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Home My WebLink About97-00376 't ~ ~ ~ ~ ~ ." q o .:i -....{ '.'~". ~ J 4i' '(. ",f!-. tr'~'": r t.. I \. (~ , I ! i - ! . . :;) - <::J ~I t'-- 0- . ~ ~ " , " . '~ c; \ ' N '"' ~<) I'\) s: ..:r C. ~ - ',' I-' M "5 tv') I~ -< ,.....'r;, ~ ~ - :J:~ ..... a: ":1~ ~ '> ".. N .:i/) r'" ~ rL.- ~] ;~ r-J c.. N - ,'2 f'Q Q ~ y, .-- .t1uJ f!.: ~ -.!1tl. - -l l5 r- '5 ~~ '" G ~ '< ~ ~ ~ liP! 1 I i~ i. i · I -, ~ ... .;t -...... ~ "" , ,. . Commonwealth of Pennsylvania County of Cumberland Brenda J. Lucas Court 01 Gommoll Pleas VI. No. 97-376 Civil Term ---------------------------------..--- 19____ George R. Roth, Jr., M.D. Barry B. Moore, M.D. and Neurological Surgery, LTD 920 Century Dr. Mechanicsburg PA 17055 III _ _ _.r; }_Y. }._l: _ _~~_1:!_~~__: _ _~ ~_~_ _ _ _m_m __ __ George R. roth, Jr., M.D., Barry B. Moore, M.D. and Neurological Surgery, LTD: To _____________________________________________ You ~re hereby notilied that Brenda J. Lucas .------------------------------------------------.------------------------------------------------ the PlaintiH s . . Summons - Civil Action - Law ha commenced an acuon In ...____.._.____......_....______..__.............__........_________....___....... agaiml you which you are required 10 delend or a delault judgment may be entered against you. (SEAL) Lawrence E. Welker January 22, 97 Date ______________________________ 19____ .------------------p~th:~~~------------------ B, --u;J~-i!.f1_!d.~---- . ~Ie~i n ZlIlCl 1Il ~ 1-" CD III CD 11 < C 11 0 CD 1-" 11 11 11 ::s '" ..... O'<lQ 3 -J ..... CD 0, I ~ '(f.~ > o 1Il III w 0 r lQ. :.! -J ..... 1-" . c.., ,'" 1-" 03: > ~ Ul:<~ 0 1ll0:.! n if ::s .....00 ~ t"' 1-" 8l!l~ r I? 11..... C < ] ~ l/lCD::r 0 1-" r c' . III ..... S III t"' 11 en III S' lQ3:c.., t-l ..... ,c, :IE CD' 11 CD Cl . 11 0 . I~ ..... ' '< . . . R III 3: - t"'::S . r t-lo,O . 0 SHERIFF'S RETURN - REGULAR CAS~ NOI 1997-00379 P CO""ONW~ALTH OF P~NNSYLVANIAI COUNTY OF CU"B~RLAND !39J~DOS~~lLc_QlJJ':JtN_ .!!~f. VS, !3!)I.DOf>~R _T.QQ.lLPQIHtL_A!:l ~~ __ _L.\COB BAKEL__,___ ______ ,___,_"".. J Shariff or Deputy Sheriff of CU"DERLANO County, Pennsylvania, who being duly sworn according to law, says, the within PROTECTION FRO" ABUSE was served upon BOLDOSSER TODD DOUGLAS the defendant, at 1650100 HOURS, on the ~ day of Januarv 192Z, at 30A GASOLINE AI.LEY CARLISLE,. PA 17013 .CU"BERLAND County, Pennsylvania, by handing to TODD O. BOLDOSSSER SR. a true and attested copy of the PROTECTION FRO" ABUSE together with TE"PORARY PROTECTION ORDER NOTICE AND PETITION and at the same time directing His attention to the content. thereof. . Shariff's COStSI Docketing Service Affidavit Surcharge 18.00 3.10 .00 2.00 1023.110 So ans~ersl~ , /~~ rga'~~<~ R. Thomas K11ne, ~ er % 00/00/0000 by r~~e~~;;;:;% Sworn and~subscribe~to befora me this-l.~...::=_ day of ~~i------ 19 1'1 A. D. C"fr ~om~~~tar~' c ~":) ,-) _..J ..., -,'1 ."'... '-1 r ') , 1-,1 rJ (,'.' ':') -- I ',l . ..'~ ~ -.' :,,') .,. ;In r~? ", ',,1 - ,~ (.) -., Attorneys for Defendants, GEORGE R. ROTH, JR., M.D., BARRY B. MOORE, M.D. and NEUROLOGICAL SURGERY, LTD. 2215 Forest Hills Drive - Suite 35 P.O. Box 6600 Harrisburg, PA 17112-0600 (717) 541-0400 RULE TO THE PLAINTIFFS: You are hereby ordered and directed to file your Complaint against Defendant in the above-captioned matter within twenty (20) days of service of this Rule against you or suffer judgment non pros. Date: J~_.b J /qq7 , Ijj~'l~ O/,~~ to honotary,~and County J~~I'-<Z- r L7p02U'lJ, VfJ .. (. \.!~ " ( ,..j .. .,;. -., ! ",,! C. J ; :'"l , - ,..- I ,r-!:J ~:: (.; , " r: ''0 .;9 , ~~B " .. i;J ~ ..]1 -, i"..) ?(j -: 1.J -;; " S. WALT~R FOULKROD, III, ESQUIRE pa, Supreme Court I.D, 110, 01982 S. WALTER FOULKROD, IV, ESQUIRE Pa. Supreme Court I,D. No, 6520' ANDREW H, FOULKROD, ESQUIRE Pa, supreme Court I.D. 110. "394 S. WALTER FOULKROD, III' ASSOCIATES 2215 Forest Hills Drive - suite 35 Post Ottice Box 6600 Harrisburg, pennsylvania 1'112-0600 Telephone: ('l'J 541-0400 Fax: (11'1 541-112' Attorneys tor: GEORGE R. ROTH, JR" M.D" BARRY B, MOORE, M,D, and NEUROLOG:CAL SURGERY, LTD. BRENDJI. J. LUCAS, plaintiff IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA v. DOCKET NO. 97-376 GEORGE R. ROTH, JR., M.D.: BARRY B. MOORE, M.D., and: NEUROLOGICAL SURGERY, LTD. , ,-. .':J ,:':') ;:. -.l 11 -- , . ..." :-:-! (' ~, l~ :? .- - I ..tit I"; ,0 : ,::t? - ...:~ ~3 , ' .n : .':-.' -,m ~ :-:! -- ''':> ~=? - ,0> -, Defendants JURY TRIAL DEMANDED PRAECIPE FOR RULE TO FILE COMPLAINT TO: PROTHONOTJI~Y OF CUMBERLAND COUNTY, PENNSYLVANIA P~ease issue a Rule upon plaintiffs to file a c~mplaint within twenty (20) days from service hereof or suffe~ judgment ~ pr::s. S, WALTER FOULKROD, III & ~SSOC!ATES .4iL~J~i:'&t.~ S. WJI.L TER FOUa;~{ I I I ~ ~ Attorney 1.0. No. 01982 S, WALTER FOULKROD, IV Attorney 1.0. No. 65207 ANDREW H. FOULKROD Attorney 1.0. No. 77394 - Date: //.