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HomeMy WebLinkAbout97-00857 . ~ I \ I l \ " /) r , , I ! i t 1 .~ I ! :~ (3" ~ ~\ ) - " .. , iff, :t: ,'] ~ . g '; [fi \\' f 911 ~ ~ ~ ~~~ ~~ ~~ ;1 ~ ... 1lo<CJ) - lZli ~ J JJ i 01>1 ~ ~ ~Ilo< ~. ~ ~~~EI 'tl ~ ~ PI ~ o~ ~ ~ ~~:::: H I:l ! .! j o U ~ ~ U E-<UlZl A ~~~ ~!~ s ~ ~ CJ) l\l oll-l ..... . ~l3~ <I~ '~Ilo< > ~{j CJ)U ~1>1,.J:;; H~ H >< ~~ ~. it: lZl HO 1>1 ~,.. : .. " .. "!",- .' "- ~ ~ " .-. .1. . . . .... '" WAYNI! F, SHADE AIIomey at La... 5] Wut Pomf.... Sum Carlitle, ......,Iv.... 1701] 12. By 0630 on August 22, 1996, Plaintiff JOHN M. STONE was permitted to wander into the lounge area where he jumped out a second story window and fell to the first floor roof. 13. Plaintiffs aver that Defendant, its agents, servants and employees were negligent generally in failing to discharge their duty to provide reasonable nursing care and other health care services required for the health, safety and welfare of Plaintiff JOHN M. STONE and, specifically, as follows: (a) In failing to notify the nurse in charge of their actual knowledge that the condition of Plaintiff JOHN M. STONE had deteriorated to the point that he was an obvious danger to himself; (b) In failing to notify hospital security of their actual knowledge that the condition of Plaintiff JOHN M. STONE had deteriorated to the point that he was an obvious danger to himself; (c) In failing to notify the attending physician of their actual knowledge that the condition of Plaintiff JOHN M. STONE had deteriorated to the point that he was an obvious danger to himself; (d) In failing to take the necessary steps to provide sufficient supervision or restraint of Plaintiff JOHN M. STONE to assure his safety; -3- The statements in the foregoing Complaint are based upon information which has been assembled by my attorney in this litigation. The language of the statements is not my own. I have read the statements; and to the extent that they are based upon information which I have given to my counsel, they are true and correct to the best of my knowledge, information and belief. I understand that false statements herein are made subject to the penalties of 18 Pa.C.S. S4904 relating to unsworn falsification to authorities. Date: February 18, 1997 ,;i!l._'/~ $.cx, . stone ( ~"cic.'-- U ...Jj;;., ,_ J. Y V. stone WAYNB F. SHADB Anomcy .. Law '3W",r....rmSlrm CIlIiale,I'nu>tyIvIlli& 17013 ,. co '- f:; IJ., (=: 'C ,. --, o-f 11 J ~~ -:-? c' ~ .... C)!' I.., t.:'. ;;.. " .--. \rj l,';- u. " (~. ~;. {Cl. , :J I , : " I.:. r:~, , C c." i:; JOHN M. STONE and JOYCE V. STONE, : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA r Plaintiffs v. NO 97-857 CIVIL TERM CARLISLE HOSPITAL AND HEALTH SERVICES, Defendant IN R : HOFFER, P.J.: In this opinion, we address Defendant's motion for summary judgment. The facts of this case are as follows: Plaintiff, John M. Stone, was admitted to Carlisle Hospital, Defendant, on August 21, 1996, suffering from cirrhosis of the liver, Throughout the evening of August 21, 1996, Stone's mental state deteriorated, caused by toxins produced by his diseased liver. Plaintiff was permitted to walk the halls of the medical ward where nurses monitored him. Eariy In the morning of August 22, 1996, Stone opened the second floor lounge window and climbed out onto the first floor roof of the hospital. A nurse tried, but was unable, to restrain him. Stone sustained cuts and lacerations, Including a six centimeter wound that required stitches. The wounds were treated In the emergency room and Stone was sent to the psychiatric ward. Stone remained In the psychiatric ward until August 28, 1996, and was ultimately discharged from the hospital on August 30, 1996. 97-857 CIVIL TERM Plaintiffs flied suit on February 20, 1997, asserting that Defendant was negligent In Its care of Stone. Throughout the discovery process, Plaintiffs have never provided Defendant with a medical expert report. Plaintiffs' attomey appears to have taken the position that expert opinion testimony Is not required because the negligence In this case Is so clear that a lay person can comprehend It without the aid of expert opinion, Defendant has flied this motion for summary Judgment contending that Plaintiffs must provide expert medical testimony to present a prima facie case of malpractice, Without expert testimony, Defendant claims It Is entitled to summary judgment. ~ The Pennsylvania Rules of Civil Procedure govem the discovery of medical expert testimony. The rules state: (1) A party may through Interrogatories require (a) any other party to Identify each person whom the other party expects to call as an expert witness at trial and to state the subject matter on which the expert Is expected to testify and (b) the other party to have each expert so Identified by him state the substance of the facts and opinions to which the expert Is expected to testify and a summary of the grounds for each opinion, The party answering the Interrogatories may flle as his answer a report of the expert or have the interrogatories answered by his expert. The answer or separate report shall be signed by the expert. 2 97.857 CIVIL TERM Pa. R. Clv. P. 4003.5(a). In this nursing malpractice case, Stone claims he was Injured while In the care of nurses at the Carlisle Hospital. Defendant filed Interrogatories for the purpose of learning the name of an expert to be called, together with the expert report, Plaintiffs responded by supplying the names of three of Stone's treating physicians but forwarded no reports. Defendant believes that Plaintiffs will not have an expert testify at trial. In Pennsylvania, the general rule In medical malpractice actions Is that 'a plaintiff must present expert testimony to establish to a reasonable degree of medical certainty that the defendant's acts deviated from an accepted medical standard, and that such deviation was the proximate cause of the harm suffered.' ~, 548 Pa. 504, 513, 698 A,2d 581, 585 (1997), An exception to the rule exists where the defendant's act of negligence are so obvious that lay persons can comprehend the negligence without the aid of expert testimony. JQ. Cases which have held that expert testimony is necessary to present a prima facie case for medical malpractice Include: Brophv v. Brizuela, 358 Pa. Super. 400, 517 A.2d 1293 (1986)(rendering of plaintiffs expert opinion to be Inadmissible, for failure to respond to interrogatories, made It impossible to present a prima facie case for medical malpractice where plaintiff became pregnant after undergoing a tubal 3 97-857 CIVIL TERM " , , IIgatlon);~, 379 Pa. Super. 121,549 A.2d 935 (1988), ~ Q!her around~, 526 Pa, 54, 584 A.2d 888 (1990)(requirlng expert testimony to prove that neurological surgery gone awry was the cause of quadriplegia); QQtwl ~bert ElostelnMed, Center. 405 Pa. Super. 392, 592 A.2d 720 (1991 )(requlrlng expert testimony where plaintiff suffered nerve damage after receiving an intramuscular Injection). The above cases can be contrasted with cases that have held that expert opinion is not necessary. These cases Include: Brannan v. Lankenau Hosoital, 490 Pa, 588, 417 A.2d 196 (1980)(findlng exception to a rule requiring expert testimony applies where negligence was so obvious that a lay person could comprehend It, because Intensive care nursing staff failed to notify treating physician of plaintiff's deteriorating, post operative condition); ~ ~, 451 Pa. Super. 154,678 A.2d 810 (1996)(statlng that leaving a sponge In a patient after a surgical procedure Is such obvious negligence that expert testimony Is not required); Brown v. Philadelphia CaUeae of Osteooathl~, 449 Pa, Super. 667, 674 A.2d 1130 (1996)(holding that expert testimony is not necessary to present a prima facie case of negligent infliction of emotional distress where plaintiff was left alone In an exam room where she miscarried, the fetus was left on the exam bed for fifteen minutes with the plaintiff, and when the fetus was 4 97-857 CIVIL TERM removed It was placed In plaintiffs arms for photos to be taken),' In the case at bar, Defendant requests summary judgment because It believes that the Plaintiff can not present a prima facie case for nursing malpractice without expert opinion concerning the nursing standard of care. The Pennsylvania Rules of Civil Procedure state: If the Identity of an expert witness Is not disclosed In compliance with subdivision (a)(1) of this rule, he shall not be permitted to testify on behalf of the defaulting party at the trial of the action. However, If the failure to disclose the Identity of the witness is the result of extenuating circumstances beyond the control of the defaulting party, the court may grant a continuance or other appropriate relief, Pa. R. Clv. P. 4003.5(b). According to Pa. R. Clv. p, 4003.5(b), a court may prevent a party from presenting expert testimony at trial If the party has not complied with the discovery rules found In Pa, R. Clv. P. 4003.5(a). The question of whether expert testimony Is required In order to present a prima facie case for medical malpractice cannot be addressed by a court until It has decided If the party Is permitted to present expert testimony at trial. Defendant's motion for summary judgment, addressed In this opinion, Is lThe above cases are along the lines of res Ipsa loquitur where negligence Is so egregious that no expert Is needed. These cases all show, beyond a doubt, that the negligence Is so clear that at completion of the plaintiffs case In chief at trial, the evidence can cleariy withstand a motion for directed verdict. s 97-857 CIVIL TERM premature. Defendant has not filed a motion to compel the disclosure of an expert who Is willing to testify at trial and the expert report. If Defendant files such a motion, the Court may order the Plaintiffs to disclose the Identity of an expert within a set number of days. If Plaintiff falls to respond or continues to refuse to name an expert willing to testify at trial, Defendant can file a motion for sanctions to preclude Plaintiffs' presentation of an expert witness at trial. If sanctions are awarded, Defendant could file a second motion for summary judgment, contending that Plaintiffs cannot present a prima facie case for nursing malpractice because Plaintiffs have been precluded from presenting expert testimony. Until these procedural steps are taken, the question of whether Plaintiffs must present expert testimony to avoid summary judgment cannot be addressed by this Court.2 Because Plaintiffs have not yet been precluded from presenting an expert witness at trial, Defendant's motion for summary judgment Is premature and therefore denied. 'Plaintiff may choose to present their negligence case without the use of expert testimony. From our view of the record, It does not appear that the Plaintiffs will be able to take advantage of any charge from the court resembling a res Ipsa loquitur type of charge and that any requests for a directed verdict may be granted at the close of Plaintiffs' case in chief. However, because the facts are in dispute, we cannot say that a motion for summary judgment Is appropriate at this point, regardless of how Plaintiffs choose to present their evidence. 6 ...- ~ f I i" (' -' I ,. , , I.'': r I 1-- ,...," C71 t~! to!' "..; , c. . i lL '... j: ,~ '>. ~ .~-) 0 &;,.;" U JOHN M. STONE and JOYCE V. STONE, IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNlY, PENNA CIVIL AcnON . LAW Plaintiffs v. NO, 97.857 CIVIL TERM CARLISLE HOSPITAL AND HEALTH SERVICES. Defendant JURY TRIAL DEMANDED WITIlDRAWAL OF APPEARANCE Kindly withdraw the appearance of the undersigned as counsel for Defendant, Carlisle Hospital and Health Services, in the above, captioned matter, Respectfully submitted, llc HADDICK. P.C. Francis E, Attorney , 20 Sou Street Camp Hll, PA 17011 (717) 731.4800 Attorney for Defendant Date: July 8, 1998 WHEREFORE, Answering Defendant respeetfully requests that judgment be entered in its favor and against the Plaintiffs and that it be awarded appropriate costs and fees. NEW MATrER 20, Plaintiffs have failed to state a claim upon which relief can be granted. 21. Plaintiffs' claim is barred and/or limited by the applicable Statute of Limitations. 22, It is believed, and therefore averred, that the discovery will show that the Plaintiff was negligent and that his negligence exceeded the negligence, if any, of the Answering Defendant, thereby barring her recovelY by operation of the Pennsylvania Comparative Negligence Act 23, It is believed, and therefore averred, that discovelY will show that the Plaintiff was negligent and that by virtue of his negligence, his claims may be limited by the operation of the Pennsylvania Comparative Negligence Act. 24. It is believed, and therefore averred, that discovelY will show that the Plaintiff voluntarily assumed a known risk thereby barring recovelY by the operation of the Doctrine of Assumption of Risk. 25, Plaintiffs injuries, if any, were sustained as a result of natural or unknown causes and not as the result of any action or inaction on behalf of the Ao1swering Defendant. 26. At all times material hereto, Answering Defendant provided full, eomplete, proper, reasonable and adequate medical care and treatment in accordance with the applicable standard of care. 27, No conduct on the part of the Answering Defendant was a substantial factor in causing or contributing to any harm which the Plaintiff may have suffered, ">- a\ - b:; Ir. ":.~ ,.:. ., . , UJQ c<; "~ j~. (..)-:." ..," -;~~ Ir~ . ....~ C.l_ :;'2 ...... 1.((1 r- . :1") -' Ot~_. 1 "~ ;"1 W"-- -' , '"' '!Ul cell );.:!. " t'_ r.. 0:::' :--.; lI. s:; 0 u :.tl C, I : ~ c. <. ; I (.:', C r:-:, ""1 I, , -. : ll_ c i -- I' r, ::; (.I ':.""'l '",) '. ~ . JOHN M. STONE and JOYCE V. STONE, plaintiffs IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW : NO. 97-857 CIVIL TERM v. . . CARLISLE HOSPITAL AND HEALTH SERVICES, Defendant . . JURY TRIAL DEMANDED PLAINTIFFS' REPLY TO NEW MATTER 20. The averments of Paragraph 20 of Defendant's New Matter, being conclusions of law, no response is required. 21. The averments of Paragraph 21 of Defendant's New Matter are denied. On the contrary, Plaintiffs have averred, and Plaintiffs' records on file with Defendant would confirm that the cause of action herein accrued on or about August 21, 1996, which was well within the applicable statute of Limitations so that Defendant's allegations to the contrary are obdurate and vexatious in this litigation. 22. The averments of Paragraph 22 of Defendant's New Matter, being conclusions of law, are denied. By way of further reply, Plaintiffs aver that Plaintiff John M. stone was not capable of negligence by virtue of his mental impairment resulting from the overlay of the infection from pneumonia upon seriously elevated ammonia levels which resulted from severe liver dysfunction. By way of further reply, Plaintiff Joyce V. stone avers that her WAYNI! F, SHADe A_ "In> 5) Weat Pomfrd Street Carlisle, Pawyl..aia 170n .. , ~ , , WAYIII! F, SHADE A_ at Low '3 West Pomfrd Sttcd. Cutitk, Pftwylv.... 17013 recovery for loss of consortium is a derivative action and that she was not present when her husband was injured so that the reference in Paragraph 22 to the bar to "her" recovery could only be to alleged negligence in entrusting her husband to the negligent care of Defendant. 23. The averments of Paragraph 23 of Defendant's New Matter are, in substance, the same as the averments of Paragraph 22 of Defendant's New Matter. Therefore, they are denied; and the averments of Paragraph 22 above are incorporated herein by reference as though fully set forth. 24. The averments of Paragraph 24 of Defendant's New Matter are denied. On the contrary, the averments of Paragraph 22 above are incorporated herein by reference as though fully set forth. 25. The averments of Paragraph 25 of Defendant's New Matter are denied. On the contrary, Plaintiffs' injuries were caused by the negligence of Defendant, its agents, servants, employees or independent contractors as averred in the Complaint herein. 26. The averments of Paragraph 26 of Defendant's New Matter are denied. On the contrary, the averments of the Complaint herein are incorporated herein by reference as though fully set forth. -2- 27. The averments of Paragraph 27 of Defendant's New Matter are denied. On the contrary, the averments of the Complaint herein are incorporated herein by reference as though fully set forth. 28. The averments of Paragraph 28 of Defendant's New Matter, being conclusions of law, no response is required. By way of further reply, the averments of the Complaint herein are incorporated herein by reference as though fully set forth. 29. The averments of Paragraph 29 of Defendant's New Matter, being conclusions of law, no response is required. By way of further reply, Plaintiffs aver that they never consented to the negligent care of Plaintiff John M. stone as set forth in the averments of the Complaint herein which are incorporated herein by reference as though fully set forth. 30. The averments of Paragraph 30 of Defendant's New Matter, being within the exclusive knowledge of Defendant, are denied; and proof thereof is demanded. 31. The averments of Paragraph 31 of Defendant's New Matter, being conclusions of law, no response is required. By way of WAYNE F, SHADE A_ II Low 13 Wen Pamf... _ Culitle,l'alntylvlllia 17013 further reply, Plaintiffs aver that the injuries to Plaintiffs did not result from choices among treatment modalities but from lack of care as more specifically set forth in the averments of -3- .~ oS -- ~ E- ~ ~ ~~ M g~ ::I: c.. "1 I.f) 0.-, ~~ N _.J rtiE p~ ~~ 0- "" ~- .. ~ r- a '" 0 ~ ~~ ~ l1ot1l' ~ ... z~ - ~ 0 Il/I roo ~II< ~ Q ~ 0 a ~ ~ i ~~~:i E-t 'tl .;] ~ ~ ~ J j ~ -Ill E-t II< 00 I i:i ~~~ 1-1 ~ ~ ! I! j p., Iii ~u ~UQ 0," tIl ~E..qJ fi! 'tl - o! ~r;;~ tIlS:: s:: tIl tIl '" -Ql 1<< U UClO .. l\l ~tIl~ 1<< <, ':>.-1 .. tIl~~ H ~1iI ...1:;; ~ p., > E-t iii ~~ Z ~ H >- ~~ j z i:io~ 00 1-1 UZ ..,.., II< ., > ... . t . '. j . Pa. R.C.P. 4003. 1 (a) (emphasis added). Plaintiffs' counsel, in refusing to turn over Mrs, Stone's narrative of events, is attempting to argue that the matter at issue is privileged. Pennsylvania has codified the attorney-client privilege, 42 Pa. C.S.A. ~S928. It is a long. standing view, however, that the privilege extends only to communications made while the attorney.client relationship exists; it does not preclude testimony as to communications made before the attorney is retained. Heaton v. Findlav. 12 Pa. 304 (1849). In Mrs. Stone's deposition in this action, conducted on September 11,1997, Mrs. Stone testified that the narrative was written before she and her husband had an attorney, and that it was not made at the direction of counsel. Deposition of Joyce V. Stone, at 31. Therefore, according to Heaton, since the narrative of events was drafted prior to retaining counsel, it is not privileged and is discoverable. Further, Rule 4003.3 provides that: "[s]ubject to the provisions of Rules 4003.4 and 4003.5, a party may obtain discovery of any matter discoverable under Rule 4003,1 even though prepared in anticipation of litigation or trial by or for another party or by or for that party's representative, including his attorney, consultant, surety, indemnitor. insurer or agent. The discovery shall not include the mental impressions of a party's attorney or his conclusions, opinions, memoranda, notes or summaries, research or legal theories." Pa. R.C.P. 4003.3 (emphasis added). "The Rule is carefully drawn and means exactly what it says." Pa. R.C.P. 4003.3, Explanatory Note, 1978. Rule 4003.3 protects only the work of the attorney, and not the party or witness. The work-product protection contained in Rule 4003.3 applies to plaintiffs counsel's mental impressions contained within a summary of an interview with his client, but it does not pertain to the information itself. Hall v. Golden Mile Ice Center. Inc., 11 D.&C.4th 642 (Pa.Com.PI. 1991). In Tate v. Philadelohia SavinRs Fund I' I >- CJ .... p- (;: " c::: -" '"-' LJIC: - (5:-: -,.. I:::L 0: "- - ., y~. , C;" - ... -,-.. t..L..J.... I J ~'''': -~', C-; ';j":: c.::.' .. k! '!~ I- e:; ., lL ...... -- 0 .::> 0. <J . , r . information. See Plaintiffs' Answers to Interrogatories and Request for the Production of Documents, attached to accompanying Brief in Support of Motion for Summary judgment as Exhibits "A" and "B", respectively. s. In letters dated July 9,1997 and July 16,1997, copies of which are attached to accompanying Brief in Support of Motion for Summary judgment as Exhibits "C" and "D", respectively, Plaintiffs' attorney has indicated that he is taking the position that expert reports are not necessary for the Plaintiffs in this case, and that none would be forthcoming. 6. Plaintiff will be unable to state prima facie claims for medical malpractice at the time of trial given his lack of requisite expert support. See Flanallan v. Labe, 446 Pa. Super. 