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IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA
PATRICIA BETTGER,
CIVIL DIVISION
Plaintiff,
Code:
v.
SAMBHU N. KUNDU, M.D. and
OBSTETRICS AND GYNECOLOGY,
INC.,
No. 01 - /-.,),q f
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COMPLAINT IN CIVIL ACTION
Defendants.
Filed On Behalf Of:
Patricia Bettger, Plaintiff
Counsel of Record for This Party:
Patti Collins Lerda, Esq.
Pa. ID No. 56492
MARTIN & LERDA
2006 Noble Street
Pittsburgh, PA 15218
412/271-6800
NOTICE TO DEFENDANTS
You are hereby notified to file a
written response to the. enclosed Complaint
within twenty (20) days from service
hereof or a judgment may be entered
aga~ you:.,.
~~~~
l;A VID C. MARTIN, JR. -
PATTI COLLINS LERDA
JURY TRIAL DEMANDED
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IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL DIVISION
PATRICIA BETTGER,
Plaintiff,
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)
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No. ^, - ~),q r
Gu.-l ~~
v.
SAMBHU N. KUNDU, M.D, and
OBSTETRICS AND GYNECOLOGY,
INC.,
Defendants.
NOTICE TO DEFEND
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 LEGAL HELP.
LEGAL REFERRAL SERVICE
THE CUMBERLAND COUNTY BAR ASSOCIA nON
2 LIBERTY AVENUE
CARLISLE, P A 17013
(717) 249-3166
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IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL DIVISION
PATRICIA BETTGER,
Plaintiff,
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No. 01 - (,,19(
Giu~l'--r~
v.
SAMBHU N. KUNDU, M.D. and
OBSTETRICS AND GYNECOLOGY,
INC.,
Defendants.
COMPLAINT IN CIVIL ACTION
AND NOW Comes the Plaintiff, Patricia Bettger, by and through her attorney, Patti Collins
Lerda, Esquire, and the firm of Martin & Lerda, and files the following Complaint in Civil Action,
averring the following in support thereof:
I. The Plaintiff, Patricia Bettger, is an individual residing at 3 825 Carriage House Drive,
Camp Hill, Pennsylvania 17011, hereinafter referred to as "Plaintiff."
2. The Defendant, SambhuKundu, MD., is an individual resident of the Commonwealth
of Pennsylvania and is duly licensed to practice medicine in the Commonwealth of Pennsylvania,
having his principal office located at 890 Poplar Church Road, Camp Hill, Pennsylvania 17011,
hereinafter referred to as "Defendant Doctor."
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3, The Defendant, Obstetrics and Gynecology, Inc., is a Pennsylvania corporation, and
at all times material hereto was duly licensed and authorized to transact business in the
Commonwealth of Pennsylvania, having its principal place of business located at 890 Poplar Church
Road, Camp Hill, Pennsylvania 170 II, hereinafter referred to as "Defendant Corporation."
4, At all times material and relevant hereto, Defendant Doctor was associated with
and/or provided medical services to Plaintiff through Defendant Corporation, and at all such times
was then and thereabout acting within the course and scope of his employment or agency with said
Defendant Corporation.
5. At all times material and relevant hereto, Defendant Corporation acted by and through
its/their agents, servants, workmen or employees who were then and thereabout acting within the
course and scope of their employment with said Defendant, one of whom may have been or was
Defendant Doctor herein and Dr. William F, Carr.
6. At all times material and relevant hereto, Defendant Corporation was engaged,
through its agents, servants, employees and those staff personnel hereinafter identified, in rendering
professional medical care to the public, and thereby held itself out to the public generally, and to the
Plaintiff specifically, as being skilled in the practice of gynecological medicine and had the
responsibility of providing appropriate and adequate medical care to the Plaintiffin accordance with
the prevailing standards of medical practice.
7. At all times material and relevant hereto, said Defendant Doctor held himself out to
the public, and to Plaintiff particularly, as a physician in gynecological medicine and related medical
care, duly qualified to practice medicine in the Commonwealth of Pennsylvania and thoroughly
trained and knowledgeable in the field of gynecology.
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8. At all times material and relevant hereto, Dr. William F, Carr was associated with and
provided medical services to Plaintiff through Defendant Corporation, and at all such times was then
and thereby acting with the course and scope of his employment or agency with said Defendant.
9. As a direct result of the aforesaid, said Defendants accepted responsibility for the care
and treatment of Plaintiff and, in doing so, unde;stood and assumed a duty to her to render
competent, proper, adequate and appropriate medical care and treatment, and to take appropriate
preventative and curative measures to treat Plaintiff and to avoid harm to her.
10. At all times material hereto, all acts of agents, servants and employees of Defendant
Corporation within the scope of their agency or employment by operation of law are imputed to
Defendant Corporation.
11. On or about November 21, 1997, Plaintiff consulted Dr. William F. Carr atthe office
of Defendant Corporation for the purpose of obtaining medical care for complaints of redness,
crusting and irritation of her left nipple area. Plaintiff also reported noticing a bloody discharge on
her bra. At that time, Dr. Carr conducted a breast examination of Plaintiff and prescribed an ointment
for the nipple area.
12. On or about December 17,1997, Plaintiff was again examined by Dr. Carr at the
Defendant Corporation office, complaining of breast soreness and redness of the left nipple. At that
time, Dr. Carr ordered a diagnostic mammogram of the Plaintiff.
13. On or about October 23, 1998, Plaintiff contacted Defendant Corporation's office with
complaints ofleft breast soreness, nipple discharge as bloody and hardness underneath the nipple, and
requested a mammogram be ordered,
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14. On or about October 23,1998, Defendant Doctor examined Plaintiffs breasts and
found asymmetry of the left nipple with reddening, noting Plaintiff s report of a bloody discharge of
the left nipple two weeks prior and soreness.
15. On or about October 23,1998, Defendant Doctor performed an ultrasound study in
Defendant Corporation's office and told Plaintiff she had multiple cysts in her left breast.
16. On or about October 26, 1998, P1aintiffhad a mammogram performed which showed
two new nodules in her left breast.
17. On or about November 10, 1998, Defendant Doctor performed a fine needle aspiration
of Plaintiffs left breast, which showed fibrocystic disease.
18. On or about December, 14, 1998, Plaintiff was examined by Defendant Doctor and
again complained of redness and soreness in her left breast. At that time, Defendant Doctor
performed an ultrasound of Plaintiffs left breast and told Plaintiff she had cysts in her breast and
prescribed Vitamin E cream.
19. On or about January 25, 1999, Plaintiff was examined by Defendant Doctor and was
again told she had cysts in her left breast.
20. On or about May 3, 1999, Plaintiff consulted Defendant Doctor for medical treatment
and was examined by Defendant Doctor.
21. On or about February 7, 2000, Plaintiff was examined by Defendant Doctor. She
continued to complain of redness and irritation of the left nipple. Defendant Doctor referred Plaintiff
for a surgical opinion regarding the left nipple.
22. On or about February 16, 2000, Plaintiff had a surgical biopsy of her left nipple
performed by Dr. Salvatore A. Parascando1a at Holy Spirit Hospital.
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23. On March 9, 2000, Dr. Parascandola informed the Plaintiff that her biopsy revealed
Paget's disease, breast cancer of her left breast.
24. Plaintiff had clear signs of Paget's disease on or about November 21, 1997, and
thereafter, which were not recognized by Defendant Doctor and were not timely diagnosed.
25. Defendants' continuously reassured Plaintiff during her office visits that there was no
real problem with her breast and never told her she could have signs of breast cancer.
26. As a result of Defendants' actions, Plaintiff has suffered the injuries and damages
herein.
27. As a result of the delayed diagnosis and treatment of breast cancer, Plaintiff had a
mastectomy of her left breast on June 15,2000, and reconstructive surgery.
28. As a result of the delayed diagnosis and treatment of breast cancer, Plaintiff is at an
increased risk of developing recurring cancer in the future.
29. As a direct and proximate result of the aforesaid carelessness and negligence of the
Defendants, jointly and/or severally, Plaintiff suffered:
(a) Severe, painful and permanent injuries;
(b) Scarring and permanent disfigurement of her left breast;
( c) Removal ofleft breast;
(d) Medical expenses and costs past and into the future;
(e) Impairment of general health, strength and vitality;
(f) Lost earnings;
(g) Emotional and mental trauma, anguish and humiliation, any or all of which
may be permanent in nature and continuing indefinitely into the future;
(h) Loss ofthe enjoyment of some oflife's pleasures and activities;
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(i) Additional surgical procedures and medical treatment; and
CD Pain and suffering past and into the future.
COUNT I
PATRICIA BETTGER VS. SAMBHU KUNDU. M.D.
30. Plaintiff incorporates Paragraphs I through 29 as if set forth more fully verbatim
herein.
31. Defendant Doctor was negligent in the following particulars:
(a) In failing to recognize clinical signs and symptoms of breast cancer in a timely
manner;
(b) In failing to order appropriate diagnostic tests and procedures to diagnose
breast cancer in a timely manner;
(c) In failing to refer Plaintiff to a surgeon or specialist in a timely manner to seek
advice or consultation regarding Plaintiff s condition;
(d) In failing to inform Plaintiff that her symptoms could indicate breast cancer;
(e) In failing to diagnose Plaintiff s breast cancer when Defendant should have
recognized signs of Paget's disease several years before Plaintiff's diagnosis
was made so that treatment could have begun earlier;
(f) In failing to heed and investigate Plaintiffs complaints of left breast pain,
redness, irritation and nipple discharge, assuring Plaintiff she did not have a
serious medical condition;
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(g) In failing to review and evaluate Plaintiff s medical records for a history ofleft
breast pain, irritation, redness and nipple discharge upon Defendant's initial
consultation and thereafter;
(h) In causing a delay in medical treatment of Plaintiffs breast cancer, allowing
the cancer to spread in Plaintiff s body;
(i) In failing to avail himself of andJorutilize available and pertinent information,
medical records and diagnostic tests pertaining to Plaintiff's medical
condition;
G) In failing to timely discover his aforenoted careless and negligent conduct
and/or to timely diagnose or respond to the consequences and significance
thereof; and
(k) Providing medical care and treatment below the accepted standard of care for
treatment.
WHEREFORE, Plaintiff demands judgment against Defendant Doctor,jointly and severally,
in an amount in excess of$25,OOO.OO.
COUNT n
PATRICIA BETTGER VS. OBSTETRICS AND GYNECOLOGY, INC.
32. Plaintiff incorporates Paragraphs I through 31 as if set forth more fully verbatim
herein.
33. Defendant Corporation is negligent in the following particulars:
(a) Defendant Doctor, Dr. Carr and employees failed to timely diagnose and treat
Plaintiff s breast cancer;
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(b) Defendant Doctor, Dr. Carr and employees failed to order appropriate
diagnostic tests and procedures to diagnose Plaintiff s breast cancer in a
timely manner;
(c) Defendant Doctor, Dr. Carr and employees failed to refer Plaintiff to a
surgeon/specialist to seek advice or consultation regarding Plaintiffs
condition in a timely manner;
(d) Failed to monitor the competency of its medical staff and employees, the
adequacy of patient treatment and practices relating to breast cancer diagnosis
and treatment;
( e) Failed to assure that Defendant Doctor, Dr. Carr and employees that were
associated with the aforementioned care and treatment of Plaintiff were aware
of and/or properly investigated Plaintiff s continued complaints relating to her
left breast; and
(f) Failed to timely inform the Plaintiff that her complaints relating to her left
breast could be a form of breast cancer.
WHEREFORE, Plaintiff demands judgment against Defendant Corporation, jointly and
severally, in an amount in excess of $25,000,00.
Respectfully submitted,
fJllik' (~ lv..L-
Patti Collins Lerda
Attorney for Plaintiff
Dated:
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VERIFICATION
I, PATRICIA BETTGER, verify that the statements made in the foregoing Complaint
in Civil Action are true and correct. I understand that false statements herein are made
subject to the penalties of 18 Pa. C.S. ~4904, relating to unsworn falsification to authorities.
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PATRICIA BETTGER,
Plaintiff
IN THE COURT OF COMMON PLEAS
OF CUMBERLAND COUNTY,
PENNSYLVANIA
v.
NO. 01- 6391
SAMBHU N. KUNDU, M.D.,
AND CENTRAL PENNSYLVANIA
OBSTETRICS-GYNECOLOGY,
INC. ,
CIVIL ACTION - LAW
Defendants
JURY TRIAL DEMANDED
ORDER
AND NOW this
day of
, 2001,
upon consideration of the Preliminary Objections to
Plaintiff's Complaint of Defendants, Sambhu N. Kundu, M.D.,
and Central Pennsylvania Obstetrics-Gynecology, Inc., and
any response thereto, it is hereby ORDERED and DECREED that:
(1) subparagraphs 31(i), (j) and (k) are dismissed with
prejudice; (2) Plaintiff's cause of action against Central
Pennsylvania Obstetrics-Gynecology, Inc., for direct
corporate negligence is dismissed with prejudice; and (3)
subparagraphs 33(a), (b), and (c), are dismissed with
prejudice, or in the alternative, must be plead with more
specificity.