~?;;;)7' , By: \ CERTIFICATE OF SERVICE I HEREBY CERTIFY that true and correct copies of the foregoing RULE TO FILE COMPLAINT, was served upon all counsel of record this SjL~ay of 3-\ -I ( (, ,,, , 1997, by depositing said I copy in the United States Mail at'Harrisburg, Pennsylvania, postage prepaid, first class delivery, and addressed as follows: Archie V. Diveglia, Esquire Diveglia & Kaylor, P.C. 119 Locust Street Harrisburg, PA 17101 By: , i f' ~ ~.., ~ I ',J .. "Tl I -, " -, I , ) ;.., ," ,,'J -, .;) . , .... " I , ~'J i ) I V) 1:"'1 ! , ! /- , I , - . CERTIFICATE OF SERVICE I HEREBY CERTIFY that true and correct copies of the foregoing NOTICE OF INTENT TO ENTER JUDGMENT NON PROS PURSUANT TO Pa.R.C.P. 237.1(a) (2) were served upon all counsel of record this )//4 day ~lrl.L"-"'n 1997, by depositing said copy in the / United States Mail at Harrisburg, Pennsylvania, postage prepaid, first class delivery, and addressed as follows: Archie V. Diveglia, Esquire Diveglia & Kaylor, P.C. 119 Locust Street Harrisburg, PA 17101 III ASSOCIATES ,~, >-~',L. tary " - " ..0 (') c:; -.l -" " ...., ,-, ~t;~ ,'1 :-ii;n :'~ ,m . ' 'D .j6 (/.:- r~' ~ ::-: ''''I ,'. -, -', ,~C'> . .,of ;OJ '.In :'..;..a{. ..J '.... . - J 5J ) (::I '< BRBHDA J. LUCAS plaintiff I III TUB COURT 01' COMHOII PLUS I CUHBBRLAIfD COUNTY, PBIflfSYLVAlfIA I I 110. 97-37G I I I I CIVIL ACTIOII - LAW I I I JURY TRIAL DBMANDBD v. OBOROB R. ROTH, JR., M.D., BARRY B. MOORB, M.D. and IlBUROLOOICAL SUROBRY, LTD Defendant COMPLAINT ~ AND NOW, this q day of May, 1997, comes the Plaintiff, by her attorneys, Diveqlia & Kaylor, P.C., and in support thereof avers as follows: 1. The plaintiff Brenda J. Lucas (formerly Shearer) is an adult individual and resides at 2081 Gramercy Place, Hummelstown, Pennsylvania 17036. 2. The Defendant George R. Roth, Jr., M.D. is a Pennsylvania licensed physician who has an office located at 920 Century Drive, Mechanicsburg, Pennsylvania 17055. 3. The Defendant Barry B. Moore, M.D. is a Pennsylvania licensed physician who has office located at 920 Century Drive, Mechanicsburq, Pennsylvania 17055. t ;, 4. The Defendant Neurological Associates, LTD is or was a professional corporation organized under the law of the Commonwealth of Pennsylvania and has a business address at 920 Century Drive, Mechanicsburg, Pennsylvania 17055. 5. On January 3, 1995, Plaintiff had an initial visit with Defendant George R. Roth, Jr., M.D. for low back discomfort and right lower extremity pain which first began approximately June 1992, and continued intermittently through and including January 3, 1995. Plaintiff had received treatment from other medical providers previously. 6. After reviewing diagnostic test results, it was determined by the Defendant George R. Roth, Jr., M.D. that Plaintiff should incur surgery to her low back. 7. Surgery was performed by Defendant George R. Roth, Jr. on January 26, 1995, and involved a lumbar laminectomy involving the L-4, L-5 levels. Additionally, the L-5-S-1 nerve roots were bilaterally decompressed with the operative report indicating that the operation performed was as follows, "Lumbar Laminectomy L4 and L5, Bilateral Decompression of L5 and Sl Nerve Roots, Removal of Recurrent Right L4-5 Disc Protrusion, Negative 2 Exploration L5-S1 Level." The discharge summary further indicated, "Lysis of Perineural Adhesions Right L4-5 Level 1/26/95." B. Plaintiff was discharged from the Harrisburg Hospital on January 30, 1995, but was incurring weakness, tingling and numbness of her right toe. This was reported directly to Defendant Dr. Barry Moore on the day of discharge. 9. On February 6, 1995, Plaintiff called the office of Dr. George Roth and spoke to the office nurse with complaints of pain and was given a prescription for Decadron. Subsequent to taking the Decadron, she again called the office of Dr. Roth indicating complaints of continuing pain. 10. On February 9, 1995, Plaintiff incurred right foot drop and reported right foot difficulties to an office nurse of Neurological Surgery, LTD. Plaintiff was advised to come into the office on the following day. 11. On February 10, 1995, Plaintiff was examined at the office by the Defendant Dr. George Roth at which time Defendant Roth observed that Plaintiff had right foot drop. 3 r 12. On February 10, 1995, an MRI and a re-take was performed of the Plaintiff which revealed, among other things a fluid collection measuring 5 cm in length by 1.5 cm in AP dimension. 13. Subsequent to a repeat MRI, Dr. Roth called Plaintiff and indicated that further surgery was needed. He also indicated that he, Dr. George Roth, would not be available and that the operation would be performed by Dr. Barry Moore. 14. Said surgery was performed on February 15, 1995, by the Defendant Dr. Barry Moore, who removed what he described as a large right L4-5 disc extrusion of one and a half inches by three inches in size as well as several other small pieces. 