107, 666 A.2d 333 (1995). REOUESTED RELIEF 7. In a medical malpractice action, the plaintiff must present expert tcstimony which concludes that dcfcndant's conduct varied from acccptcd medical practicc. Brannan v. Lankenau Hosoital, 480 Pa. SBB, 417 A.2d 196 (19BO). B. Whcre liability is not obvious. this cxpert mcdical tcstimony must support plaintiffs contention that thc injuries were caused by the tortious conduct of thc movinll dcfcndant. ~, Maliszewski v. Rendon, 374 Pa. Super. 109, 542 A.2d 170, MW.I ~, 520 Pa. 617, 554 A.2d 510 (1988). 9. Plaintiffs havc not provided, nor do thcy intcnd to providc, cxpert rcports which conclude that Carlisle Hospital's conduct, or the conduct of any of its cmployccs, agcnts, and/or servants, varied from accepted medical practice or that Plaintiffs injurics wcrc caused by the tortious conduct of Carlisle Hospital. its employees, agents, and/or servants. .. .. EXHIBIT A -- f I .. DEFINITIONS i ,I I , I I 1 ! A. The term "document" as used hercin shall mean any written, printed, typed, or other graphic matter of any kind or nature, however produced or reproduced, including photographs, microfilms, phonographs, video and audio tapes, punch cards, magnetic tapes, discs, data cells, drums, and other data compilations from which information can be obtained. B. "Person" or "Persons" shall mean any natural individual or corporation, firm, partnership, proprietorship, association, joint venture, governmental entity or any other business or government organization. C. "Meeting" shall mean any assembly, convocation, encounter or coincidence of two or more persons for any purpose, whether or not planned, arranged or scheduled in advance. D. "Communication" shall mean any utterance made, human speech heard, overheard, or intended to be heard by any person, whether in person, by telephone, by means of sound recording, or otherwise. E. '1dentify" means: (a) When used in reference to a document, describe with sufficient particularity to form the basis for a request for production under Pennsylvania Rules of Civil Procedure, including but not limited to the date it was prepared or created, the identity of its author or originator, the type of document (e.g., letter, telegram, chart, photograph, sound recordings, etc.), the identity of its addressee, its present location and the identity of its present custodian(s). If such document was, but is not longer, in your possession or subject to your control, state what disposition was made of it; 10. Has there been any change in your participation in the activitics identified in your answer to Interrogatory #9 abovc sincc the time of the incidcnt referrcd to in your Complaint? If so, please state: (a) the exact nature of each change; (b) the reason for the change; (c) the hobbies and forms of recreation in which you now engage. 11. Identify all socia) clubs, lodges, or associations of any nature in which you have participated or which you were a member for the time from 3 years prior to the incident referred to in your Complaint to the present 1. (a) John Marlin stone, born July 11, 1936, Carlisle, Pennsylvania. (b) Joyce Vivian stone, born May 18, 1935, Elliotsburg, Pennsylvania. 2. Both are retired. 3. There are no loss of income claims in this case. 4. The parties have been retired at all times since August 21, 1996, so that there were no businesses or occupations identified in response to Interrogatory No.2. 5. There are no employers identified in response to !nterrogatory No. 4 so that there would be no employment physical examinations or statements concerning the health of the Plaintiffs to employers. 6. Plaintiffs were not self-employed on or after August 21, 1996. 7. Plaintiffs were not self-employed on or after August 21, 1996. 8. Plaintiff John M. stone received Workman's Compensation of less than $100.00 per month in 1965 for injury to the fingers of his right hand in a corn picker. The source of the payments was the insurance carrier for his then employer, Richard Zimmerman. Mr. stone's present disability as a result of the injury consists of the absence of the fingers of his right hand. This disability has existed continuously since 1965. Plaintiff Joyce V. stone receives Social Security Disability in the amount of $775.00 per month for congestive obstructive pulmonary disease, otherwi~e knowp.as as~~ma~c b~onchitis. . 9. The hobbTes and recreatIon in which p~ntiff ~oh~ ~ sto~ed in August of 1996 were gardening?" ~rd work. ./ ,wo wor nat repairing garden tools and readinq. Plainti{f ~07c~ ~ 0 ftgaged in crocheting, sewing ana reading. . - . ......._.-..........--~-...-.~.--.;.,-~...-_.... - ."- - .-. .--..----- -- 10. _Since..the..recoverv of ~.l~.int.llLJohnM.... Stone from the ~:to'*!ti!:t:il~~~~it!!.~~t~~e;~-~?' 9.~sel.... h~ has' not ha~_~he. same ~ . .. - o.~":."-" .'- .--.' ".". ., 11. From 1993 to the present, Plaintiff John M. Stone has belonged to the Chambe.!]lQ!lrg._American.Legion, theoS,Cirlisle White cir~le, the C~~lis~agles, the Chambersburg Moose and the ~hambersburg-Amvets. Plaintiff ~ce.V; stone has belonged to the car11sle~agles, Mount Holly Springs Veterans of Foreign Wars and Chambers burg Moose. 12. As a result of the negligence of Defendant, its agents, servants, employees and independent contractors, Plaintiff John M. stone suffered severe lacerations to his left arm, abrasions to his head and other general trauma over his entire body on the date set forth in the Complaint filed herein. Plaintiffs are unable to provide a more detailed description of how the injuries were caused than is already set forth in the Complaint filed herein. Plaintiffs are unable to state any further facts upon which they base their contentions that Defendant is responsible for their injuries than are already set forth in the Complaint filed herein. Plaintiff John M. stone discovered that he sustained his injury immediately upon his impact with the roof of the first floor of the hospital. Plaintiff Joyce V. stone learned of the injury when she received a telephone call from unknown Hospital personnel during the early morning hours of August 22, 1996. Plaintiffs do not contend that anyone indicated to them that an act or omission of Defendant caused the injury. Johnson G. Coyle, M.D., the emergency room physician at Carlisle Hospital, Carlisle, Pennsylvania, diagnosed the injuries to Plaintiff John M. stone. Plaintiff Joyce V. stone has suffered the loss of consortium averred in the Complaint filed herein. 13. Plaintiff John M. stone sustained substantial pain, suffering and disfigurement, fear of heights and frequent and recurring nightmares. As to the loss of consortium damages, Plaintiff John M. stone is not the man he was before his injury. He has become fearful and introverted. He wants to be alone; and he does not sleep well. 14. See response to Interrogatory No. 13 above. 15. There are no loss of income claims in this case. 16. Plaintiffs are unable to add anything to the allegations of the Complaint and the responses to Interrogatories Nos. 12 and 13 above as to the details of the injuries suffered herein. 17. Plaintiffs are unable to add anything to the allegations of the Complaint as to the details of the negligence of Defendant and the causal connection between that negligence and the injuries to Plaintiffs. 18. Plaintiffs would expect to call at trial the treating physicians of Plaintiff John M. stone, J. Craig Jurgensen, M,D., and Rocco L. Manfredi, M.D. Plaintiffs expect that the testimony of these physicians will involve mixed evidence of fact and opinion. Plaintiffs are unable to make further specifications as to the nature of the testimony of these witnesses because Plaintiffs understand that - 2 - the Risk Management Department of Defendant has advised the treating physicians of Plaintiff John M. stone not to speak with counsel for Plaintiffs privately. It would be our intention to simply call these witnesses at trial without taking their depositions. Of course, we would cooperate with any pre-trial depositions which would be scheduled by Defendant, 19. Plaintiffs are unaware of any persons who have knowledge of this matter other than the persons indicated in the hospital chart of Plaintiff John M. stone and the roommate of Plaintiff John M. stone at the time of the injury, Galen Hershey. Mr. Hershey was in Room 201 at the time of the injury to Plaintiff John M. stone. He was and is retired. His address is 11 Broad street, Shippensburg, Pennsylvania. His telephone number is 717-532-8228. 20. On June 9, 1997, Galen Hershey gave an oral statement to counsel for Plaintiffs. The substance of that statement was that Mr. Hershey was born on November 4, 1930. He did not know either of the Plaintiffs prior to August 21, 1996. He was admitted to Carlisle Hospital for prostate surgery on the day before the injuries to Plaintiff John M. stone. When Plaintiff John M. stone was admitted to Carlisle Hospital, he was assigned to the same room as Mr, Hershey. Mr. Hershey was not taking any medication which would have interfered with his seeing, hearing or remembering the events of August 21, 1996, and August 22, 1996. Mr. Hershey described Mr. stone as being out of his mind. He was hunting rabbits under the bed. He was swatting bugs on the wall that were not there, He was cursing non-existent individuals. At a time which Mr. Hershey does not specifically recall, Mr. stone took off his hospital clothes and put on his street clothes. Mr. Hershey told Mr. stone that Mr. stone should get back in bed. Mr. stone said that he would be right back. Mr. Hershey then heard a stat called, Mr. Hershey was immobilized with a catheter. Mr. Hershey indicated that no nurses, security people or anyone else attempted to restrain Hr. stone. They put a chair out in the hall for him to sit on. Hr. Hershey does not believe that Mr. stone deserves any of the blame for what happened because he did not know what he was doing. We also have the hospital chart for Plaintiff John M, stone and his chart from the Perry Health Center as well as photographs of Mr. stone's injuries which were taken on September 3, 1996. Plaintiff Joyce V. stone also prepared a written summary of her knowledge of the events at the request of counsel for Plaintiffs. We, John H. stone and Joyce V. Stone, verify that the statements set forth in the foregoing Answers to Interrogatories are true and correct to the best of our knowledge, information and belief. We understand that false statements herein are made - 3 - Exhibit B ~ ,,-., W"YIII! F. SHADe "_,,In< SlW..._..._ CuWIo. l'alalylv..... 17013 JOHN M. STONE and JOYCE V. STONE, Plaintiffs IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW v, NO. 97-857 CIVIL TERM CARLISLE HOSPITAL AND SERVICES, Defendant HEALTH JURY TRIAL DEMANDED PLAINTIFFS' RESPONSE TO DEFENDANT'S REQUEST FOR PRODUCTION OF DOCUMENTS 1. A summary of the unrecorded interview with Galen Hershey has been provided in response to Defendant's Interrogatory No. 20. 2. None. 3. See response to Request No. 11 below. 4. The only medical bills in question would be the medical bills issued by Defendant on September 9, 1996, to No. 304946, copies of which would be in the possession of Defendant. 5. Copies of four photographs which were taken on September 3, 1996, are attached hereto. There are also a bloody t-shirt, bloody trousers and bloody pajama bottoms which may be made available for inspection at the offices of counsel for Plaintiffs. 6. None other than privileged statements of Plaintiffs to their counsel. 7. Defendant would have the original of the hospital chart of Plaintiff John M. stone, and the August 22, 1996, Event Report Form prepared by the agents, servants or employees of Defendant. The chart of Plaintiff John M. Stone at Perry Health Center would be available to Defendant by subpoena. 8. See response to Request No. 7 above. 9. In addition to their own testimony, Plaintiffs would expect to present the testimony of the following: (a) Galen Hershey, 11 Broad street, Shippensburg, Pennsylvania; (b) J. Craig Jurgensen, M.D., Belvedere Medical Center, 850 Walnut Bottom Road, Carlisle, Pennsylvania; (c) Rocco L. Manfredi, M.D., Carlisle Hospital, 246 Parker street, Carlisle, Pennsylvania; WAYNB F. SHADE A1IotIc111Law nw.......,"'_ CutIoIe. 1'IaIoy1v.... 17011 II (d) Medical Records custodian, Carlisle Hospital, 246 Parker street, Carlisle, Pennsylvania; and (e) Medical Records custodian, Perry Health Center, P. O. Box 913, Loysville, Pennsylvania, 10. There are no loss of income claims in this case. 11. In September of 1996, Plaintiff Joyce V. Stone prepared a written memorandum at the request of counsel for Plaintiffs. The memorandum was given only to counsel for Plaintiffs. It remains in the files of counsel for Plaintiffs. It has never been under the custody or control of anyone other than Plaintiff Joyce V. stone or counsel for Plaintiffs. It is privileged as a confidential communication between attorney and client. Date: July 2, 1997 wa1!~ s~uire Supreme Court No. 15712 53 West Pomfret Street Carlisle, Pennsylvania 17013 Telephone: 717-243-0220 Attorney for Plaintiffs - 2 - ~ Exhibit C ,........, I . . WAYNE F. SIIADE A1TllRNEY AT LAW SJ WEST PUMI'RET STllI,ET CARJ.lSLE,I'ENNSYLVANIA 1701l (717) l4J-ollO (HOO) l4J,OllO FA)((717)149.oD17 July 9, 1997 Francis E. Marshall, Jr., Esquire Marshall, Smith & Haddick 20 South 36th Street Camp Hill, Pennsylvania 17011 Re: Stone v. Carlisle Hospital and Health Services Docket No.: 97-857 Your File No.: M-132 ,luL I U ki~{ Dear Francis: Enclosed are our Answers to your Interrogatories and Request for Production of Documents. Obviously, we think that this is a case that should never have even gotten this far. While you may agree for the opposite reasons, if we cannot settle this case promptly and reasonably, our intention is to put these facts before a jury as quickly and inexpensively as possible for all ooncerned. Since you have not joined any Additional Defendants, pleasp. let us know whether or not you are interested in admitting liability in this case and simply trying the issue of damages. It will further be our position that expert testimony will be unnecessary where the negligence is as obvious as it is in this case, although we expect that the testimony of the treating physicians will involve mixed facts and opinions. Nevertheless, if you want to schedule the discovery depositions of Drs. Jurgensen and Manfredi, we would certainly be willing to cooperate toward that end. If you would be willing to agree that we could speak with the doctors privately prior to their deposition and if they would cooperate in that respect, we would be willing to agree to your taking their videotape deposition at the expense of Defendant. otherwise, it will be our intention to simply call them at trial under subpoenae, if necessary. ""'" Exhibit D I"". . . . . . . . . M'/}J,.. . . WAYNE F. SHADE A1TORNEY AT LAW 5] WEST POMfRET STREET CARI.ISl.f, PENNSYI.VANIA 1701l , 1 Iggf (717) 243.0220 (800) 243.0220 fAX (717)249-0017 July 16, 1997 Francis E. Marshall, Jr., Esquire Marshall, smith & Haddick 20 South 36th Street Camp Hill, Pennsylvania 17011 Re: Stone v. Carlisle Ho~pital and Health Services Docket No.: 97-857 Your File No.: M-132 Dear Francis: Thank you very much for your letters of July 8 and July 10. In response to your letter of July 10, 1997, we have given your secretary various dates for your requested depositions. We would hope that you would be satisfied to take those depositions here in this office or anywhere else in Carlisle for the convenience of everyone, frankly, other than yourself. We do not intend to provide any expert reports on the issue of liability because we believe that the negligence of the hospital is so obvious as to be clearly within the knowledge and comprehension of the average layman. We assume that you have reviewed the hospital chart in this case. We will be interested to hear your arguments to a jury that Mr. Stone's injuries did not result from the obvious neglect of the people at the hospital. We enclose our Request for Admissions. In advancing the Request for Admissions, we have no hidden agenda. We are not even necessarily saying that the hospital has done anything wrong to advise anyone not to speak privately with us. We simply want to establish as a matter of record the lack of independent private access to these witnesses as part of the foundation for opposition to any Motions for Summary Judgment which you may ultimately file on the basis of our determination not to generate substantial expenses in preparing this case for trial by engaging expert witnesses. We have no intention of filing suit against anyone else in this case but the hospital. Therefore, we would suggest that >- Cl i~ c:: c: ~.. '. .. " U/l: - <.. - .' l. 0>' L. C' f I L.'J I ( , ,-' l.. ,,~ . ,.. .:1 (,) (,;', u . . . JOHN M. STONE and JOYCE V. STONE, Plaintiffs IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA v. CIVIL ACTION - LAW CARLISLE HOSPITAL AND HEALTH SERVICES, Defendant No. 97-857 CIVIL TERM ORDER OF COURT AND NOW, this 10th day of December, 1997, upon consideration of Defendant's Motion To compel Response to Discovery Requests on behalf of Defendant Carlisle Hospital, and it appearing that this matter was listed for argument in contravention of the local rules proscribing the listing of discovery issues for argument, and following a conference held in the chambers of the undersigned judge in which Plaintiffs were represented by Wayne F. Shade, Esquire, and Defendant was represented by Joseph E. Maenner, Esquire, the matter is stricken from the argument court list, and Defendant's motion is granted to the extent that Plaintiffs are directed to disclose notes made by Plaintiff Joyce B. Stone with respect to the matters at issue in this case prior to her contact with plaintiffs' counsel. WAYNE F. SHADE, ESQUIRE For the Plaintiffs . - ~~ '~/:J:J,lq'l, .,&,i'. JOSEPH E. HAENNER, ESQUIRE For the Defendant wcy en ~~ N .. I~ 9 z:: < Ii r- I :r: aa: .., ~ CD Ql ~~ ~ ~~ 11411l 0 ... ~~ ~ lJlfzo~ - ~ 0 ~ ~~I lol roo .~~~:i ~ ~ ~ i 'tl 1Ilf-< ~ ~ J j ~ -~ ~ ~!f o I~ ~ ~~~ H ~ . tIl O! i o H p., Ill- >- ~i~~i O~ tIl 'tl ~~i ~t;.E fi! ~ o ~'" CI) III .~ ~~ U co ..-1 . ~tIlQl <I ':>114 :> tIl~j:l H~tIl U ~~~~~ ~~ ~~ :J1iI ~~ II<Q Z 1-10 I-IUuz.., ....,.., ~ ,.. ';. ---. ~ . . W A YNI! F. SHAPe ^1IofDe)' at LAw SlW..._......... C&rlWc. PmoIylvlDia 170ll ordinary lay persons. In addition, Plaintiffs have been unable to develop the opinions of the treating physicians of Plaintiff John M. stone for the reason that representatives of Defendant have counseled them not to speak with counsel for Plaintiffs as the authorized representatives of their own patient. 5. The averments of Paragraph 5 of Defendant's Motion for summary Judgment are admitted in part and denied in part. It is admitted that Plaintiffs are taking the position that expert reports are not necessary in this case, but it is denied that no testimony will be forthcoming. On the contrary, Plaintiffs aver that mixed statements of opinion and fact may be elicited during the testimony of the treating physicians of Plaintiff John M. Stone at trial but that Plaintiffs have been prevented from developing the testimony of those treating physicians prior to trial by reason of the deliberate and successful efforts of representatives of Defendant to persuade the treating physicians not to speak privately with counsel for Plaintiffs as acknowledged by J. Craig Jurgensen, M.D. in his deposition which will be filed of record herein. 6. The averments of Paragraph 6 of Defendant's Motion for Summary Judgment are denied. On the contrary, Plaintiffs aver that this is not a case of medical malpractice but rather a case of ordinary negligence as will be reflected in the Nurse's Notes which will be made a part of the record in this case prior to argument. -2- 7. The averments of Paragraph 7 of Defendant's Motion for Summary Judgment are denied. On the contrary, Plaintiffs aver that this is not a medical malpractice action but rather an action for ordinary negligence which will not require expert testimony. By way of further answer, Plaintiffs aver that, even if expert testimony is necessary, it will be developed through the treating physicians of Plaintiff John M. Stone with whom representatives of Defendant have spoken privately after counseling those treating physicians not to speak privately with counsel for Plaintiffs. 8. Admitted. 9. Admitted. By way of further answer, Plaintiffs aver that liability is obvious in this case. 10. The averments of Paragraph 10 of Defendant's Motion for Summary Judgment are admitted in part and denied in part. It is admitted that Plaintiffs do not intend to provide expert reports, but it is denied that there will not necessarily be expert testimony. On the contrary, Plaintiffs aver that the testimony of the treating physicians of Plaintiff John M. stone may contain WAYNE F. SHADe Aaonwy II law 53 Wut PomII'd Slmt Cartidc, Pawylvaaia 1701l expert opinions and that Defendants have had full private access to those physicians and whatever opinions they may offer while acting to deny Plaintiffs similar access. -3- ~ ~ JOHN M. STONE and JOYCE V. STONE, Plaintiffs IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW v. NO, 97-857 CIVIL TERM CARLISLE HOSPITAL AND HEALTH SERVICES, Defendant JURY TRIAL DEMANDED PRAECIPE TO THE PROTHONOTARY OF CUMBERLAND COUNTY: Please enter the following into the record in the above- captioned matter: 1. Plaintiffs' Request for Admissions. 