BY THE COURT:
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FOULKROD ELLIS
PROFESSIONAL CORPORATION
1800 Linglestown Road - Suite 305
Harrisburg, Pennsylvania 17110
Telephone: [717] 213-4200
Fax: [7171 213-4202
PATRICIA BETTGER,
Plaintiff
Attorney for Defendants:
SambhuN. Kundu, M.D., and
Central Pennsvlvania OB-GYN. Inc.
IN THE COURT OF COMMON PLEAS
OF CUMBERLAND COUNTY,
PENNSYLVANIA
v.
NO. 01-6391
SAMBHU N. KUNDU, M.D.,
AND CENTRAL PENNSYLVANIA
OBSTETRICS-GYNECOLOGY,
INC. ,
CIVIL ACTION - LAW
Defendants
JURY TRIAL DEMANDED
PRELIMINARY OBJECTIONS TO PLAINTIFF'S COMPLAINT
OF DEFENDANTS, SAMBHU N. KUNDU, M.D.
AND CENTRAL PENNSYLVANIA OBSTETRICS-GYNECOLOGY, INC.
AND NOW come Defendants, Sambhu N. Kundu, M.D. and
Central Pennsylvania Obstetrics-Gynecology, Inc.,
("Objecting Defendants"), by and through their counsel,
Foulkrod Ellis, P.C., and assert preliminary objections to
Plaintiff's Complaint as follows:
1. Plaintiff initiated this medical professional
liability action alleging a delay in diagnosis of breast
cancer by way of Complaint filed on or about November 9,
2001. (A copy of Plaintiff's Complaint is attached hereto
as Exhibit "A. ")
I. PRELIMIARY OBJECTION IN THE NATURE OF A MOTION TO
STRIKE SUBPARAGRPAHS 31(i), (j), and (k) PURSUANT TO
Pa.R.C.P. 1028(a) and Pa.R.C.P. 1019 (a) .
2. Paragraph 1 is incorporated by reference as fully
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set forth herein at length.
3. The following subparagraphs of paragraph 31
constitute vague, boilerplate allegations which should be
stricken from Plaintiff's Complaint with prejudice:
(i) In failing to avail himself of and/or utilize
available and pertinent information, medical
records and diagnostic tests pertaining to
Plaintiff's medical condition;
(j) In failing to timely discover his aforenoted
careless and negligent conduct and/or timely
diagnose or respond to the consequences and
significance thereof; and
(k) Providing medical care and treatment below
the accepted standard of care for treatment.
4. Pa.R.C.P. 1019(a) requires a Plaintiff to state in
his or her Complaint, in concise and summary form, the
mace rial facts upon which a cause of action is based.
5. In Connor v. Alleqheny General Hosp., 461 A.2d 600
(pa.Super 1983), the Supreme Court of Pennsylvania placed
the onus on defendants to preliminarily object to all
"catchall" language which may allow a Plaintiff to
subsequently introduce new theories of negligence and new
causes of action well after the statute of limitations has
run. Id. at 603, n. 3.
6. This Honorable Court in Winters v. Lonergan, 36
Cumbo 98 (1985), interpreted Connor to mean that a defendant
should not, by virtue of boilerplate averments be subject to
defend against any conceivable theory of negligence. See
also Estate of Evans v. Simmers, et al., 42 Cumbo 184
(1992) .
(emphasis added).
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7. Courts have also recognized that Pa.R.C.P. 1019 (a)
must be applied even more strictly in medical malpractice
actions. Mikula v. Harrisburg Polyclinic HOSD., 58 D. & C.
2d 125 (C.P. Dauphin County, 1972).
8. The above-cited allegations of negligence
constitute vague, boilerplate averments in the nature of
mere "Notice Pleading" which Pennsylvania has clearly
rejected in adopting a requirement of "Fact Pleading" in
Pa.R.C.P. 1019(a) and Pa.R.C.P. l028(a) (3). These
allegations of negligent acts or omissions could be asserted
against any healthcare provider or medical doctor in any
medical malpractice action, and therefore, do not give
Objecting Defendants sufficient notice to prepare an
adequate defense.
9. These overly-broad, boilerplate allegations of
negligence are insufficient in that they fail to apprise
Objecting Defendants of the tortious conduct which Plaintiff
asserts. See Dibble v. Penn State Geisinqer Clinic, 42 D&C
4th 225 (Lackawanna C.P. 1999). Absent specific acts of
negligence, Objecting Defendants have not been adequately
provided with the facts upon which Plaintiff's claim is
based and thus Objecting Defendants are not able to
adequately prepare a defense to such allegations.
10. The above-cited boilerplate allegations of
negligence would allow Plaintiff to later amend her
Complaint well after the statute of limitations has run to
add new allegations of negligence not originally plead,
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thereby prejudicing Objecting Defendants from preparing a
defense of the instant matter.
11. The above-cited allegations are further
prejudicial to Objecting Defendants inasmuch as these
allegations may result in the waiver of various defenses and
objections pursuant to Pa.R.C.P. 1032.
WHEREFORE, Defendants, Sambhu N. Kundu, M.D. and
Central Pennsylvania Obstetrics-Gynecology, Inc.,
respectfully request that this Honorable Court enter an
order dismissing with prejudice subparagraphs 31(i), (j),
and (k) from Plaintiff's Complaint.
II. PLAINTIFF HAS NOT STATED A CAUSE OF ACTION AGAINST
CENTRAL PENNSYLVANIA OBSTETRICS-GYNECOLOGY, INC., ON A
THEORY OF CORPORATE NEGLIGENCE PURSUANT TO THOMPSON V.
NASON HOSP., 591 A.2d 703 (Pa. 1991).
12. Paragraphs 1 through 11 are incorporated by
reference as fully set forth at length.
13. In paragraph 33 of her Complaint, plaintiff
alleges that Central Pennsylvania Obstetrics-Gynecology,
Inc., was negligent in the following particulars:
(a) Defendant Doctor, Dr. Carr and employees
failed to timely diagnose and treat
Plaintiff's breast cancer;
(b) Defendant Doctor, Dr. Carr and employees
failed to order appropriate diagnostic tests
and procedures to diagnose Plaintiff's breast
cancer in a timely manner;
(c) Defendant Doctor, Dr. Carr and employees
failed to refer Plaintiff to a
surgeon/specialist to seek advice or
consultation regarding Plaintiff's condition
in a timely manner;
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(d) Failed to monitor the competency of its
medical staff and employees, the adequacy of
patient treatment and practices relating to
breast cancer diagnosis and treatment;
(e) Failed to assure that Defendant Doctor, Dr.
Carr and employees that were associated with
the aforementioned care and treatment of
Plaintiff were aware of and/or properly
investigated Plaintiff's continued complaints
relating to her left breast; and
(f) Failed to timely inform the Plaintiff that
her complaints relating to her left breast
could be a form of breast cancer.
14. However, there is no Pennsylvania appellate
authority for extending the theory of direct corporate
liability set forth in Thompson v. Nason Hosp., 591 A.2d 703
(Pa. 1991), to include medical professional corporations.
15. Although efforts by Objecting Defendants to locate
case law from this Honorable Court proved to be
unfruitful, both the federal courts and other Pennsylvania
courts of common pleas have consistently declined to apply
Thomoson's theory of direct corporate liability to non-
hospital or non-HMO defendants. See Milan v. American
Vision Ctr., 34 F.Supp.2d 279 (E.D. Pa. 1998); Dowhouer v.
Judson, 119 Dauph. 366 (2000); Dibble v. Penn State
Geisinqer Clinic, 98 CV 2281, (C.P. Lackawanna); Brewer v.
Geisinqer Clinic, PICS Case No. 00-0686 (C.P. Lackawanna
March 31, 2000); Remshifskv v. Kraus, No. 1845 Civil 1992
(C.P. Monroe); Paul v. Barton, Action No. 2000-530, (C.P.
Franklin) .
16. Furthermore, Central Pennsylvania Obstetrics-
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Gynecology, Inc., did not render any medical or surgical or
professional services to Plaintiff. Under the Pennsylvania
Medical Practice Act of 1985, 63 P.S., ~422.10 et seq., only
an individual person may be licensed as medical doctor to
practice medicine and surgery. At no time was Central
Pennsylvania Obstetrics-Gynecology, Inc., licensed as a
medical doctor and Central Pennsylvania Obstetrics-
Gynecology, Inc., did not in fact have the right to
supervise, direct or control the manner in which Dr. Kundu
provided professional services to Plaintiff.
WHEREFORE, Defendants, Sambhu N. Kundu, M.D. and
Central Pennsylvania Obstetrics-Gynecology, Inc.,
respectfully request that this Honorable Court enter an
order dismissing with prejudice Plaintiff's cause of action
against Central Pennsylvania Obstetrics-Gynecology, Inc.,
for direct corporate negligence.
III. AVERMENTS IN SUBPARAGRAPHS 33(a), (b), AND (c) OF
PLAINTIFF'S COMPLAINT CONTRAVENE THE IDENTITY
REQUIREMENT OF Pa.R.C.P. 1029.
17. Paragraphs 1 through 16 are incorporated by
reference as fully set forth at length.
18. In paragraphs 33(a), (b) and (c) of her Complaint,
Plaintiff alleges agency without identifying which
individuals are allegedly Objecting Defendants' employees.
19. Pa.R.C.P. 1029 requires that averments of agency
must by denied specifically or they will deemed admitted.
6
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20. In order to comply with the provisions of Rule
1029, Objecting Defendants must know the identity of the
individuals who are alleged to be their employees.
Willinqer v. Merev Catholic Medical Center of Southeastern
Pennsvlvania, 362 A.2d 280 (Pa.Super. 1976), affirmed, 393
A.2d 1188 (Pa. 1978)
21. If the allegations set forth in subparagraphs
33(a), (b), and (c) are allowed to remain, Objecting
Defendants would not be able to specifically deny agency,
and therefore, agency would be deemed admitted.
WHEREFORE, Defendants, Sambhu N. Kundu, M.D. and
Central Pennsylvania Obstetrics-Gynecology, Inc.,
respectfully request that this Honorable Court enter an
order dismissing with prejudice subparagraphs 33(a), (b),
and (c), or in the alternative, direct Plaintiff to file a
more specific pleading addressing the identity of the
unnamed individuals referenced within these subparagraphs.
Respectfully submitted,
FOULKROD ELLIS
PROFESSION CORPORATION
Date,#
By:
ayman, Esquire
LD. No. 85651
7
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;5559a:)4
717-761-3950
TO' 7,J-="'Y;S9804
PI';GE'1il2
IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY. PENNSYLV ANlA
PATRICIA BETTGER,
Plaintiff.
v,
SAMBHU N. KUNDU, M,D, and
OBSTETRICS AND GYNECOLOGY,
INC.,
Defendants,
NOTICE TO DEFENDANTS
You are hereby notified to file a
written response to the enclosed Complaint
wit1tin twenty (20) days from service
hereof or a judgment may be entered
~/-.-?
AVID C. MARTIN, JR, -
PAm COLLINS LEImA
-. , . ."--..-- --.-,.....-
----------.-----..---...:..- _.~-'-
CIVIL DIVISION
Code:
No. ^J- 1,,391
l?lu.l .,~
COMPLAINT IN CIVIL ACTION
Filed On Behalf Of:
Patricia Bettgcr. Plaintiff
Counsel of Record for This Party:
Patti Collins Lerda, &q.
Pa, lD No. 56492
MARTIN & LERDA
2006 Noble Street
Pittsburgh, PA 15218
4121271-6800
JURY TroAL DEMANDED
'11IIEOOPV FROM A~
In TlllllllllullY WI..... I_IInlnil my haRe
and tilt llIIIl alllllId~ CIfUtla" Pl.
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TO: 7F-~58980q
IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY. PENNSYLVANIA
CIVIL DIVISION
PATRICIA DETTOER.
)
)
)
)
)
)
)
)
)
)
)
Plaintiff,
No.
v.
SAMBHU N, KUNDU. MD, and
OBSTETRICS AND GYNECOLOGY.
INC.,
Defendants.
NOTICE TO DEFEND
YOU HAVE BEEN SUED IN COURT. If you wish to defend against fhe e1aims set
forth in the following pages, you must take action within TWENTY (20) days after this
complaint and notice are served, by eDtering a written appeal'lUlce personaDy or by aUOmey
and filing in writing with the COlllrt your defenses or objvelioDS 10 the claims set forth against
yOI1. You lire warned that if you fail to do so the ease may proceed without yon aud a
judgment may be entered against you by the eourt without further notiee for any mODey
claimed In tbe complaiDt or for IIny other claim or reliefrequested by the plaintiff. You may
lose money or properly 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 81;1' FORm BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP.
LEGAL REFERRAL SERVICE
THE CUMBERLAND COUNTY BAR ASSOCIATION
2 LIBERTY AVENUE
CARLISLE. PA 17013
(717) 249-3166
NDV-15-2001 14:45
5589804
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PAGE' 03
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PI'IGE:04
IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY. PENNSYLVANIA
CIVIL DIVISION
PATRICIA BETTGER.
Defendants.
)
)
)
)
)
)
)
)
)
)
)
No.