15. Despite the operative procedure of February 15, 1995, Plaintiff continued to incur foot drop. 16. subsequent to the discharge from the hospital on February 23, 1995, Plaintiff incurred excruciating headaches and increasing severe back pain radiating down her right leg. 17. Plaintiff incurred an MRI on April 3, 1995, that 4 ! revealed fluid collection at the posterior and right perithecal sac region at the site of the laminectomy surgery that had increased in size since the February 10, 1995, MRI. 18. Despite of complaints of continuing pain to Dr. Roth, continued foot drop and headaches, Plaintiff was offered no remedial measures or diagnostic testing by the Defendant George Roth and, in fact, was released to return to work by him. 19. Plaintiff continued to see Dr. Roth for further consults and visits including a visit of May 26, 1995, when she continued to complain of low back pain, radicular pain, and numbness of her right lower leg and right foot. The foot drop remained. 20. Plaintiff returned to the office of Neurological Surgery, LTD. on June 23, 1995, with continued complaints of right lower back pain radiating into her right buttock and expressed concern to the Defendant Dr. Barry Moore as to fluid collection in the area of her laminectomy. Dr. Moore indicated an assurance that this was not a fluid collection in the area of the laminectomy, but rather, a small space where the bone had been removed and discharged her from further visits for two 5 COUNT I i I ! I BRENDA J. LUCAS v. GBORGB R. ROTH, JR., K.D. 30. paragraph one through twenty-nine are incorporated herein and made a part hereof. 31. The losses, damages and suffering of Brenda J. Lucas were caused by the Defendant, George R. Roth, Jr., M.D., whose negligent acts consist of the following: a. His operative procedure performed on January 26, 1995, failed to remove sufficient disc material at the L4-5 level and was more extensive than it needed to be. specificallY, he performed surgery at the L5-S1 disc space level when there was a lack of indications for said surgery at this level. The performance of the surgery at the L5- Sl level with a lack of indication for said surgery constitutes the failure to follow the applicable standards of care and was a substantial causal factor in the development of the pseudomeningocele. b. Despite knowledge that the plaintiff had incurred foot drop on February 9th, he delayed in performing operative procedures that would have decompressed the nerve roots involved. This delay was a deviation in the standard of care and was a substantial causal factor in increasing the risk of harm that the plaintiff would incur a permanent foot drop. c. He failed to follow the applicable standard of care in that he ignored diagnostic testing which was indicating that the plaintiff was incurring a 8 . . pseudomeningocele and that she was in need of surgery to repair the same. His failure to act promptly to repair the pseudomeningocele of the Plaintiff increased the risk of harm to the Plaintiff and created a permanency in the degree of pain as well as increasing the risk of harm that her foot drop would remain permanent. This failure to promptly diagnose and repair the pseudomeningocele is a deviation in the standard of care. WHEREFORE, Plaintiff demand jUdgment against the Defendant, George R. Roth, Jr., M.D., in an amount in excess of $50,000.00. COUNT II BRBHDA J. LUCAS v. BARRY B. HOORB, H.D. 32. Paragraph one through twenty-nine are incorporated herein and made a part hereof. 33. The losses, damages and suffering of Brenda J. Lucas were caused by the Defendant, Barry B. Moore, M.D., whose negligent acts consist of the following: a. Despite knowledge that the Plaintiff had incurred foot drop on February 9th, he delayed in performing operative procedures that would have decompressed the nerve roots involved. This delay was a deviation in the standard of care and was a substantial causal factor in increasing the risk of harm that the Plaintiff would incur a permanent 9 . t . :~ VERIJ'ICATION The foregoing complaint is based upon information which has been gathered by my counsel in the preparation of the lawsuit. I have read the complaint and to the extent that it is based upon information which I have given to my counsel, it is true and correct to the best of my knowledge, information and belief. To the extent that the content is that of counsel, I have relied upon counsel in making this verification. This statement and verification are made subject to the penalties of Pa.C.S. section 4904 relating to unsworn falsification to authorities, which provides that if I make knowingly false averments, I may be subject to criminal penalties. '- s- 'i - ~ 7 ~._.Sl~r u,~ Brenda J. L as Date . -. . (") ~ 0 ~ -rt -vi;. ::c :;l ~. ~',\ -< '~i :1' 7-l - ~.. I" ') 1":1. :) :c:- ...., .C3;j -;-r ::;; Ze- .)