other causes oihis
symptoms believing that .his symptoms were.. unrelated to the.
surgery,
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It was Dr. Rubbo and his covering surgical physicians that were
responsible for diagnosing post-operative complications such as a
wound infection. As a general internest, Dr. Sylvestri .was asked
to .evaluate Mr. Lebo for medical problems, relying on the treating
surgeon to' evaluate surgical problems such as deep wound
infection.
Medical. Hi.story
Medical. :Reoord.!! of Dr. Ernest Rubbo
On May'6, 1998 Mr. Carl Lebo presented to Dr. Rubbo for evaluation
of a work related injury. He was a 62 year-old grounds keeper at
The Country Club of Hershey when he lost his balance landing on
his bent elbow and injuring his right shoulder. He denied
previous problems with his right shoulder until this injury.
Since the injury he described weakness and limitation of motion of
his right upper extremity and he could "not move his arm away from
his side without severe pain". He was taking Motrin without
improvement. His work-related doctor, Dr. David Richards, placed
him on 800 mg. of Motrin and referred him for further evaluation.
His past medical history was significant for a previous left knee
osteotomy in 1996. His only medication was Motrin. His family
history was significant for heart disease. His father had a
previous heart attack. He denied smoking, alcohol or drug abuse.
On physical
and marked
resistance.
exam he had severe decrease of motion because of pain
weakness was noted to' external rotation against
.He was treoited with an injection of 1 cc Dexamethasone and 1 cc of
Aristocort (steroids) to give him relief. He also underwent an
MRI evaluation. .
An MRI study revealed full thickness rotator cuff tear of the
right shoulder. . He was advised of operative and non-operative
treatment options. He was advised of complications including
"infection, decreased range of motion, pain, swelling and
stiffness", Mr. Lebo decided to proceed with surgical repair
which was scheduled for May 6, 1998.
On May 27, 1998 Dr. Rubbo noted that Mr. Lebo underwent arthrotomy
of his right shoulder. A large rotator cuff tear was noted with
"attachment of the supraspinatus as well as the. subscapularis and
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a portion of the infraspinatus tendon as well. It was described
.as "complex in nature as well as destruction of his bicep tendon".
A "Sta-Tek suture was used for the subscapularis repair". The
rest of the. tendon repair was with non-absorbable sutures.
On June 3,.1998 Mr. Lebo returned one week post. repair of his
right"'rotator cuff. Dr. Rubbo's notes reveal the following:
"Today his wound appeared to be healing nicely. He was changed
from a shoulder immobilizer to a sling and I've instructed him on
pendulum exercises as well as passive range of motion exercises."
Dr. RUbbo. furtl1er recommended that he return in 2 weeks for a
follow up visit when physical therapy would be instituted:
Mr. Lebo returned on June 16, 1998 to Dr. Rubbo,. 3 weeks post
rotator cuff repair for his regularly scheduled appojntment. Mr.
Lebo had previously telephoned Dr. Rubbo's office, speaking to a
covering doctor complaining of severe pain and fever yet not given
an earlier appointment to be .evaluated for this post-operative
problem. Instead he was referred to a general physician to
evaluate him for other medical problems. "He complains of pain in
his right shoulder as well as some fever. He also relates an
episode where he will get numbness and tingling in his arm as well
as a strange feeling in his head and face. He was recently seen
by an internist for this". (Dr. Rubbo notes that his evaluation
by the internist was for evaluation of his episode of numbness and
tingling in his arm and the strange feeling in his head and face.)
On physical examination Dr. Rubbo noted: "So!lle redness to his
incision and appears he may be showing some sort of reaction to
the Vi cry 1 suture, particularly to the superior aspects of the
incision where his knot has been tied". It was Dr. Rubbo's
impression that Mr. Lebo was "3 weeks status post right rotator
cuff repair . with possible staph infe.ction". Mr. . Lebo . was given a
prescription for oral Keflex and asked to return in 2-3 days time
to see if he' shows any improvement or sooner if .his pain and
swelling should ,get worse. "If so, then he may reqUire' IV
antibiotics for his right shoulder" Dr. Rubbo specifically did
<" not ,contact the internist about his evaluation and findings, did
. not request a copy. of or . order a . CBC and sed' rate . or other
cultures of the possible infection he was treating. Furthermore,
Dr. Rubbo did not comment upon the multiple phone calls that were
made to his answering service in the days following surgery.
On June 17, 199.8 Mr. Lebo returned noting that he
pustule. on the, ante~ior aspect of his i~cision
described as qu~te paJ.nful. Purulent materJ.al was
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and it was
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the pustule that was believed to be superficial. Dr. Rubbo
debrided the area and cut. out a large vicryl knot. Aerobic and
anaerobic cultures were obtained. (Patient had already received
apparently 3. doses of antibiotic). ~e was then actmitted for
intravenous antibiotic treatment and daily dressing changes.
On June 22, 1998 Mr. Lebo returned in follow up for his recent
hospitalization where he underwent incision drainage and treatment
of thei~fection of his right shoulder (this was 6 days after Dr.
Rubbo diagnosed a post-operative infection). It was noted that
purulent material was seen underneath the deltoid. It was further
noted: "The. rotator cuff repair that was done 3 weeks ago was
completely undone and Ethibond suture was noted to be loose". The
rotator .cuff was believed to be massive and "irreparable". The
rotator cuff was "debrided to viable tissue and then left alone".
He was to complete a course of intravenous antibiotics with home
.,...__.~__I.v for 40 days and a follow utLwith Dr. Rubbo.
On June 30, 1998 he returned for a second visit and it was noted
that he no longer had the pain that he had had in the past. It
was Dr. Rubbo I s impression that Mr. Lebo was "status post failed
repair of rotator cuff with postoperative infection", He
continued to be followed by Dr. Rubbo and he began physical
therapy.
In September of .1998 he was advised that he could perform light
duty with any job that does not involve the use of his right upper
extremity. .
A final office visit on April 6, 1999 with Dr.. Rubbo notes that he
is 10 months post rotator' cuff repair complicated with infection
postoperatively where the repair came apart. Dr. Rubbo stated:
"He' scorning along as' well as one can expect with this situation.
He could. actively abduct. his right shoulder approximately 30-35
degrees and has marked weakness to his right shoulder", Dr. Rubbo
further stated: "I do not feel there is anything more to offer
him and I will see him back on an as needed basis" . Mr. .Lebo was
placed on perm:anent restriction of light duty and was working at
the country club on a part time basis, driving golf carts at that
time. .
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Polyclinic Medical Center Admission 5/27/98
The records of Mr. Lebo's initial hospitalization at the
Polyclinic Medical Center for repair of his right. should rotator
cuff injury were reviewed. The records reveal thatMr,Lebo was
given three (3) intravenous doses of the broad spectrum antibiotic
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Kefzol as requested by Dr. Rubbo for prophylaxis against
infection.