Plaintiff,
v.
SAMBHU N, KUNDU, M,D. and
OBSTETRICS AND GYNECOLOGY,
INC.,
COMPLAINT IN CML ACTION
I
AND NOW Comes lite Plaintiff. Patricia Bettger, by and through her altorney, Patti Collins
Lerda, Esquire, and the firm of Martin &: Lerda, and files the following Complaint in Civil Action.
averring the fol1owing in support thereof;
I. The Plaintiff, Patricia Bettger. is an individual residing at 3825 Carriage House Drive,
Camp Hill, Pennsylvania 170 II, hereinafter referred to as "Plaintiff."
2. TheDefendant, SambhuKundu, M.D., is an individual resident of the Commonwealth
I
of Pennsylvania and is duly licensed to practice medicine in the Commonwealth of Pennsylvania,
having his principal office located at 890 Poplar Church Road. Camp Hill, Pennsylvania 17011.
hereinafter referred to as "Defendant Doctor."
NDV-15-2001 14:46
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3. The Defendant, Obstetrics and Gynecology, Inc., is a Pennsylvania corporation, and
at all limes material hereto was duly licensed and authorized to transact business in the
Conunonwealth of Pennsylvania, having its principal place of business located at 890 Poplar Church
Road, Camp Hill, Pennsylvania 170 II, hereinafter referred to as "Defendant Corporation."
4. At all times material and relevant hereto, Defendant Doctor was associated with
and/or provided medical services to Plaintiff through Defendant Corporation, and at all stlllh times
was then and thereabout acting within the course and scope of his employment or agency with said
Defendant Corporation.
S. At all times material and relevant hereto, DefendantCorporation acted by and through
its/their agents. servants, workmen or employees who were then and thereabout acting within the
course and scope of their employment with said Defendant, one of whom may have been or was
Defendant Doctor herein III1d Dr. William F. Cllrr.
6. At all times material and relevant hereto, Defendant Corporation was engaged,
thJrough its agents, Se(\lants, employees and those staffpersoJUleJ hereinafter identified, in rendering
professional medical care to the public, and thereby held itself out to the public generally, and to the
Plaintiff specifically, as being skilled in the practice of gynecological medicine and had the
responsibility of providing appropriate and adequate medical care to the Plaintiffin accordance with
the prevailing standards of medical practice,
7. At all times material and relevant hereto. said Defendant Doctor held himself out to
the public, and to Plaintiff particularly, as a physician in gynecological medicine and related medical
care, duly qualified to practice medicine in the Commonwealth of Pennsylvania and thoroughly
trained and knowledgeable in the field of gynecology,
-2-
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8. At all times material and relevant hereto, Dr. William F. ellII was asso~iated with and
provided medical servi~es to Plaintitftl\roullh Defendant COlpOration, and at all such times was then
and thereby acting with the course and scope of his employment or agency with 3llid Defendant.
9, As a direct result of the aforesaid, said Defendants accepted responsibility for the care
and treatment of Plaintiff and, in doing so, understood and asswned a duty to her to render
competent, proper, adequllte and appropriate medical care and treatment, and 10 take appropriate
preventative and curative measures to treat Plaintiff and to avoid harm to her.
\ 0, At all times material hereto. all aets ofagents, Sel"\rMts and employees of Defendant
Corporation within the scope of their agency or employment by operation of law are imputed to
Defendant Corporation,
II. On oraboutNovembet 2 I, 1997, Plaintiff consulted Dr, William F. ClIII at the office
of Defendant Corporation for the purpose of obtaining medical care for complaints of redness,
crusting and initalion ofhe1left nipple area, PJaintifhlso reported noticing a bloody discharge on
her bra. At that time, Dr, ellII conducted a breast examination of Plaintiff and prescribed an ointment
for the nipple lII'elI,
12. On or about December 17.1997, Plaintiff'was again examined by Dr, Carr at the
Defendant Corporation office, complaining of breast soreness and redness of the left nipple. At that
time. Dr, ellII ordered a diagnostic mammogram of the Plaintiff.
13. On or about October23, 1998, Plaintiff contacted Defendant COIJlOration' s office with
complaints of left breast soreness, nipple discharge as bloody and hardness underneath the nipple, and
requested a mammogram be ordered.
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14. On or about October 23, 1998, Defendanl Doctor examined Plaintiff's breasts and
found asymmetry of tile left nipple with reddening, noting Plaintiff's report of a bloody discharge of
the left nipple lwo weeks prior and soreness.
1 S, On or about October 23, 1998, Defendant Doctor performed an ultrasound study in
Defendant Corporation's office and told Plainliff she had mol riple cysts in her left breast.
16. 0" or about October 26, 1998, Plaintiffhad a mlllIllllogram performed which showed
two new nodules in her left breast.
17, On orabout November 10, 1998, Defendant Doctor performed a fine needle aspiration
of Plaintiff's left breast, which showed fibrocystic disease.
18, On or aboul December, 14. 1998, Plaintiff was examined by Defendant Doctor and
again (;omplained of redness and soreness in her left breast. At that time, Defendant Doctor
performed an ultrasoWtd of Plaintiff's left breast and lold Plaintiff she had cysts in her breast and
prescribed Vitamin E cream.
19, On or about January 25, 1999, Plainliffwas examined by Defendant Doclor and was
again lold she had cysts in her left breast,
20. On or about May 3, 1999, Plaintiff consulted Defendant Doctor for medical treatmeut
and was examined by Defendant Doctor,
2 L On or about FeblUaty 7,2000, Plaintiff was examined by Defendant Doctl!r, She
continued to complain of redness and irritation oflhe left nipple, Defendant Doctorreferred Plaintiff
for a surgical opinion regarding the left nipple.
22. On or about PeblUary 16, 2000. Plaintiff had a surgiCal biopsy of her left nipple
perfonned by Dr. Salvatore A, Parascandola at Holy Spirit Hospital.
.4-
NDV-15-2001 14:47
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PAGE: 08
23, On March 9, 2000, Dr, Parascandola informed the Plaintiff that her biopsy revealed
Paget's disease, breast cancer of her left breast.
24. Plaintiff had clear signs of Paget's disease on or about November 21, 1997, and
thereafter, which were not recognized by Defendant Doctor and were not timely diagnosed,
25. DefmdaRts' continuously reassured Plaintiff during her office visits tbatthere was no
real problem with her breast and never told her she could have signs of breast <:ancer.
26, As a result of Defendants' actions, Plaintiff has suffered the injuries and damages
herein.
27, As a result of the delayed diagnosis and treatment of breast cancer, Plaintiff had a
mastectomy of her left breast on ll1ne IS, 2000, and reconstructive surgery,
28, As a result of the delayed diagnosis and treatment of breast cancer, Plaintiff is at an
increased risk of developing recurring cancer in the fulllre,
29, As a direct and proximate result of the aforesaid carelessness and negligence of the
Dllfendants, jointly and/Or severally, Plaintiff suffered:
(a) Severe, painful and pennanent injuries;
(b) Scarring and permanent disfigurement of her left breast;
(c) Removal of left breast;
(d) Medical expenses and costs past and into the future;
(e) Impairment of general health, strength and vitality;
(f) Lost earnings;
(g) Emotional and mental trawna, anguish and humiliation. any or all of which
may be permanent in nature and continuing indefinitely into the future;
(h) Loss of the enjoyment of some of life's pleasures and actiVities;'
-5-
NDV-15-2001 14:47
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(i) Additional surgical procedures and medical !realmcnt; and
(j) Pain and suffering past and into the future.
CQUNT I
PATRICIA BETTGER VS. SAMBHV KUNDU. M.D.
30. Plaintiff incorporates Paragraphs 1 through 29 as jf set forth more fully vCl'batim
herein,
3 I, Defendant Doctor was negligent in the following particulars:
(a) In failing to recognize clinical signs and symptoms ofbreast cancer in a timely
manner;
(b)
In failing to order appropriate diagnostic lests and procedures to diagnose
I
breast cancer in a timely manner;
(c)
In failing to refer Plaintiff to a surgeon orspeciaJist in a timely I1UI1Ulerto seek
advice or consultation regarding Plaintiff's condition;
'(d)
(e)
In failing to infonn Plaintiff that her symptoms could indicate breast cancer:
I
In failing to diagnose Plaintiff's breast cancer when Defendant should have
recognized signs of Paget' s disease several yem before Plaintift" s diagnosis
was made so that treatment could have begun earlier;
(t) In failing to heed and investigate Plaintiff's complaints of left breast pain,
redness, irritation and nipple discharge, assuring Plaintiff she did not have a
serious medical condition;
-6.
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(g) In failing to review and evaluate Plaintiff's medical records forahistory ofIeft
breast pain. irritation, redness and nipple discharge upon Defendant's initial
consultation and thereafter;
(h) In causing a delay in medical treatment of Plaintiff's brellSt cancer. allowing
the cancer to spread in Plaintiff's body;
(i) In failing to avail himself of and/or utilize available ami pertinent information,
medical records and diagnostic tests pertaining to Plaintiff's medical
condition;
(j) In failing to timely discover his aforenoted careless and negligent conduct
and/or to timely diagnose or respond to the consequences and significance
thereof; and
(k) Providing medical care and treatment below the accepted standard of care for
treatment.
WHEREFORE, Plaintiffdemandsjudgment against Defendant Doctor,jointly and severally,
in an amount in excess of $25,000.00,
COllNT n
PATRICIA BETTGER 'VS. OBSTETRICS A~D GYNECOLOGY. INC.
32, Plaintiff incorporates Paragraphs I through 31 as if set forth more fiI1ly verbatim
herein,
33, Defendant Corporation is negligent in the following putic\llars:
(a) Defendant Doctor, Dr, Carr and employees failed to timely diagnose and treat
Plaintiff's breast cancer;
.7.
- - NOV~ 15-20131- 14: 48
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(b) Defendant Doctor, Dr. ClUJ' and employees failed to oreler appropriate
diagnostic tests and procedures to diagnose Plaintiff's breast cancer in a
timely manner;
(c) Defendill\t Doctor, Dr, Carr and employees failed to refer Plaintiff to a
surgeon/specialist to seek advice or consultation regarding Plaintiff's
condition in a timely manner;
(d) Failed to monitor the competency of its medical staff and employees, the
adequacy of patient treatment and practices relating to breast cancer diagnosis
and treatment;
(e) Failed to aSSure that Defendant Doctor, Dr. Carr and employees that were
associated with the aforementioned care and treatment of Plaintiff were aware
of and/Or properly investigated Plaintiff's continued complaints relating to her
left breast; and
(f) Failed to timely infonn the Plaintiff that her complaints relating to her left
breast could be a fonn of breast cancer.
WHEREFORE. Plaintiff demands judgment against Defendant Cotporation, jointly and
severally, ill an amount in excess of $25,000,00,
Respectfully submitted,
fJNIt. (' ;l/._.... Lv. ~
Patti Collins Lerda
Attorney for Plaintiff
Dated:
IthlDI
f
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CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the
foregoing PRELIMINARY OBJECTIONS TO PLAINTIFF'S COMPLAINT OF
DEFENDANTS, SAMBU N. KUNDU, M.D., AND CENTRAL PENNSYLVANIA
OBSTETRICS-GYNECOLOGY, was served upon counsel of record this
29TH day of November, 2001 by depositing said copy in the United
States Mail at Harrisburg, Pennsylvania, postage prepaid, first
class delivery, and addressed as follows:
Patti Collins Lerda, Esquire
Martin & Lerda
2006 Noble Street
Pittsburgh, PA 15218
(412) 271-6800
FOULKROD ELLIS
PROFESSIONAL CORPORATION
BY~rc~
Be E. Forbes, Paralegal
- ''"'
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CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the
foregoing PRELIMINARY OBJECTIONS TO PLAINTIFF'S COMPLAINT OF
DEFENDANTS, SAMBU N. KUNDU, M.D., AND CENTRAL PENNSYLVANIA
OBSTETRICS-GYNECOLOGY, was served upon counsel of record this
29TH day of November, 2001 by depositing said copy in the United
States Mail at Harrisburg, Pennsylvania, postage prepaid, first
class delivery, and addressed as follows:
Patti Collins Lerda, Esquire
Martin & Lerda
2006 Noble Street
Pittsburgh, PA 15218
(412) 271-6800
FOULKROD ELLIS
PROFESSIONAL CORPORATION
By~L~
Be E. Forbes, Paralegal
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PAGE: 11
(b) Defendant Doctor, Dr. Cm and employees !ailed to order 8PP\'Opriate
diagnostic tests and procedures to diagnose Plaintiff's breast cancer in a
timely manner.
(c) Defendant Doctor, Dr, Carr and employees failed to refer Plaintiff to a
surgeon/specialist to seek advice or consultation regarding PlaintifP s
condition in a timely manner;
(d) railed to monilOr the competency of its medical staff and employees, the
adequacy of patient treaunentand practices relating to breast cancer diagnosis
and treatment;
(e) Failed to aSS1Ute that Defendant Doctor, Dr. Carr and employees that were
associated with the aforetnentionedcare and treatment of Plaintiff were aware
of andIorproperly investigated Plaintiff's continued complaints relating 10 her
left breast; and
(f) Failed to timdy inform the Plaintiff that her complaints relating to her left
breast could be a fonn of breast cancer.