~ ;:- ~l'~ r:- ~ S! ., ::l ~ C1' history elicited from the patient. A true and correct copy of that letter is attached hereto, herein incorporated by reference and marked Exhibit "A." It is admitted that the Plaintiff had received treatment from other medical care providers. It is admitted that on August 11, 1993 Dr. DeMuth performed a diskectomy at L4-5 on the right and L5-S1 on the left. 6-7. Admitted. B. Denied. After reasonable investigation, Answering Defendants do not have information sufficient to form a belief as to the accuracy or inaccuracy of the corresponding averment of Plaintiff's Complaint and the same is accordingly denied. 9. Admitted in part and denied in part. It is specifically denied that the second telephone call after taking Decadron was on February 6. To the contrary, that telephone call was on February 7, 1995. 10. Admitted in part and denied in part. It is admitted that the patient experienced a right foot drop and reported the foot drop to N/s. It is specifically denied that this occurred on February 9. Rather, this telephone call occurred on February 10 and Dr. Roth arranged to have a stat MRI performed that day. It is admitted that the patient was also seen in the office on February 10. 11. Admitted. 12. Admitted in part and denied in part. It is admitted that on February 10, 1995 two MRIs were imaged at the Magnetic Imaging Center. It is admitted that the radiologist interpreted the film as showing a small collection of fluid posterior to the 2 thecal sac extending from approximately the superior endplate of L4 to the inferior endplate of L5. After reasonable investigation, Answering Defendants are unable to form a belief as to the accuracy or inaccuracy of the interpretation by the radiologist and subject to inspection of the MRIs, such averment is specifically denied. 13. Admitted. 14. Admitted in part and denied in part. It is admitted that Dr. Moore took the patient to the operating room on February 15 and resected what he described as a "huge disc extrusion with an extremely huge fragment lying in the lateral recess just above the L5 nerve root. This fragment extended under the dura all the way up to the L3-4 junction and was severely compressing the L5 nerve root at its take off. This large fragment was totally freed up by reflecting the dura away and removing much of the medial aspect of the facet at L4-5 and the lateral recess at L4." Accordingly, it is not clear that the disc extrusion emanated from the L4-5 interspace. It is clear that it was found at that location as well as other locations. 15. Admitted. By way of further answer, when Dr. Moore re- explored the anatomy where Dr. Roth had performed the surgery on January 26, 1995 no fluid collection was found. 16. Denied as stated. The patient was not discharged from the hospital following Dr. Moore's surgery on February 15, 1995. Rather, the patient was transferred to HealthSouth Rehabilitation Hospital on February 23, 1995, It is specifically denied that the patient experienced increasing severe back pain radiating 3 down her right leg. To the contrary, she reported some continuing low back pain primarily involving the right posterior lateral buttock and the right thigh region to about the knee. This was first reported during the HealthSouth admission. By way of further answer, it is specifically denied that the Plaintiff had incurred excruciating headaches. 17. Admitted in part and denied in part. It is admitted that an MRI was performed on April 3, 1995 at Magnetic Imaging Center, Trindle Road, Mechanicsburg. It is further admitted that that MRI was interpreted by Dr. Durisek. It is admitted that Dr. Durisek's interpretation of the MRI is as alleged. 18. Admitted. By way of further answer, the sole reason that Dr. Roth authorized the patient to go back to work was because her job was in jeopardy and if she could not return to work she would lose her job at Harrisburg Hospital altogether. It was the patient's desire to maintain employment with Harrisburg Hospital and Dr. Roth authorized her return to Harrisburg Hospital as a ward secretary (a sedentary job) 4 hours a day 5 days a week. It is specifically denied that Dr. Roth authorized her to return to work as a nurse. By way of further answer, to the extent that the allegation "Plaintiff was offered no remedial measures or diagnostic testing" implies that further remedial measures or diagnostic testing were indicated, the same is specifically denied. To the contrary, Answering Defendants complied with the applicable standard of care at all times. 19. Admitted. 4 20. Admitted in part and denied in part. It is specifically denied that Dr. Moore told the patient there was no fluid collection. To the contrary, Dr. Moore told the patient there was no fluid collection in the disc space. Dr. Moore did tell the patient that there was a normal area of fluid collection where the muscles had been detacted from the bone and the bone has been removed. It is specifically denied that the patient was "discharged" from further visits for two months. To the contrary, the patient was told to schedule a follow up visit in 2 months and to return sooner if necessary. 