Preoperative blood work drawn on May 22, 1998 revealed normal
electrolytes, BUN and creatinine as well as blood sugar and
calcium. His alkaline phosphatase was normal at 87 (30-115 normal
range). His Alt (SGOT) level was elevated at 75 (nOrmal 24-65)
and his total bilirubin was mihimally abnormal at 1.1 (normal 0-
1.0) . His GGTT, another test of liver function, was elevated at
190 (normal 5-85). In addition, his preoperative white blood
count. was elevated at 11,900. (He had recently received a total
of 2 cc of intra-articular steroids which may have been a factor
in the elevated white blood count). On differential he had an
increased percentages of neutrophils at 80% (normal 50-70) and 8%
bands. or young neutrophils, with a decreased lymphocyte count of
6% (normal 25-45). .
At, discharge Mr. Lebo was instructed to use ice for 24-48 hours
and to take Vicodin, a narcotic analgesic, 1-2 pills every 4 hours
as . needed for. pain and to resume any regular medication Cthis
implies he should resume Motrin, 800mg. Tablets). He was also
advised to be seen in 10-14 days with Dr. Rubbo. He was given a
prescription for Vicodin by Dr. Rubbo at discharge.
The abnormal liver function studies, elevated white blood count
and left shift required evaluation before elective surgery which
was not done. Furthermore Mr. Lebo should have been alerted to
the abnormal tests so that when he was referred to a general
internist for further evaluation, this information could be taken
into consideration. .
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Medical Rec~rds .of Dr. Georqe Sylvestri
On June 9, 1998 Mr. Lebo presented to Dr. Sylvestri for the first
time for evaluation of an acute complaint. His weight was noted
. to be 178 pounds, blood pressure 134/82 in his left arm and
temperature 100.6. The medical assistant noted the following
history: "Complained of an episode one week ago of severe pain in
head associated with tingling and numbness of body and dizziness--
'. patient on Motrin 800 mg. for pain of right. shoulder--recent
'rotatorcuff'surgery. Headache persists and fever daily".
Dr. Sylvestri noted the following history: "New patient in 20
minute acute slot. 2 weeks status post right shoulder rotator
cuff.. surgery. Orie week headache, facial numbness, shortness of
breath, palpitations. Felt. to be reaction to Motrin so
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discontinued (it appears he may have been. taking toxic doses of
Motrin, so this was' reasonable . consideration) . . Fever to 101
since. Still feels lightheaded. Positive nausea, positive
frontal headache, positive paresthesia of both hands, some pain in
right shoulder, positive cough--dry". .
Dr. Sylvestri noted the following medications: Motrin as needed
and that there was no known allergies except anaphylaxis to
shellfish. Past medical' history was essentially negative except
for left knee surgery in 1996. He was noted to be a non-smoker
and that he was a retired computer specialist who was also.a non-
drinker. . It was also noted in parenthesis: "mother died this
morning at time of. coronary artery bypass grafting".
On physical examination he was anicteric. His extraocular
movements were normal and' his pupils were equal and reactive to
light. His neck was supple. He had no abnormal lymph nodes. His
right shoulder revealed "decreased range. of motion, negative
fluctuance or erythema around wound." His lungs were reported to
be clear, heart was normal without a murmur and abdominal exam was
soft, non-tender without liver or spleen enlargement. He had no
peripheral edema. His cranial nerves were intact.. He was
oriented. His speech was fluent and his motor exam was non-focal.
This repres~nts an extremely comprehensive, general physical
examination and neurologic examination (comprehensive evaluation
of the wound was the responsibility of Dr. Rubbol.Achest x-ray
was done and ill1Illediately reported to be negative. Hemoglobin was
normal at 14.7 and white blood count normal at 8,700. (In fact,
it was reduced from the preoperative elevated white blood count of
11,900). The impression was postoperative fever of unknown origin
and the treatment plan was "check liver function studies, SMA,
sedimentation rate, and hold off antibiotics but follow up in 3
days".
This represents an extremely comprehensive emergency evaluation of
a patient who had an unexplained neurologic event and fever.
Although .Dr. Sylvestri reasonably considered a postoperative
infection in his.differential, his' role as a general internist in
a patient. who was already. receiving ongoing care by the treating
surgeon, was. to evaluate Mr. Lebo for general. systemic or other
causes of his complaints. A general internist would reasonably
expect the treating surgeon to have the expertise and be in the
best position to diagnose a post-operative wound infection. The
treating surgeon alone kne.w of the pre-operative abnormal blood
studies, the steroid injection (increases the risk. of infection)
and the intra-operative findings and surgical technique.
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Mr. Lebo returned 3 days later as requested. His weight was 178.
and his blood pressure was 146/8.0. According to Dr; Sylvestri's
notes, Mr. Lebo remained febrile with temperatures between 99 and
102 but "overall may be a little better". He continued with a
frontal headache and sore neck with no abdominal pain or diarrhea.
Dr. Sylvestri noted an increased sedimentation rate of 63 and
abnormal liver function tests. He further noted that Mr. Lebo
"had received letter from Red Cross in '96 that they could no
longer accept his blood". Dr. Sylvestri also noted that Mr. Lebo
was still with significant right shoulder pain. On physical
examination his temperature W;:iS 99 and he did not appear toxic.
He again was anicteric (no jaundice). His neck was supple and his
lungs were clear and his cardiac exam was normal. His right
shoulder exam revealed tenderness without increased warmth
erythema and that his "wound is clean" (the treating surgeon and
. not the internist would have performed' a detailed exam of the
surgical site).
Dr. Sylvestri's impression was that Mr. Lebo had a postoperative
fever without a source., . He further stated: "Would expect
increased erythema swelling of the wound if joint infected". He
further noted increased abnormal liver function studies were non-
specific but needed follow'up and that the increased sedimentation
rate was non-specific as well. (In the postoperative setting the
sedimentation rate would be elevated.) The treatment plan was not
to give antibiotics for now but to follow up in one week and check
the sedimentation rate and liver function studies again.
Blood work drawn by Dr. Sylvestri on June 9, 1998. revealed white
blood count of 8.,700 with 8.2.5% granulocytes, 3.9% monocytes and
13.6% lymphocytes. His hemoglobin was 14.7 and hematocrit 43.1
and his platelets were normal. This essentially represents a
normal complete blood count with a minimal left shift consistent
with recent surgery and pain. In addition, his sedimentation rate
was noted to be 63 (normal 0-10). Again, the increased
sedimentation rate is a non-specific finding of inflammation and
consistent with a postoperative setting and/or chronic
inflammation from previously undiagnosed liver disease.
Other blood studies revealed a hepatic profile that was abnormal
including an elevated alkaline phosphatase of 275 (normal 30-8.0),
elevated ASP/SGOT of 61 (normal 12-26) and elevated ALT/SGPT 171
(normal 4-31). These abnormal liver function studies are quite
significant and reflect some underlying presumed chronic liver
disease. His. history of previous rej ection for blood donations
suggests he has a chronic undiagnosed liver abnormality and it was
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reasonable and medically appropriate for Dr. Syl vestri to
recommend follow up of this condition (which should have been the
recommendation of Dr. Rubbo pre-operatively as well).