WHEREFORE. Plaintiff demands judgment against Defendant Corporation, jointly and
severally, in an amount in excess of 525,000.00,
Respectfully submitted,
jJlIz' (' ~_'- Lv.h
Patti Collins Lerda
Attomey for Plaintiff
Dated: IthlDI
.
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(g) In failing to review and evaluate Plaintiff's medical records for a history ofJeft
breast pain, izrillluon. redness and nipple discharge upon Defendant's initial
consultation and thereafter;
(h) In causing a delay in medic:al trclltmentofPlaintiff's breast cancer, allOwing
the cancer to spread in Plalntiff's body;
(i) In failingto avail himself of and/or utilize available and pertinent information,
medical records and diagnostic tests pc:rtalJ1ing to Plaintiff's medical
condition;
(j) In failing to limely discover his aforc:noted careless and negligent conduct
andlor to timely diagnose or respond to the consequences and significance
thereof; and
(k) Providing medical care and treatment belowthe accepted standard of care fot
treatment.
WHEREFORE, Plaintiffdemandsjudgment against Defendant Doctor,jolntly and severally,
in IUl amount in excess ofS2S,OOO.OO.
herein,
COUNT n
PATRICIA BE'ITGER VS. OBSTETRICS AND GYNECOLOGY. INC.
32. Plaintiff incorporates Paragraphs I through 31 as if set forth more fully verbatim
33. Defendant Corporation is negligent in the following particulars:
(a) Defendant Doctor, Dr. Carr and employees failed to timely diagnose and treat
Plaintiff's bJust cancer;
-7-
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(i) Addilional S1.Ilgical procedures and medical treatment; and
(j) Pain and suffering past and into the future.
CQUNTI
PATRICIA BETTGER VS. SAMBHU KUNDU. M.D.
30, Plaintiff incorporates Paragraphs 1 through 29 as if set fom more fully verbatim
herein,
31, Defendant Doctor was Mgligent in the following partieulars:
(a) In failing to recognize clinical signs and symptoms ofbreast cancer in a timely
manner:
(b) In failing to order appropriate diagnostic tests and procedures to diagnose
breast cancer in a timely manner:
(c) In failing to refer Plaintiff to asurgeon or speeialist in a timely II18llIlerto seek
advice or consultation regarding Plaintiffs condition;
.( d) In failing to illlfonn Plaintiff that her symptoms could indicate breast cancer;
(e) In failing 10 diagnose Plaintiff's breast cancer when Defendant should have
recognized signs of Paget' s disease several years before Plaintiffs diagnosis
was made so that treatment could have begun earlier:
(f) In failing to heed and investigate Plaintiff's complaints of left breaSt pain,
redness, irritation and nipple discharge, assuring Plaintiff she did not have a
serious medical condition;
-6.
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2:), On March 9, 2000, Dr, Parascanclola informed the Plaintiff that her biopsy revealed
Paget's disease, breast cancer of her left breast.
24. Plaintiff had clear signs of Paget's disease on or about Novemre. 21, 1997, and
thereafter, which were not recognized by Defendant Doctor and were not timely diagnosed,
25. Defendants' continuously reassured Plaintiff during her officevlsirs that there was no
real problem with her breast lIIId never told her she could have signs ofbteast ~cer.
26, As a result ofDefendanls' actions, Plaintiff has suffered the injuries and damages
herein.
27, As a result of the delayed diagnosis and treatment of breast cancer, Plaintiff had a
mastectomy of her left breast on June 15, 2000, and reconstructive surgery,
28, As a result of the delayed diagnosis and treatment of breast cancer, Plaintiffis at an
increased risk of developing recurring clIIIcer in the ful\lre.
29, As a direct and proximate result of the aforesaid carelessness and negligence of the
Defendllllls, jointly anellor severally, Plaintiff suf'fered:
(a) Severe, painful and pennanent injuries;
(b) Scarring and permanent disfigurement of her left breast;
ec) Removal of left breast;
(d) Medical expenses and costs past and into the future;
(e) Impairment of general health, strength and vitality;
(t) Lost earnings;
(g) Emotional and mental ttauma, anguish and humiliation, any or all of which
may be permanent in nature and continuing. indefinitely into the future;
(h) Loss afthe enjoyment of some of life's pleasures and actiVitieS;'
-5-
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14. On or about October 23, 1998. Defendant Doctor examined Plaintiffs breasts and
found asymmetry of the left nipple with reddening, noting Plaintiff's report of a bloody discharge of
the left nipple two weeks prior and soreness.
15. On or about October 23, 1998, Defendant Doctor performed an ulttasound study in
Defendant Corporation's office and told Plaintiff she had multiple cysts in her left breast.
16. On or about October 26, 1998, Plaintiffhaaa mammogram performed which showed
two new nodules in her left breast.
17. On or about November 10, 1998, Defendant Doctor perfolDled a fine needle aspiration
of Plaintiff's left bmIst, which showed fibrocystic disease.
18. On or about December. 14. 1998, Plaintiff was examined by Defendant Doctor and
again complained of redness and soreness in her left breast. At tbat time, Defendant Doctor
performed an ulrrasowul of Plaintiff's left breast and told Plaintiff she had cysts in her breast and
prescribed Vitamin E cream.
19. On or about January 25, 1999, Plaintiff was examined by Defendant Doetor and was
again told she had ~sts in her left breast,
20. On or about May 3, 1999, Plaintiff consulted Pefendant Ooctorformedical tteatmem
and was examined by Defendant Doctor,
21. On or about February 7, 2000, Plaintiff was examined by Defendant Doctl?f, She
continued to complain of redness and irritation of the left nipple. Defendant Ooc:torreferred Plaintiff
for a surgical opinion regarding the left nipple.
22, On or about February 16, 2000. Plaintiff had a surgical biopsy of her left nipple
performed by Dr. Salvatore A. Parascandola at Holy Spirit Hospital.
-4-
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8. Alan times material md xelevant hereto, Dr. WilIiamF.Carrwasassociatedwithand
provided medical services to Plaintifftllrough Defendant Corporation, and at all such times was then
and thereby acting With the COIll'SC and scope of his employment or agency with said Defendant.
9. As a direct result of the aforesaid, said Defendants accepted responsibility for the care
and treatment of Plaintiff and, in doing so, understood and assumed a duty to her to mlder
competent, proper, adequate and appropriate medical care and treatment, and to take appropriate
preventative and curative mcasurCll to treat Plaintiff and w avoid harm to her.
10, At all times material hereto, all acts ot'agents, selVants iUld employees of Defendant
Corporation within the scope of their agency or employment by operalion of law are imputed to
Defendant Corporation,
11. On ora bout November 21, 1997, Plaintiff consulted Dr, William F. Carr at the office
of Defendant Corporation for the purpose of obtaining medical care for complaints oC redness,
crusting and initatiOD oCher left nipple area. Plaiutiffalso reported noticing a bloody discharge on
her bIll. At thattime, Or, Carr conducted a breastelCamination of Plaintiff and prescribed !Ill ointment
for the nipple area.
12. On or about December 17, 1997, Plainriffwas again examined by Dr. em at the
Defendant Corporation office, complaining of breast soreness and redness of the left nipple. At that
lime, Dr, em ordered a diagnostic mammogram of the Plaintiff.
13. On or about October23, 1998, Plaintiff contacted Defendant COIpOration's office with
complaints oflcft breast soreness, nipple discharge as bloody and hardness underneath the nipple, and
requested a manunogram be ordered,
-3-
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3. The Defendant, Obstetrics and Gynecology, Inc., is a Pennsylvania corporation, and
at all times material ncreto was duJy licensed and authori:zed to transact business in the
Commonwealth of Pennsylvania, having its principal pllll;eofbusiness located at 89G PopIarChurch
Road, Camp Hill, Pennsylvania 17011, hereinafter referred to as "Defendant Corporation."
4. At all times material and relevant hereto. Defendant Doctor was associated with
ancl/or provided medical services to Plaintiff Wough Defendant Corporation, and at all such times
was then and thereabout acting within the course and scope of his employment or agency with said
Defendant C01)lOration.
5. At all rimes material and relevant hemo, DcfendantCorporation acted by and through
its/their agents, servants, workmen or employees who were then and thereabout acting within the
course and scope of their employment with said Defendant, one of whom may have been or was
Defendant Doctor herein and Dr. William F. CaIT.
6. At all times material and relevant hereto, Defendant COlpOranon was engaged,
through its agcnts,scl'IIants, employees and those staffpersOl1t1el hereinafter identified, in rendering
professional medical care to the public, and thereby held itself out to the public generally, and to the
Plaintiff specifically, as being skilled in the practice of gynecological medicine and had the
responsibility of providing appropriate and aclequate medical caleto the Plaintiffin accordance: with
the prevailing standards of medical practice,
7. At all times material and relevant hereto, said Defendant Doctor held himself out to
the public. and 10 Plaintiff particularly, as a physician in gynecological medicine and rellltedmedical
care, duly qualified to practice medicine in the Commonwealth of Pennsylvania and thoroughly
trained and Icnowledgeable in the field of gynecology.
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IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY. PENNSYL V ANlA
CIVIL DIVISION
? A mClA BETTGER.
Plaintiff,
)
)
)
)
)
)
)
)
)
)
)
No.
v.
SAMBHU N. KUNDU, M.D. and
OBSTETRICS AND GYNECOLOGY.
INC.,
Defendants.
COMPLAINT IN CIVIL ACl'ION
I
AND NOW Comes the Plaintiff', Patricia Benger, by and through her attorney, Patti CoUins
Lerda, Esquire, and the firm of Martin &. Lerda, and files the following Complaint in Civil Action.
averring the following in support thereof:
I. The Plaintiff, Patricia Benger, is an individual residing at 3825 Carriage House Drive,
I
Camp Hill, Pennsylvania 17011, hereinafter rermed to as "Plaintiff."
2. TheDefendant, Sambhu Kundu, M.D., is an individual resident of the Commonwealth
of Pennsylvania and is duly licensed to practice medicine in the Commonwealth ofPeMsylvania,
having his principal office located at 890 Poplar Chw<:h Road, Camp Hill, Pennsylvania 17011,
hereinafter refmed to as "Defendant Doctor."
NOV-15-2001 14:46
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717-761-395121
'to: 71.7"r98I2lQ
,
IN THE COURT OF COWvlON PLEAS OF CUMBERLAND COUNTY. PENNSYLvANIA
CIVIL DMSrON
PATRIClABETIGER,
)
)
)
)
)
)
)
)
)
)
)
Plaintiff.,
No,
v.
SAMBHU N. KUNDU, M.D.lmd
OBSTETRICS AND CYNEC1'LOGY.
INC., :
Defendants.
NOTICE TO DEFEND
YOU HA VB BEEN S D IN COURT. If you wisb to defend againlt the claims let
fordl in die followin; pages you must take adiOIl withio TWENTY (20) daYI after this
compJaiut aod Dotiee are Ie ed, by eDtering. written .ppearanee persouDy or by aUornBY
aDd filing in writiDl with the COlllrt your dcfcDSeS or objections to the claims let forth a;abut
YOIl. You are wlU'IIedl that f you fail to do so the ease may proceed without YOD aDd a
judgment may be ea"rcd a inst you by the court without further lIoliee for any money
claimed in the complaint or Ii I' IIny other claim or relief requested by the plaintiff. You may
lose money 01' property or 0 er rights important to you.
YOU SHOULDT~THlSPAPER TO YOUR LAWYER AT ONCE. IFYOUDO
NOT HAVE A LAWYER 0 CANNOT AFFORD ONE, GO TO OR TELEPHONE THE
OrnCE SET FORTII BEL W TO FIND OUT WHERE YOU CAN GET LEGAL HELP.
mf'LEGAL REFERRAL SERVICE
THE ERLAND COUNTY BAR ASSOCIATION
2 LIBERTY AVENUE
, CARLISLE, PA 17013
(717) 249-3166
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IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY. PENNSYL V ANJA
PATRICIA BETTGER,
CIVIL DMSION
Plaintiff.
Code:
v,
SAMBHU N. KUNDU, M.D, and
OBSTETRICS AND GYNECOLOGY,
INC,.
No. ^I- '-.3<:;}
C?,c..>i.ll~
COMPLAINT IN CIVIL ACTION
Defendants,
Filed On Behalf Of:
Patricia Bettger. Plaintiff
Counsel of Record for This Party:
Patti Collins Lercla, Esq.
Pa, lD No. 56492
MARTIN & LERDA
2006 Noble Street
Pittsburgh, PA 15218
I
4121271-6800
NOTICE TO DEFENDANTS
You arc hereby notified to file a
written response to the enclosed Complaint
within twenty (20) days from service
hereof or a judgment may be entered
~~.-&-
f)A VID C. MARTIN, JR, -
PAm COLLINS LElIDA
JURY TIDAL DEMANDED
TFlJE 00P'f FROM A&oORI.')
InT....ICIlIY__..I..unlD./ilyhana
and lilt .. 111 Slid CGurt "CUU*.. Pa.