21. Admitted in part and denied in part. It is admitted that the p~tient returned to see Dr. Roth on August 1 and October 10. It is specifically denied that the patient returned to see Dr. Roth on November 21. Rather, that visit was on November 17, 1995. The characterization of the history and complaints proffered by the Plaintiff is specifically denied. It is not denied that the patient had continuing discomfort and foot drop. 22-29. Denied. After reasonable investigation, Answering Defendants do not have sufficient information to form a belief as to the accuracy or inaccuracy of the corresponding averment of Plaintiff's Complaint and the same is accordingly denied. By way of further answer, it is specifically denied that Answering Defendants were negligent or that their conduct caused or contributed to the injuries as alleged in Plaintiff's Complaint. 5 COUNT I BRENDA J. LUCAS v. GEORGE R. ROTH, JR., M.D. 30. Answering Defendants hereby incorporate by reference answers contained in '1-29 above as though the same were fully set forth herein at length. 31. Denied. It is specifically denied that Dr. Roth was negligent or that his conduct caused or contributed to the injuries as alleged in Plaintiff's Complaint. By way of further answer, Dr. Roth has advised that the allegations of subparagraphs a.-c. of '31 of Plaintiff's Complaint are deemed to be denied pursuant to Pa.R.C.P. 1029(e) and that no further answer is required. WHEREFORE, George R. Roth, Jr., M.D., demands judgment in his favor and against Plaintiff. COUNT II BRENDA J. LUCAS v. BARRY B. MOORE, M. D . 32. Answering Defendants hereby incorporate by reference answers contained in '1-31 above as though the same were fully set forth herein at length. 33. Denied. It is specifically denied that Dr. Moore was negligent or that his conduct caused or contributed to the injuries as alleged in Plaintiff's Complaint. By way of further answer, Dr. Moore has advised that the allegations of subparagraphs a.-b. of '33 of Plaintiff's Complaint are deemed to be denied pursuant to Pa.R.C.P. 1029(e) and that no further answer is required. 6 WHEREFORE, Barry B. Moore, M.D., demands judgment in his favor and against Plaintiff. COUNT III BRENDA J. LUCAS v. NEUROLOGICAL SURGERY, LTD. 34. Answering Defendants hereby incorporate by reference answers contained in 11-33 above as though the same were fully set forth herein at length. 35. Denied. It is specifically denied that N/S was negligent or that its conduct caused or contributed to the injuries as alleged in Plaintiff's Complaint. It is specifically denied that N/s is vicariously or otherwise liable for the conduct of Dr. Moore and Dr. Roth. To the contrary, N/S is a professional corporation which is organized to provide the facilities and personnel ancillary to the practice of neurological surgery. Under the Medical Practice Act of 1985, 63 P.S., ~422.10 et seq., only a natural person may be licensed to practice medicine and surgery. N/S is not a natural person. N/s is not licensed to practice medicine and surgery. N/S cannot supervise, direct or control the manner and nature in which board certified neurosurgeons affiliated with it practice neurosurgery. Accordingly, N/S can not be held vicariously liable for the conduct of Dr. Moore and Dr. Roth. WHEREFORE, Neurological Surgery, Ltd., demands judgment in its favor and against Plaintiff. 7 NEW MATTER 36. Facts set forth in the foregoing answers to Plaintiff's Con~laint are incorporated herein by reference as though fully set forth at length. 37. At no time relevant hereto were Drs. Roth and Moore agents, servants, employees or otherwise acting for or on behalf of any other Defendant in this action or any other natural person, partnership, corporation or other legal entity. 38. At no time relevant hereto was any other natural person, partnership, corporation or other legal entity acting or serving as an agent, servant, employee or otherwise for or on behalf of Drs. Roth and Moore, 39. At no time relevant hereto was N/S an agent, servant, employee or otherwise acting for or on behalf of any other Defendant in this action or any other natural person, partnership, corporation or other legal entity. 40. At no time relevant hereto was any other natural person, partnership, corporation or other legal entity acting or serving as an agent, servant, employee or otherwise for or on behalf of N/S. 41. N/s did not render any medical or surgical or professional services to Plaintiff. N/S is not and can not be vicariously liable for the conduct of Drs. Roth and Moore. Under the Pennsylvania Medical Practice Act of 1985, 63 P.S., ~422.10 et seq., only an individual person may be licensed as a medical doctor to practice medicine and surgery. At no time hereto was N/S licensed as a medical doctor and N/S did not in fact have the 8 right to supervise, direct or control the manner in which Drs. Roth and Moore provided professional services to Brenda J. Lucas. 