It was reasonable that Dr. Sylvestri would presume that Mr. Lebo's
postoperative care for his shoulder including evaluation of his
wound, complaints of. continued pain, etc. would be done by his
treating physician who he would continue to see his patient on an
ongoing basis. It is ridiculous to suggest that a medical
consultant would focus primarily on the surgical problem. Mr.
Lebo's general medical condition was the purpose of his
presentation to Dr. Sylvestri in the first place.
Mr. Lebo returned to Dr. Rubbo, his treating surgeon, 4 days after
the second visit with Dr. Sylvestri for his routine follow-up
visit, still complaining of pain and fever. For the first time,
redness and a possible reaction to the suture was noted. Dr.
Rubbo suspected an infection and instituted oral antibiotics
without requesting immediate hospitalization. It was not until
one day later when Mr. Lebo returned with the pustule and purulent
material.that Dr. Rubbo then recommended hospitalization.
Mr. Lebo was admitted to the hospital on June 17, 1998 from .or.
Rubbo's office. He was begun on intravenous antibiotic therapy.
However, .because of persistent .drainage, he underwent irrigation
and debridement of the wound on June 22, 1998 when he was noted to
have soft fiber tissues and evidence of infection. He" had a
coagulase negative staph species on a subculture. In consultation
with an infectious disease specialist his antibiotics were changed
to Vancomycin.
It is evident that once admitted to the, hospital another 5
passed before Mr. Lebo received appropriate debridement
antibiotic therapy for 'his wound infection,
On July 6, 1998 Mr. Lebo returned and was treated by Dr. .Sylvestri
for a reaction to his Vancomycin. Dr. Sylvestri consulted the
infectious disease expert as of that visit for advice concerning
his presenting complaints and to recommend appropriate treatment.
days
and
His final office visit on September la, 1998 with Dr. Sylvestri
noted that he had no new complaints and that he had finished his
Vancomycin previously. He was" advised' to return for a yearly
physical examination.
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.Review of Deposition Testimony of Carl Robert Lebo
Mr. Lebo stated that. following his injury at Hershey Country Club
he. was referred by the company doctor to see a Dr. Richards who
began the Motrin therapy. Mr. Lebo stated that .he did well
following the surgery for the first day or so but then during the
. weekend he had an episodewhe.re he experienced "poundihgheadache,
ringing in my ears and lights flashing in my eyes and tingling in
my arms that .lasted fo.r quite awhile". This episode apparently
occurred before the first post-op visit with Dr. Rubbo yet Dr.
Rubbo did. not comment upon this in his evaluation. Mr.. Lebo
telephoned his son, a dentist, asking whether or not this could be
a reaction to the Motrin he was taking for his severe pain. His
son advised him to talk to Dr. Rubbo because he did not think
Motrin would do that. This was the Saturday following the
operation and apparently prior to the first postop visit with Dr.
Rubbo.
Dr. Rubbo i s office . was called and Dr. Rychak was on call. He
suggested. that Mr. Lebo cut back on the Motrin. (Mr. Lebo was
taking 6 800 mg. tablets of Motrin and he was advised to cut back
to 4). This represents an excessive dose of Motrin, that is 4800
mg. a day and. certainly could explain his toxic side effects.
Cutting back to 4 was inappropriate. He should have discontinued
them altogether. Furthermore, Mr. Lebo did have a prescription
for Vicodin already from Dr. Rubbo and he was advised to take
Vicodiri postoperatively at discharge. Mr. Lebo stated that he
started eo have fevers and cold sweats ever since that episode.
Mr. Lebo stated that he did tell Dr. Rubbo about the event and the
fever. It was therefore Dr. Rubbo's responsibility 'to . consider
the broad and appropriate differential diagnosis .of his complaint
arid recommend appropriate evaluation and treatment. Mr. Lebo
. stated that infection never crossed his mind. "I didn't even
think that anything-- an infection. -- would take place." It is
therefore apparent that Dr. Rubbo did not suggest to Mr. Lebo the
possibility that he could have a postoperative infection, given
his complaints. of fever as well as severe shoulder pain.
Following his initial visit with Dr. Rubbo, Mr. Lebo's pain was
getting more iritense and he called Dr. Rubbo's office again on a
Saturday morning. He again . talked to Dr. Rychak, the covering
physician. .Dr. Rychak stated he would speak to Dr. Rubbo about
.his complaints. "He also suggested that I see a doctor or
internist and talk to him about my problem". It is therefore
"evident, based on Mr. Lebo's deposition testimony that Dr. Rubbo's
covering physician did not consider a post-operative infection. and
. 9
08.009
.
had taken the responsibility to refer him to an internist for
:further $valuation and that he would also alert Dr. Rubbo to Mr.
!.ebo's telephone. call.
It is the responsibility of the treating physician to consider
postoperative infection and recommend appropriate evaluation and
treatment. It was the responsibility of the general internist to
exclude other causes . :for Mr. . Lebo's continuing, ongoing
complaints, but not to primarily perform a postoperative
evaluation related to the surgery,' per se.
Mr. Lebo stated that he had difficulty finding other doctors to
handle his case because he was a workman's compensation problem.
Or. Sylvestri, however, was able to see him that following
afternoon immediately after his telephone call for an appointment.
Mr. Lebo. stated in his deposition that he told Dr. Rychak about
"the fever, chills and the pain in the shoulder getting worse, and
the look to him as if it were getting red". He stated Dr. Rychak
clid not suggest to him the cause of his' symptoms. He did state
that Dr. Rychakwanted to talk to Dr. Rubbo about it, however.
Mr. Lebo stated that Dr. Sylvestri did not examine his shoulder
during the visit. Although this statement_ is in contrast to Dr.
5yl vestri r s documented note ,of. evaluating his shoulder, even if.
Or. ,Sylvestri had not removed the ciressing that Dr. Sylvestri's
role in evaluating Mr. Lebo was to consider non-surgical causes of
'his fever and symptoms. . As noted, a comprehensive evaluation of
the surgical site was presumably done by the treating surgeon who
was actively following the patient as well. .
Mr. Lebo stated that Dr. Sylvestri prescribed Vicodin for him.
This . is in ,contrast to Dr. Syl vestri r s deposition testimony.
furthermore . Mr. Lebo was prescribed Vicodin by' Dr. Rubbo as
documented in the discharge summary.
Mr. Lebo' stated that he volunteered to Dr. Sylvestri that he was
turned down for blood donations in the. past and he believed the
reason' was "I had given an excess of 70 pints .of' blood and I
thought maybe that was enough and they didn f t want it. anymore" ~
The . Red Cross would not deny blood without suspicion . of
abnormality and would have alerted Mr.' Lebo to that. . Mr. Lebo's
.:failure to follow up, given the previous letter from the Red
Cross, and evaluate his abnormal liver function studies would have
alerted his subsequent physicians to the possibility of a chronic
infection and need for special precautions in his care and
treatment. Mr. Lebo did nothing following that letter from the
10
D8.010
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.
,!f;
Red Crass.
