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HomeMy WebLinkAbout99-06832 t G`? 01 #12 DIMITRA SCHILD, Plaintiff v. SAMBHU N. KUNDU, MD, and CENTRAL PENNSYLVANIA OBSTETRICS-GYNECOLOGY, INC., Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW 99-6832 CIVIL TERM PRETRIAL CONFERENCE A pretrial conference was held in the chambers of Judge Oler on Wednesday, April 14, 2004. Present on behalf of the Plaintiff was April L. Strang-Kutay, Esquire. Present on behalf of Defendants was Aaron S. Jayman, Esquire, standing in for Leigh A. J. Ellis, Esquire, who will be trying the case. This is a medical malpractice action, which does not involve any issue of informed consent, arising out of treatment of a non-viable pregnancy, with surgical complications. The defense is an absence of negligence. This will be a jury trial in which each side by agreement of counsel will have four peremptory challenges for a total of eight. The estimated duration of trial is five days. Neither counsel wishes to consent to a bifurcation of the trial, and a bifurcation will not be ordered by the undersigned judge. However, counsel are alerted to the possibility that the trial judge may feel differently about this issue. With respect to any deposition testimony which wiil be shown or read to the jury, and which contains objections requiring rulings by the trial judge, counsel are directed to furnish a copy of the affected transcript to the trial judge at least five days prior to the commencement of trial in this case with the areas of objection being pursued highlighted and with brief memoranda in support of their respective positions on the objections. Counsel have stipulated to the accuracy of a figure of $55,000 in compensable medical expenses pursuant to the holding in Moorehead v. Crozer Chester Medical Center, 765 A.2d 786 (Pa. 2001). Counsel have also stipulated to the authenticity of all medical records in this case and to the fact that medical expenses incurred by the Plaintiff were reasonable and necessary. Defendants' counsel has not, however, stipulated to the recoverability of such expenses in terms of the existence of negligence or causation. With respect to settlement negotiations, counsel have indicated that following April 20, 2004, they expect negotiations to take place and that there is a reasonable possibility of settlement in the matter. By the Court, J. GO sley Jr. J. April L. Strang-Kutay, Esquire 320 Market Street Strawberry Square Harrisburg, PA 17108-1268 For the Plaintiff Aaron S. Jayman, Esquire Leigh A.J. Ellis, Esquire 1900 Linglestown Road, Ste. 306 Harrisburg, PA 17110 For the Defendant pcb i.7 ^ ' ll 1 l ?\e •v _J PRETRIAL CONFERENCE ORDER CASE NAME: S C N 1(,,b / IZ ?l lil_? Ll ? ? - 4 S? -' &V r CASE NO. I. Pretrial Conference Data A. Date - LNG B. Judge - U - C. Attorneys/Parties i.. L r` -GL U ; V Q tj Pr+ fzn ?r J, II. Nature of Case S , ?? ^I "? z? ?• A. Cause of Action •MCI16 Z' „"?'G=e'-t 111)) 2f,lJ'c? ? oA ? ?rc.2 v" ( ?.. o-f P_ rtW>?I ?. L V -- B. Basic Facts rr??J?c•??, wr S?t.)?tc.2?t-o-?•??tG?/rr?)? II i} C. Defense Z7 G. -d III. Trial A. J- B. ptories - C. Estimate of Duration - ?tl D. Availability of Counsel - IV. Issues + Ei r V, V. Status o ett Men egotiations' ??ssr?• 05? rc u?Y?? J ? f • J APR-13-2004 14:26 FOULKROD ELLIS 1 717 2134202 P.02 FOULKROD ELLIS Aq"m.d (?ipE.mtU+ AT70IAi n AND COUNSELORe AT uW , 6 HARRISBURG? PENNSYLVANIA 171O _ 6. WALTER FOULKROD, 111 TELEPHONE 17171213-42W t LEIGH A.J. ELLIS FAX (7171218-4202 1p5 ANDREW H. FOULNROD E-MAIL IaW@leu1krod.com IL AARON 6. JAYMAN MICHAEL C. MONGIELLO April 13, 2004 VIA FACSIMILE (717) 240-6530 The Honorable J. Wesley Oler, Jr. Court of Con=ton Pleas of Cumberland County Cumberland County Courthouse is 1 Courthouse Squurc Carlisle, PA 17013-3387 RE: Schild v Kundu, at al. DackeL No. 99-6832 E FEPC #3282 r Dear Judge Oler: As instructed by your secretary, my office contacted Plaintiff's counsel to obtain her concurrence for me to attend tomorrow morning's pretrial conference in Mr. E3-1 is' stead. MY office was informed by Plaintiff's counsel's secretary that Ms. Kutay would be out of the country until later today, My office was also informed by Ms. KutayIs secretary that she did not believe that Ms. Kutay would have any objection to me appearing at the conference. I will follow-up with Plaintiff's counsel tomorrow morning. However, I do not antinipat.P any impediment to me attending the pretrial conference on behalf of Dr. Kundu and Attorney Ellis. Rea a ly yours, Aaro Ja ASJ:bef CC-. April L. Strang-Kutay, Esquire VIA FACSiMMIT E (717) 234-6808 ' Cortirwd as a Civil Trial Advocate by the National Board Of Trial Advocacy A Penneyluwia Supreme Court Accndttod A90MY TOTAL P.02 APR-13-2004 14:25 FOULKROD ELLIS FOULKROD FI I IS ?fjuer.«t ?.aa« ArrO1W MAND COUNLnOP.S AT LAW 1800 UNGLESTOWN ROAD - SUITE 305 HARRISSURG. PENNSYLVANIA 17110 S. WALTER FOULKROD, 111 LEIGH A.J. FI 11.1% ANDREW N. FODUCROD AARON S. JAYMAN MIGHACL G. MUNGIELLO Fax Transmittal Sheet DATE: Apri113, 2004 TO: The Honotablc J. Wesley Oler, Jr. VIA FACSB411E (717) 240-6462 April L. Strang-Kutay, Esqire VIA FACSDAILE (717) 234-6808 FROM: Aaron S. Jayman, Esquire Number of pages including cover page::, 1 717 2134202 P.01 TELEPHONE 17171 21 a•4200 FAX (717) 2134202 E-MAIL law@foulkmd,com FEPC 03199 Any problems in receiving documents, please contact Beth at (717) 213-4200, ext 8, ** PRIVATE AND CONFIDENTIAL ** The sender intends to communicate the contents of this transmission only to the person to whom it is addressed. This transmission may contain information that is privileged, confidential or otherwise exempt from disclosure under applicable law. If the recipient of this transmission is not the designated recipient or the employee or agent responsible for delivering this transmission to the designated recipient, you arc hereby notified that any dissemination, distribution u1 cupying of this communication is strictly prohibited. If you have received this transmission in error, please notify us immediately by telephone ([717] 213-4200, collect) and promptly return the original transmission to us at the above address by mail. We will reimburse you for any costs you may incur. O rtif nd an a CM TAM AdwcKO by the National Board of Trial Act o aoy A Pannaylvania Supreme Court Accredited Agency APR-13-2004 12156 FOULKROD ELLIS 1 717 2134202 P.02 FOULKROD ELLIS ,A*""aae [-Aftw- ATTORNEYS AND COUNSELORS AT LAW 1800 LINCLECTOWN ROAD • SUITG 000 HARRISBURG. PENNSYLVANIA 17110 S. WALTER FOULKROD. 