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Home My WebLink About97-03302 / Ie: " , ij f. ,:1 " P d \" i~ !: " ~ . 1 " i ! I:' _ i~ l' (' ~. ~; !l :: f I' f' " " f. f, r. t i i: ','. F ~' ;1 l( !.) il ,I I" " r.i iJ ,;7 ,. \: -.;. '. , " 'f ,- '. . ., ,. "., .' " ,. ", ~,,\, ~tk~ " ",'" ,. .' "t'~. i ~~. < f' ~ '':' , " , . .i' >,,'t-.,' ;' , "'" ,'.t J. .' " , .r ." I:, 'j.-", . '!- "!' .<;J.: .'-" '-.... . ~i..;, ,;""c 'I . ., '}!- . . " -'.-..'~ '. . . . ' \' 0, -~:;' .~-;:-. ~, -.' \ " ...... .' - , '. ~.' a... ,('! .~ \.-y >t.~l ~ .... "',l~"',""_~._______ , ~ ., , , .>,~' " .> .' -t: :;,'" .. . " '.'", ,~ . ,'" ,-,' \"" " .' . . ,,'t "', - . .,-- -'. ;.W~~:~k' /;,";~\ -(~~ >~ ... >'-J.J:-~~ '~>:'~ -\" .... \....;.1.. , '. :': 1-'" '."-' '.1 ,-~ , -.: ,'-- fl t l . '2,-P CS\J - ~ fr ~ t .. o v .. .~ .... I:. 0... ii E", t~ ',. " ""', ! : ~ CYNTHIA A. KAYLOR, Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW v. GARRY B. MALNAR, D.O., SMITH RADIOLOGY, INC., Defendants . . NO. 97-3302 CIVIL TERM AND NOW, this ORDER OF COURT \9~ day of March, 199B, upon agreement of counsel, the discovery conference previously scheduled in this matter for April 17, 199B, is RESCHEDULED to Thursday, April 2, 1998, at 3:30 p.m. in chambers of the undersigned judge. BY THE COURT, Archie V. Diveglia, Esq. 119 Locust Street Harrisburg, PA 17101 Attorney for Plaintiff e...~41 (71~ 3j::Jolf/f. ,.l,. 'P. G. Thomas Miller, Esq. 113 Locust Street Harrisburg, PA 17108-0709 Attorney for Defendants (') .0 0 C OJ "n ". :1C: -l -r .' .)~ ~,::::J r11. "'J ' ~, r;; ., . N , , , I:> ''b ,) -. ",' !.~ ,.] ." .,-).1 - Co, ~ ." <;1 . .q \.:J . ". .< "" :-j ,"" ::~ . I:> .... :rc LAW OFFICES MILLER AND MILLER G. nlOMAS folILI.EIl nlOMAS R. MlU.ER 113 LOCU!il' STREET P.O. BOX 709 IIARRISBURG, PA 17108-0709 lUEPlIOSE 11l1111l00110 F,u 11l1111l.1I01 March 3, 1998 Lawrence E. Welker, Prothonotary Cumberland County Cumberland County Courthouse 1 Courthouse Square Carlisle, PA 17013 Re: Kaylor v. Smith Radiology, Inc., et al. CP Cumberland County - No. 1997 - 3302 Civil Dear Mr. Welker: We enclose for filing Defendants' Answer to Plaintiffs Motion to Compel Answers and Produce Documents, a copy of which is being concurrently served on Plaintiffs counsel. and courtesy copies sent to the Court Administrator and Judge Oler who has previously issued discovery orders in this case. Your attention is appreciated. Very truly yours, Enclosure GTM/lk cc: Archie V. Diveglia, Esquire Richard J. Pierce, Cumberland County Court Administrator Honorable Wesley Oler, Jr. l3.A. Admitted in part, except that to some extent, the questions are lifted out of context and the entire transcript should be reviewed; it is to be noted that Plaintiff's counsel was overall accorded great latitude with his questioning, which consumed approximately three-and-one-half hours. The last paragraph of l3.A. is denied. Dr. Smith was not proscribed in his answers regarding hlli treaunent, or evaluation, of the patient. Defendants' objections were limited to Plaintiffs effons to have Dr. Smith express an opinion about Dr. Malnar's professional conduct, or in other words, have Dr. Smith become the Plaintiffs expert against the individual defendant, Malnar. Dr. Smith should not be required to give any expert opinion regarding another physician's conduct if he does not choose to serve as such an expert. B. It is admitted that Dr. Malnar did not answer the questions quoted. Again, they are lifted out of context. Further, those questions were believed to be improper for the reasons stated in the record and Dr. Malnar was therefore instructed by counsel not to answer. 14. Dr. Smith's testimony will speak for itself. 15. Admitted, and Defendants are in the process of attempting to provide these data, and waI do so reasonably soon, if found to be available. The records of Smith Radiology are presently being searched and reviewed for same. 16. Response Number 15, above, is incorporated by reference. 17.-18. Admitted. 2 CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of "Defendants' Answer to Plaintiffs Motion to Compel Answers and Produce Docwnents" was served upon the following person(s) by United Stales firsl class mail, postage prepaid, on this dale: Archie V. Diveglia, Esquire 119 Locust Street Harrisburg, PA 17101 Date: March 3, 1998 LAW OFFICES MILLER AND MILLER , 13 LOCUST STREET P.O. BOX 709 HARRISBURO,PA 1710B.0709 Tol,phonoI7171232.07&O Fax 17171 232.1302 -. MILLER and MILLER G. Thorn.. Miller, Esquire IDENTU'ICATION NO. 07219 Thorn.. R. Miller, Esquire IDEN'fmCATION NO. 49801 105 Locust Slreel P.O. Box 709 Harrisburg, PA 17108.0709 Telephone: (717) 232.0750 AlIorneys for Defendant Smllh Radiology, Inc. CYNTHIA ANNE KAYLOR, Plaintiff IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA v. NO. 1997 - 3302 CIVIL GARRY B. MALNAR, D.O., SMITH RADIOLOGY, INC., Defendants CIVIL ACTION. LAW JURY TRIAL DEMANDED DEFENDANTS' ANSWER TO PLAINTIFF'S MOTION TO COMPEL ANSWERS AND PRODUCE DOCUMENTS 1.-9. Admitted. 10. Denied. Plaintiff's intentions are not known with certainty by Defendants. Since May 28, 1998 is about 80 days in the future at this writing, Plaintiff is not believed to be presently suffering prejudice in trial preparation. Further, Plaintiff's discovery procedures are not concluded. Two of Defendants' technicians were deposed by Plaintiff on January 29, 1998, and a third technician is to be deposcd by Plaintiff on March 10, 1998. Each deposition taken by Plaintiff results in further discovery requests, 11. Denied. Defcndant is without knowledge as to Plaintiff's exact physical condition or possible future medical needs, and therefore demands proof if material and relevant. 12. Admitted. l3.A. Admitted in part, except that to some extent, the questions are lifted out of context and the entire transcript should be reviewed; it is to be noted that Plaintiff's counsel was overall accorded great latitude with his questioning, which consumed approximately three-and-one-half hours. The last paragraph of l3.A. is denied. Dr. Smith was not proscribed in his answers regarding his treatment, or evaluation, of the patient. Defendants' objections were limited to Plaintiff's efforts to have Dr. Smith express an opinion about Dr. Malnar's professional conduct, or in other words, have Dr. Smith become the Plaintiff's expert against the individual defendant, Malnar. Dr. Smith should not be required to give any expert opinion regarding another physician's conduct if he does not choose to serve as such an expert. B. It is admitted that Dr. Malnar did not answer the questions quoted. Again, they are lifted out of context. Further, those questions were believed to be improper for the reasons stated in the record and Dr. Malnar was therefore instructed by counsel not to ans,!\,er, 14. Dr. Smith's testimony will speak for itself. 15. Admitted, and Defendants are in the process of attempting to provide these data, and will do so reasonably soon, if found to be available. The records of Smith Radiology are presently being searched and reviewed for same. 16. Response Number 15, above, is incorporated by reference. 17.-18. Admitted. 2 - FES 26 1995to CYNTHIA A. KAYLOR, Plaintiff IN THE COURT OF COMMON PLEAS CUMeERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW v. GARRY B. MALNAR, D.O., SMITH RADIOLOGY, INC., Defendants NO. 3302 CIVIL: 1997 JURY TRIAL DEMANDED ORDER OF COURT AND NOW, this _ day of February, 1998, in consideration of the Plaintifi's Motion to Compel Answers to Expert Discovery Deposition Questions and Documents, it is hereby ordered that: a, The Defendants shall serve supplemental answers to Expert Witness Discovery of Plaintiffs identifying all experts defendants propose to have testify at trial, and otherwise answering Plaintifi's discovery in regard to expert testimony. If the Defendants fail to serve supplemental answers within 15 days of being served with this Order, Defendants shall be barred from calling an expert witness at trial. b. Dr. Henry Smith and Dr, Garry Malnar shall be rescheduled for deposition, at the Defendant's expense, within thirty days and be directed to answer the questions asked of them as set forth in paragraph 13 of this Motion, c. Plaintiff and Defense counsel shall attempt to resolve their dispute in regard to the objections to questions to the technologists and if an agreement cannot be reached within 20 days of receipt of the transcripts, the Court will have a telephone conference regarding those questions. d. The defendant, Smith Radiology shall supply to Plaintiff within twenty days those documents requested relating to "spot checks," and all other material supplied to the FDA or it's agent under the Mammogram Quality Standard Act. Wesley Oyler, J. FEB 2 6 199#J CYNTHIA A. KAYLOR, Plaintiff v. IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW GARRY B. MALNAR, D.O., SMITH kADIOLOGY, INC., Defendants NO. 3302 CIVIL: 1997 JURY TRIAL DEMANDED ORDER OF COURT AND NOW, this _ day of February, 1998, in consideration of the Plaintiffs Motion to Compel Answers :0 Expert Discovery Deposition Questions and Documents, it is hereby ordered that: a. The Defendants shall serve supplemental answers to Expert Witness Discovery of Plaintiffs identifYing all experts defendants propose to have testifY at trial, and otherwise answering Plair-tiffs discovery in regard to expert testimony, If the Defendants fail to serve supplemental answers within 15 days of being served with this Order, Defendants shall be barrel! from calling an expert witness at trial. b. Dr. Henry Smith and Dr. Garry Malnar shall be rescheduled for deposition, at the Defendant's expense, within thirty days and be directed to answer the questions asked of them as set forth in paragraph 13 of this Motion. c. Plaintiff and Defense counsel shall attempt to resolve their dispute in regard to the objections to questions to the technologists and if an agreement cannot be reached within 20 days of receipt of the transcripts, the Court will have a telephone conference regarding those questions d. The defendant, Smith Radiology shall supply to Plaintiff within twenty days those documents requested relating to "spot checks," and all other material supplied to the F.D.A. or it's agent under the Mammogram Quality Standard Act, Wesley Oyler, 1. >- \1) r.~~: L: ( ltl~ . i:~ ., ) .~ II.. ". - c. r" , ) "j r.~' , l.'r ('J -;-:-;!., ( LO_ ll.. L,_ l' r.--: .-) j U ('>' r.J ~ ~ ~ <; ~ ~ ~~ I;;~ ~ ~ w~ ~ ~- "'~ . In", '" to~ ~z ~ ~ -to "'z ~- g~ z wt:. g ~~ JIf ~~ ~ . -ll '" ~ ~ , .~ (Si ,<, .... I ... .... . : . ...... . . ~ ~ .., . J/I. , characteristics for neoplasm on the left breast of Miss Kaylor as did the '97 films? 4. Page 72: Q. Now let's take a look at the 3:00 position. Do you see that? 5. Page 91: Q. And the 1996 films when you hung them before you wrote your report to Dr. Jordan, do you recall seeing architectural distortion in the sonograms or mammograms? 6, Page 93: Q. And when you would have - did it occur to you at that point that if there was ~rchitectural prominence as referred to in his report, that perhaps Dr, Malnar was in error when he classified the findings on these films, the mammograms and sonograms as benign? (Transcript pages with full context are attached as exhibit E,) All above questions were directed to Ms. Kaylor's radiologist since 1997, and were related to his report of 1997, which correlated the films and the 1996 report of Dr. Malnar. Thus, as a treating physician who is also the owner of the Defendant Smith Radiology and who in the course of his diagnosis ofMs, Kaylor in 1997, specifically references the films and report of Dr. Malnar from 1996, the answers are not prohibited expert witness questions, but rather questions to a treating physician and/or questions to a defendant on his expertise and are clearly permissible. Bolton v, Holv Soirit HosDital and Kioo v. Fitzgerald 105 Dauphin 40, 49.51 (1984); The First National Bank and Trust ComDanv ofWavnesboro. Executor. V. ER. Squibb and Sons. Inc.. 106 Dauphin 263, 264-265 (1985) and numerous cases cited therein, . 4 . ...... B. Deoosition of Dr. Malnar 1, Page 82: Q. Do you know the final diagnosis in this case? 2, Page 83: Q, ... At this time, do you know that you were absolutely wrong? 3. Page 96: Q, And isn't that in fact the standard of care of radiologist practicing in Pennsylvania in 1996? (Transcript pages with full context are attached as exhibit F.) DEPOSITIONS OF VALERIE MITCHELL AND BARBARA KAUFMAN There were approximately five questions objected to during the technician's depositions, The transcripts are not completed at this time and this Motion will be supplemented upon receipt of the transcripts, FAILURE TO PRODUCE DOCUMENTS 14. Defendant Smith Radiology through its owner, Dr. Henry Smith, testified that there were "Spot Checks" which are included as part of an audit system under the Mammogram Quality Standards Act, which were done and records maintained of such checks (See N. T, 115 to 119 attached as exhibit G.) 15, PlaintifThas requested from Smith Radiology certain data maintained or submitted to 5 .., "", WHEREFORE, Plaintiff respectfully requests this Honorable Court to intervene under Pa. R.C.P. 4019 and issue an Order that: a. The Defendants be required to file expert reports or otherwise respond to expert discovery as provided by Pa. R.C.P. 4003.5 within 15 days or suffer sanctions, b. Dr. Henry Smith and Dr. Garry Malnar be rescheduled for deposition, at the Defendant's expense, within thirty days and be directed to answer the questions asked of them as set forth in paragraph 13 of this Motion. c, Plaintiff and Defense counsel attempt to resolve their dispute in regard to the objections to questions to the technologists and if an agreement cannot be reached within 20 days of receipt of the transcripts, the Court will have a telephone conference regarding those questions. d. The defendant, Smith Radiology is to supply to Plaintiff within twenty days those documents requested relating to "spot checks," and all other material supplied to the F.D.A, or it's agent under the Mammogram Quality Standard Act. Respectfully Submitted, Dated: ;).- 'J>f <if By: l Archie V. Dive l' , Esquire Attorney 1.0. #1 140 119 Locust Street Harrisburg, Pennsylvania 17101 (717) 236-5985 Attorney for Plaintiff 7 Exhibit A . . - ~. described in the Complaint. ~'All expert opinions, reports, writings in your custody or control of summaries or other your attorney or insurers, which relate to the subject matter of this litigation, and the curriculum vitae of each expert. 7. All documents, medical records, notations, phone memos, correspondence, drawings, sketches, diagrams, computer entries, or writings in your custody or control or your attorney or insurer,s which relate to Cynthia A. Kaylor in this action and all documents reviewed by the Defendant or anyone acting on behalf of the Defendant in the preparation of answers to the foregoing interrogatories. 8. All documents prepared.by you, or by any insurer, representative, agent, or anyone ac~ing 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, conclusion, or the opinions respecting the value or merit of the claim or defense or respecting strategy or 4 Exhibit B , , / , I , ". 18. State the name, last known IIddress IInd business IIddress of ellch person whom you expect to call liS IIn expert witness lit trial. And with respect to such experts, state: II) the suhject matter on which the expert is expected to testify; b) the suhstance of the facts liS to which the expert is expected to testify; c) state in detail the factual information supplied to each expert which was used as a basis for forming their opinion(s) including all documents, reports or records furnished, 1111 testimony, statements and reference material reviewed, all physical evidence, objects, test results, inspection reports, photographs, plans or other tangible items provided to each expert for review or inspection; d) set forth the opinions as to which each expert you have listed is expected to teslify; e) set forth a summary of the grounds for each such opinion, including any text materials upon which the expert will rely. Identify all such text or edition and page reference; I) arc any of the experts employees of yours, and if so, in what capacity; g) have any of these experts testified in Court on prior occasions for you or Smith Radiology or been used by G. Thomas Miller, and if so, state the specifics of the Complaint or action involved for each; h) if any expert you intend to call has ever had a professional license or certification revoked or suspended or has been disciplined by any organizlltion or agency regulating the expert's profession; i) if your answer to the preceding Interrogatory was yes, identify the expert and set forth all facls with respect to the revocation or suspension of the professional license or certification or the discipline imposed on the expert; j) if your expert has ever advertised in any trade or professional publications, please state the contents of the advertisement or attach a copy hereto in lieu of stating the contents of the advertisement, listing the name of the publication, the publisher and the dates; and k) state which Court term and number of any case in which the Court refused to permit any expert you intend to call in this case to testify based on the lack of qualifications of the expert and state the subject matter of the expert's proposed testimony for each incidence. ANSWER: Ohl('ellon. At this time, Defendant has not made a determInatIon as to whom he wi I 1 ull Uze as an expert at trIal. Wh,'n such determinatIon Is made, this nnsw('r wJ11 be seasonahly supplemented III the "",nner prescribed by Pa.R.C.P. 4003.5(a)(I). FlIhihit r. .. EXHIBIT D ,(<1m t?fi;'(' (I' (lJi()(l1Iin/ an-lI.CYUtyltJI'J !lJ. (l. ./fl'rltk, (fJ. (1)1;Jf(9!ill' y}nlhill' A. ~~~!t}f' . (If"NI(~~ 01 t"''' ~. . ( fIJ.1,p.:r.rinnnl r,hr!Mrfllion .r1J.,'oitt1'1 .