Mr. "Leba stated that his second pastoperative visit with Dr. Rubba
was a regularly scheduled appaintment and that before this
appaintment he nated aazing, the bandage was stained and it was
red and yellawwith redness pratruding fram the .outside .of his.
bandage. He then saw Dr. Rubba wha began the .oral Keflex
antibiatic as discussed abave. .He alsa recalled being advised ta
put warm campresses on his waund and incisian. He stated that
when the pustules appeared after that visit he telephoned Dr.
Rubba and again received Dr. Rychak wha recammend he return ta the
hospital the fallawing marning. "
Mr. Leba stated that the fallawing marning Dr. Rubba remaved the
bandage and lanced the area. "Everything just expladed aut, pus
and green sediment and blaad". (Dr. Rubba . did nat recognize the
need far haspitalization, IV antibiatics .andpassible debridement
just 24 hours earlier. so how' could a general internist knaw ta
recammend such .treatment a number .of days befare?)
Mr. Leba recall,ed that it was the infectiaus disease cansultant
who recammended the incisian and drainage, nat Dr. Rubba wha
simply treated him with intravenaus antibiatic after the initial
lancing .of the incision. It was alsa the . infectiaus disease
specialist wha . recammended the change in antibiatics ta
. .--vancomycin.u-~._._- ..,...--- .-.....--...-
Mr. Leba's final nate when asked about the care pravided ta him by
Dr. Rubba and why he did not sue Dr. Rubbo he stated: "I think he
did what he was suppased tada. Of caurse, he's nat an internist,
he's just an arthapedic surgean. He was concerned abaut the
repair of theshaulder which was his primary function." This
statement, .of caurse, by Mr. Leba suggests he has na understanding
.of the rale .of the surgean and cansultant general internist.
Dr. Rubba recommended surgery and it was his duty ta apprise Mr.
Leba .of the patential pastaperative camplicatians. It is a
standard part .of. a surgean's care and treatment ta include
pastaperative care andevaluatian' and treatment .of. any surgical
complications. It was nat the role. of a general internistta
provide pastaperative care and treatment far pastaperative
camplicatians. A general, internist is cansulted to. evaluate for
ather general medical problems either in a pre .or postaperative
setting, but again, would nat pravide primary care of the surgical
complications. It is therefare apparent that Mr.. Leba did nat
understand the roles .of his treating physicians and therefare
erroneausly considered Dr. Sylvestri's care as below the standard
11
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of care when, in fact, it was Dr. Rubbo's postoperative care that
should be evaluated as to the appropriateness of the standard of
care and whether that standard of care was breached.
Deposition test:i.mony of Dr. Georqe Sylvestri
Dr. Sylvestri was questioned whether or not he removed the
dressing to look at the wound. He stated: "I know I looked at
the wound because I charted it. I looked at the wound, and the
standard of care when any patient comes in after surgery for
infection would be to have to' look at the wound." He stated he
did not put Mr. Lebo through' a range of motion of his shoulder
because he was a postoperative patient "so you don't usually--I
wouldn't do that".
Dr. Sylvestri stated that he was concerned about a central nervous
system problem because of his headache, fever, numbness and
tingling. He was concerned about illnesses such. as meningitis,
encephalitis and rare disorders. He also was concerned about the
usual post operative infections such as infection of the wound and
the chest. He stated that pneumonia was ruled out by the chest x-
ray and examination and he "was pretty much satisfied that there
was no wound infection". He further stated that: "I did know
that Mr. Lebo had been still under the care of. his orthopedic
surgeon. He had seen him the week before. .."
Dr. Sylvestri considered his abnormal liver function test as
possibly reflecting viral illness. (His hepatitis serologies were
subsequently negative as was some of his liver tests). Dr.
Syl vestri also' considered . a delayed reaction to an anesthetic.
(He had a previous abnormality related to an anesthetic in the
past) . Toxicity' to Motrin .is yet another consideration and the
patient had. already stopped the Motrin. .
Dr. Sylvestri noted that Mr. Lebo returned with a copy of a letter
fr'om the Red Cross and that he apparently. had elevated liver
function test in 1991 on blood donation but follow up in 1993 had
shown normalization. This was further reason for him to be
concerned about Mr. Lebo's fluctuating liver function studies and
the possible caUses contributing to his postoperative problems.
Summary and Conclusions
Carl Lebo was a.. 62 year-ol<;l man when he underwent surgical repair
of a massive right rotator cuff tear. He had a prior history of
abnormal liver function studies and was declined for blood
donation. (Subsequent hepatitis serologies were negative for'
12
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. Hepatitis A, B and C).
He had received 2 cc of intra-articular steroids in the immediate
preoperative period and was noted to have an elevated white blood
count and abnormal .liver function studies preoperatively. . The
intra-articular injection of steroids would increase the risk of
postoperative surgical infection and could contribute to the
abnormal white blood count. His elevated white count and abnormal
liver function studies were not noted or evaluated preoperatively
which would have been standard. He did receive 3 intravenous
doses of prophylactic antibiotics during the perioperative setting
as requested by Dr. Rubbo.
"
Postoperatively he developed increasing shoulder pain, fever,
episodes of headache, numbness and tingling. He was followed by
Dr. Rubbo, his orthopedic surgeon, in the postoperative period who
was apprised of his postoperative difficulties. Furthermore, his
associate, Dr. Rychak, was also apprised by telephone of Mr"
Lebo's ongoing difficulties, including fever and increasing
shoulder pain. At no time in the postoperative setting, until
June 16, was a postoperative infection considered by his treating
or covering orthopedic surgeon. Furthermore, even when an
infection was diagnosed as of June 16, he was treated by his
surgeon with oral antibiotics and not hospitalized for an
additional 24 hours. Following hospitalization there was a delay
of another 5 days before he underwent the necessary surgical
debridement and the change to the appropriate antibiotic.
Dr. Sylvestri was a general internist who evaluated Mr. Lebo for
the first time in the postoperative setting following a suggestion
by Dr. Rychak, Dr. Rubbo's covering physician. Dr. Rychak
suggested that he see an internist for further evaluation.
Although Dr. Sylvestri believed there was no specific evidence of
a wound infection he did consider this in his differential
diagnosis. 'He was also aware that Mr. Lebo was being followed by
Dr. Rubbo. (Dr. Sylvestri would not have knowledge that Mr. Lebo
had received a prior' intra-articular injection of steroids nor
that his preoperative blood studies were abnormal).
Dr. Syl vestri performed a comprehensive internal medicine
evaluation. Dr. Sylvestri noted the abnormal liver function
studies and suggested follow up of his condition. As he did not
diagnose a' bacterial infection, he did not begin antibiotics.
Finally, he reasonably relied on Dr. Rubbo to continue
postoperative care of his shoulder as would be standard.
It appears that Mr. Lebo is suing Dr. Sylvestri believing that Dr.
13
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Syl vestri breached the standard of . care. Mr. Lebo I s belief that
Dr; Rubbo was "only an orthopedic surgeon" and that the general
internist should have diagnosed the postoperative wound infection
and initiated appropriate treatment is, of course, hot reasonable
nor consistent with the practice of internal medicine in providing
consultation and care in a postoperative setting. A general
internist relies on . the surgeon to evaluate and treat
postoperative' problems. related to the actual surgery. The
internist is consulted to provide general medical care and
evaluation and treatment of general medical problems that would
arise. .The wound. infection that was subsequently diagnosed was
certainly not a general medical problem but rather a postoperative
surgical problem.