111 ' LEmn AA EWS TELEPHONE 17171 219-4200 ANDREW H. FOULKROD FAX 1717) 215-5202 AARON 5. JAYMAN E-MAIL Iaw0leWkrcd.com MICHAEL C. MONGIELLO April 13, 2004 VIA FACSIMILE (717) 240-6530 The Honorable J. Wesley Oler, Jr. Court of Common Pleas of Cumberland County Cumberland C'n11nty Courthouse 1 Courthouse Square Carlisle, PA 17013-3387 RE: Schild v. Kundu et al Docket No. 99-6832 FEPC *3292 Dear Judge Oler: The above-referenced matter i3 scheduled for a pretrial conference before your Honor tomorrow at 10:00 a.m. This letter is to advise you that Dr. Kundurs trial counsel, Leigh A.J. Ellis, Esquire, is attached for trial in the Northumberland County Court of Common Pleas from April 12 through April 14, 2004 in the matter of Rebuck v. Catalano, Civil Action No. 97-rV-1401. The purpose of this letter is respectfully request that I be permitted to attend the pretrial conference in place of Mr. Ellis, so long as he would be able to remain the trial counool for Dr. Kundu. 2, of course, am familiar with this file and will have authority to make decisions as needed. On Marrh 22, 2004, I Provided the Court Administrator w1L1E a letter indicating Mr. Ellis' conflict and sought permission to attend in Mr. EllieI placc. 'Certified as a CMI Trial Ady fita by the National Bond of Trial Advocacy A Pcnrw*mla Supreme Court Accredited Agency APR-13-2004 12:56 FOULKROD ELLIS 1 717 2134202 P.03 The Honorable J. Wesley Oler, Jr. April 13, 2004 Page 2 I am, of course, available at the Courts convenience if thcre are any quesLiculw. ly y ours, 26n0 S. Ja n ASJ:beE cc: April L. Strang-Kutay, Esquire VIA FACSIMILE (717) 234-6808 TOTAL P.03 PPR-13-2004 1255 FouLKROD ELL IS FOUL KROD ELLIS P-PW& al (-MwA'Aa ATTORNEYS AND COUNKLOM AT LAW I WO UNGLESTOWN ROAD - SURE -VW HARRISBURG. PENNSYLVANIA 17110 0. WALTER FOULXNOD. III' LEIGH A.J. ELLIS ANDREW H. FOULKAOD AARON S. JAYMAN MICHAEL C. MONCIELLO Fax Transmittal Sheet DATE: April 13, 2004 TO: T he Honorable J. Wesley Oler, Jr. VIA FACSIMILE (717) 240-6462 April L. Strang-Kutay, Esquire VIA FACSIMILE (717) 234-6808 FROM: Aaron S. Jayman. Esquire Number of pages including cover page: 3 1 717 2134202 P.01 TELERIONP (717) 2134200 FAX 1717) 219 4202 E-MAIL Inw®foulkrad.eem FEPC,43282 Any problems in receiving documents, please contact Beth at (717) 213-4200, ext 8, ** PRIVATE AND CONFIDENTIAL ** The sender intends to communicate the contents of this transmission only to the person to whom it is addressed. This transmission may contain information that is privileged, confidential or otherwise exempt from disclosure under applicable law. If the recipient of this transmission is nut the designated recipient or the employee or agent responsible for delivering this transmission to the designated recipient, you are hereby notifir-d that any dissemination, distribution or copying of this communication is strictly prolu'bited. If you have received this transmission in error, please rlutify us Immediately by telephone ([717] 213-4200, collect) and promptly return the original transmission to us at the above address by mail- We will reimburse you for any costs you may incur. CaRlfied A. n WI Td.1 Ad-*a . by No NAdcoAl Wnd of Trial Adv Cacy A PonrreyNanla Suproma Court Ac md2ad ASarN.y u a z o ? n 0. 0 xw: < N y m < 0 y W ' N N b j ? . L z d S% N C m a u m Z G i N x m d i w v o ?i 0 h n N ? a G m Q < Q ? J 0 f7 m e n' ¦;;;, April L. Strang•Kulay, Esquire I.D. No. 46725 Goldberg, Katzman & Shipman, P.C. P.O. Box 1265 Ilarrisburg, PA 17105.1265 (717) 234-4161 DIMITRA SCHILD, Plaintiff V. SAMBHU N. KUNDU, M.D., and CENTRAL PENNSYLVANIA OBSTETRICS-GYNECOLOGY, INC., Defendants Attorney for Plaintiff IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW : NO. 99-6832-CIVIL JURY TRIAL DEMANDED PLAINTIFF'S PRE-TRIAL MEMORANDUM 1. STATEMENT OF FACTS AS TO LIABILITY This case, involving Plaintiff, Dimitra Schild, is founded in medical negligence. In 1997, Plaintiff, who has been under the care of Defendant, Dr. Kundu, for routine gynecologic management became pregnant, and presented, urgently, at the emergency department of Holy Spirit Hospital, where she was attended by Dr. Kundu. At that time, Dr. Kundu was charged with the responsibility of determining whether the Plaintiff's pregnancy was intrauterine, or ectopic (a pregnancy housed within the fallopian tube). At the time of emergency evaluation, transvaginal ultrasonography revealed a small (3 nmm) sac in the uterus; hormonal blood testing was undertaken, as well. Dr. Kundu, upon his evaluation of the Plaintiff, advised that she return to his office, in two days time, for furtlier homional blood evaluation, which would be dispositive of whether or not the Plaintiff's pregnancy was viable, or required termination. As advised, the Plaintiff did return to Dr. Kundu's office, on the date designated, and further hormonal testing was conclusory that the pregnancy was non-viable. Dr. Kundu was unsure, at this time, if the pregnancy was intrauterine, or ectopic. He advised the patient that he would perform a MC (evacuation of uterine materials), and, if lie could not determine, upon gross inspection, that products of conception had been dislodged from the uterus, he would proceed to do a laparoscopy, in order to nle out an ectopic pregnancy. On the date of the second evaluation, the Defendant, Dr. Kundu, took the Plaintiff to surgery, performed a D&C, and could not see gross evidence of products of conception; therefore, he converted to a laparoscopy procedure. Therein, he noted that the pregnancy was not ectopic (not in the fallopian tubes), solidifying that such pregnancy has been intrauterine. In the process of closing the laparoscopic incision, Dr. Kundu caught his Trocar instrument on Dimitra Schild's small bowel, and brought it up through the incision. He then went through a series of events to try to force the bowel back