(('In/, Irl"IItt.,.,r ,7;,.,,: (717) 231-4083 January 20, 1998 ~, " I(t) -<"(IIKI <)1"'" ,'1inlY'l:rI",':9' fl',.''''fpliJ"ni'' 11101 (717) 236-5985 "HAND DELIVERED" G. Thomas Miller, Esquire 108 Locust street Harrisburg, PA 17101 re: Kavlor v. Jordan. et al. No. 1997 - 07037 civil Dear Tom: This letter is a follow-up to our conversation of January 23, 1998. At that time, I again requested a copy of your expert's report on the above captioned case. On November 20, 1997, I wrote to you and requested your expert report. In our telephone conversation of January 23, 1998, I again asked you for a copy of your expert's report. You were provided with a copy of the expert report of Dr. Ekland on July 9, 1997. I also provided you the expert report of Dr. Borgan on November 20, 1997. Additionally, you have been provided the expert report of David Bruin, on the issue of damages on July 16, 1997. Despite the lapse of more than seven months, since I deli vered Ekland' s report, and despite the fact tl.at both Dr. smith's and Dr. Malnar's depositions have long since been completed, your clients have failed to consent to settle and tender to the CAT Fund or tender expert reports. The last term of court prior to the August 31, CAT Fund settlement deadline is July 6, 1998, and the last day to li3t for t.hat term is May 25, 1998. Of course, all discovery must be completed prior to listing. certainly, I have met the discovery deadlines established under the new Malpractice Act. Although, the Act was mostly suspended, I believe that the Court will look closely at it as guidelines for completion of discovery, especially since these deadlines were demanded upon by the physiciansl Therefore, unless I receive your expert report(s) by February 13, 1998, I will file a Motion to Compel. I regret the ,......, .r-, hhibilE c. " , f f ." 12 r " .1 1 ] i 4 I , 5 A. . 6 7 Q. 6 9 . 10 11 12 A. 13 14 15 16 17 Q. 16 A. 19 Q. 20 A. 21 Q. 22 l3 a 75 Exam./Diveglia - smith correlation and it says "this does reveal this 49 change to have been present to some extent, although not appreciated in the prior films of '94." And was it also present in the '96 films? Well, what I said in the report, it does reveal this change to have been present to some extent. And when we were, by "w,e" I mean Ms. Kaylor and myself were in your office on the 18th of April, did you, in fact, hang the '96 films next to the '97 films and indicate that it's basically the same mass, except for the size? I don't know that I went out of the way to point that out. I think that was perhaps surmised by perhaps you, perhaps. I'm not even sure I stated that it had been there and increased. I don't recall that. Well, have you seen the '96 films? Yes. And you see the '97 films? Yes. And would you agree that when you look at the two, and I'm talking about the left breast, the craniocaudad view, would you agree that both films show a spiculated mass? MR. MILLER: I'm not going to let him answer -HLltlSl. ,\Jdlll.,\~ UU'lmll.\l. ~l 1,\ It I lIoJrruJ'IH:(71;".!lb-Ub!1 1.",1. i,i ~li.bH:~ 1" I ~"I' !Ii "l!~ . Exam./Diveglia - smith that question. You're asking for an expert opinion about the '96 films, which he didn't do and which he didn't interpret and I'm not going to permit him to become an expert for the '96 films. I'm going to Jnstruct him not to answer. MR. DIVEGLIA: And I beg to disagree, because his report of April 18th references that '96 study and it's there and it's clear that he did a correlation and he's a fact witness and this is a fact. MR. MILLER: Well, I instructed him not to answer that quest~on. If you want to ask another question, fine. BY MR. DIVEGLIA: Q. Dr. smith, isn't it correct that the size of the mass in the 1996 films is approximately 2 centimeters by 1.7 centimeters? MR. MILLER: You don't even again, I'm going to object to this. You don't have the '96 film up in the first place and you're asking him to do something from memory. But I mean before you go to that, I'm not going to permit him to express any opinion about the '96 film, Mr. Diveglia. He didn't interpret that film and he's not going to be your expert now to do an III "I' 1,\1, I "<".1' Rl/''''I''\',; q III lei IIl1rn,","( ;'J;'".l1(i.f}(,!l ,",,,k il;".(li.IiH'f 1'.' 1.~OO.21J.ql1: 50 1 2 3 4 5 6 7 0 9 10 II 12 13 14 IS 16 17 18 19 20 II "":" 12 2) H 15 Exam./Diveglia - Smith interpretation a couple of years later. MR. DIVEGLIA: It doesn't matter. The fact is he hung that film side by side. He did a correlation of it. It's noted in the April 1997 report to Dr. Jordan. He bets that we were in his office when he hung the films side by side and these are all facts by which I can question him. MR. MILLER: If you want to testify to what he said when you were in his office, fine. He's already answered that question. He doesn't believe he said that, or he doesn't remember, whatever the record says. He's answered that question. MR. DIVEGLIA: And I'm going to ask him since he correlated it and since it's in the report to Dr. Jordan, I have the absolute right to ask him these factual questions and what I want to do, I understand your objection to me, I want to put onto the record each and every question I intended to ask him. MR. MILLER: You may do that. We've already put MR. DIVEGLIA: And we will deal with that at a later time. MR. MILLER: You're putting it on the record. ,,, "'" t. '1,'"1. ''''1lI "oftn\'(; q R\'tcr lI,n".h,"t ~I:- ~1,. lIto!! '".l ;-'.IIlH "H~ ,', ,,,no 111 ql1i 51 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 Bxam./Diveglia - Smith MR. MILLER: You're not asking him what he sees today? MR. DIVEGLIA: That's right. A. It doesn't help me to remember. DY MR. DIVEGLIA: Q. And have you since looked at these films to make that determination? MR. MILLER: I'm not going to let him answer that question. If he did it, if he did it at the request of counsel, then it's work product. MR. DIVEGLIA: That's fine. That's fair enough. BY MR. DIVEGLIA: Q. Did you ever do it without the request of counsel? A. I mean, I'm sure back at the time I was doing my original interpretation. MR. MILLER: But the question was, have you done it since you did this interpretation in April of '97, have you' looked at these sonogram films other than at my request? A. Not that I recall, no. BY MR. DIVEGLIA: Q. When you did your correlation with the '96 sonogram films, isn't it correct that the 1996 sonogram films showed essentially the same ,,, "'10,. Md "C.tli nn'(IRTl.\'c; "fR\'1cr ",Im."",v :-r:-.}Ifi on!l '-mA ;-r;- "4j.,,-II,ll ,.., '.,llM'ln.Ql.:':" \ \ I 2 3 4 5 6 7 B 9 10 II 12 13 14 15 16 17 IB 19 20 II 12 13 . H I , n Exam./Diveglia - smith 67 characteristics for neoplasm on the left breast of Miss Kaylor as did the '97 films? MR. MILLER: Well, I'm not going to let him answer that, because he's already said that looking at them doesn't help him, he doesn't remember. So I think you're going over the same thing again, Mr. Diveglia. MR. OIVEGLIA: Well, I'm just going to put this on and we'll deal with this at a different time. MR. MILLER: I think you're being repetitive. MR. DIVEGLIA: Well, maybe. BY MR. OIVEGLIA: Q. Isn't that what you were suggesting, however, to Or. Jordan in your letter of April 1Bth? MR. MILLER: Isn't what? BY I1R. OIVEGLIA: Q. That the sonogram has essentially the same suggestive characteristics of neoplasm as the 1996 films? MR. MILLER: Well, unless you're referring to a specific passage in his letter to Dr. Jordan, I don't think he can attempt to interpret and extrapolate the whole letter. What are you referring to? 11111''; (. .\fll IJl".,,,I\,,'on II\'{; q III /(1 "arrl'''U~ :-1:".11" 0,,!1 \",~ :"1:'-lfH IOU" r\ J..l~OO 111-111]; 1 'Exam~/Diveglia - Smith Right, we're talking about these little dots that Q. 2 are -- 3 A. That's correct. 4 Q. -- horizontal and vertical? 5 A. And I'm not Sure where or when. I'm sure I was 6 the one that put those on if I read the study. 7 Yes, it was just more or less to jog my memory 8 looking at the size of it. But I don't recall 9 when I put them on. 10 Q. What was the reason you put it on? 11 A. To indicate to myself that that's an area to 12 correlate with the mammogram, perhaps. I mean 13 it's not uncommon to put marks on films. 14 Sometimes haphazardly, to tell you the truth. 15 Q. Now, looking at this '97 sonogram, would you 16 agree -- and we're looking at the left breast now, 17 would you agree that these films show a lack of 18 clean borders of the site, the mass itself? 19 A. I'm not seeing terribly spic -- take it the other 20 direction. I don't see a lot of terrible 2l spiculation either. They're -- I think the 22 mammogram is certainly much more impressive from 23 the spiculation than the sonogram. 24 Q. And you indicated before that you did a 25 correlation with the '96 films. Do you recall ,,, Ill' l~ \1llllC '" un'OIl ''''r; ~rRnC1 "lIrn"'''''':''';",.~l''_IIn!l 'l',l :",:' "Ii "-II~ fl,", ,.li/lO.21t.Ql2:' .,' i I 2 J 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Exam./Diveglia Smith , I when you looked at the '96 films, do you recall whether or not those films showed a lack of cle;. borders? A. YOU're referring to the sonogram? Q. The sonogram. Would you like me to put it up? A. Yes. MR. MILLER: Well, we're not going to do it today. Your question is, does he recall what he saw at that time? Do you recall? A. No. BY MR. DIVEGLIA: Q. Well, would looking at the films help refresh YOl' memory? MR. MILLER: Well, you're asking him to interpret them today. We're not doing that today MR. DIVEGLIA: No, I'm just asking him to S0 if it refreshes his memory. A. When I look at that film, the thing that impressp,' me is that I do see a big cyst up in the upper left corner. BY MR. DIVEGLIA: Q. Yes, that has clean borders, right? A. Yes. Q. Good throunh transmission? A. You got it, and that's at 2:00 Position. ,,, Ill.. (. \tll lie'" RI run ".\'(; q n',cr "'I,",II'I~ ;or:-!!f, 0"11 l,I,1. ;";..~"i'~IH ".-\ ,-,liOO.l11.QI17 " ., , ., " " 1 I 2 3 4 ) 5 .! i 6 , ~. 'j 7 .' \ " I ! 8 j 9 i I 10 . I. oj 1 11 ., , 12 I f 13 l , 14 , ,\ 1 15 , 16 17 18 19 20 21 22 23 24 25 Exam.jDiveglia - Smith Q. Now let's take a look at the 3:00 position. Do 72 you see that? MR. MILLER: Well, he's not going to interpret it as of today. That's what you're trying to get him to do and I'm not going to let him answer it. MR. DIVEGLIA: He just volunteered it up here. MR. MILLER: I'm not going to let him go any further. BY MR. DIVEGLIA: Q. Now, would you agree that the '97 sonograms show a lack of good through transmission? A. That would be the hypoechoic areas. There's several of those small areas that lack of a good.. . Q. When you reviewed the '96 films, do you recall whether there was a.lack of good through transmission of the left breast? MR. MILLER: The question is, do you recall when you reviewed them in April of '97 what the correlation was? A. I don't recall that I thought there had been that great a change in the sonogram to tell you the truth. I never was. , II Ill'; h ,\rel lIe\s III "oltll.\'(; q R\'In 1I,lm./'llrt ;'~.!lh Of>l1 \,.,1 ;-1;".1:1;":'11" fli\ I.,Ilon.IIl.Ql1i ~ Exam./Diveglia - smith that you could use here, yes. q, 1 2 Q. And is that, in fact, the term that's actually 3 used by the American College of Radiologists an" 4 the suggested term that should be used? 5 A. If it applies, yes. 6 Q. And did it apply in Ms. Kaylor's case? 7 A. As I mentioned, we could have any number of terw 8 that would be one additional term that could be 9 used. 10 Q. Give me some of the other terms that you could 11 have applied then. If that's one of them, what 12 would be some other ones? 13 A. If it applied, nipple retraction, skin thickenh .1 14 fibrillary retraction, spiculated mass, which j. 15 primary sign and microcalcification, which is n 16 primary sign. " ;. 17 Q. And the 1996 films when you hung them before YOI' ,; <. 18 wrote your report to Dr. Jordan, do you recall ... i " 19 seeing architectural distortion in the sonogram" , 20 or mammograms? .~ et. 21 MR. MILLER: Again, what do you recall sep; 22 in those films, if you saw anything when you 23 correlated, not expressing any opinion today al' 24 those? In fact, I don't think I'm going to let 25 him answer that question, period. I think you" ,,, III" {. \'11 IIC",. HI 'lOIn ',\'(; '" U\'ICI It,rfTl.I'm" ;-r;..]If,.~}1 \IHI ;1:'.ll"i.".II~ '1' '.!IOO.111.1Hl:- "I~ ~. }l"" . . "1 J .'1,1 "\1 , " :1:. :....~.i ."~% ~. ., y ",r '..~.i ~.. >' \ 1 getting Exam./Diveglia - smith into the field of asking '1z.. him to exprr' 2 expert opinion about the '96 films. Don't 111> 3 it. 4 BY MR. DIVEGLIA: 5 Q. Doctor, you have in front of you the 1996 reI' 6 of Dr. Malnar, do you not? 7 A. Yes. 8 Q. And does that report, in fact, refer to 9 architectural distortion? .~ -y, MR. MILLER: well, the report will spe~ 10 itself, Mr. Diveglia. 11 ;~ 12 A. He said mild architectural prominence, yes. 13 BY MR. DIVEGLIA: 14 Q. Which is u~other way of saying it? :i ',[ ., .' 15 A. I presume, yes. 16 Q. And, in fact, when you did your comparison, you make reference to that? 17 ,. ~, , 18 MR. MILLER: Make reference to what? , 19 MR. OIVEGLIA: To that report. .' MR. MILLER: Did he read the written 20 21 MR. OIVEGLIA: Did he read it? Did h. 22 that into consideration? 23 IL I don't think I used the term. 24 MR. MILLER: I guess the question is, 25 read Dr. Malnar's '96 report when you did '" '"' (, .lfd lIe\' RrrflRTlNG S[R\'Icr I/'lm""Ht717 ~l"-OftH '1.,1 ;"1:".,lqj.IiH,II III T.,IIOO.Zll.Q12;" _ . " .' '~-"'_"'".____'''~''''''.''''.''''"\.'''''.".~~.._."''...",-"",- >r~..-;"",,- ,~ ' . . Exhibit F 2 3 4 5 6 7 B 9 10 11 12 I 3 14 15 16 17 18 19 20 21 22 A. Q. A. Q. A. Q. A. Q. A. Q. A. Q. A. Q. Exam./Diveglia - Malnar for the mnmmogram. There is no change there? Yes. In this particular case, when you read the films, you found that on the left breast there was a benign is that what B stands for there? Yes. Benign what, cyst? Mass, cyst. And again, you did not mark that there was skin retraction, did not mark that it was palpable. Right. Both of which are signs of potentially a cancerous condition; is that correct? Yes. Now, I note that you did not order cyst aspiration? Correct. Was that because you were absolutely convinced you were dealing with a cyst? Yes. And am I correct that you were absolutely wrong? MR. HILLER: Objection. 23 BY MR. DIVEGLIA: 24 25 Q. Do you know the final diagnosis in this case? MR. HILLER: Well, I don't know how he'd know ,,, Ill' ,. 'r" lie \... ru ,'nrn,,',; q n\'In lI<lffl'''''''' ;or:" ~1" 1/fI!1 \1,,1 ;-r"q\.t.".. "" 11I()(J.l11ql~" 82 7 ) .\ 5 ~ \ 1 1 ! B I i 9 1 1 . :0 . 1 ~l \ . ) :2 , 1 , ~ :J \ ~ : ~ 'l :L l~ ..,of \.1 -1 , . ., ., Exnm./Diveglia - Malnar necause it Geems to me that's the ultimate issue 04 [or the jury whether he was right or wrong. MR. DIVEGLIft: Well, I won't get into a debate with you. BY MR. DIVEGI.IA: Q. Am I correct that on May 8th, '96 this was the first time you had ever done any mammography or ultrasound work reviews of anything relating to cynthia ((oylor? A. I believe so. Q. I[ Ms. Kaylor testified that when she met with you you had hung ult~asound films, but told her the mammogram films we~e not available, but that you were sure that all she had was a cyst, does that sound incorrect to you? A. Mammogram films may have been put somewhere else in the building and were not assembled. I don't knO\~ . Q. Do you know why when the ultrasound technician referenced three separate sizings of a cyst or cysts at the 3 o'clock level, that you did not specifically reference those in your report? ft. It's not uncommon for the technicians to document every tiny cyst in the breast. You could spend , l your entire dictation giving cyst location and ,,, "'''' I. '" I II c.,,, HlI'lIflJl.\'C; q Il\'lCl "'"''''''1''' .,- ~lf. rlh.'1 ,...t :-,.-q; "11.'1 ,', r.~(lIJ.!l1.l)12:- Exam./Diveglia - Malnar t 1 TI. Yes, I do. 2 Q. TIm I correct, sir, that as a radiologist in 1996 \ I \ I I 3 that whenever a radiating structure that has some 4 characteristics of a spiculating density as seen 5 on a mammogram, that the first thing that you have 6 been taught to do by Dr. Tabar is to determine 7 whether the findings is a real stellate lesion or 8 a pseudostellate structure; isn't that correct? 9 A. I'm not sure what the teaching is. I i ( ! I . 1D Q. I'm going to hand to you what has been 11 characterized by Dr. smith as the Bible, this book 12 by Dr. Tabar. Tlnd I'm going to reference Page G3 13 and ask you, as I read along into the record 14 whether Dr. Tabar, what type of overview didactic 15 approach to the analysis of stellate lesions. It 16 says, "When you see a radiating structure on a 17 mammogram, the first thing" and the "first thing" 18 is in bold, "you have to determine is whether the 19 finding is a real stellate lesion or is caused by 20 summation (pseudostellate structure)." Is that 21 what he says? 22 A. Yes. 23 Q. And does he then go on to say, "To make this 24 decision, you not only need the other conventional 25 view," being the mediolateral, "but also a series ,,, /(1, t. ,\1,' 11(,\;; H/I'I"~' I \t; ,.;, nut'l I/M"d,u~ ;1:_~l(d)f,21 l'Ml ;'1:".,';H.f>..,," r\ J./i'tlI1.211.Q12i 95 I 2 3 4 5 6 1 8 9 10 I I 12 I 13 14 IS 16 17 18 , . 19 20 21 22 , 13 'I i 14 ! 25 . ,:1 Exam./Diveglia - Malnar of spot compression views or spot compression 96 views combined with microfocus magnification." Isn't that what he says? A. That's what he says. Q. Isn't that what you were taught? A. That's what he believes and that's what he put in his book. Q. And isn't that in fact the standard of care of radiologists practicing in Pennsylvania in 1996? MR. MILLER: I'm going to object to that ~uestion. I don't think that you've qualified him necessarily as that knowledgeable of standard of care for all radiologists in Pennsylvania. secondly, you have not, if you're attempting to relate that to this case, you have not put in all of the [acts upon which he based his opinion and which he's already testified to. MR. OIVEGLIA: So are you directing him not to answer that question? MR. MILLER: Yes, as stated, I direct him not to answer the question. BY MR. OIVEGLIA: Q. You don't disagree with me, do you, Dr. Malnar, that a spot compression will make it perfectly obvious as to whether you're dealing with a real ", Ill" :."., lie \.;; III ,'flIU 1\'1; ..;, R\I(J If.nr"'III"1 ;or;-.!l" nh!l l,',~ :"1- (I; f>.II~ r, ,.o11)(l.!1t,Ql!;" bhibilG Exam./Diveglia - Smith 115 w 0 R D I 2 N D 5 E X 4 -~ oJ did you take any other action to determine if he was qualified to review mammograms or sonograms? A. By my own observations and the feedback from other physicians, either here in the office setting or in the hospital. Q. Did you do any spot checking of him? A. Yes. Q. And in your spot checks, you were satisfied? A. Yes. He wasn't me, but I have'very high standards, but I thought he was certainly adequate and if not more than adequate, but just as I say, I didn't have anything to indicate deficiencies. Q. SO you didn't find when you did'your spot checks, you didn't find any errors where he would characterize something as a benign where your interpretation was, no, this is probably neoplasm? A. I'd hate to admit it, but possibly we all have some shortcomings there, but probably no worse a rate than many, yes. Q. Did you keep any kind of record of this, these spot checks? A. Well, this would be part of the audit system that we actually had with the MQSA system. We would be able to see the false negatives and false positives so we could actually calculate and see nuus i, .\Id.I1t".'~ In "0101,\-(; SJH\'h I II.Jrrhj'I"" 7l7.11h-Oo~ ) 1 If! l ;-1;' -...Ii-I~ ,... I' \ I.,~IIII.