2. Defendant's response to Plaintiffs' Request for Admissions. 3. Plaintiffs' Second Request for Admissions. 4. Defendant's response to Plaintiffs' Second Request for Admissions. 5. Notice of deposition of J. Craig Jurgensen, M.D. 6. Deposition of J. Craig Jurgensen, M.D. 7. Letter of July 16, 1997, to counsel for Defendant. 8. Letter of October 30, 1997, to counsel for Defendant. Date: January 20, 1998 WAYIm F. SHADe At&omcy It Law 53 W... PooDfm SInd CarlWe,~Iv..~ 170ll wff::~ ~shC+1:~~r~ Supreme Court No. 15712 53 West Pomfret Street Carlisle, Pennsylvania 17013 Telephone: 717-243-0220 Attorney for Plaintiffs WAYNE F. SHADB A.....,... Law l3 Weal I'omIra _ Culide, Pauuylvoola 17013 -- ".....,. JOHN M. STONE and JOYCE V, STONE, Plaintiffs :. IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW . . v. NO. 97-857 CIVIL TERM . . CARLISLE HOSPITAL AND HEALTH SERVICES, Defendant . . . . JURY, TRIAL DEMANDED REQUEST FOR ADMISSIONS PURSUANT TO PA R.C.P. NO. 4014 . TO: Carlisle Hospital and Health Services and Francis E. Marshall, Jr., Esquire, Marshall, Smith & Haddick, its attorneys YOU ARE HEREBY REQUESTED to admit, for the purposes of this action only, the following pursuant to Pa.R.C.P. 4014: 1. Rocco L. Manfredi, M.D., was a treating physician of Plaintiff John M. Stone in August of 1996 and that he was advised by representatives of Defendant that he not speak privately with counsel for Plaintiffs. 2. J. Craig Jurgensen, M.D., was a treating physician of Plaintiff John M. Stone in August of 1996 and that he was advised by representatives of Defendant that he not speak privately with counsel for Plaintiffs. 3. Floyd Raudabaugh was an eyewitness to the events which occurred immediately after Plaintiff John M. Stone was injured on August 22, 1996, and that he has been advised by representatives of Defendant that he not speak privately with counsel for Plaintiffs. WAYNI! F. SHADB A_ II Law 53 W... ""'ra SlRd CarIWo, """,,>,IvWa 170ll """"' ~ 4. Dawn Gutshall was an eyewitness to the events which occurred immediately before and after Plaintiff John M. stone was injured on August 22, 1996, and that he has been advised by representatives of Defendant that he not speak privately with counsel for Plaintiffs. 5. JoAnn August was an eyewitness to the events which occurred immediately before and after Plaintiff Jonn M. stone was injured on August 22, 1996, and that he has been advised by representatives of Defendant that he not speak privately with counsel for Plaintiffs. 6. Representatives of Defendant advised all other known eyewitnesses to the events surrounding the injuries to Plaintiff John M. stone on August 22, 1996~ and who were employees of Defendant on August 22, 1996, not to speak privately with counsel for Plaintiffs. You are directed to file Answers to these requests in compliance with the aforesaid rule within thirty (30) days after service of this request upon you. It is hereby certified that this Request for Admissions was mailed to counsel for Defendant on this date by the undersigned. Date: July 16, 1997 wa~~ Attorney for Plaintiffs --- r.. a proper request to put forth in a Request for Admissions, pursuant to Pa. R.C.P. 4014(a). Without waiving the objection, Defendant further states that private communication between plaintiffs counsel and employces of defendant hospital is violative of Rule 4.2 of the Pennsylvania Rules of Professional Conduct. 4. Objection. Defendant objects on the basis that the admission sought is irrelevant to the ~ubject rnBtter of the action at hand pursuant to Pa. R.C.P. 4003.1(a) and is therefore not a proper request to put forth in a Request for Admissions, pursuant to Pa. R.C.P. 4014(a). Without waiving the objection, Defendant further states that private communication between plaintiffs counsel and employees of defendant hospital is violative of Rule 4.2 of the Pennsylvania Rules of Professional Conduct. S. Objection. Defendant objects on the basis that the admission sought is irrelevant to the subject rnatter of the action at hand pursuant to Pa. R.C.P. 4003.1 (a) and is therefore not a proper request to put forth in a Request for Admissions, pursuant to Po. R.C.P. 4014(a). Without waiving the objection, Defendant further states that private communication between plaintiffs counsel and employees of defendant hospital is violative of Rule 4.2 of the Pennsylvania Rules of Professional Conduct. 6. Objection. Defendant objects on the basis that the admission sought is irrelevant to the subject matter of the action at hand pursuant to Pa. R.C.P. 4003.1(a) and is therefore not a proper request to put forth in a Request for Admissions, pursuant to Pa. R.C.P. 4014(a). Without waiving the objection, Defendant further states that private communication between plaintiffs counsel and employees of defendant hospital is violative of Rule 4.2 of the Pennsylvania Rules of Professional Conduct. --- ,-.... JOHN M. STONE and JOYCE V. STONE, Plaintiffs IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW v. NO. 97-857 CIVIL TERM CARLISLE HOSPITAL AND HEALTH SERVICES, Defendant JUR~ TRIAL DEMANDED PLAINTIFFS' SECOND REQUEST FOR ADMISSIONS PURSUANT TO PA R.C.P. NO. 4014 " TO: Carlisle Hospital and Health Services and Francis E. Marshall, Jr., Esquire, Marshall, Smith & Haddick, its attorneys YOU ARE HEREBY REQUESTED to admit, for the purposes of this action only, the following pursuant to Pa.R.C.P. 4014: 7. The attached copy of the Nursing Documentation Sheet is an accurate copy of the original of the same document in Defendant's chart for Plaintiff John M. Stone. 8. The attached Consent to Hospital Admission and Medical Treatment is an accurate copy of the original of the same document in Defendant's chart for Plaintiff John M. Stone. 9. J. Craig Jurgensen, M.D. is not an employee or agent of Defendant. 10. J. Craig Jurgensen, M.D. was a treating physician of Plaintiff John M. Stone while he was an inpatient of Defendant in August of 1996. 11. Representatives of Defendant have spoken privately with J. Craig Jurgensen, M.D., concerning the facts of this case. 12. Rocco L. Manfredi, M.D. is not an employee or agent of WAYNE F. SHADE Defendant. AGome)' at Law 5lWutl'casfrd_ Carlille. Pmn.ylvaaia .701l , I I , -. "....., 13. Rocco L. Manfredi, M.D. was a treating physician of Plaintiff John M. stone while he was an inpatient of Defendant in August of 1996. 14. Representatives of Defendant have spoken privately with Rocco L. Manfredi, M.D., concerning the facts of this case. 15. At all times pertinent to this case, Kathryn E. Podvia has been an authorized representative of Medical Inter-Insurance Exchange, the liability insurance carrier for Defendant. 16. On or about February 4, 1997, the said Kathryn E. podvia received a demand letter of February 3, 1997, from counsel for Plaintiffs in connection with this case. 17. After receiving that demand letter, the said Kathryn E. podvia discussed the contents of that letter with J. craig Jurgensen, M.D., the treating physician of Plaintiff John M. stone. 18. The said Kathryn E. podvia advised the said J. craig Jurgensen, M.D., not to speak privately with counsel for Plaintiffs. You are directed to file Answers to these requests in compliance with the aforesaid rule within thirty (30) days after service of this request upon you. It is hereby certified that this Request for Admissions was mailed to counsel for Defendant on this date by the undersigned. Date: December 15, 1997 WAYI'II! F. SHADe Aaon.e)''' Law 53 W... I'omIrd _ CuUdc, Pal4IyIv&lli.l 1701l Way(f!~h~~e supreme Court No. 15712 53 West Pomfret street Carlisle, Pennsylvania 17013 Telephone: 717-243-0220 Attorney for Plaintiffs -., ,-... PATIENT OUTCOMElEV ALUA TION DATEf: -:;1./-9 {O 131:f - /q'\ l...u.... ..c<~ -'l'>'\1\ 't.. '"lA' ", '/-1,,0 J.,-<.Q, ~../J-I'r TI~ ^",.i.~ -fo .1><-C-f ~ ., Xt.<J"t>..o dJ"'I.Uf ,{~ ~~ , 1- VI ' fId"~ ~ r l.I:><--(~ " <fJ+ ~UA~ I I ~J ~~ ..(1 ~-", ,{l..\ r' "_' 1.0(\ u_, f^lo 1>.-dO~ /UAA..1" IIA=--~~.-L(tl)f- t.SC-dY>iI"~.orir nOu,fY-P'""./,'J IlJ. ~( C 'ff. J'oI. -4-U.. ~ -It. Sa 0013 W,~",Lf- 1u.J.,ja..s~ t.tr4- JO..... ,"f.'O".....H'1 a.....""L'1~...., /')A.#~. JIl(,.~ (l~. ~....,....,' ./~y}w~" I-171.A~' OJ... . ~_ '~O;1. c.~. +.~ ~'-, .fd~-u-/\1-".............. d{ ~~ <U1.1""", , CVfu:/- F I ~ ~ , ~oLu 1P"..d.d.-:o,~" Q..J"~,,l~J..,J74 'ts:"'nt..I "r'J,( ,'! P '11- -f-tH./.AJ . Il-u & 61), ~,., ....,M..-. I.k dA.f' 4lILL . PrJ-J...0....l I ~ n, I eJMt A:M..p,.oIl. ~ YlA../ ~ .;,. ~ fru..J ~ A-LJ. ,J7. . ~ II{ q)"" --J. ~7i~Z~~j~X:;+'-:;~~~.~~ c'? ----;t.; J "1...... .-./J'?%/17 7'1;..JJ'":?"" ~./A.-----?..dJ__J-Y <:+- ./12. O",~..h-"....". c::;>~ "Zi ~(>./~; ~ -1":f'A ' " /./6-/ ~~,,?'~d~2!-~.&-.....'Sr.u.....,,/~ ~~fJ~~~;v~~t:::~j~~~#~/) ~~/UA,~ " /~.. ;n~1Ji.:;::;;,C;;-;::L~~;:Y;:::'~+- ~ - ADDRESSOGRAPH I! '.. , . '-' .;....~. ~ .. t. ,.1" i"'" f\.j ",Ii '~,i';L'tJ ~ Carlisle I-bspital ~ NURSING DOCUMENTATION SHEET ,". 070 III S7~::r. J~u~ ". 0~111/1b ~CIO [NOL~ RD 07/lInb Nl"VILL[. PA JeQf,[NS[H.J C 203S' ~O 30Y""tb HO ouo 16IUI I / .-.., . ,.-.., ~ Carlislc Hospital ~, and Hcalth Scrviccs ~ame of Attending Date of Admission: CONSENT TO 1I0SPITAL ADHISSIOIl AIm HEOICAL TRGATHBIIT physician (01, ~tr, r " ? .OA -diAV A'.:2.'~9(" T me: Ia.: O;;J.. (AM)_(PM)_ I, (or acting on behalf of) NJIH or AulhorllCd Rtprtnnlalln , suffering from a condition requiring hospital care, hereby Nama or Pall.nl consent to rendering of ouch care, which may include routin~ diagnostic procedures and such medical treatment as the named attending physician(s) or other of the hospital's medical staff consider to be necesoary. 2. I understand that the practice of medicine and surgery is not an exact science snd that diagnosis and treatment may involve risks of injury, or even death. I acknowledge that no guarantees have been made to me ao to the reoult of examination or treatment during this hospitalization. 3. I understan~ that: (A) It is customary, absent emergency or extraordin~ry circumstances, that no substantial procedures are performed upon a patient unless and until he or she has had an opportunity to discuss them with the physician or other health professional to the patient'a satisfaction; (S) Each patient has the right to consent, or to refuse consent, to any proposed procedure or therapeutic 9ourse; and (C) No patient will be involved in any reoearch or experimental procedure without his or her full knowledge and consent. , . .J .. ;'1 understand that mallyof the physicians on the staff of this hospital, including the attenaing physician(s) named above, are not employees or agents of the hospital but, rather, lire independent contractors who have b~en. granted the privilege of using its facilities for the care and treatment of their patients. Further, I realize that among those who attena patients at this hospital are medical, nursing, and other health care personnel in trainihg who, unless requested otherwise, may be ptesent during patient care as a part of their education. still or motion pictures and closed circuit television monitoring of patient care also may be used for educational purposes or for documentation of the clinical course unless a patient expressly requests otherwise: . s. ;, I release CARLISLB HOSPITAL from all responsibility for all articles which I am retaining; or will have with me during my stay at the hospital. I understand this includes c1othing,i'bridgework, false teeth, eyeglasses, jewelry, money, radio, razor or any other item kept in my possession. I understand I may deposit valuables in a safe provided by the hospital I only if this is done will the hospital assume any responsibility for the safekeeping. 6. I hereby acknowledge that I have received written information on the topics of Patient Rights and Advance Directives. Date of signature: 8~;;J 1-'1 ~ -;, h ;f.' ~ r6 0. {SIONA URB OF P~ BNT (J () IL tft..P ;0/ ~ ..iI.1 Ii) lSIGNATURB OF WITNESS} (If patient is unable to consent or is a minor, complete the following:) Pat,ent [is a minor _ years of agel [is unable to consent because] : , {SIGIlATURE OF LEGAL GUARDIAN OR CLOSEST AVAILABLE RELATIVE} {SIGNATURE OF WITNBSE} AD 0315 (10/91) , , -.. ,-... ( JOHN M. STONE AND JOYCE . IN THE COURT OF COMMON PLEAS . V. STONE, CUMBERLAND COUNTY, PLAINTIFFS . PENNSYLVANIA . V . CIVIL ACTION - LAW . NO. 97-857 CIVIL TERM CARLISLE HOSPITAL AND HEALTH SERVICES, . . DEFENDANTS JUR~ TRIAL DEMANDED DEPOSITION OF: J. CRAIG JURGENSEN, M.D. DEFENDANTS TAKEN BY: BEFORE: BOBBI JO HAHN, RPR NOTARY PUBLIC f DATE: NOVEMBER 18, 1997; 1:30 P.M. PLACE: BELVEDERE MEDICAL CENTER 850 WALNUT BOTTOM ROAD CARLISLE, PENNSYLVANIA APPEARANCES: BY: WAYNE F. SHADE, ESQUIRE FOR - PLAINTIFFS MARSHALL, SMITH & HADDICK, P.C. BY: FRANCIS E. MARSHALL, JR., ESQUIRE FOR - DEFENDANTS ALSO PRESENT: JOYCE V. STONE JOHN M. STONE GEORGEANN LAUGHMAN l1un1tes, :Jll6righi, 'Foltz ir JVatde :Reporting Serna, 8nc. 115 PINE STREET. HARRISBURG. PA 17101 Harrisburg 717.232.5644 Fax 717,232.9637 Lancaster 717.393.5101 ,..,.., I"", ( WITNESSES NAME DIRECT CROSS REDIRECT RECROSS J. CRAIG JURGENSEN, M.D. BY: MR. MARSHALL 3 BY: MR. SHADE 18 EXHIBITS PLAINTIFF'S NO. PRODUCED & MARKED 1. LETTER, 12/2/96 44 2. LETTER, 7/1/97 53 3. LETTER, 6/10/97 57 ( 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 ~ ~ 3 STIPULATION It is hereby stipulated by and between counsel for the respective parties that sealing, certification and filing are hereby waived; and that all objections except as to the form of the question are reserved until the time o~ trial. J. CRAIG JURGENSEN, M.D., called as a witness, being duly sworn, testified as follows: DIRECT EXAMINATION BY MR. MARSHALL: Q I introduced myself to you. My name is Frank Marshall. I represent the Carlisle Hospital in an action that's been brought by Mr. and Mrs. Stone. We're here today to ask your -- ask you some questions about the care and treatment that you had rendered to Mr. Stone at the time of his admission in August of 1996 to the Carlisle Hospital. I understand you're here as a fact witness. You're going to testify about your care and treatment; is that correct? A Yes. Q You are not here to render any expert opinions for either the Plaintiff or Defendants in this case? 1 ( 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 -- ,.-., 4 A Correct. Q Okay. MR. SHADE: I'm not sure we have an agreement to that subject. You called this deposition. For the record, I'm not acquiescing in what you just said right there. MR. MARSHALL: The doctor is here to testify solely as a fact witness. He has rendered no expert report to either you or to me1 and for that -- for the purposes of this deposition, it's my understanding and indeed the doctor's position that he is not here to render opinions for anybody but that he is solely to testify concerning his care and treatment of this patient. MR. SHADE: I do not see that in the notice of deposition. I want to state that for the record1 and I don't feel precluded from -- by anything that you've said from asking him his opinion about anything that happened in this case. MR. MARSHALL: He has the perfect right if he feels it's an opinion he doesn't want to give, he can so state. Okay? THE WITNESS: Right. BY MR. MARSHALL: Q Could you state your full name for the 1 ( 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 ~ ~ 5 record, please? A John Craig Jurgensen. Q And Dr. Jurgensen, could you just for the record give us your business address? A Belvedere Medical Center, 850 Walnut Bottom Road, Carlisle, PA. Q And what is your specialty in medicine, if any? A Internal medicine and neurology. Q Okay. Could you briefly tell us your educational background starting with college through medical school? A Undergraduate degree from Rutgers University in 1962; a medical degree, M.D., from New York Medical College in 1966; internal medicine training completed in 1970 and at the Henry Ford Hospital and neurology training fellowship completed in 1982 in neurology at the Penn State University Hospital in Hershey. Q Okay. Are you licensed to practice medicine in Pennsylvania? A Yes. Q For how long? A Every three years I think my license is renewed. Q Has your license been continually renewed ( 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 ~ ~ 6 since you started practice? A Yes. Q Okay. You hold any board certifications in any specialty? A Yes, internal medicine and also neurology. Q Okay. Do you belong to any medical societies? A I belong to the American Academy of Neurology Q Okay. A -- and to the Pennsylvania Medical Society. Q Okay. Do you hold staff privileges at any hospitals? A Q A Yes, Carlisle Hospital. Any other hospitals? No. Q Okay. And how long have you had staff privileges at Carlisle Hospital? A Since 1972. Q Okay. Now, sir, with respect to -- I have the record in front of you with respect to Mr. Stone who is seated here across the table today. Could you tell me, sir, without looking at the chart do you have an independent recollection of the patient, Mr. John Stone? ( 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 '" ,.. 7 A Yes, I do. o Okay. Independent of the record, generally, what do you recall concerning your care and treatment of him? A Well, I recall admitting him to the hospital when he was ill in August of "6. o Okay. Why don't we talk about that. How was it -- or prior to August of 1996, was Mr. Stone your patient? A No. o Okay. Bow was it that he became a patient of yours? A He was referred to me for -- he was referred to the hospital and to me by his referring doctor who I believe was Dr. Gasull 0 Okay. A -- at the Perry Health Center. 0 That's up in Perry County? A Right. 0 Could you take a look at your note in the chart, Doctor? Could you tell us what your first contact was with Mr. Stone? A I believe the first contact was in the emergency department. Q Okay. You have the progress note, I ( 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 "'"" ,-.., 8 believe. Maybe I can show that to you to speed this up. Now, Docto~, prior to meeting Mr. Stone, did you have any conversations with Dr. Gasull? A No. Q Okay. All right. Could you tell us, sir, what was your first contact wi,th Mr. Stone? A Well, I saw him at the bedside; and I examined him and interviewed him. Q And what was the date and time of that note? A August 21st at 1400. Q Okay. For the record, could you read your note handwritten note slowly so the court reporter can take it down? A Note states 60-year-old man with weakness and jaundice. History of weight loss, nausea, history of alcohol addiction. Examination revealed jaundice, decreased memory, minimal generalized weakness and increased liver illness. Gives an impression of jaundice and cirrhosis and plans outlined for doing a gallbladder ultrasound examination. Q Okay. And do you have any recollection of that particular conversation or -- A Yes. Q Okay. The history that was given, did you obtain that from Mr. Stone? ( 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 -, ,-.. A Yes. Q Was he able to give you his history? A Yes. Q Okay. At that time, what was your first your plan of action and what orders did you then initiate? A Well, since he was jaundiced, that was obvious. I was concerned that there was some abnormality of the liver or the bile system. Q Uh-huh. A And so I decided that he needed an investigation for the cause of liver disease and cause of jaundice and wrote orders to that effect. Q And what, if any, orders did you write? A The orders written at the first stage had to do with that -- indicate this way, clear liquid diet, chemistry profile, liver profile, ultrasound of the gallbladder and routine vital signs, up with assistance. Q Okay. Now, with respect to Mr. Stone's condition at that time, had you received any information from Dr. Gasull or anyone at Perry Health Center that they -- that anyone up there was concerned about his being a threat to himself or others at that time? 9 ( 1 2 3 4 5 6 7 B 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 ( -- ,-.. 10 A No. o Okay. How did you initially find him in terms of his mentation? A Well, I found him to be quiet; and I found him to have decreased recent memory. I thought his mood was depressed. o Okay. Did you consider him to be a threat to himself or others at the time of your initial assessment? A No. o Okay. Would I be correct that having answered that in the negative would there be any reason to admit Mr. Stone at that time to a psychiatric ward for evaluation? A I did not think so. o At that time, Doctor, did you believe there was any reason to restrain Mr. Stone in any fashion? A I did not think so. o Okay. All right. What was your -- after your initial orders then, what was your next contact concerning Mr. Stone either in person or by contact with nurses or anyone else? A Well, that was the -- now, wait, see, that was the 21st. Q Yeah, I believe your first note was 8/21/96 ( 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 ...... ,-... 