into the abdominal cavity, without success. A general surgeon was then summoned (Dr. Joseph Esposito) who widened the incision (converting to a mini-laparotomy), and reinserted the bowel, which, at that time, showed no obvious signs of injury. The Plaintiff remained hospitalized overnight for observation. On the following day, she did not do well, and one of Dr. Esposito's partners, Dr. Kenneth Graf, returned the Plaintiff to surgery, when it was clear that she was suffering from peritonitis. Intra-operatively, Dr. Graf noted that Dimitra's small bowel had received punctures in three separate places. Plaintiff has retained Dr. Joseph Finkelstein, a board certified gynecologist, who has offered his opinion that Dr. Kundu deviated from acceptable standards of care when lie did not involve a pathologist in the dctcmtination of whether or not the Plaintiff's pregnancy was intrauterine, or ectopic in nature. Dr. Finkelstein states, among other criticisms in his expert report, that it is incumbent upon a gynecologist in Dr. Kundu's position to submit the specimen obtained from a DS.C to a pathologist, for frozen section, so that the pathologist can make a detennination whether or not chronic villi (products of conception) are visible in (his specimen. If the pathologist is able to recognize chronic villi, then the surgeon can be confident that the pregnancy is not an cctopic pregnancy (within Elie fallopian tube), and no further intervention is necessary. Dr. Kundu neglected to utilize a pathologist in this instance, and, has testified in deposition, that he has never used a pathologist under these circumstances. Moreover, Dr. Finkelstein asserts his criticism that Dr. Kundu, in performing what he terms an unnecessary operative procedure (the laparoscopy), perfornied such procedure negligently by entrapping the bowel, such that multiple perforations developed. Dr. Finkelstein's expert reports are appended as Exhibit A to this Memorandum. 11. STATE67ENT OF DAMAGES As a consequence of Plaintiffs bowel injury, Dimitra Schild was confined in the hospital for a considerable period, during which she had a slow recovery from peritonitis. Plaintiff claims that both the laparscopic procedure, as well as the involved bowel surgery, performed by Dr. Graf, would have been completely unnecessary had Dr. Kundu practiced within acceptable standards of care. Since this hospitalization in 1997, Dimitra Schild has suffered a great deal of pain, which is ongoing, and felt to be pernianent. She has required two further surgeries, by local general surgeon, Dr. Paul Crcary, who returned her to surgery due to severe abdominal pain which Dr. Creary has indicated was as a result of bowel adhesions which fonmed as a consequence of the peritonitis from which Plaintiff had suffered in 1997. It is likely that Plaintiff will require further surgeries in her lifetime, and, is presently, only 33 years ofage. The compensablc medical expenses (with the application of a Moorehead analysis), are in excess of $55,000. Plaintiff has also been severely curtailed in iicremploymcnt activities, and has sustained a diminution of employability in the future. Dr. Anthony Gamboa's expert report, containing his analysis both from a vocational, and economic, standpoint is attached as Exhibit B. Economic damages are conservatively estimated in excess of S600,000. Finally, there is an issue whether or not the severe infection, and resultant physical problems from which Dimitra Schild suffered following the bowel injury of 1997, has forever compromised her ability to bear a child naturally. She is currently wider the care of local gynecologist, Dr. Colleen Foos. III. ADNIISSIBILITYOFTESTIbIONY At this time, Plaintiffdoes not anticipate filing any Motions in Limine. IV. WITNESSES 1. Dimitra Schild (PlaintifQ 2. Eric Stambaugh (Plaintiff's Fiancee) 3. Angie Scorpanos (Plaintiff's mother) 4. Dr. Joscph Finkelstein (expert: gynecologist) 5. Dr. Debra Heller (expert: pathologist) 6. Dr. Anthony Gamoba (expert: vocational/economics) 7. Dr. Paul Creary (subsequent treating general surgeon) 8. Dr. Colleen Foos (subsequent treating gynecologist) 9. Plaintiff reserves the right to call as witnesses at trial any of Dimitra Schild's treating physicians to date, as well as to call as witnesses any witness identified in Defendant's Pre-Trial Memorandum. V. LIST OF EXHIBITS 1. Expert reports of Dr. Joseph Finkelstein 2. CV of Dr. Joseph Finkelstein 3. Expert report of Dr. Debra Heller 4. CV of Dr. Debra Heller 5. Expert report of Dr. Anthony Gamboa 6. CV of Dr. Anthony Gamboa 7. Expert report of Dr. Paul Creary 8. CV of Dr. Paul Creary 9. Dr. Kundu's deposition transcript 10. Dr. Kundu's medical chart 11. Medical reports from Holy Spirit Hospital Admission (1997) 12. Dr. Paul Creary's office chart 13. Dr. Colleen Foos' office chart 14. Compilation of medical bills 15. Compilation of wage loss, and future wage loss 16. Anatomical diagrams and models 5 17. Ultrasound films, 1997 18. Pathology slides, 1997 19. Office chartof Susquehanna Surgeons 20. Plaintiff reserves the right to utilize any exhibits listed in Defendant's Pre-Trial Memorandum. IV. CURRENT STATUS OF SETTLEMENT NEGOTIATIONS Plaintiff's counsel, and defense counsel, arc currently making an attempt to explore whether amicable resolution of this case may be possible. Counsel are optimistic that settlement negotiations may ensue; however, at this date (April 2, 2004), Dr. Kundu has not yet given his consent to settle. Counsel are hopeful that some effort in exploring settlement potential may be fruitful prior to the Pre-Trial Conference scheduled in this matter, such that an update on the matter can be given orally at conference. Respectfully submitted, GOLDBERG, KATZMAN & SHIPMAN, P.C. By: April L. Strang-Kutay, Esquire I.D. No. 46728 David M. Steckel, Esquire I.D. No. 82340 320 Market Street Harrisburg, PA 17101 (717) 234-4161 Attorney for Plaintiff' Date: 6 Joseph Finkelstein M.D. 936 Fifth Avenue New York, New York 10021 212 570-9200 Goldberg, Katzman & Shipman, P.C. 320 Market Street Strawberry Square P.O. Box 1268 Harrisburg, Pennsylvania 17108-1268 Re: Dimitra Scbild October 3, 1999 I, Joseph Finkelstein