The URL can be used to link to this page

Home My WebLink About00-08468 SEP-2S-04 02:29PM FROM-SCHMIDT,RONCA & KRAMER PC 717 m 6467 T-258 P.002/002 F-291 !}_c ~~~ i ~. 209 State Street Harrisburg. F'ennsyIVi:Uli~ 17101 717.232.6300 FAX 717.232.0407 www.srklaw.com M 1528 Walnut Street, 3rd FloOjff Ptlil..IJ..lphla, PA 19102 ~, 215.790.7303 VOICE ~. 21r;.~4G.0942 rAX ,l- It, .(f-O-"'";'-~-'~''''-''''''' .,,': LAW . ,- Scl:iiillat" Rc.uca & Kramer PC fNJURY LAW'VI!~'::~ '- s~. .'b r-" 2004 ',,"_-=,~~_,;-em eX" ~k), PJ.ea.se respo.acl. to JlarrislnU'g office, iI J 1'_." VIA FACSIMll..E - (717) 240-6462 Honorable J'. Wesley Oler, Jr. Cumberland. County Courthouse One Courtho1J.se Square Carlisle, PA 17013 . ~: '''~~-- ~;:-. RE: Bahry v. Cincotta, M.D., et al. Docke,t No. 00-8468 Dear Judge Oler: We received a telephone call from your chambers this afremoon to schedUle a h""o.ring in connection with the Petition for Approval of Compromised Settlement in the above-~ferenced matter. Your chambers had proposed October 28, 2004, begin~g at 3:00 p.m. for the hearing. This settlement involves ,the MCARE Fund. The Fund is requiring a copy of the court order opproving se#!ement no later than October 1, 2004 i" orner to make payment prior to JtP1uary, 2006. Attached is a copy of the August 23, 2004 correspondence fr~m the MCARE Fund. The I:lt::Ltltlm::nL wa:;; reached based on the understanc$.ng that it would be complete and funds released in January, 2CI()5. The delay' may cause the settlement to fall apart. I am requesting a heann.g on this matter as soon as possible so that we may meet the required October 1, 2004 approval deadlint:: WiU tlvull.l any potential problems with the settleri,lent of this case. Ii !-: I , l; :r" Thank you fcor your consideration. I Very truly yours, SCHMIDT, RONCA &; ~ER, P.C. / /. .' /. ~ .' ..~._... / r:______ I erard C. :Kramer Attorney at l.aw , " GCKlbes Attachment . c: Sarah w: Arosell, .1$6quire (via facsimile) " ::i' "''- , SEP-23-04 02:29PM FROM-SCHMiDT,RONCA & KRAMER PC TIT m 6467 T-258 P.001/002 F-291 Schmidt, Ronca & Kramer PC 209 State Street Harrisburg, Pennsylvania 17101 (717) 232-6300 Fax (717) 232-6467 (' I \> Attorneys and Counselors at Law Fax Cover Sheet To: Honorable J, .Wes1ey Oler, Jr. . Sarah W. Arosell, Esquire Fax No.: If {7171 240-6062 (717) 237-7105 From: I ,: , Gerard C. Knimer, Esquire Date: September 23, 2004 Re: : l3ahry v. Cincotta, M.D., et aL , I Number of pages: 1 .: (not including cover sheet) ddi' lei, A tiona ,-omments: " . Original iJi~ will -----': will not follow in the mail. i. i ',' If you exp~I~Cncc a problem with this transmission, p,lease contact Beth at the telepho:o.e Dumber liSted above. I. . :. The infonnat:\o:;lieontained in:tIiis facsimile message is intended only for the personal and confidential Use :of the designated recipients nMled above. This message may be an attorney / clieiit communication, and as such is privileged and confidential. If the reader of this message is n6tthe intended recipient, you are hereby notified that you have received this document in ericr, and that any.review, dissemination, distribution, or copying of this message is strictly prohi:1;,ited. If you ~ve this communication in elTOr, plea:se notify Beth :;I,t (717) 232-6300 and 'return the original message to us by mail. .,' "-'.- " --'.,c ";:"'~T _'.,.,c.,o ,,",' _"__-~,__-" ""'"' _"_,c''',-,,,_,_ , "''''-~~-; MICHAEL BAHRY, INDIVIDUALLY AND AS THE ADMINISTRATOR OF THE ESTATE OF LINDA: F. BAHRY, Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYL VANIA v. CIVIL ACTION - LAW JANET F. CINCOTTA, M.D. and SHEPERDSTOWN F AMIL Y PRACTICE, P.C., Defendants NO. 00-8468 CIVIL TERM ORDER OF COURT AND NOW, this 24th day of September, 2004, upon consideration of Plaintiffs Petition for Approval of Compromised Settlement, a hearing is scheduled for Wednesday, September 29, 2004, at 2:15 p.m., in Courtroom No.1, Cumberland County Courthouse, Carlisle, Pennsylvania. BY THE COURT, Gerard C. Kramer, Esq. James R. Ronca, Esq. Todd D. Getgen, Esq. 209 State Street Harrisburg, PA 17101 Attorneys for Petitioner ii ~ f...l.., :1 " t~.,. . ~l i~ " ,-,-,-- ," , 'C~ ,. -~ - F1LED--OfFiCE OF THE PRC)THO~IOTpnv 2004 SEP 24 tiN 10: 24 CUM2tii.pliJ COUNTY PENriSYLVANiA __1I"_".,.,.~ ,'~_01"_,!>-"A!~ljlI~'~5.- ~~~1r~_~~ ,,~'m!'~~~~'~_. .~'^__ rm ." ''',,> Sarah W. Arosell, Esq. 305 North Front Street 6th Floor Harrisburg, PA 17108 Attorney for Defendants Kristin S. Twilley Attorney Examiner Medical Care Availability and Reduction of Error Fund 30 N. Third Street 8th Floor Harrisburg, P A 17101 ~ .~ ~ :rc " ,"~ 9. ,t'l<Ol( q... '-C;:-~h-,d;;"",'"'--"~~"=-L'''_,,~>_ ,'.. ..,k-''', ~ '~~#L f ... '. , 1,- ". I ',. . ~ "" nr$iili--. C') ~EP 16 200'? MICHAEL BARRY, INDIVIDUALLY AND AS THE ADMINISTRATOR OF THE ESTATE OF LINDA F. BARRY, : IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff : NO. 00- 8468 Civil Term v. CIVIL ACTION - LAW JANET F. CINCOTTA, M.D. and SHEPERDSTOWN FAMILY PRACTICE, P.C. Defendants : JURY TRIAL DEMANDED ORDER AND NOW, this day of ,2004, after review of the within Petition, it is hereby ORDERED and DECREED as follows: (a) The proposed compromise and settlement which involves the Estate of Linda Bahry in wrongful death and survival actions for the amount of $600,000 payable by the Defendants and their insurers and the MCARE Fund is approved, (b) Michael Bahry, Administrator ofthe Estate of Linda Bahry is given leave to sign the Release which is attached to the Petition as Exhibit "A". (c) The sums will be apportioned between wrongful death and survival as follows: Payable to the Estate of Linda Bahry (Survival Action) $ 200,000.00 Payable the Beneficiaries ofthe Wrongful Death Action $ 400,000.00 (d) The Court [mds that the contingency fee arrangement allowing for a fee of a 1/3 contingency for work done to complete and present the foregoing Petition is reasonable, and it is hereby approved. " ~ >.. , . (e) The Court finds that the out-of-pocket expenses related to this litigation were reasonable and are, therefore, approved. (f) Defendants in the above-captioned action are discharged from any and all claims arising out of the above-captioned action. BY THE COURT: J, 2 '> " ~ . ~o!!"'d,i, . _ A " h' : ~1!;--' MICHAEL BARRY, INDIVIDUALLY AND AS THE ADMINISTRATOR OF THE ESTATE OF LINDA F. BARRY, : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff : NO. 00- 8468 Civil Term v. : CIVIL ACTION - LAW JANET F. CINCOTTA, M.D. and SHEPERDSTOWN FAMILY PRACTICE, P.c. Defendants : JURY TRIAL DEMANDED PETITION FOR APPROVAL OF COMPROMISED SETTLEMENT AND NOW, comes the Petitioner, MICHAEL BAHRY, Administrator of the Estate of LINDA BAHRY and respectfully requests the Court's approval of a compromised settlement of the above claim. 1. Linda Babry died on July 9, 2001. 2. Linda Babry is survived by her husband, the Petitioner, and two children from their marriage, Ryan Babry (DOB 10/30/1984) and Alexandra Babry (DOB 06/08/1987). These three survivors are the only wrongful death beneficiaries and the only beneficiaries of the Estate under the Pennsylvania Intestate Succession Statute. See 20 Pa.C.SA S 2102(3) for distribution. 3. It was alleged in this matter that Linda Babry's death was brought about by the negligence of the Defendants listed in the caption. 4. Although liability is not admitted by the Defendant, Plaintiff and Defendants have agreed to compronlise the wrongful death and survival claims for the total sum of $600,000. ",.'". -"", ". =,~', 5. The terms and conditions of the liability settlement are set forth in the Release which is to be executed by Plaintiff, a true and correct copy of which is attached to this Petition, marked as Exhibit A, and incorporated herein by reference. 6. At the time of her death, Linda Bahry was forty-five (45) years of age with a maximum reasonable life expectancy of36.2 years according to the 1990 Life Tables contained within the Pennsylvania Standard Jury Instructions. 8. Petitioner and the wrongful death beneficiaries request that the following sum offered in settlement be attributable to the wrongful death action: Amount of loss attributed to the loss of Companionship and support between Linda Bahry and Michael Bahry, her husband, for the remainder of her expected lifetime: $ 200,00.00 Amount of loss attributed to the loss of Companionship and support, tutelage, and guidance between Linda Bahry and Ryan Bahry, her son, for the remainder of her expected lifetime: $ 100,000.00 Amount of loss attributed to the loss of companionship and support, tutelage, and guidance between Linda Bahry and Alexandra Bahry, her daughter, for the remainder of her expected lifetime: Total = $ 100.000.00 $ 400,000.00 9. Petitioner and the Estate beneficiaries request that the remaining liability funds be attributed to the survival action to be paid to the Estate of Linda Bahry, who died intestate, as follows: $ 200,000.00 2 . ..l~l-' ~,~r_ 10. Both individually and acting as Administrator of the Estate of Linda Bahry, Michael Bahry entered into a Fee Agreement with Schmidt, Ronca, & Kramer, P.C., to provide legal services via a contingency fee agreement that provides for a one-third contingency fee plus litigation costs, The fees will be assessed proportionately. 11, Plaintiffs counsel advanced, on behalf of the Plaintiff, the sum of$ 14,680.93 as litigation costs, a summary of which is attached to this Petition as Exhibit B. Plaintiff believes and, therefore, avers that all of these expenses are reasonable and directly related to the successful conclusion of this litigation. All costs should be divided proportionately. 12. The total sum of the two settlements shall be divided as follows: a. Survival action payable to the Estate $ 200,000.00 Attorneys' Fees $ 66,666.67 Proportionate Share of Costs $ 4.893.65 Survival payout: $ 128,439.68 b. Wrongful death action payable to the surviving spouse, Michael Bahry $ 200,000.00 Attorneys' Fees $ 66,666.67 Proportionate Share of Costs $ 4.893.64 $ 128,439.69 c. Wrongful death action payable to Ryan Bahry (son) $ 100,000.00 Attorneys' Fees $ 33,333.33 Proportionate Share of Costs $ 2.446.82 $ 64,219.85 3 , , " ,~.- l.- -j-, ~ J.>" ~ "'i . d. Wrongful death action payable to Alexandra Bahry Attorneys' Fees $ 100,000,00 $ 33,333.33 $ 2.446.82 $ 64,219.85 $ 600,000.00 Proportionate Share of Costs Total: 13. Plaintiff believes and, therefore, avers that the amount of the compromise settlement is appropriate and acceptable. 14. Plaintiffs counsel certifies to the Court that all defense counsel have received a copy ofthis Petition and proposed Order. 15. Plaintiffs counsel also has applied for and expects to receive approval from the Commonwealth of Pennsylvania's Department of Revenue as to the proposed distribution and apportionment of the amounts attributed to the Wrongful Death and Survival Actions. (See a copy of Plaintiffs letter requesting approval of wrongful death/survival distribution for tax purposes attached as Exhibit C). 16. The Petitioner and the Petitioner's children have received a copy of the Petition and have joined the Petition. (See the Joinders attached as Exhibit D). WHEREFORE, Plaintiff respectfully requests the Court to enter an Order doing the following: a. Approving the settlement distribution as suggested above under 20 Pa.C.S. S 3323 and the other appropriate statute or rule of court, apportioning the damages in this case in the following matter: 4 -~ . ","", ,," I '';~'< 1" ~ " ~Jl!V"'8 . Survival Action, payable to the Estate of Linda Bahry $ 200,000.00 Wrongful Death Action, payable to the beneficiaries as set forth within the foregoing Petition $ 400,000.00 b. Approving Plaintiff's attorney's fees in the amount of $ 200,000.00 along with expenses of $ 14,680.93 to be deducted proportionately from the amounts awarded and apportioned above. c, Approving the settlement set forth in the Release attached hereto and marked as Exhibit "A" and directing the Petitioner to execute the Release. d. Discharging the Defendants in the above-captioned action from any and all further claims arising out of the above-captioned action. Respectfully submitted, o 9/;1' /:2(jof SCHMIDT, RONCA, & KRA ER, P.C. '?' By ..-/~~ James R. Ronca ID#25631 Todd D. Getgen ID# 80719 209 State Street Harrisburg, PA 17101 (717) 232-6300 Attorneys for Petitioner 5 ':" ' ,-"cr,,_.' .., , " ,,< '.. .. '-, L.: ;;:';'~"'~,,;",:, ,"'~.". '- "':,:;" . FULL AND FINAL RELEASE 1. FOR AND IN CONSIDERA nON of the sum of $300,000 paid to the undersigned, receipt of which is hereby acknowledged; and for the promise of payment in the amount of $300,000 made by the Medical Care Availability and Reduction of Error Fund, the undersigned do fully release and discharge Janet F. Cincotta, M.D., Commerce and Industry Insurance Company, Sheperdstown Family Practice, P.C., the Medical Care Availability and Reduction of Error Fund, all other persons, governmental entities, associations and corporations whether or not named herein, their heirs, executors, administrators, attorneys, successors, assigns and insurers, and theirrespective agents, servants and employees (hereafterreferred to collectively as "Releasees"), from any or all causes of action, claims and demands of whatsoever kind on account of all known and unknown injuries, losses and damages allegedly sustained by the undersigned and, specifically, from any claims or joinders for sole liability, contribution, indemnity or otherwise as a result of, arising from, or in any way connected with all medical professional health care services rendered by the above named Health Care Providers, and on account of which Legal Action was instituted by the undersigned in the Court of Common Pleas of Cumberland, Co., P A, Docket No. 00-8468. All sums set forth herein constitute damages OIl account of physical injuries and sickness, within the meaning of Section 104(a)(2) of the Internal Revenue Code of 1986, as amended, The undersigned does understand, and agrees, that the acceptance of said sum is in full accord and satisfaction of a disputed claim and that the payment of said sum is not an admission of liability by any party named herein. 2. It is expressly understood and agreed that this release and settlement is intended to cover and does cover not only all now known injuries, losses and damages, but any further injuries, losses and damages which arise from, or are related to, the occurrence set forth in the Legal Action noted above. 3. The undersigned hereby agrees, on his/her/their behalf and on behalf of my/our heirs, executors, successors and/or assigns, to satisfy any and all valid liens that have been asserted and/or which could be or may be asserted for reimbursement of any medical benefits or other benefits provided to the undersigned by a third party as a result of the injuries claimed in the Legal Action referenced herein, Additionally, the undersigned hereby agrees, on his/her/their behalf and on behalf of his/her/their heirs, executors, successors and/or assigns, to iodemnify and save forever harmless the Releasees named in this document from and against any and all claims, demands or actions, kIlown or unknown, made against the Releasees by any person or entity on account of, or in any manner related to or arising from the Legal Action noted above. 4. In the event court approval is required for the settlement, compromise or resolution of this claim, this settlement is conditioned upon plaintiff promptly undertaking any and all necessary action to obtain same. It is further understood and agreed that if Court approval is required for any aspect of the settlement of this claim that, notwithstanding the provisions of Pac R.C.P. 229.1, defendant shall not be obligated to pay the settlement funds for a period of twenty (20) days from receipt of this executed Release or Court Order approving settlement, whichever is later, and, as further condition and agreement upon which this settlement is based, plaintiff agrees to waive any and all provisions of Pac R.C.P, 229.1 with respect to entitlement of interest. 5. If this settlement is ever determined by any court to be without effect because some necessary court approval was not obtained, or if the released parties are subjected to further legal action or claim which could not have been instituted or presented had proper court approval been obtained by plaintiff, then plaintiff will indemnify the released parties for any future loss, cost, or expense, including but not limited to, reasonable attorney's fees for defending, litigating and settling any such claims or action, and for any judgment resulting from any such claim or action. 6. It is further understood and agreed that this is the complete release agreement, andthat there are no written or oral understandings or agreements, directly or indirectly, connected with this release and settlement, that are not incorporated herein. This agreement shall be binding upon and inure to the successors, assigns, heirs, executors, administrators, and legal representatives of the respective parties hereto. 7. It is fully understood and agreed that the amount promised to be paid by the Medical Care Availability and Reduction of Error Fund shall not become payable until December 30, 2004. 8. It is further understood and agreed and made part hereof, that the undersigned, their family and representatives and their attorney(s) shall not comment, either directly or indirectly, on any aspect of this case or settlement to any member of the news media, or in any way publicize or cause to be publicized in any news or communications media, including but not limited to newspapers, magazines, journals, radio, television, on-line computer systems and law-related publications, the facts ofthis case, the existence oftrus settlement and the terms and conditions of this settlement. If the undersigned, their family, representatives and/or attorney(s) file any court document(s) identifying the terms and/or conditions of this settlement, they ," ,. 