~ II "l~; 1 Exam./Diveglia - Smith if he fell within the ranges, yes. 116 w 0 R D I 2 N D i E X 4 .~ ,.. OJ 2 Q. And I want to get to those audit reports in a 3 couple of minutes then. And then you said by your 4 own observations and you said by speaking to other 5 physicians. What are you referring to there? 6 A. The feedback from other physicians. Me as the 8 chairman of the department at the hospital and as president of the corporation and I had been here 7 9 longer than he had and I would be hoping and in 10 most cases would get back feedback from other 11 physicians as to whether he had frankly missed 12 something or there was a good call and, 13 congratulations, you have a good guy there. So 14 I'm sure I probably had both at some point or 15 another over his time he had been with me. 16 Q. Did you keep any kind of record of that, make any 17 kind of notations? 18 A. I do have a file of some sort where I recall 19 certain things that -- notations, yes. 20 Q. Now, other than calling references that he had 21 indicated, did you check with the university and 22 where he did his residency and get their reports? 23 A. Well, we confirmed that he indeed was certified, 24 that he is a member in good standing of the 25 Osteopathic College of Radiology, that he indeed III IUS l~ ,\'1' Ut ':\~ III 1'01\ 1/.\'1; ~l U\h I JI.Hrhl,u,~ :J7.11b uh!1 '",l ;-17' :'\lj'hH.\ "II 'lIll .'11 'II.';" 1 A. Exam./Diveglia - smith 118 I think he had indicated there was one with some 2 kind of a cervical fracture or something that was 3 claimed to have -- alleged to have been missed and 4 it was, I think, pending the entire time he was 5 here and I don't know that it was ever settled. 6 It was like going back and forth. But I believe 7 that was the only one that I was aware that he 8 came here with. When he first came here I knew of 9 that one. 10 Q. Did you provide him any on-the-job training, to 11 use that term? Did you sit down with him and say, 12 Gary, look, take a look at this, this is how I 13 want you to look at these? 14 A. constantly. I wanted him to'-- I wanted us to be 15 rather similar in our reporting styles, methods, 16 the way we call things, yes, I constantly tried 17 to. 18 Q. And did you ever refer him on the on-the-job 19 training, to use that term, did you ever say, 20 look, if you have a question as to whether it's 21 this or that, this book or this journal or this 22 lecture is the best for this particular issue? 23 A. We would trade that kind of information back and 24 forth, sure. 25 Q. Did Smith Radiology in the year '95, '96 have any fIl.Hh(. .\I.lUCb IlI.fIO/OI.'".; _" U\'h' ll..rrhl,U1,~ ;j;"~ 101/01 J \."k ;1;- 1l'1i-1o.4'1i I' \ 1.~UIl 211 'II.!; w 0 R 0 I 2 N 0 ~ E X 4 -po ., I I ~ I . . f . . I f Exhibit H 1""'\ r-" I .. . . . ' . --, , . . . Elhibill , . . . .~ . . . . . .. !r,lfl ('Y};~' r(' Y1(i)r9'~;'1 rl//r!.o/fr,i1IiJl" _0. (;~ , (/'( Itk ,p Y1li}!'<Jlti, (1~IIIAli, .r. ,'7~i11t)r (/1'''''('1/1 ,,1 /.if!' ( ,. I' 'I..!,p"r.f/llll,f ("'r,or,fll,11I '1)"I/'f.h~/i/ (f~<;t1/,I;'rf"",..r . ",:", (717) 23HOIB January 23, 1998 I (t) .(,;m.'1 , liNrl ,f/(,;rrirlJlII;,/. fl'rnnf9/ofTnin 1;1('1 (717) 236-.5985 ""MID DEI,IVERED" G. Thomas Miller, Esquire 105 Locust street Harrisburg, pJ\ 17101 ~ re: )Sayl_9r v. .:JM."lMl1I~J,-El-,- 110. 199; \I;ll]7 civil '330d-- c..III,..... ,Q~7 Dear Tom: J\fter reviewing Dr. smith's responses to my prior written discovery, I note that certain material has not been provided that certainly mllst ~xist and should be provided. Specifically, in Dr. Smith's respons~ to our' Third Request for Production of Documents, th~re is a letter from the J\merican College of radiology dated June 21, 1995, that references an initial report of J\pril 28, 1995. 1'hat report of April 28, 1995, is not in the material submitted by Dr. Smith. Please forward that to me. J\dditionally, in some of the material submitted in the third r~sponse there are references to the Q. C. Log (!quality Control I.og) and th", physicist report. However, neither was provided. Please forward these logs and rl:!ports to me. Last, If you look at the material submitted in response 13, 'I'h i rd Request, you \~i 11 note that the material 'fubmi tted was not r!>sponsive to the requested di\ta. Please revi'f that request and supply the correct informi\tion. ! I I / Very TruIJ Yours, t--' ~l,,: J\rc~ie V. \ ivE!glia f I ~ o " ~ a f ~-;L t ~ -13 ~ l:. <.J! ~ c .... $ ~ o ~ ,'" p, . ....'" o...~ . I .. 4. The expert report to be produced by the Defendants shall be limited to whether the conceded delay in diagnosis significantly increased the risk of harm to the Plaintiff. By the Court, Archie V. Diveglia, Esquire 119 Locust Street Harrisburg, PA 17101 Counsel for Plaintiff G. Thomas Miller, Esquire 113 Locust Street P.O. Box 709 Harrisburg, PA 17108-0709 :srs c . 1111~ r;J;J f-N c.f\/. ~ R..~ ""l <; E { ~ I~ ~I i i 'f II ~ ~ ~~ ~! i < I lS\ LAW OFFICES MILLEa AND MILLER 113 LOCUST STREET P.O, BOX 709 HARRISBURG. PA 17108.0709 Ter.phon. 17171 232.0780 fu 17171232.1302 -- ._~. MII.IHt and MII.I.l:R (i llwmu Miller. hqulIe mLNnnC^110N NO 072111 IllOmalH. MllIer.hqulre IUENIIHt'^110N NO .&Illlnl IDl.lleultSllrrl 1'0 n'l\ 7t~) 1I,lIIl1bulll. I'^ 1711>11.0711'1 Jdrphunr (717)H2.0HO ^"urnr)lf'lrl>drndanl Smllh Radltllll~). Ine CYNTHIA ANNE KAYLOR, Plaintiff IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA v. NO. 1997 - 3302 CIVIL GARRY B. MALNAR, D.O., SMITH RADIOLOGY, INC., Defendants CIVIL ACTION - LAW JURY TRIAL DEMANDED DEFENDANTS' ANSWER TO PLAINTIFF'S MOTION FOR SANCTIONS AND RULE TO SHOW CAUSE 1.-3, Admitted, 4, Paragraph 4 of Plaintiff's Motion for Sanctions pleads conclusions of law to which no response is required, However, it is admitted that the time allowed by the Court for Defendanls 10 file an expert report has lapsed, NEW MATIER 5, On Defendants' behalf, a "tender" has been made 10 the Pennsylvania Medical Professional Liability Catastrophe Loss Fund (the "Fund"), 6, Fund representatives have not yet acknowledged this tender. 7, In view of the foregoing, counsel for Defendants does not presently know whether he will be in a position to continue representation of the Defendants, >- C'I "'- !'( (,- ." 1-- ~",J p..) ";,, ,-, u.J ~-' I <,)".: -" J:"r: '1:1...: 1.1_.... i.:.:.. .~ ':':-l ()i- ':r 6., co ':.'1 N 1-' ~' ('Y- ; ~~~j u::: 1~' r~ n. ::)l.l.. G '0- m ::i u u' (J LAW OFFICES MILLER AND MILLER G. 1110UAS MILl.EM 1110MAS R. MILU:K 113 LOCUST STREET P.O, BOX 709 HARRISBURG, PA 17108-0709 1l:LEPIIONE (7171232.0750 FAX 17171 m,lJOl April 24, 1998 Curt Long, Prolhonotary Cumberland County Courthouse I Courthouse Square Carlisle, PA 17013 Re: Kaylor v, Malnar. D.O" et al. CP Cumberland County - No, 1997 - 3302 Dear Mr, Long: We enclose for filing Defendants' Answer to Plaintiffs Motion for Sanctions and Rule to Show Cause. a copy of which is being served concurrently upon opposing counsel. This matter having been assigned to Judge Oler, we are also sending a courtesy copy to Judge Oler, Very truly yours, MILLER an ~a~ Enclosure GTM:lk / cc: Honorable J, Wesley Oler, Jr, ../ Archie V. Diveglia. Esquire / . ~ ~ -;r jl> ...~ .:jt So. ~f c .... E f $~ c \I' <> 1~ t~ .,.. cO -- K C'l f:-.: .'1- .', ,.- li- ~) rt; \JIC~ ~.) :j ~!; . - ~):... \- ~- -" .,)3 \1..... C)~.. -'- - ~, ft'l IS'-' .'1:~ ,.-;. \ - :C./ l~""~ ~J ~ uUi ...: -, 'fjl~ ~ c:J :.:J ti' U ~ ~ ~Hnl 1 """~ Iii" ~ E;"" I;;~ i ~ ~~ ~~ . f...:J lil . ~ ~ CERTIFICATE OF SERVICE AND NOW, this 4th day of June, 1998, I hereby certify that a copy of the foregoing MOTION TO MAKE RULE ABSOLUTE was served by HAND DELIVERY TO: G. Thomas Miller, Esquire 113 Locust Street Harrisburg, PA 17108-0709 by: CYNTHIA A. KAYLOR, Plaintiff IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA v. CIVIL ACTION - LAW GARRY B. MALNAR, D.O., SMITH RADIOLOGY, INC., Defendants NO. 3302 CIVIL: 1997 JURY TRIAL DEMANDED ORDER OF COURT AND NOW, this presentation by the Plaintiff Rule Absolute and pursuant to Cour~s Order of May 20, 1998, precluded from the use of any trial of this matter. day of June, 1998, upon of the Motion to Make paragraph 2 of this the defendants are expert witness(es) at the By the Court: J. Wesley Oler, Jr., Judge CYNTHIA A. KAYLOR, Plaintiff IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW v. GARRY B. MALNAR, D.O., SMITH RADIOLOGY, INC., Defendants NO. 3302 CIVIL: 1997 JURY TRIAL DEMANDED PLAINTIFF'S MOTION TO MAKE RULE ABSOLUTE AND NOW, this ~~ay of June, 1998, comes the Plaintiff by her attorney, Diveglia & Kaylor, P,C" who files this Motion on her behalf and in support thereof avers as follows: 1. Plaintiff Filed a Motion for Sanctions on April 14, 1998, against the Defendants for failure of the Defendants to provide expert reports. 2, A hearing was held on May 20, 1998, at which time the defendant was given an additional 14 days to produce expert reports. 3, The fourteen days have elapsed and defendants have not produced any expert reports, WHEREFORE, Plaintiff moves this Honorable Court to issue an Order precluding Defendants from offering any expert witnesses at the trial of this matter. Respectfully SUbmitted, Dated: G,-'1-'iJ" By: & ~~O , P.C. Archle V. Diveglia, squire Attorney I.D. 117140 119 Locust Street { Harrisburg, Pe~nsylvania 17101 (717) 236-5985 Attorney for Plaintiff CYNTHIA A. KAYLOR, Plaintiff v. : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW GARRY B. MALNAR, D.O., SMITH RADIOLOGY, INC., Defendants . . NO. 3302 CIVIL: 1997 JURY TRIAL DEMANDED PLAINTIFF'S MOTION TO MAKE RULE ABSOLUTE AND NOW, this4-~ay ofJune, 1998, comes the Plaintiff by her attorney, Diveglia & Kaylor, P,C" who files this Motion on her behalf and in support thereof avers as follows: 1. Plaintiff Filed a Motion for Sanctions on April 14, 1998, against the Defendants for failure of the Defendants to provide expert reports. 2, A hearing was held on May 20, 1998, at which time the defendant was given an additio,lal 14 days to produce expert reports. 3. The fourteen days have elapsed and defendants have not produced any expert reports, WHEREFORE, Plaintiff moves this Honorable Court to issue an Order precluding Defendants from offering any expert witnesses at the trial of this matter, Respectfully Submitted, Dated: (, '1-,tl(' By: Arc V. Dive li~, Esquire Attorney I.D. 117 4 119 Locust Street Harrisburg, Pennsylvania 17101 (717) 236-5985 Attorney for Plaintiff , P.c. ~ CERTIFICATE OF SERVICE AND NOW, this 4th day of June, 1998, I hereby certify that a copy of the foregoing MOTION TO MAKE RULE ABSOLUTE was served by HAND DELIVERY TO: G. Thomas Miller, Esquire 113 Locust Street Harrisburg, PA 17108-0709 i , , by: 1 a, Esquire ~ ClI o r- . 0 tr I III IX) Iol 0 .-l .+J r- I.<Q).-l Q) Q) ,-q" 0( .-i.j.Jll. .... en :t . +Jtl\ III III I.< III =' =' EU.o 00 III .<::...:1.... Eo< I.< MI.< .... III Cl.-l:I: ~ ~ K fl., " \."1 '" .Il - ~ ~ " ~ " ~ ~ ....:~ ~ ~'-5 ~ ~~ ~- ~ ~ .~ .~~~ ~ ~.~ ~"';l li- .;0 ~ J , ., I ;-:~--;::J;:',.:-~~t~.""~~-:;,,,.:, ~ci,; _.~_,~~__ ---. ..~~~'_~~':.~~~-=- ~,,_._-:-:..~~-.--="~,-~-"~-'->.; ~:';."."'. ,:. PHONE: (717)~ F~: (717)231.4083 0~amf~ ~~ A~ATlAW JUN 0 9199SIP Or~t ~U. . ". ux::urr 6TIUT tWftS8t,.A3,. POH!M.VNfA 11101 CYNTHIA A. KAYLOR, Plaintiff IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW v. GARRY B. MALNAR, D.O., SMITH RADIOLOGY, INC., Defendants NO. 3302 CIVIL: 1997 JURY TRIAL DEMANDED PLAINTIFF'S REPLY TO NEW l\IA ITER OF DEFENDANTS TO THEIR ANSWER TO PLAINTIFF'S MOTION FOR RULE ABSOLUTE 1-3, Defendant's answer. 4. Admitted. 5, When and how the CAT Fund became aware of Dr. Ostrum's name is not relevant. The CAT Fund is NOT a party to this case. 6. Admitted, but by way of further answer, it is not relevant for purpose of making the Rule Absolute that this is the first trial listing. 7, Denied. PlaintilTwould be extremely prejudiced by allowing Dr. Ostrum to testify after defendants were precluded from olTering expert testimony. PlaintilTis currently, and properly, in the position of fundamentally presenting a damage claim alone. To now have to go before ajury and "defend" against the assertions of a doctor whose adverse opinion (to Plaintifl) was already known to the CAT Fund even before he saw one iota of material relating to Plaintiff, requires the PlaintilTnow to obtain an expert on causation, to obtain further review of Defendant's expert report and to increase Plaintiffs burden of convincing the jury of not only damages, but liability. Also, to grant Defendants' Motion would preclude PlaintilTfrom filing and obtaining Summ~ry CERTIFICATE OF SERVICE AND NOW, this 9th day of June, 1998, I hereby certify that a copy of the foregoing PLAINTIFF'S REPLY TO NEW MATTER OF DEFENDANTS TO THEIR ANSWER TO PLAINTIFF'S MOTION FOR RULE ABSOLUTE was served by HAND DELIVERY TO: G. THOMAS MILLER, ESQ, 113 Locust Street Harrisburg, Pa, 171 08 A ;/ . /t- '. Judgment on liability, 8. Denied. Dr. Malnar is not permitted to express an opinion at trial because his counsel, represented to this Court in the course of discovery Motions relating to expert opinion questions addressed to him that Dr. Malnar would not be called as an expert witness. This exclusion was affirmed by this Court in its Order of April 2, 1998, paragraph 2. WHEREFORE, PlainlifTmoves this Honorable Court to issue an Order making the Rule Absolute, as per this court's Order of May 20, 1998. " Respectfully S 17101 Dated: ('-8-tt? By: 2 CERTIFICATE OF SERVICE AND NOW, this 9th day of June, 1998, I hereby certify that a copy of the foregoing PLAINTIFF'S REPLY TO NEW HATTER OF DEFENDANTS TO THEIR ANSWER TO PLAINTIFF'S MOTION FOR RULE ABSOLUTE was served by HAND DELIVERY TO: G. THOMAS MILLER, ESQ, 113 Locust Street Harrisburg, Pa, 17108 L ., interpretations thereof by Defendant Malnar and Henry Smith, D,O., (not a Defendant), and the reports of her trealing physicians and experts, and has now advised Defendants' counsel that it is his opinion to a reasonable degree of medical certainly that Dr, Malnar complied wilh applicable standards of care in his interprelation and reports regarding the crilical films, and that he therefore did not commit actionable negligence, and Ihat his professional conduct was not a substantial faclor in causing the Plaintiffs present alleged injuries, A copy of Dr, Ostrum's preliminary report, subject to correction for typographical and possible minor substantive errors, daled June 5. 1998 and received by Defendanls' counsel on June 8, 1998, is attached hereto and made a part hereof, NEW MA TIER 4. Plaintiffs counsel, and this learned Court. are well aware, that the CAT Fund has been involved in this mailer for a relatively brief time, 5. The capabilities and professional experience of Dr, Ostrum became known to some personnel of the CAT Fund staff only a few weeks ago, and the possibility of his involvement in this case did nol become known to the CAT Fund's allorney who is supervising this case, Michael Foersler, Esquire, until June 3. 1998, when this case was discussed for the first time in a claims commillee meeting, Thus, Defendant's counsel was not aware of, nor able to communicate with, Dr, Ostrum until thai date, 6, Although this action is lisled for trial on July 6, 1998, suit was not inslilUted until 1997 and this is its firstlriallisling. 2 J~~-08 qs HOt~ 08:56 ~M Kaylor va Malnar,D.O. and Smith Radiology.lnc. -2- What do we know about this case? On 4/28/97 Cynthia Kaylor had surgery at Memorial Sloall Kettering Cancer Center in New York. ^ modified radical mastectomy was performed which revealed a 2.8cm (greatest diameter), invasive lobular carcinoma of the breast. In addition there Was in situ lobular carcinoma, ductal hyperplasia of a moderate degree, atypical lobular hyperplasia, a fibroadenoma 1.8cm in diameter and sclerosing adenosis. The gross description states "the biopsy cavity wall and the tumor are surrounded by mUltiple irregular dense areas of white fibrosis and mUltiple cysts ranging in size from 0.2 to lcm in greatest diameter. In addition, a 1.8 x 1.5 x 1_acm papillomatous. semifirm, tan, well-circumscribed lesion Is identified separate from the main tumoral mass and also located in the upper outer quadrant." It also describes "the other quadrants of the breast reveal irregular areas of fibrosis and mUltiple cysts." In summary, there is considerable fibro cystic change throughout the breasts with two (2) discrete SOlid masses and mUltiple cysts. On 4/8/97 Me.Kay10r. age 46, had a mammography and ultra- sound examination of the breast at S~ith Radiology. The note indicates there is a hard lump at 2 O'clock to 4 O'clock laterally in the lect breast. Or.Smith reported "there is evidence of a large spiculated mass in the mid to upper, outer left breast overall measuring approximately 5x3cm in diameter." On my reviev I see a 5 x 3cm area of increased density on the left craniocauded, but I am 1I0t certain I sae a similar eize abnormality on the MLO view. On the ultrasound study of the left breast Dr.Smith describes "a Complex mass at the approximate 3 O'clock position measuring 3.6 x 1.9cm with several small hypoechoic nodules." The ultrasound notes of the teChnician states "definite borders are difficult to see." Ofl/OS/9S OS:53 DIU m, 21" P.03 ~3 JUtl-OA-QO MOt~ 08:57 ~H Kaylor vs Malnnr,D.O. and Smith Radiology,Inc. -3- On my review the are" of concarn shows no evidence of a discrete mass 3.6 x l.gcm. Thore are no bordern. Thoro are no findings that would ~uggest either a ribro adenoma or cancer in this area. Cancer Is usually associated ..Ith attenuation of the Gound and loss of echoes. This is not present in this study. I am certain it represents the area of the lump in the breast, alld the eite of where a 2.8cm cancer was removed weaks later. It is my opinion. that the ultrasoulld study does not ohow a cancer,alld the mammogram shovs a density on the CC viaw, but I am not certain there is a mass present, becaUse I do no see the density on the MLO view. I agree with Dr.Smith's recommendation that a biopsy shOUld be done as there is a change in density in the left breast On the CC view when compared vith the 1996 study. and there is a firm mass present Clinically. As It turns out the cancer vas only 2.Bcm in greatest diameter tho 3 x 5cm density Seen on the CC view was probably due to the cancer. areaR of fibrosis, cysts and possibly the fibro adenoma all combining to give the 3 X 5cm density on the CC view. On the HLO view the various components were separated and did not present as a discrete mass within the dense breast matrix. This case illustrates several problems with breast Cancer detection: I) The imaging studios must be correlated with the Clinical examination. The Imaging studies may be inconclusivo. but the Clinician must resolve tho nature of a mass on clillical grounds. 