am a licensed physician and I am board certified in obstetrics and gynecology. I have been asked to review the records regarding the care received by Dimitra Schild while under the care of Dr. Kundu, Dr. Esposito, and Dr. Graff during the month of November 1997. To review, Dimitra Schild was evaluated at Harrisburg Hospital on November 12, 1997 and was found to be pregnant. Her beta-sub unit was 1850 and a pelvic sonogram revealed an intrauterine pregnancy represented by a sac in the uterus. She also complained of right lower abdominal pain consistent with a cyst found on the right ovary during sonography. According to Dr. Kundu's notes the patient was seen again on November 14, 1997. Examination revealed a normal size uterus with no cervical motion tenderness. There was also some right-sided tenderness noted. The plan was to wait for a repeat beta-sub unit and if it goes down then the plan was a D & C. In his diagnosis he states "she has pelvic pain and will do a laparoscopic evaluation to rule out an ectopic pregnancy since the endometrial currettings may not show much." When the beta-sub unit comes back at 1900 the doctor states that there is not an appreciable increase. The sonogram is repeated and reveals no abnormalities other than a sac in the uterus, which is very small. He further states " it is high time we can schedule her for a D & C and video laparoscopy and possible mini-lap. She is going for a D & C and if we are convinced that this is an intrauterine pregnancy and not going on, that will be the end of that, but if there is any doubt, she will need a video operative laparoscopy with possible minilap." (end of quote). Following this narrative and plan by Dr. Kundu, Dimitra Schild was brought to the operating room on November 14, 1997. Dr. Kundu performed a D & C and after examining the tissue grossly elected to proceed with a laparoscopy without confirming by a frozen section the presence or absence of chorionic villi in the tissue removed at the time of the D & C from the uterine cavity. During the laparoscopy he evacuated a right corpus luteum cyst and at the conclusion of the operation he noted a loop of bowel protruding thru the umbilical incision. Dr. Kundu was unsuccessful in trying to digitally force the bowel back into the abdominal cavity. A general surgeon, Dr. Esposito was brought in for consultation and extended the laparoscopic umbilical incision, attempted to reposition the bowel and ultimately closed the enlarged incision. Dimitra Schild was observed overnight and did not do well. She developed a drop in her hematocrit, an elevated temperature, and an acutely tender and distended abdomen. Dr. Graff, a general surgeon and partner of Dr. Esposito, reoperated on Dimitra on November 16, 1997. Dr. Graff notes three separate perforations to the small intestine as well as a hemoperitoneum caused by bleeding from the right ovary where it had been operated on by Dr. Kundu. Dr. Graff needed to perform a resection of the small bowel with an end to end anastomosis as well as a suture ligation of the bleeding vessels from the right ovary. Dimitra Schild, after a stormy post-operative course was eventually discharged on November 25, 1997. Dimitra Schild is 29 years old and continues to suffer from persistent gynecological and bowel problems. After careful review of the records it is my expert opinion, within a reasonable degree of medical certainty that the care received by Dimitra Schild, by Dr. Kundu, was negligent and fell below an acceptable standard of care. It is also my expert opinion that this negligence resulted in the injuries and suffering sustained by Dimitra Schild in November 1997 and today. On November 12, 1997, it was clearly demonstrated by sonographic examinations that the patient had a small intrauterine sac as well as a right corpus luteum cyst of pregnancy. At no point in time was there any reason for concern that the patient had an ectopic pregnancy. When a repeat beta-sub unit on November 14, 1997 showed no appreciable rise in the beta-sub unit from November 12, 1997, a D & C for completion of an incomplete miscarriage was indicated. If after the D & C was performed, if Dr. Kundu doubted the findings of two separate sonograms, then the standard of care would have dictated that a frozen section be done on the tissue removed from the uterine cavity to confirm the presence or absence of chorionic villi consistent with an intrauterine pregnancy. If this had been done, the pathologist would have confirmed the presence of chorionic villi in the sample, as did the final pathology. There was never an indication that a laparoscopy needed to be performed. Two sonograms, as we)] as pathology, confirmed an intrauterine pregnancy. Two sonograms revealed a right corpus luteum cyst. At no time prior to the laparoscopy was there any evidence of intra-abdominal bleeding or a surgical abdomen. Dr. Kundu then proceeds to do a nonindicated operative laparoscopy. During the laparoscopy he evacuates a right corpus luteum cyst, that did not need to be evacuated, and proceeds to entrap a loop of small bowel in the umbilical incision while removing the laparoscopic trocar. Unable to correct the situation he calls in a general surgeon to assist in repositioning the bowel into the abdominal cavity. This was accomplished by Dr. Esposito, the surgical consult. Unfortunately, Dr. Kundu, in addition to doing an operative laparoscopy that was not indicated by any of the gynecological findings, also created three separate perforations to the small bowel during the laparoscopy that was not diagnosed until November 16, 1997. Dr. Graff, who was Dr. Esposito's partner, had to re-operate on Dimitra Schild on November 16, 1997 because of a surgical abdomen, fever, and a dropping hematocrit. Dr. Graff then proceeded to do a bowel resection of the small intestine damaged by Dr. Kundu. The care given by Dr. Kundu was negligent. Not only was the operative laparoscopy not indicated but his operative skills or lack thereof were below an acceptable standard of care resulting in multiple perforations to the small intestine. As a result of the care Dimitra Schild is received by Dr. Kundu she has experienced