42. In the event it is ultimately determined that N/S is liable to Plaintiff, which liability is specifically denied, under the Pennsylvania Professional Corporation Law, 15 Pa.C.S.A. ~2925(c), the professional corporation may be held liable only to the extent of the value of its property. 43. At all times relevant hereto Drs. Roth and Moore complied with the applicable standard of care. 44. All care and treatment rendered to Plaintiff by Answering Defendants was appropriate, reasonable and within the applicable standard of care. 45. At all times relevant hereto Drs. Roth and Moore acted within and followed the precepts of a respected school of thought and, accordingly, their professional conduct was fully commensurate with the applicable standard of care. Evidence at trial may establish two or more schools of thought applicable to the issues presented in this case. 46. Plaintiff assumed the risk of her injuries and this action is therefore barred by the Doctrine of Assumption of Risk. 47. Answering Defendants believe and therefore aver that evidence accumulated through discovery and provided at trial may establish Plaintiff was contributorily or comparatively negligent, and in order to protect the record, Answering Defendants hereby plead contributory and comparative negligence as an affirmative defense. 9 48. Answering Defendants are entitled to contribution in accordance with the Pennsylvania Comparative Negligence Act, 42 P.S. ~7102. 49. In the event that it is determined that Answering Defendants were negligent with regard to any of the allegations contained in, and with respect to Plaintiff's Complaint, said allegations being specifically denied, said negligence was superseded by the intervening negligent acts of other persons, parties and/or organizations other than answering Defendant and over whom said Answering Defendants had no control, right or responsibility and, therefore, Answering Defendants are not liable. 50. At all times relevant hereto, Drs. Roth and Moore were competent and qualified physicians acting in compliance with the applicable standard of care. 51. To the extent that the evidence may show that other persons, partnerships, corporations or other legal entities caused or contributed to the injuries or exacerbation of the pre- existing condition of Plaintiff, then the conduct of the Answering Defendants was not the legal cause of such conditions or injuries. 52. Any acts or omissions of Answering Defendants alleged to constitute negligence were not substantial factors contributing and the injuries and damages alleged in Plaintiff's Complaint. 53. Whatever injuries and damages, if any, were sustained by Plaintiff as averred in Plaintiff's Complaint, were caused in 10 whole or in part by persons or entities over whom Answering Defendants had no duty to supervise or control, then Answering Defendants are not liable, and Plaintiff may not recover against them. 54. Plaintiff's injuries ar-d losses, if any, were not caused by the conduct or negligence of Answering Defendants but rather were caused by pre-existing medical conditions and causes beyond the control of Answering Defendants, Plaintiff may not recover against them. 55. The acts or omissions of others, and not Answering Defendants, constituted intervening and/or superseding causes of the injuries and/or damages alleged to have been sustained by Plaintiff and Answering Defendants cannot, therefore, pursuant to Pennsylvania law, be held liable for the alleged injuries to Plaintiff. WHEREFORE, George R. Roth, Jr., M.D., Barry B. Moore, M.D., and Neurological Surgery, Ltd., demand judgment in their favor and against Plaintiff. Respectfully submitted, Date: m~7 , S. By: S. W R K Attorney I.D. No. 01982 S. WALTER FOULKROD, IV Attorney I.D. No. 65207 ANDREW H. FOULKROD Attorney I.D. No. 77394 Attorneys for Defendants, GEORGE R. ROTH, JR., M.D., BARRY B. MOORE, M.D., and NEUROLOGICAL SURGERY, LTD. 2215 Forest Hills Drive - Suite 35 Harrisburg, PA 17112-0600 (717) 541-0400 11 .... ,',"',' .', u .' ". ',.." (V , ! i I '" ExhibIt A .",''.' NEUROLOGICAL SURGERY, LTD. B.rl)' B. .\Ioore. .\1.0. eeorge R. Roth, Jr.. ,\I.D. Roger H, OSld.hl. ~1.0, Willi.m J. Beutler. .\1.0, ~ .. = ;: fli 920 em/my Dri"f. ,1!"h,/lII;',./mrg. P.1lirJjj Tttfphtllu: ili.69i. ;800 F."',,,illll(: ili-69i.2719 January 5, 1995 William W. DeMuth, M.D. ORTHOPEDIC SURGEONS, LTD. 3916 Trindle Road Camp Hill, PA 17011 RE: Brenda J. Shearer Dear Dr. DeMuth: This letter concerns Brenda J. Shearer, an R.N. employed by Harrisburg Hospital, seen in our office for an initial evaluation on January 3, 1995. Thank you for your introductory notes concerning her situation. This 39-year-old female presents with the following low back history. In June 1992, date unknown, she bent over to release the brakes on a patient's wheelchair and experienced the onset of low back and left lower extremity pain. She was seen and treated by Employee Health at Harrisburg Hospital. She was off work for approximately three weeks, however, then returned to her regular job. Because of continuing symptoms, she first saw