11 at 1400 hours. A All right. So the next contact came from by way of the nurses. Q Okay. Do you know -- do you have a recollection of having any contact with nurses concerning Mr. stone? A Yes. Q Okay. Could you give me an approximation of the time and the content of information that was received? A Well, that's indicated in the nurse's notes. Q Okay. A And so there are nurse's notes at 1400, 1600 and 2000. Q Okay. Could you tell me what, if anything, you were advised at the 1400 I believe you said? A Fourteen hundred indicates that the nurses observed swelling and no other new reports. Q Okay. A At 1600, the entry says alert and oriented. Answered questions appropriately. Lower legs are swollen. At 2000, they indicate patient is awake. Wife at the bedside. Vital signs are stable. Lungs clear. Patient said he feels better and got conformed. ( 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 -, ,-, 12 Q Okay. A Then at -- on -- after midnight at 30 minutes after midnight, nurse indicates alert and oriented but confused in his conversation. Q Okay. Now, were you called at that time about any of the -- condition of Mr. Stone? A What's your question, was I called? Q Let me ask you this. What was your next contact concerning the care of Mr. Stone? A The next contact or information I had is since I was not on call ~he rest of that night -- Q Okay. A I didn't have any information until I walked in in the morning and was told what took place. So when I walked on the floor the next morning, I was informed about what had transpired. Q Did you have an opportunity to evaluate Mr. Stone at that time? A Yes, I did. Q And what was the time of your note? And if you could tell us, what was the your findings at that time? A My note next, noon. When I wrote the note is 12 noon. Q On the 22nd? -., ,-., 13 (' 1 A Right. 2 Q Okay. 3 A At that point according to my observations, I 4 indicated he had a behavioral deterioration. Patient 5 was insisting on leaving the hospital. Be was 6 disoriented to place, person and time. Be was 7 agitated, and he was pacing about. And he was shaky. 8 And I indicate that it was organic behavioral disorder 9 and delirium tremens were considered, and I said here 10 liver or hepatic disease and plan was to give him 11 medication. 12 Q Okay. Now, as I understand it, this was a 13 changing condition from what you had observed the 14 previous day? 15 A Right. 16 Q Okay. Now, you make reference to delirium 17 tremens? 18 A Right. 19 Q Now, do you know was this a possible disorder 20 that you were considering there or did you explain more 21 clearly the situation you were presented with and what 22 you were your evaluation was at that time? 23 A Well, at the noon examination on the 22nd, I 24 indicated I observed that he was agitated and shaky and 25 confused; and that is, in fact, the clinical condition ( ( 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 ~ ~ 14 of what's called delirium tremens. Q Do you know whether Mr. stone had advised you previously whether he had consumed any alcohol over that period of time? A Yes. Q You say he did or -~ A He did inform me he had been -- he had been drinking Q Okay. A in the past. Q In the past. Okay. Now, this hepatic encephalopathy, what exactly does that term mean? A That's a disorder of the nervous system brought about by the chemical effects in the nervous system brought on by diseased liver. Q Okay. And does that sometimes affect the mental capabilities of a patient? A Yes. Q Okay. And was there any doubt that Mr. Stone had had liver disease at that time? A There was no doubt. Q Okay. Could you explain initially, Doctor, why Mr. Stone was admitted to the medical ward of the hospital as opposed to any other section of the hospital? ( 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 ~ ~ 15 A The primary condition looked to be medical and in the sense that he was jaundiced and had signs of liver disease. And there was subsequent chemical evidence for that as well. So this was a medical case that Q Was this the type o{ case that you customarily handle on the medical floor? A Yes. Q Okay. At any time -- at the time of your August 22nd noon visit, did you make any observations concerning Mr. Stone's condition relative to whether or not he appeared to be a threat to himself or to others? A Did I make any observations? Q Yes, or any findings or conclusions. A No, I mean in the sense that he was able to converse with me. He gave me history. Nurse's notes indicate that he was able to converse with them. That indicated he was oriented. And I think they were important observations. Q Okay. Now, as I understand it, Mr. -- strike that. After the attempt at elopement or whatever the situation was when Mr. Stone attempted to leave the hospital and injured his arm, did you request or seek any type of consult or refer him over to any other physician in the hospital? ( 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 ( ......... ,-.., 16 A Yes, a psychiatry consult was requested. Q Okay. And with -- who did you refer the patient to for that purpose? A Dr. Manfredi. Q Okay. And to your knowledge, was the patient transferred over to the psych~atric ward for some period of time? A Yes. Q Okay. And eventually was he returned to the medical floor of the hospital? A I believe so, yes. Q Do you know approximately I have a medical record here. Perhaps this might clear it up. There appear to be some dates. And this is the Carlisle Hospital admission record. A Okay. Q And it appears to say medical floor 8/21/96 to 8/22/96, and it says principal diagnosis hepatic encephalopathy. And then there is a psychiatric unit note 8/22/96 to 8/23/96. Does that -- A Right. Q -- comport with your recollection as to -- A Yeah. Q Okay. And as I understand it, after evaluation, he was returned then to the medical floor I ( 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 ""'" ~ 17 for the management of his condition? A Right. Q Okay. At any time that you had conversation with Mr. Stone, did he indicate to you that he intended to harm himself in any way? A No. Q Did he -- did he indicate to you that he intended to harm any others? A No. Q Okay. Did you ever have any conversations with Mrs. Stone to your recollection? A During this time in the hospital? Q During the 21st or 22nd? A I don't recall them. Q Do you have any recollection of Mrs. Stone ever advising you that her husband prior to admission had given any indication of intending to harm himself or others? A No. Q Okay. If there had been such a conversation, would you have charted that as part of your routine? A I expect so in my social evaluation here. Usually -- I made reference to his wife and the marriage here. I'm not sure when she told me that, when he was married to her. ( 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 ~ ~ 18 Q All right. Would I be correct, sir, that based upon your initial evaluation and history and physical that you obtained that Mr. Stone was appropriately admitted to the medical side of the hospital as opposed to the psychiatric ward? A Yes. MR. MARSHALL: Okay. I think that's all I have, Doctor. Mr. -- will ask you some questions here. CROSS EXAMINATION BY MR. SHADE: Q Good afternoon. What time did you arrive at the hospital on August 22, 1996, the day after Mr. Stone jumped from the window? The day that he jumped from the window. I guess the morning after he jumped. A I don't recall exactly. I'm assuming it was about 7:00 but -- Q But you did not see Mr. Stone then after he jumped from the window until about noon? A No, I did see him early. Q I thought your testimony on Direct was that A That's when my note is at noon but I __ Q Okay. Do you have any idea about what time you would have seen him? ( 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 ~ ~ 19 A No, here the timing was that when -- when I arrived which is my usual at 7:00, he was still downstairs in the emergency department. He WAS not in his room at the time. Q All right. A He was being treate( in the emergency department so he was away. Q So you did not see him in the emergency department when you arrived that morning? A No, no. And it was later in the morning then he was brought back up and later when I came back to the hospital and -- and examined him in my return. Q Oh, you went to the hospital, did your rounds, then you left. When you came to the hospital to do your rounds in the morning, did you hear about this incident? A Yes. Q And so you knew that he was in the Emergency Room? A Yes. Q But you didn't go down to see him there? A No. Q Is there any reason why you would not have done that? A No. ( 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 ~ ~ 20 Q So then you came back to your office and saw patients at the office. And then do you have any idea about what time it would have been that you would have gone back. Would it have been around noon that you went back to the hospital? A I don't recall exactly. Q Why would your notes say noon if it weren't noon? Is there a reason why your note would say noon if it weren't noon? A That's when I wrote the note. Q Are you suggesting that you did not write the note contemporaneously with the examination? That's a possibility. But you're not sure? I'm not sure. And it could have been contemporaneous as A Q A Q well? A Q in the 23rd? A Q 23rd? A I don't recall. Now, did you say that Mr. Stone was evaluated in the psychiatric ward on August 22nd and He was transferred up there. Right. And he stayed up there until the I think that's right. .--. ,...... 21 ( 1 Q According to what you said and the documents 2 you were reviewing? 3 A Right. 4 Q Then he was returned to the medical floor? 5 A Right. 6 Q When he was returne~ to the medical floor, he 7 had security, didn't he? What does the chart say about 8 that? 9 MR. MARSHALL: Do you have a page reference? 10 MR. SHADE: No. 11 THE WITNESS: Well, it says here, for 12 instance, August 23rdi and this is back on the second 13 when he returned to the second floor nursing staff 14 and in constant attendance. 15 BY MR. SHADE: 16 Q What does that mean? 17 A It means nursing staff in constant 18 attendance. 19 Q Did they assign a specific nurse to watch him 20 that he wouldn't try to escape? 21 MR. MARSHALL: I'm just going to object to 22 the form of the question. 23 BY MR. SHADE: 24 Q Did they assign a specific nurse to him to 25 watch him when he was returned to the medical floor? \, ( 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 ,~ ~ 22 A I don't know how to determine that. Q Well, does a note that says nursing staff is in constant attendance mean something different from -- MR. MARSHALL: Could you refer the doctor to the particular note so he has an opportunity to review it? MR. SHADE: Referring to what appears to be the nurse's note on August 23, 1996 at 1930. MR. MARSHALL: Would you let him find it first? I have it. THE WITNESS: BY MR. SHADE: Q Where it says nursing staff is in constant attendance with the patient, does that mean something different than simply nurses being in attendance with a patient in general? A I couldn't elaborate or specify. Q Is there a reason why a nurse would make -- to say that a nursing staff is in constant attendance with a patient, is that a typical entry in the nurse's notes? MR. MARSHALL: For a patient such as Mr. Stone? MR. SHADE: For any patient. MR. MARSHALL: If you can answer. 1 ( 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .-, r- 23 BY MR. SHADE: Q Is there anything usual about the fact that it is stated specifically that the nursing staff is in constant attendance with the patient? A Well, I think that indicates, you know, a degree of of constantcy whiph is -- which is more than usual. Q More than usual. When Mr. Stone was admitted to the hospital, he was admitted under your care? A True. Q So would it be a correct statement you were what is commonly called the attending physician? A Right. Q And so you were in charge of his care then from the time he was admitted? A Right. Q Was anyone else in charge of his care at Carlisle Hospital between the time he was admitted and the time that he jumped from the second floor? A No. Q Now, the next question I have is a bit different. My previous question was was anyone else in charge of his care before he jumped. And the next question is was anyone else responsible for his care between the time he was admitted to the hospital and ( 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 ~ ~ 24 the time that he jumped from the second floor. MR. MARSHALL: I'm just going to object to the form of the question. You can answer that if you can, Doctor. THE WITNESS: I'm not certain of the -- of the exact naming; but the assopiate -- one of my associates I know was called over there when this happened. BY MR. SHADE: Q Who would that have been? A I'm not sure because it doesn't say in here; and it was -- theLe's -- it's either Dr. Albright or Dr. Hatleberg. And I don't recall. Q Well, let me ask you another question. After Mr. Stone was admitted to the medical floor, what was the responsibility of the nursing staff concerning his care from that point? MR. MARSHALL: I'm just going to object to the form of the question and ask, Doctor, if you know specifically. THE WITNESS: I couldn't except to indicate, you know, in my orders where I say here -- they have a protocol. When I say up with assistance, for instance, there's a protocol that they follow in that category. That's a category of observation which has certain 1 ( 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 1B 19 20 21 22 23 24 25 -., ,.-., 25 elements associated with it. I can't specify what they are, but that's what up with assistance means. BY MR. SHADE: Q Well, if Mr. Stone's condition deteriorated significantly from what it was when you first examined him A Uh-huh. Q would you have expected the nurses to have notified you or the person who would have been covering for you? A Yes. Q And I believe you indicated that when you left the hospital on August 21st that you were not on call? A Q A that. That's correct. Who was covering for you? I would have to check the schedule to review Q Could you do that and give us that information? Could you supplement that information to us? A simple call to my office would be satisfactory. MR. MARSHALL: Why don't you -- why don't we have -- why don't we -- if you can just send us a letter, that would be appreciated, Doctor. Why don't we do it that way? ( 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 ......, ,..... 26 BY MR. SHADE: Q Have you reviewed the entire chart in this case? A Yes. Q And would it be a fair statement that eventually -- well, first of all, would it be a fair statement that Mr. Stone's condition did deteriorate from the time he was admitted to the hospital? A Yes. Q And could it be said that he eventually became delusional? MR. MARSHALL: I'm going to object to the form of the question. If you can give us some time reference. BY MR. SHADE: Q Could it be said that between the time that any time between the time that he was admitted to the hospital and the time that he jumped from the second floor window of the hospital that he was delusional? A I don't -- I don't think delusional would be the right word. Q Okay. what word would you use? A I indicated in my first -- in my new note the 25 word delirium. ( 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 -., ,-, 27 Q Delirium. And what does that mean to you? A Delirium is a mental condition characterized by irregular -- or irregular thought processes and disorientation. Q And you don't consider that to be synonym~us where delusional? A No. Q How would you define delusional? A A delusion is a false idea. Q Okay. And would you equate delirium in the lay sense with hallucinatory? MR. MARSHALL: I'm going to -- before you answer, Doctor, I'm just going to object. I think the doctor is here to testify as a fact witness. I think you're now asking him for, in essence, expert opinion; and I object and move to strike. MR. SHADE: For the record, Dr. Jurgensen was Mr. Stone's treating physician; and I don't think it's at all unreasonable for us to ask him any of these questions along these lines. We are not the ones who called this deposition. MR. MARSHALL: We'll see what the jUdge says. Note my objection. BY MR. SHADE: Q So would you consider this delirium that ( 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 ~ ~ 28 you've described as being synonymous in the lay sense with hallucinatory? A No. Q What would you consider to be hallucinatory? A Hallucination is a more or less vivid sensory perception of either visual o~ auditory ideation which is erratic. That is, it's either visual or sensory or auditory fragment or thought piece. Q Now, you said earlier that Mr. Stone indicated that he had been drinking in the past. How far in the past does that reference? A I believe that there was the history that I indicated was that he had become abstinent in 1994. Q So you're not suggesting by your testimony that you have any information from any source that he had been drinking even within two years of this incident? A Correct. Q And did you have any indication from your examination or other observations that would indicate to you that he had been drinking within that two year period that he indicated of abstinence? A No. Q So while the lay perception of the term delirium tremens is often associated with abuse of ( 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 ( \ ......, ,....., 29 alcohol, are you suggesting that that's not necessarily the case, that you can have them without having recently consumed alcohol? A Yes, you can have delirium tremens from at some time moved from exposure to alcohol. Q So to what A And other things can cause delirium tremens besides alcohol disease. Q Such as what? A Other kinds of brain disease including degenerative brain disease, other kinds of brain poisoning syndromes. Toxicity conditions can cause delirium tremens. Q In the lay sense, is there a suggestion here that Mr. Stone's liver was malfunctioning and as a result of that malfunctioning there were chemicals going into his brain that were causing these delirium tremens? A Correct. Q Would that be specifically possibly ammonia? A Yes. Q And was that the case in his case? A Yes. Q Now, with these excuse me. Between the time that he was admitted to the hospital and the ( 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 ~ ~ 30 incident that occurred when he jumped from the hospital, would you say that he was mentally impaired at any time during that period? MR. MARSHALL: You mean other than -- I'm going to object to the form and from the standpoint the doctor can only testify as to ~is personal knowledge. I don't believe the records really established a foundation laid that he was there the entire time. MR. SHADE: To respond, I would say that he has indicated that he has reviewed the entire hospital chart so I would -- let me ask you this. You rely on entries in the hospital chart to treat your patients, don't you? THE WITNESS: Yes. BY MR. SHADE: Q And to assess their condition? A Yes. Q And to assess what has happened to them while they have been a patient in the hospital and you weren't there? A Right. Q And having reviewed the chart in this case as you've indicated that you have, would you say that Mr. Stone was mentally impaired at any time between the time that he was admitted to the hospital and the time (. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 ~ ~ 31 that he jumped from the hospital? A There is -- the last nurse's note references the word confusion. So in that sense, that's an impairment. Q And would you conclude from the fact that anybody jumped from the hospit~l at all -- that just from the fact that he jumped from the hospital there was a mental impairment? MR. MARSHALL: I'm going to object to the form of the question and the characterization as you have placed it. You can answer that if you can, Doctor. THE WITNESS: Ask the question again. BY MR. SHADE: Q Well, from the mere fact that he jumped from the hospital at all, would you conclude that there was mental impairment? A Yes. Q And was it this liver dysfunction that was causing his mental impairment? A That was the assumption, yes. Q Are there degrees of mental impairment? A Yes. Q And how do you express those degrees? A There are many different ways. I would say ( 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 ~ ~ 32 mild to modorato or Dovoro or o Is thoro a scalo or anything liko that you use? A No, thoro's no scale. o When he -- from your reviow of th~ chart when he jumped from the hospital, how would you characterize the degree of his montal impairment at that time? MR. MARSHALL I Note my objection on the record again. You can answer if you can. THE WITNESSI I would say aberrant. BY MR. SHADEl o I beg your pardon? A Aberrant. o And what is that on the continuum of impairment in your terminology? A Obviously, it'o a severe epioode. o I think you indicated that from your review of the chart that it appeared that Mr. Stone'o mental condition deteriorated from the time of your initial examination at the time of admiooion. What are the indications in the chart that tell you that? A The nurse's noto. o And would that be opecifically the nurse's notes of the early morning houro of August 22? A Yes. ( 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 1B 19 20 21 22 23 24 25 .