Both Dr. Rubbo and Dr. Rychak were apprised on a number of
occasions of Mr. Lebo's postoperative problems and yet they failed
to recommend the appropriate and necessary evaluation and
treatment.
If I can be Of any further assistance, please' don't hesitate to
contact me.
Sincerely, 1
~ ~__u____~___,.__
Marie A. Savard, M.D..
MAS/mch
,:
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b
MARIE A. SAVARD, M.D.
421 Owen Road
Wynnewood,PA 19096
April 8, 2003'
,',... -'-~.-;......",~ ...,~ ~
. . - TitephoJiei (810) 18G:.~
FBx:(810)84&4431
~"T;~~nel
. Michael M. Badowski, Esquire
Margolis Edelstein
p. O. Box 932
Harrisburg, P A 17108-0932
RE:. LEBO Vs. SYI,VESTRI, ET AL
DOCKET NO~ 00-2990 CIVIL TERM
-. FILE NO. 57300.4-0082
Dear: Mr. Badowski:
I have reviewed the plaintiff expert reports of Dr. Arnold L. Lentnek and Dr. Robert N. Dunn
and o:ffi:r the fullowing supplement to my original report dated June 28, 2001.
;;
EXPERT REPORT OF ARNOLD L. LENTNEK. MD:
Dr. Lentnek sUmmarized Carl Lebo's surgical history noting only the of1ice visits with
Dr. George SyIvestri, a general internist, and not. noting the nmltiple contacts with Dr. Rubo,
Mr. Lebo's treating surgical physician, and his covering partner had made. Dr. Lentnek
ignored significant parts of Mr. Lebo's post-operative history and therefure :6illed to take into
consideration' the entire context of Mr. Lebo's problems when reviewing the care and
treatment by Dr. Sy1vestri.
Dr. Lentnek .stated tbaJ: Carl Lebo developed rever and .recurrent shoulder pain tbaJ: was
"brought to ..tJ;te attention of the !J!ltient'~ primary care doctor, Dr. Sylvestri." (Dr. George
Sylvestriwas not Mr. Lebo's primary care doctor as be had seen him on June 9 for the first
time, which be subsequently noted in his report, on an urgent basis at the suggestion of Dr.
Rubo's revering physician.) He also :6illed to note that Dr. Sy1vestri kneW that Mr. Lebo was
already under the coritin1rlng postoperative care of Dr. Rubo fur evaluation and trp.Htmp."L
Dr. Sy1vestri Would. have reasonably assumed tbaJ: any . surgical complication Would be
recognized and treated by Dr. Rubo, the smgeori, rather than an internal medicine physician.
(To suggest that a primary care physician is expected to diagnose and treat a postoperative
. woundinfi:ctionmtherthan the smgeoil is absurd.)
1
D9.001
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Dr. Lentnekwent on to reporUn great detail the comprehensive evaluation that Dr. Sylvestri
performed on Mr. Lebo as a general internist. Dr. Lentnek stated that Dr. Sylvestri did not
advise Mr. Lebo to comer with his orthopedic surgeon or even advise the orthopedic surgeon
of theSe new complaints. . (It is evident from Dr. Sy1vestri's deposition testimony, as well as
Mr. Lebo's own actions, that it was well understood that Mr. Lebo was under the ongoing
care. of Dr. Rnbo's office and that Mr. Lebo' . had telephoned his treating surgeons on 8
nmnber of occasions reporting his IlI1IlIerOUS complaints.) Dr. Lentnek also does not note that
Mr. Lebo contacted Dr. Sylvestri's office fur consultation upon the recommendation of
Dr. Rnbo's office. Therefure, Dr. Sylvestri had every reason to believe that' Mr. Lebo was
under the ongoing care of Dr. Rnbo and his. staff and that 8 postoperative complication would
have been diagnosed and treated by Dr. Rnbo' not by Dr. Sy1vestri.
Dr. Lentnek further notes that Dr. Rnbo eva1uated Mr. Lebo on June 16, fuur days after an
office visit with Dr; Sy1vestri. Dr. Rubo noted that Mr. Lebo had 8 "possible postop infuction"
and prescribed . an. oral antibiotic and discharged Mr. Lebo to. home. It is therefure
unreasonable to' suggest that Dr. Sylvestri is responsible fur any delay in . treatment of
Mr. Lebo's. postoperative wo1l!Jd infuction when, in iK:t, Mr. Lebo's surgeon, Dr. Rnbo,
evaluiited Mr. Lebo after Dr. Sylvestri's evaluation and Dr. Rnbo did .not recommend
parenteral antibiotics and surgical drainage (which would have been standard to treat a deep-
seated infection). .
Four days after Dr. Sylvestri's last contact with Mr. Lebe Dr. Rubo was UIICertain of the
diagnosis, and considered only 8 "possible posl-op infuction". It was therefure Dr. Rnbo and
his office staff that was not only responsible fur the 1JIIfurtunate development of the
postop<11aUve infection but as weD responsible fur the delay in the timely and apparently
necessary surgical lre>ot""."rt. of theinfuction. Suggesting that Dr. Sylvestri was responsible
and not Dr. Rnbo and his office is ridiculous.
Twenty-fuur hours after Dr. Rubo's evaluation of Mr. Lebo fur 8 "possible postop infection,"
Mr. Lebo again returned to Dr. Rnbo, and' again there was RigJ>ffiCllTTt delay in the ,;i~ll""s1S
and treatment of Mr. Lebo's deep-seated surgical infuction.
Dr. LentneIc apparently is critical of Dr. Rnbo, the treating surgeon, as weD in his report in
that he notes that ..8 wound infuction nmsl be difIia.,. diAtPA from 8 stitch abscess.' This latter
. proce&'!, rcprGS(,~ a very localized fureign body reaction to suture material is virtually
never associated with rever or systemic symptoms, does not result in wound debiscence, and
resolves readily once the superficial offi:nding suture is. removed. In contrast, 8 wound
infection,. especially severe, may. be . associated with rever and systemic symptoms and usualJy
. requires both local debridement and systemic antibiotics to resolve."
Of note,. Dr. Lentnek . stated in his report that during the June 16' visit with Dr. Rube that
Dr. Rnbo himself stated that "on pbysical ~Rtinn the incision was read' and appears to
be showing some sort of ~ to his Vicryisuture,particularly to the superior ~ of the
incision where his knot has been tied." A surgeon would be expected to make that distinction
2
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"""""'j-o
whereas a primazy care physician who is eVllb~ a patient at the suggestion of a surgeon
certainly would not be expected to make tbat same distinction.