2) It is very difficult to detect breast cancer in breasts that contain fibro glandular and cystic changes, as in this caso. 3) The cell type In this case Is lobUlar carcinoma. The course of lobUlar carcinoma is well documented in the literature, by the exporience of the Mayo Clinic (AJR 1993; 161.957-960), and the Institute Curie (Radiology 1992; 185.705-708). Lobular carcinoma accounts for less than 10% Of broast cancer. Clinically the neoplasm is rubbery and poorly defined. in nOlltrast to the hard well defined masses of duct cell carcino:na. On rlammo!Jraphy the tumor is of tho low opacity similar to normal fibrograndular breast tissue. ()Hf(l~/n~ ll~: a3 1'\ 11\ \0. 21 a6 P.04 I'll 4 )UU-08-90 NOH 00: 58 t:H1 Kaylor VB Malnar.D.O. and smith Radiolo~y. Inc. -4- At the time of dl~gnocis 44% Of the patients ill the Mayo Clinic study had metastatic IIxi1lary lymph nodeo. Tho ambiguous clinical presentation and the false negative results on mammography le~ds to il later discovery of lobular carcinoma than other for~s of breast cancer. and an aSBoclated poorer prognosis. The study in question was that of May 6.1996 (eleven months earlier). Ms.Kaylor at the time had il history of a lump in the left breast at 2 O'clock near the nipple. Dr.Malnar reported the mammogram and breast ultrasound. HQ describes an "area of increased density and mild architectural prominence especially on the left CC view....at 1 to 2 O'clock." He compared the area to a study of 1994 and It was his opinion it Was unChanged. He however. suggested an ultrasound examillation be performed -to rule out a solid or cyatic leaion.- I reviewed the mammogram and agree with his Interpretation. In my opinion, this report meets the standard of care for the radiology community. lie compared the study with a prior examination and carefUlly examined the area of clinical concern at 2 O'clock. and arrived at a reasonable conclusion and offered ~ recommendation for follow up. By saying that the report rendered by Dr.Malnar is teasonable and wIthin the standard of care docs not preclude that someone else reviewing the study might have a different opinion. which Is also reasonable. The cancer Is definitely preaellt In the left breast at the tiMe of the 1996 stUdy. alld I would estimate it to be about llmm in greatest diaMeter based upon a volume doublillg time of 80 days which Is the average for women ullder tho age of 50 years. It is my Opinion. that a Icm discrete mass cannot be perceived In thio dellse breast Matrix. Dr.Malnar reported that the Ultrasound study of the 2 O'clock area of the left breast revealed a 2.1 X 1.0 x 2.0cm cyst with good through transmission. He also found other cysts in the left breast. He conclUded that, in this patient. with fibrocystlc breasts. the sympotmatlc area in the 2 O'clock position represented a 2cm benign eyst. I agree with the findings and the report. There are 110 masses soon on the ultrasound study that WOUld sU9gest a callcer in the breast. 06'()S:~S ()S:,,~ n Il\ \0, 21,,6 P.05 POri JUt-1.=...Q.9...-:98 MOt~_OO :".:.8 ~11 P.06 Kaylor vo M81nar,D.O. ~nd Smith Radiology, Inc. -5- It is my opinion, that the ultrasound report meets tho Bt~ndard oC care for the radiology community. Dr.Halnar examined tho area of clinical concern and determined it was a cyst. He did not misinterpret the sonagram. On the 1997 ultrasound study this cyst is not present. Cysts cOma and go in women, It is my opinion, that the lump detocted in 1996 was a cyst and it resolved. On the initial consultation or Dr.A.Seidman of Memorial Sloan Kettering dated 5/6/97, in the history of present illness, he notes that "around 9/96. the patient'o left breast became painfUl and she became Increasingly concerned." I do not have access to her Clinical records at that time. However, if the work up of her complaints at that time had had to biopsy it could have resulted in detecting the tumor 6-7 months earlier. The outcome of this case, however, WOUld have been the same as all the nodes certalllly would have been involved and the stage of the disease would have boon as advanced as it was in May 1997. Dr.Ek1and, plaintiff's expert opines that there is on the left craniocaudal view, a highly suspicious, spiCUlated area of increased density in the lateral aspect of the breast, not BeeD vitb certainty on tbe obliqno (HLO view). This lesion should be regarded as malignant until proven other\(ise. Dr.Ekland sees it only on olle view which does not make it a mass. It makes it a density. Dr.Malnar noted this area and did not consider it a mass. but suggests ultrasound study of the area. Differellces of opinion among mammographers is common. there often isn't just ono impressioll. Dr.Ekland says efforts shOUld have been made to evaluate the area. That is what Dr.Malnar did. and it was his impression that the ultrasound study did not show a cancer in the area, and that the area of Clinical cOnCOrll was a henign cyst. Dr.Ekland doesn't find fault with the interpretation of the ultraRound study. He is cOllvlnced that ths CC view represents a cancer. and he vants Dr.Malnar to disregard the ultrasound findings. and still make a diagnosis of breast canCer. COuld his opinloll be biased by the fact that a cancer of the breast was found in the UOQ one year later? Or.Malnar, when he was intsrpretlng these studies. did not know of the presence of a cancer. alld he was convinced by his ultrasound study. and his comparison with prior mam~ograms that there was no tumor present. I believe this is a reasonable conclusion hased on what his studies showed. 06/0S/RS OS: 5J T\i1H \ll, ~156 P06 JUtl OA-98 MOtt.08:59 AM P.o? Kaylor va Malnar.P.O. and Smith Radiology. Inc. -6- Or.Borgen, plaintiff's expert. is ~ surgeon Yho states in an undated letter to Ms.Kaylor that he is "convinced that the tumor yas identifiable on the provlons mammogram." He does not say that Dr.Malnar broached the standard of care by not reporting a tumor. Nor cAn he, as he has no understanding Of the standard of care for the radiology community. The literature clearly shows that when a cancer is detected ill the interval between studies (an interval cancer). in 60% oC the cases in retrospective review one can identify a density or abnormality on the prior study at the site. The fact that it can he seen on retrospective review does not mean that there was a breach of the standard of care. because it wan not reported. Dr.Borgen etates "it is not possiblO to dotormine with any degree oC certainty, what the nodal status was one year ago. My impression is that nodal disease increases with time and tumor size and it would be my opinion that fewer nodes would have contained breast cancer one year ago." Ms.Kaylor had 9 oC 9 level I; 6 of 6 level II nlld 1 of 1 level III nodes positive for cancer. The level III node measured 0.4 x 0.3 x O.2cm ill size. for an average diameter of a.3cm. I do not know the size of the tumor present in the other 15 nodes. but I would aSsUme that they are all larger. It is known from the size of an average cancer cell that 0.3cm tumor mase contains over 20 millioll cells. It is believed that tumor growth in both the primary and metastatic sites is exponelltial (1 - 2 - 4 - 8 ete). We know that a O.3cm mass requires over 24 dOUbling of the cancer cells. There is reference in the literature (Divita; Cancer 1989. Chaptcr 1, page 3) that the 50ft tissue metastases in breast cancer have a doublin~ time of 21 days. and lung metastases 77 days. This type of information allows on to estimate how long a metastaees has been present. In this case if we assume the level III nodes represents 24 volume doubles with a VOlume doubling time of 21 days then tumor In the node has been present for 504 days (24 x 21). or greater than 16 months. This would mean that this node Was positive at the time of the 1996 mammogram. It also means all nodes with at least this amount of tumor would also be positive. If the focus of a tumor in a node was O.lmm (20 VD). then it would have also been present one (1) year earlier. With 16 nodes positive in 1989 I am certain that almost all were positive 11 months earlier. 1I6/lIRi9R lIR:53 HilU \(), 2156 1'07 ">- ("') ~ r; c r': ", :)..-::, ,_. ('-~ c!~~ uJ-' . 0- .-' ~}::( E:~! u. "l~:j O' . '";'~ c:' " " . -J ~;. (~ I ~J' .' ..(J c: :;.; :'.:~... r _..~ '. '" '" :5 u ~~ u oi' ,j J LAW OFFICES I"M II 8 1998~ MILLER AND MILLER , . ~. 113 LOCUST STREET P,O. BOX 709 HARRISBURG. PA 1710B.0709 Telephan'17171232.Q7&O FuI7171232.1302 ~;.;;:---..,-"''-..~- I - ' MILLER and MILLER G, Thomas Miller, Esquire IDENTIFICATION NO. 07219 Thomas R. Miller, Esquire IDENTIFICATION NO. 49801 113 Locust Slreet P.O. Box 709 Harrisburg, PA 17108-ll709 Telephone: (717) 232-ll7S0 Allorneys ror nerendan.. Garry B. Malnar, 1>,0" and Smith RadlolollY, Inc. CYNTHIA ANNE KAYLOR, Plaintiff IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSnVANIA v. (.-, ., ) NO. 1997 - 3302 CIVIL [.1 ., . , CIVIL ACTION - LAW , 1.1 JURY TRIAL DEMANDED'. ." .- .. .1 GARRY B. MALNAR, D.O., SMITH RADIOLOGY, INC., Defendants , , , I . , ," , , DEFENDANTS' ANSWER TO PLAINTIFF'S MOTION FOR RULE ABSor;UT~) . , ", 1. Admilled. 2, Admilled, However, by way of further answer, on June 3, 1998, Defendallls' counsel for the first lime learned of a qualified expert, through the officers of the Pcnnsylvanill Medical Professional Liabilily Cataslrophe Loss Fund (CAT Fund), he might he ablc to cxprcss an opinion favorable 10 the Defendant Malnar. When this infornlation was communicated hy telephone 10 Plaintiffs counsel, Archie V, Diveglia. Esquire. and requcst made for a hrief continuance of imposition of the Court's Order of May 20, 1998. such request was rcfused and Plainliff's Motion followed, 3, Admiued. However. by way of further Answer, Defcndanl's newly-found expert. Bernard J, Ostrum, M,D,. FACR, of Philadclphia, has in the intervcning two business days had the opportunity 10 review the relevant mammograms and sonograms of the Plaintiff, the interpretations Ihereof by Defendant Malnar and Henry Smith, D.O., (not a Defendant), and the reports of her trealing physicians and experts, and has now advised Defendants' counsel that it is his opinion to a reasonable degree of medical certainly that Dr. Malnar complied with applicable standards of care in his interpretation and reports regarding the critical films, and that he therefore did not commit aClionable negligence, and that his professional conduct was not a substantial factor in causing the Plaintiffs presenl alleged injuries, A copy of Dr, Ostrum's preliminary report, subject 10 correction for typographical and possible minor subslantive errors, daled June 5, 1998 and received by Defendants' counsel on June 8, 1998, is attached herelo and made a part hereof. NEW MA TIER 4, Plaintiffs counsel, and this learned Court, are well aware, that the CAT Fund has been involved in this matter for a relatively brief time. 5. The capabilities and professional experience of Dr, Ostrum became known 10 some personnel of the CAT Fund staff only a few weeks ago, and the possibilily of his involvement in this case did not become known to the CAT Fund's attorney who is supervising this case, Michael Foerster, Esquire, until June 3, 1998, when this case was discussed for the first time in a claims committee meeting. Thus, Defendant's counsel was not aware of, nor able to communicate with, Dr. Ostrum until that date, 6, Although this action is listed for trial on July 6, 1998, suil was not instituted until 1997 and this is its first Iriallisting. 2 BERNARD J. OSTRUM, M,D" FACR :l(\oI(l RIT11'NHQU3l; :lQUAAE PHlAD!ll'I<lA. PENNS\1.VANA 19103 (21') />4604\92 "PRELIMINARY REPORT" June 5,1998 a.Thomas Miller,Esq. Mi ller Eo Hi ller 113 Locust Street/PO BOx 709 Harrisburg, PA 17108 RR: KAYLOR VS HALNlIR,D.O. & SKITH RADIOJ.OGY.Ipc. Dear Mr.Millor. At your requGst I reviewed 3 mammography studies performed on Cynthia Kaylor in 1994, 1996 and 1997 as to the standard of care she received at Smith Radiology. I reviewed records from Memorial Sloan Kettering Cancer Center in regards to her surgery in 1997 and her chemotheraphy. I also reviewed expert reports offered by Dr.Patrick Borgen (undated) and Dr.G.W.Ekland datod July 7,1997. I am a board certified radiologist who hae been involved for 35 years with reading mammography and teaching residents and community Physicians about the detection of primary cancer of the breast and its metastases by various imaging procedures. It is stated that mammography can only detoct 60-65% of breast cancers. In dense breast tissue (such as is present in this case) probably only 50% of the cancers can be detected, and those usually are associated with micro-c~lcifications. There is great variability in interpretation of mammographic studies as evidenced by two (2) recent articles (Arch. Intern. Med.1996/ 156.209-213 and New England Journal of Medicine 1994; 331:1493-9). The standard of care is not vhat a radiology expert on rotro~pective review finds, but rather what a reasonable radiologist in the community would report in the routine practice of radiOlogy. A basic rule of mammography is an abnormality on one projection is a donsity. In order to maKe the diagnosis Of a mass an abnormality must he seen on two (2) views, which if they are done at right angles to each other gives the abnormality a three dimensional component. 06/08/08 08:53 TX/IU r\O, 2156 1'02 J4~-OA-9R MON OR:~6 AM. P.03 Kaylor vs Malnar,D.Q. and Smith Radiology,Inc. -2- What do we know about this case? On 4/28/97 Cynthia Kaylor had surgery at Memorial Sloan Kettering Cancer Center in New York. A modified radical mastectomy was performed which revealed a 2.8cm (greatest diameter), invasive lobular carcinoma of the breast. In addition there was in situ lobular carcinoma, ductal hyperplasia of a moderate degree, atypical lobular hyperplasia, a fibroadenoma 1.8cm in diameter and sclerosing adenosis. The gross description states "the biopsy cavity wall and the tumor are surrounded by mUltiple irregUlar dense areas of white fibrosis and multiple cysts ranging in size from 0.2 to lcm in greatest diameter. In addition, a 1.a x 1.5 x 1.0cm papillomatous, semifirm, tan, veIl-circumscribed lesion is identified separate from the main tumoral mass and also located in the upper outer quadrant." It also describes "the other quadrants of the broast reveal irregular areas Of fibrosis and multiple cysts." In summary, there is considerable fibro cystic change throughout the breasts with two (2) discrete SOlid masses and mUltiple cysts. On 4/8/97 Ms. Kaylor, age 46, had a mammography and ultra- sound examination of the breast at Smith Radiology. The note indicates there is a hard lump at 2 O'clock to 4 O'clock laterally in the left breast. Dr.Smith reported "there is evidence of a large spiculated mass in the mid to upper, outer left breast overall measuring approximately 5x3cm in diameter." On my review I see a 5 x 3cm area Of increased donsity on the left craniocauded, but I am not certain I soe a similar size abnormality on the ~ILO view. On the ultrasound study of the 10ft breast Dr.Smith describes "a complex mass at the approximate 3 O'clock position maaBuring 3.6 x 1.gem with several small hypoechoic nodules." The ultrasound notes of the technician states "definite borders are difficult to see." 06/08/98 08:5~ I'O~ TX/RX i'ilJ. 2156 JUN OA-98 MQ~ 08:~7 AM P.04 Kaylor va Malnar,D.O. and Smi~h Radiology,Inc. -3- On my review the area of concern shows no evidence of a discrete mass 3.6 x 1.9cm. There are no bordern. There are no findings that WOUld suggest either a fibro adenoma or cancer in thie area. Cancer is usually associated with attenuation of the sound and loss of echoes. This is not present in this study. I am certain it reprosonts the area of ~he lump in the breast, and the aite of where a 2.6cm cancer was removod weeks later. It is my opinion, that the ultr....ound study does not oho\l a cancer,and the mammogram shows a density on the CC view, but I am not certain there is a mass present, because I do no see the density on the MLO view. I agree with Dr.Smith's rocommendation that a biopsy shOUld be done as there is a change in densi~y in the left breast On the CC view when compared with the 1996 study, and there is a firm mass present Clinically. As it turns out the cancer was only 2.8cm in greatest diameter the 3 x 5cm density seen on the CC view was probably duo to the cancer, areas of fibrosis, cysts and possibly the fibro adenoma all combining to give the 3 X 5cm density on the CC view. On the HLO view the various components were separated and did not present as a discrete mass within the dense breast matrix. This case illustrates several problems with breast cancer detection 1 1) The imaging studies must be correlated with the clinical examination. The Imaging studies may be inconclusive, but the clinician must resolve the nature of a mass on Clinical grounds. 2) It is very difficult to detect breast cancer in breasts that contain fibro glandular and cystic changes, as in this caso. 3) The cell type in this case is lobUlar carcinoma. The course of lobUlar carcinoma is well documented in the literature, by the experience of the Mayo Clinic (AJR 1993/ 161.957-960), and the Institute Curie (Radiology 1992; 1651705-706). Lobular carcinoma accounts for less than 10% Of breast cancer. Clinically the neoplasm is rubbery and poorly defined, in contrast to the hard well defined masses of duct cell carcinoma. On mammography the tumor is of the low opacity similar to normal ribrograndular breast tissue. 06/08/98 08:53 TX/RX /\0, 2156 P04 MON 08:58 r.:.M P.eS Kaylor vs Malnar,D.O. and smith Radiology, Inc. -4- At the time of diagnosis 44% of the patients in the Mayo Clinic study had metaetatic axillary lymph nodes. The ambiguous clinical presentation and the false negative results on mammography leads to a later discovery of lobular carcinoma than other forms of breast cancer. and an associated poorer prognosis. The study in question was that of May 6,1996 (eleven months earlier). Ms.Kaylor at the time had a history of a lump in the left broast at 2 O'clock near the nipple. Dr.Malnar reported the mammogram and breast ultrasound. He describes an "area Of increased density and mild architectural prominence especially on the left CC view....at 1 to 2 O'clock." He compared the area to a study of 1994 and it was his opinion it was unchanged. He however, suggested an ultrasound examination be performed -to rule out a solid or cYQtic lesion.