~ "....., 33 Q And would you say that the behavior of Mr. Stone as described in the hospital chart in the nursing notes for the early morning hours of August 22, 1996 was a problem that needed to be addressed between your initial examination and when he jumped out the window? MR. MARSHALL: I'm g,oing to object to the form of the question. THE WITNESS: The nurse's notes are descriptive. BY MR. SHADE: Q Are you saying that -- is there anything in the nurse's notes that you think you or the physician who was covering for you on call should have been notified of? A There are no notifications indicated here but except, you know, the end one, that notification. But she's -- she's the nurse's notes are descriptive. Q What do you mean when you say they are descriptive? A She describes exactly where he was and what what was going on with him. Q Well, when he was walking through the hallways talking to himself about cats and dogs being in his bed, should the nurses have notified someone of that? ( 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 """" ""'" 34 I'm going t~ object. Calls MR. MARSHALL: for expert opinion. THE WITNESS: BY MR. SHADE: Q You're saying you could but you're declining to answer today? A Right. Q And as Mr. Stone'a treating physician, don't you feel an obligation to anawer a queation of his lawful representative? MR. MARSHALL: What do you mean by that? MR. SHADE: Well, if he were to ask you that question directly aa your patient and as one who has paid feea to you for hia treatment, would you feel an obligation to anawer that question that he raised to you? I won't answer. MR. MARSHALL: I'm going to put an objection on the record. I have think the doctor has testified that he is here as a fact witness. The notes speak for themselves. I don't believe that the doctor has indicated that he ia here to testify and render opinions on the standard of care of nurses. I don't believe that he has that background, training or experience. And to the extent you're seeking to obtain such testimony, I object and move to ( 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 ~ ~ ~ 35 strike. MR. SHADE: And I renew my question. If Mr. Stone were to ask you, Dr. Jurgensen, when the nurse's notes say I'm walking through the hallways talking to myself and saying that there are cats and dogs in my bed and the nurse's notes say I'm confused, do you think that the nurses should have notified anybody of that, if he were to ask you that as your patient, would you feel obligated to answer it? MR. MARSHALL: Same objection. BY MR. SHADE: Q Irrespective of what the answer is, I'm just asking you if you would feel obligated to answer it as his physician. A Yes. Q Do you recognize that I am his legal representative here and that any question that I ask you is the same as though he were asking you? A Yes. I don't believe that to be the MR. MARSHALL: case, but go ahead. BY MR. SHADE: Q Now, I renew the question then. When Mr. Stone was walking through the hallway in a confused state talking to himself about cats and dogs in his ( 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 """" ,.... 36 bed, should -- do you think that the nurses should have notified anybody of that? A I'm not sure they did or didn't. Q I understand. A So-- Q That's not the quest~on. MR. MARSHALL: I think that's his answer. He said he doesn't know and cannot answer that question. MR. SHADE: I didn't ask whether they did notify anybody so that's not the question. The question is given that information -- whether they did or whether they didn't notify anybody -- do you think they should have? MR. MARSHALL: I'm just going to object because you have neglected to indicate to the doctor that the supervisor was on the floor at the time of Mr. Stone's apparent elopement so it appears that a supervisor was, in fact, on the floor. BY MR. SHADE: Q Do you think that anybody in the nursing department should have notified a physician, somebody in security or anyone else outside the nursing department of the events that are described in the nurse's notes on the early morning hours of August 22, 19961 ( 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .~ ,..., 37 A Maybe they did, and there was the nursing supervisor on the floor. If that's the case, maybe they did. I think that, yes, a level of information was, you know -- there was a responsibility for the level of information to be informed about. Q And are you saying i~ would have been sufficient if the nursing supervisor had been told and she had not communicated it any further to anyone else? Is that what you're saying? MR. MARSHALL: I'm going to object because you're now calling for speculation as to what the nursing supervisor was aware of, what she was told, what she observed~ and I think, too, you're now calling for pure speculation on this witness' part. MR. SHADE: I'm not calling for speculation whatsoever. I'm saying that if the nursing supervisor were there and she were notified of this. My next question is would she have had a further obligation to have communicated it further. MR. MARSHALL: I'm going to object and move to strike. You cftn answer, Doctor. THE WITNESS: It's a clinical decision. BY MR. SHADE: Q To be made by the nursing supervisor? A She certainly is a clinician and has a ( 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 ~ ~ 38 clinical input to the case, and she's kind of the upper level of information processing that may lead to the doctor's notification and timing thereof. Q From what you have observed in the chart and specifically the nurse's notes for the early morning hours of August 22, 1996, how would you characterize Mr. stone's state of mind when he jumped through the window? MR. MARSHALL: Now I'm definitely going to object. I don't know how this doctor can make that assessment. THE WITNESS: I -- I can't say after my initial observation. BY MR. SHADE: Q I don't understand the answer. A Your question was what was his state of mind prior -- right prior to? Q Uh-huh. A I don't know. Q And the nurse's notes don't give you an indication of that? A No. Q Well, give me a moment, please. You see the note the nurse's note at 4:45 a.m. on August 22? A Yes. ( 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 ~ ,-. 39 Q You see where it says that the -- the nurse said that she tried to re-orient the patient but she was unable to and that he continued to be walking in the hallway? A Right. Q And you see then ab~ut an hour and a half later at 6:15 that it's indicated that he was still walking in the hallway and remaining confused and restless? A Yes. Q Well, with these clinical decisions and so forth that nurses and the nurses' supervisors make, do you think that it is proper to permit a patient to walk around in the hallway in a disoriented state for an hour and a half in the middle of the night? MR. MARSHALL: I'm going to object. It's obvious from that note that the patient was under the nurse's observations. It's a mischaracterization of what actually took place. You can answer that if you can, Doctor. THE WITNESS: What's the question? BY MR. SHADE: Q Well, do you think it's proper for the nurses to permit a patient to walk around in the hallway for an hour and a half in the middle of the night when ~ ,-. 40 ( 1 they've tried to re-orient him and have been 2 unsuccessful in doing so? 3 A It's -- it's -- it's not unusual in this 4 situation to have patients disoriented at night during 5 the hospital. He and some percentage of other patients 6 have what we call the hospita~ confusion. And it's 7 it's not at all unusual for nurses to observe and 8 witness insomnia, up and no sleeping and out of the 9 room and back and forth to the bathroom and degrees of 10 this in many people. This is not an unusual situation 11 in terms of the behavior as outlined here. 12 Q So it's not unusual to permit a patient in a 13 confused state and cannot be re-oriented to just walk 14 around on his own through the hallway? 15 A That's not at all uncommon. That's more 16 common than -- than you can imagine. 17 Q Is there anything in the chart at all from 18 your review that would indicate that Mr. Stone was 19 suicidal when he jumped from the window? 20 A No. 21 Q When you examined him after he had jumped 22 from the second floor, had he been given any medication 23 before you examined him? 24 MR. MARSHALL: Are you s&ying between the 25 time he jumped and the -- ~ ( 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 ~ ~ 41 MR. SHADE. And Dr. Jurgensen's first examination. MR. MARSHALL: First examination versus having any medications prior to that time? MR. SHADE: Right. THE WITNESS: I don'~ believe. I don't believe so. BY MR. SHADE: Q Did you prescribe any medications when you admitted him? A No. Q And why not? A I did not feel that any medications were required. I see that there's -- a call order at 2200 that night for Tylenol so -- Q Well, once you had taken him through all his testing and determined what his medical problem was, what did you anticipate -- at the time that you admitted him and from what you saw then, what did you anticipate the course of treatment was going to be for him? A I anticipated that we were going to find what his liver disease was and we would request a liver specialist to examine him and do recommendations for liver treatment. I . , r (. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 ~ ~ 42 Q And would that have involved medications then? A Probably not. Q What would the treatment have been to resolve the liver problem? A Perhaps no medicatio.ns. Q But what do you do? A Maintain, stabilize, maintain nutrition. Q And after -- after you examined him after the jump, the first exam, was he given medications then? A Yes, I described him as being agitated. He was given Haldol. Q Haldol? A Right. Q And what is that, a tranquilizer? A Yes. Q And that helped? A I -- I'm not sure about that. Dr. Manfredi saw him shortly thereafter and took him upstairs. Q Are you -- do you know exactly which window it was that Mr. Stone jumped from? A I know it was the window in the reception area adjacent to the elevator. Q Do you know if those windows open or if he had to jump through the glass? ( 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 \ ~ ~ 43 MR. MARSHALL: You mean did he break the glass? Is that what you're saying? MR. SHADE: I'm just asking if the doctor knows. MR. MARSHALL: I just want to make sure I'm clear. The -- is the questio~ did the patient have to break through glass or was the patient able to open the window to go out? MR. SHADE: That's the question, if Dr. Jurgensen knows. THE WITNESS: I know he did not break through glass so the inference was he opened the window. BY MR. SHADE: Q But the point is that those windows do open there at that point? A I believe so. Q They're not permanently shut? A I believe so. Q And then Dr. Manfredi became involve in the care of Mr. Stone after this incident? A Right. Q And what was his role in the treatment process? A He transferred him to the psychiatric section upstairs in the 5th floor. ( 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 ""'"I ,-, 44 Q Then were you both attending physicians concurrently then at that point or was Dr. Manfredi specifically in charge and you were not in charge? A The order says transfer to psychiatry and that which was written by Dr. Manfredi. That assumes that -- that doesn't a.sume~ but that indicates that he took responsibility as the attending physician at that time. Q So then he had -- so then what was your responsibility while he had primary responsibility? A None at that point. Q And then you resumed after the return to the medical floor? A Right, his note says attending note. MR. SHADE: Will you mark that Plaintiff's exhibit, please? (Letter dated December 2, 1996, Podvia to Shade, one page, produced and marked Plaintiff's Exhibit No. 1.) MR. MARSHALL: Just for the record, I just want to -- I know this is a discovery deposition. But any reference to any correspondence from the insurance carrier from the hospital is indeed something that is inappropriate for reference to or use at the time of trial. This letter, by the way, is addressed to Mr. ( 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .~ ,..., 45 Shade from Kathryn E. podvia, Hospital Liability Representative. It is not referenced or addressed to r, Dr. Jurgensen. So with that objection I note. Go ahead and answer the question. MR. SHADE: Showing you a document marked for identification as Plaintiff's ~xhibit 1 which purports to be a copy of a letter from the hospital's insurance adjustor to my office dated December 2, 1996. And I would ask you -- the focus of my question is going to be on paragraph 3. You're certainly welcome to take the time and read the entire letter, but the focus of my question is on paragraph 3. And I'm asking you what how you interpret what she is saying regarding physician responsibilities? MR. MARSHALL: I'm going to certainly object. I think the record speaks for itself. And the letter is not directed to the doctor. And, Doctor, I don't believe there's any need for you to answer that question at all since it has nothing to do with you personally. This letter is just a general statement apparently from Ms. Podvia to Mr. Shade. And I think -- I don't see how there's any relevance whatsoever. MR. SHADE: It could certainly have a bearing ~ ".., 46 ( 1 upon the objectivity of a witness if he knows that 2 there are implications being made by an insurance 3 representative of the hospital that perhaps the doctor 4 was at fault in this situation. S MR. MARSHALL: Absolutely. I totally 6 disagree with that representat~on. That -- the letter 7 speaks for itself. Doctor, you can determine for 8 yourself whether you want to address this question at 9 all. 10 I'm suggesting that this has absolutely no 11 bearing on -- on this case~ and it's just a general 12 statement addressed to Mr. Shade asking him for an 13 expert opinion if he has one. And Doctor, you can feel 14 free to answer this if you so desire. You're under no 15 obligation to interpret what Kathryn E. Podvia met by 16 her letter. Do you understand that? 17 THE WITNESS: Yes. 18 MR. SHADE: I would suggest in response that 19 the strength of that objection is more evidence of its 20 materiality than anything and that once again would 21 assert that Dr. Jurgensen was our physician, not the 22 hODpital's physician or the hospital's attorney's 23 physician. 24 And we did not call this deposition, and I 25 think that it is perfectly appropriate and proper for t \. ''''''''I ".... 47 ( 1 us to ask him how he interprets the statement 2 concerning physician responsibilities in the third 3 paragraph of this letter. 4 MR. MARSHALL: If you can, Doctor. 5 THE WITNESS: You mean the one that begins 6 secondly, when I call your off~ce? Is that the 7 paragraph you're talking about? 8 BY MR. SHADE: 9 Q The third paragraph, yes, yeah. In the next 10 to last line, it talks about -- or the last three 11 lines, it talks about the various theories~ and it says 12 often what is believed to be nursing concerns ends up 13 being physician responsibilities. I'm asking you as 14 you read that how you interpret what she is saying 15 there. 16 A I won't comment on it. 17 Q Would it appear to be that she's suggesting 18 that a physician could be responsible for what happened 19 in this case? 20 MR. MARSHALL: I don't believe -- I object 21 and move to strike the question and answer. That has 22 absolutely no relevance to this case. It has 23 absolutely it's nothing more than a communication 24 between an insurance carrier to an attorney who refuses 25 to provide expert opinion or to provide substantiation ( ~ ,-.. 48 ( 1 for his claims. 2 And there's no suggestion here that any 3 doctor was negligent. I believe it's nothing more than 4 a general statement. Doctor, you know, you can answer 5 that if you know what Kate Podvia was intending to mean 6 by that particular comment. 7 THE WITNESS: I won't comment. 8 BY MR. SHADE: 9 Q You know that we did not file suit against 10 you? 11 A I know that. 12 Q And you also know that we did not file suit 13 against any individual nurses? 14 A I don't know that. 1S MR. MARSHALL: Sir, what possible relevance 16 can there be with this line of questioning? Let's 17 he's here to answer questions concerning the facts of 18 this case. These are far afield. Let's move on and 19 ask questions concerning that case and his treatment. 20 That's what this doctor is here for today. 21 MR. SHADE: It can certainly lead to 22 discoverable information. 23 MR. MARSHALL: I don't believe so. 24 BY MR. SHADE: 25 Q You're aware that we only filed suit against \. >"""I ,-.. 49 ( 1 the hospital in general? 2 A 3 Q That's my understanding. Have you put your insurance carrier on notice 4 in connection with this incident? 5 A 6 Q No. Has anyone suggeste~ to you that you put your 7 carrier on notice? 8 A 9 Q No. Who notified you that Mr. Stone had jumped 10 from the hospital? 11 A The first I heard about it was when I came in , IJ , 12 the morning~ and I believe -- and my associate told me. 13 Q \. 14 A 15 Q 16 told that? 17 A 18 Q Would that have been Dr. Hatleberg? I believe it was Dr. Albright as I recollect. What was your first thought when you were How was the patient. Would you say that at the time that Mr. Stone 19 jumped from the hospital that he was in such a 20 condition that he was not responsible for his actions? 21 MR. MARSHALL: I'm going to object. The 22 doctor was not there, has no idea. 23 MR. SHADE: Based upon your review of the 24 nurse's notes of the early morning hours of August 22, 25 1996 and the statements contained therein, would you """ "'""" 50 ( 1 say that Mr. Stone was in such a condition that when he 2 jumped that he was not responsible for his actions? 3 MR. MARSHALL: Just object. And, Doctor, you 4 can answer. I've reserved my objection for the court. 5 THE WITNESS: It's indicated in the nurse's 6 note that he was disoriented. . 7 BY MR. SHADE: 8 Q Is that -- from what would you conclude that 9 he was not responsible for his actions? 10 A He was disoriented for time and place. 11 Q So are you saying when he jumped from the 12 hospital window he did not know what he was doing? 13 MR. MARSHALL: I'm going to object to the t 14 form. 1S THE WITNESS: I don't -- your previous 16 question was it a suicidal thing. The reason I 17 answered no on that I don't think he had intent to kill 18 himself. That's why I said no to the suicide. 19 MR. SHADE: Do you think that he had 20 sufficient mental awareness to look out for his own 21 safety even? 22 MR. MARSHALL: Again, I'm going to object~ 23 and, again, this calls for pure speculation from the 24 standpoint that the doctor was not there at the time 25 and has no way of making an independent evaluation of . , \ " ~ ,.., 51 ( 1 that. 2 MR. SHADE: Well, counsel is fond of the 3 terminology of speculation~ but the witness has 4 indicated that he has reviewed this entire chart. He 5 was the treating physician. 6 MR. MARSHALL: I'm ~oting my record. You can 7 answer the question if you can, Doctor. I've preserved 8 it for trial. 9 THE WITNE~S: He was disoriented for time and 10 place. 11 MR. SHADE: Was he capable of looking out for 12 his own safety? 13 MR. MARSHALL: Again, just note my 14 objection. 15 THE WITNESS: I don't know. 16 BY MR. SHADE: 17 Q Do you recall that on June 10, 1997 we sent 18 you a letter asking for a private consultation with you 19 concerning this matter? 20 A Yes. 21 Q And are you aware that Debbi in your office 22 called our office on June 13, 1997 to schedule an 23 appointment with you for June 25, 1997? 24 A I don't remember the exact dates~ but I 25 remember, yes. ( ( 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 '"""" ,-.. 