Dr. Lentnek states that the care provided by Dr. Sy1vestri on the initial visit met the standard
of care, yet .be is critical of the fuDowup visit on June 12, stating that his fuilure to begin
broad-spectrum antibiotics led to a further delay ami soft tissue destruction ami long-term
dysfunction. Dr. Rubo 1lUled to diagnose a deep-seated surgical inR:ction fuur days later ami
was therefure primari1y responsible fur the delay in the apparent1y necessary surgical ami
paienkild antibiotic trP.a-. .
Dr. Lentnek's fuilure to mention this obvious :IiIct that Dr. Rullo ami his associates were
primari1y respollSible fur the postoperative care ami the diagnosis of the wound infection was
glaringly ..pvmwl. Jrom reading his expert report.
Ahhough Dr. Lentnek's cuirieulum vitae is not. included, I presume he is an inli:ctious disease
consu1tantand one who would connnonly manage postoperative wound infections in a
bospital setting in consultation with an orthopedic surgeon. or. Sylvestri, however, is a
general internist, . not an infectious disease consultant, ami would not necessarl1y have the
experience ami training ~g in consultation with orthopedic surgeons postoperative
wound infections in a hospital setting. The standard of care fur Dr. Lentnek, if indeed be is an
infectious disease consultant, in a hospital setting is obviously quitedifiilrent as the standard
of care fur Dr. Sy1vestri.
Specifically, an. infectious disease consultant in a hospital setting evalll"ting a postoperative
:fi:ver is obviously consulted to assess the possibility of infection ami postoperative problems
whereas Dr. Sylvestri was clear1y consu1ted to evaluate a :fi:ver that was feh distinct and
unreJated Jrom his postoperative problems, as Dr. Rubo's own staff bad referred him to the
internist fur further evaluation of his complaints (that were therefure presumed not to be of
infectious or an operative complication by Dr. Rullo's staft:).
EXPERT REPORT OF ROBERT N. DUNN. MD:
The expert report of Dr. Robert Dunn was reviewed. Dr. Dunn.is an orthopedic surgeon.
Dr. Dunn notes in his report that the first mention of any evidence of a JlOSSlole infection that
.. Dr. Rubo .was aware of was on. the June 16, 1998, visit (There is evidenceinthedejlosition
t:raIIscripts of Mi. ami Mrs. Lebo that .Dr. Rubo's o:lticewas w;,.,d of his signs ami
symptomslongbefuretheJtmc 16, 1998, visit)
Dr. Dunn notes that by June 17 the use of IV antibiotics "certainly greatIy slowed doWn the
infection, although an open debridP.mAnt was necessary in oIder to clean out and eradicate it...
This open debridement did not occur, however, fur an additional five days becanseof Dr.
Rullo's delay (ami not the :limit of Dr. Sylvestn). Dr. Dwm, the orthopedic expert surgeon,
3
D9.003
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therefure suggests that it was Dr. Rullo that fuiled to recognize the need fur open surgical
debridement and was responsible fur the delay in such treatment. Dr, Dunn does not note in
his report the multiple phone calJs of Mr. Lebo to Dr. Rullo's office complaining of signs and
symptoms that shOuld have prompted his more thorough evaluation by Dr. Ruboand earlier
. diagnosis and treatment.
Dr. Dmm also states that Dr. Rullo "did not take a history of ~atll1'e, ti:ver, chiDs, etc.,
when he saw the patient on June 16 and theJ:eii..." deviated from the accepted standard of
care. By this point, the damage bad already been done." He then notes, "Dr. Sylvestri's
fuilure to appropriately diagnose was a substantial contributing fiu:torin the patient's loss of
his rotator cu:ffrepair."
Again, as noted previously, Dr. Dmm fuiled to note that it was Dr. Rullo's office that was
apprised of his temperature, ti:ver, chills, pain, etc., on a number of QCCaSions, even prior to
Dr. SyIvestri's care and treatment; and thereIDre it was Dr. Rullo's office that was responsible
fur the significant deJayin the diagnosis of inrection and treatment. Furthermore, it was
. because of Dr. Rullo's office being llWlIre of his postoperative rever, chiDs, pain, etc., and
subsequent reiimtl to Dr. SyIvestri that led Dr. SyIvestri to presume that a postoperative
infection bad been considered and excluded by the smgeons and that another llOUt'Ce of ti:ver
was to be investigated :from an internal medicine !",,~p<Niive.
Of note, Dr. Dunn, did not review the deposition testimony of Dr.Sylvestri and Mr. and
Mrs. Lebo and therefure was not aware of the multiple phone calJs and contacts with
Dr. Rullo's office and staff concerning his complaints of postoperative ti:ver, chills, pain, etc.,
and thelefu.c not aware that even prior to Dr. SyIvestri's evaluation that these symptoms
were. ongoing and yet. a deep wound infection was not suspected by his own treating surgical .
staft
Finally, Dr. Dmm was therefure not aware that it was Dr. Rubo's staff that suggested that Mr.
Lebo see. an. internal medicine physician fur eva1uation of his ti:ver, chills, etc. . (AJrj
reasonable patient would understand that if they were refurredby their surgeon to see an
internal medicine or. primary care physician that a surgical problem was excluded. Certainly,
the diagnosis and tI~ of a postoperative wound inreCt.i.on is not. a medical one, but
rather one that is diagnosed and treated under the care of the treating surgeon, su~'in
consll1t;rtjon with irlfi:ctious disease specialists.)
Summary Il.]1rl ~t1clmrinns
"
It remains my belief to a reasonable degree of medical certainty that both Dr. Rubo and Dr.
Rycbak, Dr. Rullo's associate, were apprised. on a number of occasions of Mr. Lebo's
postoperative .' problems, ;""hliling rever' and pain, and yet they fuiled to provide the
~;.ne and necessmy evaluation and b~I,,~.t.. ReJi:ning the patient to a general
intet~t fur care and ll~~of a postoperative wound infection that requires additiomil
surgical management is obviously ridiculous and obviously makes no sense.
4
D9.004
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" .
A1though Mr. Lebo stated in his dc:position that be believed Dr. Sylvestri should have
diagnosed. the infi:ction because Dr. Rubo was "only an orthopedic surgeon." that obviously is
not an Opinionsbared by practicingpbysicians and most patients. Any Jlhysicianor patient
.WOUId understand. that an. Orthopedic surgeon Would '1llll1lllge' postope....tivesurgical
complications and that a general internist (or fiunily doctor) would manage medical problems.
FiDaIly, Dr. Dum, tbe expert Orthopedic surgeon, states that bad Mr. Lebo received earlier
diagnosis and smgical1:lr.>>1..~,,1 of his wound inrection that be would not have ~.,d tbe
damagelJ' that . he bas.. He'.;notes that . Dr. Rubo's fuilure to take a. history . of !ever,' chills; etc.;
.' deviated from tbe accepted~ of care. What be:liii1ed to know, as well, was not only
did Dr. Rubodeviate lfum tbe accepted ~ of Care by fuiling to ask those questions. on
June 16, but that his associate, Dr. Rycbak, was told of those symptoms much earlier (and
prior to Dr. Sy!vestri's evaluation) in Mr. Lebo's postoperative course and yet Dr. Rycbak as
'well:liii1ed toxeco...n .end tbe necessmyand timely treatment that would have prevented loss
ofhis rotator cufffimctioIL .