1',." < ,'-'-- '"'. '<. J~.." - __,,~. _,'; _, --;;,,' "-',,,~-, _,'J:,,';;'_';.'," [~i' '__', ~ ~ """-; shall request that the court immediately seal such document(s) and take whatever reasonable steps are necessary to seek to assure that such document(s) are not accessible or disclosed to anyone. This paragraph is intended to become part of the consideration for settlement of this claim. 9. THE UNDERSIGNED HEREBY DECLARES that the terms of this settlement have been completely read; and that they have discussed the terms of this settlement with legal counsel of their choice; and said terms are fully understood and voluntarily accepted for the purpose of making a full and final compromise adjustment and settlement of any and all claims on account of the injuries and damages above-mentioned, and for the express purpose of precluding forever any further or additional suits arising out of the aforesaid claims, IN WITNESS WHEREOF, I have hereunto set my hand and seal this day of 20_ (SEAL) Michael Bahry, Individually and as Administrator of the Estate of Linda F. Bahry, Deceased Social Security Number SWORN to and subscribed before me this Day of 20_ NOTARY PUBLIC 'tl .. lQ e " --,"'--' ,.. ,-~," ''C-'.-," .--,,,'.', c3 ... ... 1'= 0 ~ ~ OJ ~ '" '" N :c< 0 0 m <J) "' '" or '" Ii>' r 5' a. '" :n ~ ... en ., o '" '" ... en ., o to '" ~ ... en ., o '" '" ~ ... en CD o to w - ~- '" .. ~000nn000000000000Q00000000QOQ5~~ ~ffiffiffiffiiliffiffi~ffiffiffiffi~ffiffiffiffi~ffiffiffi~~ffiffiffi~ffi~~o~ ro n n n n non co 0 0 n n n n non co n n n ro co n nOm n co o' m m ~~~^^~^^~~^^^^^^^^@^^^@~^^^@^@row~ ~ - - -- - - ~ 5" 5" a- 5-6- 5- 6" i 5: ~ c: cc: C C I , :J 3 33 3 3 -. ~ ~ ~ ~~ ~ ~ a .. :n ~M~~~~~~~w~m~oo~oooo~~~~mm~~~~N~~~ ~~~~~eQ~~~~rnNNNNN~~~wN~NNNm~~Qe NN~~~~~ww~ooNoomrn~~~~oNmNIDN~NNNWW OO~~~~NNNNNONNNNNNNNONONONON~~~ OONNNNOOaOOQQOOOOOOOOOOOOOOQNNN ~~aooooooOOWOOOOOOOOWOWOWOWOOOO OOQQWWWWW wwwwwwww W W w waoo WWWW NNN m~~~~~~I~~omo~~m~mro~wzrnrooo~~rn<rnrn ~nnnoo=cwn~-cnn-~ro~rowro~wro~=rorowro ~~~~~~~~~~roa3~~aS.-~-ro~~~<~~~~~~ -< 3 3333 =r::r..:< 3;::!..CD 0-3 3 CD~ (Do..< :5"- -<-< ~ ::J::J-< =-<-< . a:o.:c:o:a:D.l mw a:Ocnro a:crcnS:oow t::wctl~. . .c.~~w _.w w mrr~~r- ~rZ~~rr~~~~3~oW~ <<~~WW ~~~~~~~~g~~~a~~~~[g~b~rom;Efim~5ro m:::l:::l:::l:::l:::l ~c6'ro:::l :raO::!:::I acr()rofii~ o..fDro; ~ ~ roN roro cgg22g ~cg~go@2~~~c~~~CCO C~CC :::I~~~~_ ~:::I_ ~c__~ ~:::I,. ro:::l:::l~ :::Im:::l:::l ~~~w~~~ ~~ :::I~~ o..~~o..o..o.. 0..:::10..0.. D.lA^^^^ ~oo^ ~~^^~ ~OOcogOOOO$ oo~rooo ~@@@~@ ~~~ ~~@@~ ~~~i-~~~ ~o~~ :. 3333 3 ~:. 3 ro a 3 3 ro Cil:.:::I;:+ r:. :. ro :.0 :. :. ~~~~~~ Z~~ ~~~~~ ~~m~~~~~ ~a~~ o.-..w roo. o.w oen,rooo OCOO ffi~~~~~ [ffi~ 5~~ ffi ;ffim ffismffi ~00000 ~W0 w00 ~ g~w ~~~~ ro -< en . "0 u'i E :r g 0 or 0 S' ~ F e '" " ()~~O~ocroo~5"ro~a~ro~s~zmo00~00~~ .g g g.g g.g g,m.g g $.~cn.g g ~~;ao.~~ fji'.g.g g,.g.g roO ~oror~~Wro~worX-<>Wg~-<NroOroQ~~CD~~~~ ~o~m~~ro:::len~~a~~~oo~~~~g~~~oo53 grow CD ro;a CDO?~ ro?~~m-ro~ 5~~:::I5. or .~N ~~~ NN~X~~ro ::l~~ro, ~ ~~ ,00 oooocr~ctl 0 ~roro0ro ro 8~ Te ee~m~ ~ m~o~~ ':::1 'I\) Nil .9..9. Ul ro x ltl m fir ~ ::l. ro N N::T 00 00 - 'tJ 2"O'O~ CD co wo Ocn ro -.mroen "0 e ffig arg;:!. @ I.Jl ~ .9..l:>. 0 -. -. ~ g 00 (5:9 ~ ~ m ~~ C/)_ ~ );>5 ~ ~ Z x OJ Q g ~ E '" c e ro "' ~ ~ ~ '" "enOl w..... W UlO'l co (0,0 ~ ~W~NN~~~NN~~ON~~~N~~~8~N~~~O~~~ ID ~~~o~~mbm~O~~~~IDb~~~oO~~OIDIDOboo W Ul WOONOUl UlO<OOOOooo~ 0 c,..lc.oenoo 0 00 UlUlO'lONW -'" ~~......~~.......-"......~............~......................~.................-'"~.....~~...... ~ ~~~W~~~WNN~~NNNNNN~NN"""'OOOWc.owwoow m m~~~~~~~~~~~~~~Ol~~~oo~~~~~~ID~IDO ~ g: ~~g: ~ ~tD~Rn~:~:1~ :-;~~ ~~g~tffi ffi?1 ~~rn~b; ~g: iDe m~ ON~ 0 mm mou,:t:..~~ ~ ~oo(,:,(o:t:..i-v ~t\J lnID<OOOO 0 0 w W~~Ul~WW~~W.l:>.O'lm~O'lm~~~W~~~~~~N~"""~W , OJ ro lQ 5" ~ 5' lQ OJ .. ill ~ n e )> 0 !-? n '" ~ n <3 '" ~ ~ c )> !!!. 0 ;; ... '" '" "' ;;. ~ '0 ro c '" l> en 0 c en <l C1 0 ro l: ::r z " CJ) 3 ;; .... c:: ro 0 ;t:: 3 0.... l1l ;;0 -I .... 0 01 0 ;j :J 0 III "0 III ., <> l1l ll<> ~ ::l o' ^ :J o:J " III III III 3 III C1> ::l 0" 0 '1J l1l 0 ;; ro ;; 0 ~ o c ~ ~ OJ " or ~ n ro . -"",,- '.'.--" -, -- ,,-~. ~~ ...--------' Y' 209 State Street Harrisburg, Pennsylvania 17101 717.232.6300 FAX 717.232.6467 www.srklaw.com 1528 Walnut Street, 3rd Floor Phiiadelphia, PA 19102 2i5.790.7303 VOiCE 215.546,0942 FAX ,;~~hnti~t;Ronca & Kramer PC ,';INJURyLAWYERS September 7,2004 Please respond to Harrisburg office. . Mr. J. Paul Dibert Bureau of Individual Taxes Department 280601 Harrisburg, PA 17128-0601 RE: Estate of Linda Bahry Dear Mr. Dibert: I am enclosing with this letter a copy of a Petition for Approval of Settlement and all exhibits for a wrongful deathl survival action. The settlement is for survivor and wrongful death claims. There is an underlying medical malpractice action filed by Complaint in Cumberland County, Bahrv v. Cincotta. M.D., et al., No. 00-8468. There are currently offers of $300,000 in primary coverage and $300,000 in MCARE coverage, for a total settlement of $600,000. I am requesting approval of a split between the wrongful death and survival actions of 113 survival ($200,000) and 2/3 wrongful death ($400,000). There have been no prior settlements with the Defendants. I would appreciate it if your department would review the Petition as soon as possible. Please feel free to contact me or my associate, Todd Getgen, if there are questions concerning the Petition. I intend to present this matter to the Cumberland County Court of Common Pleas with the expectation of receipt of your approval. Thank you for your consideration. Very truly yours, SCHlVl,DT, RONCA, & KRAMER, P.C. / L- ,/ }' j .. Vi . J~inds,R. Ronca / I / AttjJrney at Law I / 1,/ '......... Enclosure .;- "'-' _~," . r _1 To" _' < "'''' ~> '''''1\'",);., . . JOINDER I, MICHAEL BARRY, hereby aver that I have read the foregoing Petition and understand, agree, and approve the contents thereof. 7 "-'~~.. , . JOINDER I, MICHAEL BARRY, hereby aver that I have read the foregoing Petition and understand, agree, and approve the contents thereof. ~ ~ Administrator of the state of Linda Bahry 6 '._~'" _'_0-",_ ~ "V ' ->' , , " '"' -~- -" , 09/14/2004 TUE 10:28 FAX 17177304228 Select Medical Corp, ~ , JOINDER I, RYAN BARRY, hereby aver that I have read the foregoing Petition and understand, agree, and approve the contents thereof. R~BAHR~ Individually 8 I, ,-', '-.",. ~ ~"'u;L-, ~ 003/00 " . ,- ". ".1_., ",",".0> ~- &9/14/2004 TUE 10:28 FAX 17177304228 Select Medical Corp, ~ 002100 ~ JOINDER I, ALEXANDRA BAHRY, hereby aver that I have read the foregoing Petition and understand, agree, and approve the contents thereof. ALEXANDRA BARRY, a minor, Individually 9 ~ I j '';'''''''' .'~'\'< " ii' ~ , CERTIFICATE OF SERVICE AND NOW, I, Todd D. Getgen, Attorney for Plaintiffs, hereby certify that I have served a tIue and correct copy of the foregoing by depositing a copy of the same in the United States Mail, postage prepaid, at Harrisburg, Pennsylvania, addressed to: Sarah W. Arosell, Esquire Thomas, Thomas & Hafer, LLP 305 North Front Street, 6th Floor Harrisburg, PA 17108 Kristin S. Twilley Attorney Examiner Medical Care Availability and Reduction of Error Fund 30 N. Third Street, 8th Floor Harrisburg,PA 17101 ~.z:2 Dated: 9/1 q! () Lf- '-h;_~-:.>, ---.~" "~_,j\'Jij'i\'Ol!";:!f;jI~~'" ,'''':.h,u;'''- =--_ ~" J~___ ~ ""=~ -,~~ ---""~"',' .",k>"'-t.~!:l!~.~~.l!tJ. -,- ~-~- '_-<"=~"<_' .,__ _~ ~,~=,. ~,",__ '. ,_,'>C'_ " iJl. JL 'o.b"""""", -" .. O~ =~ ",..' .. --~ ., "'- '" " -, Cl '" 0 C:J ~:-; t:::J -n ",,"' c-<",;: -I ITi ~11 "D ' ,- ~-nm (,' if, ~-f<a '-',,1, v -,~,i ~~~ (,,) ----t >- a :0 \D '-< " 09/28/2004 02:41 717-783-3467 INHERITANCE TAX PAGE 01/02 , .. , COMMONWEALTH OF PENNSYLVANIA DEPARTMENT OF REVENUE INHERITANCE TAX DIVISION HARRIS'SURG, PA 17128-0601 FAX COVER SHEET DATE: September 28, 2004 2:39 PM TO: James Ronca PHONE: 232-6300 FAX # 232-6467 FROM: J. Paul Dibert PHONE: 717-783-0972 FAX: 717772-0412 RE: Estate of HARD COpy TO FOLLOW: tEl YES o NO NUMBER OF PAGES INCLUDING COVER SHEET: 2 Message THIS MESSAGE IS INTENDED ONLY FOR THE USE OF THE INDIVIDUAL OR ENTITY TO WHICH IT IS ADDRESSED. AND MAY CONTAIN INFORMATION THAT IS PRIVILEGED. CONFIDENTIAL AND EXEMPT FROM DISCLOSURE UNDER APPLICABLE LAW. If the reader of this message is not the intended recipient, or the employee or agent responsible for delivering the message to the intended recipient, YOU ARE HEREBY NOTIFIED that any dissemination, distribution or copying of this communication is strictly prohibited. If you have received this communication in error, please notify us immediately by telephone, and return the original message to us at the above address via the U.S. Postal Service. Thank You. - " :T" ,'-"",~,-_-,_;;,:;;"-~~,,.~ P" -r 09/28/2004 02:41 717-783-3457 INHERITANCE TAX PAGE 02/02 " . COMMONWEALTH OF' PENNSYLVANIA DEPARTMENT OF REVENUE BUREAU OF INDIVIDUAL TAXES PO Box 280601 HARRISBURG, PA 17128-0601 Telephone 9/2812004 717-7g3-0972 717-783-3467 (fax) jdibert(aJstate.oa.us (e.mail) James R Ronca, Esquire Schmidt, Ronca & Kl:amer 209 state StJ;eet Harrisburg, Pa 17101 Re: Eotate of Linda Bahry File NUrnOei:~ln-ffOg Court Number: Cumberland-CCP-No. 0().8468 Dear Mr. Ronca: The Department of Revenue has received the Petitio.n for Approval of Settlement Claim to be med on behalf of the above.referenced Estate in regard to a wrongful death and survival action. It has been fOJWllfded to this Boreall for tbe Commonwealth's approval of the allocation of the proceeds paid to settle the actions. Pursuant to the Petition, the 45 .year.Dld-decedent died as a result ofmedica\ malpractioe. Decedent is survived by the decedents spouse and two minor issue, P1o:..e be advised that, based opon these facts and for inheritance tax pIlIpO""" only, this Depll1'llnent has no objection to the proposed allocation oflhe gross proceeds oflhis actio!!, $ 400,000.00 to the wrongful death claim and $ 200,000.00 to the survival claim. Proceeds ofa survival action llIe an asset included in the decedent's estate and llIe subject to the imposition of Pennsylvania inheritance tax. 42 PaC.S.A. ~8302; 72 P.S. 999106,9107, Costs and fees mu.t b. dedocted in the .ame percentages,.. the proceeds are allocated. Tn re Estate ofMerrvman. 669 A.2d 1059 (pa, Cmwllh, 1995). I lru$t that this letter is a sufficient representallon of the Depll11ment's position on this matter, As the Departmellt has no objections to the Petition, an attorney from the Deparltnent of Revenue will not be attending any hearing regarding it. Please oontact me if you Or the Court has any questions or :requires anything additional from this BureaD, Finally, the aPj)roval of this allocation is limited to this ..!;!Ite and does not reflect the position that the Department may take in any other proposed distribution of proceeds of a wrongful death I survival action. PLAINTlFPS EXHIBIT q it r,., /1"-!. ~,~_. ----- "" :.: "~ , ~ .; 209 State Street Harrisburg, Pennsyivania 17101 717.232.6300 FAX 717.232.6467 www.srklaw.com Please respond to Harrisburg office. 1528 Wainut Street, 3rd Floor Philadelphia, PA 19102 215.790.7303 VOICE 215.546.0942 FAX . Mr. J. Paul Dibert Bureau of Individual Taxes Department 280601 Harrisburg, PA 17128-0601 RE: Estate of Linda Bahry Dear Mr. Dibert: I am enclosing with this letter a copy of a Petition for Approval of Settlement and all exhibits for a wrongful death/survival action. The settlement is for survivor and wrongful death claims. There is an underlying medical malpractice action filed by Complaint in Cumberland County, Bahrv v. Cincotta, M,D., et aI., No. 00-8468. There are currently offers of $300,000 in primary coverage and $300,000 in MCARE coverage, for a total settlement of $600,000. I am requesting approval of a split between the wrongful death and survival actions of 1/3 survival ($200,000) and 2/3 wrongful death ($400,000). There have been no prior settlements with the Defendants. I would appreciate it if your department would review the Petition as soon as possible. Please feel free to contact me or my associate, Todd Getgen, if there are questions concerning the Petition, I intend to present this matter to the Cumberland County Court of Common Pleas with the expectation of receipt of your approval. Thank you for your consideration. Very truly yours, SC~'1DT, RONCA, & KRAMER, P.C. ( .. i PLAINTIFPS EXHIBIT , 3 . "l~~/A'" ~ ~.J~ ,; ,.- , . ~. : ~ ,~~'. -~ MICHAEL BAHRY, INDIVIDUALLY AND AS THE ADMINISTRATOR OF THE ESTATE OF LINDA F. BAHRY, IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff : NO. 00- 8468 Civil Term v. CIVIL ACTION - LAW JANET F. CINCOTTA, M.D. and SHEPERDSTOWN FAMILY PRACTICE, P.C. Defendants : JURY TRIAL DEMANDED ORDER AND NOW, this day of ,2004, after review of the within Petition, it is hereby ORDERED and DECREED as follows: (a) The proposed compromise and settlement which involves the Estate of Linda Bahry in wrongful death and survival actions for the amount of $600,000 payable by the Defendants and their insurers and the MCARE Fund is approved. (b) Michael Bahry, Administrator of the E;state of Linda Bahry is given leave to sign the Release which is attached to the Petition as Exhibit "A". (c) The sums will be apportioned between wrongful death and survival as follows: Payable to the Estate of Linda Bahry (Survival Action) $ 200,000.00 Payable the Beneficiaries of the Wrongful Death Action $ 400,000.00 (d) The Court finds that the contingency fee arrangement allowing for a fee of a 1/3 contingency for work done to complete and present the foregoing Petition is reasonable, and it is hereby approved. ~-- (e) The Court finds that the out-of-pocket expenses related to this litigation were reasonable and are, therefore, approved. (f) Defendants in the above-captioned action are discharged from any and all claims arising out of the above-captioned action. BY THE COURT: J. 2 .,_........ . ',-,-, MICHAEL BAHRY, INDIVIDUALLY AND AS THE ADMINISTRATOR OF THE ESTATE OF LINDA F. BAHRY, : IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff : NO. 00- 8468 Civil Term v. CIVIL ACTION - LAW JANET F. CINCOTTA, M.D. and SHEPERDSTOWN FAMILY PRACTICE, P.C. Defendants : JURY TRIAL DEMANDED PETITION FOR APPROVAL OF COMPROMISED SETTLEMENT AND NOW, comes the Petitioner, MICHAEL BARRY, Administrator of the Estate of LINDA BARRY and respectfully requests the Court's approval of a compromised settlement of the above claim. 1. Linda Bahry died on July 9, 2001. 2. Linda Bahry is survived by her husband, the Petitioner, and two children from their marriage, Ryan Bahry (DaB 10/30/1984) and Alexandra Bahry (DaB 06/08/1987). These three survivors are the only wrongful death beneficiaries and the only beneficiaries of the Estate under the Pennsylvania Intestate Succession Statute. See 20 Pa.C.S.A. 92102(3) for distribution. 3, It was alleged in this matter that Linda Bahry's death was brought about by the negligence ofthe Defendants listed in the caption. 4. Although liability is not admitted by the Defendant, Plaintiff and Defendants have agreed to compromise the wrongful death and survival claims for the total sum of $600,000. _.~_L~~ ,. ,~ 1, . 5. The tenus and conditions of the liability settlement are set forth in the Release which is to be executed by Plaintiff, a true and correct copy of which is attached to this Petition, marked as Exhibit "A," and incorporated herein by reference. 6. At the time of her death, Linda Bahrywas forty-five (45) years of age with a maximum reasonable life expectancy of36.2 years according to the 1990 Life Tables contained within the Pennsylvania Standard Jury Instructions. 8. By agreement between the beneficiaries of the Estate and the survival action, the following sum offered in settlement of the liability action should be attributable to the wrongful death action: Amount ofloss attributed to the loss of Companionship and support between Linda Bahry and Michael Bahry, her husband, for the remainder of her expected lifetime: $ 200,00.00 Amount ofloss attributed to the loss of Companionship and support, tutelage, and guidance between Linda Bahry and Ryan Bahry, her son, fQr the remainderof her expected lifetime: $ 100,000.00 Amount ofloss attributed to the loss of companionship and support, tutelage, and guidance between Linda Bahry and Alexandra Bahry, her daughter, for the remainder of her expected lifetime: $ 100,000.00 Total = $ 400,000,00 9. The remaining liability funds should be attributed to the survival action to be paid to the Estate of Linda Bahry as follows: $ 200,000.00 2 I ~. ~ j ~"'-- ;, ~ --~. '''; ~, -< 10. Both individually and acting as Administrator of the Estate of Linda Bahry, Michael Bahry entered into a Fee Agreement with Schmidt, Ronca, & Kramer, P,C., to provide legal services via a contingency fee agreement that provides for a one-third contingency fee plus litigation costs. The fees will be assessed proportionately. 11. Plaintiff's counsel advanced, on behalf of the Plaintiff, the sum of$ 14,680.93 as litigation costs, a summary of which is attached to this Petition as Exhibit "B". Plaintiff believes and, therefore, avers that all of these expenses are reasonable and directly related to the successful conclusion of this litigation. All costs should be divided proportionately. 12. The total sum of the two settlements shall be divided as follows: a. Survival action payable to the Estate $ 200,000.00 Attorneys' Fees $ 66,666.67 Proportionate Share of Costs $ 4,893.65 Survival payout $ 128,439.68 b. Wrongful death action payable to the surviving spouse, Michael Bahry $ 200,000.00 Attorneys' Fees $ 66,666.67 Proportionate Share of Costs $ 4,893.64 $ 128,439.69 c. Wrongful death action payable to Ryan Bahry (son) $ 100,000.00 Attorneys' Fees $ 33,333.33 Proportionate Share of Costs $ 2.446.82 $ 64,219.85 3 lr/f" ~ ~ ~ ~ ~, , j 'j "" d. Wrongful death action payable to Alexandra Bahry Attorneys' Fees $ 100,000.00 $ 33,333.33 $ 2,446.82 $ 64,219.85 $ 600,000.00 Proportionate Share of Costs Total: 13, Plaintiff believes and, therefore, avers that the amount of the compromise settlement is appropriate and acceptable. 