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20. In order to comply with the provisions of Rule
1029, Objecting Defendants must know the identity of the
individuals who are alleged to be their employees.
Willinqer v. Mercy Catholic Medical Center of Southeastern
pennsvlvania, 362 A.2d 280 (Pa.Super. 1976), affirmed, 393
A.2d 1188 (Pa. 1978)
21. If the allegations set forth in subparagraphs
33(a), (b), and (c) are allowed to remain, Objecting
Defendants would not be able to specifically deny agency,
and therefore, agency would be deemed admitted.
WHEREFORE, Defendants, Sambhu N. Kundu, M.D. and
Central Pennsylvania Obstetrics-Gynecology, Inc.,
respectfully request that this Honorable Court enter an
order dismissing with prejudice subparagraphs 33(a), (b),
and (c), or in the alternative, direct Plaintiff to file a
more specific pleading addressing the identity of the
unnamed individuals referenced within these subparagraphs.
Respectfully submitted,
FOULKROD ELLIS
PROFESSION CORPORATION
4-
ayman, Esquire
I.D. No. 85651
Date,+#-
By:
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Gynecology, Inc., did not render any medical or surgical or
professional services to Plaintiff. Under the Pennsylvania
Medical Practice Act of 1985, 63 P.S., ~422.10 et seq., only
an individual person may be licensed as medical doctor to
practice medicine and surgery. At no time was Central
Pennsylvania Obstetrics-Gynecology, Inc., licensed as a
medical doctor and Central Pennsylvania Obstetrics-
Gynecology, Inc., did not in fact have the right to
supervise, direct or control the manner in which Dr. Kundu
provided professional services to Plaintiff.
WHEREFORE, Defendants, Sambhu N. Kundu, M.D. and
Central Pennsylvania Obstetrics-Gynecology, Inc.,
respectfully request that this Honorable Court enter an
order dismissing with prejudice Plaintiff's cause of action
against Central Pennsylvania Obstetrics-Gynecology, Inc.,
for direct corporate negligence.
III. AVERMENTS IN SUBPARAGRAPHS 33 (a), (b), AND (c) OF
PLAINTIFF'S COMPLAINT CONTRAVENE THE IDENTITY
REQUIREMENT OF Pa.R.C.P. 1029.
17. Paragraphs 1 through 16 are incorporated by
reference as fully set forth at length.
18. In paragraphs 33(a), (b) and (c) of her Complaint,
Plaintiff alleges agency without identifying which
individuals are allegedly Objecting Defendants' employees.
19. Pa.R.C.P. 1029 requires that averments of agency
must by denied specifically or they will deemed admitted.
6
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(d) Failed to monitor the competency of its
medical staff and employees, the adequacy of
patient treatment and practices relating to
breast cancer diagnosis and treatment;
(e) Failed to assure that Defendant Doctor, Dr.
Carr and employees that were associated with
the aforementioned care and treatment of
Plaintiff were aware of and/or properly
investigated Plaintiff's continued complaints
relating to her left breast; and
(f) Failed to timely inform the Plaintiff that
her complaints relating to her left breast
could be a form of breast cancer.
14. However, there is no Pennsylvania appellate
authority for extending the theory of direct corporate
liability set forth in Thomoson v. Nason Hoso., 591 A.2d 703
(Pa. 1991), to include medical professional corporations.
15. Although efforts by Objecting Defendants to locate
case law from this Honorable Court proved to be
unfruitful, both the federal courts and other pennsylvania
courts of common pleas have consistently declined to apply
Thomoson's theory of direct corporate liability to non-
hospital or non-HMO defendants. See Milan v. American
Vision Ctr., 34 F.Supp.2d 279 (E.D. Pa. 1998); Dowhouer v.
Judson, 119 Dauph. 366 (2000); Dibble v. Penn State
Geisinger Clinic, 98 CV 2281, (C.P. Lackawanna); Brewer v.
Geisinqer Clinic, PICS Case No. 00-0686 (C.P. Lackawanna
March 31, 2000); Remshifskv v. Kraus, No. 1845 Civil 1992
(C.P. Monroe); Paul v. Barton, Action No. 2000-530, (C.P.
Franklin) .
16. Furthermore, Central Pennsylvania Obstetrics-
5
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thereby prejudicing Objecting Defendants from preparing a
defense of the instant matter.
11. The above-cited allegations are further
prejudicial to Objecting Defendants inasmuch as these
allegations may result in the waiver of various defenses and
objections pursuant to Pa.R.C.P. 1032.
WHEREFORE, Defendants, Sambhu N. Kundu, M.D. and
Central Pennsylvania Obstetrics-Gynecology, Inc.,
respectfully request that this Honorable Court enter an
order dismissing with prejudice subparagraphs 31(i), (j),
and (k) from Plaintiff's Complaint.
II. PLAINTIFF HAS NOT STATED A CAUSE OF ACTION AGAINST
CENTRAL PENNSYLVANIA OBSTETRICS-GYNECOLOGY, INC., ON A
THEORY OF CORPORATE NEGLIGENCE PURSUANT TO THOMPSON V.
NASON HOSP., 591 A.2d 703 (Pa. 1991).
12. Paragraphs 1 through 11 are incorporated by
reference as fully set forth at length.
13. In paragraph 33 of her Complaint, Plaintiff
alleges that Central Pennsylvania Obstetrics-Gynecology,
Inc., was negligent in the following particulars:
(a) Defendant Doctor, Dr. Carr and employees
failed to timely diagnose and treat
Plaintiff's breast cancer;
(b) Defendant Doctor, Dr. Carr and employees
failed to order appropriate diagnostic tests
and procedures to diagnose Plaintiff's breast
cancer in a timely manner;
(c) Defendant Doctor, Dr. Carr and employees
failed to refer Plaintiff to a
surgeon/specialist to seek advice or
consultation regarding Plaintiff's condition
in a timely manner;
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7. Courts have also recognized that Pa.R.C.P. 1019 (a)
must be applied even more strictly in medical malpractice
actions. Mikula v. Harrisburq Polvclinic Hosp., 58 D. & C.
2d 125 (C.P. Dauphin County, 1972).
8. The above-cited allegations of negligence
constitute vague, boilerplate averments in the nature of
mere "Notice Pleading" which Pennsylvania has clearly
rejected in adopting a requirement of "Fact Pleading" in
Pa.R.C.P. 1019 (a) and Pa.R.C.P. 1028 (a) (3). These
allegations of negligent acts or omissions could be asserted
against any healthcare provider or medical doctor in any
medical malpractice action, and therefore, do not give
Objecting Defendants sufficient notice to prepare an
adequate defense.
9. These overly-broad, boilerplate allegations of
negligence are insufficient in that they fail to apprise
Objecting Defendants of the tortious conduct which Plaintiff
asserts. See Dibble v. Penn State Geisinqer Clinic, 42 D&C
4th 225 (Lackawanna C.P. 1999). Absent specific acts of
negligence, Objecting Defendants have not been adequately
provided with the facts upon which Plaintiff's claim is
based and thus Objecting Defendants are not able to
adequately prepare a defense to such allegations.
10. The above-cited boilerplate allegations of
negligence would allow Plaintiff to later amend her
Complaint well after the statute of limitations has run to
add new allegations of negligence not originally plead,
3
,
-
.
< .. .
set forth herein at length.
3. The following subparagraphs of paragraph 31
constitute vague, boilerplate allegations which should be
stricken from Plaintiff's Complaint with prejudice:
(i)
In failing to avail himself of and/or utilize
available and pertinent information, medical
records and diagnostic tests pertaining to
Plaintiff's medical condition;
(j)
In failing to timely discover his aforenoted
careless and negligent conduct and/or timely
diagnose or respond to the consequences and
significance thereof; and
(k)
Providing medical care and treatment below
the accepted standard of care for treatment.
4. Pa.R.C.P. 1019(a) requires a Plaintiff to state in
his or her Complaint, in concise and summary form, the
material facts upon which a cause of action is based.
5. In Connor v. Alleqhenv General Hoso., 461 A.2d 600
(Pa.Super 1983), the Supreme Court of Pennsylvania placed
the onus on defendants to preliminarily object to all
"catchall" language which may allow a Plaintiff to
subsequently introduce new theories of negligence and new
causes of action well after the statute of limitations has
run. rd. at 603, n. 3.
6. This Honorable Court in Winters v. LOnerqan, 36
Cumbo 98 (1985), interpreted Connor to mean that a defendant
should not, by virtue of boilerplate averments be subject to
defend against any conceivable theory of negligence. See
also Estate of Evans v. Simmers, et al., 42 Cumbo 184
(1992) .
(emphasis added) .
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PRAECIPE FOR LISTING CASE FOR ARGUMENT
(Must be typewritten and submitted in duplicate)
TO THE PROTHONOTARY OF CUMBERLAND COUNTY:
Please list the within matter for the next Argument Court.
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -
CAPTION OF CASE
(entire caption must be stated in full)
PATRICIA BETTGER,
(Plaintiffs)
vs.
SAMBHU N. KUNDU, M.D.,
AND CENTRAL PENNSYLVANIA
OBSTETRICS-GYNECOLOGY,
INC. ,
(Defendants)
No. 6391
Civil Action - Law 2001
1. State matter to be argued (i.e., plaintiff's motion for
new trial, defendant's demurrer t complaint, etc.):
preliminary Objections to Plaintiff'S Complaint of
Defendants, Sambhu N. Kundu, M.D., and Central
Pennsylvania Obstetrics-Gynecology, Inc.
2. Identify counsel who will argue case:
(a) for plaintiff: Patti Collins Lerda, Esquire
Address: Martin & Lerda
2006 Noble Street
Pittsburgh, PA 15218
(b) for defendant:Aaron S. Jayman, Esquire
Address: Foulkrod Ellis
1800 Linglestown Road - Suite 305
Harrisburg, PA 17110
3. I will notify all parties in writing within two days
that this case has been listed for argument.
4.
Argument Court Date:
January 2, 2002
Dated: 1;;;'//;)/0 I
I' J
n, Esquire
1. No. 85651
Attorney for Sambhu Kundu,
M.D., and Central Pennsylvania
Obstetrics-Gynecology, Inc.
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CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the
foregoing, PRAECIPE FOR LISTING CASE FOR ARGUMENT was served upon
counsel of record this 12TH day of December, 2001 by depositing
said copy in the United States Mail at Harrisburg, Pennsylvania,
postage prepaid, first class delivery, and addressed as follows:
Patti Collins Lerda, Esquire
Martin & Lerda
2006 Noble Street
Pittsburgh, PA 15218
(412) 271-6800
FOULKROD ELLIS
PROFESSIONAL CORPORATION
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PROFESSIONAL CORPORATION
1800 Linglestown Road - Suite 305
Harrisburg, Pennsylvania 17110
Telephone: [717] 213 -4200
Fax: [7171 213 -4202
PATRICIA BETTGER,
Plaintiff
Attorney for Defendants:
Sambhu N. Kundu, M.D., and
Central pennsvlvania OB-GYN, Inc.
IN THE COURT OF COMMON PLEAS
OF CUMBERLAND COUNTY,
PENNSYLVANIA
v.
NO. 01-6391
SAMBHU N. KUNDU, M.D.,
AND CENTRAL PENNSYLVANIA
OBSTETRICS-GYNECOLOGY,
INC. ,
CIVIL ACTION - LAW
Defendants
JURY TRIAL DEMANDED
PRAECIPE TO ENTER APPEARANCE
TO: PROTHONOTARY OF CUMBERLAND COUNTY, PENNSYLVANIA
Kindly enter our appearance as counsel on behalf of
Defendants, Sambhu Kundu, M.D., and Central Pennsylvania
Obstetrics-Gynecology, Inc., in the above captioned matter.
Respectfully submitted,
FOULKROD ELLIS
PROFESSIONAL CORPORATION
Date:
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By:
Leigh A.J.
Attorney I.
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I HEREBY CERTIFY that a true and correct copy of the
foregoing PRAECIPE TO ENTER APPEARANCE was served upon counsel of
record this 27TH day of November, 2001 by depositing said copy
in the United States Mail at Harrisburg, Pennsylvania, postage
prepaid, first class delivery, and addressed as follows:
Patti Collins Lerda, Esquire
Martin & Lerda
2006 Noble Street
Pittsburgh, PA 15218
(412) 271-6800
FOULKROD ELLIS
PROFESSIONAL CORPORATION
By:
Beth
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CASE NO: 2001-06391 P
SHERIFF'S RETURN - REGULAR
COMMONWEALTH OF PENNSYLVANIA:
COUNTY OF CUMBERLAND
BETTGER PATRICIA
VS
KUNDU SAMBHU N ME ET AL
JASON VIORAL
, Sheriff or Deputy Sheriff of
Cumberland County,Pennsylvania, who being duly sworn according to law,
says, the within COMPLAINT & NOTICE
was served upon
KUNDU SAMBHU N the
DEFENDANT , at 1335:00 HOURS, on the 14th day of November, 2001
at 890 POPLAR CHURCH ROAD
CAMP HILL, PA 17011
by handing to
BONNIE KUNDU, WIFE
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
Aft idavi t
Surcharge
So Answers:
18.00
9.75
.00
10.00
.00
37.75
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R, Thomas Kline
11/15/2001
MARTIN & LERDA
me this ;u..~
day of
Sworn and Subscribed to before By:
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CASE NO: 2001-06391 P
COMMONWEALTH OF PENNSYLVANIA:
COUNTY OF CUMBERLAND
BETTGER PATRICIA
VS
KUNDU SAMBHU N ME ET AL
JASON VIORAL
, Sheriff or Deputy Sheriff of
Cumberland County, Pennsylvania, who being duly sworn according to law,
says, the within COMPLAINT & NOTICE
was served upon
OBSTETRICS AND GYNECOLOGY INC
the
DEFENDANT
, at 1335:00 HOURS, on the 14th day of November, 2001
at 890 POPLAR CHURCH ROAD
CAMP HILL, PA 17011
by handing to
BONNIE KUNDU, RN
a true and attested copy of COMPLAINT & NOTICE
together with
and at the same time directing Her attention to the contents thereof.