you in mid- September 1992. A lumbar MRI scan was performed which revealed "small disc problems at the L4-5 and L5-S1 levels." She '"as treated conservatively, including epidural steroids, with improvement but not resolution of her symptoms. She noticed that with menstruation her pain particularly in the low back would intensify. She was off work for several days in late May 1993 because of low back and left lower extremity pain. On July 16, 1993, while removing an electric clippers from a waist high shelf at home, she experienced severe low back pain and this time right lower extremity pain. Her lumbar MRI scan was repeated which indicated a significant increase in size of both previously noted disc protrusions. A decision was made to proceed with surgery. On August 11, 1993, a left-sided partial hemilaminectomy and discectomy was performed at the L5-S1 level and a right-sided partial hemilaminectomy and discectomy with removal of a significant disc protrusion at the L4-5 level. The patient did well immediately following her surgeri. Page 2 January 5, 1995 RE: Brenda J. Shearer In September 1993, however, she began experiencing recurrent low back and right greater than left lower extremity complaints; these intensified in the low back and right lower extremity prompting her admission into Harrisburg Hospital in October 1993. She was treated conservatively, including epidural steroid injections with eventual improvement; she returned to her regular job, although with restrictions, on November 29, 1993. On February 10, 1994, related to assisting a confused patient in bed, she developed recurrent low back and right lower extremity pain. A lumbar MRI scan revealed primarily postoperative changes at the sites of her previous surgery. Her symptoms continued, although fluctuating in intensity; she performed modified work in February and March, although she returned to her regular job in May 1994. In August, 1994, her pain again intensified, and she was again treated with epidural steroid injections. The final injection helped her and she continued along with tolerable complaints. On December 5, 1994, she again experienced low back and right lower extremity pain which was severe; this prompted her admission to Healthsouth for several weeks of inpatient therapy. Although improved, her symptoms have not resolved and continue to bother her to a significant extent. She has not worked since December 5, 1994. This patient admits to some low back discomfort, usually mild, over previous years. She denies any radicular sounding pain prior to her work related episode in June 1992. Her pain at present is across the entire low back; she has particularly symptomatic pain in the right posterior buttock and "entire" right lower extremity. She is aware of paresthesias below the right knee, extending primarily into the dorsum and toes of the right foot. She denies any significant left lower extremity pain. She has difficulty Sleeping through the night; in particular, she cannot lie on her right side. sitting and standing are a problem as is weight-bearing activity. On examination, the patient is overweight. There is no lumbar tenderness or acute muscle spasm, however, there is moderate limitation of low back motions. Right straight-leg raising checks at 70 degrees; elevating the extremity higher causes radicular pain. There is giving way on muscle testing of the right toe extensors; it is difficult to appreciate whether or not there is any true weakness present. There is a sensory deficit inVOlving the right L4 through Sl dermatomes, primarily the right L5 dermatome is involved. The reflexes are reduced but symmetrically present in the lower V E R I F I CAT ION I, BARRY B. MOORE, M.D., Individually and on behalf of NEUROLOGICAL ASSOCIATES, LTD., in my capacity as an Officer and Director, hereby certify that I am authorized to make this verification on behalf of said corporation and that I have reviewed the foregoing ANSWER AND NEW MATTER OF DEFENDANTS, GEORGE R. ROTH, JR., M.D., BARRY B. MOORE, M.D., AND NEUROLOGICAL ASSOCIATES, LTD., TO PLAINTIFF'S COMPLAINT which has been drafted by counsel on our behalf, and that the facts set forth herein are true correct to the best of my knowledge, information and belief. This statement and Verification are made subject to the penalties of 18 pa.C.S.A. ~4904, relating to unsworn falsifications to authorities; I verify that all the statements made in the foregoing are true and correct and that false statements may subject me to the penalties of 18 Pa.C.S.A. ~4904. Date: /7 9P4-.e.- If97 V B~~O~I pW) . <,~~,.Ao..~.t.....""",,,~' C1 \.0 0 c: -J -n ~. 2= ~i =- -u~, mll~ .- 7-:L -~ ~~C:' 0) .0 L't .~.: b r'f.; .:1 ~_.. -0 ~~ "'8 :::: '. , ... :,.) ~-;c .. ~ ~ N ~ I I , n \.0 0 r.: -.I " ~ C- ,"J d~;_ c:: ;;jf'Q ,.... .' r.,,) ;;~ :r , 1',1 '=:J '.) '.