52 Q In that time frame somewhere? A Uh-hun. Q And do you also know that three days later on June 16 that your office called and canceled that appointment? A Yes. Q Are you aware that we inquired as to why that appointment was canceled? A No, I'm not. I don't know what your response was. Q I'm saying are you aware that we inquired as to why the appointment -- your office -- A Yes. Q You're aware that we inquired? A Yes. Q Are you aware that we did not get an answer to that inquiry? A back. I did not write you a letter in response Q And you did not instruct anybody in your office to give us a substantive response to that inquiry? A Yes. Q And are you aware that on July 1, 1997 we sent you a second letter? ( 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 ( ~ ""'" 53 A Yes. (Letter dated July 1, 1997, Shade to Jurgensen, one page, produced and marked Plaintiff's Exhibit No.2.) MR. MARSHALL: Just for the record, I don't see how this has any relevance, to this doctor's care and treatment at the time of this occurrence. I'm just going to move to strike. And may I have a continuing objection to any questions along this line? BY MR. SHADE: Q Yes, sure. Showing you a document marked for identification as Plaintiff's Exhibit 2 and ask you if you can recognize that as an accurate copy of the letter that we sent your office on July 1, 1997. A Yes. Q And while the letter will speak for itself, we assert in there that you were advised by the office of risk management at Carlisle Hospital not to speak privately with counsel for your patient except in the context of an oral deposition and ask you if we were incorrect in that understanding to please let -- please send us a brief note to that effect. Is that what it says? A Yes. Q And is it correct that we did not receive any ( 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 1'""\ ~ 54 response to that? A Correct. Q So in not responding to that letter, were you satisfied that we had stated the situation accurately? A That your office has been advised not to speak privately, yes. Q Do you think that Mr. stone and his authorized representative would have had a right to a private consultation with you as his treating physician concerning matters regarding his treatment? A At this point, I was not his treating physician. Q Do you think that he would have had a right to have had a private consultation with you and his authorized representatives to discuss issues that arose while you were his treating physician? A Yes. Q Then why didn't you meet privately with us to discuss this situation? A Well, as indicated here, I had talked to the hospital risk management officer and decided not to. o Who did you talk to at the hospital? A I called the office. I don't remember who I was forwarded to, but I eventually talked to Ms. Podvia. 1 ( 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 .-"""'1 ~ 55 a You talked to the -- to the adjustor for the hospital? A Yes. a And when did you have that conversation? A It was sometime after the first letter, whenever that was. a Sure, the June lOth letter. Was that on the telephone? A Yes. o Did you have more than one conversation with her? A I believe it was one. o Who gave you her number? A I don't recall. Q What did she say to you? A I -- I don't have a record of the phone call. a You say you do or don't? A I don't. Q Do you have any recollection of what she said to you? A Not specifically. Q Well, in general. A I indicated to her that I thought the -- the letter was harsh and -- and that I felt offended. And so I think she indicated that I did not have to 1"""\ ~ 56 ( 1 respond. 2 Q You were offended because we -- we wanted to 3 have a private conference with you? 4 MR. MARSHALL: Wayne, at this point, can we 5 get through -- look, the doctor is here to testify 6 about this case, okay? 7 MR. SHADE: It's a matter of objectivity, 8 Frank. And the doctor has already indicated he was 9 offended by what we would consider to have been a very 10 neutral request and nonthreatening request for a 11 private conference with his patient. 12 MR. MARSHALL: We have arranged for this ( , 13 deposition for you. Look, you didn't want to do this 14 deposition, Wayne. I set this deposition up so that 15 you could ask these questions. You have your 16 opportunity to ask him questions concerning this case. 17 All right. Why don't you -- can we move on 18 and ask questions about this case? I think we have 19 gone so far afield. I haven't objected, but it just 20 doesn't make a lot of sense at this point. 21 MR. SHADE: As you very well know, the 22 objectivity of the witness is always at issue in these 23 cases. 24 MR. MARSHALL: I believe the doctor has 25 testified and he's answered every question that you ( 1 2 3 4 5 6 7 8 9 10 11 12 13 14 IS 16 17 18 19 20 21 22 23 24 25 ."", ~ 57 have asked him concerning his care and treatment of this patient. Again, this -- this has absolutely nothing to do with this case. The fact that you're threatening doctors, threatening hospitals, filing lawsuits has absolutely no relevance, your personal activity to this case. Now, for whatever reason you wish to utilize this, I don't see how it has any bearing on this -- on this case. And can we ask questions concerning the treatment? (Letter dated June 10, 1997, Shade to Jurgensen, two pages, produced and marked Plaintiff's Exhibit No.3.) MR. MARSHALL: And the mere fact that you've had disagreements or misunderstandings with them to the handling of this case has no bearing on the medical treatment in this case. BY MR. SHADE: Q Showing you a document marked for identification Plaintiff's Exhibit 3, that would be the letter of June 10, 1997 to your office that had previously been referenced? A Yes. Q I'd ask you what was it that you found harsh about that letter? ( 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 ( ~ ....... 58 MR. MARSHALL: Are we here for a deposition of the doctor concerning his medical treatment or -- or a dissertation and interpretation on your grammatical skills? THE WITNESS: There was another letter where there was a dollar amount indipated. That's what I'm thinking about. BY MR. SHADE: Q Well, you may be making reference to the complaint that was filed in the lawsuit? A No, there was a letter. Maybe I got -- okay. I'm thinking of the letter -- of the copy that went to the hospital in which you said put up or shut up and $10,000. Q So that's not -- so when you're talking about thinking something was harsh, you're not talking about my letter of June 10 when I asked for a private consultation? A No. Q And you're not saying there was anything in my letter of June 10, 1997 in which I asked for a private consultation which was insulting either, are you? A No. Q Okay. ( 1 2 3 4 5 6 7 8 9 10 11 12 13 14 1S 16 17 18 19 20 21 22 23 24 25 ( ~ -- 59 A That's what I was referring to. o Okay. So what you're saying then is if I understand your testimony correctly, the insurance adjustor for the hospital showed you a copy of our demand letter to the hospital. Is that what you're suggesting? A I think I was copied. o You're saying you think that I copied you with our demand letter to the Carlisle Hospital? A I don't recall. o Okay. Is it possible that Ms. Podvia or somebody else from the hospital representing the hospital showed you a copy of our demand letter to the hospital? A That's possible. o Before this deposition was convened today at approximately 1:30, had you spoken either directly or other the telephone to Attorney Marshall or anyone from his office concerning this case? A Yes. Q With whom did you speak? A I spoke to Mr. Marshall. Q When? A A week and a half ago. Q Who initiated that consultation? ( 1 2 3 4 5 6 7 8 9 10 11 12 13 14 1S 16 17 18 19 20 21 22 23 24 25 ,. ~ ~ 60 MR. MARSHALL: I will state that I did on the basis that this doctor -- and as I read the complaint is considered to be for purposes of the complaint an agent, servant or employee of the hospital. He's not named as a Defendant. I met with the Defendant to advise him about the deposition and to review the chart with him prior to coming in here today. MR. MARSHALL: You said you met with the Defendant to review the deposition. MR. MARSHALL: Met with Dr. Jurgensen. MR. SHADE: Okay. MR. MARSHALL: On the basis that we convened him to be under the way the complaint is drafted a potential agent, servant or employee of the hospital for purposes of this lawsuit. MR. SHADE: Since you've answered my question, are you extending coverage to Dr. Jurgensen in this case? Dr. Jurgensen is not a Coverage is determined upon MR. MARSHALL: Defendant in the case. when the claim is made. MR. SHADE: So the answer is you're not extending coverage to Dr. Jurgensen? MR, MARSHALL: There's no reason to. MR, SHADE: So you contacted Dr. Jurgensen to ,'""" ~ 61 ( 1 discuss this with him? 2 MR. MARSHALL: Yes, I did because you wanted 3 to take his deposition. 4 MR. SHADE: Because who wanted to take his 5 deposition? 6 MR. MARSHALL: You d~d. You did. I have 7 letters that indicate a request by you to take Dr. 8 Jurgensen'B deposition. 9 MR. SHADE: For the record, I believe that 10 it's a part of the record of the deposition of Mr. and 11 Mrs. Stone that the suggestion was made about taking l2 Dr. Jurgensen's deposition~ and both of us indicated 13 that we were not going to take his deposition at that 14 time. And I'm not -- I do not -- I dispute what was IS said about what was just indicated. 16 MR. MARSHALL: That's a total 17 mischaracterization. Can we ask any questions relative 18 to this lawsuit, please? 19 BY MR. SHADE: 20 Q So where did this discussion with Mr. 21 Marshall take place? 22 A In my office. 23 Q And how long did that take? 24 A Twenty minutes. Fifteen, twenty minutes. 25 Q Have you discussed this case with anyone else ( ( 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 (, ~ ,-, 62 prior to your testimony here today? A No. Q What made you think that you could discuss this matter with Mr. Marshall without a release from Mr. Stone? A I didn't think abou~ the release. I knew that I was going to be questioned by you, and I was interested in how best to respond. Q Well, would you agree that an attorney who is questioning a witness in a deposition who has interviewed the witness prior to the deposition has an advantage over an attorney who will be questioning a witness during a deposition who has not interviewed the witness prior to the deposition? MR. MARSHALL: I'm going to object and move to strike that as being argumentative. You don't need to answer that. I don't know that. That's not within the realm of THE WITNESS: MR. SHADE: your common sense? MR. MARSHALL: That's argumentative and Doctor, you don't need to answer that insulting. question. THE WITNESS: I can't answer the question. MR. SHADE: Who do you have the allegiance to 1"""\ 1""'1 63 ( 1 here, your patient or the hospital? 2 MR. MARSHALL: Doctor, you need not answer 3 that question. It's argumentative. 4 THE WITNESS: To both I have allegiance. 5 BY MR. SHADE: 6 Q But you felt that yo~ had more allegiance to 7 the hospital's representatives than you had to the 8 representatives of your patient who is paying your 9 fees? 10 A I wouldn't say that. 11 Q You don't think that's reflected in the fact 12 that you were readily willing to speak with counsel for 13 the hospital before this deposition today but were not 14 willing to speak to counsel for your patient and not 15 willing to give an explanation for the reasons for not 16 speaking with counsel for your patient? 17 MR. MARSHALL: Doctor, you need not answer 18 that question. It's argumentative. 19 THE WITNESS: I have no answer. 20 MR. SHADE: No further questions. 21 MR. MARSHALL: Thank you very much, Doctor. 22 (Whereupon, the deposition concluded at 2:56 23 p.m.. 1 24 25 \ ~ " ( COUNTY OF PERRY SS COMMONWEALTH OF PENNSYLVANIA I, Bobbi Hahn, a Notary Public, authorized to administer oaths within and for the Commonwealth of Pennsylvania, do hereby certify that the foregoing is the testimony of J. CRAIG JURG~NSEN, M.D.. I further certify that before the taking of said deposition, the witness was duly sworn~ that the questions and answers were taken down stenographically by the said Reporter-Notary Public, and afterwards reduced to typewriting under the direction of the said Reporter. ( I further certify that the said deposition was taken at the time and place specified in the caption sheet hereof. I further certify that I am not a relative or employee or attorney or counsel to any of the parties, or a relative or employee of such attorney or counsel, or financially interested directly or indirectly in this action. I further certify that the said deposition constitutes a true record of the testimony given by the said witness. IN WITNESS WHEREOF, I have hereunto set my hand this 4th day of December, 1997. r---:.---~--- -~~-,:-::~--~ I , , I.,' Bobbi Jo Hahn, RPR Notary Public . , ~ Multi-Pagc 1M $10,000 - August ~ J. 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Multi-Page'" ,....,. authorized - CROSS: J. 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""""I Multi-Pagc'" CUMBERLAND - fclt ,...... J, CRAIG JURGENSEN, M,D. 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Multi-Page'" unable - yourself .... J. CRAIG JURGENSEN, M.D. ( unablc [II 39:3 whatsoevcr (21 37:16 uncommon (II 40:1S 4S:24 UndCf(SI 23:9 39:17 WHBREOF II I 64:17 46:14 60:13 64:9 wifc[21 11:23 17:23 UndClWaduate [II S:13 willing 121 63: 12 63:14 undcrstand III 3:19 63:1S 13:12 IS:20 16:24 window [121 18:14 36:4 38:1S 46:16 18:IS 18:19 26:19 S9:3 33:S 38:8 40:19 unit [II 16:19 42:20 42:22 43:8 Univcrsity [21 S:13 43:12 SO:12 S:18 windows [21 42:24 unreasonablc [II 27:19 43:14 unsuccessful [II 40:2 wish [II S7:7 unusual [41 40:3 within [41 28:16 28:21 62:19 64:S 40:7 40:10 40:12 without [21 6:23 UP[1S1 7:18 8:2 29:2 62:4 9:18 9:23 16:13 witncss [421 3:9 19:11 20:22 20:23 24:23 2S:2 40:8 3:20 4:8 4:23 47:12 S6:14 S8:13 21:11 22:11 24:S S8:14 24:21 27:14 30:14 upper [II 38:1 31:13 32:10 33:8 34:3 34:19 37:22 upstairs [21 42:19 38:12 39:21 40:8 43:2S 41:6 43:11 46:1 usua1[41 19:2 23:2 46:17 47:S 48:7 23:7 23:8 SO:S SO:IS SI:3 Usually [II 17:23 SI:9 S[:IS S6:22 utilize [II S7:7 S8:S 62:10 62:11 62:13 62:14 62:18 62:24 63:4 63:19 -v- 64:7 64:16 64:17 V(2J 1:2 1:4 witncss' [II 37:14 1:24 WITNESSBS [II 2:1 various [1147:11 word [41 26:22 26:23 vcrsUS[11 41:3 26:2S 31:3 visit [II IS:IO write [21 9:14 20:11 visual [21 28:6 28:7 S2:18 vital [21 9:18 11:23 writtco [21 9: 1 S 44:S vivid [II 28:S wrote [21 9:13 12:23 20:10 -w- -y- wait [I) 10:23 ycar(11 28:21 waivcd [II 3:4 YCBIll [21 S:23 28:16 walk [21 39:13 39:24 York [II S:14 40:13 waIkcd[2112:14 12:IS yoursclf [II 46:8 walking [SI 33:22 3S:4 3S:24 39:3 39:8 Walnut [21 1:IS S:S ward [SI 10:13 14:23 16:6 18:S 20:20 watch (21 21:19 21:2S WaynC[21 1:19 S6:4 S6:14 ways (II 31:2S weakness [21 8:14 8:17 week [II S9:24 weight [II 8:1S WCICODIC(ll 4S:11 ( \ HUGHES, ALBRIGHT, FOLTZ & NATALE 717-540-0220\717-393-5101 Index Page 9 (il"'liIl (".,.. , MEDICAL INTER-INSURANCE EXCHANGE December 2, 1996 -41>< Wayne F. Shade, Esquire 53'West Pomfret-Street Carlisle, Pa. 17013, . :.., " , , RE: Stone v. Carlisle HospiLal ' Dear Mr. Shade: I am at a loss to understand the tone and innuendoes of your most recent corresponden~. , First of all, let me say that I do not have a letter from your office dated October 28, 1996. If you would kindly provide me with a copy, I will respond accordingly. , Secondly, when I called your office after receiving your letter of representation, I was asked for 60 days in order for your office to evaluate this claim. In return, I asked that your office provide me with information regarding the nature of your client's injuries (I have been advised he received a Iaceration on his arm '- if there are other injuries, I need to know what they are, how extensive they are, what kind of treatment he received, etc" and this can often be substantiated through medical records); I also asked for your theory of negligence against the Hospital (often what is believed to be nursing concerns ends up being physician responsibilities); and, any expert report/testimony relative to a deviation of the standard of care. If your office cOntends there is a deviation, then I would like to know specifically what and how. My letteCto'you dated October 17, 1996 is merely part of any good investigation and if you took it as anything other than that, then you are reading more into it In this most recent letter, you mentioned internal documentation which your office needs to confirm ' liability. I have no idea what you may be referencing. However, if it is something I can have the'hospiulI provide, please let me know specifically what your request is. As long as the material is not privileged". then perhaps I can convince the Hospital to provide that material. It is obvtous, Mr. Shade, that you were operating on the basis that I received your October 28th letter. Rest assured, that had I receive your correspondence, I would have responded accordingly. However, if you still need to file that Writ, then by all means, file it I look forward to hearing from you, one way or another. Sincerely, ~;f4 Kathryn E. Podvia Hospital Liability Representative .. .. EXHI'SIT I PL<i;otiff's-:J.. 8JH 1I1~lq7 cc: Mark Hannon, VP Xl5N01nHfDONI'snutSlnle. H......IIQG.PA 17101. 717.2.SoI.QJCW. FAX 717.2344117 POWERFUL PAR T N E R S H P S (""'llI (..... WAYNE F. SHADE A1TORNEY AT lJ.W $3 WEST POMFRET STREET CARUSLE. PE/lNS\'LVAIIlA 11013 (111) 243.onO (100)143.0110 July 1, 1997 FAX (111) 24lJ.OOI7 J. Craiq Jurqensen, M.D. Belvedere Medical Center 850 Walnut Bottom Road carlisle, Pennsylvania 17013 Re: John M. stone Dear Dr. Jurqensen: We understand that, since our letter of June 10, 1997, your offico has been advised by the office of Risk Management at Carlisle Hospital not to speak privately with counsel for your patient, John M. stone, but only in the context of an oral deposition with counsel present. If we are incorrect in thia under~tanding, please send us a brief note to that effect so that w~ will have a proper record of . the advice ~f Risk Management for our file. Very truly yours, Wayne F. Shade .WFS/crs . .! . - . . . - .". .... .. ," EXHIBIT RRif.>WffsJ. ~ f2Jlt II \ en ..... ... WAYNE F. SHADE AITORNEY AT LAW ~3 WEST I'OMFRET STREET CARUSl.E, PENNSYLVANIA 17013 (717) 243.0220 (100) 243.0220 FAX (717) 249.Q017 July 16, 1997 Francis E. Marshall, Jr., Esquire Marshall, Smith & Haddick 20 South 36th Street Camp Hill, Pennsylvania 17011 Re: Stone v. Carlisle Hospital and Health Services Docket No.: 97-857 Your File No.: M-132 " Dear Francis: Thank you very much for your letters of July 8 and July 10. In response to your letter of July 10, 1997, we have given your secretary various dates for your requested depositions. We would hope that you would be satisfied to take those depositions here in this office or anywhere else in Carlisle for the convenience of everyone, frankly, other than yourself. We do not intend to provide any expert reports on the issue of liability because we believe that the negligence of the hospital is so obvious as to be clearly within the knowledge and comprehension of the average layman. We assume that you have reviewed the hospital chart in this case. We will be interested to hear your arguments to a jury that Mr. Stone's injuries did not result from the obvious neglect of the people at the hospital. We enclose our Request for Admissions. In advancing the Request for Admissions, we have no hidden agenda. We are not even necessarily saying that the hospital has done anything wrong to advise anyone not to speak privately with us. We simply want to establish as a matter of record the lack of independent private access to these witnesses as part of the foundation for opposition to any Motions for Summary Judgment which you may ultimately file on the basis of our determination not to generate substantial expenses in preparing this case for trial by engaging expert witnesses. We have no intention of filing suit against anyone else in this case but the hospital. Therefore, we would suggest that ,... .. WAYNE F. SHADE A1TORNEY ATU.W '3 WEST pOMFRET STREET CARUSLE, PENNSYLVANIA 17013 (717) 24]04220 (800) 24304220 FAX (717) 249.oDI7 October 30, 1997 Francis E. Marshall, Jr., Esquire Marshall, Smith & Haddick 20 South 36th Street Camp Hill, Pennsylvania 17011 Re: Stone v. Carlisle Hospital and Health Services Docket No.: 97-857 Your File No.: M-132 Dear Frank: We assume that our letter of October 21, 1997, to Joe Maenner and your notice of the deposition of Dr. Jurgensen crossed in the mail. Having heard nothing further from your office since our letter of October 21, 1997, we would inquire as to your intentions concerning the location of the deposition of Dr. Jurgensen. If the hospital is not willing to voluntarily schedule that deposition for this office or a neutral location, we will have no reasonable option but to request a protective Order under these facts. By copy of this letter to Dr. Jurgensen, we are alerting him that he must not discuss any aspect of this matter other than through formal discovery in the absence of our written consent. We earnestly hope that we will be able to resolve this aspect of this matter upon an amicable basis. If we have been unable to do so within ten days from the date of this letter, we will file our Motion for a Protective Order. Very truly yours, Wayne F. Shade WFS/ct cc: J. Craig Jurgensen, M.D. \D ~~ - & - , - :a:: 0... g:::> ~ ~;:.r N ~~ ~ :z:: ...: ~ a ~ C%J CI\ ~~ ~ I1<CI) ... Z~ - ! s J i 01>1 ~ ~ ~11< A Q~j~~ 1>1 'tl ~ 11< : ~ J j d fII H ~ H~ III -11-I ~ Q o I> ~~~ H ij ~ ! J! i o H 11< folQZQA O~ CI) 'tl ~!Sr--~ ~fold fa ~ 11< CI)..-l o folIO CI) III -11-I Q QCO .0-1 . ~CI)8 <I~ .>11< > t) ~{j CI){j ~1>1,..l:;; HH ~H >< ~l:; ~~ Z i:;o~ H QZ ...,..., 5. Plaintiffs, in their response to Defendant's Interrogatories, did not provide any such document(s). 6. Defendant's Request for the Production of Documents # 11, specifically requested production of "[aJny diaries, journals, notes, appointment books produced by Plaintiffs regarding the care and treatment at issue." 