14. Plaintiff's counsel certifies to the Court that all defense counsel have received a copy of this Petition and proposed Order and concur therewith. 15. Plaintiff's counsel also has applied for and expects to receive approval from the Commonwealth of Pennsylvania's Department of Revenue as to the proposed distribution and apportionment of the amounts attributed to the Wrongful Death and Survival Actions. (See a copy of Plaintiff's letter requesting approval of wrongful death/survival distribution for tax purposes attached as Exhibit "Cn). 16. The Petitioner and the children have received a copy of the Petition and concur with the above distribution. 4 ,- , " ,-~ ,~ WHEREFORE, Plaintiff respectfully requests the Court to enter an Order doing the following: a. Approving the settlement distribution as suggested above under 20 Pa.C.S. 9 3323 and the other appropriate statute or rule of court, apportioning the damages in this case in the following matter: Survival Action, payable to the Estate of Linda Bahry $ 200,000.00 Wrongful Death Action, payable to the beneficiaries as set forth within the foregoing Petition $ 400,000.00 b. Approving Plaintiffs attorney's fees in the amount of$ 200,000,00 along with expenses of$ 14,680.93 to be deducted proportionately from the amounts awarded and apportioned above. c. Approving the settlement set forth in the Release attached hereto and , marked as Exhibit "A" and directing the Petitioner to execute the Release. d. Discharging the Defendants in the above-captioned action from any and all further claims arising out ofthe above-captioned action, Respectfully submitted, SCHMIDT, RONCA, & KRAMER, P .C. By James R. Ronca Attorney for Plaintiff ID# 25631 209 State Street Harrisburg, P A 171 01 (717) 232-6300 5 (5 :;;! d r- [ -l OJ 0 w [ '" to> ~ 0 0 m Q) "' '" 6r (Q Ii r S' a. w :n ~ :;: :;: .. '" '" '" co co co 0 0 0 ." '" <0 <0 ~~ '" '" '" ~ . ;E~ Gl- _"11 ~ ~ :;: -1"1) .. .. 1 (/) '" '" '" co co co 0 0 0 io <0 <0 '" '" '" " " ee m ~ ~; ,-J", lt 0 (Q (Q :.;. " <5 (Q ~ co c: <5 ~ !!!. .. '" w "' ~. '" w ~00a0000Q0aaa0a0000n00Q0000000S~~ ~ffiffiffiffiffiffiffi~ffiffiffiffiffiffiffiffiffi~ffiffiffi~~ffiffiffi~ffi~<g~ ro~~~~~~~rooooooooooroooororoooorooro~.mm ~ ~^^^^^^^^^i^^^~~^^^~^~roW~ 5" r.- (.... t.- c.... t... c.... a c::: g 0 00 0 0 Ctl 3 3 3 33 3 3 c: Q!. Qt ~ QL~ ~ e!.. 5- " :n ~M~~~~~~m~mm~~~~~~oo~~mm~~~~~~~~ ~rn~~~QQQ~~~~M~M~M~~~~N~NNNID~~OO NN~~~~mWWIDOONoom~~~~~oNmNIDN~N~NWW gg~~~~NNNNNONNNNNNNNONONONON~~~ ~~oooogg88g~gg8ggg888g888888~~~ oooowwwww wwwwwwww w (.oJ (.oJ weco c..Jwww N"-'J\J ~~WWWW~2~W9~QWWOO~~~~~~~~~~~~~~~ ~~~~~~~~~~~a3~~!~a~am~~~<~~~~~~ -< 3 3 3 3 3 ~::J-< 3;J...('I) 03 3 m~ m-<. :5."- -<-< W =-=--< =-<-< ~ a:a.:a:a:a:lil (1)w a:OC/.lm a:a:cnS::cnw C::wCD m_ - all> m- =- - D;1_'-+w.-+.-r_-.-+oo m_-z~:l._-_-!:t:"' q-m3 s::cE mm- -....mQomm g~~~~~~~g~~~~~~~~!~~~~~~~~~~~~~ (I) ::J ::J ::J ::J ::J 0 10' (I) ::J ::J () () ~ ::J () 0" () (I) 00 ~ a. (I) (I); 0 0 (I) N (I) (I) rOoooo ~ro0ooono(l)or_O~rrO r=rr _.0000000000 __.00 "C 0000-0::+-0-.0"':::"-'-' _.=_._. ~~~~~~ ~~~ ~~~~~ ~~..,. ~~~~ ~oo~~ oo~~~~~ Qoo~ ~~~~~ ~ll)~~[OOOO~ ll)~OOOO ~~~~~~ ~~~ ~~~~~ ~~~g-~~~ ~()~~ ~ 3333 3 ~:. 3 (i3 a 3 3 (i3 (i3:. ~ ::+ r:. :. (I) :. 0 :. :. o~~~~~ z~~ oo~~~oo OO~OO~~~~~ ~::J~~ o-~~~~ O)o~ OOo~~oo 00000'0)00' o~oo ffi~~~~~ ~ffi~ 5~~ ffi nffiffi ffi~ffiffi ~()()()()() (I)~() &()0 ~ o~~ ~~~~ . . . .. S'. -<.... ~ Jii "C 00 5.. 5" g. 0 or 0 3' ~ ~~ ro S- " ()~~()~()cro()~5"~~()~roro5"~zmo()()~()()~~ .g g g.g g.g ~m.g g l~cn.g g ~~~~~~ (j;'.g.g a.g.g ~o ~___~_.R.cn__ ~~_~.~.~ (l)O(l)o_._~,<,<ro~ _OOOO(I)W(l)~~(I)ll) ~~(I)w~~ ",o(l)(I)W-oo ~ID.ID.OOIOOO~~OO~~o-OO~ooW~~$OOOOOO~00~3 2(1)(1) (I) ~i (l)09~ (l)99~;-(I)~ ~~~g~ or .~~ O~cn ~~~x~~(I) ::J___(I).., lO ~..... 9'00 co 00 0"-0 ~ 0 etg-g.()(I) CD 001.....0 OO(l)(i3~ -. oo~"C ~ 9~ ~~ &&oo~g ~ ~~&~g. CD ~ ~~ ll) ll) - -0 'j"C"Ccc (D ~ ~g, ()cn (I) f)' (I) CD (I) "C _ ~o ~o::+ CD 00 ::T .n..J:>,. g ~ o. 00 o Ol ()-o lO (I) ~ ~'S_ m~ ....... )> ~ CD ~ co po ~ Z X OJ o 0 '" 0 w ^ a ~ ro ro "' ~ (Q ~ w..... W ~~ 00 ~,o N .....00 ~~ .....~~ ~w~o ~.......... OI~~ OW.....~N.....0I.....N~m~ON.....N~N~~0I0~N~COOOOOW~ ~~~ON~IDOID~ON~m~IDOID~~oo~mOIDIDOOOO OIWOONO~~OIDooOOOO""'ow~~ooOOO~~~ONW ~WWWWWWW~~~~~~N~N~~~~~OOOIDID~~CO~ ~~~~~~~~~~~~k~~~~~~g~~~~~~~~~~~ OO~~W""'~W~O~""'N""'~~~~~""'~~~""'oow~~~m~ ~~O~~OID~IDO~~~~~~~~~~~~~~IDIDOOOOO WOOO1~~wwcoww~m~~m~~01~W~~~~~~N~""''''''W OJ ro ee S. ~ S' ee '" w or ~ " ro ;;! 'C ro c " ;; '" 0 c: oW ~ " ro Z c: :T w 1II 3 3 ... -. Cll 0 Co ;!:: 3:+ -i (I) AI ... 0 ~ :::l ll> 0 :l 0 CJl '0 III ll> n (I) l10 - o' ::::l " :l lXlill CJl ~3 III ~ ::::l .-' n "'C (I) (") ;s: Cll 3 0 ~ o c: ~ ~ '" " or ~ " ro Jii"""""-". ~.~ ~, - , . ~~,.,."'~ ~. "-~"""," . ~ PLAINTIFFS EXHIBIT FULL AND FINAL RELEASE 'f/.M I ~ 1. FOR AND IN CONSIDERA nON of the sum of $300,000 paid to the undersigned, receipt of which is hereby acknowledged; and for the promise of payment in the amount of $300,000 made by the Medical Care Availability and Reduction of Error Fund, the undersigned do fully release and discharge Janet F. Cincotta, M.D., Commerce and Industry Insurance Company, Sheperdstown Family Practice, P.c., the Medical Care Availability and Reduction of Error Fund, all other persons, governmental entities, associations and corporations whether or not named herein, their heirs, executors, administrators, attorneys, successors, assigns and insurers, and their respective agents, servants and employees (hereafterreferred to collectively as "Releasees"), from any or all causes of action, claims and demands of whatsoever kind on account of all known and unknown injuries, losses and damages allegedly sustained by the undersigned and, specifically, from any claims or joinders for sole liability, contribution, indemnity or otherwise as a result of, arising from, or in any way connected with all medical professional health care services rendered by the above named Health Care Providers, and on account of which Legal Action was instituted by the undersigned in the Court of Common Pleas of Cumberland, Co., P A, Docket No. 00-8468. All sums set forth herein constitute damages on account of physical injuries and sickness, within the meaning of Section 104(a)(2) of the Internal Revenue Code of 1986, as amended, The undersigned does understand, and agrees, that the acceptance of said sum is in full accord and satisfaction of a disputed claim and that the payment of said sum is not an admission of liability by any party named herein. 2. It is expressly understood and agreed that this release and settlement is intended to cover and does cover not only all now known injuries, losses and damages, but any further injuries, losses and damages which arise from, or are related to, the occurrence set forth in the Legal Action noted above. 3. The undersigned hereby agrees, on hislher/their behalf and on behalf of my/our heirs, executors, successors and/or assigns, to satisfy any and all valid liens that have been asserted and/or which could be or may be asserted for reimbursement of any medical benefits or other benefits provided to the undersigned by a third party as a result of the injuries claimed in the Legal Action referenced herein. Additionally, the undersigned hereby agrees, on his/her/their behalf and on behalf of hislher/their heirs, executors, successors and/or assigns, to indemnify and save forever harmless the Releasees named in this document from and against any and all claims, demands or actions, known or unknown, made against the Releasees by any person or entity on account of, or in any manner related to or arising from the Legal Action noted above. ..c ~. ~= ; . , L -, . " 4. In the event court approval is required for the settlement, compromise or resolution of this claim, this settlement is conditioned upon plaintiff promptly undertaking any and all necessary action to obtain same. It is further understood and agreed that if Court approval is required for any aspect of the settlement of this claim that, notwithstanding the provisions of Pac R.c.P. 229.1, defendant shall not be obligated to pay the settlement funds for a period of twenty (20) days from receipt of this executed Release or Court Order approving settlement, whichever is later, and, as further condition and agreement upon which this settlement is based, plaintiff agrees to waive any and all provisions of Pa. R.C.P. 229.1 with respect to entitlement of interest. 5. If this settlement is ever determined by any court to be without effect because some necessary court approval was not obtained, or if the released parties are subjected to further legal action or claim which could not have been instituted or presented had proper court approval been obtained by plaintiff, then plaintiff will indemnify the released parties for any future loss, cost, or expense, including but not limited to, reasonable attorney's fees for defending, litigating and settling any such claims or action, and for any judgment resulting from any such claim or action. 6. It is further understood and agreed that this is the complete release agreement, and.that there are no written or oral understandings or agreements, directly or indirectly, connected with this release and settlement, that are not incorporated herein. This agreement shall be binding upon and inure to the successors, assigns, heirs, executors, administrators, and legal representatives of the respective parties hereto. 7. It is fully understood and agreed that the amount promised to be paid by the Medical Care Availability and Reduction of Error Fund shall not become payable until December 30, 2004. 8. It is further understood and agreed and made part hereof, that the undersigned, their family and representatives and their attorney(s) shall not comment, either directly or indirectly, on any aspect of this case or settlement to any member of the news media, or in any way publicize or cause to be publicized in any news or communications media, including but not limited to newspapers, magazines, journals, radio, television, on-line computer systems and law-related publications, the facts of this case, the existence ofthis settlement and the terms and conditions of this settlement. If the undersigned, their family, representatives and/or attorney(s) file any court document(s) identifying the terms and/or conditions of this settlement, they - iii' .~, ~, -'. . shall request that the court immediately seal such document(s) and take whatever reasonable steps are necessary to seek to assure that such document(s) are not accessible or disclosed to anyone. This paragraph is intended to become part of the consideration for settlement of this claim. 9. THE UNDERSIGNED HEREBY DECLARES that the terms of this settlement have been completely read; and that they have discussed the terms of this settlement with legal counsel of their choice; and said terms are fully understood and voluntarily accepted for the purpose of making a full and final compromise adjustment and settlement of any and all claims on account of the injuries and damages above-mentioned, and for the express purpose of precluding forever any further or additional suits arising out of the aforesaid claims. IN WITNESS WHEREOF, I have hereunto set my hand and seal this day of 20_ (SEAL) Michael Bahry, Individually and as Administrator of the Estate of Linda F. Bahry, Deceased Social Security Number SWORN to and subscribed before me this Day of 20_. NOTARY PUBUC ,-- "" ,'- ->~ .""",,,.~ I !L't;.Mlai..,;0 LIND~ F. BAHRYand MICHAEL BAHRY, her husband Plaintiffs IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 0-0. l( I.fCo8 ~ I~ v. CIVIL ACTION - LAW JANET F. CINCOTTA, M.D. and SHEPERDSTOWN FAMILY PRACTICE, P.C. Defendants : JURY TRIAL DEMANDED NOTICE YOU HAVE BEEN SUED IN COURT. If you wish to defend against the claims set forth in the following pages, you must take action within twenty (20) days after this Complaint and Notice are served, by entering a written appearance personally or by attorney and filing in writing with the Court your defenses or objections to the claims set forth against you. You are warned that if you fail to do so the case may proceed without you and a judgment may be entered against you by the Court without further notice for any money claimed in the Complaint or for any other claim or relief requested by the Plaintiff. You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LOCAL HELP. Court Administrator Cumberland County Courthouse 4th Floor Carlisle, PA 17013 717 -240-6200 '_.l..J;.i:, ,( - 1- ~. L. . - -),1 LINDA F. BAHRY and MICHAEL BAHRY, her husband IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA Plaintiffs NO. vi. CIVIL ACTION - LAW JANET F. CINCOTTA, M.D. and SHEPERDSTOWN FAMILY PRACTICE, P.C. Defendants : JURY TRIAL DEMANDED NOTICIA Le han demandado a usted en la corte. Si usted quiere defenderse de estas demandas expuestas en las paginas siguientes, usted tiene viente (20) dias de plazo al partir de la fecha de la demanda y la notificacion. Usted debe presentar una apariencia escrita 0 en persona 0 por abogado y archivar en la corte en forma escrita sus defensas 0 sus objeciones a las demandas en contra de su persona. Sea avisado que si usted no se defiende, la corte tomara medidas y puede entrar una orden contra usted sin previo aviso 0 notificacion y por cualquier queja 0 alivio que es pedido en la peticion de demanda. Usted puede perder dinero 0 sus propiedades o otros derechos importantes para usted. LLEVE ESTA DEMANDA A UN ABODAGO INMEDIATAMENTE. SI NO TIENE ABOGADO 0 SI NO TIENE EL DINERO SUFICIENTE DE PAGAR TAL SERVICIO, VAYA EN PERSONA 0 LLAME POR TELEFONO A LA OFICINA CUYA DIRECCION SE ENCUENTRA ESCRITA ABAJO PARA AVERIGUAR DONDE SE PUEDE CONSEGUlR ASISTENCIA LEGAL. Court Administrator Cumberland County Courthouse 4th Floor Carlisle, PA 17013 717-240-6200 ." ~b.~_ ~, " l~~' ~O!. ~ -~j''''.;k' LINDA F. BAHRYand MICHAEL BAHRY, her husband IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA Plaintiffs NO. 0-0 - 8''-1<0'( ~ T J!A.o- v. CIVIL ACTION - LAW JANET F. CINCOTTA, M.D. and SHEPERDSTOWN FAMILY PRACTICE, P.C. Defendants : JURY TRIAL DEMANDED COMPLAINT AND NOW come the Plaintiffs, by their attorneys SCHMIDT, RONCA & KRAMER, P.C., and respectfully set forth as follows: 1. The Plaintiffs, Linda F. Bahry and Michael Bahry, her husband, are adult individuals residing at 18 South Seasons Drive, Dillsburg, Pennsylvania, 17019. 2, The Defendant, Janet Cincotta, M.D. is a physician duly licensed to practice medicine in the Commonwealth of Pennsylvania with her principle office located at Sheperdstown Family Practice, P.C., 2140 Fisher Road, Mechanicsburg, Pennsylvania, 17055. 3. At all times relevant to the Plaintiffs' cause of action, Defendant Cincotta was the agent, servant and employee of Sheperdstown Family Practice, P.C. .... "' , , "' ' lf~1I,L~_O; 4. At all times relevant to the Plaintiffs' cause of action, the Plaintiff Linda F. Bahry was a patient of Defendant Cincotta and Defendant Sheperdstown Family Practice, P.C. OPERATIVE FACTS 5. On or about December 8, 1998, the Plaintiff attended a scheduled appointment with Defendant Cincotta at the Sheperdstown Family Practice, P.C. 6. At the aforesaid time and place, the Plaintiff presented with the following history and symptoms: (a) Change in bowel habits; (b) Rectal bleeding including a small amount of bright red blood; (c) Some generalized abdominal bloating; (d) Mild cramping and discomfort; and (e) Bowel movements that had increased in frequency up to four times per day, 7. Plaintiffs date of birth is March 31, 1956, and at the time of the appointment, she was 42 years of age. 8. Defendant Cincotta's examination revealed the following: (a) examination of the anus, found no extensive hemorrhoid or fissure; 2 >,''->>h. ~~. ~ . :' .lIiillki~--_.i;' (b) Digital rectal examination was negative with soft brown stool present; (c) Anoscopy performed, but did not reveal presence of definite polyps or internal hemorrhaging; and (d) Small area of irritation inside the anal verge was noted. Stool was strongly hemoccult positive. 9. Defendant's initial impression was rectal bleeding. 10. Defendant scheduled the Plaintifffor a sigmoidoscope on December 16, 1998. 11. Plaintiff attended her appointment on December 16, 1998, and underwent a sigmoid examination by Defendant Cincotta. 12, At the appointment,the Plaintiff revealed to the Defendant Cincotta that she had continued bleeding up until a day or so before the appointment, to include some bright red rectal bleeding and blood intermixed with her stool. 13. A digital rectal exam was performed by Defendant Cincotta, which result was negative; a rigid sigmoidoscope was inserted up to approximately 15 centimeters with no lesions identified other than a slightly inflamed internal hemorrhoid. 14. Defendant then performed an exam with a flexible sigmoidoscope and Defendant reported no diverticula, polyps, tumors, lesions, inflammatory changes or active bleeding. 3 _~,.....I_.~.~ J,J.. i J '. ,'.~ ->i~JI"""""..", 15. Defendant's impression was rectal bleeding in the Plaintiff, probably secondary to internal hemorrhoids, although no bleeding hemorrhoids were observed. 16. Defendant treated the Plaintiff with Proctocort HC suppositories. 17. On or about May 16,1999, Plaintiff was admitted to the Harrisburg Hospital because of prolonged edema of her lower extremities. 18. A colonoscopy was performed showing a mass invading her colon. A CT scan was then performed and revealed a large pelvic mass with extensive metastasis to Plaintiffs liver. 19. After consult, Dr. Misas, of Susquehanna Surgeons, performed surgery on the Plaintiff on May 20, 1999, in which the surgeon found a large left descending colon lesion, which was believed to be primary site of Plaintiffs carcinoma. 20. The following surgical procedures were performed: (a) Left hemicolectomy with transverse colectomy; and (b) Left salpingo-oophorectomy. 21. The pathology report from the surgery showed poorly differentiated adenocarcinoma with extensive lymph-vascular invasion. 