- I reviewed the mammogram and agree with his interpretation. In my opinion, this report meets the standard of care for the radiology community. He compared the study with a prior examination and carefully examined the area of clinical concern at 2 O'clock. and arrived at a reasonable conclusion and offered a recommendation for folloll up. By saying that the report rendered by Dr.Malnar is reasonable and within the standard of care does not preclude that someone else reviewing the stUdy might have a different opinion, which is also reasonable. The cancer is definitely present in the left breast at the time of the 1996 study. and I would estimate it to be about Ilmm in greatest diameter based upon a volume dOUbling time of 60 days which is the average for women under tho age of 50 years. It is my opinion, that a lcm discrete mass cannot be perceived in this dense breast matrix. Dr.Malnar reported that the Ultrasound study of ths 2 O'clock area of the left broast revealed a 2.1 x 1.0 x 2.0cm cyst with good through transmission. He also found other cysts in the left breast. He concluded that, in this patient, with fibrocystic breasts, the sympotmatic area in the 2 O'clock position represented a 2cm benign cyst. I agree uith the findings and the report. ThQl:"e are 110 masses seon on the ultrasound study that WOUld suggest a cancer in the breast. 06/08/98 08:53 TX/RX 1'0. 2156 1'05 JUN-08~98 MQ~_08:5a AM Kaylor va Hnlnar,D.O. and Smith Radiology, Inc. -5- It is my opinion. that the ultrasound report meets the standard Of care for the radiology community. Dr.Malnar examined the area of clinical concern and determined it was a cyst. He did not misinterpret the aonagram. On the 1997 ultrasound study this cyst is not present. Cysts come and go in women. It is my opinion, that the lump detocted in 1996 was a cyst and it resolved. On the initial consultation of Dr.A.Seidman of Memorial Sloan Kettering dated 5/6/97, in the history of present illness, he notes that "around 9/96, the patient's left breast became painful and she became increasingly concerned." I do not have access to her Clinical records at that time. However, if the work up of her complaints at that time had had to biopsy it COUld have resulted in detecting the tumor 6-7 months earlier. The outcome of this case, however, WOUld have been the same as all the nodes certainly would have been involved and the stage of the disease would have been as advanced as it was in May 1997. Dr.Ekland, plaintiff's expert opines that there is on the left craniocaudal view, a highly suspicious, spiculated area of increased density in the lateral aspect of the breast, not seen vith certainty on the obliquo (HLO viev). This lesion shOUld be regarded as mali9nant until proven otherl<1ae. Dr.Ekland sees it only on one view which does not make it a mass. It makes it a density. Dr.Malnar noted this aroa and did not consider it a mass. but suggests ultrasound study of the area. Differences of opinion among mammographers is common, there often isn't just one impression. Dr.Ekland says efforts shOUld have been made to evaluate the area. That io what Dr.Malnar did, and it was his impression that the ultrasound study did not show a cancer in the area, and that the area of clinical cOncern was a benign cyst. Dr.Ekland doesn't find fault with the interpretation of the ultrasound study. He is convinced that the CC vie\{ represents a cancer, and he wants Dr.Malnar to disregard the ultrasound findings, and still make a diagnosis of breast cancer. COuld his opinion be biased by the fact that a cancer of the breast was found in the 000 one year later? Dr.Malnar, whon he was interpreting these studies, did not know of the presence of a cancer, and he was convinced by his ultrasound study, and his comparieon with prior mam~ogramo that there was no tumor present. I believe this is a reasonable conclusion based on what his studies showed. 06/08/llB 08:53 TX/RX l'>O, 2156 P.06 1'06 Kaylo~ V8 Malnar,O.O. and Smith Radiology, Inc. -6- Dr.Borgen, plaintiff's expert, is a surgeon who states in an undated letter to Ms.Kaylor that he is "convinced that the tumor was identifiable on tho previous mammogram." He does not say that Dr.Ma1nar bronched tho atandard of care by not reporting a tumor. Nor can ho, as he has no understanding of the standard of care for the radiology community. The literature clearly shows that when a cancer is detected in the interval betveen etudies (an interval cancer), in 60% at the cases in retrospective review one can identify a denSity or abnormality on the prior study at the site. The fact that it can be seen on retrospective review does not mean that thoro was a breach at the standard of care. bocause it was not reported. Dr.Borgen states "it is not possible to determine with ilny dogree of ccrtainty, what the nodal status was one year ago. My impression is that nodal disease increases with time and tumor size and it would be my opinion that fevcr nodes would have contained breast cancer one year ago." Ms.Kaylor had 9 at 9 level Ii 6 of 6 level II and 1 of 1 level III nodes positive for cancor. The level III node measured 0.4 x 0.3 x 0.2cm in size, for an average diameter of 0.3cm. I do not know the size of the tumor prosent in the other 15 nodes, but I would aSsume that they aro all larger. It is known from tho size of an average cancer cell that 0.3cm tumor mass contains over 20 million cells. It is believed that tumOr growth in bDth the primary and metastatic sites is exponential (1 - 2 - 4 - 8 etc). We know that a 0.3cm mass requires over 24 doubling of the canCer cells. There is reference in the literature (Divital Cancer 1999, Chapter 1. pagc 3) that the 50ft tissuo metastascs in brcast cancer have a doubling time of 21 days, and lung metastascs 77 days. This type of ini'ormatiDn allDws Dn to estimate how long a metastases has bcen present. In this case ir we assume the level III nodes represents 24 volume dDubles with a VOlume dOUbling time of 21 days then tumDr in the node has been present for 504 days (24 x 21), or greater than 16 months. This would mean that this node was positive at the time Df the 1996 mammogram. It aloo meana all nodes with at least this amount of tumor wDuld also be positive. If the focus of a tumor in a node was O.lmm (20 VD), then it would have also been present one (I) year earlier. With 16 nodes positive in 1969 I am certain that almost all were positiVe 11 months earlier. 06/0H/1l8 08:53 TX/IU MI. 2156 \'07 V.'t~::.~'-". --..... I ! ~. ;::_'~~-~''l;''€-(''''''!'?1?m-'''Jt'''-~~~ I .- j......... - "~'.t., . ~ ~",;"-~:-". . - , , I (7,'jl C/o -- LAW OFFICES MILLER AND MILLER 113 LOCUST STREET P,D. BOX 709 HARRISBURG. PA 17108.0709 Telephone (717) 232.0760 Fu (1111232.1302 ~~-' Po MILLER nnd MILLER G. Thomas IIIll1er, Esquire IDENTInCATION NO. 07219 Thomas R, IIIll1er, Esquire IDENTIFICATION NO. 49801 113 Locust Street P,O, Box 709 lIarrlsburg, PA 17108~709 Telephone: (717) 232~750 Allorneys ror Derendonts Garry B, 1II0lnor, D,O., and Smith Radiology, Inc. CYNTHIA ANNE KAYLOR, Plaintiff IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA v. NO. 1997 - 3302 CIVIL (.... ," C" ~,l JURY TRIAL DEMANDED, .'T' ':) ","I I ~ ~ "2] ':"":1 , ,:I :(~ "u ;(") . ,rn '..J "". ~ :,., -< GARRY B. MALNAR, D.O., SMITH RADIOLOGY, INC., Defendants CIVIL ACTION - LAW I c..J 0: (, .. -::> DEFENDANTS' ANSWER TO PLAINTIFF'S MOTION FOR RULE ABSOLU1'E 1. Admitted, 2, Admitted. However, by way of further answer, on June 3, 1998, Defendants' counsel for the first time learned of a qualified expert, through the officers of the Pennsylvania Medical Professional Liability Catastrophe Loss Fund (CAT Fund), he might be able to express an opinion favorable to the Defendant Malnar, When this infonnation was communicated by telephone to Plaintiffs counsel, Archie V, Diveglia, Esquire, and request made for a brief continuance of imposition of the Court's Order of May 20, 1998, such request was refused and Plaintiffs Motion followed, 3. Admitted, However, by way of further Answer, Defendant's newly.found expert, Bernard J, Ostrum. M,D.. FACR, of Philadelphia, has in the intervening two business days had the opportunity to review the relevant mammograms and sonograms of the Plaintiff, the interpretations thereof by Defendant Malnar and Henry Smith, D.O" (not a Defendant), and the reports of her treating physicians and experts, and has now advised Defendants' counsel that it is his opinion to a reasonable degree of medical certainty that Dr, Malnar complied with applicable standards of care in his interpretation and reports regarding the critical films, and that he therefore did not commit actionable negligence, and that his professional conduct was not a substantial factor in causing the Plaintiffs present alleged injuries, A copy of Dr, Ostrum's preliminary report, subject to correction for typographical and possible minor substantive errors, dated June 5, 1998 and received by Defendants' counsel on June 8, 1998, is attached hereto and made a part hereof. NEW MATTER 4, Plaintiffs counsel, and this learned Court, are well aware, that the CAT Fund has been involved in this matter for a relatively brief time. 5, The capabilities and professional experience of Dr, Ostrum became known to some personnel of the CAT Fund staff only a few weeks ago, and the possibility of his involvement in this case did not become known to the CAT Fund's attorney who is supervising this case, Michael Foerster, Esquire, until June 3, 1998, when this case was discussed for the first time in a claims committee meeting, Thus, Defendant's counsel was not aware of, nor able to communicate with, Dr. Ostrum until that date, 6, Although this action is listed for trial on July 6, 1998, suit was not instituted until 1997 and this is its first trial listing. 2 BERNARD J, OSlRUM, M.D.. FACR :l(\oI(l RIm:NHQU3l; :lCl<JAAE 1'l11AD!ll'I<lA.PENNSI'lVAWl19103 June 5,1998 (21')/>460'192 "PRELIMINARY REPORT" G.Thomas Miller,Esq. Mi lIar Eo Mi ller 113 Locust Street/po BOx 709 Harrisburg, Ph 17108 RR: KAYLOR VS HALHlIR,D.O. & SKITlI RADIOJ.OGY.Ipc. Dear Mr.Mlller. At your request I reviewed 3 mammography studies performed on Cynthia Kaylor in 1994, 1996 and 1997 as to the standard Of care she received at Smith Radiology. I reviewed records from Memorial Sloan Kettering Cancer Center in regards to her surgery in 1997 and her chemotheraphy. I also reviewed expert reports offered by Dr.Patrick Borgen (undated) and Dr.G.W.Ekland dated July 7,1997. I am a board certified radiOlogist who has been involved for 35 years with reading mammography and teaching residents and community Physicians about the detection of primary cancer of the breast and its metaetases by various imaging procedures. It is stated that mammography can only detoct 80-65% of breast cancers. In dense breast tiSSUe (such as is present in this case) probably only 50% Of the cancers can be detected, and those ueually a~e associated with micro-calcifications, There is great variability in interpretation of mammographic studies as evidenced by two (2) recent articles (Arch. Intern. Med.19961 156.209-213 and New England Journal of Medicine 1994; 331'1493-9). The standard of care is not what a radiology expert on retrospective review finds, but rather what a reasonable radiOlogist in the community would report in the routine practice of radiOlogy. A basic rule Of mammography is an abnormality on one projection is a density. In order to make the diagnosis Of a mass an abnormality must be seen on two (2) views, which if they are done at right angles to each other gives the abnormality a throe dimensional component. 06/08/98 08:53 TX/RX NO, 2156 1'02 OA:~6 P.03 Kaylor vs Mnlnar,D.O. and Smith Radiology,Inc. -2- What do we know about this case? On 4/28/97 Cynthia Kaylor had surgery at Memorial Sloan Kettering Cancer Center in New York. A modified radical mastectomy was performed which revealed a 2.8cm (greatest diameter), invasive lobular carcinoma Of the breast. In addition there was in situ lobular carcinoma, ductal hyperplasia of a moderate degree, atypical lobular hyperplasia, a fibroadenoma 1.8cm in diameter and sclerosing adenosis. The gross description states "the biopsy cavity wall and the tumor are surrounded by mUltiple irregUlar dense areas of white fibrosis and mUltiple cysts ranging in size from 0.2 to lcm in greatest diameter. In addition, a 1.8 x 1.5 x 1.0cm papillomatous, semifirm, tan, well-circumscribed lesion is identified separate from the main tUmoral mass and also located in the upper outer quadrant." It also describes "the other quadrants of the breast reveal irregUlar areas Of fibrosis and multiple cysts." In summary, there is considerable fibro cystic change throughout the breasts with two (2) discrete SOlid masses and mUltiple cysts. On 4/8/97 MS.Kaylor, age 46, had a mammography and Ultra- sound examination of the breast at Smith RadiOlogy. The note indicates there is a hard lump at 2 O'clock to 4 O'clock laterally in the left breast. Dr.Smith reported "there is evidence of a large spiculated mass in the mid to Upper, outer left breast overall measuring approximately 5x3cm in diameter." On my review I see a 5 x 3cm area of increased dsnsity on the left craniocauded, but I am not certain I see a similar size abnormality on the MLO view. On the ultrasound study of the left breast Dr.Smith describes "a complex mass at the approximate 3 O'clock position measuring 3.6 x 1.gem with several small hypoeChoic nodules." The Ultrasound notes of the teChnician states "definite borders are diffiCUlt to see." 06/08/98 08:53 TX/RX 1\0, 2156 1'03 P.04 Kaylor vs Malnar,D.O. and Smith Radiology,Inc. -3- On my review the area of concern shows no evidence of a discrete mass 3.6 x 1.9cm. There are no bordero. There are no findings that would sug~est either a fibro adenoma or cancer in thio area. Cancer is usually associated with attenuation of the sound and loss of echoes. This is not present in this study. I am certain it represents the area of the lump in the breaet, and the site of where a 2.6cm cancer was removod weeks later. It is my opinion, that the ultrasound study doeo not ohow a cancer,and the mammogram shows a density on the CC view, but I am not certain there is a mass present, because I do no see the deneity on the MLO view. I agree with Dr.Smith's recommendation that a biopsy should be done as there is a change in density in the left breast On the CC view when compared with the 1996 study, and there is a firm mass present Clinically. As it turns out the cancer was only 2.Bcm in greatest diameter the 3 x 5cm density seen on the CC view was probably due to the cancer, areas of fibrosis, cysts and possibly the fibro adenoma all combining to give the 3 X 5cm density on the cc view. On the MLO view the various components were separated and did not present as a discrete mass within the dense breast matrix. This case illustrates several problems with breast cancer detection. 1) The imaging studios must be correlated with the clinical examination. The imaging studies may be inconClusive, but the clinician must resolVe the nature of a mass on Clinical grounds. 2) It is very difficult to detect breast cancer in breasts that contain ribro glandular and cystic changes, as in this caso. 3) The cell type in this case is lobUlar carcinoma. The course of lobUlar carcinoma is veil documented in the literature, by the experience of the Mayo Clinic (l\JR 19931 161.957-960), and the Institute Curie (Radiology 1992; 165.705-706). Lobular carcinoma accounts for less than 10% Of breast cancer. Clinically the neoplasm is rubbery and poorly defined, in contrast to the hard veIl dofined masses of duct cell carcinoma. On mammography the tumor is of the low opacity similar to normal fibrograndular breast tissue. 06/08/98 08:53 TX/RX 1'\0, 2156 P04 J.l,I~-0e-ge MOt.. 08: 5') AM P.O!5 Kaylor vs Malnar,D.O. and smith Rauiolo~y, Inc. -4- At the time of diagnosis 44% Of the patients in the Mayo Clinic study had metastatic axillary lymph nodes. The ambiguous clinical presentation and the false negative results on mammography leads to a later discovery of lobular carcinoma than other forms of breast cancer, and an associated pooror prognosis. The study in question was that of May 6,1996 (eleven months earlier). Ms.Kaylor at the time had a history of a lump in the left breast at 2 O'clock near the nipple. Dr.Malnar reported the mammogram and breast ultrasound. Ho describes an "area of increased density and mild architectural prominence especially on the left CC view....at 1 to 2 O'clock." He compared the area to a study of 1994 and it was his opinion it was unchanged. He however, suggested an ultrasound examination be performed "to rule out a Golid or cYlltic lesion.- I reviewed the mammogram and agree with his interpretation. In my opinion, this report meets the Iltandard of care for the radiology community. He compared the stUdy with a prior examination and carefully examined the area of clinical concern at 2 O'clock, and arrived at a rea II on able conclusion and offered a recommendation for follow Up. By saying that the report rendered by Dr.Malnar is reasonable and within the standard of care does not preclude that SOmeone else reviewing the study might have a different opinion, which is also reasonable. The cancer is definitely present in the left breast at the time of the 1996 study, and I would estimate it to be about Ilmm in greatest diameter based upon a volume dOUbling time of 80 days which is the avorage for women under tho age of 50 years. It is my Opinion, that a lcm discrete mass cannot be perceived in this dense breast matrix. Dr.Malnar reportod that the Ultrasound study of the 2 O'clock area of the left breast revealed a 2.1 x 1.8 x 2.0cm cyst with good through transmission. He also found other cysts in the left breast. He concluded that, in this patient, with fibrocystic breasts, the sympotmatic area in the 2 O'clock position represented a 2cm benign cyst. I agree with the findings and the report. ThQre are no masses sean on the ultrasound study that WOUld suggest n cancer in the breast. 06/08/98 08:53 TX/RX 1'0, 2156 P05 JUN 09_90 MQ~_Oe:58 AM P.