an unindicated laparoscopy, a bowel resection and chronic gynecological and bowel problems at the age of 29 years old. I thank you for allowing me to review this most unfortunate case. Thank you, Joseph Finkelstein M.D. Joseph Finkelstein M.D. 936 Fifth Avenue New York, New York 10021 Goldberg, Katzman & Shipman January 20, 2004 320 Market Street Strawberry Square P.O. Box 1268 Harrisburg, Pennsylvania 17108-1268 Re: Dimitra Schild (Supplemental report) I, Joseph Finkelstein am a licensed physician and I am board certified in obstetrics and gynecology. On October 3, 1999 I produced an initial report regarding the care received by Dimitra Schild while under the care of Dr. Kundu in November 1997. As a consequence of Dr. Kundu's negligent care, Dimitra Schild had an unnecessary laparoscopy, a bowel injury requiring a bowel resection, and an intra-abdominal bleed. As of October 1999, when I produced my initial report she was experiencing chronic abdominal and pelvic pain. I have been recently provided with the following medical records and depositions. 1. Operative laparoscopic report dictated by Dr. Cleary dated January 3, 2000 2. Medical records of Dr. Colleen Foos from Cumberland Valley Ob-Gyn 3. Operative reports dated September 22, 2003 4. Deposition transcript of Sambhu N. Kundu, M.D. dated March 15, 2001 5. Deposition transcript of Kenneth Graf, M.D. dated August 31, 2001 6. Deposition transcript of Eric R. Stambaugh dated September 26, 2003 7. Deposition transcript of Dimitra Schild dated April 18, 2001 8. Deposition transcript of Angeline Scoropanos dated August 31, 2001 After review of the additional medical records and depositions listed above, it is my opinion within a reasonable degree of medical certainty, that the additional materials further supports that the care provided by Dr. Kundu was below an acceptable standard of care. It is also my opinion within a reasonable degree of medical certainty that the negligence of Dr. Kundu has resulted in abdominal and pelvic adhesions requiring multiple surgical procedures, pain and suffering. The deposition transcripts of Eric Stambaugh, Dimitra Schild, and Angeline Scoropanus provide us with insights into the limitations and pain that has been endured by Dimitra Schild as a result of the complications from the laparoscopy performed by Dr. Kundu on November 14, 1997. The chronic abdominal pain, resulting from adhesions, has been documented during several surgical procedures. Dr. Paul J. Creary has been involved in three surgical procedures, between January 2000 and September 2003, involving the lysis of adhesions caused by the injuries sustained in 1997. Dr. Cleary states: "My opinion as to the cause of this patient's problem has to, in fact, go back to the initial perforation that she sustained during the laparoscopic evaluation of her ovarian pathology. This perforation and the spillage of succus caused severe peritonitis, which resulted in extensive adhesions." Dr. Cleary further states as Dimitra Schild's treating physician that: "It is my honest opinion that, as time goes on, given her young age, the patient is likely to suffer from more pain due to chronic adhesions. Whether or not this pain will be severe enough to require relaparotomy is a question I cannot answer with certainty. However, I would not be surprised if she will come to laparoscopic lysis of adhesions again during her lifetime." This statement was made on July 11, 2002. I agree with Dr. Cleary, her treating physician, as to the cause of her problems and the probable need for future surgery. In fact, after this statement was made by Dr. Cleary, Dimitra Schild did require additional surgery on September 22, 2003 because of persistent chronic pelvic pain from persistent adhesions. There is no doubt that the cause of Dimitra Schild's chronic pain and adhesions is a direct result of the complications occurring during her laparoseopy performed by Dr. Kundu on November 14, 1997. As discussed in my initial report from October 1999, the laparoscopy was not indicated. Standard of care required that a frozen section be performed on the tissue removed from the uterine cavity to rule in or rule out chorionic villi. When Dr. Kundu is asked in his deposition why he did not get a frozen section, he responds by stating that he has never ordered a frozen section on any specimen ever. He also states that the pathologist was not in the hospital and it would have taken one hour for the pathologist to come to the hospital and twenty minutes to do a frozen section. In response to Dr. Kundu's statements, a frozen section on the uterine currettings was indicated in this case and by not performing a frozen section was below an acceptable standard of care. In fact, if a frozen section had been performed the pathologist would have been able to document chorionic villi, confirming an intrauterine pregnancy. When a frozen section is anticipated, standard practice would be to notify pathology in advance of surgery to come back to the hospital so that a frozen section can be done immediately and in a timely fashion. Waiting twenty minutes to get the results of a frozen section is standard practice and is far more prudent then proceeding with an invasive surgical procedure that was never indicated. I would also like to address the fact that the cause of the right lower quadrant pain was documented and easily explained by documentation on sonography of a right corpus luteum cyst. A corpus luteum cyst does not need to be surgically drained or removed. Dr. Kundu's decision to evacuate the cyst resulted in infra-abdominal bleeding, an additional insult, beyond the perforated bowel, resulting in an acute surgical abdomen and severe peritonitis. The additional materials provided support my original opinion that the care provided by Dr. Kundu was below an acceptable standard of care and a substantial factor in causing Dimitra Schild"s chronic pain and suffering and the need for multiple surgical procedures with the likelihood of the need for additional surgery in the future. The opinions stated in this supplemental report are all within a reasonable degree of medical certainty. I reserve the right to provide additional reports as further materials are provided during the discovery process. Yours truly, J6seph Finkelstein M.D. CERTIFICATE. OF SERVICE I hereby certify that I served a copy of the foregoing document upon the person(s) indicated below by depositing a copy of the same in the United States mail, postage prepaid, in Harrisburg, Pennsylvania and addressed as follows: Leigh A. J. Ellis, Esquire S. Walter Foulkrod, 111, & Associates 1800 Linglcstown Road Suite 305 Harrisburg, PA 171 10 Attorney for Defendant Sambhu N. Kundu, M.D. GOLDBERG, KATZMAN & SHIPMAN, P.C. By: LC,5,JIA - Glenda J. Ebersole, $ cretary for April Strang-Kutay, Esquire Attorney fur Plaintiff Date: L1 ?