22. The Plaintiff was discharged on June 5 for colostomy care and chemotherapy. 4 ;~~."'- - ~' , "" i ' " '~;,""",""~ COUNT I Linda F. Dahrv v. Janet Cincotta. M.D. and Sheperdstown Familv Practice. P.C. 23. The prior allegations 1-22 are incorporated herein by reference as if set forth in full. 24. Plaintiff believes and avers that the Defendant negligently failed to properly diagnose her and to discover the presence of a cancerous tumor in her descending colon during the care and treatment of her by the Defendant in December 1998. 25. Defendant's negligence consisted of: (a) failing to advance the flexible sigmoidoscope adequately through the descending colon; (b) failing to observe the tumor in the descending colon during the sigmoidoscope; (c) failing to order a double contrast barium enema as a follow up to the sigmoidoscope exam when the simoidoscope did not rule out a tumor as the cause of the rectal bleeding; and (d) failing to order a colonoscopy of the Plaintiff in order to rule out the presence of a cancerous tumor in the colon. 26. Defendant's negligence has significantly increased the Plaintiff's risk of a poor outcome from the standpoint of mortality and morbidity. 5 ~~~... .......~~~ ,'" .", -.l .L I .'~""i!loi"'~~-",,,. 27. As a result of the Defendant's negligence, the Plaintiff will incur medical bills over and above what she could be normally expected to incur, had her cancer been diagnosed in a timely manner. 28. As a sole and proximate result of the Defendant's negligence, the Plaintiff has sustained and will continue to sustain a loss of earning and an impairment of earning capacity. 29. As a sole and proximate result of the Defendant's negligence, the Plaintiff has undergone great pain and suffering over and above what could reasonably been expected had her cancer been timely diagnosed, and will continue to suffer additional pain and suffering in the future over and above what reasonably could have been expected had her cancer been timely diagnosed. WHEREFORE, the Plaintiff demands judgment against the Defendants in an amount in excess of the compulsory arbitration limits in Cumberland County, together with costs. COUNT II Michael Bahrv v. Janet Cincotta. M.D. and Sheperdstown Familv Practice. P.C. 30. Paragraphs 1-29 are incorporated herein by reference as if set forth in full. 31. As the sole and proximate result of the Defendant's negligence, the Plaintiff Michael Bahry has suffered the loss of the society and companionship 6 ""~-~. - ~ '_ j _1 ;.,;;. . ~;'t:l'~",'Y_ and services of his wife, Plaintiff Linda Bahry, and will continue to suffer additional losses in the future. WHEREFORE, the Plaintiff, Michael Bahry, demands judgment against the Defendants in an amount in excess of the compulsory arbitration limits in Cumberland County, together with costs. & KRAMER, P.C. By Attorneys for Plaintiffs 7 ~~~"~~ .'" " " ~ VERIFICATION I verify that the facts contained in the foregoing document are true and correct to the best of my knowledge, information and belief, I understand that intentional false statements herein are made subject to the penalties of 18 Pa.C,S.A. 94904 relating to unsworn falsifications to authorities. Dated: 1;)-q~()O Bdi'-c&Lrf Lind Bahry '~ - ",.j-,"""""",, ~'P-~~J\W.~----""",,_ ;K<,i-'~ , :.- d F~ ~ '-Ij ~ }' ~p <, ",~..", .<v."" F .~,.,~ l;W1~UWj_"""~~lliln~,~-1itif~1i1!Ri;8~'ifalliiltjj.~lailtlil' '.-""-~ , ,.~~-"" -, '" - ,~ , '-' , -~ ,,' '-~. ~",' ~. <.-> ,","--- -1--< "..,.. -,," " d !J I; " j.' " ! i' , (") c::> (~ ".~.-.' c: 0 "" ;?; c::> ._~ -.;11-1,1 r"q ;~ ;~d ~.~ C) , ~~~~, ~'~ C' ~o -0 ~I~; ;P ~o :!( -7'"') 0 t.A' ;=1('"1 >-c ~, -' -'-' ~ w :1i~ w ~ 0) ~ f " o!I --C" ...t:: ~\ V', <:> ~ ~ G r ~ t ;":.'SJ..........,."~"~. "'""_...._~._ . l. ~~ ~ b.....-- ~. ,-" _ M -', 14. SHERIFF'S RETURN - REGULAR CASE NO: 2000-08468 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND BAHRY MICHAEL ET AL VS CINCOTTA JANET F MD ET AL DAVID MCKINNEY , Sheriff or Deputy Sheriff of Cumberland County,Pennsylvania, who being duly sworn according to law, says, the within COMPLAINT & NOTICE was served upon CINCOTTA JANET F M D the DEFENDANT , at 0014:43 HOURS, on the 8th day of December, 2000 at 2140 FISHER ROAD MECHANICSBURG, PA 17055 VICKIE COOVER (SUPERVISOR) by handing to a true and attested copy of COMPLAINT & NOTICE together with and at the same time directing Her attention to the contents thereof. Sheriff's Costs: Docketing Service Affidavit Surcharge 18.00 5.58 .00 10.00 .00 33.58 So Answers: ~~~,~~ R. Thomas Kline 12/11/2000 SCHMIDT, RONCA & KRAMER Sworn and Subscribed to before By: ~/7~',/ ~~/VIr Deputy Sheriff me this jIfE. day of ~~ A.D. C).-'-!f-(]. ~ A O;'~ rothonotary ,;~,,",".' . . ..... ~" "=.'-~~ . - l_i "'-illI,:;'-- ., .. SHERIFF'S RETURN - REGULAR CASE NO: 2000-08468 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND BARRY MICHAEL ET AL VS CINCOTTA JANET F MD ET AL DAVID MCKINNEY Sheriff or Deputy Sheriff of Cumberland County,Pennsylvania, who being duly sworn according to law, says, the within COMPLAINT & NOTICE was served upon SHEPERDSTOWN FAMILY PRACTICE P C the DEFENDANT , at 0014:43 HOURS, on the 8th day of December, 2000 at 2140 FISHER RD MECHANICSBURG, PA 17055 VICKIE COOVER (SUPERVISOR) by handing to a true and attested copy of COMPLAINT & NOTICE together with and at the same time directing Her attention to the contents thereof. Sheriff's Costs: Docketing Service Affidavit Surcharge 6.00 .00 .00 10.00 .00 16.00 So Answers: ~~~ ~~~,-t:~! R. Thomas Kline 12/11/2000 SCHMIDT, RONCA & KRAMER Sworn and Subscribed to before By: $#7/1:d @~~ Deputy Sheriff me this / f~ day of ~~ A.D . t2. fj,,j?h. ~ "q"'1:/ rothonotary ~,_ . ""~;!,_.",,, 'C';.." '\ , , THOMAS, THOMAS & HAFER, LLP Peter J. Curry, Esquire Identification No. 16622 Sarah W. Arose//, Esquire Identification No. 58797 305 North Front Street P. O. Box 999 Harrisburg, PA 17108 (717) 255-7637 Attorneys for Defendant Cincotta LINDA F. BARRY and MICHAEL BARRY, her husband, : IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PA Plaintiffs : DOCKET NO. 00-8468 Civil Term v. JANET F. CINCOTTA, M.D., and : CML ACTION - LAW SHEPERDSTOWN F AMIL Y PRACTICE, Defendants : JURY TRIAL DEMANDED ENTRY OF APPEARANCE TO THE PROTHONOTARY: Please enter our appearance for Defendant, Janet F. Cincotta, M.D., in connection with the above-captioned matter. /TiiO~~IOMAS & HAFE TERJ. CURRY I ~~~K S . W. AROSELL, ESQUIRE Attorneys for Defendant Cincotta P =~ '. -~,,-'~- ,,- " _~ ~ = ._. ,_ c;~, ,,";-0;" __,_'n"' ,,-, '"" ,,-"';~' "'-~-';' '~-;--,; _, ,'''' " _'-'-~" '~,~-'oc-","' ;h",':,.J"_j;;" .::-,";_+; _..;; , ,'- --, "". , ~ 'j, . . . CERTIFICATE OF SERVICE I, Sarah W, Arosell, Esquire, hereby certify that I have served a true and correct copy of the foregoing Praecipe on the following persons by placing a copy of the same in the United States mail, first class mail, directed to their office addresses as follows: James R. Ronca, Esquire SCHMIDT, RONCA & KRAMER 209 State Street Harrisburg, P A 1710 I Sheperdstown Family Practice 2140 Fisher Road Mechanicsburg, P A 17055 THOMAS, THOMAS & HAFER, LLP By: (;1uJJacutA Sarah W. Arosell, Esquire DATE: 'I f!()' :118291.1 ~lil!lI,!'liiilit~'-""'_~'lllliIl_ M .,","" , " "' .~, ~',' - """,.'.' .~- "~,,,--,.,. ',' , '''''', ;"""l~l!!Ii!Wlll~il$--i~ ",<,- ~~ ""<-~ ~~< , ',~ ,c J,'; (') C <:':" "TIc [21(:: 655;~ -<.....c;-:_ ~:C:r ~~ =< ." " . o ,,' , C): -tJ :?:: J1 c:;:; :.u -<"~ " C',', ',,", _ _"'_ . ..;:_,_. - " ~_~__:o" ev',.-." "<ii- ,;"_,,,~>;;;_,__,,~,<)'" ,.'-, - ";,_,_T'-," ,-- THOMAS, THOMAS & HAFER, LLP Peter J. Curry, Esquire Identification No. 16622 Sarah W. Arosel/, Esquire Identification No. 58797 305 North Front Street P. O. Box 999 Harrisburg, PA 17108 (717) 255.7637 Attorneys for Defendant Cincotta LINDA F. BAHRY and MICHAEL BAHRY, her husband, Plaintiffs IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PA DOCKET NO. 00-8468 Civil Term v. JANET F. CINCOTTA, M.D" and : CIVIL ACTION - LAW SHEPERDSTOWN FAMILY PRACTICE, Defendants : JURY TRIAL DEMANDED NOTICE TO PLEAD TO: Plaintiffs and Counsel: You are hereby notified to plead to the enclosed New Matter within twenty (20) days from service hereof or a default judgment may be entered against you. Respectfully submitted, By: DATE: A/a/Ol Sarah . Arosell, Esquire I.D.#58797 305 North Front Street P.O. Box 999 Harrisburg, PA 17108-0999 (717) 255-7231 Attorneys for Defendant, Janet Cincotta, M.D. _r. ..'~, H.~", ' ,_,~., , ',,',." .".,.. ~ _ ,.c- ", ." ~.,.<~ '.,,~.",''J'' ,~>,~. .'C ,_ .^~",,;,.,"'., -~,j'"" 0' _"'-""k"~ ,:G,'", ,', "'-"""1 THOMAS, THOMAS & HAFER, LLP Peter J. Curry, Esquire Identification No. 16622 Sarah W. Arosell, Esquire Identification No. 58797 305 North Front Street P. O. Box 999 Harrisburg, PA 17108 (717) 255-7231 Attorneys for Defendant Cincotta LINDA F. BAHRY and MICHAEL BAHRY, her husband, Plaintiffs IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PA DOCKET NO. 00-8468 Civil Term v. JANET F. CINCOTTA, M.D., and : CIVIL ACTION - LAW SHEPERDSTOWN FAMILY PRACTICE, Defendants : JURY TRIAL DEMANDED DEFENDANT, JANET F. CINCOTTA. M.D.'s ANSWER WITH NEW MATTER TO PLAINTIFFS' COMPLAINT Defendant, Janet F. Cincotta, M.D. (hereinafter referred to as "Answering Defendant"), by and through her attorneys, Thomas, Thomas & Hafer, LLP, hereby responds to Plaintiffs' Complaint and in support of the same, avers as follows: 1. Denied. After reasonable investigation, Answering Defendant is without . knowledge or information sufficient to form a belief as to the truth of the averments contained in this paragraph of Plaintiffs' Complaint and the same is deemed denied and proof demanded at the time of trial. 2. Admitted. ..' ~C~ c.r- .,- , <., """"~~' _ -,-',,-,_ <... ,.c;'_. . '....-- '"-"o,c'-~'oib,;Jj" ..-:'-'",.,.-,,--,~, -;" "~-:'';1 3. Denied as stated. It is admitted that at all times relevant to the Plaintiffs' cause of action, Answering Defendant was an employee of Shepherdstown Family Practice, P.C, 4. Denied as stated. It is admitted that at all times relevant to the Plaintiffs' cause of action, the Plaintiff Linda F. Bahry was a patient of Defendant Shepherdstown Family Practice, P.C. and was treated by physicians there, including Answering Defendant. OPERATIVE FACTS 5. Admitted. 6. Denied pursuant to the provisions of Pac R.C.P. 1029(e). By way of further response, it is admitted that the Plaintiff, Linda Bahry's medical records from Shepherdstown Family Practice, P.C. speak for themselves and are incorporate herein by reference. 7. Admitted. 8. Denied, pursuant to the provisions of PaRC.P. 1029(e). By way of further response, Plaintiff, Linda Bahry's medical records from Shepherdstown Family Practice, P.C. speak for themselves and are incorporated herein by reference. 9. Denied, pursuant to the provisions of Pa.R.C.P. 1029(e). By way of further response, Plaintiff, Linda Bahry's medical records from Shepherdstown Family Practice, P.C, speak for themselves and are incorporated herein by reference. 10. Denied as stated. It is admitted that Plaintiff was scheduled for a flexible sigmoidoscopy on December 16, 1998. 11 , Denied as stated. It is admitted that Plaintiff underwent a rigid and flexible sigmoidoscopy on December 16, 1998, performed by Answering Defendant. 2 _ _r.~ ,'"u ~_,;". . ',"-,~ ",' -,.-<-",' ,,,,'. "'.',~-~,,"d; '4j,;;,ji;,G;;"",,,-~ii*~iJ. _":" __, c, ',,-r,,;"; 12. Denied, pursuant to the provisions of Pa.R.C.P. 1029(e). By way of further response, Plaintiff, Linda Bahry's medical records from Shepherdstown Family Practice, P.C. speak for themselves and are incorporated herein by reference. 13. Denied, pursuant to the provisions of Pa.R.C.P. 1029(e). By way of further response, Plaintiff, Linda Bahry's medical records from Shepherdstown Family Practice, P.C. speak for themselves and are incorporated herein by reference. 14, Denied, pursuant to the provisions of Pa.R.C.P. 1029(e). By way of further response, Plaintiff, Linda Bahry's medical records from Shepherdstown Family Practice speak for themselves and are incorporated herein by reference. 15. Denied, pursuant to the provisions of PaRC.P. 1029(e). By way of further response, Plaintiff, Linda Bahry's medical records from Shepherdstown Family Practice, P.C, speak for themselves and are incorporated herein by reference. 16. Denied, pursuant to the provisions of Pa.R.C.P. 1029(e). By way of further response, Plaintiff, Linda Bahry's medical records from Shepherdstown Family Practice, P.C, speak for themselves and are incorporated herein by reference. 17-22. Denied, pursuant to the provisions of Pa.R.C,P. 1029(e). COUNT I LINDA F. BAHRY V. JANET CINCOTTA. M.D. AND SHEPERDSTOWN FAMILY PRACTICE. P.C. 23. Answering Defendant hereby incorporates by reference, her responses to Paragraphs 1 through 22 of this Answer as if fully set forth herein. 24. Denied. The allegations contained in this paragraph of Plaintiff's Complaint are conclusions of law as opposed to statements of fact and no response is required. To the extent 3 ~ , . , ,~~- "'. - ,,' -. ,:" , - -.' , " ,," -,~. ""-~-; '-;, '<'-',",--;':,:" - -"""-! '".' ~.- , ,--,- '",,- "",,--".L"';'.",--, ,,,,,,',,~,_ "',,,:_ -~ -, ~;..,:! a response may be deemed required, Answering Defendant avers that with respect to her professional involvement in this matter, she at all times acted appropriately and in a fashion commensurate with the standard of health care applicable under similar circumstances and that she was in no way negligent. By way of further response, Answering Defendant in no way negligently or otherwise increased the risk, caused or contributed to cause any injury or damage to Plaintiffs. 25. Denied. The allegations contained in this paragraph of Plaintiff's Complaint are conclusions of law as opposed to statements of fact and no response is required. To the extent a response may be deemed required, Answering Defendant avers that with respect to her professional involvement in this matter, she at all times acted appropriately and in a fashion commensurate with the standard of health care applicable under similar circumstances and that she was in no way negligent. By way of further response, Answering Defendant in no way negligently or otherwise increased the risk, caused or contributed to cause any injury or damage to Plaintiffs, 26. Denied. The allegations contained in this paragraph of Plaintiff's Complaint are conclusions of law as opposed to statements of fact and no response is required. To the extent a response may be deemed required, Answering Defendant avers that with respect to her professional involvement in this matter, she at all times acted appropriately and in a fashion commensurate with the standard of health care applicable under similar circumstances and that she was in no way negligent. By way of further response, Answering Defendant in no way negligently or otherwise increased the risk, caused or contributed to cause any injury or damage to Plaintiffs. 4 ,,"'"' '--<' -',"'.'" "',-,~,,- ,,~,,-~d.' -..'", -,-; 'e-,' " ,,",.-"-.',,-' -, ,,- ".-,,,,;;,_-_. "-0';0;"_':'''-< - ,-C <,,_,-_; r"j 27. Denied. The allegations contained in this paragraph of Plaintiff's Complaint are conclusions of law as opposed to statements of fact and no response is required. To the extent a response may be deemed required, Answering Defendant avers that with respect to her professional involvement in this matter, she at all times acted appropriately and in a fashion commensurate with the standard of health care applicable under similar circumstances and that she w'!s in no way negligent. By way of further response, Answering Defendant in no way negligently or otherwise increased the risk, caused or contributed to cause any injury or damage to Plaintiffs. After reasonable investigation, Answering Defendant is without knowledge or information sufficient to form a belief as to the truth of the averments with respect to Plaintiff's medical bills as contained in this paragraph of Plaintiffs' Complaint, and the same are deemed denied and proof demanded at the time of trial. 28. Denied. The allegations contained in this paragraph of Plaintiff's Complaint are conclusions of law as opposed to statements of fact and no response is required. To the extent a response may be deemed required, Answering Defendant avers that with respect to her professional involvement in this matter, she at all times acted appropriately and in a fashion commensurate with the standard of health care applicable under similar circumstances and that she was in no way negligent. By way of further response, Answering Defendant in no way negligently or otherwise increased the risk, caused or contributed to cause any injury or damage to Plaintiffs. After reasonable investigation, Answering Defendant is without knowledge or information sufficient to form a belief as to the truth of the averments with respect to Plaintiff's loss of earnings and impairment of earning capacity as contained in this paragraph of Plaintiffs' Complaint, and the same are deemed denied and proof demanded at the time of trial. 5 .-,'-' ,-" , "",,,;',_,"C,,'>-", "--''',i', '. ]}__O>;' ;;";C'-~:-;'F\"'~""""-'~"~;' /_,,, 29. Denied. The allegations contained in this paragraph of Plaintiff's Complaint are conclusions of law as opposed to statements of fact and no response is required. To the extent a response may be deemed required, Answering Defendant avers that with respect to her professional involvement in this matter, she at all times acted appropriately and in a fashion commensurate with the standard of health care applicable under similar circumstances and that she was in no way negligent. By way of further response, Answering Defendant in no way negligently or otherwise increased the risk, caused or contributed to cause any injury or damage to Plaintiffs. After reasonable investigation, Answering Defendant is without knowledge or information sufficient to form a belief as to the truth of the averments with respect to Plaintiff's pain and suffering as contained in this paragraph of Plaintiffs' Complaint, and the same are deemed denied and proof demanded at the time of trial. WHEREFORE, Answering Defendant demands judgment in her favor and against Plaintiffs without cost to her. COUNT II MICHAEL BAHRY V. JANET CINCOTTA. M.D. AND SHEPERDSTOWN FAMILY PRACTICE. P.C. 30. Answering Defendant hereby incorporates by reference, her responses to Paragraphs 1 through 29 of this Answer as if fully set forth herein. 