Sheriff's Costs:
Docketing
Service
Affidavit
Surcharge
So Answers:
6.00
.00
.00
10.00
.00
16.00
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R. Thomas Kline
11/15/2001
MARTIN & LERDA
me this .It. "!>'
day of
Sworn and Subscribed to before
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Patricia Bettger
v
Sambhu N. Kundu, M.D., and Central Pennsylvania
Obstetrics-Gynecology, Inc,
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: IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
: NO. 01-6391 CIVIL TERM
ORDER OF COURT
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AND NOW, January 2,2002, by agreement of counsel, the above-captioned
matter is continued from the January 2, 2002 Argument Court list. Counsel is directed to relist the
By the Court,
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case when ready,
~ Collins Lerda, Esquire
For the Plaintiff
~on S. Jayman, Esquire
For the Defendant
Court Administrator
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FOULKROD ELLIS
PROFESSIONAL CORPORATION
1800 Linglestown Road - Suite 305
Harrisburg, Pennsylvania 17110
Telephone: [717] 213-4200
Fax: 17171 213-4202
PATRICIA BETTGER,
Plaintiff
Attorney for Defendants:
SambhuN. Kundu, M.D., and
Central pennsvlvania OB-GYN, Inc.
IN THE COURT OF COMMON PLEAS
OF CUMBERLAND COUNTY,
PENNSYLVANIA
v.
NO. 01-6391
SAMBOO N. KUNDU, M. D. ,
AND CENTRAL PENNSYLVANIA
OBSTETRICS-GYNECOLOGY,
INC. ,
CIVIL ACTION - LAW
Defendants
JURY TRIAL DEMANDED
PRAECIPE TO FILE STIPULATION
TO: PROTHONOTARY OF CUMBERLAND COUNTY, PENNYSLVANIA
Kindly file of record the attached stipulation.
Da'ed'~
Aa n, Esquire
Att I.D. No. 85651
Attorney for Sambhu
Kundu, M.D., and Central
Pennsylvania Obstetrics-
Gynecology, Inc
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PATRICIA BETTGER,
Plaintiff
IN THE COURT OF COMMON PLEAS
OF CUMBERLAND COUNTY,
PENNSYLVANIA
v.
NO. 01-6391
SAMBHU N. KUNDU, M.D.,
AND CENTRAL PENNSYLVANIA
OBSTETRICS-GYNECOLOGY,
INC. ,
CIVIL ACTION - LAW
Defendants
JURY TRIAL DEMANDED
STIPULATION
AND NOW, comes Plaintiff, Patricia Bettger, by and
through her counsel, Patti Collins Lerda, Esquire, and
Defendants, Sambhu N. Kundu, M.D. and Central Pennsylvania
Obstetrics-Gynecology, Inc., by and through their counsel,
Aaron S. Jayman, Esquire, and hereby stipulate and agree as
follows:
1. Counsel hereby represent and warrant that they are
authorized to enter into this Stipulation on behalf of their
respective clients.
2. Plaintiff will not assert a cause of action
against Central Pennsylvania Obstetrics-Gynecology, Inc., on
a theory of corporate negligence.
3. Sub-paragraph 31(j) is stricken, with prejudice,
from paragraph 31 of Plaintiff's Complaint.
4. Sub-paragraph 31(k) of paragraph 31 of Plaintiff's
Complaint is amended to read:
Providing medical care and treatment below the accepted
standard of care for treatment for the reasons set
forth in this Complaint.
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5. Defendants are granted a reasonable extension of
time in which to file their Answer and New Matter.
MARTIN & LERDA
Date: Itt(b2-
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l{tIiLr~WL
Patti Collins Lerda, Esquire
Counsel for Plaintiff
FOULKROD ELLIS
PROFESS 0 L CORPORATION
Da"'~
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or Defendants
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CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the
foregoing, PRAECIPE TO FILE STIPULATION was served upon counsel
of record this 18TH day of JANUARY, 2002 by depositing said copy
in the United States Mail at Harrisburg, Pennsylvania, postage
prepaid, first class delivery, and addressed as follows:
Patti Collins Lerda, Esquire
Martin & Lerda
2006 Noble Street
Pittsburgh, PA 15218
FOULKROD ELLIS
PROFESSIONAL CORPORATION
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FOULKROD ELLIS
PROFESSIONAL CORPORATION
1800 Linglestown Road - Suite 305
Harrisburg, Pennsylvania 17110
Telephone: [717] 213 -4200
Fax: f7171 213-4202
PATRICIA BETTGER,
Plaintiff
Attorney for Defendants:
Sambhu N. Kundu, M.D., and
Central pennsvlvania OB-GYN, Inc.
IN THE COURT OF COMMON PLEAS
OF CUMBERLAND COUNTY,
PENNSYLVANIA
v.
NO. 01-6391
SAMBHU N. KUNDU, M.D.,
AND CENTRAL PENNSYLVANIA
OBSTETRICS-GYNECOLOGY,
INC. ,
CIVIL ACTION - LAW
Defendants
JURY TRIAL DEMANDED
NOTICE TO PLEAD
TO: patricia Bettger
c/o Patti Collins Lerda, Esquire
Martin &: Lerda
2006 Noble Street
Pittsburgh, PA 15218
YOU ARE HEREBY NOTIFIED to plead to the attached NEW MATTER
OF SAMBHU N. KUNDU, M.D. AND CENTRAL PENNSYLVANIA OBSTETRICS-
GYNECOLOGY, INC. within twenty (20) days from service hereof, or
a default judgment may be entered against you.
FOULKROD ELLIS
PROFESS ON L CORPORATION
Date: #
By:
J.. Ellis, Esquire
y I.D. No. 53229
Aaron S. Jayman, Esquire
Attorney I.D. No. 85651
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FOULKROD ELLIS
PROFESSIONAL CORPORATION
1800 Linglestown Road - Suite 305
Harrisburg, Pennsylvania 17110
Telephone: [717] 213-4200
Fax: f7171213-4202
PATRICIA BETTGER,
Plaintiff
Attorney for Defendants:
Sarobhu N. Kundu, M. D ., and
Central pennsvlvania OB-GYN, Inc.
IN THE COURT OF COMMON PLEAS
OF CUMBERLAND COUNTY,
PENNSYLVANIA
v.
NO. 01-6391
SAMBHU N. KUNDU, M.D.,
AND CENTRAL PENNSYLVANIA
OBSTETRICS-GYNECOLOGY,
INC. ,
CIVIL ACTION - LAW
Defendants
JURY TRIAL DEMANDED
ANSWER AND NEW MATTER OF DEFENDANTS, SAMBHU N. KUNDU, M.D.
AND CENTRAL PENNSYLVANIA OBSTETRICS-GYNECOLOGY, INC.
TO PLAINTIFF'S COMPLAINT
Defendants, Sarobhu N. Kundu, M.D. and Central Pennsylvania
Obstetrics-Gynecology, Inc. (hereinafter referred to as
"Answering Defendants"), by and through their counsel, Foulkrod
Ellis Professional Corporation, hereby respond to Plaintiff's
Complaint and in support of the same aver as follows:
1. Denied. After reasonable investigation Answering
Defendants are without knowledge or information sufficient to
form a belief as to the truth of the averments contained in this
paragraph of Plaintiff's Complaint and the same are deemed denied
and proof demanded at the time of trial.
2. Admitted.
3. Denied as stated. It is specifically denied that
Obstetrics and Gynecology, Inc., is a Pennsylvania corporation,
duly licensed and authorized to transact business in the
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Commonwealth of Pennsylvania, having its principal place of
business located at 890 Poplar Church Road, Camp Hill,
Pennsylvania 17011. Central Pennsylvania Obstetrics-Gynecology,
Inc., is a Pennsylvania corporation duly licensed and authorized
to transact business in the Commonwealth of Pennsylvania, having
its principal place of business located at 890 Poplar Church
Road, Camp Hill, Pennsylvania 17011.
4. Admitted.
5.-6. Denied. The allegations contained in these
paragraphs 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, Central
Pennsylvania Obstetrics-Gynecology, Inc., did not render any
medical or surgical or professional services to Plaintiff. Under
the Pennsylvania Medical Practice Act of 1985, 63 P.S., ~422.10
et seq., only an individual person may be licensed as a medical
doctor to practice medicine and surgery. At no time hereto was
Central Pennsylvania Obstetrics-Gynecology, Inc., licensed as a
medical doctor and it did not in fact have the right to
supervise, direct or control the manner in which Dr. Kundu
provided professional services to Plaintiff.
7. Admitted.
8. 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, at no time relevant hereto was
Dr. Carr an agent, servant, employee or otherwise acting for or
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on behalf of any Defendant in this action or any other natural
person, partnership, corporation or other legal entity.
9. 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. Answering
Defendants aver that with respect to their professional
involvement in this matter, they at all times acted appropriately
and in a fashion commensurate with the standard of medical care
applicable under similar circumstances and that they were in no
way negligent. By way of further response, Answering Defendants
in no way negligently or otherwise caused or contributed to cause
any injury or damage to Plaintiff.
10. Denied. Plaintiff has failed to identify the "agents,
servants and employees" to whom she refers and therefore
Answering Defendants cannot specifically respond. By way of
further answer, the remaining corresponding allegations are
denied as conclusions of law to which no responsive pleading is
required.
11.-23. Denied. Denied pursuant to the provisions of
Pa.R.C.l? 1029{e).
24.-29. Denied. Denied as a conclusion of law to which no
responsive pleading is required and also denied generally
pursuant to Pa.R.C.P. 1029{e). By way of further answer,
Answering Defendants were not negligent. To the contrary, at all
relevant times Answering Defendants met or exceeded the standard
of care and at no time caused or contributed to the injuries as
alleged.
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COUNT I
PATRICIA BETTGER VS. SAMBHU N. KONDU. M.D.
30. Answering Defendants incorporate by reference answers
contained in paragraphs 1 through 29 above as though fully set
forth at length.
31(a-k). Denied. Denied as a conclusion of law to which no
responsive pleading is required and also denied generally
pursuant to Pa.R.C.P. 1029(e). By way of further answer, Dr.
Kundu was not negligent. To the contrary, at all relevant times
Dr. Kundu met or exceeded the standard of care and at no time
caused or contributed to the injuries as alleged. The
stipulation filed on January 23, 2002 is hereby incorporated by
reference striking sub-paragraph 31(j), with prejudice, and
amending sub-paragraph 31(k) to read as follows:
Providing medical care and treatment below the accepted
standard of care for treatment for the reasons set
forth in this Complaint.
(The stipulation of January 23, 2002 attached hereto as "Exhibit
A.")
WHEREFORE, Defendants, Sambhu N. Kundu, M.D. and Central
Pennsylvania Obstetrics-Gynecology, Inc., hereby demand judgment
in their favor and against Plaintiff.
COUNT II
PATRICIA BETTGER VS. OBSTETRICS AND GYNECOLOGY. INC.
32. Answering Defendants incorporate by reference answers
contained in paragraphs 1 through 31 above as though fully set
forth at length.
33(a-f). Denied. Denied as a conclusion of law to which no
responsive pleading is required and also denied generally
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pursuant to Pa.R.C.P. 1029(e). By way of further answer, Central
Pennsylvania Obstetrics-Gynecology, Inc., did not render any
medical or surgical or professional services to Plaintiff. Under
the Pennsylvania Medical Practice Act of 1985, 63 P.S., ~422.10
et seq., only an individual person may be licensed as a medical
doctor to practice medicine and surgery. At no time hereto was
Central Pennsylvania Obstetrics-Gynecology, Inc., licensed as a
medical doctor and it did not in fact have the right to
supervise, direct or control the manner in which professional
services were provided to Plaintiff. By way of further answer,
at all times relevant hereto Answering Defendants met or exceeded
the standard of care and at no time caused or contributed to the
injuries as alleged. The stipulation filed on January 23, 2002
is hereby incorporated by reference establishing that Plaintiff
will not assert a cause of action against Central-Pennsylvania
Obstetrics-Gynecology, Inc., on a theory of corporate negligence.
(The stipulation of January 23, 2002 attached hereto as "Exhibit
A.")