()6 Kaylor va Malnar,D.O. and Smith Radiology, Inc. -5- It is my opinion, that the ultrasound report. meets the standard Of care for the radiology communit.y. Dr.Malnar oxamined t.ho area of Clinical concern and det.ermined it was a cyst. He did not misinterpret t.he sonagram. On the 1997 ultrasound study this cyst is not present. Cysts como and go in women. It is my opinion, that the lump detocted in 1996 was a cyst and it resolved. On the initial consultation of Dr.A.Seidman of Memorial Sloan Kettering dated 5/6/97, in the hiatory of present illness, he notes that "around 9/96. the patient's 10ft breast became painful and she bocame increasingly concerned." I do not have access to hor clinical records at that time. However, if the work up of her complaints at that time had had tr biopsy it could have resulted in detecting the tumor 6-7 months earlier. The outcome of t.his case, however, WOUld have been the same as all the nodes certainly would have been involved and the stage of the disease would have been as advanced as it was in May 1997. Dr.Ekland. plaintiff's expert opines that there is on the loft craniocaudal view, a highly suspicious, spiCUlated area of incroased density in the lateral aspect of the breast, not seon vitb certainty on tbe obliquo (HLO viov). This lesion shOUld be regarded as malignant until proven otherl(ise. Dr.Ekland sees it only on one view which does not make it a mass. It makes it a density. Dr.Malnar noted this area and did not consider it a mass. but suggests Ultrasound study of the area. Differences of opinion among mammographors is common, thore of ton isn't just one impression. Dr.Ekland says efforts should have been made to evaluate the area. That is what Dr.Malnar did. and it was his impression that the ultrasound study did not show a cancer in the area, and that the area of clinical cOncorn was a benign cyst. Dr.Ekland doesn't find fault with the interpretation of the ultrasound study. He is convinced that the CC view represents a cancer, and he wants Dr.Malnar to disregard the ultrasound findings, and still make a diagnosis of breast cancor. Could his opinion be biased by the fact that a cancer of the breast was found in the 000 one year later? Dr.Malnar, when he was interpreting these st.udies, did not know of the presence of a cancer, and he was convinced by his ultrasound study, and his comparison with prior mammograms that there was no tumor present. I believe this is a reasonable conclusion based on what his studies showed. 06/08/98 08:53 TX/RX 1\0. 2156 1'06 Kaylo~ va Malnar,P.O. and Smith Radiology, Inc. -6- Dr.Borgen, plaintiff's expert, is a surgoon vho states in an undated letter to Ms.Kaylor that he is "convinced that the tumor was identifiable on tllG previous mammogram." He dODe not say that Dr.Malnar broached the etandard of care by not reporting a tumor. Nor can he, as he has no understanding of tho Gtanaard of care for the radiology community. Tho literature clearly shows that when a cancer is detected in the interval between studies (an interval cancer), in 60% of the cases in retroepective review one can identify a density or abnormality on tho prior study at the site. The fact that it can be seen on retrospective review does not mean that thore was a breach of the standard of care. because it was not reported. Dr.Borgen states "it is not possible to determine with any degree of certainty, what the nodal status was one year ago. My impression is that nodal disease increases with time and tumor size and it WOUld be my opinion that fewer nodes would have contained breast cancer ana year ago." Ms.Kaylor had 9 of 9 level I; 6 of 6 level II and 1 of 1 level III nodes positive for cancer. The level III node neasured 0.4 x 0.3 x 0.2cm in size, for an average diameter of 0.3cm. I do not know the size of the tumor pr&sent in the other 15 nodes, but I would aSsUme that they arc all larger. It is known from tho size of an average cancer cell that 0.3cm tumor mass contains over 20 million cells. It is believed that tumor growth in both the primary and metastatic sitee is exponential (1 - 2 - 4 - 0 etc). We know that a 0.3cm mass requires over 24 dOUbling of the cancer cells. There is reference in the literature (Divital Cancer 1989, Chapter 1, page 3) that the soft tissuo metastases in breast cancer have a doublin~ time of 21 daYB. and lung metastases 77 days. This type of information allows on to estimate how long a metastases has been present. In this case if we assume the level III nodos represents 24 volume doubles with a VOlume doubling time of 21 days then tumor in the node has been present for 504 days (24 x 21), or greater than 16 months. This would mean that this node was positive at the time Of the 1996 mammogram. It also means all nodes vith at least this amount of tumor would also be positive. If the focus of a tumor in a node was O.lmm (20 VD), then it would have also been present one (1) year earlier. With 16 nodes positive in 1989 I am certain that almost all were positive 11 months earlier. 06/08/98 08:53 TX/RX NO, 2156 P07 I.i' -E .E 12 ~... ~ l ~ ~ ~G ~Q' \, " ~.... ... ~a. ", ~ ... . E"t.. ," ~ 1:)" I , , '. LAW OFfICE.S MILLER AND MILLER 113 LOCUST STREET P,O, BOX 709 HARRISBURG, PA 1710B.0709 Tel,phoneI7171232.0750 FuI7171232.1302 " , ~UN 0 9 1998 ~ 1 MILLER and MILLER G, Thomas MUler, Esquire IDENTIFICATION NO, 07219 Thomas R. MlDer, Esquire IDENTIFICATION NO, 49801 113 Locust Street P.O. Box 709 Harrisburg, PA 17108-0709 Telepbone: (717) 132-0750 Allorneys ror Derendants Smith Radiology, Ine, and Garry B, Malnar, D.O. CYNTHIA ANNE KAYLOR, Plaintiff IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLYANIA v. NO. 1997 - 3302 CIVIL GARRY B. MALNAR, D.O., SMITH RADIOLOGY, INC., Defendants CIVIL ACTION - LAW JURY TRIAL DEMANDED ORDER AND NOW this day of June, 1998, upon presentation of the within Motion, this Court's prior Order precluding expert testimony on liability by Defendants is vacated and the request of the within Motion is granted in that Defendants shall be pennitted to offer the testimony BY THE COURT: c~ Bernard Ostrum, M,D. at the trial of this action on the issues of liability and causation, J, Wesley Oler, Jr" J, MILLER and MILLER G. Thomas Miller, Esquire IDENTIFICATION NO. 07219 Thomas R. Miller, Esquire IDENTIFICATION NO. 49801 113 Locust Street P,O. Box 709 Harrisburg, PA 17108.0709 Telephone: (717) 232.0750 Allomey. for Defendants Smith Radiology, Inc. and Garry B. Malnar, D.O. CYNTHIA ANNE KAYLOR, Plaintiff v. IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYL Y ANIA NO. 1997 - 3302 CIYIL GARRY B. MALNAR, D.O., SMITH RADIOLOGY, INC., Defendants CIVIL ACTION - LAW JURY TRIAL DEMANDED ORDER AND NOW, this day of June, 1998, upon presentation of the within MOlion, the MOlion is denied and Defendants shall nOI be pennitted to offer the testimony of Dr. Bernard Ostrum, M,D, at the trial of this action, BY THE COURT: J. Wesley Oler, Jr" J. pertaining to the Plaintiff's radiographic studies of May, 1996, A written preliminary report from Dr. Ostrum is being furnished concurrently to this Honorable Court and Plaintiff's counsel as an appendix to Defendants' Answer to Motion for Rule Absolute, which is inco;porated herein by reference, 3, About 10 days ago, Defendants' counsel advised Plaintiff's counsel that he was about to file a Motion for Consolidation of the trial of this action with the action brought by this Plaintiff, Cynthia Kaylor, against Herbert V, Jordan, Jr., M,D" an obstetrician/gynecologist, as filed in this Court to No. 7037 Civil 1997, because the Jordan action arises from the same facts and circumstances as this action and advances claims for the same injuries and damages which are alleged in this case, This consolidation was requested and directed by the CAT Fund, since Dr. Jordan is also one if its insureds and the Fund does not wish to be involved with the defense of separate actions involving identical claims and probable joint liability between its insureds. 4, Defendants' counsel had not previously moved for such consolidation because a stay order had been entered in the Jordan case in view of the insolvency of Dr. Jordan's primary carrier, However, at or about the time of the CAT Fund's directive for consolidation, Defendants' counsel was advised that the stay order had been lifted on or about Api:! 21, 1998. 5. In response to Defendants' notification to Plaintiff's counsel, Archie V. Diveglia, Esquire, of intention to file the aforesaid consolidation motion, Mr. Diveglia advised Defendants' counsel by letter, a copy of which is attached hereto, stating in effect that if this 2 CERTIFICATE OF SERYICE 1 hereby certify that a true and correct copy of the foregoing Motion for Leave to File Expert Report was served upon the following person(s) by United States first class mail, postage prepaid, on this date: Date: June 8, 1998 , Archie V. Diveglia, Esquire 119 Locust Street Harrisburg, PA 17101 ~ - ('I t to:: c: r'~ ..:. UJ(": U_') ...1: Co, " . lY' ~:: .....:z.. \1:'7' ,.... , ~" I 'r, eCl ..., I .~ .. u.;' , ;.;_ll_ ?' ,'- ....- .' (~ -- :;.': , ~:.:.. L'- cc -.' c O' 0 @JUN 0 9 1998 MILLER and MILLER G. Thomas MIDer, Eaqulre IDENfIFlCATION NO. 07119 Thomas R. MIDer, Eaqulre IDENfIFlCATlON NO, 49801 113 Locust Street P,O. Box 709 Harrisburg, PA 17108-0709 Telephone: (717) 131.0750 Attomey. ror Der.ndanu Smith Radiology, Inc. and Garry B. Malnar, D,O, CYNTHIA ANNE KAYLOR, Plaintiff IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 1997 - 3302 CIVIL v. GARRY B. MALNAR, D.O., SMITH RADIOLOGY, INC., Defendants CIVIL ACTION . LAW JURY TRIAL DEMANDED ORDER AND NOW this day of June, 1998, upon presentation of the within Motion, this Court's prior Order precluding expert testimony on liability by Defendants is vacated and the request of the within Motion is granted in that Defendants shall be pennitted to offer the testimony of Bernard OstrUm, M,D. at the trial of this action on the issues of liability and causation. BY THE COURT: J. Wesley Oler, Jr,. 1. @.JUN 0 9 1998 \ MILLER and MILLER G, Thomas Miller, Esquire IDENTIFICATION NO. 07119 Thomas R, Miller, Esquire IDENTIFICATION NO, 49801 113 Locust Street P,O. Box 709 Harrisburg, PA 17108-0709 Telephooe: (717) 131-0750 Allomey. ror DerendanLl Smith Radiology, lne, and Garry B, Mamar, D,O. v. IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 1997 - 3302 CIVIL CYNTHIA ANNE KAYLOR, Plaintiff GARRY B. MALNAR, D.O., SMITH RADIOLOGY, INC., Defendants CIVIL ACTION - LAW JURY TRIAL DEMANDED ORDER AND NOW this day of June, 1998, upon presentalion of !he wi!hin MOlion, !his Court's prior Order precluding expert testimony on liability by Defendants is vacaled and !he request of !he within Motion is granteG in that Defendants shall be penniued to offer !he testimony of Bernard Ostrum, M.D. at !he trial of this action on !he issues of liability and causation, BY THE COURT: J, Wesley Oler, Jr" J, ~ ~ .' .. ... ' 1,") ." ".) 1"".., '.. '/ -- .f' I~!... : ;',', '.-: l , . . ' ,'J, 0, .1: ,~ , / ~ .- ~ ~ ... 0- c~ ;:J = 0' t- = rIJ o!. ~~ "':.~ = ... ~1olE- t- ~~ Iol..llol ... :3::~ < ...::eE- ll. ~~ ::ecrIJo-c5 rlJzE-=~ ~~ < <rlJt-;:J ~~B~el ~~ :=~g=~ 00 r-::: I"lO < Zll. c..:l::e:c.::= rIl C/\ II: 0 H l"- P 0 QI I . ' tIl CO rIl 0 ri . II: fo< t- II:rIlrll ri rIl.:la .:l.:l 0< .:lH PI H:l:tIlC/\ :l: O. ~fo<l"-Cl ~ B~~ " I OIl:Olllfll ~rIl.:l H .:l 'a .:lMO 'Hr-t . Cl:l:riPl . . ~: 'pi I, . to . -"- ... ~ ~;. '-: (-. ~I iU!~.; "'I' ...'1 ,', .:;--:' i" , :. t~. :;, ....;: r, ;,1 ',~ ~ I " ",.; .I " . '....._...../ e 0; . ~.-4 ~ => - d'S: t' :ssr ~< .~~ Q",,<;;;~ ."""== :> .. "',C ~Q~ ._~C "5~.. ~ ~ r..:l ...;! ...;! g ~ ~ e~ ~~~ ~...... .... . 0...... '" il '"' 3~ ~~~ ...;!::l = ...;! - :s .... - :; " l ... MILLER and MILLER G. Thomas Miller, Esquire IDENTIFICATION NO. 07219 Thomas R. MIller, Esquire IDENTIFICATION NO. 49801 113 Locust Street P.O. Box 709 narrlsburg, PA 17108~709 Telephone: (717) 232-0750 Allorneys ror Derendant Garry B. Malnar, D.O. Smith Radiology, Inc, CYNTHIA ANNE KAYLOR, Plaintiff IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLY ANIA "'f1 r) .-n I .-I"!..1 , "I'rl ';:",.1 ':~l~ 'oj ~11 ::)~) , .("') ;\t"n ::~ 3 '"' v. NO. 1997 - 3302 CIVIL (') ~.; --, .') c.J '- c: GARRY B. MALNAR, D.O., SMITH RADIOLOGY, INC., Defendants .,..., ~~i.~ . ~''; ;.. .' "- u~, JURY TRIAL DEMANDEQ.:i.. :'":c,"- )::~.~ I co CIVIL ACTION - LAW DEFENDANTS' MOTION FOR LEA YE TO FILE EXPERT REPORt AND TO PRESENT EXPERT OPINION EYIDENCE AT TRIAL ::> ,,, Defendants, by their counsel, file this Motion for Leave to File an Expert Report and to present at trial the opinion of an expert on liability and causation for the reasons hereinafter stated: 1. This Honorable Court, per the Honorable J, Wesley Oler, Jr., has previously entered an Order precluding Defendants from offering at trial an expert on the liability issues extant in this action. 2. However, Defendants have within the last few days been able to locate a qualified and competent physician, one Bernard Ostrum, M,D., FACR, of Philadelphia, who, after a review of applicable radiographic films and medical records, has preliminarily report to Defendants' counsel that Defendant Malnar was not negligent in his interpretations and reports pertaining to the Plaintiffs radiographic studies of May, 1996, A written preliminary report from Dr, Ostrum is being furnished concurrently to this Honorable Court and Plaintiffs counsel as an appendix to Defendants' Answer to Motion for Rule Absolute, which is incorporated herein by reference, 3. About 10 days ago, Defendants' counsel advised Plaintiffs counsel that he was about to file a Motion for Consolidation of the trial of this action with the action brought by this Plaintiff, Cynthia Kaylor, against Herbert V. Jordan, Jr" M.D., an obstetrician/gynecologist, as filed in this Court to No. 7037 Civil 1997, because the Jordan action arises from the same facts and circumstances as this action and advances claims for the same injuries and damages which are alleged in this case. This consolidation was requested and directed by the CAT Fund, since Dr. Jordan is also one if its insureds and the Fund does not wish to be involved with the defense of separate actions involving identical claims and probable joint liability between its insureds, 4. Defendants' counsel had not previously moved for such consolidation because a stay order had been entered in the Jordan case in view of the insolvency of Dr. Jordan's primary carrier. However, at or about the time of the CAT Fund's directive for consolidation, Defendants' counsel was advised that the stay order had been lifted on or about April 21, 1998, 5. In response to Defendants' notification to Plaintiffs counsel, Archie V. Diveglia, Esquire, of intention to file the aforesaid consolidation motion, Mr, Diveglia advised Defendants' counsel by letter, a copy of which is attached hereto, stating in effect that if this 2 .$m~ if q)~ cmd ~ !lJ.(i. ~v. q)~ ~./t. ~~ ~ at.)'4m JUN 1 - --...--......... h~~ ~.tbaI J'vtJIi:a, fF(W: (717) 231-4083 f(g ~ J'Uta ~,~fl10f (717) 236-5985 June 1, 1998 G. Thomas Miller, Esq. Miller and Miller 113 Locust Street Harrisburg, PA 17101 Re: Kaylor v. Malnar, et al 97-3302 Cumberland-County Dear Tom: I am sending this letter as a confirmation of our conversation of May 29, 1998. I confirm that if we are able to reach a settlement with the CAT Fund that I will have Ms. Kaylor sign a general release and I will discontinue, with prejudice, all claims against all defendants. If we are unable to reach a settlement, then I will not oppose a continuance from the July 6, 1998, trial week and allow you to file a Motion for Consolidation of the claim against Dr. Jordan. I trust this letter fairly summarizes our conversation and I hope a prompt resolution of this laim for the full limits can be achieved in the immediate uture. urs, iveglia pertaining to the Plaintiff's radiographic studies of May, 1996, A written preliminary report from Dr, Ostrum is being furnished concurrently to this Honorable Court and Plaintiff's counsel as an appendix to Defendants' Answer to Motion for Rule Absolute, which is incorporated herein by reference, 3. About 10 days ago, Defendants' counsel advised Plaintiff's counsel that he was about to file a Motion for Consolidation of the trial of this action with the action brought by this Plaintiff, Cynthia Kaylor, against Herbert V, Jordan, Jr" M.D., an obstetrician/gynecologist, as filed in this Court to No. 7037 Civil 1997, because the Jordan action arises from the same facts and circumstances as this action and advances claims for the same injuries and damages which are alleged in this case, This consolidation was requested and directed by the CAT Fund, since Dr. Jordan is also one if its insureds and the Fund does not wish to be involved with the defense of separate actions involving identical claims and probable joint liability between its insureds, 4. Defendants' counsel had not previously moved for such consolidation because a stay order had been entered in the Jordan case in view of the insolvency of Dr. Jordan's primary carrier. However, at or about the time of the CAT Fund's directive for consolidation, Defendants' counsel was advised that the stay order had been lifted on or about April 21, 1998. 5, In response to Defendants' notification to Plaintiff's counsel, Archie V. Diveglia, Esquire, of intention to file the aforesaid consolidation motion, Mr. Diveglia advised Defendants' counsel by letter, a copy of which is attached hereto, stating in effect that if this 2 . ~Oi<- G. homas Miller I.D, #07219 P.O, Box 709, 113 Locust St. Harrisburg, PA 17108-0709 (717) 232-0750 action not be settled (which is now doubtful), he would not oppose a continuance of this action so that consolidation could be requested. 6. In view of the foregoing matters, Defendants' counsel has not yet filed a consolidation motion but intends to do so promptly. 7, There are additional reasons why this Motion should be granted which are set out in the New Matter stated in Defendants' Answer to Plaintiffs Motion for Rule Absolute, which New Matter is incorporated herein by reference, 8. For the reasons herein stated, and also incorporated by reference, Defendants, by their counsel, verily believe that the principles of fairness, justice, and the basic purpose of a search for truth in all litigation, all suggest that this Motion should be granted, and that, if requested by Plaintiffs counsel, the trial of this action continued until the next trial term, WHEREFORE, Defendants respectfully move that they be permitted to file an expert report and to present an expert on the issues of liability and causation at the trial of this action. Attorneys for Defendants June 8, 1998 3 , $m-~ PI' 0~ cuui ~ !lJ.Cl. ~v.~~ ~A.~ ~""~ n JUN 1 --...--......... .A,~~ ~-lb"'J~ ST"04J.' (717) 231-4083 1(9 $wa JtNa ~, ~1l101 (717) 236.5985 June I, 1998 G. Thomas Miller, Esq. Miller and Miller 113 Locust Street Harrisburg, PA 17101 Re: Kaylor v. Malnar, et al 97-3302 Cumberlandl:ounty Dear Tom: I am sending this letter as a confirmation of our conversation of May 29, 1998. I confirm that if. we are able to reach a settlement with the CAT Fund that I will have Ms. Kaylor sign a general release and I will discontinue, with prejudice, all claims against all defendants. If we are unable to reach a settlement, then I will not oppose a continuance from the July 6, 1998, trial week and allow you to file a Motion for Consolidation of the claim against Dr. Jordan. I trust this letter fairly summarizes our conversation and I hope a prompt resolution of this laim for the full limits can be achieved in the immediate uture. 