31. Denied. The allegations contained in this paragraph of Plaintiff's Complaint are conclusions of law as opposed to statements of fact and no response is required. To the extent a response may be deemed required, Answering Defendant avers that with respect to her professional involvement in this matter, she at all times acted appropriately and in a fashion commensurate with the standard of health care applicable under similar circumstances and that 6 _,n,n, , ^' r,o -, _ ,~', _N_ ~, ---'j,-'- ;~''''-''' "-,~,, w__~- ~ ",-, ,k":, ," - ,>"',:":,-"",~-,,~ '_""-;"~"',,' _,~~ "- "',__ "~",~" she was in no way negligent. By way of further response, Answering Defendant in no way negligently or otherwise increased the risk, caused or contributed to cause any injury or damage to Plaintiffs. After reasonable investigation, Answering Defendant is without knowledge or information sufficient to form a belief as to the truth of the averments with respect to Plaintiff, Michael Bahry's claim for loss of consortium as contained in this paragraph of Plaintiffs' Complaint, and the same are deemed denied and proof demanded at the time of trial. WHEREFORE, Answering Defendant demands judgment in her favor and against Plaintiffs without cost to her NEW MATTER By way of further response to the allegations contained in Plaintiffs' Complaint, Answering Defendant hereby raises the following New Matter in accordance with Pennsylvania Rule of Civil Procedure 1030: 32. Answering Defendant hereby incorporates by reference, her responses to Paragraphs 1 through 31 of this Answer as if fully set forth herein. 33. Plaintiffs' Complaint fails, in whole or in part, to state a claim against Answering Defendant upon which relief can be granted. 34. At no time relevant hereto was any other natural person, partnership, corporation or other legal entity acting or serving as an agent, servant, employee or otherwise for or on behalf of Answering Defendant. 35. All care and treatment rendered to Plaintiff by the employees, agents, apparent agents and/or servants of Answering Defendant was at all times appropriate, reasonable and 7 '-', ";:'" -<, ~'_""_'_,'C_,'",-'_' -' -' ',. . c. ",_,';_'.' ,"' ,._,' _:"':;;;";b",~,', ,',;', "i'~""[.';"<"'_:!;; _ k',U:'i within the required standards of medical care and did not cause any injury or damage to Plaintiffs. 36. Insofar as the Answering Defendant or any person for whom she is or may be vicariously liable, elected a treatment modality which is recognized as proper, but may differ from another appropriate treatment modality, then Answering Defendant raises the "two schools of thought" defense. 37. Whatever injuries and damages, if any, sustained by Plaintiffs as averred in the Complaint were caused, in whole or in part, by persons or entities over whom Answering Defendant had no duty to supervise or control and, therefore, Answering Defendant is not liable and Plaintiffs may not recover against her. 38. Whatever injuries and damages, if any, sustained by Plaintiffs as averred in the Complaint were not caused by the conduct or negligence of Answering Defendant, but were caused, in whole or in part, or were contributed to by pre-existing medical conditions of Plaintiff, Linda Bahry, beyond the control of Answering Defendant and, therefore, Plaintiffs may not recover against her. 39. In the event that it is determined that Answering Defendant was negligent with regard to any of the allegations contained in, and with respect to Plaintiffs' Complaint, said allegations being specifically denied, said negligence was superseded by the intervening negligent acts of other persons, parties and/or organizations other than Answering Defendant and over whom Answering Defendant had no control, right or responsibility and, therefore, Answering Defendant is not liable. To the extent that the evidence may show that other persons, partnerships, corporations or other legal entities caused or contributed to the injuries or 8 - - .-, - :"- ~,. ,'"-c. ,";-,;'-.-'_. ';"d', .,-~, _"_,,~,,_,,~;,-,,J:. ;}\,;i> ,,",,,';< - -. l_--'~ exacerbation of the pre-existing conditions of Plaintiff, Linda Bahry, then the conduct of Answering Defendant was not the legal cause of such conditions or injuries. 40. Any acts or omissions of Answering Defendant alleged to constitute negligence were not substantial factors contributing to the injuries and damages alleged in Plaintiffs' Complaint. 41. Based upon the allegations set forth above and to the extent that discovery or the evidence adduced at trial may further establish the existence thereof, Plaintiffs assumed the risk of the outcome in this case and Answering Defendant asserts the defense of assumption of the risk. 42. Based upon the allegations set forth above and to the extent that discovery or the evidence adduced at trial may further establish the existence thereof, Plaintiffs were negligent and/or caused or contributed to the outcome in this case, Answering Defendant asserts the defense of contributory negligence and comparative negligence. 43. To the extent applicable or to the extent that it may later become applicable, Answering Defendant pleads the statute of limitations to personal injury actions to preserve this affirmative defense for the record. 44. Answering Defendant asserts all defenses and immunities afforded under the Health Care Services Malpractice Act, as amended. 45. For the purpose of preserving the same, and subject to discovery, all or some of Plaintiffs' claims may be barred pursuant to the affirmative defenses of release, offset or accord and satisfaction. 9 '-y- - ,-, ,.,- - ~, _ ~,:,.", ,," w_'~ . . ';,{~""n,-:.,- ~_ ~ C' _ _-~c .~'- o.-:~-';",;_:_" '~":""::-i,-,-,;_",(-~".--"~-t",, ;;:; ,~,." ,-"",'.! WHEREFORE, Answering Defendant demands judgment in her favor and against Plaintiffs without cost to her. Respectfully submitted, THOMAS, THOMAS & HAFER, LLP By: ~~.d~~ Sarah W. Arosell, Esquire 1.0.#58797 305 North Front Street P.O, Box 999 Harrisburg, PA 17108-0999 (717) 255-7231 Attorneys for Defendant, Janet Cincotta, M.D. DATE: ~~~I 10 , 'T , ~ -,-,-- "^' ,_..,,'-",-, - - "',-"-- --'0'''' - _ ~ ';-,,_~-.- , _;.?,.__,_ '-';'.-' VERIFICATION I, JANET F. CINCOTTA, M.D., have read the foregoing ANSWER WITH NEW MATTER TO PLAINTIFFS' COMPLAINT which has been drafted by my counsel. The factual statements contained therein are known by me and are true and correct to the best of my knowledge, information and belief. This statement and verification is made subject to the penalties of 18 Pa.C.S.A. ~ 4904 relating to unsworn falsification to authorities, which provides that, if I knowingly make false averments, I may be subject to criminal penalties. \ ,", :t~ fhLl F. Cincotta, M.D:9~ ", ;2..,0-07 J DATE: ',h-_ _','_ -_0{--~.~_-~,~, --O_'~~-,,-""W--" ,-.-, '-<,C'.. _, d'->;'"'-';"." "/' "",,;'-.;'~'>~-;;'" ':"';';';(;'>"'""'_ "';-"0-';: CERTIFICATE OF SERVICE I, Sarah W. Arosell, Esquire, hereby certify that I have served a true and correct copy of the foregoing ANSWER WITH NEW MATTER TO PLAINTIFFS' COMPLAINT on the following persons by placing a copy of the same in the United States mail, first class mail, directed to their office addresses as follows: James R. Ronca, Esquire SCHMIDT, RONCA & KRAMER 209 State Street Harrisburg, PA 17101 Sheperdstown Family Practice 2140 Fisher Road Mechanicsburg, PA 17055 THOMAS, THOMAS & HAFER, LLP {A1tX.~/a"~ Sarah W. Arosell, Esquire By: DATE: :1../o/0f :120253.1 11 ".,,- -"J _"O;~-~~" ',",. - <. -.'"' ~-" ""'" .~- " "ill. '.;;.-,,,,,~~~~ - ," " - < ~ ~. '--' .,,~, ", (') C.'i n C~ " ::=;:...~ ..." .-, ;,} , , "; r-n , )j ~~ L' I '7' ,"-' ~'2 c,-" '",",:, r::; ~~ ," , -,) L~\ ., " "::~. () , ,- , , f';' () ;,J ["";"j ;;-. <:;: ---I 'c- L_ ~ ~ --, c' ~< -< ...l v,'O ~~ ,--, ~ . " -1-.; ~ L; ~', --""~ . LINDA F. BAHRY and MICHAEL BAHRY, her husband IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA Plaintiffs NO. 00.8468 Civil Term v. CIVIL ACTION - LAW JANET F. CINCOTTA, M.D. and SHEPERDSTOWN FAMILY PRACTICE, P.C. Defendants : JURY TRIAL DEMANDED PLAINTIFFS' ANSWER TO DEFENDANT JANET CINCOTTA,M.D.'S NEW MATTER 32. Paragraph 32 of the New Matter merely incorporates the paragraphs of the Answer and, therefore, no response is required since they are addressed in the Complaint, which is incorporated herein by reference. 33. Paragraph 33 is a conclusion of law which requires no answer. 34. Plaintiffs do not understand paragraph 34. Plaintiffs believe and therefore aver that at the time indicated, the Defendant Cincotta was an agent, servant or employee of Defendant Sheperdstown Family Practice. As to any other part of this averment, Plaintiffs are without sufficient knowledge to form a believe and the same are, therefore, denied and strict proof is demanded at the time of trial. 35. Paragraph 35 is a conclusion of law which requires no answer and in the event it is determined that paragraph 35 contains averments of fact, the same are therefore denied and Plaintiffs incorporate the averments of the complaint. - ....:.L '- , - .~- ..:.... - 36. Paragraph 36 is a conclusion of law which requires no answer and in the event it is determined that paragraph 36 contains averments of fact, the same are therefore denied and Plaintiffs incorporate the averments of the complaint. 37. Paragraph 37 is a conclusion of law which requires no answer and in the event it is determined that paragraph 37 contains averments of fact, the same are therefore denied and Plaintiffs incorporate the averments of the complaint. 38. Paragraph 38 is a conclusion of law which requires no answer and in the event it is determined that paragraph 38 contains averments of fact, the same are therefore, denied and Plaintiffs incorporate the averments of the complaint. 39. Paragraph 39 is a conclusion of law which requires no answer and in the event it is determined that paragraph 39 contains averments of fact, the same are therefore denied and Plaintiffs incorporate the averments of the complaint. 40. Paragraph 40 is a conclusion of law which requires no answer and in the event it is determined that paragraph 40 contains averments of fact, the same are therefore denied and Plaintiffs incorporate the averments of the complaint. 41. Paragraph 41 is a conclusion of law which requires no answer and in the event it is determined that paragraph 41 contains averments of fact, the ,of . .-j ,~ '.- " same are therefore denied and Plaintiffs incorporate the averments of the complaint. 42. Paragraph 42 is a conclusion of law which requires no answer and in the event it is determined that paragraph 42 contains averments of fact, the same are therefore denied and Plaintiffs incorporate the averments of the complaint. 43. Paragraph 43 is a conclusion of law which requires no answer. If it is determined that paragraph 43 is averment of fact, it is denied, the Plaintiffs having fIled suit within the applicable statute of limitations. 44. Paragraph 44 is a conclusion of law which requires no answer and in the event it is determined that paragraph 44 contains averments of fact, the same are therefore denied and Plaintiffs incorporate the averments of the complaint. 45. Denied. On the contrary, it is averred that there have been no releases, offset or accord and satisfaction. WHEREFORE, Plaintiffs demand judgment of the Defendant as more specifically requested in the Complaint. Respeotfully submitted, SCHMIDT ONC & KRAMER P.C. By: Dated:d..';Jo -0 I / , . s . . Ronca, EsqUIre pre! e Ct. LD. #25631 ; 209 ' te Street H risburg,PA 17101 (717) 232-6300 Attorneys for Plaintiff -""~~'~. 1;,'_' <~~"" . . CERTIFICATE OF SERVICE AND NOW, this~ day of February 2001, I, James R. Ronca, hereby certify that I have served a true and correct copy of the foregoing by depositing a copy of the same in the United States Mail, postage prepaid, at Harrisburg, Pennsylvania, addressed to: Sara W. Arosell, Esquire Thomas, Thomas & Hafer, LLP P.O. Box 999 Harrisburg, PA 17108 ./. ~ ~- ~_~ 1~'~""";"'il~&jIiii~~ ~ fO"~,~,, . 1~![J~;~~j'-'",""'~~;;:'6--"",~,~~_!J!lllW" ",..h-.nf,.~~'~'.- liIIU -"~~l!L!. nlJlt ~ 'HI "", ," ."~ .] .^~ 0 0 "-, ~: <~j ........ v ,,-, 01 ITi q t.:o Z 2:: r" N (f) -< ~ , ~C~~ ~TJ -_.. ~,.~. > U f;.' C) c:: Z ::-,..:.! -< "-'- -< CJ ..),.J -< . - . " , ~ -"j.-".--" ',.-,' . :'1 . f LINDA F. BAHRYand MICHAEL BAHRY, her husband IN THE COURT OF COMMON PLEAS CUMBERLANDCOUNTY,PENNSYLVAN~ Plaintiffs NO. 00-8468 Civil Term v. CIVIL ACTION - LAW JANET F. CINCOTTA, M.D. and SHEPERDSTOWN FAMILY PRACTICE, P.C. Defendants : JURY TRIAL DEMANDED CERTIFICATE OF SERVICE AND NOW, this 30th day of March, 2001, I, Shawn T. Peterson, hereby certify that I have served a true and correct copy of the foregoing PLAINTIFFS' RESPONSES TO DEFENDANT JANET F. CINCOTTA, M.D.'S REQUEST FOR PRODUCTION OF DOCUMENTS (SET I) by depositing a copy of the same in the United States Mail, postage prepaid, at Harrisburg, Pennsylvania, addressed to: Sarah W. Arosell, Esquire Thomas, Thomas & Hafer, LLP 305 North Front Street P.O. Box 999 Harrisburg, PA 17108-0999 Respectfully submitted, SCHMIDT, RONCA & KRAMER, P.C. BY~~~ Shawn T. Peterson, Paralegal 209 State Street Harrisburg,PA 17101 (717) 232-6300 ,lil:i;iwiialmi$\ll~a1i~~~ll!imiit~ w~ (~.i;,~~'-"""J~~OO,gjl1;'lti~"i'l;;~4!,';W..J)tWl~~~llhitli. , " . " " .,.~ ,'W ~, "-~,~-" --,"-~"" . ~~ ,~ <~-' ~" ."" ~ ~ ~"@ . t:1!lll.linl~1- '" ,~ o c <: -uR' me' Z:l: Z(;~ 0"": "-(L, r:::.c:: <,- ~c- ""~_ r-, ~c. Z ~ ~ c;:) ~ -;',:J I rv 'I c' J} 'i , '~;,3 - ;"~) -r; -~- - -i, <~E~ ~".. ,en q :r; ~ t:? "-P U1 IT ..,' " .' ,- J .--.~-~ '~. . LINDA F. BAHRY and MICHAEL BAHRY, her husband IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA Plaintiffs NO. 00-8468 Civil Term v. CML ACTION - LAW JANET F. CINCOTTA, M.D. and SHEPERDSTOWN FAMILY PRACTICE, P.C. Defendants : JURY TRIAL DEMANDED CERTIFICATE OF SERVICE AND NOW, this 30th day of March, 2001, I, Shawn T. Peterson, hereby certify that I have served a true and correct copy of the foregoing PLAINTIFFS' ANSWERS TO DEFENDANT JANET F. CINCOTTA, M.D.'S INTERROGATORIES (SET I) by depositing a copy of the same in the United States Mail, postage prepaid, at Harrisburg, Pennsylvania, addressed to: Sarah W. Arosell, Esquire Thomas, Thomas & Hafer, LLP 305 North Front Street P.O. Box 999 Harrisburg, PA 17108-0999 Respectfully submitted, SCHMIDT, RONCA & KRAMER, P.C. By,~~k Shawn T. Peterson, Paralegal 209 State Street Harrisburg, PA 17101 (717) 232-6300 jlll!!it"iiiiiliif1lMl!~~!!!l!!lli!l!!!~.i",i;;j;:t.~l'\Ji!liO!i'itM_~"""'~' .=' ~ ":1llIiiilu1ol'if"!'-\J1~.!i"L~.l!J.'4.~.;,Wi;i6l; ~ ,~~~ h,,~.~." -'i~lii\i;li~uU- . 'UtllW , ~ '" " =,-,,'=' ~ ~ 0 0 ~. ~.,,~ e --I' ?' "". -~ "'U-CC " rTl fT' :;..J :;-':::::::1.:: I , ~:0, :z:C (f) ~2c r...,) , ~~~ 2' ~! c) <' -0 , ~'J Fe -",~ C) Zc'J w :-"""", ,il Fe :<~ "'4- :z. ;:,..:> > =< (J1 ~ "'!,rl.~'~'."~.~ ",--. - .. , . " ,_I" : __ . ,,(~',,''':d~'"'' - '''~-~i -' LINDA F. BARRY and MICHAEL BARRY, her husband IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA Plaintiffs NO. 00-8468 Civil Term v. : CML ACTION - LAW JANET F. CINCOTTA, M.D. and SHEPERDSTOWN FAMILY PRACTICE, P.C. Defendants : JURY TRIAL DEMANDED PRAECIPE TO SUBSTITUTE VERIFICATION TO THE PROTHONOTARY: Kindly substitute the attached Verification to Plaintiffs Answers to Defendant Janet F. Cincotta, M.D.'s Interrogatories (Set I) which was filed with this Court on or about April 1, 2001 in the above-captioned matter. Thank you. ,.,~ ./ Respectfully s~hmired, . SCHMI(' ~~Ncl~KRAMER, P.C. t/ ./ By James ./ 1.0. 0.' 631 2 S e Street Harris urg, PA 17101 (717) 232-6300 Attorney for Plaintiffs Dated: L\/ Ib( 0\ .;Ii ,- , - , ' '~k .~ C - , ., '-- - "' - '~i VERIFICATION BASED UPON PERSONAL KNOWLEDGE AND INFORMATION SUPPLIED BY COUNSEL We, Linda F. Bahry and Michael Bahry, hereby verify that we are the Plaintiffs in the foregoing action and that the attached Answers to Interrogatories are based upon the information which has been gathered by our counsel in preparation of this lawsuit. The language of the Answers is that of counsel and is not ours. We have read the Answers, and to the extent that they are based upon information which we have given to counsel, they are true and correct to the best of our knowledge, information, and belief. To the extent that the contents of the Answers are that of counsel, we have relied upon counsel in making this Verification. We understand that intentional false statements herein are made subject to the penalties of 18 Pa.C.S.A. ~ 4904 relating to unsworn falsifications made to authorities. .k_k i~ LINDA F. BAHRY ~4t-' Date: J-q-Q J -'"->~ ^ -0>.- _: j-- " ~~ -"~ ""'~\, o' LINDA F. BAHRYand MICHAEL BAHRY, her husband IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVAlITIA PlaintifTs NO. 00-8468 Civil Term v. CIVIL ACTION - LAW JANET F. CINCOTTA, M.D. and SHEPERDSTOWN FAMILY PRACTICE, P.C. Defendants : JURY TRIAL DEMANDED CERTIFICATE OF SERVICE AND NOW, this 16th day of April, 2001, I, Shawn T. Peterson, hereby certifY that I have served a true and correct copy of the foregoing by depositing a copy of the same in the United States Mail, postage prepaid, at Harrisburg, Pennsylvania, addressed to: Sarah W. Arosell, Esquire Thomas, Thomas & Hafer, LLP 305 North Front Street P.O. Box 999 Harrisburg, PA 17108-0999 Respectfully submitted, SCHMIDT, RONCA & KRAMER, P.C. By ~'\~ Shawn T. Peterson, Paralegal 209 State Street Harrisburg, PA 17101 (717) 232-6300 ~~'mt,<!!..~'lNI!:ilillIM~\I&il~Wj;\"-~iiil,t~l\f,';;:~;~~~"~"~liJhtjHii~U~'...o- ~~ if'" ~lMI[I' - ~~ ~- , '~ (') Co:> ,- , c: , <" ;1'7.... 1:7 [.:.'; m roo ::'CJ Z 2" ," co co .....'< r:: '::;".': ,. -~>. h )> c.: co ',J 2: <.~ =< ,.'- ~D r" -< j .