If! can be of:linther HRoistaooe, please do not hesitate to contact me.
Sincerely,
..., AI'. '" tJ....-A..
-'VV~,- ~
Marie A. Savard, MD
MASI1ml
s
09.005
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"-
CURRICULUM VITAE
MARIE SAVARD M.D.
ADDRESS:
421 Owen Road
Wynn,ewood, P A 19096
phone (610) 896-1995
fax (610) 649-0431
. email:SavardSys@AOL.com
DATE OF aIRTH:
PLACE OF BIRTHl
CITIZENSHIP:
October 25, 1949
York, PA
U.S.A.
MARITAL STATUS:
Married to Bradley W. Fenton, M.D.
CHILDREN:
Zachary, 1014180
Aaron & Benjamin, 1118/82
EDUCATION:
1967-1970
1968-72
. '..-" .-.> "
Wi";
. R.N. Hospital of the University of Pennsylvania School of
Nursing
B.S.N., University of Pennsylvania
1972-76
M.D., University of Pennsylvania School ofMedi!)ine
POST GRADUATE. TRAINING AND FELLOWSHIP APPOINTMENTS:
1976.79 .
Reside.iiCy, Internal Medicine
Hospital of the University of Pennsylvania .
.l1ellow; General Internal Medicine
University of Colorado Health Sciences center
1979-81
;"
1980-82
Ma$ter of Community HC!Ilth program .
University of Colorado Health Sciences Center
ACADEMIC APPOINTMENTS:
D10.001
- ,
"j:
2
1994-1996
Instructor, Clinical Medicirie
UnIversity of Colorado Health ScienCes Center
Assistant Clinical Professor of Medicine
University of Pennsylvania School of Medicine
Associate Clinical Professor of Medicine
University ofPeimsylvania School of Medicine
Associate ProfessorofMe&cine .
Medical College ofpennsylvanialHahnemann
U~versity .
1979-81
1981~89
1989-2000
1995-199-
Associate Clinical Professor of MediCine
Jefferson Medical College
1981-88
Section Chief. General Internal Medicine
Pennsylvania Hospital Department of Medicine
,I
:!
:1
:1
II
'I
II
:1
II
il
:1
:1
'I
I
HOSPITAL AND ADMINISTRATIVE APPOINTMENTS:
1988-present
Medical Director and primary care physician to Cabrini Retirement
COiDIllunity and Nursing Home
Attending Staff -. Peimsylvania Hospital
MedicalDfrector, Quality Assurance and UtiliZation Review,
'PCrinsylvania Hospital
1994through1996 . MedicalDirector,CenterforWomen'sHealth . ..... .
Medical. College of PennsylvanialHahnemann Hospital
1982~present
. 1993 and 1994
."
1997-1999
1998-present
1998
.' Founder of Savard Systems, patient education and consulting company
D10.002
;"
~.
~ . ..l'tJ'
3
2000-
Senior Medical Consultant to Lifetime Television program, Strong
Medicine (help write and edit the scripts)
. Pennsylvania - MD 020735-E
LICENSURE:
. SPECIALTY CERTIFICATION:
1980
American Board ofInternaI Medicine
HONORS AND AWARDS:
1970 Letitia White Award, Highest Graduate in Nursing School Class, Hospital of the
University ofPennsyl~
1974 Alpha Omega Alpha National Medical Honor Society
1976 Awarded Recognitionfor the Highest Female Graduate Academic
Record in the class, University of Pennsylvania School of Medicine
1980's - 1996 PhiIadelphiaMi\gI17ine, Top Doc in Philadelphia
MEMBERSIllP IN PROFESSIONAL SOCIETIES:
American College of Physicians
Society for General Intemal Medicine
American Medical Women's Association
Eastern Pennsylvania Osteoporosis Society, Founding Member
EDITORIAL POSITIONS:
1986-88
American Cancer Society Newsletter
National Board oflnternaI Medicine, Prototype Scoring Committee
.,
1986-90
1993-
1994-1996
University of Pennsylvania Trustees Council of Women
MCP Delegate to the National Academy of Women's Health Education
American Board oflntemal medicine "Gold Standard" Panel for
010.003
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4
. Recertification Exam of Geneml Internists
1991-1996 Medical Secretary, American Board of Internal Medicine
Writing and Review ofIntema1 Medicine Questions, for Recertification
Exam
. Pretest examination committee
1995-1996 Subcommittee, ABIM, Defining Clinical Competency and Women's
Health
1995-1996 Women's Dav Malzazine. Regular column writer & editor ofhea1th issues.
PUBLICATIONS:
On,,",91 Panen:
Savard-Fenton, M.A., Fenton, B., Reller, B., Lauer, B., Byyny, R., Single-Dose Amoxici1Iin
Therapy with Follow-Up Urine Culture: Effective Initial Management for Acute Uncomplicated
Urinary Tract Infection. AJM 73:808,1982
Savard, Marie A Et al., PostmenopaUsal Osteoporosis: Diagnosis, Treatment and Prevention
Journal of Clinical Outcomes Man=ent. Vol. 3, no. 5. September/October 1996 pp. 37-54.
ABIM Subcommittee on Clinical Competencies and Women's Health (M.Savard et al) Core
Comnetencies in Women's Health: What Internists Need To Know Excerpta Medica 1997
Abstracts:
Savard-Fenton, M.A.; Fenton, B., Efficacy of Single-Dose Amoxicillin Therapy With Follow-Up
Urine Cultures inAcute Urinary Tract Infection. Clinical Research 29:48A, 1981
Savard-Fenton, M.A, Fenton, B., Byyny, R. Cost-Effectiveness of Single-Dose Amoxicillin
Therapy with Follow-Up Dipslide Culture in Acute Urinary Tract Infection. Clinical ResearCh
29,1981.
Wigton, R.S;, Fenton, B., Savard-Fenton, M.A., Steinmann, w.e. Do Clinical Presentation or the
Antibody Coated Bacteria Test (ACB) Predict Treatment Failure in Urinary Tract Infection?
Presented at SREPCIMNational Meeting, 1985.
Book Chanters:
010.004
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5
Savard-Fenton, M.A., Goals of Primary Care Training. Chapter 4, The Education of the General
InterniSt. T. Thompson and R. Byyny (ed.)Ovid Bell Press, Inc., Missouri, 1982 pp 29035.
Savard-Fenton, M.A., Incorporating Patient Education Activities Into The PractiCe of Primary
Care Residents. Chapter 13, The Education of the General Internist. T. ThompSon, and R.
Byyny, (ed.) Ovid Bell Press, Inc., Missouri, 1982, pp 113-125.
Savard-Fenton, M.A., The Education of Primary Care Residents in Team Health Care Delivery.
Chapter 14. The Education of the General Internist. T. Thompson and R. Byyny, (ed.) Ovid Bell
Press, Inc., Missouri, 1982, pp 126-133.
Savard-Fenton, M.A., The Female Patient. in Cardiovascu1ar Health and Disease in Women.