0~ ruuI ~ !lJ.(J PHONE: (717)~ FAX: (717)231-40113 111 lOCUST STl&T JUN 0 9199B~PflHM.V_'7101 ATIORNEVS AT ~W ! Olt,,,,tJll<- ,._,.>:.-;"__,..",-,'14\-- ._ CYNTHIA A. KAYLOR, Plaintiff IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW . '. v. GARRY B. MALNAR, D.O., SMITH RADIOLOGY, INC., Defendants NO. 3302 CIVIL: 1997 JURY TRIAL DEMANDED ORDER OF COURT AND NOW, this day of June, 199B, upon consideration of Defendant's Motion for Leave to File Expert Report and Provide Expert opinion Evidence at Trial, and Plaintiff's answer thereto, and pursuant to paragraph 2 of this Courts Order of May 20, 199B, the defendants are precluded from the use of any expert witness(es) at the trial of this matter. By the Court: J. Wesley Oler, Jr. Judge '. be involved in defending separate actions, 4, Denied, The action against Dr, Jordan was filed and served upon Dr, Jordan on December 24, 1997. A copy of the Complaint was given to defense counsel on January 12, 1998, Despite the time lapse, and despite the fact that Plaintiff clearly through her Motions indicated her intention to bring this matter to trial in July 1998, the Defendant did not attempt, at anytime prior, to consolidate these actions, Only now, seven weeks after the stay Order was lifted against Defendant Jordan's insurance carrier, does Defendant Malnar seek to untimely consolidate these two actions. 5. Admitted. However, by way of further Answer, Plaintiff did not agree not to oppose the Motion. Further, it was represented to Plaintiff, and this Court that the CAT Fund would attempt to negotiate a settlement of the claim, But instead, the CAT Fund has sought only to find a way to defend the claim, and no negotiations to settle have been initiated by the CAT Fund. As such, the condition precedent to the agreement (i.e, "should negotiations fail" presumes that there would be a good faith effort to negotiate a settlement of the claim) has not been met, and therefore Plaintiff does oppose a continuance for the purpose of filing a Motion to Consolidate. 6, No answer needed. 7. No answer needed, 8, Denied, The defendants have made representations to this court in regard to conceding negligence, asking for additional time so as to obtain a causation expert so that the settlement could move forward, when, in fact, the CAT Fund has not, despite counsel's representations noted in this Court's own Order of May 20, 1998, even remotely attempted to proceed forward with the settlement negotiations, Therefore, since the defendants have already been Sanctioned for their dilatol)' actions, since the Defendants have not shown extenuating circumstances for 2 . . . . I \" _ -. . ' " _. __ " "- -;, ~--' - -" .,' - -'--,.~..........,., -- ....-." ,-:,' -,..~ -' . PHONE:(717)~ FAX: (717) 231.4Oll3 0~/od~~(f. . " ___ _ H; 11' LOQJST STREIT JUN 0 9 ~I'fINM.V_1n01 ATTOI\'EYb AT l).W COpy -"""'-~"'._. CYNTHIA A. KAYLOR, Plaintiff v. IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW . . GARRY B. MALNAR, D.O., SMITH RADIOLOGY, INC., Defendants NO. 3302 CIVIL: 1997 JURY TRIAL DEMANDED ORDER OF COURT AND NOW, this day of June, 1998, upon consideration of Defendant's Motion for Leave to File Expert Report and Provide Expert Opinion Evidence at Trial, and Plaintiff's answer thereto, and pursuant to paragraph 2 of this Courts Order of May 20, 1998, the defendants are precluded from the use of any expert witness(es) at the trial of this matter. By the Court: J. Wesley Oler, Jr. Judge "' CYNTHIA A. KAYLOR, Plaintiff IN TilE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA v. . .0 CIVIL ACTION - LAW GARRY B. MALNAR, D.O., SMITH RADIOLOGY, INC., Defendants NO. 3302 CIVIL: 1997 (") s.-:. .... (?, ~ c~'7: .-, :: .- ~;~ I ';J .'( :~.. ,1'1 :.-=' ::':; I ~~.) ~I:: ,;-11 ..J ',' , f /1 .<. ~,' JURY TRIAL DEMANDED :..' . " " PLAINTIFF'S ANSWER TO J)EFENI>ANTS' MOTION FOR LEA VE TO FILE EXPERT REPORT ANI> PROVII>E EXPERT OPINION EVII>ENCE AT TRIAL AND NOW, this 81h day of June, 1998, comes the PlaintilTby her attorney, Diveglia & Kaylor, P,C" who files this Answer on her behalf and in support thereof avers as follows: 1. Admilled that on May 20, 1998 the Honorable J Wesley Oler, Jr, entered an Order precluding Defendants from olTering an expert at trial on liability issues. 2, Admilled Defendants now olTers an expert report, 3. Denied, The claim againstllerbert Jordan, M,D" does not arise from the same facts and circumstances as the above maller, The claim againslthe Defendant Jordan relates only to failure of Dr, Jordan, as a gynecologist to follow the gynecological standard of care, a standard which is substantially dilTerentthan that of a radiologist. Further, the CAT Fund is not a party to either action, does not insure Dr, Jordan, nor has a tender has been made by Dr. Jordan's liability company, P,I.c. nor from PIGA, now that Dr. Jordan's carrier is in insolvency, Further, PlaintilT has the right to discontinue that action at anytime, and indeed, as seen by teller dated June I, 1998 attached to Defendant's Motion, was willing to discontinue the action with prejudice, aller a selllement was obtained with the Defendant Malnar, Thus, the CAT Fund is not and would not be involved in defending separate actions, 4, Denied, The action against Dr, JOrlfan was filed and served upon Dr. Jordan on December 24,1997, A copy of the Complaint was given to defense counsel on January 12,1998, Despite the lime lapse, and despite the facl that Plaintiff clearly through her Motions indicated her intention to bring Ihis mailer to trial in July 1998, the Defendant did not allempt, at anytime prior, to consolidate these actions, Only now, seven weeks after the stay Order was lined against Defendant Jordan's insurance carrier, does Defendant Malnar seek 10 untimely consolidate these two actions, 5, Admilled, However, by way of further Answer, Plaintiff did not agree not to oppose the Motion, Further, it was represented to Plaintiff, and this Court that the CAT Fund would allempt to negotiate a selllement of the claim, But instead, the CAT Fund has sought only to find ., a way to defend the claim, and no negotiations to sellle have been initiated by the CAT Fund. As such, the condition precedent to the agreement (i,e, "should negotiations fail" presumes that there would be a good faith effort to negotiate a settlement of the claim) has not been met, and therefore Plaintiff does oppose a continuance for the purpose of filing a Motion to Consolidate, 6, No answer needed, 7, No answer needed, 8, Denied, The defendants have made representations to this court in regard to conceding negligence, asking for additional time so as to obtain a causation expert so that the selllement could move forward, when, in facl, the CAT Fund has not, despite counsel's representations noted in this Court's own Order of May 20, 1998, even remotely allempted to proceed forward with the selllement negotiations, Therefore, since the defendants have already been Sanctioned for their dilatory actions, since the Defendants have not shown extenuating circumstances for Nor 2 CERTIFICATE OF SERVICE AND NOW, this 9th day of June, 1998, I hereby certify that a copy of the foregoing PLAINTIFF'S ANSWER TO DEFENDANTS' MOTION FOR LEAVE TO FILE EXPERT REPORT AND PROVIDE EXPERT OPINION EVIDENCE AT TRIAL was served by HAND DELIVERY TO: G. THOMAS MILLER, ESQ, 113 Locust Street Harrisburg, Pa, 17108 L Archie V, Diveglia, Es " q;~and~ ~a . . JUN 0 9 19fJO tP " 11. LOCIJ'JT ImEET twIWII.R1, P9HM.VNIA 1n01 PHONE: (717) "366l85 FAX: (717)231.04003 AlTOINrfS AT lAW COpy CYNTHIA A. KAYLOR, Plaintiff IN TilE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW . ~ v. GARRY B. MALNAR, D.O., SMITH RADIOLOGY, INC., Defendants NO. 3302 CIVIL: 1997 : JURY TRIAL DEMANDED ORDER OF COURT " AND NOW, this day of June, 1998, upon consideration of Defendant's Motion for Leave to File Expert Report and Provide Expert Opinion Evidence at Trial, and Plaintiff's answer thereto, and pursuant to paragraph 2 of this Courts Order of May 20, 1998, the defendants are precluded from the use of any expert witness(es) at the trial of this matter. By the Court: J. Wesley Oler, Jr. Judge CYNTHIA A. KAYLOR, Plaintiff IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA v. . .' CIVIL ACTION - LAW GARRY B. MALNAR, D.O., SMITH RADIOLOGY, INC., Defendants NO. 3302 CIVIL: 1997 JURY TRIAL DEMANDED n c: .0 ~ CD ~ :~j , I'l:'!) -- ' I'. I ...n '0 ~.j.~ ~ ~") _.. ::!l :..,. ~.:' ) OJ ~- -jin 1 . ::"1 .n -... ~. . ~l ~ ~ : PLAINTIFF'S ANSWER TO DEFENDANTS' MOTION FOR LEAVE TO FILE EXPERT REPORT AND PROVIDE EXPERT OPINION EYIDENCE AT TRIAL _.' ,. , ... ., -. AND NOW, this 8th day of June, 1998, comes the Plaintiff by her attorney, Diveglia & Kaylor, P.C" who files this Answer on her behalf and in support thereof avers as follows: I. Admitted that on May 20, \998 the Honorable 1. Wesley Oler, Jr. entered an Order precluding Defendants from offering an expert at trial on liability issues, 2, Admitted Defendants now offers an expert report, 3. Denied, The claim against lIerbert Jordan, M,D" does not arise from the same facts and circumstances as the above matter, The claim against the Defendant Jordan relates only to failure of Dr. Jordan, as a gynecologist to follow the gynecological standard of care, a standard which is substantially different than that of a radiologist. Further, the CAT Fund is not a party to either action, does not insure Dr. Jordan, nor has a tender has been made by Dr. Jordan's liability ., company, P,I.C, nor from PIGA, now that Dr. Jordan's carrier is in insolvency, Further, Plaintiff has the right to discontinue that action at anytime, and indeed, as seen by letter dated June \, \998 attached to Defendant's Motion, was willing to discontinue the action with prejudice, after a settlement was obtained with the Defendant Malnar. Thus, the CAT Fund is not and would not be involved in detending separate actions, 4, Denied. The action against Dr. Joroan was filed and served upon Dr. Jordan on December 24, ]997. A copy of the Complaint was given to defense counsel on January ]2, ]998, Despite the time lapse, and despite the fact that Plaintiff clearly through her Motions indicated her intention to bring this mailer to trial in July 1998, the Defendant did not allempt, at anytime prior, to consolidate these actions, Only now, seven weeks aner the stay Order was lined against Defendant Jordan's insurance carrier, does Defendant Malnar seek to untimely consolidate these two actions, 5, Admilled, However, by way of further Answer, Plaintiff did not agree not to oppose the Motion, Further, it was represented to Plaintiff, and this Court that the CAT Fund would allempt to negotiate a selllement of the claim, But instead, the CAT Fund has sought only to find a way to defend the claim, and no negotiations to sell Ie have been initiated by the CAT Fund, As such, the condition precedent to the agreement (i,e. "should negotiations fail" presumes that there would be a good faith effort to negotiate a selllement of the claim) has not been met, and therefore PlaintilT does oppose a continuance for the purpose of filing a Motion to Consolidate. 6. No answer needed, 7. No answer needed, ., 8, Denied, The defendants have made representations to this court in regard to conceding negligence, asking for additional time so as to obtain a causation expert so that the selllement could move forward, when, in fact, the CAT Fund has not, despite counsel's representations noted in this Court's own Order of May 20, ]998, even remotely allempted to proceed forward with the selllement negotiations, Therefore, since the defendants have already been Sanctioned for their dilatory actions, since the Defendants have not shown extenuating circumstances for N", 2 CERTIFICATB OF SERVICE AND NOW, this 9th day of June, 1998, I hereby certify that a copy of the foregoing PLAINTIFF'S ANSWER TO DEFENDANTS' MOTION FOR LEAVE TO FILE EXPERT REPORT AND PROVIDE EXPERT OPINION EVIDENCE AT TRIAL was served by llANO DELIVERY TO: G, THOMAS MILLER, ESQ, 113 Locust Street Harrisburg. Pa, 17108 / , ., /1 L ~~ - ~ 0 .s ' r .d ~J j) U1 ... :t2Jf I[~~~'! {J~~ ~ ~ ~ ~ ~ ~ ,-' ~ '~ ,~ ~.~ ~ ~ ~--S~ G-\, ~. ~ ID ~ _.~ ~ ~ ~~~ ~'i ~ ,~ ~ , , ' 'I t, + c: '- .. - ll.. ~ 8 I ?r. (\1 >- ;:-: lr: ,_-- We' .. ,,' ~ .- <,?(,~ - ..J;.' I" l - B-2 - " ~/ ~ , ' > " CJ , L:....I~ : " C-J " -' I u:~ I , ;:;;,,: -, r' :-~ '1 : ~.:~ ,>, ..-) \j\ .... - . <..: :.J 0' u ~ ,. .. ~ ~~\~ ~. . \J'- 'Q'Y' ~"""'" - ~ '" ~ ~ ~ ~ ~ ~b~ ~ ~ ~ HI il '1l " ,,13 ~!2 ~ i ~~ ~~ :} H1 'I tSj '4 I, .... :; '" ... changes and very dense breast" 12. Despite the findings and correlation of the mass and complaints, the Defendant Garry B. Malnar, D.O., recommended only that the Plaintiff have yearly mammograms as follow-up. 13. A report was prepared by Defendant Malnar and fOlwarded to Plaintiffs gynecologist by the Defendant Malnar. 14. Through the course of the following months, Plaintiff continued to have the same complaints. She was examined by her gynecologist and he assured her that since the mammogram was negative, all that she needed to do was to have yearly mammograms taken. 15. Plaintiff, in compliance with the Defendants' and her gynecologist's recommendation, presented herself for mammograms and sonography on April 8, 1997, at Smith Radiology, Inc. The two tests showed that Plaintiff had a large spiculated mass in her mid to upper outer left breast approximately 5 by 3 centimeters in size that was highly suspicious for carcinoma and Dr, Henry Smith of Smith Radiology, Inc. recommended that a left breast mass incisional biopsy be made. 4 16, The films of April 8, 1997, were nearly identical to the films of May 8, 1996. 17. Plaintiffs mammogram report was forwarded to her gynecologist. Plaintiff did not learn of the findings for nearly ten days due to the failure of the office of her gynerologist to notify her of the findings of the report, Plaintiff learned of the findings only after she made inquiries to the gynecologist's office and insisted upon having copies of the report faxed to her. 18. After receiving a copy of the fax, Plaintiff then met with HenlY K. Smith, D.O. to review the mammogram findings and to compare them with the findings of 1996 which, HenlY K. Smith, D,O. indicated were nearly identical to the findings of 1997, 19, Upon receiving the fax copy of the mammogram and sonogram of April 8, 1997, Plaintiff began a diligent search for a competent physician and was seen at the Slone Kettering Institute/Memorial Hospital. Shortly thereafter, surgeIY was performed on April 28, 1997, 20. The surgical procedure of April 28, 1997, was a modified radical mastectomy that was performed after surgical biopsy revealed Plaintiff had incurred invasive lobular carcinoma. 5 . . " 21. The pathology studies of the tumor and lymph nodes of the Plaintiff revealed that the carcinoma had spread into the left lymph nodes of the Plaintiff. 22. As a result of the spread of the carcinoma into the lymph nodes of the Plaintiff, and as a result of the fact that there was additionally vascular invasion as well as perineurial invasion, Plaintiff has begun an intense course of high dose chemotherapy, which in and of itself poses health risks to the Plaintiff, 23. As a result of the operative procedure and the chemotherapy, Plaintiff has been disabled from her employment as a trial attorney and is expected that Plaintiff will incur an extended period of disability into the foreseeable future as a trial attorney. 24. The surgical procedure of modified radical mastectomy and the chemotherapy procedures that are required as a result of the spreading of the cancer was caused by the misdiagnosis of the Defendant Malnar of the findings of May 1996, 25. As a result of the negligent misdiagnosis which will be more fully set forth hereafter, the Plaintiff has incurred an increased risk of hann and loss of chance of cure, 26, Plaintiff has suffered extreme mental distress, emotional tunnoil, fright, and 6 . , ' . . expectancy and chance of survival. c. He failed to follow the applicable standard of care by failing to order or take additional radiographic testing to rule out whether the "area of increased density" at the upper outer quadrant of the left breast with architectural distortion, and spiculation, and correlated with Plaintiffs complaints was representative of neoplasm. This failure resulted in the misdiagnosis of the condition of the Plaintiff as a fibrocystic cyst, which is a benign condition instead of carcinoma, which is a life threatening disease. This failure was a substantial factor in delaying appropriate treatment of the Plaintiff and this delay in obtaining appropriate treatment, in turn, substantially increased the extent of the operative procedure and foIlO\~'.up treatment, as well as, reducing her life expectancy and chance of sUlvival. d, He failed to follow the applicable standard of care in that he speculated that the area of increased density with architectural distortion and spiculation was "compatible with Patient's previous fibrocystic breast changes." This failure resulted in the misdiagnosis of the condition of the Plaintiff as a fibrocystic cyst, which is a benign condition instead of carcinoma, which is a life threatening disease. This failure was a substantial factor in delaying appropriate treatment of the Plaintiff and this delay in obtaining appropriate treatment, in turn, substantially increased the extent of the operative procedure and follow.up treatment, as well as, reducing her life expectancy and chance of survival. e. He failed to follow the applicable standard of care by speculating that the findings on the ultrasound of increased internal echos were "suggestive of a more proteinaceous or oily fluid," This failure resulted in the misdiagnosis of the condition of the Plaintiff as a fibrocystic cyst, which is a benign condition instead of carcinoma, which is a life threatening disease, This failure was a substantial factor in delaying appropriate treatment of the Plaintiff and this delay in obtaining appropriate treatment, in turn, substantially increased the extent of the operative procedure and follow.up treatment, as well as, reducing her life expectancy and chance of survival. f. He failed to meet the applicable standard of care in interpreting the ultrasound study of the left breast of Plaintiff in that the films revealed a lack of clean borders, a lack of good through transmission, as well as, a lack of backwall enhancement, all of which are indications that findings are 9 , r not compatible with cysts but rather more likely represent findings representative of neoplasm requiring additional procedures, including biopsy to determine, more specifically, the nature of the mass. This failure resulted in the misdiagnosis of the condition of the Plaintiff as a fibrocystic cyst, which is a benign condition instead of carcinoma, which is a life threatening disease, This failure was a substantial factor in delaying appropriate treatment of the Plaintiff and this delay in obtaining appropriate treatment, in turn, substantially increased the extent of the operative procedure and follow. up treatment, as well as, reducing her life expectancy and chance of sUlvival. WHEREFORE, Plaintiff demands judgment against the Defendant, Gany B. Malnar, 0,0., in an amount in excess of $50,000,00. COUNT II CYNTHIA ANNE KAYLOR v. SMITH RADIOLOGY, INC. 33. Paragraphs one through thirty.two are incorporated herein and made a part hereof. 