-co "- ~- ~- -. ~ ,'. ~'~ '-;:--"~,,,.- .'..'''1 LINDA F. BAHRYand MICHAEL BAHRY, her husband, Plaintiffs IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 00-8468 CIVIL ACTION - LAW v. JANET F. CINCOTTA, M.D. and SHEPERDSTOWN FAMILY PRACTICE, P.C., JURY TRIAL DEMANDED Defendants As a prerequisite to service of a subpoena for documents and things pursuant to Rule 4009.22, Defendants certify that (1) a notice of intent to serve the subpoena with a copy of the subpoena attached thereto was mailed to each party on May 22, 2001; (2) a copy of the notice of intent, including the proposed subpoena, is attached to this certificate; (3) Attorney for the Plaintiffs, Mr. Ronca, has agreed to waive the 20-day notice and has indicated he has no objection to the subpoena; (4) the subpoena which will be served is identical to the subpoena which is attached to the notice of intent to serve the subpoena, THOMAS, THOMAS & HAFER, LLP ~~ SARAH W. AROSELL, ESQUIRE 305 NORTH FRONT STREET - 6TH FLOOR P.O. BOX 999 HARRISBURG, PA 17108-0999 (717) 255-7231 ATTORNEY FOR DEFENDANTS Date: 6./S-/0! I ( THOMAS, THOMAS & HAFER, LLP By: Sarah W. Arosell, Esquire Identification No. 58797 305 North Front Street P. O. Box 999 Harrisburg, PA 17108 (717) 237-7100 LINDA F. BAHRYand MICHAEL BAHRY, her husband, Plaintiffs v. JANET F. CINCOTTA, M.D. and SHEPERDSTOWN FAMILY PRACTICE, P.C" Defendants t,: ,~ '-;'-', Attorney for Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 00-8468 CIVIL ACTION - LAW JURY TRIAL DEMANDED TO: James R. Ronca, Esquire SCHMIDT, RONCA & KRAMER 209 State Street Harrisburg, PA 17101 Defendants intend to serve a subpoena identical to the one that is attached to this notice. You have twenty (20) days from the date listed below in which to file of record and serve upon the undersigned an objection to the subpoena. If no objection is made, the subpoena may be served. Date: sj .2Z/a I / THOz;a:::;r' SARAH W. AROSEll, ESQUIRE ~ 1.0. 58797 305 NORTH FRONT STREET - 6TH FLOOR P.O. BOX 999 HARRISBURG, PA 17108-0999 (717) 255-7231 ATTORNEY FOR DEFENDANTS " COMMONWEAUH OF PENNSYLVANIA COUNTY OF CUMBERLAND LINDA BAHRY and MICHAEL BAHRY, her husband, Plaintiffs v. JANET F. CINCOTTA, M.D. and SHEPERDSTOWN FAMILY PRATICE, P.C. SUBPOENA TO PRODUCE DOCUMENTS OR THINGS FOR DISCOVERY PURSUANTTO RULE 4009.22 File No. 00-8468 TO', HarrisQw;s.HospitaJ. 111 S, Front strE>et, HArrishurg, PA 17101 (Name 01 Person or Entity) You may deliver or maillegibie copies of the documents or produce things requested by this subpoena, together with the certificate of compliance, to the party making this request at the address listed above. You have the right to seek in advance the reasonable cost of preparing the copies or producing the things sought. If you fail to produce the documents or things required by this subpoena within twenty (20) days after its service, the party serving this subpoena may seek a court order compelling you to comply with it. THIS SUBPOENA WAS ISSUED AT THE REQUEST OF THE FOllOWING PERSON: Name Sarah W. Arosell, Esquire Thomas, Thomas & Hafer, LLP Address: P. O. Box 999, 305 N. Front St. Harrisburg, PA 17108-0999 Telephone: (717) 255-7231 Supreme Court 10 # 58797 Attorney For.__ Defendants BY THE COURT: Prothonotary/Clerk, Civil Division Date. Seal of the Court Deputy (Elf. 7/97) . ~ I, SARAH W. AROSELL, ESQUIRE of the law firm of THOMAS, THOMAS, & HAFER, LLP do certify that I served the foregoing NOTICE OF INTENT TO SERVE A SUBPOENA TO PRODUCE DOCUMENTS AND THINGS FOR DISCOVERY PURSUANT TO RULE 4009.21 on the following person(s), by depositing the same in the United States Mail, postage prepaid, at Harrisburg, Pennsylvania addressed as follows: James R. Ronca, Esquire SCHMIDT, RONCA & KRAMER 209 State Street Harrisburg, PA 17101 THOMAS, THOMAS & HAFER, LLP ~.JJa~ SARAH W. AROSELL, ESQUIRE Date: 372:2.../11 I "r'- "", --.,,',,-,--", ,"'- . -, . ~.. ,~, I, Sarah W. Arosell, Esquire of the law firm of THOMAS, THOMAS, & HAFER, LLP do certify that I selVed the foregoing CERTIFICATE PREREQUISITE TO SERVICE OF A SUBPOENA PURSUANT TO RULE 4009.22 on the following person(s), by depositing the sarne in the United States Mail, postage prepaid, at Harrisburg, Pennsylvania addressed as follows: James R Ronca, Esquire SCHMIDT, RONCA & KRAMER 209 State Street Harrisburg, PA 17101 THOMAS, THOMAS & HAFER, LLP ~~~ Sarah W. Arosell, Esquire Date: &/!;)10/ -"ii, MAY 0 1 2003 ~ LINDA F. BAHRY and MICHAEL BAHRY, her husband IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA Plain tiffs NO. 00-8468 Civil Term v. CIVIL ACTION - LAW JANET F. CINCOITA, M.D. and SHEPERDSTOWN FAMILY PRACTICE, P.C. Defendants : JURY TRIAL DEMANDED ORDER After review of the Plaintiffs STATEMENT OF MATERIAL FACTS UNDER Pa.R.C.P. 2352(a) SUBSTITUTING MICHAEL BAHRY, ADMINISTRATOR OF THE ESTATE OF LINDA F. BAHRY, DECEASED, AND MOTION FOR LEAVE TO AMEND THE CAPTION AND TO AMEND T,I;IE, ~OMPLAINT TO REFLECT CLAIMS I 'l>>J .....rlt ttTc. (Q)'>LUJ~<iJJt<.. if bP/"65.",1 LQUJ\(.C I FOR WRONGFUL DEATH AND SURVIVAL, the Court grants the Plaintiffs M~tion " and Plaintiff is given leave (1) to amend the caption to reflect the substitution of the Plaintiff and the caption is hereby amended by substituting Michael Bahry, Administrator of the Estate of Linda F. Bahry for Linda Bahry and Michael Bahry and (2) Plaintiff is given leave to amend the Complaint to reflect claims for wrongful death and survival arising from the death of Linda F. Bahry. BY THE COURT: U/~ J. ~ ~. ~~. f1t. ~.~~~ 6,).0. 03 ~ ~ ~ ," ~ -- h'CC'."," ~ ".", C' _ _ ., ",r, ~" , I ~" '7 \"l \",,'i f... '- C): ?It, "'i',; \\\ll\f . I'~.';'_ ..',_,' '.' ,; :',/,J'Ul ,\ \ CUj\'~''-:~;:;\ :~':-"~; \il',\i\\ ?\::\II\l~) i I_,r',; ,II ~,"""'" ' ", _aJ~ijlf~_IYHT T.",,,,,,:~T_TI r _ ~lIII!'[!ll1J)1Uir l1~f!iW"tg'':Im:M!,,:jofl~~.iI~'_I!'!..I[! _~ ~'m "~ '0"_ JIiIIM@l~ID~,,~___"_., .' I I,"" .~ , ! I I I f ~ ~ ' I I ~ ,,~ Y-14 03 14:42 FROM:THOMAS THOMAS 7172377105 TD:7172326467 PAGE: 01/01 . THOMAS, THOMAS & HAFER LLP ATTOltNEYS AT LAW www.rrhlaw.COIII 305 North Front5tree~ P,O. Bo~ 999. Harrisburg,PA 17108 Phone: (717) 237-7100 Fa~: (7t7) 237,1105 Sarah W, A r03811 (717) 255.7231 swa@tthlaw,com May 14, 2003 VIA TELECOPIER - 232.6467 James R. Ronca, Esquire SCHMIDT, RONCA & KRAMER, P.C. 209 State Street Harrisburg. PA 17101 RE: BAHRY V. CINCOTTA, ET AL. Dear Jim: In response to your correspondence dated May 12, 2003, please advise the Court that I concur in Plaintiff's Motion to Amend the Caption and Complaint in the above-referenced matter. Please provide me with a copy of the Court's Order in this regard. Very truly yours, THOMAS, THOMAS &IHAFfR. LLP f.~~,,~u// By: \....../' C1 --~ Sarah W. Arosell SWA!gmc . - Lehigh VaDey Office; 3400 Bath Pike, Suite 201. Bethlehem. PA '18017 . )'hone: (610) 868-1675. Pax: (610) 868-1702 " ~.'~ 'i: "'/,8Y q'~ H}'iV LnJ 11.--, ; Q -~',' , L: L~. Clij\/i'=-.'", ,.T\f , . '--".1 ,~-, ,,' _' >>' I 'i j J i::.l!:I" 'f,'('V:;,( "I' I L. 'iI\!0iLvi\r<i/'\ 1" ~ ~t'P;" ~" ~-" _!JFl~,__ -~, '. ~'"~ o '~_~_ , ~ ~ ,_. ~_ll'JI:W:~fl!\f'm'if,l~l~~,ti~'if.w~ -~ - .J~"'="""",". ~ -,~-" ,~' , ~ ... ,~.~ - ]'.~ ,..-.,.; . . LINDA F. BAHRYand MICHAEL BARRY, her husband IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA Plaintiffs NO. 00-8468 Civil Term v. CIVIL ACTION - LAW JANET F. CINCOTTA, M.D. and SHEPERDSTOWN FAMILY PRACTICE, P.C. Defendants : JURY TRIAL DEMANDED PLAINTIFF'S STATEMENT OF MATERIAL FACTS UNDER Pa.R.C.P. 2352(a) SUBSTITUTING MICHAEL BAHRY, AQMINISTRATOR OF THE ESTATE OF LINDA F. BAHRY, DECEASED, AND MOTION FOR LEAVE TO AMEND THE CAPTION AND TO AMEND THE COMPLAINT TO REFLECT CLAIMS FOR WRONGFUL DEATH AND SURVIVAL 1. Linda F. Bahry died on July 9,2001. 2. Michael Bahry was granted letters testamentary and, thereby, appointed the Administrator of the Estate of Linda F. Bahry by the Register of Wills of York County, Commonwealth of Pennsylvania, on August 3, 2001, A Short Certificate is attached hereto as Exhibit A. 3. Michael Bahry has succeeded Linda F. Bahry by operation of the appointment of the letters testamentary. 4. Michael Bahry, Administrator of the Estate of Linda F. Bahry, is hereby substituted for Linda Bahry and Michael Bahry as the Plaintiff in the above-captioned case. 5. Plaintiff requests leave of the Court to amend the caption to reflect the substitution of the Plaintiff. .ili" ,,-- ---< ~j I - 6. Plaintiff requests leave of the court to amend the Complaint to reflect claims for wrongful death and survival arising from the death of Linda F. Bahry. Wherefore, the Plaintiff respectfully requests that the Court issue the attached proposed Order. Respectfully submitted, KRAMER, P.C. / Dated:0v~q{)~ Attorneys for Plaintiff ~,".... STATE OF PENNSYLVANIA COUNTY OF YORK estate of BARRY LINDA F (LAt:i'l, J:I.l.Kt:il, JVI.LUULlS) a/k/a PELKEY LINDA F in said county, deceased, to 2. ,j, ~ - -- " '~k...-J ~;; SHORT CERTIFICATE I, BRADLEY C JACOBS Register for the Probate of Wills and Granting Letters of Administration &c. in and for said County of YORK do hereby certify that on the 3rd day of August Two Thousand and One, Letters of ADMINISTRATION in common form were granted by the Register of said County, on the , late of MONAGHAN TOWNSHIP A.D., BARRY MICHAEL and that same has not since been revoked. IN TESTIMONY WHEREOF, I have hereunto set my hand and affixed the seal of said office at YORK, PENNSYLVANIA, this 3rd day of August A.D., Two Thousand and One. File No, 67-01-01109 b"Jh Date of Death 7 /09/2001 ~Jj'J./ C.- O~ v./ Register S.S. # 103-50-2066 ~ I "A"IT / NOT VALID WITHOUT IMPRESSED SEAL ~ '< "" ',' ,l""""""'" - c. '- - , a:,,~!1""';"!f-l!.' CERTIFICATE OF SERVICE AND NOW, this ~ &Jay of April 2003, I, James R. Ronca, Esquire, Attorney for Plaintiff, hereby certify that I have served a true and correct copy of the foregoing upon all counsel of record by depositing same in the United States Mail, first class postage prepaid, at Harrisburg, Pennsylvania, addressed to: Sara W. Arosell, Esquire Thomas, Thomas & Hafer, LLP P.O. Box 999 Harrisburg, PA 17108 '--:'J~,'- ~;-~u ft.~', ~"""_i'i@f.l~~-i>iilft10?_~"'-"'~1$p3i5;~i~~.t"" , " _"~_'r "_""""_" ,,,^,,, "'~"R U'J' '~--1~ -JtlLIlU"--- ~l "< ,,~ ~ ~ -.""'~' -'~ i ~ il I lJ r, " ~ I' ~j " !I :1 r II 'I i (') '.~> 0 C (..) 'n s: }-~ -oR~; ''1) rn. ,_ ,::-,:J , ,- 2:0:,' Z C :,,,) ---".J ~',C ~-4;- C:J , ,~ r':-';'--: r4~ <\._~ E.r" t~2 -1""'; Zc (') >c r,) ~~fn ".~! Z -' =< :n :D '&" -< " F """" ~,-~~ ," .. - -. U"~ "~ ;Ii;,!~P.,,;:. MICHAEL BAHRY, INDIVIDUALLY AND AS THE ADMINISTRATOR OF THE ESTATE OF LINDA F. BAHRY, IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff NO. 00- 8468 Civil Term v. CIVIL ACTION - LAW JANET F. CINCOTTA, M.D. and SHEPERDSTOWN FAMILY PRACTICE, P.C. Defendants : JURY TRIAL DEMANDED NOTICE YOU HAVE BEEN SUED IN COURT. If you wish to defend against the claims set forth in the following pages, you must take action within twenty (20) days after this Complaint and Notice are served, by entering a written appearance personally or by attorney and filing in writing with the Court your defenses or objections to the claims set forth against you. You are warned that if you fail to do so the case may proceed without you and a judgment may be entered against you by the Court without further notice for any money claimed in the Complaint or for any other claim or relief requested by the Plaintiff. You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LOCAL HELP. Cumberland County Bar Association 2 Liberty Avenue Carlisle, PA 17013 (800) 990-9108 >_~~L"."", ~ ~~ ~ <.-.-~ ....~.."'- " MICHAEL BAHRY, INDIVIDUALLY AND AS THE ADMINISTRATOR OF THE ESTATE OF LINDA F. BAHRY, IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff NO. 00- 8468 Civil Term vi. : CIVIL ACTION - LAW JANET F. CINCOTTA, M.D. and SHEPERDSTOWN FAMILY PRACTICE, P.C. Defendants : JURY TRIAL DEMANDED NOTICIA Le han demandado a usted en la corte. Si usted quiere defenderse de esta!l demandas expuestas en las paginas siguientes, usted tiene viente (20) dias de plazo al partir de la fecha de la demanda y la notificacion. Usted debe presentar una apariencia escrita 0 en persona 0 por abogado y archivar en la corte en forma escrita sus defensas 0 sus objeciones alas demandas en contra de su persona. Sea avisado que si usted no se defiende, la corte tomara medidas y puede entrar una orden contra usted sin previa aviso 0 notificacion y por cualquier queja 0 alivio que es pedido en la peticion de demanda. Usted puede perder dinero 0 sus propiedades 0 otros derechos importante!l para usted. LLEVE ESTA DEMANDA A UN ABODAGO INMEDIATAMENTE. SI NO TIENE ABOGADO 0 SI NO TIENE EL DINERO SUFICIENTE DE PAGAR TAL SERVICIO, VAYA EN PERSONA 0 LLAME POR TELEFONO A LA OFICINA CUYA DIRECCION SE ENCUENTRA ESCRITA ABAJO PARA AVERIGUAR DONDE SE PUEDE CONSEGUIR ASISTENCIA LEGAL. Cumberland County Bar Association 2 Liberty Avenue Carlisle, PA 17013 (800) 990-9108 ,~...,,,,,,,,=- ... , - ,~ I I .....' ,- .'r;;;},-", MICHAEL BAHRY, INDIVIDUALLY AND AS THE ADMINISTRATOR OF THE ESTATE OF LINDA F. BAHRY, IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff NO. 00- 8468 Civil Term v. CIVIL ACTION - LAW JANET F. CINCOTTA, M.D. and SHEPERDSTOWN FAMILY PRACTICE, P.C. Defendants : JURY TRIAL DEMANDED AMENDED COMPLAINT AND NOW come the Plaintiffs, by their attorneys SCHMIDT, RONCA & KRAMER, P.C., and respectfully set forth as follows: 1. The Plaintiff, Michael Bahry, is the surviving spouse of Linda F. Bahry, deceased, and is the duly appointed administrator of her Estate, letters of administration having been granted on August 3,2001 by the Register of Wills of York County, Pennsylvania. Michael Bahry is an adult individual currently residing at 18 South Seasons Drive, Dillsburg, Pennsylvania, 17019. 2. The Defendant, Janet Cincotta, M.D. is a physician duly licensed to practice medicine in the Commonwealth of Pennsylvania with her principle office located at Sheperdstown Family Practice, P.C., 2140 Fisher Road, Mechanicsburg, Pennsylvania, 17055. f~- ~ ~ .~ ,~~ ~~_~ ~I.l '.~~ "~'""~,,, 3. At all times relevant to the Plaintiffs' cause of action, Defendant Cincotta was the agent, servant and employee of Sheperdstown Family Practice, P.C. 4. At all times relevant to the Plaintiffs' cause of action, Linda F. Bahry was a patient of Defendant Cincotta and Defendant Sheperdstown Family Practice, P.C. OPERATIVE FACTS 5. On or about December 8, 1998, the Linda F. Bahry attended a scheduled appointment with Defendant Cincotta at the Sheperdstown Family Practice, P.C. 6. At the aforesaid time and place, Linda F. Bahry presented with the following history and symptoms: (a) Change in bowel habits; (b) Rectal bleeding including a small amount of bright red blood; (c) Some generalized abdominal bloating; (d) Mild cramping and discomfort; and (e) Bowel movements that had increased in frequency up to four times per day. 7. Linda F. Bahry's date of birth was March 31, 1956, and at the time of the appointment on December 8, 1998, Linda F. Bahry was 42 years of age. 2 ~_. ~,'=fi~. . - -~.~. , ' , -<~'"~W,;t. 8. Defendant Cincotta's examination revealed the following: (a) examination of the anus, found no extensive hemorrhoid or fissure; (b) Digital rectal examination was negative with soft brown stool present; (c) Anoscopy performed, but did not reveal presence of definite polyps or internal hemorrhaging; and (d) Small area of irritation inside the anal verge was noted. Stool was strongly hemoccult positive. 9. Defendant Cincotta's initial impression was rectal bleeding. 10. Defendant Cincotta scheduled the Plaintiff for a sigmoidoscope on December 16, 1998. 11. Linda F. Bahry attended her appointment on December 16, 1998, and underwent a sigmoid examination by Defendant Cincotta. 12. At the appointment, Linda F. Bahry revealed to Defendant Cincotta that she had continued bleeding up until a day or so before' the appointment, to include some bright red rectal bleeding and blood intermixed with her stool. 13. A digital rectal exam was performed by Defendant Cincotta, which result was negative; a rigid sigmoidoscope was inserted up to approximately 15 centimeters with no lesions identified other than a slightly inflamed internal hemorrhoid. 3 14. Defendant Cincotta then performed an exam with a flexible sigmoidoscope and Defendant reported no diverticula, polyps, tumors, lesions, inflammatory changes or active bleeding. 15. Defendant Cincotta's impression was rectal bleeding in the Plaintiff, probably secondary to internal hemorrhoids, although no bleeding hemorrhoids were observed. 16. Defendant Cincotta treated the Plaintiff with Proctocort HC suppositories. 17. On or about May 16, 1999, Linda F. Bahry was admitted to the Harrisburg Hospital because of prolonged edema of her lower extremities. 18. A colonoscopy was performed showing a mass invading Linda F. Bahry's colon. A CT scan was then performed and revealed a large pelvic mass with extensive metastasis to Linda F. Bahry's liver. 19. After consult, Dr. Misas, of Susquehanna Surgeons, performed surgery on the Linda F. Bahry on May 20, 1999, in which the surgeon found a large left descending colon lesion, which was believed to be primary site of Linda's carcinoma. 20. The following surgical procedures were performed: (a) Left hemicolectomy with transverse colectomy; and (b) Left salpingo-oophorectomy. 21. The pathology report from the surgery showed poorly differentiated adenocarcinoma with extensive lymph-vascular invasion. 4 :,~"'....,,-,~~ -~~. "'"""'"'" - ...!.. . J J ~l!j<J,:iL"~ 22. Linda F. Bahry was discharged on June 5, 1999 for colostomy care and chemotherapy. COUNT I - SURVIVAL ACTION Michael Bahrv as the Administrator of the Estate of Linda F. Babry v. Janet Cincotta. M.D. and Sheuerdstown Familv Practice. P.C. 23. The prior allegations in paragraphs 1-22 are incorporated herein by reference as if set forth in full. 24. Plaintiff brings this action under the Pennsylvania Survival Statute, 42 PaC.S.A. !3 8302, and pursuant to 20 Pa.C.S.A. !3 3373. 