Pam Douglas (cd.) W. B. Sanders Co., Philadelphia, 1993, pp 1-2.
Savard, M.A., The Religious Community as Family: The Primary Care Physician's perspective,
in Grieco, Ai, Kramer EJ, Phelan, G& Glassman, KS (editors), Patient Education and the
Familv. NY, Springer, 1997 .
Auerbach, MI, Kramer, EJ, Phelan, G, Savard, M & Palacios, D, Educational Strategies. in
Grieco, Ai, Kramer, EJ, Phelan, G & Glassman, KS (editors) Patient Education and the Familv.
NY, Springer, 1997
Books
Savard, Marie, The Savard Health Record: Six Steps to Managing Your Health Care, VA. Tune-
Life, Inc. April 2000 "
Savard, Marie with Sandra Forsythe, How To Save Your Own Life: The Savard System of
Managing and Controlling Your Health Care, NY, Warner Books, May 2000
WEB Programs
Savard, M.D., Marie and Frances Batzer, M.D. for Meniscus Educational Institute, continuing
medical education program; Medical Decision Making and Hormone Replacement Therapy.
Savard, M.D., et aI. US Oncology Group; Risk Reduction Therapy in Breast Cancer.
Lectures: (not inClusive or current list)
Grand Rounds. Hospital of the University of Pennsylvania and Pennsylvania Hospital, Urinary
Tract Infections.
D10.005
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6
Women's Health Issues including: Hormone Replacement Therapy, Osteoporosis, Psychosocial
Issues, Vaginitis, Urinary Tract Infections, Coronary Artery Disease, Screening, and
Mammography.
Penn Trustees Council. Umversity Women Groups
World Presidents' Organ17J1non Meeting in Florence 1992; Hong Kong, 1994
Senator Allison Schwartz: Yearly Conference on Women's Health, Lecture on Women's Health
Humanities and Medical Literature: Healing and the Doctor-Patient Relationship Workshop.
Meeting of American Academy of Family Practice.
American Psychiatric Association Centennial Meeting, Lecture on Women's Health Care Issues.
Osteoporosis for the Primary Care Physician, a CME Accredited Program
Global Health Alliance Keynote address in Beijing, Fourth World Conference on Women 1995,
"We11ness in the Mature Woman"
Rome 1999 Women's Health at the Dawn of the New Millenium
Frequent lectures and seminars on patient empowerment and health management
Written Testimony Conference on Medical Mistakes and Patient Safety in Washington,
September 2000
OTHER ACTIVITIES:
1992-1994
Advisor on Health Care to Congresswoman Marjorie Margolies
Mezvinsky.
1995
Technical Advisor, World Health Organization, Fourth World
Conference on Women, Beijing
1997- present
Pennsylvania Judicial Evaluation Commission.
Pennsylvania Commission For Women, appointment Governor
. Ridge
,
1996-1997
Revision 1101
010.006
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CERTIFICATE OF SERVICE
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I HEREBY CERTIFY that I served a true and correct copy of the foregoing
on all counsel of record via courier (hand delivery) on thej&/t:day Of~
2005, to the below listed address:
April 1. Strang-Kutay, Esquire
GOLDBERG, KATZMAN & SHIPMAN, P.C.
320 Market Street
P.O. Box 1268
Harrisburg, PA 17108,1268
(Counsel for Plaintiffs)
MARGOLIS EDELSTEIN
By: 12tlM-~q}t.; ~
Se etary
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CARL R. LEBO and BEVERLY
ANN LEBO, his wife,
Plaintiffs
vs.
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
00-2990 CIVIL
CIVIL ACTION - LAW
GEORGE SYL VESTRI, M.D. and
COWLEY MEDICAL
ASSOCIATES, P.C.,
Defendants
JURY TRIAL DEMANDED
IN RE: PRETRIAL CONFERENCE
Present at a pretrial conference held this date were David Steckel, Esquire, attorney for
the plaintiffs, and Michael Badowski, Esquire, attorney for the defendants.
This is a medical malpractice case in which the plaintiff contends that Dr. Sylvestri' s
treatment of him following shoulder surgery, and particularly the doctor's failure to detect and
treat infection, fell below the standard of care. There are no particularly unusual or complicated
procedural or evidentiary issues in the case.
The trial should be of approximately four days' duration. Dr. Rubbo, who performed the
shoulder surgery, is available to testify on Tuesday afternoon of the trial week and counsel
agreed that they would accommodate his schedule even if it meant taking Dr. Rubbo's testimony
out of order.
The parties will share the usual number of juror challenges.
David Steckel, Esquire
For the Plaintiffs
~L
June 29, 2005
Michael M. Badowski, Esquire
For the Defendants
Court Administrator
'If3
ALliD-OFFICE
OF THE PROTHONOTARY
2005 JUN 29 PH 2: 3L!
CUMBEfiLi'i'iO COUNTY
PENNSYLVANIA
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April L Strang-Kutay, Esquire
Attorney L D, No" 46728
David M. Steckel, Esquire
Attorney LD, No. 82340
GOLDBERG KATZMAN, P.c.
320 Market Street
P,O, Box 1268
Harrisburg, PA 17108,1268
Telephone: (717) 234-4161
Attorneys for Plaintiff
CARL R. LEBO and
BEVERLY ANN LEBO, His Wife,
Plaintiffs
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION, LAW
v.
NO. 00-2990 Civil Term
GEORGE SYLVESTRI, M.D. and
COWLEY MEDICAL ASSOCIATES, P.C.,:
Defendants
JURY TRIAL DEMANDED
-(L. /Rro..eci ~e...
fE'fITUm TO DISCONTINUE
TO THE OFFICE OF THE CUMBERLAND COUNTY PROTHONOTARY:
Please be advised that, pursuant to Pa. R.C.P. No. 229(a), Plaintiffs, Carl R. Lebo and
Beverly Ann Lebo, are voluntarily discontinuing the above captioned action with prejudice.
Respectfully submitted,
GOLDBERG KATZMAN, P.C.
By:
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April 1. Strang-Kutay, Esquire
Attorney LD" # 46728
David M. Steckel, Esquire
Attorney LD. # 82340
320 Market Street, P. O. Box 1268
Harrisburg, Pennsylvania 17108-1268
(717) 234-4161
Attorneys for Plaintiffs
Date: July 12, 2005
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CERTIFICATE OF SERVICE
I HEREBY CERTIFY that I served a true and correct copy of the foregoing document
upon all parties or counsel of record by depositing a copy of same in the United States Mail at
Harrisburg, Pennsylvania, with Certified, first-class postage prepaid, addressed to the following:
Michael M. Badowski, Esquire
Margolis Edelstein
3510 Trindle Road
Camp Hill, PA 17011
By:
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April L. Strang-Kutay, Esquire
Attorney J.D. No. 46728
David M. Steckel, Esquire
Attorney 1.0. No. 82340
320 Market Street, P. O. Box 1268
Harrisburg, P A 17108-1268
(717) 234-4161
Attorneys for Plaintiffs
Date: July 12,2005
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