7. Plaintiffs, in their response to Defendant's Request for the Production of Documents, did not provide any such document(s), B. In her deposition in this action, conducted September 11, 1997, Plaintiff Joyce V. Stone testified under oath that she prepared a narrative of events while Plaintiff John M. Stone was still in the Hospital, prior to seeking legal counsel. (See copy of deposition transcript of Joyce V. Stone, at 30-32 attached hereto as Exhibit "C".) 9. Counsel for Defendant Hospital contends that, since this narrative of events was prepared prior to seeking legal counsel, it was not prepared in anticipation of litigation, and it is not privileged from discovery. 10. At this time, Counsel for Defendant Hospital is requesting that Plaintiffs provide full and complete responses to Defendant Hospital's discovery requests, including any and all diaries, journals, notes, appointment books produced by Plaintiffs, including, but not limited to, the narrative of events prepared by Plaintiff Joyce V, Stone while Plaintiff John M, Stone was still in the Hospital. WHEREFORE, it is respectfully requested that this Court grant Defendant Carlisle Hospital's Motion to Compel and require Plaintiffs to provide full and complete responses to discovery, including Plaintiff Joyce V. Stone's narrative of events, within thirty (30) days of the Court's Order, PI(t. "'/ JOHN M. STONE and JOYCE V. STONE, IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUN1Y, PENNSYLVANIA CIVIL ACTION - LAW Plaintiffs v. NO. 97-857 CIVIL TERM CARLISLE HOSPITAL AND HEALTH SERVICES, Defendant JURY TRIAL DEMANDED INl'ERROGATORIES OF DEFENDANT CARIJSLE HOSPITAL AND HEALTII SERVICES PROPOUNDED UPON PLAINI'IFFS TO: JOHN M. STONE AND JOYCE M. STONE c/o: Wayne F. Shade, Esquire 53 West Pomfret Street Carlisle, PA 17013 Attorney for Plaintiffs Pursuant to the provisions of the Pennsylvania Rules of Civil Procedure, as amended, you are required to fOlWllrd a copy to the undersigned and retain the original of your answers and objections. if any, in writing and under oath. to the following Interrogatories. within thirty (30) days of setvice hereof. The Answers shall be inserted in the spaces provided following the Interrogatories. If there is insufficient space to answer the Interrogatol)', the remainder of the answer shall follow on a supplemental sheet. These Interrogatories are deemed to be continuing in nature. in accordance with the provisions of the Pennsylvania Rules of Civil Procedure. as amended. If between the time of forwarding your answers to these Interrogatories. and the time of trial of this matter, you or anyone acting on your behalf learn the identity .of persons expected to be called as an expen witness at trial not disclosed in your Answers, or if you or an expen witness obtain information upon the basis of rXHWIT A '; r DEFINITIONS A. The term "documene' as used herein shall mean any written, printed, typed, or other graphic matter of any kind or nature, however produced or reproduced, including photographs, microfilms, phonographs, video and audio tapes, punch cards, magnetic tapes, discs, data cells, drums, and other data compilations from which information can be obtained, B. "Person" or ''Persons'' shall mean any natural individual or corporation, firm, partnership, proprietorship, association, joint venture, governmental entity or any other business or government organization. C. ''Meeting'' shall mean any assembly, convocation, encounter or coincidence of two or more persons for any purpose, whether or not planned, arranged or scheduled in advance, D. "Communication" shall mean any utterance made, human speech heard, overheard, or intended to be heard by any person, whether in person, by telephone, by means of sound recording, or otherwise. E, '1dentify" means: (a) When used in reference to a document, describe with sufficient particularity to form the basis for a request for production under Pennsylvania Rules of Civil Procedure, including but not limited to the date it was prepared or created, the identity of its author or originator, the type of document (e.g., letter, telegram, chart, photograph, sound recordings, etc.), the identity of its addressee, its present location and the identity of its present custodian(s). If such document was, but is not longer, in your possession or subject to your conttol, state what disposition was made of it: JOHN M. STONE and JOYCE V. STONE, IN THE COURT OP COMMON PLEAS OP CUMBERLAND COUN1Y, PENNSYLVANIA CIVIL AcnON . LAW Plaintiffs v. NO, 97-857 CIVIL TERM CARLISLE HOSPITAL AND HEALTH SERVICES, Defendant JURY TRIAL DEMANDED DEFENDANT's. CARLISLE HOSPITAL AND HEALTH SERVICES. REQUEST FOR PRODUcnON OF DOCUMENTS PROPOUNDED UPON PYJNTIFps TO: JOHN M. STONE AND JOYCE M, STONE c/o: Wayne P. Shade, Esquire 53 West Pomfret Street Carlisle, PA 17013 Attorney for Plaintiffs 6~ ' AND NOW, this '1- day of May, 1997, comes Defendant, Carlisle Hospital and Health Services, by its attorneys, Marshall, Smith & Haddick, P,C" and requests the above-named Plaintiffs, John M. Stone and Joyce M. Stone, (hereinafter referred to as "you') to make available to the Defendant, copies of the following documents within thirty (30) days of services of this request: EXHIBIT B DOCUMENTS REQUESTED 1. All statements, signed statements, ttanscripts of recorded statements or interviews of any person or witness relating to, referring to or describing any of the events described in the Complaint. 2. All expert opinions, reports, summaries or other writings in your custody or control or your attorney or insurers, which relate to the subject matter of this litigation. 3, All documents prepared' by you. or by any insurer, representative. agent, or anyone acting on your behalf, except your attorney(s), during the investigation of the incident in question or any of the events or allegations described in the Complaint. Such documents shall include any documents made or prepared up through the present time. with the exclusion of the mental impressions, conclusions or the opinions respecting the value or merit of the claim or defense or respecting sttategy or tactics. 4. All medical bills paid or alleged to have been paid by you, which relate to the subject matter of this litigation. S, All photographs, dia~, maps. dmwings or any other item or thing involved in this litigation, 6. All statements and/or transcripts of interviews of fact witnesses obtained in this matter. 7. All documents identified in your Answers to any set of Interrogatories propounded by any party in this litigation, 8. All documents which you intend to rely upon or introduce at trial of this litigation. 9. A list of the names and addresses of all expert and non-expert witnesses you intend to use during the trial of this case, ~~) lr" l( JOHN M. STONE AND JOYCE V. STONE, IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA PLAINTIFFS . . . . V : CIVIL ACTION - LAW NO. 97-857 CIVIL TERM CARLISLE HOSPITAL AND HEALTH SERVICES, DEFENDANTS . . : JURY TRIAL DEMANDED DEPOSITION OF: JOYCE V. STONE TAKEN BY: DEFENDANTS BEFORE: BOBBI JO HAHN, RPR NOTARY PUBLIC DATE: SEPTEMBER 11, 1997~ 10:24 A.M. PLACE: 53 WEST POMFRET STREET CARLISLE, PENNSYLVANIA APPEARANCES: BY: WAYNE F. SHADE, ESQUIRE FOR - PLAINTIFFS MARSHALL, SMITH & HADDICK, P.C. BY: FRANCIS E. MARSHALL, JR., ESQUIRE FOR - DEFENDANTS ALSO PRESENT: JOHN M. STONE EXHIBIT C ~ J(f6riglrf, 'Foltz ir JVatole ~ &mee, 8nc. "5 PINE STREET' HARRISBURG, PA 17'01 Harrisburg 717-232,5644 Fax 717,232,9637 Lane..'., 717-393-5'0' JOYCE.V. STONE SEPT€MBER 11,1997 M I' P n, U h- age . . Page 30 1 Q" before he attempted to go out the window'l 2 A No, no, 3 Q Okay, All right. Was there anything in your 4 husband's deposition as you sat here listening to it 5 today anything he said that you -- you have a different 6 recollection of just generally? 7 A In what way do you mean? 8 Q Well, is there anything that he said that you 9 believe is .. you have a different memory of events or 10 his medical care, anything that he had said just as a II general thought as you sat here? Was there anything 12 that he said that struek you as being odd or different 13 from what you recall? 14 A No, 15 Q Okay, Now, your attorney said you wrote a 16 narrative down, Do you have a copy of that, that 17 narrative? 18 A My attorney has it. 19 MR. MARSHALL: I'd like to make a request to 20 see that. 21 MR, SHADE: That's privileged, and I've been 22 through that with judges, Hess wrote an opinion on 23 that subject. 24 BY MR. MARSHALL: 25 Q Let me ask some questions about it. When did Page 31 I you prepare this statement? It's a narrative of what 2 took place? 3 A It's what .- what took place, I was sitting 4 there one evening in the hospital, and I wrote this 5 down, I was so emotionally upset. 6 Q TIlls is before you had an attorney? 7 A Yes, 8 Q Okay, So it wasn't prepared then for your 9 attorney? 10 A No, II Q Okay, And this is .. when was this written? 12 A I'm not sure, 13 Q While you were in the hospital? 14 A It was one night I was sitting with John in 15 the hospital. 16 Q Okay, So it was not made at the direction of 17 your counsel then? 18 A No, J 9 Q This is something that you jotted down? 20 A That's something I did on my own, yes, 21 Q Okay. And how many pages.. what was it 22 written on, handwritten? 23 A It was handwritten. 24 Q What type of paper was it on? I mean is it 25 like a yellow pad, loose-leaf paper, scrapbook paper'! Page 30 - Page 33 . Page 32 I A It was a piece of -- a piece of paper I might 2 have taken out of a tablet. I just -- 3 Q Okay, And how many pages was it? 4 A I believe it was one, 5 Q Okay, lllis is before you had retained any 6 lawyer? 7 A That's right. R MR. MAI\SHALL: Let's go off, 9 (Discussion held off the record,) 10 MR. MARSHALL: I'm -. I had fonnally II requestcd any statements, Now, if this is a document 12 that was prepared by her where she wrote down 13 infonnation that may be pertinent to this case before 14 she retained counsel, how is that privileged? 15 MR, SHADE: It's no different from .. 16 MR, MARSHALL: Ijust want to know how it's 17 privileged, 18 MR. SHADE: It's no different from if she 19 would have sat there in the hospital room and said over 20 and over to herself in her mind so that she would 21 remember these things and memorized them in her brain 22 and then came in and told them to me in my office, 23 MR, MARSHALL: That's not the case though, 24 MR. WAYNE: It's no different. She -- rather 25 than -- rather than recording it within her brain, she Page 33 1 recorded it confidentially on a piece of paper which 2 she did not show to others ., and to others and then 3 the injured party and then brought to me. And so it's 4 no different from oral statements that she would have 5 made to me in the context. 6 MR. MARSHALL: At this point, it is. (think 7 it is because it's before you were retained. 8 There's -- I'm making -- just so we're clear, ['m 9 making a fonnal request for that now and you're denying 10 that request? 11 MR. SHADE: Absolutcly. 12 MR. MARSHAt.L: t intend to file a motion to 13 get that. If the court allows it and I deem it 14 necessary, you'll agree to produce this witness for 15 further deposition in relation to the content of that 16 document? 17 MR. SHADE: Sure, sure. 1 R UY MR. MARSHA!.!.: 19 Q All right. And you don't have a photocopy of 20 that, you gave the original to your attorney? 21 ^ Yes. 22 Q Okay. And just so I'm clear -. strike that. 23 (think ( have enough established here to get the 24 .court's ruling on that. Okay. 25 MR. SHADE: I would suggest you take a look HUGHES, ALBRIGHT, FOLTZ & NATALE 717-540-0220\717-393-5101 ~ .::r r.: c " -- ~ -.-1.:.. r. -=z LU- .. - , L': . '. c: ~1 .;,;... l_,.. ~j ~_. Ct", I _ ~ Ul' .- EZ-l- :lj C I, "- '. L1. 1- ;, G <1' (J . . . .,. \D '- h-; c: t..-: " ,.. ," j , ,- (', -, IJj.:- (..'... , u;~ : U_. . ..~ ()'. I', ;:.""l Cll. :.J...!' ..-11 r " , , 0::. '. :"- r:, :!. " L', r- :.; (J ", u PRAECI?E FOR LISTING CASE FOR ARGUMENT (MuSt be ty?eWritten and subnirted in duplicate) TO THE PROTHONOTARY OF CUMBERLAND COUNTY: Please list the ...-i.thin rratter for the next >...-gurent eort. --------------------------------------------------------------------------------------- CAPTION OF CASE (entire caption must be stated in full) JOHN M. STONE and JOYCE V. STONE (plaintiff) vs. CARLISLE HOSPITAL AND HEALTH SERVICES ( Defendant) No. 857 19 97 Civil 1. State matter to be a..--gued (i.e.. plaintiff's ITOtion for new trial. defe.~t's d~ to c::m;>la.i.:lt. etc.): Defendants' Motion to compel Disclosure of an Expert and Expert Report 2. Identify counsel ...'be will a.....gue case: ( a I for plaint:::::: N:ldreSs: Wayne F. Shade, Esquire 53 West Pomfret street Carlisle, PA 17013 (b) for cefe.'1Ca:1";;: Kendra D. McGuire, Esquire ~s: stephanie Carfley, Esquire Barley, snyder,. Senft & Cohen, LLC 126 East King street Lancaster, PA 17602-2893 3. I...'ill notify all ;=-..i.es i.rl ..-:.-i.ting within tWlO days that t....is C2:5e has bee.'l lis ted for a..-;;Ure.:l t . ~. >...-gure.'lt Court Date: June 30, 1999 cat;,:!: June 3, 1999 ~f~ -~ "'ttorney for D~fendant5 ~ r- ~ C\I ,- tJ:-I8 ~ i5s it', ~ o~ .L.J-- <.l.. -:}:>' ~o -~ L; r- 3CJ) <.. I -2 -' :z: lfi~ CC~!. j:: :::. m ..., ~ 1.1. 0'1 0 0'1 ~ , . JOHN M, STONE and JOYCE V. STONE, Plaintiffs IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA t , . v, CIVIL ACTION - LAW CARLISLE HOSPITAL AND HEALTH SERVICES, : Defendant NO, 97-0857 CIVIL TERM ORDER OF COURT AND NOW, this30ihy of June, 1998, upon consideration of Defendant Carlisle Hospital and Health Services' Motion To Compel Disclosure ofan Expert and Expert Reports, a Rule is hereby issued upon the Plaintiffs to show cause why the relief requested should not be granted, RULE RETURNABLE within 20 days of service, BY THE COURT Wayne F. Shade, Esq, 53 West Pomfret Street Carlisle, PA 17013 Attorney for Plaintiffs Francis E, MnrshalI, Jr" Esq, 20 South 36th Street Camp Hill, PA 1701 I Attorney for Defendant ('~~ ~et, ~/;)./<1f{. ~IJ ,.s.l', 0,... :rc 'I', '.> .' ,: '/ , . any and all expert witnesses and produce their reports which relate to the subject matter of this litigation, WHEREFORE, it is respectfully requested that this Court grant Defendant Carlisle Hospital and Health Services' Motion to Compel Disclosure of an Expert and Expert Report and require Plaintiffs to provide full and complete responses to discovery. including the identity of any and all expert witnesses and produce their reports which relate to the subject matter of this litigation, within thirty (30) days of the Court's Order. Respectfully submitted. , lit HADDICK, P.C. Francis all. Jr. Attorney 0: 27594 20 South 36th Street Camp Hill. PA 17011 (717) 731-4800 Attorney for Carlisle Hospital F{u "', JOHN M. STONE and JOYCE V. STONE, IN TIlE COURT OP COMMON PLEAS OP CUMBERLAND COUN1Y, PENNSYLVANIA CIVIL AcnON . LAW Plaintiffs v. NO. 97-857 CML TERM CARLISLE HOSPITAL AND HEAL TII SERVICES, Defendant JURY TRIAL DEMANDED INI'ERROGATORIES OF DEFENDANT CARUSLE HOSPITAL AND REALm SERVICES PROPOUNDED UPON PLAINTIFFS TO: JOHN M. STONE AND JOYCE M. STONE ~o: Wayne P. Shade, Esquire 53 West Pomfret Street Carlisle, PA 17013 Attorney for Plaintiffs Pursuant to the provisions of the Pennsylvania Rules of Civil Procedure, as amended, you are required to forward a copy to the undenigned and retain the original of your answen and objections, if any, In writing and under oath, to the following Interrogatories, within thirty (30) days of service hereof. The Answen shall be inserted in the spaces provided following the Interrogatories. If there is insufficient space to answer the Interrogatory, the remainder of the answer shall follow on a supplemental sheet These Interrogatories are deemed to be continuing In nature, In accordance with the provisions of the Pennsylvania Rules of Civil Procedure, as amended.. If between the time of forwarding your answen to these Interro8!ltories, and the time of tria1 of this matter, you or anyone acting on your beha1f learn the identity ,of penons expected to be called as an expert witness at tria1 not disclosed in your Answen, or if you or an expert witness obtain infonnation upon the hula of EXHIBIT A ,1 :1 :t , DEFINITIONS A. The term "document" as used herein shall mean any written, printed, typed, or other graphic matter of any kind or nature, however produced or reproduced, including photographs, microfilms. phonographs, video and audio tapes, punch cards. magnetic tapes, discs, data cells, dnuns. and other data compilations from which information can be obtained. B. "Person" or "Persons" shall mean any natural individual or corpomtion. linn, partnership, proprietorship, association, joint venture, governmental entity or any other business or government organization. C. "Meeting" shall mean any assembly, convocation, encounter or coincidence of two or more persons for any purpose, whether or not planned, 81TIIIl8ed or scheduled in advance. D. ''Communication'' shall mean any utterance made. human speech heard. overheard, or intended to be heard by any person, whether in person, by telephone, by means of sound recording, or otherwise. E. '1dentify" means: (a) When used in reference to a document, describe with sufficient particu1arity to form the basis for a request for production under Pennsylvania Rules of Civil Procedure, including but not limited to the date it was prepared or created, the identity of its author or originator, the type of document (e.g., letter, telegram, chart, photograph, sound recordings, etc.). the identity of its addressee, its present location and the identity of its present custodian(s). If such document was, but is not longer, in your possession or subject to your control, state what disposition was made of it: " t 6. If self-employed at the lime of the incident referred to in the Complaint, state: (a) the nature of your business; r (b) your business address; (e) the hours worked per week; (d) your average weekly earnings for each of the 3 yean prior to the incident referred to in your Complaint. 7. If self-employed since the incident refened to in the Complaint, state: (a) the nature of your business; (b) your business address; (e) the hours worked per week; (d) your average wee1dy earnings. f'fU 1If~ . .. . JOHN M. STONE and JOYCE V. STONE. Plaintiffs IN THE COURT OP COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL AcnON . LAW v. NO. 97.857 CIVIL TERM CARUSLB HOSPITAL AND HEALTH SERVICES. Defendant JURY TRIAL DEMANDED JlEFENDANT's. CARLISLE HOSPITAL AND HEALTH SERVICES. REQUEST FOR PRODUcnONOFDOCUMENTSPROPOUNDEDUPONP~S TO: JOHN M. STONE AND JOYCE M. STONE clo: Wayne P. Shade. Esquire 53 West Pomfret Street Carlisle, PA 17013 Attorney for Plaintiffs 61:-- . AND NOW. this ~ day of May, 1997, oomes Defendant, CarlIsle Hospital and Health SeIVioes, by its attorneys, Marshall, Smith & Haddick, P.C, and requests the above-named Plaintiffs, John M. Stone and Joyce M. Stone, (hereinafter referred to as "you") to make available to the Defendant, oopies of the fonowing docwnents within thirty (30) days of services of this request: . " . DOCUMENTS REQUES'l'JID 1. All statements, signed statements, transcripts of recorded statements or Interviews of any person or witness relating to, referring to or describing any of the events described in the Complaint. 2. AU expert opinions, reports, summaries or other writings in your custody or control or your attorney or insurers, which relate to the subject matter of this litigation. 3. AU documents prepared' by you, or by any insurer, representative, agent, or anyone acting on your behalf, except your attorney(s), during the investigation of the incident in question or any of the events or allegations described in the Complaint. Such documents shall include any docwnents made or prepared up through the present time, with the exclusion of the mental impressions, conclusions or the opinions respecting the value or merit of the claim or defense or respecting strategy or tactics. 4. . AU medical bills paid or alleged to have been'paid by you, which relate to the subject matter of this litigation. 5. AU photographs, ~, maps, drawings or any other item or thing involved in this litigation. 6. AU statements andlor transcripts of interviews of fact witnesses obtained in this matter. 7. AU documents identified in your Answers to any set of Interrogatories propounded by any party in this litigation. 8. AU documents which you intend to rely upon or introduce at trial of this litigation. 9. A list of the names and addresses of all expert and non-expert witnesses you intend to use during the trial of this case. >- C:" G"" " ,. u.: ~ (': (. ("I. Cj' C.; ('. " boO ' oO .