25. Plaintiff believes and avers that Defendant Cincotta negligently failed to properly diagnose and to discover the presence of a cancerous tumor in Linda Bahry's descending colon during the care and treatment of Linda by Defendant Cincotta in December 1998. 26. Defendant Cincotta's negligence consisted of: (a) failing to advance the flexible sigmoidoscope adequately through the descending colon; (b) failing to observe the tumor in the descending colon during the sigmoidoscope; (c) failing to order a double contrast barium enema as a follow up to the sigmoidoscope exam when the simoidoscope did not rule out a tumor as the cause of the rectal bleeding; and 5 ~'_~.,o~_ ". ". J (d) failing to order a colonoscopy of the Plaintiff in order to rule out the presence of a cancerous tumor in the colon. 27. Defendant Cincotta's negligence significantly increased Linda F. Bahry's risk of a poor outcome from the standpoint of mortality and morbidity. 28. As a direct and proximate result of the negligence of Defendant Cincotta, Linda F. Bahry died an untimely death on July 9,2001. 29. As a direct and proximate result of the negligence of Defendant Cincotta, Decedent's Estate will suffer a loss of earnings and earning capacity. 30. Plaintiff claims on behalf of the Estate of Linda F. Bahry all damages suffered by the Estate by reason of the death of the Decedent, as well as for pain and suffering and fear of impending death the Decedent experienced prior to her death. 31. In addition, Plaintiff claims any other damages recoverable under the Pennsylvania Survival Statute. 32. Sheperdstown Family Practice, P.C., is responsible and liable for the negligence of Defendant Cincotta, who was the agent, servant and employee of Sheperdstown Family Practice, P.C. WHEREFORE, the Plaintiff demands judgment against the Defendants in an amount in excess of the compulsory arbitration limits in Cumberland County, together with costs. 6 """ . 'l-"~'Wh-"-__ ",_ t~ ~"_ ~ _, = , "_L ,. "C' je'_' COUNT II - WRONGFUL DEATH ACTION Michael Bahrv as the Administrator of the Estate of Linda F. Bahrv v. Janet Cincotta. M.D.. and Sheuerdstown Familv Practice 33. Paragraphs 1 - 32 are incorporated herein as if set forth in full. 34. Plaintiff, Michael Bahry, Administrator of the Estate of Linda F. Bahry, has the right to bring the following wrongful death action on behalf of the wrongful death beneficiaries under the Pennsylvania Wrongful Death Statute, 42 Pa.C.S.A. !3 8301, and pursuant to Pa.R.C.P. 2202(a). 35. The persons entitled by law to recover wrongful death damages as a result of the death of the Decedent are: a. Michael Bahry, surviving spouse 18 South Seasons Drive, Dillsburg, Pennsylvania, 17019 b. Ryan Bahry, surviving son 18 South Seasons Drive, Dillsburg, Pennsylvania, 17019 c. Alexandra Bahry, surviving daughter 18 South Seasons Drive, Dillsburg, Pennsylvania, 17019 36. Plaintiff claims damages of the Defendants under and by virtue of the Pennsylvania Wrongful Death Statute for financial contributions and the loss of future services, support, society, comfort, and contribution that the Decedent would have rendered to the beneficiaries but for his death. 7 ..c,-",.__..",_=~ . " 1---1 ~&.., 37. Plaintiff demands payment for all medical bills and/or expenses. 38. Plaintiff further demands payment for funeral and burial expenses. 39. In addition, Plaintiff demands payment for all economic losses suffered by the Decedent's survivors, including costs of administration and other expenses reasonably associated with the Decedent's death. WHEREFORE, the Plaintiff demands judgment against the Defendants in an amount in excess of the compulsory arbitration limits in Cumberland County, together with costs. COUNT III Michael Bahrv v. Janet Cincotta. M.D. and Sheuerdstown Familv Practice. P.C. 40. Paragraphs 1-39 are incorporated herein by reference as if set forth in full. 41. As the sole and proximate result of the Defendants' negligence, the Plaintiff Michael Bahry has suffered the loss of the society and companionship and services of his wife, Linda F. Bahry, from the time of injury until the death of Linda F. Bahry. 8 :-,~",,-,>~"..., ,- .' ,.~ & ~'--"-~"",--- f I ; WHEREFORE, the Plaintiff, Michael Bahry, demands judgment against the Defendants in an amount in excess of the compulsory arbitration limits in Cumberland County, together with costs. Respectfully submitted, Dated: O?/.24f7 By es R. Ronca, Esquire preme Ct. I.D. No. 25631 209 State Street Harrisburg, PA 17101 (717) 232-6300 Attorneys for Plaintiffs 9 ,,~~" I I I""""." " VERIFICATION I, Michael Bahry, Individually, and as Administrator of the Estate of Linda Bahry, hereby verify that the statements set forth herein are true and correct to the best of my knowledge, information and belief. I understand that intentional false statements herein are made subject to the penalties of 18 Pa. C.S. 134904 relating to unsworn falsification to authorities. Date: Biz 7 (coos I Michael Bah Incfvidually, and as Administrator 0 Estate of Linda Bahry -'\~ - .' " CERTIFICATE OF SERVICE AND NOW, this 29th day of August, 2003, I, James R. Ronca, Attorney for Plaintiffs, hereby certify that I have served a true and correct copy of the foregoing by depositing a copy of the same in the United States Mail, postage prepaid, at Harrisburg, Pennsylvania, addressed to: Sarah W. Arosell, Esquire Thomas, Thomas & Hafer, LLP 305 North Front Street, 6th Floor Harrisburg, PA 17108 R. Ronca, Esq lre ........_L_ . -,. . - ~- - -0 ~ .. .; " -:, - , .~ ~ ;'-. ,;6 , THOMAS, THOMAS & HAFER, LLP Sarah W. Arosel/, Esquire Identification No. 58797 305 North Front Street P. O. Box 999 Harrisburg, PA 17108 (717) 255-7637 Attorneys for Defendant Cincotta MICHAEL BAHRY, Individually and as the IN THE COURT OF COMMON PLEAS OF Administrator of the Estate of LINDA F. CUMBERLAND COUNTY, PENNSYLVANIA BAHRY, Plaintiff NO. 00-8468 v. CIVIL ACTION - LAW JANET F. CINCOTTA, M.D. and SHEPERDSTOWN FAMILY PRACTICE, P.C., Defendants NOTICE TO PLEAD TO: Plaintiff and Counsel: You are hereby notified to plead to the enclosed New Malter within twenty (20) days from service hereof or a default judgment may be entered against you. Respectfully submitted, THOMAS, THOMAS & HAFER, LLP DATE: 7'j1:>10.:!; By: C?~~a4d( Sarah W. Arosell, Esquire I.D.#58797 305 North Front Street P,O. Box 999 Harrisburg, PA 17108-0999 (717) 255-7231 Attorneys for Defendant, Janet Cincotta, M.D. 256120-1 , ~ - .- ,-<---- ,--, '__"_ __-n '__nO_,-..-,;:,:;"..:,: THOMAS, THOMAS & HAFER, LLP Sarah W. Arosel/, Esquire Identification No. 58797 305 North Front Street P. O. Box 999 Harrisburg, PA 17108 (717) 255-7231 Attorneys for Defendant Cincotta MICHAEL BAHRY, Individually and as the Administrator of the Estate of LINDA F. BAHRY, Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 00-8468 CIVIL ACTION - LAW v. JANET F. CINCOTTA, M.D. and SHEPERDSTOWN FAMILY PRACTICE, P,C., Defendants DEFENDANT. JANET F. CINCOTTA. M,D.'s ANSWER WITH NEW MATTER TO PLAINTIFF'S AMENDED COMPLAINT Defendant, Janet F. Cincotta, M.D. (hereinafter referred to as "Answering Defendant"), by and through her attorneys, Thomas, Thomas & Hafer, LLP, hereby responds to Plaintiff's Amended Complaint and in support of the same, avers as follows: 1. Denied. After reasonable investigation, Answering Defendant is without knowledge or information sufficient to form a belief as to the truth of the averments contained in this paragraph of Plaintiff's Amended Complaint and the same is deemed denied and proof demanded at the time of trial. 2. Admitted. ,'"- I ,.~~ -,,~-- ,.~" ,"',__~__o ~ ",-0," ,;",,- , "i~ , i 3. Denied as stated. It is admitted that at all times relevant to the Plaintiff's cause of action, Answering Defendant was an employee of Shepherdstown Family Practice, P.C. 4. Denied as stated. It is admitted that at all times relevant to the Plaintiff's cause of action, the Plaintiff Linda F, Bahry was a patient of Defendant Shepherdstown Family Practice, P.C. and was treated by physicians there, including Answering Defendant. OPERATIVE FACTS 5. Admitted. 6. Denied pursuant to the provisions of Pa. RC.P. 1029(e). By way of further response, it is admitted that the Plaintiff, Linda Bahry's medical records from Shepherdstown Family Practice, P.C. speak for themselves and are incorporate herein by reference. 7. Admitted. 8. Denied, pursuant to the provisions of Pa.RC.P. 1029(e). By way of further response, Plaintiff, Linda Bahry's medical records from Shepherdstown Family Practice, P.C. speak for themselves and are incorporated herein by reference. 9. Denied, pursuant to the provisions of Pa.RC.P. 1029(e). By way of further response, Plaintiff, Linda Bahry's medical records from Shepherdstown Family Practice, P.C, speak for themselves and are incorporated herein by reference. 10. Denied as stated. It is admitted that Plaintiff was scheduled for a flexible sigmoidoscopy on December 16, 1998. 11. Denied as stated. It is admitted that Plaintiff underwent a rigid and flexible sigmoidoscopy on December 16,1998, performed by Answering Defendant. 256120-1 ;".,-,,1 L ,,,", -'c _ - -- f,'- ,- -",.~;,' -,' ,:;-~ " ~ r- , '" .-. - i' ":'>"'1 12. Denied, pursuant to the provisions of Pa.R.C.P. 1029(e). By way of further response, Plaintiff, Linda Bahry's medical records from Shepherdstown Family Practice, P.C. speak for themselves and are incorporated herein by reference. 13. Denied, pursuant to the provisions of Pa.R.C.P. 1029(e). By way of further response, Plaintiff, Linda Bahry's medical records from Shepherdstown Family Practice, P.C. speak for themselves and are incorporated herein by reference. 14, Denied, pursuant to the provisions of Pa.R.C.P. 1029(e). By way of further response, Plaintiff, Linda Bahry's medical records from Shepherdstown Family Practice speak for themselves and are incorporated herein by reference. 15. Denied, pursuant to the provisions of Pa.R.C.P. 1029(e). By way of further response, Plaintiff, Linda Bahry's medical records from Shepherdstown Family Practice, P.C. speak for themselves and are incorporated herein by reference. 16. Denied, pursuant to the provisions of Pa.R.C.P. 1029(e). By way of further response, Plaintiff, Linda Bahry's medical records from Shepherdstown Family Practice, P.C. speak for themselves and are incorporated herein by reference. 17-22. Denied, pursuant to the provisions of Pa.R.C.P. 1029(e). COUNT I - SURVIVAL ACTION MICHAEL BAHRY. AS THE ADMINISTRATOR OF THE ESTATE OF LINDA F, BAHRY V, JANET CINCOTTA. M.O. AND SHEPERDSTOWN FAMILY PRACTICE, P.C. 23. Answering Defendant hereby incorporates by reference, her responses to Paragraphs 1 through 22 of this Answer as if fully set forth herein. 24. Denied. The allegations contained in this paragraph of Plaintiff's Amended Complaint are conclusions of law as opposed to statements of fact and no response is required. 256120-1 ,...:.- ,,-.,,; -. ,,-: -'--.-! .- . . ";.-'--" , 25. Denied. The allegations contained in this paragraph of Plaintiffs Amended Complaint are conclusions of law as opposed to statements of fact and no response is required. To the extent a response may be deemed required, Answering Defendant avers that with respect to her professional involvement in this maUer, she at all times acted appropriately and in a fashion commensurate with the standard of health care applicable under similar circumstances and that she was in no way negligent. By way of further response, Answering Defendant in no way negligently or otherwise increased the risk, caused or contributed to cause any injury or damage to Plaintiffs. 26. Denied. The allegations contained in this paragraph of Plaintiffs Amended Complaint are conclusions of law as opposed to statements of fact and no response is required. To the extent a response may be deemed required, Answering Defendant avers that with respect to her professional involvement in this maUer, she at all times acted appropriately and in a fashion commensurate with the standard of health care applicable under similar circumstances and that she was in no way negligent. By way of further response, Answering Defendant in no way negligently or otherwise increased the risk, caused or contributed to cause any injury or damage to Plaintiffs. 27. Denied. The allegations contained in this paragraph of Plaintiffs Amended Complaint are conclusions of law as opposed to statements of fact and no response is required. To the extent a response may be deemed required, Answering Defendant avers that with respect to her professional involvement in this matter, she at all times acted appropriately and in a fashion commensurate with the standard of health care applicable under similar circumstances and that she was in no way negligent. By way of further response, Answering 256120-1 '-I<' ~ 0''',,"" '.,-'.-- ro_' , '. ,~ ,', ',~, -",:--' '->,j Defendant in no way negligently or otherwise increased the risk, caused or contributed to cause any injury or damage to Plaintiffs. 28. Denied. The allegations contained in this paragraph of Plaintiff's Amended Complaint are conclusions of law as opposed to statements of fact and no response is required. To the extent a response may be deemed required, Answering Defendant avers that with respect to her professional involvement in this matter, she at all times acted appropriately and in a fashion commensurate with the standard of health care applicable under similar circumstances and that she was in no way negligent. By way of further response, Answering Defendant in no way negligently or otherwise increased the risk, caused or contributed to cause any injury or damage to Plaintiffs. 29. Denied. The allegations contained in this paragraph of Plaintiff's Amended Complaint are conclusions of law as opposed to statements of fact and no response is required. To the extent a response may be deemed required, Answering Defendant avers that with respect to her professional involvement in this matter, she at all times acted appropriately and in a fashion commensurate with the standard of health care applicable under similar circumstances and that she was in no way negligent. By way of further response, Answering Defendant in no way negligently or otherwise increased the risk, caused or contributed to cause any injury or damage to Plaintiffs. After reasonable investigation, Answering Defendant is without knowledge or information sufficient to form a belief as to the truth of the averments with respect to Plaintiff-decedent's loss of earnings and impairment of earning capacity as contained in this paragraph of Plaintiff's Amended Complaint, and the same are deemed denied and proof demanded at the time of trial. 256120-1 ""~< .,- -', ,,' ,-." ~'-'~ >- - --,,>~, ,', c;,; ,'. ,-~:, - , -'.-'-<.J . ," 30. Denied. The allegations contained in this paragraph of Plaintiff's Amended Complaint are conclusions of law as opposed to statements of fact and no response is required. To the extent a response may be deemed required, Answering Defendant avers that with respect to her professional involvement in this matter, she at all times acted appropriately and in a fashion commensurate with the standard of health care applicable under similar circumstances and that she was in no way negligent. By way of further response, Answering Defendant in no way negligently or otherwise increased the risk, caused or contributed to cause any injury or damage to Plaintiffs. After reasonable investigation, Answering Defendant is without knowledge or information sufficient to form a belief as to the truth of the averments with respect to Plaintiff-decedenl's pain and suffering as contained in t his paragraph of Plaintiff's Amended Complaint, and the same are deemed denied and proof demanded at the time of trial. 31. Denied. The allegations contained in this paragraph of Plaintiff's Amended Complaint are conclusions of law as opposed to statements of fact and no response is required. 32. Denied. The allegations contained in this paragraph of Plaintiff's Amended Complaint are conclusions of law as opposed to statements of fact and no response is required. WHEREFORE, Answering Defendant demands judgment in her favor and against Plaintiff without cost to her. COUNT 11- WRONGFUL DEATH ACTION MICHAEL BAHRY AS THE ADMINISTRATOR OF THE ESTATE OF LINDA F. BAHRY y. JANET CINCOTTA. M.D. AND SHEPERDSTOWN FAMILY PRACTICE. P.C. 33. Answering Defendant hereby incorporates by reference, her responses to Paragraphs 1 through 32 of this Answer as if fully set forth herein. 34. Denied. The allegations contained in this paragraph of Plaintiff's Amended Complaint are conclusions of law as opposed to statements of fact and no response is required. 256120-1 - "'- -, ~. -, . Oi' I I , I 35. Denied. The allegations contained in this paragraph of Plaintiff's Amended Complaint are conclusions of law as opposed to statements of fact and no response is required. By way of further response, after reasonable investigation, Answering Defendant is without knowledge or information sufficient to form a belief as to the truth of the averments contained in this paragraph of Plaintiff's Amended Complaint and the same are deemed denied and proof demanded at the time of trial. 36. Denied. The allegations contained in this paragraph of Plaintiff's Amended Complaint are conclusions of law as opposed to statements of fact and no response is required. By way of further response, after reasonable investigation, Answering Defendant is without knowledge or information sufficient to form a belief as to the truth of the averments of damages contained in this paragraph of Plaintiff's Amended Complaint and the same are deemed denied and proof demanded at the time of trial. 37.-39. Denied. After reasonable investigation, Answering Defendant is without knowledge or information sufficient to form a belief as to the truth of the averments contained in these paragraphs of Plaintiff's Amended Complaint and the same are deemed denied and proof demanded at the time of trial. WHEREFORE, Answering Defendant demands judgment in her favor and against Plaintiff without cost to her. COUNT III MICHAEL BAHRY V. JANET CINCOTTA. M.D. AND SHEPERDSTOWN FAMILY PRACTICE, P.C. 40. Answering Defendant hereby incorporates by reference, her responses to Paragraphs 1 through 39 of this Answer as if fully set forth herein. 