/o , APP 0 8 2004 FOULKROD ELLIS PROFESSIONAL CORPORATION 1800 Linglestown Road - Suite 305 Attorneys for Defendants: Harrisburg, Pennsylvania 17110 Sambhu N. Kundu, M.D. and Telephone: [7171 213-4200 Central Pennsylvania Fax: (7171 213-4202 Obstg tri cam=Gynecology 1nc DIMITRA SCHILD, IN THE COURT OF COMMON PLEAS Plaintiff OF CUMBERLAND COUNTY, PENNSYLVANIA V. SAMBHU N. KUNDU, M.D., CENTRAL PENNSYLVANIA OBSTETRICS- GYNECOLOGY, INC., Defendants CIVIL ACTION - LAW NO. 99-6832 JURY TRIAL DEMANDED PRETRIAL CONFERENCE MEMORANDUM OF DEFENDANTS, SAMBHU N. KUNDU, M.D. AND CENTRAL PENNSYLVANIA OBSTETRICS-GYNECOLOGY, INC. 1. A STATEMENT OF THE BASIC FACTS AS TO LIABILITY Plaintiff, Dimitra Schild ("Plaintiff") was first seen by Sambhu N. Kundu, M.D. ("Dr. Kundull) on July 13, 1990. She had a history of abdominal and pelvic pain since an appendectomy, as well as a suspicion of endometriosis. Plaintiff was seen by Dr. Kundu over the next several years for a variety of gynecologic issues. On November 12, 1997, Plaintiff was evaluated for acute pelvic pain and significant vaginal bleeding in the ER of Harrisburg Hospital. Dr. Kundu received a call from the ER and was told that one of his patients had arrived in the emergency room with bleeding and severe pain. Dr. Kundu ordered a pregnancy test and a sonogram but both were already underway. , "i When he arrived at the hospital the Plaintiff was with her husband and Dr. Kundu examined her. Vital signs were normal and he noted that the uterus was mobile and anteverted. The right adnexa was tender and there was slight bleeding. Pain was not too severe and he evaluated the sonographic report. The report indicated: "Pelvic ultrasound. Small hypoechoic intrauterine structure, 3 millimeter, ? Early in IUP versus pseudo sac. No adnexal masses, no free fluid, 1.7 centimeter right ovarian cyst... At this point Dr. Kundu believed the patient could either have an intrauterine pregnancy or ectopic gestation. The pregnancy test was positive and showed a beta subunit of 1850. The test, however, did not indicate whether the pregnancy was intrauterine or ectopic. It was Dr. Kundu's plan to see whether the beta subunit doubled in the next 24-72 hours. Plaintiff was seen by Dr. Kundu on November 14, 1997. A repeat beta subunit measured 1902. Plaintiff was still in pain and complaining about some bleeding and cramping above the ovarian point in the right lumbar region. There was no cervical motion tenderness. With a positive pregnancy test, lower abdominal pain, vaginal bleeding, and a beta HCG which was not rising appropriately, it became imperative for Dr. Kundu to rule out an ectopic pregnancy because it is potentially lethal diagnosis. A plan was developed to perform a D & C and if a definite intrauterine pregnancy was detected, the plan was to go no further. If a definite intrauterine pregnancy could not be detected, the plan was to perform a video laparoscopy to rule out an ectopic gestation. 2 During the D & C, Dr. Kundu found only minimal tissue and no products of conception could be identified. Thus, a video laparoscopy was then undertaken. The uterus looked normal with a bulge posteriorally. A "golf ball" size cyst was noted, in all probability a corpus luteum cyst. Both tubes appeared to be normal and there was no suggestion of an ectopic gestation. Because the ovarian cyst was the most likely source of Plaintiff's pain, it was decompressed, and a focus of endometrial implants near the left uterosacral ligament was fulgurated. The procedure was then terminated. while extracting the trocar from the incision site, a knuckle of small intestine was noted to be protruding into the incision. Dr. Kundu tried to replace the intestine digitally but was unable to do so. He immediately called in Dr. Esposito, a general surgeon, to help and they both utilized a "nontooth" forceps to replace the bowel. The small bowel was then examined and the feeling was that there was no other defects and the patient was closed. On November 15, 1997, a perforated bowel was suspected. Dr. Graf ultimately had to repair the small bowel when it was found to have three small defects in the area of the original defect. A 12 cm segment of ileum was resected, and the bleeding from the corpus luteum was stopped. Plaintiff was discharged from the hospital on November 25, 1997. Plaintiff has alleged that she has gone on to experience various medical problems since that time. 3 II. A STATEMENT OF THE BASIC FACTS AS TO DAMAGES Plaintiff alleges that she has experienced chronic abdominal and pelvic pain and developed extensive adhesions since the surgery. She has undergone various procedures, including laparoscopic lysis of the adhesions. Medical bills total $69,134.53, of which insurance paid $35,725.82 and the Plaintiff paid $1,523.59. Plaintiff's economic expert places a loss of earning capacity is in a range of $612,137 to $1,625,238. Plaintiff has worked exclusively as a waitress /cashier for her family's restaurant. III. A STATE= AS TO THE PRINCIPAL ISSUES OF LIABILITY AM DAMAGES Plaintiff's expert reports layout various issues of liability, but essentially the following issues will be those primarily contested at trial: 1. Whether Dr. Kundu performed an unnecessary laparoscopy and injured the Plaintiff during the procedure resulting in abdominal pain and scarring?; 2. Whether Dr. Kundu should have ordered a frozen section on tissue removed from the uterine cavity to confirm the presence or absence of chorionic villi consistent with an intrauterine pregnancy prior to performing the laparoscopy?; 3. Whether Dr. Kundu should have decompressed the corpus luteum cyst at the time of the laparoscopy?; 4. If Dr. Kundu failed in any of the above matters, 4 did those failures constitute a deviation from the standard of care?; 5. If there was a deviation of the standard of care, did that deviation cause damage to Plaintiff?; and 6. If the jury finds that there was a breach of the standard of care and causation, what damages, if any, did Plaintiff sustain? IV. A SUMMARY OF LEGAL ISSUES 12EGARDING ADMISSIBILITY OF TESTIMONY. EXHIBITS, OR ANY OTHER MATTER. AND LEGAL AUTHORITIES RELIED ON 1. It is requested that medical records be utilize at trial without the necessity of the appearance of the custodian subject to objection of the admissibility of certain portions of the records. 