-' .'':1 -"n . , -'i:'1 ..0 , r:- [:.sIn .' .. \. ~: '.i ~: ,>> ::~ (;:) :.11 -< \ CERTlPICATE PREREQUISITE TO SERVICE OF A SUBPOENA PURSUANT TU RULE 4009.22 HI TilE HATTER OF. COURT OF CO~IMON PI,EAS (SIIEARER) LUCAS TERM. 0000 -VS- CASE NO. 3/6-91 ROTII JR.. M.D. As a prerequisite tu service of a su~puena for ducuments and thing. pursuant Lu Ruie 1,009.22 HCS on ~ehalf of. S. WALTER FOULKROO, ESQUIRE defendant certifies that (1) A notlc'! of inLent tu s..rve t.he 8u~poena with a copy of t.he suhpllPna attach..d t.h..r..t.o was mailed or deUv..rpd to each party at. least tw..nt.y daY8 prior to the date on whi<:h the subpuena is suught to he sprveu. (2) A copy of t.he IIuUce of intent., induding the proposed 8u~poena, is aLtached to the cprLificate, (3) flo o~j..ctiull t.o t.he suul'oena has ueell rpceived, and (4) The 811hpuena which will ue servell is identical to the su~poena which is attachell to the notice of intent to 8erve the su~poena. DATE. 11/19/91 S . WALTER FOULKROD. .,ggUIR~._.. At.l.omey for df!f..ndsnt BY, MCS REPRESENTATIVE JANICE HCCAFFREY DEil-0096B8 ",23 7 9 - C 0 :L - r.o :L . . " ~TH OF PEN5YL'IANIA <XllNl'Y OF <DlIlmLAND (SHEARER) LUCAS -VS- File No. 376-97 ROTH. JR., M. D. SUBPOENA TO PR<X:ll..a: OOCltENTS OR TH I 1m FOR 0 I SCOIIERY PUlSUANT TO...llULE 4009.22 TO: CUSTODIAN OF RECORDS FOR: HARRISBURG HOSPITAL (Neme of Person or Entity) Within twenty (20) days after service of this subpoena, you are ordered by the ooc.rt to prodJClI the following doa.ments or things: SEE ATTACHED at ____ THE MCS GROUP, INC., 1601 MARKET STREET, SUITE 800. PHILADELPHIA. PA 19103 _ . (Address) Ycu may deliver or mail legible copies of the docunents or produce things requested by this $ubpoena, together with the certificate of carpliance, to the party making this request at the addrl'.ss I isted above. You have the right to seek in advance the reasonable cost of preparing the OJPies or producing the things sought. If you fail to produce the docunents or things required by this llubpoen'! wit"in twenty (20) Jays after :ts service, the party serving this '3\lbpoena rm.y sllElk a COUl"'t order c::cnllellir:g you to carply with it. THIS SUBPOENA WAS ISSUED AT THE REa..eST OF THE FOlLOo'IINQ PERSON: NA/'E: S . WALTER FOULK ROD , ESQUIRE ADDRESS: 2215 FOREST HILLS DRIVE, SUITE 35 HARRISBURG, PA 17112 TELEPtl1NE: 215-246-0900 SlJ'REI1: cx:urr 10 II ATlORNEY FOR: DEFENDANT DATE: IJd.dJ.) lilt;) Sea I of the Court BY THE COl-'n: /fI k~AI~~ F. h~dk. Prothonotary/-, I I., Civi 1 Division ~t1/~ .k'. ~.4. t:1.7 7' ~ Deputy (Eff. 7/97) I~Xl)LANATION OIl' ltEQUlREI> RECORDS TO: CUSTODIAN OF RECORDS FOR: IIAIUUSBURG IIOSI'ITAL III S, FRONT ST, HARRISBURG. I'A 17H1I211IJIJ 1m: 4237IJ BRENDA}, LUCAS AlK/A SIIEAREll AS WELL AS 2/15/IJ5-2/2J/'15 Any amI alllccurlls. cOlTcspomlcncc, rilcs anlllllcllloranllullls, hanllwlillcn nolcs. rclaling It, any c.~annnalion. consultalion carc or lrl'allllcnl. Dnles Itc1luesled: rl'om: 01.2(,.95 'n 111.311-95. Subject: UltENDA J. LUCAS MI</A SIIEAIUm 2081 GItAI\IEllCY PLACE. IIUMI\IELSI'OWN. PA 17036 Unle or Bll'lh: 116.15.55 SU I U . " H. M ~ ., 2 :l 7 'J - 1.11 , ~ . " :0 . . 0 .0 ,.., C -J ~'I , -.' .-1 "'Dr.:.: 'J .\:~ " 1t.-- , " .." ,h; :0 " '." ~~ ~ l, -.,., ',' '" - .')-- - "..( ) , .. ',1'11 .' 'i L- " .. , :c> ,. :;'J .r. -< ~TH OF ~VANIA cnmtY OF ~ LUCAS , -VS- Fi Ie No. 376-97 ROTH, M.D. ~~D~~~~E~~~~ TO: CUSTODIAN OF RECORDS FOR: LANCASTER NEUROSURGICAL ASSOCIATES (N.-ne of Person or Entity) Within twenty (20) days after service of this s~, You are ordered by the COlrt to Ilf'OciJce the fol lowing docunents or things: __ SEE ATTACIl.f.J.l at THF. MCS GROUP. INC.. 1601 MARKET STREET, SUITE 800. PHILADELPHIA, PA 19103 (Address) You ll1Ily deliver or ll1Ilil legible COpies of the docunents or Ilf'OciJce things requested hI this s~a, together with the certificate of CC\'ll)1fance, to the party making thl! request at the address listed above. You have the ristlt to seek in advance the reasonablE cost of Pt'll!Jaring the COpies or Pt'exLclng the things soustlt. If yOU fail to Pt'exLce the docunents or things r~ired by this subpoena within twenty (20) dayS after its service, the party serving this subpoena ll1Ily see/( . COlrt order lXnpe 11 i ng YOU to CC\'ll) I y with it. 'THIS SUBPoENA WAS ISSUED AT nE REQlEST OF nE FCUQYINQ PERSON: NAME: JANICE KUNKLE, ESQUIRE ADDRESS: 777 F~ST PARK DRIVE HARRISRURG. PA 17105 TELEPHONe: 215-246-0900 Sl"'fleoE ~T '0 I ATTOflNEy FOR: DEFF.NDANT '- DATE: NOV, l'7.l.h , /CA7 Sea J of the Court B~CXUlT: ~ J ~..n, 0 c". JA.Q.Qk..,... prOthonc)tarYICIII"k, Civi I Diviaion (Eff. 1/97) EXPLANATION OF REQUIRED RECORDS TO: CUSTODIAN OF RECORDS FOR: LANCASTER NEUROSURGICAL ASSOC. 1571 CRICKET OAK DRIVE LANCASTER. PA 176()1 RE: 42379 BRENDA J. LUCAS NK/A SHEARER I i I Any and all records, correspondence, files and memorandums, handwrillen notes, billing and payment records, relating to any examination, cunsultatiun, care or treatment. Dates Reque~ted: u(l to and Including the present. Subject: BRENDA J. LUCAS A/KIA SHEARER 2081 GRAMERCY PLACE, HUMMELSfOWN, PA 17036 Date or Birth: 06.15.55 SU10-llS708 42375>>-I.o02