256120-1 4;.:-1 "- " '---'-" -' ~'" -' ...Ie -<) 41. Denied. The allegations contained in this paragraph of Plaintiff's Amended Complaint are conclusions of law as opposed to statements of fact and no response is required. To the extent a response may be deemed required, Answering Defendant avers that with respect to her professional involvement in this matter, she at all times acted appropriately and in a fashion commensurate with the standard of health care applicable under similar circumstances and that she was in no way negligent. By way of further response, Answering Defendant in no way negligently or otherwise increased the risk, caused or contributed to cause any injury or damage to Plaintiff. WHEREFORE, Answering Defendant demands judgment in her favor and against Plaintiff without cost to her. NEW MATTER By way of further response to the allegations contained in Plaintiff's Amended Complaint, Answering Defendant hereby raises t he following N ew Matter i n accordance with Pennsylvania Rule of Civil Procedure 1030: 42. Answering Defendant hereby incorporates by reference, her responses to Paragraphs 1 through 40 of this Answer as if fully set forth herein. 43. Plaintiff's Amended Complaint fails, in whole or in part, to state a claim against Answering Defendant upon which relief can be granted. 44. At no time relevant hereto was any other natural person, partnership, corporation or other legal entity acting or serving as an agent, servant, employee or otherwise for or on behalf of Answering Defendant. 45. All care and treatment rendered to Plaintiff-decedent by the employees, agents, apparent agents and/or servants of Answering Defendant was at all times appropriate, 256120-1 " " '---"~ ._,_=_"~ ,,'. o"-,,,~, ,_' <<, -j,;--, .1, - <- L,,- ~-:,' -- ~ -',':::':: : reasonable and within the required standards of medical care and did not cause any injury or damage to Plaintiffs. 46. Insofar as the Answering Defendant or any person for whom she is or may be vicariously liable, elected a treatment modality which is recognized as proper, but may differ from another appropriate treatment modality, then Answering Defendant raises the "two schools of thought" defense. 47. Whatever injuries and damages, if any, sustained by Plaintiffs as averred in the Amended Complaint were caused, in whole or in part, by persons or entities over whom Answering Defendant had no duty to supervise or control and, therefore, Answering Defendant is not liable and Plaintiff may not recover against her. 48. Whatever injuries and damages, if any, sustained by Plaintiffs as averred in the Amended Complaint were not caused by the conduct or negligence of Answering Defendant, but were caused, in whole or in part, or were contributed to by pre-existing medical conditions of Plaintiff-decedent, Linda F. Bahry, beyond the control of Answering Defendant and, therefore, Plaintiffs may not recover against her. 49. In the event that it is determined that Answering Defendant was negligent with regard to any of the allegations contained in, and with respect to Plaintiff's Amended Complaint, said allegations being specifically denied, said negligence was superseded by the intervening negligent acts of other persons, parties and/or organizations other than Answering Defendant and over whom Answering Defendant had no control, right or responsibility and, therefore, Answering Defendant is not liable. To the extent that the evidence may show that other persons, partnerships, corporations or other legal entities caused or contributed to the injuries or 256120-1 . "':::":1,- , _ _ _" ~c-o-_,_-,.' - .. -,~ ~. , - ~ exacerbation of the pre-existing conditions of Plaintiff-decedent, Linda F. Bahry, then the conduct of Answering Defendant was not the legal cause of such conditions or injuries. 50. Any acts or omissions of Answering Defendant alleged to constitute negligence were not substantial factors contributing to the injuries and damages alleged in Plaintiff's Amended Complaint. 51. Based upon the allegations set forth above and to the extent that discovery or the evidence adduced at trial may further establish the existence thereof, Plaintiff-decedent assumed the risk of the outcome in this case and Answering Defendant asserts the defense of assumption of the risk. 52. Based upon the allegations set forth above and to the extent that discovery or the evidence adduced at trial may further establish the existence thereof, Plaintiff-decedent was negligent and/or caused or contributed to the outcome in this case, Answering Defendant asserts the defense of contributory negligence and comparative negligence. 53. To the extent applicable or to the extent that it may later become applicable, Answering Defendant pleads the statute of limitations to personal injury actions to preserve this affirmative defense for the record. 54. Answering Defendant asserts all defenses and immunities afforded under the Health Care Services Malpractice Act, as amended. 55. For the purpose of preserving the same, and subject to discovery, all or some of Plaintiff's claims may be barred pursuant to the affirmative defenses of release, offset or accord and satisfaction. 256120-1 ~",.U , " .' _, - ~" .. _'-_, 'n_ " u '. ,- - '-'.", ,;:, -~;ij::: 56. Answering Defendant raises all affirmative defenses of the Medical Care Availability and Reduction of Error (M'care) Act a/k/a Act 13 of 2002 as a limit/bar to Plaintiff's claims. WHEREFORE, Answering Defendant demands judgment in her favor and against Plaintiff without cost to her. Respectfully submitted, THOMAS, THOMAS & HAFER, LLP By: Q~~ Sarah W. Arosell, Esquire I.D.#58797 305 North Front Street P.O. Box 999 Harrisburg, PA 17108-0999 (717) 255-7231 Attorneys for Defendant, Janet Cincotta, M.D. DATE: qf::Jf..:J 256120-1 .. '.'" -, .-, ',' ~' "", - , . '" 'n - ;-',,> , ,.-, :~:'~':tl VERIFICATION I, Sarah W. Arosell, Esquire, state that I am the attorney for the party filing the attached document that I make this Affidavit as an attorney because I have sufficient knowledge or information and belief, based upon my investigation of the matters averred or denied in the foregoing document; that time is of the essence in the filing of this document; and that this statement is made subject to the penalties of 18 Pa.C.S.A. S 4904 relating to unsworn falsification to authorities. THOMAS, THOMAS, & HAFER, LLP ~~~ Sarah W. Arosell, Esquire DATE: ,//~1'J , ' ,-..,-,;-, ""- d", '--~-," ,<".-'.;c,;oc" ,. n~" (, . d-,'. '" ~ . ",e,,___-. ., ,,'- ':-"'"'0'1; CERTIFICATE OF SERVICE I, Sarah W. Arosell, Esquire, hereby certify that I have served a true and correct copy of the foregoing ANSWER WITH NEW MATTER TO PLAINTIFF'S AMENDED COMPLAINT on the following persons by placing a copy of the same in the United States mail, first class mail, directed to their office addresses as follows: James R. Ronca, Esquire SCHMIDT, RONCA & KRAMER 209 State Street Harrisburg, PA 17101 THOMAS, THOMAS & HAFER, LLP By: ~~~ Sarah W. Arosell, Esquire DATE: 9/1::>1v:]) 256120-1 l' ~ if- '~"w~~~iIiii-r ~ ,', ,,' ~--~~. -~ ~ ~~,," ,~~ ~ ~-J.-'1ii!iQ~M.iI~JIi;j~' '-r-W.~' ' '-~'"-"""iIiJ.'~ " ..,-,--,. -,'C'_ ,_~" ^ .'" , -~ ., ,,;,-..~ ' ",'. 'w,"""" "'" , u ~:', 2:'~ .c $:: " (') f; "" "-=':1 C(j:- <C -;.- i -< f,-, , ',:1 1"::1 ", u -,'"I :.~ " ,j c, r".) _-;1 :J -~ '<;; " ~ ~'cr[-. -~ " - ~--~~'t: . LINDA F. BAHRY and MICHAEL BAHRY, her husband IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA Plaintiffs NO. 00-8468 Civil Term v. CML ACTION - LAW JANET F. CINCOTTA, M.D. and SHEPERDSTOWN FAMILY PRACTICE, P.C. . . Defendants : JURY TRIAL DEMANDED PLAINTIFFS' REPLY TO DEFENDANT, JANET CINCOTTA, M.D.'S NEW MATTER TO PLAINTIFFS' AMENDED COMPLAINT 42. Paragraphs 1-41 of the Complaint are incorporated as if fully set forth herein. 43. Paragraph 43 is a conclusion of law which requires no answer. 44. Paragraph 44 is a conclusion of law which requires no answer. 45. Denied. On the contrary, see the Complaint. 46. Denied. On the contrary, see the Complaint. 47. Denied. On the contrary, see the Complaint. 48. Denied. On the contrary, see the Complaint. 49. Denied. On the contrary, see the Complaint. 50. Denied. On the contrary, see the Complaint. 51. Denied. On the contrary, see the Complaint. 52. Denied. On the contrary, see the Complaint. 53. Paragraph 53 is a conclusion of law which requires no answer. 54. Paragraph 54 is a conclusion of law which requires no answer. 55. Paragraph 55 is a conclusion of law which requires no answer. :", ~,~ " ~ , 56. Paragraph 56 is a conclusion of law which requires no answer. WHEREFORE, Plaintiffs request judgment of the Defendant as more specifically requested in the Complaint. Dated: l Of I of 0 ~ ERP.C. By: Attorneys for Plaintiffs , I~L .- ~h\liM!!f~J!fr~K; " o~ i I .. ~Y-""""'i!IWI~' , CERTIFICATE OF SERVICE ,oV AND NOW, this jg'th day of October, 2003, I, James R. Ronca, hereby certify that I have served a true and correct copy of the foregoing by depositing a copy of the same in the United States Mail, postage prepaid, at Harrisburg, Pennsylvania, addressed to: Sarah W. Arosell, Esquire Thomas, Thomas & Hafer, LLP P.O. Box 999 Harrisburg, PA 17108 nca, Esquire .Min~M..._~!.m~~~~"'---~!-!.'fiililr,j,~~"~ftl,~!il1~~IItI!f'II!IiW~fi'~IiIi~~- "'", " ",. """ .,- ".c' ,~ ,~ ,~ ~-< -, o c :Z7"" i.')'i~': Q}[1- .c: -,-;-; ZC' CD ;:$,:- c:: " ~.-, ""-('- "'- , -'-~ ~~,. =2 7:J :::> c;::' [u - C::') c;) -:::, :~) -f t'''', '-~ :' r" , -" :0 "'~'" -::::~-;) _-)i:~ ;:5fT1 c-I ,J> :n -< -:f' , If: f [; l , Tl ..~~~ ",--,.~ j', -' 'lIIIiI<~_~,"~ . MICHAEL BAHRY, INDIVIDUALLY AND AS THE ADMINISTRATOR OF THE ESTATE OF LINDA F. BAHRY, IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff NO. 00- 8468 Civil Term v. CIVIL ACTION - LAW JANET F. CINCOTTA, M.D. and SHEPERDSTOWN FAMILY PRACTICE, P,C. Defendants : JURY TRIAL DEMANDED PRAECIPE TO: PROTHONOTARY Please attach the enclosed Certificate of Merit to Plaintiffs' Amended Complaint in the above-captioned action. By: Dated: {( I ( I 10 3 Attorneys for Plaintiffs ~~~ , . I!j,~:, MICHAEL BAHRY, INDIVIDUALLY AND AS THE ADMINISTRATOR OF THE ESTATE OF LINDA F. BAHRY, IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff NO. 00- 8468 Civil Term v. CIVIL ACTION - LAW JANET F. CINCOTTA, M.D. and SHEPERDSTOWN FAMILY PRACTICE, P.C. ~ D Defendants : JURY TRIAL DEMANDED CERTIFICATE OF MERIT I, James R. Ronca, Esquire, certify that: an appropriate licensed professional has supplied a written statement to the undersigned that there is a basis to conclude that the care, skill or knowledge exercises or exhibited by this defendant in the treatment, practice or work that is the subject of the complaint, fell outside the acceptable professional standards and that such conduct was a cause in bringing about the harm; OR the claim that this defendant deviated from an acceptable professional standard is based solely on allegations that other licensed professionals for whom this defendant is responsible deviated from an acceptable professional standard and an appropriate licensed professional has supplied a written statement to the undersigned that there is a basis to conclude that the care, skill or knowledge exercised or exhibited by the other licensed professionals in the treatment, practice or work that is the subject of the complaint, fell outside acceptable professional standards and that such conduct was a cause in bringing about the harm; ,],~,' - ~~ _..~ _.~ ~ ,'. '~, J" ".,,_1 ~,," ! OR D expert testimony of an appropriate licenses professional is unnecessary for prosecution of the claim against this defendant. Respectfully submitted, By: Dated: (t III I 0 3 Attorneys for Plaintiffs ---, ,"" _.,oai.o ~","^'i.t.: MICHAEL BAHRY, INDIVIDUALLY AND AS THE ADMINISTRATOR OF THE ESTATE OF LINDA F. BAHRY, IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA Plain tiff NO. 00- 8468 Civil Term v. CIVIL ACTION - LAW JANET F. CINCOTTA, M.D. and SHEPERDSTOWN FAMILY PRACTICE, P.C. Defendants : JURY TRIAL DEMANDED CERTIFICATE OF MERIT I, James R. Ronca, Esquire, certify that: D an appropriate licensed professional has supplied a written statement to the undersigned that there is a basis to conclude that the care, skill or knowledge exercises or exhibited by this defendant in the treatment, practice or work that is the subject of the complaint, fell outside the acceptable professional standards and that such conduct was a cause in bringing about the harm; OR JXJ the claim that this defendant deviated from an acceptable professional standard is based solely on allegations that other licensed professionals for whom this defendant is responsible deviated from an acceptable professional standard and an appropriate licensed professional has supplied a written statement to the undersigned that there is a basis to conclude that the care, skill or knowledge exercised or exhibited by the other licensed professionals in the treatment, practice or work that is the subject of the complaint, fell outside acceptable professional standards and that such conduct was a cause iil bringing about the harm; =~" -~ ~" - D , - OR expert testimony of an appropriate licenses professional is unnecessary for prosecution of the claim against this defendant. ERP.C. By: a squire Attorney /. 5631 Street urg, PA 17101 ) 232-6300 Dated: t ( \ l ( \ 0-3 Attorneys for Plaintiffs - -^ '''''<III~-, - ~ ,~ , "~-~ . ~" CERTIFICATE OF SERVICE AND NOW, I, James R. Ronca, Attorney for Plaintiffs, hereby certify that I have served a true and correct copy of the foregoing by depositing a copy of the same in the United States Mail, postage prepaid, at Harrisburg, Pennsylvania, addressed to: Sarah W. Arosell, Esquire Thomas, Thomas & Hafer, LLP 305 North Front Street, 6th Floor Harrisburg,PA 17108 Dated: ~ ~" ~\" '~'l.fc- -.mIii!~!IW:~~~~m~",,;:ai&iti~r1i ",;' ,,~" ___ o. - ~'o ,"<' "' ',.. ", "",".. " ~ " I.llWil!l~lIJjjjM ~,Y. _~ - . ~~-""~ - ~, , ~ ~ 0 c:) 0 C 0:, --it <" - ::.:-:J "-~-- ~.'" .~~~ -n ,-J,) rnr,l " f-':; Z -T': -1;-1; ~~~~ (...0) . ,:. (~:J (~it.l., ..-;>--' r::'l'''! 4J .:;.~=-1~ ~~' ~("") -y ~:if~ .-' 6,(::i ~f? J>c.: ,,,) -A Z :=> 55 -, -< ~ -< ,. ~ ~ ,e__ ..~ , , ..,:_-,",-,':.,.:<..- ~ ' . ,. _ , -' I,: i.." ; I , MICHAEL BAHRY, INDIVIDUALLY AND AS THE ADMINISTRATOR OF THE ESTATE OF LINDA F, BAHRY, IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff : NO. 00- 8468 Civil Term v. : CIVIL ACTION - LAW JANET F. CINCOTTA, M,D, and SHEPERDSTOWN FAMILY PRACTICE, P.C. Defendants : JURY TRIAL DEMANDED ORDER AND NOW, this 2.11~ayof ~e fC.....lo t5 ,2004, after review of the within Petition, it is hereby ORDERED and DECREED as follows: (a) The proposed compromise and settlement which involves the Estate of Linda Bahry in wrongful death and survival actions for the amount of $600,000 payable by the Defendants and their insurers and the MCARE Fund is approved. (b) Michael Bahry, Administrator of the Estate ofLinda:Bahry is given leave to sign the Release which is attached to the Petition as Exhibit nAn. \ . (c) The sums will be apportioned:between wrongful death and sUrYlval as follows: PayaOleto the Estate of Linda Bahry (Survival Action) $ 200,000.00 -\'0 Payable the Beneficiaries of the Wrongful Death Action $ 400,000.00 ^ (d) The Court finds that the contingency fee arrangement allowing for a fee of a 1/3 contingency for work done to complete and present the foregoing Petition is reasonable, and it is hereby approved. . "" i Ii I' , , I': " ;~ I~ :; Iii I; ,_ , _~n'" ,- ,-","":,)j",,,,, ~,I- ,-e. -'\-"'_"'1\';"'" - ,~--- -,.';.-,,;' ~'" "",y':' n,,:';"';'~'7:;1 :;l~;'--:' ':., ,- . ,~- ;," ~,~', - ! i (e) The Court finds that the out-of-pocket expenses related to this litigation were reasonable and are, therefore, approved. i t, (f) Defendants in the above-captioned action are discharged from any and ~l I' I': claims arising out of the above-captioned, action. , ~; I I: 1< " BY THE COURT: iii'? I [-: J. I I q-J-1~1 ~~~\ to t6(j ~UL (j Ok l; (1 2 M)' . \ ~,,>~~"" 1;.,,' "',,,,,,,,y,,,>~, '-'-'1'~' , " ",-' ~~" -~-- " ' .~ __ ,TI "~ '__-0"' _ "' ~"',-'i" ...~""",,,,~,~~',",""' ",'O,,,,",~,'" RLfD...,JFF1CE OF THE PRoTHONOr~rl'f 2004 Sf? 29 PH 2: 48 G'II . ".... Ullj~.~;-rf,','Cl-. ,:"; ! -'r,i I~,I~ ' ',:,""z. 'k- ';,.:"./ '-"'-"t.Jiv;i j"-"i-i'.l/\!c:Vi Vt;!\J'fA, '-- , .".I;(.~'hi'[r\ ~ililil1iI1'''T-'r.~, " ""-"::6C~~O- - . ~~.~I"~ . ~...,,,,,.,,.,,,,j;j''F'''1~''-,~~ ~~~~~- , """"'; ^'''~..---~-- . , . .-~" > ',~",", ~,~, ~.. ,. ;_"~Y-i ,...., ". ~ , '. ~""'~"'''''IiIiWI~' ~ "~ ,-1_ -"~"', ~~ " -~~' MICHAEL BAHRY, INDIVIDUALLY AND AS THE ADMINISTRATOR OF THE ESTATE OF LINDA F. BAHRY, IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff NO. 00- 8468 Civil Term v. CIVIL ACTION - LAW JANET F. CINCOTTA, M.D. and SHEPERDSTOWN FAMILY PRACTICE, P.C. . Defendants : JURY TRIAL DEMANDED PRAECIPE TO DISCONTINUE TO: PROTHONOTARY Kindly mark the above caption action as settled, discontinued, and ended with prejudice to all Defendants. Respectfully submitted, By: , ' ONCA & IfRAM~R, P.C. DATED: January 11,2005 Attorneys for Plaintiff - "~,,~~--, ,II' ."'\ "~" J "... CERTInCATEOFSER~CE AND NOW, I, Beth E. Steever, an employee of the law firm of Schmidt, Ronca, & Kramer, P.C., hereby certify that I have served a true and correct copy of the foregoing Praecipe to Discontinue by depositing a copy of the same in the United States Mail, postage prepaid, at Harrisburg, Pennsylvania, addressed to: Sarah W. Arosell, Esquire Thomas, Thomas & Hafer, LLP 305 North Front Street, 6th Floor Harrisburg, PA 17108 i~ g. (~>>tA Jcih E. Steever Dated: January 11,2005 I J _" c-"'"' "~ '"', ~f1 ]iIWlll~ '~ ~ ~lU ---i~1It4 -~~ "'--'-',R~~U'il.i~!DoIIimitl"L~'"'~tll!liiii.illLIMri-"':'-_1 - _~~~ _'~~~ "~, ,0'.,= ",- ~~. ~~'~ .= " C) '" = 0 ~~~ c".;;I -n en < -I ,-' L.. JOY, I-n :;:,:: rnj==- -om N :,09 , ~~g -u _':L,-I , (:)0 ~-r'" ~7 ' j;:~: 1'-' csm ~; ~I --~ 0 :0 -( c.,:> -< ~