2. It is requested that the proper measure of medical expenses is the amount reimbursed by third party payors and accepted by healthcare providers as payment rather than the amount billed. See Moorhead v. Crozer Chester Med. Ctr., 765 A.2d 786 (Pa. 2001). 3. Plaintiff's counsel recently indicated that she will produce a report from a pathologist. Dr. Kundu will respond to Plaintiff's new report with a report from his own pathology expert. V. THE IDENTITY OF WITNESSES TO BE CALLED 1. Sambhu N. Kundu, M.D. 2. Joel I. Polin, M.D. (IDr. Polin's curriculum vitae and expert report are attached as Exhibit "A"); 3. Pathology expert witness to be identified; 5 4. Patrick Schild. I reserve the right to supplement this list and offer other witnesses identified by Plaintiff's counsel upon reasonable notice. VI. A LIST OF EXHIBITS WITH BRIEF IDENTIFICATION OF EACH 1. Expert report and curriculum vitae of Joel I. Polin, M.D.; 2. Expert report and curriculum vitae of Pathology expert to be identified; 3. Medical records of Plaintiff from: a. Sambhu N. Kundu, M.D.; b. Samir J. Srouji, M.D.; C. Colleen Foos, M.D.; d. Paul J. Creary, M.D. e. Susquehanna Surgeons. Ltd.; E. Mechanicsburg Family Practice Center; g. Dr. Segelbaum; h. Dr. Fairbrother; i. Holy Spirit Hospital admissions and emergency room visits (including pathology slides); j. Harrisburg Hospital admissions and emergency room visits; and k. Miscellaneous medical records of Plaintiff, including laboratory studies and x-rays. 4. All pleadings, including answers and new matter and replies thereto; 5. All written discovery; 6. Transcripts and exhibits of all depositions; 7. Medical literature and other documentation as appropriate to cross-examine expert witnesses; S. Demonstrative evidence such as timelines, medical illustrations and enlargements of the medical records for the benefit of the jury; 9. Other anatomical exhibits to aid in the explanation of the anatomy. I reserve the right to supplement this list and offer other ?I _I 6 exhibits identified by Plaintiff Is counsel upon reasonable notice. VII. THE CURRENT STATUS OF SETTLEMENT NEGOTIATIONS Plaintiff has not issued a demand. As such, the Defendants are not in a position to make an offer at this time. Respectfully submitted, FOULKROD ELLIS CORPORATION Date: By: Atto y I.D. No. 53229 Aaro S. Jayman, Esquire Attorney I.D. No. 85651 Attorneys for Defendants, Sambhu N. Kundu, M.D. and Central Pennsylvania Obstetrics- Gynecology, Inc. 7 Exhibit A JOEL I. POLIN, M.D. A81NGTON MEMORIAI. NOSMAL 1200 YORK ROAD ABINGTON. PA 19MI TELEPHONE (215) 572.6222 March 1, 2004 Leigh A. J. Ellis, Esquire Foulkrod Ellis Attorneys and Counsellors At Law 1800 Linglestown Road Suite 305 Harrisburg, PA 17110 Re: Schild v. Kundu, et al Dear Mr. Ellis: I have received the material which you sent me which pertains to the above case. In that regard I have reviewed the following documents: 1. Medical records of Dimitra Schild from the office of Samir J. Srouji, M.D.; 2. Medical records of Dimitra Schild from,the office of Colleen Foos, M.D.; I 3. Medical records of Dimitra Schild from the office of Sambhu N. Kundu, M.D.; 4. Medical records of Dimitra Schild admissions to Holy Spirit Hospital, 6/11/84-6/13/84, 1/5/90-1/7/90, 9/14/94, 11/14/97 -11/25/97, and 7/21/98; Leigh A. J. Ellis, Esquire March 1, 2004 Re: Schild v. Kundu, et al Page 2 5. Medical records of Dimitra Schild from the office of Susquehanna Surgeons; 6. Medical records of Dimitra Schild from Harrisburg Hospital, 11/12/97; 7. Medical records of Dimitra Schild from the Mechanicsburg Family Practice Center, 8. Medical records of Dimitra Schild from the office of Dr. Segelbaum; 9. Medical records of Dimitra Schild Emergency Room visits to Holy Spirit Hospital, 12/7/86, 8/2/98, 8/29/98, 10/27/98, 1/13/99, and 1/20/99; 10. Miscellaneous medical records of Dimitra Schild including laboratory studies and x-rays; 11. Plaintiff's Complaint, 12. Plaintiff's Responses to Interrogatories of Defendant Sambhu N. Kundu, M.D. 13. Deposition transcript of Sambhu N. Kundu, M.D., 3/15/01; 14. Deposition transcript of Dimitra Schild, 4/18/01; 15. Deposition transcript of Angeline Scoropanos, 8/31/01; 16. Deposition transcript of Kenneth Graf, M.D., 8/31/01; 17. Letter from Paul J. Creary, M.D. to April L. Strang-Kutay, Esquire, 11/12/02; Leigh A. J. Ellis, Esquire Re: Schild v. Kundu, et al Page 3 March 1, 2004 18. Letter from Joseph Finkelstein, M.D., to Goldberg, Katzman & Shipman, P.C., 10/3/99; 19. Letter from Joseph Finkelstein M.D., to Goldberg, Katzman &. Shipman, P.C., 1/20/04. What follows will be a brief review of the pertinent aspects of this case along with my assessment of the care which was provided, as well as commentary on the medical opinions expressed about this case which are contained in the above documents. Dimitra Scoropanos (Schild) was a twenty-year old woman who had never been pregnant, when she made her first visit to the office of Drs. Banzhoff, Carr, and Kundu on 7/13/90, and was seen by Dr. Kundu. Her chief complaint at that time was pain on her left side. Past medical history included a tonsillectomy and adenoidectomy in 1984, a motor vehicle accident in 1986, and an appendectomy at the beginning of 1990. She described arthroscopic surgery on her left knee at age fifteen. Her menstrual history revealed menarche which had commenced at age