WHEREFORE, Defendants, Sambhu N. Kundu, M.D. and Central
Pennsylvania Obstetrics-Gynecology, Inc. hereby demand judgment
in their favor and against the Plaintiff.
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NEW MATTER
34. The foregoing answers to Plaintiff's Complaint are
incorporated herein by reference as though fully set forth at
length.
35. 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 Dr. Kundu.
36. Central Pennsylvania Obstetrics-Gynecology, Inc., did
not render any medical or surgical or professional services to
Plaintiff. Central Pennsylvania Obstetrics-Gynecology, Inc., is
not and cannot be vicariously liable for the conduct of Dr.
Kundu. Under the Pennsylvania Medical Practice Act of 1985, 63
P.8., ~422.10 et seq., only an individual person may be licensed
as a medical doctor to practice medicine and surgery. At no time
hereto was Central Pennsylvania Obstetrics-Gynecology, Inc.,
licensed as a medical doctor and it did not in fact have the
right to supervise, direct or control the manner in which Dr.
Kundu provided professional services to Plaintiff.
37. In the event that it is ultimately determined that
Central Pennsylvania Obstetrics-Gynecology, Inc. is liable to
plaintiff, which liability is specifically denied, under the
Pennsylvania Professional Corporation Law, 15 Pa.C.S.A. ~2925(c),
the professional corporation may be held liable only to the
extent of the value of its property.
38. At all times relevant hereto Dr. Kundu acted within and
followed the precepts of a school of though followed by a
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considerable number of qualified and well respected specialists
in the field and, accordingly, his professional conduct was fully
commensurate with the applicable standard of care. Evidence at
trial may establish two or more schools of thought applicable to
the issues presented in this case.
39. Plaintiff assumed the risk of her injuries and this
action is therefore barred by the Doctrine of Assumption of Risk.
40. Answering Defendants believe and therefore aver that
the evidence accumulated through discovery and provided at trial
may establish that Plaintiff was contributorily or comparatively
negligent, and in order to protect the record Answering
Defendants hereby plead contributory and comparative negligence
as an affirmative defense.
41. In the event that it is determined that Answering
Defendants were negligent with regard to any of the allegations
contained in, and with respect to Plaintiff's Complaint, said
allegations being specifically denied, said negligence was
superseded by the intervening negligent acts of other persons,
parties and/or organizations other than Answering Defendants and
over whom Answering Defendants had no control, right or
responsibility and, therefore Answering Defendants are not
liable.
42. To the extent that the evidence may show other persons,
partnerships, corporations or other legal entities caused or
contributed to the injuries or exacerbation of the pre-existing
condition of Plaintiff, then the conduct of the Answering
7
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Defendants was not the legal cause of such conditions or
injuries.
43. Injuries and damages, if any, which were sustained by
Plaintiff as averred in Plaintiff's Complaint, were caused in
whole or in part by persons or entities over whom Answering
Defendants had no duty to supervise or control and therefore,
Answering Defendants are not liable, and Plaintiff may not
recover against them.
44. Plaintiff's injuries and losses, if any, were not
caused by the conduct or negligence of Answering Defendants, but
rather were caused by pre-existing medical conditions and causes
beyond the control of Answering Defendants and therefore,
Answering Defendants are not liable, and Plaintiff may not
recover against them.
45. At all times relevant hereto, Dr. Kundu was a competent
and qualified physician acting in compliance with the applicable
standard of care.
46. Any acts or omissions of Dr. Kundu alleged to
constitute negligence were not substantial factors contributing
to the injuries and damages alleged in Plaintiff's Complaint.
47. To the extent applicable, or to the extent it may later
become applicable, Answering Defendants assert the statute of
limitations to personal injury actions to preserve this
affirmative defense for the record.
48. Answering Defendants assert all defenses and immunities
afforded under the Health Care Services Malpractice Act, as
amended.
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WHEREFORE, Defendants, Sambhu N. Kundu, M.D. and Central
Pennsylvania Obstetrics-Gynecology, Inc. hereby demand judgment
in their favor and against Plaintiff.
Respectfully submitted,
Date: #
By:
ELLIS
CORPORATION
J Ellis, Esquire
I.D. No. 53229
Aaro . Jayman, Esquire
Attorney I.D. No. 85651
Attorneys for Defendants,
Sambhu N. Kundu, M.D. and
Central Pennsylvania
Obstetrics-Gynecology, Inc.
1800 Linglestown Road - Suite 305
Harrisburg, PA 17110
(717) 213-4200
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FE8-2002 10:54 FROM:08 GYN INC 717-161-3950 TO:l 7172134202
PAGE: 02
VERI17ICATION
I, SAMBHU N. KUNDU, M.D. individually and on behalf of
CENTRAL PENNSYLVANIA OBSTETRICS-GYNECOLOGY, INC. have read the
foregoing ANSWER AND NEW MATTER TO PLAINTIFF'S COMPLAINT which
has been drafted by my counsel on our behalf. The information
contained therein is based upon information I have provided to my
counsel but the wording and phraseology is not mine. The
information contained in the ANSWER AND NEW MATTER is true and
correct to the best of my knowledge, information and belief.
This Verification is made subject to the penalties of 18
Pa.C.S.A. S4904, relating to unsworn fabrication to authorities
which provides that, if I knowingly make false averments, I may
be subject to criminal penalties.
Date:
/ / 't' ;;:c. 6, 2..f.' 0 ~ ,
A~/v1A
Sambhu N. Kundu, M.D,
individually, and on behalf of
Central Pennsylvania
Obstetrics-Gynecology, Inc.
FEB-20-2002 12:36
717 761 3950
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3319
FOULKROD ELLIS
PROFESSIONAL CORPORATION
1800 Linglestown Road - Suite 305
Harrisburg, Pennsylvania 17110
Telephone: [717] 213-4200
Fax: [7171213-4202
PATRICIA BETTGER,
Plaintiff
Attorney for Defendants:
Sarobhu N. Kundu, M.D., and
Central Pennsvlvania OB-GYN. Inc.
IN THE COURT OF COMMON PLEAS
OF CUMBERLAND COUNTY,
PENNSYLVANIA
v.
NO. 01.-6391.
SAMBHU N. KUNDU, M.D.,
AND CENTRAL PENNSYLVANIA
OBSTETRICS-GYNECOLOGY,
INC. ,
CIVIL ACTION - LAW
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JURY TRIAL DEMANDED
PRAECIPE TO FILE STIPULATION
TO: PROTHONOTARY OF c.."'UMBERLAND COUNTY, PENNYSLVANIA
Kindly file of record the attached stipulation.
Dated'~
Aa n, Esquire
Att I.D. No. 85651
Attorney for Sambhu
Kundu, M.D., and Central
Pennsylvania Obstetrics-
Gynecology, Inc
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PATRICIA BETTGER,
Plaintiff
IN THE COURT OF COMMON PLEAS
OF CUMBERLAND COUNTY,
PENNSYLVANIA
v.
NO. 01-6391
SAMBHU N. KUNDU, M.D.,
AND CENTRAL PENNSYLVANIA
OBSTETRICS-GYNECOLOGY,
INC. ,
CIVIL ACTION - LAW
Defendants
JURY TRIAL DEMANDED
STIPULATION
AND NOW, comes Plaintiff, patricia Bettger, by and
through her counsel, Patti Collins Lerda, Esquire, and
Defendants, Sambhu N. Kundu, M.D. and Central Pennsylvania
Obstetrics-Gynecology, Inc., by and through their counsel,
Aaron S. Jayman, Esquire, and hereby stipulate and agree as
follows:
1. Counsel hereby represent and warrant that they are
authorized to enter into this Stipulation on behalf of their
respective clients.
2. Plaintiff will not assert a cause of action
against Central Pennsylvania Obstetrics-Gynecology, Inc., on
a theory of corporate negligence.
3. Sub-paragraph 31(j) is stricken, with prejudice,
from paragraph 3l of Plaintiff's Complaint.
4. Sub-paragraph 31(k) of paragraph 31 of Plaintiff's
Complaint is amended to read:
Providing medical care and treatment below the accepted
standard of care for treatment for the reasons set
forth in this Complaint.
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5. Defendants are granted a reasonable extension of
time in which to file their Answer and New Matter.
MARTIN & LERDA
Date: Itr(b1-
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Patti Collins Lerda, Esquire
Counsel for Plaintiff
FOULKROD ELLIS
PROFESS 0 CORPORATION
Dated~
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ayman, Esquire
or Defendants
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CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the
foregoing, ANSWER AND NEW MATTER OF DEFENDANTS, SAMBHU N. KUNDU,
M.D. AND CENTRAL PENNSYLVANIA OBSTETRICS-GYNECOLOGY, INC. TO
PLAINTIFF'S COMPLAINT was served upon counsel of record this
25th day of February, 2002 by depositing said copy in the United
States Mail at Harrisburg, Pennsylvania, postage prepaid, first
class delivery, and addressed as follows:
Patti Collins Lerda, Esquire
Martin & Lerda
2006 Noble Street
Pittsburgh, PA 15218
FOULKROD ELLIS
PROFESSIONAL CORPORATION
6tto f.
By:
Beth E. Forbes,
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IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYL VANIA
PATRICIA BETTGER,
CIVIL DMSION
Plaintiff,
Code:
v.
No. 01-6391 Civil
SAMBHU N. KUNDU, M.D. and
OBSTETRICS AND GYNECOLOGY,
INC.,
PLAINTIFF'S REPLY TO
DEFENDANTS' NEW MATTER
Defendants.
Filed On Behalf Of:
Patricia Bettger, Plaintiff
Counsel of Record for This Party:
Patti Collins Lerda, Esq.
Pa. ill No. 56492
MARTIN & LERDA
2006 Noble Street
Pittsburgh, PA 15218
412/271-6800
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IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL DIVISION
PATRICIA BETTGER,
Defendants.
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)
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No. 01-6391 Civil
Plaintiff,
v.
SAMBHU N. KUNDU, M.D. and
OBSTETRICS AND GYNECOLOGY,
INC.,
PLAINTIFF'S REPLY TO DEFENDANTS' NEW MATTER
34. The allegations contained in Paragraph 34 of Defendants' New Matter state
conclusions of law to which no response is deemed necessary.
35. The allegations contained in Paragraph 35 of Defendants' New Matter state
conclusions oflaw to which no response is deemed necessary.
36. The allegations contained in Paragraph 36 of Defendants' New Matter state
conclusions oflaw to which no response is deemed necessary.
37. The allegations contained in Paragraph 37 of Defendants' New Matter state
conclusions oflaw to which no response is deemed necessary.
38. Denied. It is specifically denied that Defendant Kundu acted in accordance with the
applicable standard of care in providing medical treatment to the Plaintiff.
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39. The allegations contained in Paragraph 39 of Defendants' New Matter state
conclusions of law to which no response is deemed necessary. To the extent that a response is
deemed necessary, it is strictly denied that Plaintiff assumed any risk of her injuries during her
medical treatment by Defendants.
40. The allegations contained in Paragraph 40 of Defendants' New Matter state
conclusions of law to which no response is deemed necessary. To the extent that a response is
deemed necessary, all of Plaintiffs injuries and damages were solely caused by Defendants'
negligence as stated in Plaintiff s Complaint, incorporated herein by reference.
41. The allegations contained in Paragraph 41 of Defendants' New Matter state
conclusions of law to which no response is deemed necessary. To the extent that a response is
deemed necessary, Plaintiffs injuries and damages were caused solely by Defendants' negligence
as stated in Plaintiffs Complaint.
42. The allegations contained in Paragraph 42 of Defendants' New Matter state
conclusions of law to which no response is deemed necessary.
43. The allegations contained in Paragraph 43 of Defendants' New Matter state
conclusions oflaw to which no response is deemed necessary.
44. The allegations contained in Paragraph 44 of Defendants' New Matter state
conclusions of law to which no response is deemed necessary. To the extent that a response is
deemed necessary, all of Plaintiffs injuries and damages were solely caused by the conduct and
negligence of Defendants and not by any pre-existing medical conditions or causes beyond the
control of Defendants.
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45. Denied. It is specifically denied that Defendant Kundu was a competent, qualified
physician acting in compliance with the applicable standards of care during his medical treatment
of the Plaintiff.
46. The allegations contained in Paragraph 46 of Defendants' New Matter state
conclusions oflaw to which no response is deemed necessary.
47. The allegations contained in Paragraph 47 of Defendants' New Matter state
conclusions oflaw to which no response is deemed necessary.
48. The allegations contained in Paragraph 48 of Defendants' New Matter state
conclusions oflaw to which no response is deemed necessary.
Respectfully submitted,
1Att4, C,.;./...1 t^./..
Patti Collins Lerda
Attorney for Plaintiff
Dated: ,<.!IJ/b L
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CERTIFICATE OF SERVICE
I hereby certifY that I served the foregoing Plaintiff's Reply to Defendants' New Matter by
United States first-class mail, postage prepaid, on the /:;P>day of March, 2002, upon the following:
Aaron S. layman, Esq.
FOULKROD ELLIS, p.e.
1800 Linglestown Road, Suite 305
Harrisburg, P A 17110
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IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA
P A TRICJA BETTGER,
CNIL DIVISION
Plaintiff,
Code:
v.