34. The damages, expenses and losses of Plaintiff were caused by the negligence of Smith Radiology, Inc" under the doctrine of respondeat superior. 10 , " WHEREFORE, Plaintiff demands judgment against the Defendant, Smith Radiology, Inc., in an amount in excess of $50,000,00. Respectfully Submitted, Dated: 1ft - /(p- 97 BY: . LI Arc' . Diveglia, Es Attorney I.D, #17140 119 Locust Street Harrisburg, PA 17101 (717) 236.5985 I l Attorney for Plaintiff 11 . I VERIFICATION The foregoing Complaint is based upon information which has been gathered by my counsel in the preparation of the lawsuit, I have read the Complaint and to the extent tbat it is based upon information which I have given to my counsel, it is true and correct to the best of my knowledge, information and belief, To the extent that the content is that of counsel, I have relied upon counsel in making this verification, This statement and verification are made subject to the penalties of Pa,C,S, Section 4904 relating to unsworn falsification to authorities, which provides that if I make knowingly false averments, I may be subject to criminal penalties, ( rr /(.,' 7~1 Date kk/..~ h~~. ./ ~ thia Anne Kaylor f.f:f b;::E ~. cE~ ~~ ~ .c 0 oa. -tdi t:. ....~""'V\ "'A.. ~ .. ~~ ~ a .. ... ~t , I >.= -' iC- (" c: 7' ~'. 'u~'5 ~--; -" u!.:. (..).-", - ~:; c;- p,:\.' .... c.. '1:'.J "r (.lc'. '. ,n ' . 6: ('.. ;' u~, . <..'J , -:,j (t-:\' ::'J .-~~ r' "'" :j " r- U (:''' U ~ ~ ~ 1 j \Sj i! ~ ~ !~ ~~ ~ ~~ ~g S ~[ ~~ 5 ~.. ~2 ~ l~ ~~ ~ ~ practical and all would work to the prejudice of Plaintiff. 6. Denied as stated. Grumme, stands for the proposition that a defendant out of the jurisdiction could incur sanctions for not appearing for deposition. 7-6. Denied as incorrect conclusions of law. 9. Denied as stated. Defense counsel has represented to Plaintiff's counsel that the defendant could not take off work at his new employment and that is why the date of August 19, and then August 22, 1997, were selected. WHEREFORE, Plaintiff moves this Honoraable Court to set a specific date for the Deposition of Dr. Malnar in the Cumberland County Courthouse with costs to be paid by the defendant. Dated: ~~ By: quire ~ER~~FICATE OF SERVICE AND NOW, this 21st day of August, 1997, I hereby certify that a copy of the Response to Defendant's Malnar's Motion for a Protective Order was served by hand delivering the same on this date to: C. Thomas Miller, Esquire 105 Locust STreet Harrisburg, PA 17108-0709 'AA~' Divegli , By: Ar r!IJD-Q?;:i:E CF r.... ..~.\.: :"'" !'~'TA1,( 97 r,l.I(; 2 If.: 2: L ! Cl" ' , , '...., H' _' ..::, "'" '.~,~ ~:r\: 1 P:: ;;-;: ,'11.<' !.~ \ . ,f",.' .' , \ . . . MILLER and MILLER G. Thomas Miller, Esquire IDENTIFICATION NO. 07219 Thomas R. Miller, Esquire IDENTIFlCATION NO. 49801 105 Locust Street P.O. Box 709 Harrisburg, PA 17108-0709 Telephone: (717) 232-0750 Allomeyo ror nerendant Garry B. Malnar, n.o. CYNTHIA ANNE KAYLOR, Plaintiff IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLYANIA v. NO. 1997 - 3302 CIVIL GARRY B. MALNAR, D.O., SMITH RADIOLOGY, INC., Defendants CIVIL ACTION - LAW JURY TRIAL DEMANDED DEFENDANT MALNAR'S MOTION FOR PROTECTIVE ORDER PURSUANT TO PA. R.C.P. 4012(a)(l) AND (2) Defendant Garry B, Malnar, 0.0" by his counsel, moves for a protective order pursuant to Pa, R.C,P, 's 4012(a)(1) and (2), with reference to his deposition which has been noticed by Plaintiffs counsel for Friday, August 22, 1997 in Carlisle, Pennsylvania, whereof the following is a statement: 1, In this medical malpractice action, the alleged actionable incident occurred in New Cumberland, Pennsylvania, in 1996, when and where Defendant Garry B. Malnar, 0,0, was engaged in the private practice of radiology. 2. Before this action was initiated in i997, Defendant Malnar removed to Valparaiso, Indiana, where he resides and continues to practice his profession. 3, Plaintiffs counsel has noticed Dr. Malnar's deposition for August 22, 1997 in Carlisle, Pennsylvania, without clearing the date with Dr, Malnar or his counsel, or tender of Dr, Malnar's travel and lodging expenses for the trip to Carlisle from Indiana. See: Exhibit A hereto, 4. Prior to serving the aforesaid notice, Defendant's counsel had offered to make Dr, Malnar available for deposition at Midway Airport, near Chicago, a place readily accessible by same-day air travel from Harrisburg, which offer was refused, 5, Since receipt of the aforesaid deposition notice, Defendant Malnar's counsel has suggested the possibilities of taking Dr. Malnar's deposition by (I) letters rogatory; or (2) written interrogatories (Pa, R,C,P, 4004); or (3) telephone conference call; or (4) closed circuit TV, Plaintiffs counsel has not accepted these suggestions, 6 Defendant Malnar is domiciled outside the jurisdiction of this Court and is not subject to a subpoena or other process which could be issued by this Court to require his personal appearance in Cumberland County: Grumme v. Vuxton, I D, & C.3d 456 (1976), 7, None of the cases cited by Plaintiff to Defendant as authority for issuance of the deposition notice are apposite or controlling in the instant factual situation, 8. To the contrary, there is substantial Pennsylvania Common Pleas Court authority for the proposition that the attendance of an out-of-state party cannot be ordered except on the condition that the adverse party tender the travel and lodging expenses which would be incurred by the deponent's attendance: Berg v. Presbvterian Univ, Hosoital, 128 Pitts, L. V.9 (Alleg, Co, 1978); Davis v, Pennzoil, 38 D. & C,2d 289 (Alleg, Co. 1965); Jamison v. Saul, 2 D, & C,3d 495 (Lehigh Co, 1977), 2 ~<b ri'1 ~ Ilt1 <i) .1. ~ ~ :- a; ;:- lll~=' C\"o H:'..- or" ( , 0''- W.J', -' G.: I! I ,~ I- I, l.j <"I c: i~ ~ ~ ~';f0 --. <'- ,. ;:J ..-- o. If] . I ~- :!~(~ .:::..:.- 0' S u '- cr, ~~ ::J _t r- CJ" ., n lJ. 'l 13 -J g:.. ~ ~ ~ . J - ~ 3 <.3 . I LAW QfflCU MILLER AND MILLER 105 LOCU5T STREET P.O. BOX 709 HARRISBURG, PA 1710B.0709 Tllephonel7l7) 232.Q7&O fu 1717) 232.1302 MILLER and MILLER G. Thomlls Miller, E!li1llllre IDENTIFICATION NO. 07219 Thomas R. Miller, E"I"lr. IIlENTIFICATION NO. 49801 105 Loeml Slr,,1 1'.0. nox 709 lIarrlsburg, PA 17108-0709 Telephone: (717) 232-0750 AIlOrlU!)"s fur UcfclIllant (;arf)' II. MalllOlr, n.o. CYNTHIA ANNE KAYLOR. Plaintiff IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY. PENNSYLVANIA v. NO. 1997 - 3302 CI'IIL GARRY B. MALNAR. D.O., SMITH RADIOLOGY. INC., Defendants CIVIL ACTION - LAW JURY TRIAL DEMANDED PRAECIPE FOR APPEARANCE ON BEHALF OF DEFENDANT GARRY B. MALNAR, D.O. Please enter our appearance for Garry B. Malnar. D.O.. one of the Defendants in the .ihovc action. MILLER and MILLER C=?' By: - . ho sMilieI' LD. #07219 P.O. Box 709. 105 Locust 51. Harrisburg, P A 17108-0709 (717) 232-0750 July 2, 1997 Attorneys for Defendant. Garry B. Malnar, D,O. " (j ',-- . .- l'; I 11'(' (', . f,'( ,.' 9;:- ['. .?i. f:~" ' ('"': ,-, c: (c r"-. I r--. G' .~, ,_I . LAW OFFICES MILLER AND MILLER 105 LOCUST STREET P.O. BDX 70&. ~ HARRISBURG, PA 171 OB.0709 Tlllphon117171232.0750 Fu 17171232.1302 .. '" MILLER and MILLER G. Thomas Miller, Esquire IDENTIFICATION NO. 07219 Thomas R. Miller, Esquire IDENTIFICATION NO. 49801 105 Lo<usl Sir,,' P.O. Box 709 narrlsburg, PA 17108-0709 Telephone: (717) 232-0750 AUorneys ror Uerendanl Smith Radiology, Ine, CYNTHIA ANNE KAYLOR, Plaintiff IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA v. NO. 1997 - 3302 CIVIL GARRY B. MALNAR, D.O" SMITH RADIOLOGY, INC" Defendants CIVIL ACTION - LAW JURY TRIAL DEMANDED PRAECIPE FOR APPEARANCE ON BEHALF OF DEFENDANT SMITH RADIOLOGY, INC. Please enter our appearance for Smith Radiology, Inc., one of the Defendants in the above action. MILLER and MILLER ~----- /'// By:.'..~., "'- C: G4'h mas J.D. #07219 P.O. Box 709, 105 Locust SI. Harrisburg, P A 17108-0709 (717) 232-0750 July 1, 1997 Auorneys for Smith Radiology, Inc. ..... U) ;.-- r... L.-, , . c' '- Ie r.~ IJJ! I)' ~ i -: ~ ...:: J II. 'i'i '~"'J ., :--! (.1' I , I'" . il; i..i..: - t.:.:... .., r- :-j () cr ,.J I ~ ~ 1 ~ I .; LAW omen MILLER AND MILLER 113 LOCUST STREET P.O. BOX 709 HARRISBURG, PA 17108.0709 T,I,phon, 17171 232.07&0 F..17171 232.1302 ~. MII.I.ER and MIU.tR G Thomas MIlln. Eiquilc II>ENTI."'CAIION NO 07219 Thomas R. Miller. Esquire IIlENTIFlCA liON NO_ 491101 1131.o(u"SII<<' pn 110, 109 lIarriwutll.I'A 17108.0i09 hkpllOnc: (117) 2J2.07S0 Allumc)1 for lkfnu.lanl Smith fUdiolon. Inc CYNTHIA ANNE KAYLOR, Plaintiff IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA v. NO. 1997 - 3302 CIVIL GARRY B. MALNAR, D.O., SMITH RADIOLOGY, INC., Defendants CIVIL ACTION - LAW JURY TRIAL DEMANDED NOTICE TO PLEAD To: Cynthia Anne Kaylor, Plaintiff and Archie V. Diveglia, Esquire, her allorney You are hereby notified to file a written response to the enclosed New Maller within twenty (20) days of service upon you or a default judgment may be entered against you. ~~and M(1JER BY'; . I,A~ t2- G. Thomas Miller J.D. #07219 P.O. Box 709 II 3 Locust Street Harrisburg, P A 17108-0709 (717) 232-0750 Allorneys for Defendants DATE: April 24, 1998 10. It is specifically denied that Dr. Malnar's findings were incorrect. To the contrary, his interpretation was made in the best exercise of his professional judgment and was consistent with this experience and the radiologic and diagnostic evidence available to him. II. Except for the excerpls from Dr. Malnar's report regarding the May 8, 1996 mammogram, which speaks for itself, the allegations of this paragraph are denied generally pursuanlto Pa. R.C.P. 1029(e). 12. Denied generally pursuant to Pa. R.C.P. 1029(e). 13. Admitted. 14.-24. Denied generally pursuant to Pa. RC.P. 1029(e). 25. To the extent the allegations of this paragraph are alleged conclusions of law no response is required. The balance of this paragraph is denied generally pursuant to Pa. RC.P. 1029(e). 26.-30. Denied generally pursuanlto Pa. RC.P. 1029(e). COUNT I 31. Defendants' answers to paragraphs 1 through 30 are incorporated herein by reference. 32. The allegations of this paragraph are conclusions of law as 10 which no response is required. WHEREFORE, Defendant Garry B. Malnar, D.O., demands Plaintiff's Complaint be dismissed with prejudice. 2 COUNT II 33. Defendants' answer to paragraphs I through 32 are incorporated herein by reference. 34. The allegations of this paragraph are conclusions of law as to which no response is required. WHEREFORE, Defendant Smith Radiology demands Plaintiff's Complaint be dismissed with prejudice. NEW MA TIER 35. 11 is possible that evidence hereafter established by discovery and offered at1rial may prove that Plaintiff Cynthia Anne Kaylor was either contributorily or comparatively negligen1, thus barring or substantially diminishing her claim, and Answering Defendants therefore plead contributory and comparative negligence as affirmative defenses. 36. It is also possible that evidence hereafter established by discovery and offered at trial may prove that Plaintiff Cynthia Anne Kaylor knowingly and voluntarily assumed the risk of her injuries, thus barring her claim under 1he doctrine of assumption of risk. 37. Any of the alleged negligence on the part of Answering Defendants, which is nevertheless denied, was n01 a substantial factor in causing any alleged harm or injury to Plaintiff Cynthia Anne Kaylor, or increasing the risk of harm or injury to said Plaintiff. 3 38. The acts or omissions of others, and not Defendants, may have constituted intervening and/or superseding causes of the injuries and damages alleged by Plaintiff, thus barring any claim against Defendants. 39. The injuries and damages allegedly sustained by Plaintiff may have been the result of, or caused by, pre-existing medical conditions and causes beyond the control of Defendants, thus relieving Defendants from any liability to Plaintiff. 40. At all limes material hereto, Defendant Garry B. Malnar exercised his professional judgment in the care and treaunent of Plaintiff Cynthia Anne Kaylor and further, acted at all times in accordance with what he reasonably believed to be the appropriate standards of radiological diagnosis. 41. Defendant Smith Radiology, Inc., did not render any medical or professional care or treaunent to Plaintiff Cynthia Anne Kaylor and is not licensed to do so. As a corporate entity with no professional license, Defendant Smith Radiology, Inc., lack authority to direct the professional actions of Defendant Malnar nor did it at any material time do so, nor attempt to do so. 42. If Plaintiff Cynthia Anne Kaylor was injured as a result of negligent medical care and treatment, which is nevenheless denied, then such care and treatment was afforded Plaintiff by persons or entities olher than Defendants, 43. Any acts or omissions of Defendants alleged to constitute negligence were not substantial contributing factors to the injuries and damages alleged in Plaintiffs Complaint. 4 '- (~ /T; ~ ~ N .. - OJ I C.: J-;' C):-- ,,, ; ~ .~ ;:;: , ... .:.... ~ ::j C).... , '. rx. :V.! fi:)' ("-..J j~h C".': '; ~ ,j E.&:l;': I.' -, Cl: ;:... ....: ~ .' Ct. en '~ C) 0' 0 'Z~:;~~_~~.-:.-,_:~::~_d -:;::~:~~.- .~-~ -_ :~ _,..~,,: r ~ ,_~".,-:;.~~ :" _~l~~;;,~;~:--:-~-~-~ ~:t"~~'''''<~::-~W-~~ '" . ,~~,~,~:,,~.-"'''~'-~;'::':~~::::~-:-;~:~f-~: q;~ ami ~ .!lJ. (J. PHK)NE:(l17)~ FAX: (717)231.4083 ATTOANEYS AT lJ,W . - '1C11.OOJST 8'TF&T HNRSa..R:l. Pefl9"t1.VNM ''MOl - '~,~,.. ..;-,,' CYNTHIA ANNE KAYLOR, Plaintiff IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA v, NO. 1997. 3302 CIVIL CIVIL ACTION - LAW GARRY 8, MALNAR, D,O., SMITH RADIOLOGY, INC. Defendants JURY TRIAL DEMANDED AFFIDAVIT OF SERVICE I, Archie '1,/. Diveglia, Esquire, hereby verify that on June 25, 1997, I selVed upon the above named Defendant, Garry B. Malnar, D.O., a copy of the Complaint in the above captioned action via certified mail, certified mail number Z 070 028 850, a copy of the return receipt is attached hereto. Re5pectfully Submitted, Dated: 1- I-?1 . By: Archie iveglia, Esqu re Attorney J.D. #17140 119 Locust Street Harrisburg, PA 17101 (717) 236-5985 Attorney for PlainIiff ~-:. --- ,~. .. (",. II: , I" c-: (. )1 t I~ \ ~. l.. t " , , ,,' (~ l ' l~J' I ::-"'1 LL. . :':_J j.. -', I' r- " 0 0' U '1 ~ E cu ~ ~ ~ I ct I ., ~", -, , - (jJ~ami~ ,[Arl. - ' JUN 0 I) 1998tP ATT'ClRNEYll AT LAW - . "fa ..oaJST 8TRET tWVISEII.m, P9HM.VNM 17101 PHONE:-(717)~ FAX: (717)231.<40113 - OR-I Go / AlIli... CYNTHIA A. KAYLOR, Plaintiff v. IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW GARRY B, MALNAR, D.O., SMITH RADIOLOGY, INC., Defendants NO, 3302 CIVIL: 1997 JURY TRIAL DEMANDED PRE-TRIAL MEMORANDUM OF PLAINTIFF I. STATEMENT AS TO LIABILITY This is a failure to diagnose breast cancer case. Defendants by prior Order are precluded from presenting expert testimony, Therefore, there are not issues as to liability. II. STATEMENT AS TO DAMAGES As a result of the delay in diagnosis, Plaintiff incurred a modified radical mastectomy as opposed to a lumpectomy. In addition, Plaintiffs cancer had spread to all lymph nodes and thus she had to incur a very toxic "high dose" chemotherapy. Nonetheless, she is at a significantly greater risk for recurrence than if she had been timely diagnosed. There is no claim for medical expenses. Wage loss for 1997 was $40,000, plus the loss of client development. Plaintiff is now restricted from trial work which she previously did exclusively. Her future loss of earnings is calculated to be approximately $3,000,000. III. ISSUES A. LIAB ILITY: There are no issues in that defendants are precluded from offering expert testimony and at deposi1ions indicated neither radiologist would testilY as an expert. i. ~\ . () ~ ~ ~ ~ ~ ~ ~ l \ ~ \ i , / I - . .. .~ - 'i <::l ~I . ' 1:-..' <::t- v, IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW CYNTHIA A. KAYLOR, Plaintiff GARRY B. MALNAR, D.O., SMITH RADIOLOGY, INC" Defendants 97-3302 CIVIL TERM ORDER OF COURT AND NOW, this 17th day of June, 1998, following a pre-trial conference in which Plaintiff was represented by Archie Diveglia, Esquire, defendants were represented by G. Thomas Miller, Esquire, and the Medical Professional Liability catastrophe Loss Fund (CAT Fund) was present in the person of Michael F. Foerster, Esquire, and pursuant to an agreement of Plaintiff's and Defendants' counsel, this matter is stricken from the trial list because the prospect of a settlement seems likely. This order is entered without prejudice to the right of counsel to re-list the case for trial during the September 1998 term of court in the event that the settlement is not consummated. Both counsel have requested that the case be given priority during the September trial term if it is relisted. By the Court, 'j' o'. :/ C 'L;....1 ,~ J. \-Iesley Ole /) , ' / / ,. ",/ _ f', .J Jr,,/jJ, ,. -- c:) ~~ ~.: :'~ , 1.'.1 () , i' \:- .:.. C~ , ., r~ ; ('.; 11.. p' , . ~, iL ; . u. t,.. ., ., (,) ..... i,j 132 CYNTHIA A. KAYLOR, Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW v. GARRY B, MALNAR, 0.0" SMITH RADIOLOGY, INC., Defendants 97-3302 CIVIL TERM PRE-TRIAL CONFERENCE A pre-trial conference was held in the chambers of Judge Oler on Wednesday, June 17, 1998. Present on behalf of the Plaintiff was Archie V. Diveglia, Esquire. Present on behalf of the Defendants was G. Thomas Miller, Esquire. The Medical Professional Liability Catastrophe Loss Fund (CAT Fund) was also present in the person of Michael T. Foerster, Esquire. This is a professional negligence action for medical malpractice arising out of an alleged failure to timely diagnose Plaintiff's breast cancer, This will be a jury trial in which each side will have four peremptory challenges for a total of eight, The duration of trial is estimated to be four days. Issues which remain outstanding at this time are whether Plaintiff's should be permitted to testify on behalf of the Plaintiff, and whether the Order of Court presently existing which precludes expert testimony on behalf of Defendants should rpmain in full force and effect. ~. '. c, " (.~: ~_:-. IJJC (),' tl_ " , '-..J: L.\' :.;: LL I. IL ,j P: ", C'~ (''; U' :J U ,