~ I- - LI. e": '..., () (j' 'J . Specifically, Defendant's Expert Interrogatories and Request for Production of Documents concern testimony of experts regarding the medical care rendered to Plaintiffs' minor child. Counsel for the Defendant hospital are not medical school graduates and, as a consequence. do not possess the requisite knowledge of the alleged negligent medical care necessary to effectively rebut the unexpected testimony of Plaintiffs' experts at trial. However, by conducting thorough discovery and reviewing the opinions of Plaintiffs' experts, Defendant's attorneys can properly prepare appropriate responses, "instead of trying to match years of medical expertise on the spot." AUln15tine bv AUllUstine v. Deh1:ado, 332 Pa. Super. 194,481 A.2d 319.322 (1984), citing, Sindler v. Goldman, 309 Pa. Super. 7, 454 A.2d 1054 (1982). In addition, the delay caused in awaiting Plaintiffs' expert witness information increases the risk of unavailability of witnesses or documents relevant to Defendant's defense. There exist no extenuating circumstances allowing for Plaintiffs to assert that they have yet to identify their expert witnesses. Plaintiffs have had ample opportunity to gather the facts needed to obtain an expert's opinion. Further, Plaintiffs have been provided with copies of the Defendant's medical records and other information needed to obtain expert review. Considering the foregoing, Defendant Carlisle Hospital and Health Services respectfully requests that Your Honomble Court grant a Motion to Compel Disclosure of an Expert and Expert Report because the Plaintiffs have frustrated the purpose of Pa. R.c.P. 4003.5. ~ (0') i='- '" ?-: ~s:-. .. ,. ;_: C\J ~; ( . oO . . ~Lr' :;: ~!.:.:~ (1 -- :':';", r, I'.... 0: c:. ..: "J ~, .,c.1) ;1" .~ ,'J' . . c.' .... f-: ::-.: I,' I ;f~ '1,.. -, tl'_liJ_ o CC. ~~ (;n d :'~i ~ ~i ~. 8~ i!i ~ 12ffi ~~ ~~I '" ~ .- 8~ ~fi1 g !! ~ , ~8~ ~ 1 ~ ~~ lIl~ffi , ~~~gc ~~1 ~ I US ~ ill 8 B"~ ! <! j ~~i~~ :i>c. ~ ~g~ ~e:l ~ Q- o~ 12Q ...... "oO H" t ~L ,-.:-.;!. r:>--'l'" ":,.#.'"]\. 1"'''-' ;-"i';-,.'. JOHN M. STONE and JOYCE V. STONE, PlaintilTs IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYL VANIA CIVIL ACTION - LA W v. NO. 97-857 CIVIL TERM CARLISLE HOSPITAL AND HEAL T/-I SERVICES, Defendant JURY TRIAL DEMANDED PLAINTIFFS' ANSWER WITH NEW MA TIER TO DEFENDANT'S MOTION TO COMPEL DISCLOSURE OF AN EXPERT AND EXPERT REPORT ANSWER I. The averments of~1 of Delcndant's Motion arc denied. On the contrary, Plaintiffs aver that the abow-captioned matter is an action for ordinary negligence in the care of PlaintifTJohn M. Stone and a derivative claim ofPlaintilTJoyce V. Stone for loss of consortium. 2. - 8. Admitted. 9. The avennents' of~9 of Defendant's Motion, being conclusions oflaw, no response is required. By way of further answer, PlaintilTs aver that their claims are for ordinary negligence as opposed to medical malpractice. Plaintitls further aver that the WAYNE F. SIIAIlE ^ntlfnC)'II.l~' ~) We\t Ilumrm Slrul (,.,II\lc, Iltnn,,~I\anll 17un ordinary negligenee of Defendant through its agents, servants and employees is such as to be within the ordinary comprehension ofthe average layman. 10. The averments' of~1O of Defendant's Motion, being conclusions oflaw, no response is requircd. By way of further answer, PlaintilTs aver that, even in medical malpractice cases, expert testimony is necessary where the negligence of the provider is within the ordinary comprehension of the average layman. 11. It is ad~ilted that Defendant is requesting that PlaintilTs identify an expert witness and provide copies of an expert witness report, but it is denied that a response is necessary. By way of further answer, PlaintilTs aver that the ordinary negligence of Defendant through its agents, servants and employees is such as to be within the ordinary comprehension of the average layman. WHEREFORE, PlaintilTs request that Defendant's Motion to Compel Disclosure of an Expert and Expert Rcport be denied. NEW MA TIER 12. On December 1,1997, Defendant filed a Motion for Summary Judgment on the basis of Plain tilTs' refusal to identity an expert in this case. WAYNEF.SIIADE Anomey 111.&\lo S3 West pomrret Slfffi C.rh~lc. Pcnnsylunia 17013 -2- 18. On July 3. 1998, counsel for PlaintilTs. a sole practitioner. departed on a two week vacation, 19. PlaintilTs are filing this Answer with New Matter on the first day of the return of their counsel from vacation. 20. Plaintiffs aver that thcy will nced sixty days to identify an expert witness. obtain an appointment to review the case with the expert and obtain a report. WHEREFORE. PlaintifTs respectfully request that your Honorable Court allow Plaintiffs until September 21. 1998. to identify an expert witness and provide a report. Respectfully submitted. Way:;:~:i:~ Supreme Court No. 15712 53 West Pomfret Street Carlisle. Pennsylvania 17013 Telephone: 717-243-0220 Attorney for Plaintiffs -4- Wayne F. Shade, Esquire, states that he is the attorney for the party or parties tiling the foregoing document; that he makes this verification based upon facts which are within his personal knowledge, infonnation or belief and that any false statements herein are made subject to the penalties of 18 Pa. C.S. ~4904 relating to unsworn falsilication to authorities. . Date: July 20. 1998 tt4 ~ WaynZl:ade , ., !~~ LAW OFFICES BARLEY, SNYDER, SENFT &. COHEN, LLC 126 EAST KINO 5TRE1iT . LANCAsTER, PENNsYLVANIA 17602.289J I, h "'~-'" . "" .,~"",. ". ","',v_, _,,' . "... ....... _.~----- ..... . ""'^' .. .t\:"kt~',..,t, ~ "~~;3 199~ J ~ . . IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY. PENNSYLVANIA CIVIL ACTION - LA W JOHN M. STONE and JOYCE V. STONE, Plaintiffs No. 97-857 v. CARLISLE HOSPITAL AND HEALTH SERVICES, Defendant JURY TRIAL DEMANDED ORDER AND NOW, this :t61\daYOf 1'U\1 , 1999, upon consideration of Defendant Carlisle Hospital and Health Services' Motion for Sanctions, IT IS HEREBY ORDERED and DECREED that Defendant's Motion is GRANTED and that Plaintiffs' Complaint be dismissed with prejudice. IT IS FURTHER ORDERED that the Prothonotary shall mark the above-captioned matter as lliJeentiRY8~ dismissed and ended. BYTHEZZZ;: J. 07120199SCJB20BII.1 . 5. By letter dated June 18, 1999, Plaintiffs' counsel indicated that Mr. and Mrs. Stone no longer wished to pursue this action and would not oppose dismissal of the case for failure to engage an expert. A true and correct copy of counsel's letter of June 18, 1999, is attached hereto ns Exhibit "8." 6. On June 30, 1999, the Honorable J. Wesley Oler, Jr. issued an Order directing Plaintiffs to disclose to the Hospital their expert and expert's report within twenty (20) days of the date of the Order. The Order also provided that if Plaintiffs failed to disclose their expert and expert's report within the time allowed, the Court would, upon motion of Defendant, impose the sanction of dismissal of Plaintiffs' Complaint. A true and correct copy of Judge Oler's Order is attached hereto as Exnibit "C." 7. Under the Court's Order, Plaintiffs' deadline for disclosing their expert and expert's report to Carlisle Hospital was July 20, 1999. 8. Plaintiffs have failed to disclose the identity of their expert or provide the Hospital with an expert report by the Court ordered deadline of July 20, 1999. 9. Pennsylvania Rule of Civil Procedure 4019(c)(3) permits the Court to strike out pleadings or enter a judgment of non pros or by default against a party for failure to make discovery or to obey an order of court respecting discovery. 10. Additionally, under Pa.R.C.P. 4019(c)(5), the Court may make such order with regard to the failure to make discovery as is just. 11. An appropriate sanction under Pa. R.Civ.P. 4019(c) (3) and (5) for Plaintiffs' failure to identifY an expert or to produce an expert report pursuant to this Court's Order is dismissal of Plaintiffs' Complaint with prejudice. 12. Dismissal of the instant action is also appropriate sinc~ Plaintiffs will be unable to sustain their burden of proof at trial. 07120199SC1820811.1 2 . 13. Under Pennsylvania law, in order to sustain their burdcn of proof in this medical , I I I i malpractice action, Plaintiffs must prcsent expcrt tcstimony as to thc rcquisitc standard of carc as well as the breach of that standard. Hamil v. Bashlinc, 481 Pa. 256, 392 A.2d 1280 (1978); Brennan v. Lankenau Hospital, 490 Pa.Supcr. 588, 417 A.2d 196 (1980). 14. Plaintiffs must also prcscnt cxpcrt tcstimony, within a rcasonablc dcgrec of medical certainty, that the Defendant's ncgligencc was thc causc or was a substantial factor in producing Plaintiffs' injuries and/or damages. Scc Hamil, supra. 15. Since Plaintiffs have not retained an expert and, according to their counsel's letter of June I g, 1999, have no intention of doing so, Plaintiffs cannot cstablish thc requisite elements of their medical malpractice claim. 16. Accordingly. Defcndant Carlislc Hospital and Hcalth Scrvices is entitlcd to judgment as a matter of law and dismissal of Plaintiffs' Complaint with prejudicc. WHEREFORE, Defendant Carlisle Hospital and Hcalth Services rcspcctfully requcsts that this Honorable Court grant its Motion for Sanctions and dismiss Plaintiffs' Complaint with prejudice. Respectfully submittcd, Date:~ BARLEY, SNY ER, SENFT & COHEN, LLC By: Kendra D. cGuire, Esquire Stephanic Cartley, Esquire Attorneys for Defendant Carli sic Hospital and Hcalth Services 126 East King Strect Lancaster, PA 17602-2893 (717) 299-5201 Court I.D. No. 50919 Court I.D. No. 79136 07120199SC/820811.1 3 exhibit A f't{t 1/ JOHN M. STONE and JOYCE V. STONE, IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL AcnON . LAW Plaintiffs v. NO. 97.857 CIVIL TERM CARUSLB HOSPITAL AND HEALTH SERVICES, Defendant JURY TRJAL DEMANDED INTERROGATORIES OF DEFENDANT CARUSLE HOSPITAL AND HEALm SERVICES PROPOUNDED UPON PLAINTIFFS TO: JOHN M. STONE AND JOYCE M. STONE C/o: Wayne F. Shade, Esquire 53 West Pomfret Street Carlisle, PA 17013 Attorney for Plaintiffs Pursuant to the provisions of the Pennsylvania Rules of Civil Procedure, as amended, you arc required to forward a copy to the undersigned and retain the original of your answers and objections, if any, in writing and under oath, to the following Interrogatories. within thirty (30) days of service hereof. The Answers shall be inserted in the spaces provided following the Interrogatories. If there is insufficient space to answer the Interrogatory, the remainder of the answer shall follow on a supplemental sheet. These Interrogatories are deemed to be continuing in nature, in accordance with the provisions of the Pennsylvania Rules of Civil Procedure, as amended. If between the time of forwarding your answers to these Interro~tories, and the time of trial of this matter, you or anyone acting on your behalf learn the identity.of persons expected to be called as an expert witness at trial not disclosed in your Answers, or if you or an expert witness obtain information upon the basis of EXHIBIT A DEFINITIONS A. The term "document" as used herein shall mean any written, printed, typed, or other graphic matter of any kind or nature, however produced or reproduced, including photographs, microfilms, phonographs. video and audio tapes, punch cards, magnetic tapes, discs, data cells, drums, and other data compilations from which information can be obtained. 8, ''Person'' or ''Persons'' shall mean any natural individual or corporation, firm. partnership, proprietorship, association, joint venture, governmental entity or any other business or government organization. C. "Meeting" shall mean any assembly, convocation, encounter or coincidence of two or more persons for any purpose, whether or not planned, arranged or scheduled in advance. D. "Communication" shall mean any utterance made, human speech heard, overheard, or intended to be heard by any person, whether in person, by telephone, by means of sound recording, or otherwise. E. "Identify" means: (a) When used in reference to a document, describe with sufficient particularity to form the basis for a request for production under Pennsylvania Rules of Civil Procedure, including but not limited to the date it was prepared or created, the identity of its author or originator, the type of document (e.g., letter, telegram. chart, photograph, sound recordings, etc.), the identity of its addressee, its present location and the identity of its present custodian(s). If such document was, but is not longer, in your possession or subject to your controL state what disposition was made of it; DOCUMENTS REQUESTED 1. All statements, signed statements, transcripts of recorded statements or interviews of any person or witness relating to, referring to or describing any of the events described in the Complaint. 2. AU expert opinions, reports. summaries or other writings in your custody or control or your attorney or insurers, which relate to the subject matter of this litigation. 3. AU documents prepared. by you, or by any insurer, representative, agent, or anyone acting on your behalf, except your attorney(s), during the investigation of the incident in question or any of the events or allegations described in the Complaint. Such documents shall include any documents made or prepared up through the present time, with the exclusion of the mental impressions, conclusions or the opinions respecting the value or merit of the claim or defense or respecting strategy or tactics. 4. AU medical bills paid or alleged to have been 'paid by you, which relate to the subject matter of this litigation. 5. AU photographs, diagnu;LS, maps, drawings or any other item or thing involved in this litigation. 6. AU statements andlor transcripts of interviews of fact witnesses obtained in thisf matter. 7. AU documents identified in your Answers to any set of Interrogatories propounded by any party in this litigation. 8. AU documents which you intend to rely upon or introduce at trial of this litigation. 9. A list of the names and addresses of all expert and non-expert witnesses you intend to use during the trial of this case. if the expert's identity is disclosed, their testimony may not be inconsistent with the expert's responses provided during discovery. Id.; ~ also Neal bv Neal v. Lu. 365 Pa. Super. 464, 530 A.2d 103, 106 (1987); IOvman v. Southeastern Pennsvlvania Transportation Authority. 331 Pa. Super. 172,480 A.2d 299,302 (1984). The explanatory note to Rule 4003.5 reveals that these limitations exist to ensure that the opposing party is fully apprised of the facts and opinions on which the expert's testimony is based.\ See Pa.R.c.P. 4003.5 explanatory note - 1994. Rule 4003.5, "serves to insure that an expert's report will be sufficiently comprehensive and detailed to inform an opposing party of the expert's testimony at trial." Jones v. Constantino. 429 Pa. Super. 73, 631 A.2d 1289. 1295 (1993), citing, Havasvv. Resnick. 415 Pa. Super. 480, 489, 609 A.2d 1326, 1331 (1992). Thus, Pennsylvania courts hold that, to avoid unfair and prejudicial surprise, Pa. R.C.P. 4003.5 favors liberal discovery of expert witnesses. See. e.S1:. Jones v. Constantino. 429 Pa. Super. 73, 631 A.2d 1289, 1294 (1993); AUllUstine bv AUln15tine v. DelS1:ado, 332 Pa. Super. 194,481 A.2d 319, 321 (1984); DiBuono v. A. Barletta & Sons, Inc.. 127 Pa. Commw. 1,560 A.2d 893, 898 (1989). 'Trial by ambush is no longer to be countenanced." Clark v. Heorner. 362 Pa. Super. 588, 525 A.2d 377,384 (1987). In the case at bar, Defendant Carlisle Hospital and Health Services subutits that Plaintiffs' failure to respond to Defendant's discovery frustrates the purpose of Pa. R.c.P. 4003.5. As a result, Defendant is prejudiced by its inability to prepare for any unexpected testimony of Plaintiffs' expert witnesses at trial which is needed to make a case of medical negligence. \ While explanatory notes are not actually part of the rules themselves, they indicate the spirit and motivation behind the drafting of the rule, and they serve as guidelines for understanding the purpose for which the rule was drafted. IOvman v. Southeastern Pennsvlvania Transportation Authoritv. 331 Pa. Super. 172,480 A.2d 299,302 (1984). Specifically, Defendant's Expert Interrogatories and Request for Production of Documents concern testimony of experts regarding the medical care rendered to Plaintiffs' minor child. Counsel for the Defendant hospital are not medical school graduates and, as a consequence, do not possess the requisite knowledge of the alleged negligent medical care necessary to effectively rebut the unexpected testimony of Plaintiffs' experts at trial. However, by conducting thorough discovery and reviewing the opinions of Plaintiffs' experts, Defendant's attorneys can properly prepare appropriate responses, "instead of trying to match years of medical expertise on the spot." AUllUstine bv AUln15tine v. Dell1:lldo, 332 Pa. Super. 194,481 A.2d 319,322 (1984), citing, Sindlerv. Goldman. 309 Pa. Super. 7, 454 A.2d 1054 (1982). In addition, the delay ~used in awaiting Plaintiffs' expert witness information increases the risk of unavailability of witnesses or documents relevant to Defendant's defense. There exist no extenuating circumstances allowing for Plaintiffs to assert that they have yet to identify their expert witnesses. Plaintiffs have had ample opportunity to gather the facts needed to obtain an expert's opinion. Further, Plaintiffs have been provided with copies of the Defendant's medical records and other information needed to obtain expert review. Considering the foregoing, Defendant Carlisle Hospital and Health Services respectfully requests that Your Honorable Court grant a Motion to Compel Disclosure of an Expert and Expert Report because the Plaintiffs have frustrated the pllIpOse of Pa. R.C.P. 4003.5. Exhibit B Exhibit C """'I!l(~ >- "'I iE c- ..:J ;:'-; ~. .p J...... " ;-:jf~ '. , oO , oO '- .' :l....-J '-:J ~. ," .,... C'I to ,: . N "',- .. .. .~Z ... '. J ' j1lj ~ i_ ~: I .ilL. ~- ". e,... ::> u u, U , , .. . LAW OFFICES , BARLEY, SNYDER, SENFT & COHEN, LLC I Z6 BAST KINO 5TlWrr -1.ANCAmR, PENNSYLVANIA 176OZ-Z893 .---- - - .~."._--_.~____~__ __, - _.... ...__ ',_~ .'0 ......___._ JUl2 3 1999~ -.'-1rtt1 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW JOHN M, STONE and JOYCE V. STONE, Plaintiffs v. No. 97-857 CARLISLE HOSPITAL AND HEALTH SERVICES, Defendant JURY TRIAL DEMANDED DEFENDANT CARLISLE HOSPITAL AND HEALTH SERVICES' BRIEF IN SUPPORT OF MOTION FOR SANCTIONS I. HISTORY OF THE CASE Plaintiffs filed a Complaint in this medical malpractice action on or about February 20, 1997. According to the facts alleged in the Complaint, on August 22, 1996, Plaintiff, John M. Stone, a patient at Carlisle Hospital and Health Services, jumped from a second story window, landed on the first floor roof and suffered injuries as a result. Plaintiffs' Complaint alleges that Defendant Carlisle Hospital and Health Services ("Moving Defendant" or "Hospital") was negligent in failing to provide reasonable nursing care and other health care services, including supervision and/or restraint of Mr. Stone, that were required for his health, safety and welfare. On or about May 20, 1997, the Hospital served Interrogatories and a Request for Production of Documents, seeking, inter alia, information pertaining to the experts Plaintiffs intended to call at the time of trial. Plaintiffs served responses to Defendant's Interrogatories and Request for Production on or about July 2, 1997; however, Plaintiffs' responses failed to 071201'l9/SCI821902.1 4019(c)(3) and (5) for Plaintiffs' failure to disclose expert information in response to the Hospital's discovery and their failure to comply with this Court's Order is dismissal of Plaintiffs' Complaint with prejudice, Dismissal of the instant action is also appropriate since Plaintiffs will be unable to sustain their burden of proof at trial. To establish a prima facie case of medical negligence, a plaintiff must prove a duty of care on the part of the defendant and a breach thereof causing injury. Hamil v. Bashline, 481 Pa. 256, 392 A,2d 1280 (1978); Checchio v. Frankford Hosoital- Torresdale Division, 717 A.2d 1058, 1060 (1998). In order to sustain the burden of proof, the plaintiff is required to present expert testimony as to the requisite standard of care as well as the breach of that standard. Hamil, 481 Pa. at 267,392 A.2d at 12g5 (it is generally acknowledged that the complexities of the human body place questions as to the cause of the pain or injury beyond the average lay person, and for a plaintiff to make out a cause of action in a medical malpractice case, the law requires that expert testimony be employed). In addition to bearing on whether or not a defendant's conduct was negligent, expert testimony is needed to establish that the injury in question did, within a reasonable degree of medical certainty, stem from the negligent act alleged. 1d. These are critical and essential elements in any medical malpractice action. See Broohv v. Bruzuela, 358 Pa.Super. 400, 517 A.2d 1292 (1986). Since Plaintiffs have not retained an expert and, according to Plaintiffs' counsel's letter of June 18, 1999, have no intention of retaining an expert in this case, they cannot establish the requisite elements of their medical malpractice claim. Accordingly, Defendant Carlisle Hospital and Health Services is entitled to judgment as a matter of law and dismissal of Plaintiffs' Complaint with prejudice. 071201991SC/82 1902.1 4