No. 01-6391 Civil
SAMBHU N. KUNDU, M.D. and
OBSTETRICS AND GYNECOLOGY,
INC.,
STIPULATION TO CORRECT
NAME OF DEFENDANT
Defendants.
Filed On Behalf Of:
Patricia Bettger, Plaintiff
Counsel of Record for This Party:
Patti Collins Lerda, Esq.
Pa. ill No. 56492
MARTIN & LERDA
2006 Noble Street
Pittsburgh, PA 15218
412/271-6800
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IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL DNISION
PATRICIA BETTGER,
Plaintiff,
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)
)
)
)
)
)
)
)
No. 01-6391 Civil
v.
SAMBHU N. KUNDU, M.D. and
OBSTETRICS AND GYNECOLOGY,
INC.,
Defendants.
STIPULATION TO CORRECT NAME OF DEFENDANT
AND NOW COME the parties, by and through their undersigned counsel, and file the
following Stipulation to Correct Name of Defendant as follows:
1. Counsel for Plaintiffs and Counsel for Defendants agree that Defendant Central
Pennsylvania Obstetrics-Gynecology, Inc. should be the proper Defendant listed in the above-
captioned case, now improperly designated as Obstetrics and Gynecology, Inc.
2. The caption oftms ca~e is hereby amended to name Central Pennsylvania Obstetrics-
Gynecology, Inc. as a Defendant.
3. All parties agree that all references in Plaintiffs' Complaint, Defendants' Answer and
all other pleadings shall be seen to refer to Central Pennsylvania Obstetrics-Gynecology, Inc. who
shall be hereafter listed as the proper Defendant.
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. J yman
Atto ey for Defendants
Dated: 1/ f'l
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Respectfully submitted,
;Hb.;:~ bAiL.
.Patti Collins Lerda
Attorney for Plaintiff
Dated: .J!irhL..
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CERTIFICATE
P1lE1lEQUISlTE TO SERVICE OP A SUBPOENA
PURSUANT TO RULE 4009.22
IN THE MATTER OF,
COURT OF COMMON PLEAS
PATRICIA BETTGER
TERM,
-VS-
CASE NO: 01-6391
KUNDU, ET AL
As a prerequisite to service of a subpoena for documents and things pursuant
to Rule 4009.22
MCS on behalf of AARON S. JAYMAN, ESQ.
certifies that
(1) A notice of intent to serve the subpoena with a copy of the subpoena
attached thereto was mailed or delivered to each party at least
twenty days prior to the date on which the subpoena is sought to be
served,
(2) A copy of the notice of intent, including the proposed subpoena, is
attached to this certificate,
(3) No objection to the subpoena has been received, and
(4) The subpoena which will be served is identical to the subpoena which
is attached to the notice of intent to serve the subpoena.
DATE, 08/07/2002
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AARON S. JAYMAN, ESQ. '1j
Attorney for DEFENDANT
DEll-356462 O:l. 0 0 3 - L O:l.
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COMMONWEALTH OF PENNSYLVANIA
COUNTY OF CUMBERLAND
IN THE MATTER OF: COURT OF COMMON PLEAS
PATRICIA BETTGER TERM,
-VS- CASE NO: 01-6391
KUNDU, ET AL
NOTICE OF INTENT TO SERVE A SUBPOENA TO PRODUCE DOCUMENTS AND
THINGS FOR DISCOVERY PURSUAN'l' TO RULE 4009.21
DR. JONATHAN TOCKS
DR. PEROUTKA
MEDICAL RECORDS
MEDICAL RECORDS
TO, PATTI COLLINS LERDA, ESQ.
MCS on behalf of AAllDR S. JAYMAR, ESQ. intends to serve a subpoena
identical to the one that is attached to this notice. You have twenty (20)
days from the date listed below in which to file of record and serve upon the
undersigned an objection to the subpoena. If the twenty day notice period is
waived or if no objection is made, then the subpoena may be served. Complete
copies of any reproduced records may be ordered at your expense by completing
the attached counsel card and returning same to MCS or by contacting our local
MCS office.
DATE: 07/18/2002
MCS on behalf of
AARON S. JAYMAR. ESQ.
Attorney for DElENDAR'r
CC: AARON S. JAYMAR, ESQ.
KEITH RICHARD
- 3379
Any questions regarding this matter, contact
THE MCS GROUP INC.
1601 MARIIE'1' STREET
#800
PHILADELPHIA, PA 19103
(215) 246-0900
DE02-194108 O:L003-C02
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COMMONWEALTH OF PENNSYLVANIA
COUNTY OF CUMBERLAND
PATRICIA BETTGER
-VS-
File No.
01-6391
KUNDU, ET AL
SUBPOENA TO PRODUCE DOCUMENTS OR THINGS
FOR DISCOVERY PURSUANT TO RULE 4009.22
TO: CUSTODIAN OF RECORDS FOR:
DR. 'JONATHAN B. TOCKS, H.D.
(Nam. of P....n or Entityl
Within twenty (20) days after service of this subpoena, you are ordered by the court to produce the following documents or
things: SEE ATTACHED
at THE MCS GROUP INC., 1601 MARKET STREET, SUITE 800, PHILADELPHIA
(Ad_"
PA 19103
You may deliver or mail legible copies of the documents or produce things requested by this subpoena, together with the
certificate of compliance. to the party making this request at the address listed above. You have the right to seek, in
advance. the reasonable cost of preparing the copies or producing the things sought.
If you fail to produce the do<uments or things required by this subpoena, within twenty (20) days after its service, the party
s<rving lhi; sub~oen. may seek a court order compelling you to comply with it.
THIS SUBPOENA WAS ISSUED AT THE REQUEST OF THE FOLLOWING PERSON:
NAME: AARON S. JAYMAN, ESQ.
ADDRESS: 1800 LINGLESTOWN RD., SUITE 305
HARRISBURG PA 17110
TELEPHONE: (215) 246-0900
SUPREME COURT 10 .:
ATTORNEY FOR.: THE DEFENDANT
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Depuly
DATE:-JIJ,
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Seal of the Court
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EXPIANATION OF REQUIRED RECORDS
TO: CUSTODIAN OF RECORDS FOR:
DR. JONATHAN TOCKS
4470 V ALLEY ROAD
ENOLA, P A 17025
RE: 1003
PATRICIA BETIGER
Any and all records, correspondence, files and memorandums, handwritten
notes, billing and payment records, relating to any examination,
consultation, care or treatment.
Dates Requested: up to Ud in.cllllding the present.
Subject: PATRICIA BETI'GER
3825 CARRIAGE HOUSE DRIVE, CAMP HILL, PA 17011
Social Security #: 018-36-5633
Date of Birth: 06.22.1947
SUIO-386578 O:L 0 0 3 - L O:L
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CEIlTIPICATE
PllEUQUISITE '10 SERVICE OF A SUBPOENA
PURSUAH'l TO RULE 4009.22
IN THE MATTER OF:
COURT OF COMMON PLEAS
PATRICIA BETTGER
TERM,
-VS-
CASE NO: 01-6391
KUNDU, ET AL
As a prerequisite to service of a subpoena for documents and things pursuant
to Rule 4009.22
MCS on behalf of AARON S. JAYMAN, ESQ.
certifies that
(1) A notice of intent to serve the subpoena with a copy of the subpoena
attached thereto was mailed or delivered to each party at least
twenty days prior to the date on which the subpoena is sought to be
served,
(2) A copy of the notice of intent, including the proposed subpoena, is
attached to this certificate,
(3) No objection to the subpoena has been received, and
(4) The subpoena which will be served is identical to the subpoena which
is attached to the notice of intent to serve the subpoena.
MCS on behalf of
DATE: 08/07/2002
AARON s. JAYMAN. ESQ.
Attorney for DEFENDANT
DEll-356463 01.003 - L 0:2
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COMMONWEALTH OF PENNSYLVANIA
COUNTY OF CUMBERLAND
IN THE MATTER OF:
COURT OF COMMON PLEAS
PATRICIA BETTGER
TERM,
-VS-
CASE NO: 01-6391
KUNDU. ET AL
NOTICE OF INTJnl'l' TO SERVE A SUBPOBRA TO PRODUCE llOCUIIBlI'.rS AIm
THINGS FOR DISCOVERY PURSUAN'.r TORDLB 4009.21
DR. JOBA1'IWf TOCltS
DR. PEROUTXA
MEDICAL RECORDS
MEDICAL RECORDS
TO: PATTI COLLUS LERDA. ESQ.
IES on behalf of "".011 S. JAntAIl. ESQ. intends to serve a subpoena
identical to the one that is attached to this notice. You have twenty (20)
days frID the date listed lbelOll in which to file of record and serve upon the
undersiped an objection to the subpoena. If the twenty day notice period is
waived or if no objection is 1IIIlde. theu. the subpoena may be served. COIIIplete
copies of any reproduced records may be ordered at your expense by cOlllpleting
the attached counsel card and returning s_ to tICS or by contacting our local
MeS office.
DATE: 07/18/2002
tICS on behalf of
AAIlOII S. JAntAIl. ESO.
Attorney for D~
CC. AAIlOR S. JAntAIl. Esq.
DI'l1l RICIWU)
- 3379
Any questions regarding this matter. contact
TBI tICS Ga01JP llIC.
1601 .MaDB'f STREft
#800
~. PA 19103
(215) 24&-0900
DE02-194108 O:L00:3-C02
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COMMONWEALTH OF PENNSYL VANIA
COUNTY OF CUMBERLAND
PATRICIA BETTGER
-VS-
FileNo.
01-6301
I.<uNDU, ET AI.
SUBPOENA TO PRODUCE DOCUMENTS OR THINGS
FOR DISCOVERY PURSUANT TO RULE 4009.22
TO: CUSTODIAN OF RECORDS FOR:
DR. PEROUTKA
(Name of Penon 01' Entity)
Within twenty (20) days after service of this subpoena, you are ordered by the court to produce the following documents or
things: SEE ATTACHED
at THE MCS GROUP INC., 1601 MARKET STREET, SUITE 800, PHILADELPHIA
(Address)
PA 19103
You may deliver or mail legible copies of the documents or produce things requested by this subpoena, together with the
certificate of compliance, to the party making this request at the address listed above. You have the right to seek, in
advance,the reasonable cost of preparing the copies or producing the things sought.
If you fail to produce the documents or things required by this subpoena. within twenty (20) days after its service, the party
serving this subpoena may seek a court order compelling you to comply with it.
THIS SUBPOENA WAS ISSUED AT THE REQUEST OF THE FOLLOWING PERSON:
NAME: AARON S. JAYMAN, ESQ.
ADDRESS: 1800 LINGLESTOWN RD., SUITE 305
HARRISBURG PA 17110
TELEPHONE: (215) 246-0900
SUPREME COURT 10 #:
ATIOIRNEY FOR: THE DEFENDANT
BY
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ProthonotuyfClerk. Civil . n
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Seal of the Court
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EXPlANATION OF REQUIRED RECORDS
TO: CUSTODIAN OF RECORDS FOR:
DR. PEROUTKA
3912 TRINGLE ROAD
CAMP HILL, PA 17011
HE: 1003
PATRICIA BEITGER
Any and all records, correspondence, IDes and memorandums, handwritten
notes,bi1Iing and payment records, relating to any examination,
consultation, care or treatment.
Dates Requested: up to and indudiJJg the present.
Subjed : PATRICIA, BKO'GER
3825 CARRIAGE HOUSE DRIVE, CAMP HILL, PA 17011
Social Security /I: 018-36-5633
Date of Birth: 06-22-1947
SUIO-386496 01.003 -L02
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IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA
PATRICIA BETTGER,
CIVIL DIVISION
Plaintiff,
Code:
v.
No. 01-6391 Civil
SAMBHU N. KUNDU, M.D. and
OBSTETRICS AND GYNECOLOGY,
INC.,
PRAECIPE TO DISCONTINUE
Defendants.
Filed On Behalf Of:
Patricia Bettger, Plaintiff
Counsel of Record for This Party:
Patti Collins Lerda, Esq.
Pa. ID No. 56492
MARTIN & LERDA
2006 Noble Street
Pittsburgh, PA 15218
412/271-6800
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IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL DIVISION
PATRICIA BETTGER,
Plaintiff,
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No. 01-6391 Civil
v.
SAMBHU N. KUNDU, M.D. and
OBSTETRICS AND GYNECOLOGY,
INC.,
Defendants.
PRAECIPE TO DISCONTINUE
TO THE PROTHONOTARY:
Kindly mark the above-captioned case DISCONTINUED, with prejudice.
Respectfully submitted,
~~.~AfAf.
Patti Collins Lerda -
Attorney for Plaintiff
Dated:
S/IV'/()lj
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CERTIFICATE OF SERVICE
I hereby certifY that I served the foregoing Praecipe to Discontinue by United States ftrst-
class mail, postage prepaid, on the ~day of May, 2004, upon the following:
Aaron S. Jayman, Esq.
FOULKROD ELLIS, P.C.
1800 Linglestown Road, Suite 305
Harrisburg, PA 17110
J}1Y/;r;^ tA/.'--0/
Patti Collins Lerda
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