thirteen, and periods which were recurring monthly lasting five days, and which had recently become heavier. She gave a history of being sexually active since age eighteen and of using condoms. She described left lower quadrant pain which had become worse since her appendectomy. The remainder of her history and physical examination were unremarkable, and she was treated with Ponstel, a medication commonly prescribed for dysmenorrhea at that time. She next spoke with Dr. Kundu on 8/31/90, and it was noted that she was "still having problems with dysmenorrhea." Ponstel was noted not to have helped. Physical examination was again unremarkable and Demulen, a birth control pill was prescribed. Ponstel was likewise again prescribed. She was away at college when she developed leg pain on 9/13/90. Spasm of a muscle was diagnosed and she was advised to stop the birth control pills. Immediately following that event, on 9/14/90, she was seen again by Kundu. Leigh A. J. Ellis, Esquire Re: Schild v. Kundu, et al Page 4 March 1, 2004 Her examination was once again unremarkable; ampicillin and Motrin were prescribed. One week later when she was seen by Dr. Kundu she was described as feeling much better. An NSAID was prescribed for cramps. Dimitra Schild was seen in the office by Dr. Banzhoff on 2/12/92 complaining of abnormal menses and pain in her lower abdomen. Dysmenorrhea was described as being severe at times. On physical examination "slight" cervical motion was noted. A tender nodule, representing what was thought to bean endometrioma, was palpated near the left uterosacral ligament. A diagnosis of endometriosis was entertained. Her menstrual cramps were described as continuing to be almost incapacitating. A diagnosis of a left ruptured corpus luteum cyst or ruptured endometrioma was entertained. When seen 16 days later she was still having lower abdominal pain even though she had begun to take LoEstrin, another birth control pill. Her uterus was described as being "really tender," with some adnexal tenderness, especially on the right. No masses were palpated, but cervical motion tenderness was again noted. She was cultured for chlamydia and a pelvic ultrasound examination was ordered. Tetracycline was prescribed, and her pain improved. When seen in the office on 3/6/92, by Dr. Carr, her pelvic examination was described as being normal. A pelvic ultrasound examination which was performed on that day was likewise described as being normal. She continued to take LoEstrin. When seen in the office on 7/14/93, by Dr. Kundu, she was noted to be taking her LoEstrin. Scant menstrual periods were described and she was noted to have occasionally skipped periods. Her last normal menstrual period was noted to have lasted for only one day. Physical examination and pelvic examination were described as being within normal limits. On 9/14/94 she had a pilonidal cystectomy performed. On 12/20/93 she was seen in the office by Dr. Banzhoff for a slightly tender sebaceous cyst of her left labium minus. On 1/18/94 she was seen by Dr. Kundu complaining of a vulvovaginal itch. She was treated for a presumed Leigh A. J. Ellis, Esquire March 1, 2004 Re: Schild v. Kundu, et al Page 5 yeast infection with Monistat. A cervical culture for gonorrhea which was performed on that date was reported as being negative. Between 1/26/94 and 9/16/96, she made four visits to the office and was seen by Dr. Kundu for routine examinations. Her physical findings were always within normal limits, and LoEstrin continued to be prescribed at each visit. She made an additional visit to the office and saw Dr. Kundu on 6/25/97, during which she stated her desire to become pregnant. Her physical examination was again within normal limits, and she was advised to stop her birth control pills and try to become pregnant after several cycles. On 11/12/97 Dimitra Schild was evaluated for acute pelvic pain and significant vaginal bleeding in the Emergency Room of Harrisburg Hospital where she was seen by Dr. Kundu. Slight abdominal tenderness was noted. She was found to have a small hypoechoic intrauterine structure, approximately 3 mm in diameter. A 1.7 cm right ovarian cyst was also noted. The ultrasound diagnosis was early intrauterine pregnancy vs pseudosac. Her Beta HCG was reported as being 1,850. She was evaluated by Dr. Kundu in the office on 11/14/97 complaining of vaginal bleeding and right-sided lower abdominal pain. A right ovarian cyst was noted. Pelvic examination revealed "some" right adnexal tenderness and a pinkish vaginal discharge. Continuing pelvic pain was her ongoing complaint. Her Beta HCG was reported as being 1,902. A very small sac was seen in the uterus on ultrasound examination. With a positive pregnancy test, lower abdominal pain, vaginal bleeding, and a Beta HCG which was not rising appropriately, it became imperative to rule out an ectopic pregnancy. A plan was developed to perform a D & C, since in any event even if the pregnancy had been intrauterine it would have been non-viable. If on D & C a definite intrauterine pregnancy was detected, the plan was to go no further. If a definite intrauterine pregnancy could not be detected, the plan was to perform a video laparoscopy to rule out an ectopic gestation. On 11/14/97, Dimitra Schild was admitted to Holy Spirit Hospital and taken to the operating room where a D & C was performed: it revealed only minimal tissue and no products of conception could be identified. As such, a video Leigh A. J. Ellis, Esquire March 1, 2004 Re: Schild v. Kundu, et al Page 6 laparoscopy was undertaken. A "golf ball" size right ovarian cyst was noted, in all probability a corpus luteum cyst. Both tubes appeared to be normal and there was no suggestion of an ectopic gestation. Because the ovarian cyst was believed to be causing her pain, it was decompressed, and a focus of endometrial implants near hear left uterosacral ligament was fulgurated. The procedure was then terminated. While extracting the trochar from the incision site, a knuckle of small intestine was noted to be protruding into the incision. Because the knuckle of small bowel appeared to be stuck, and could not be readily replaced by Dr. Kundu, with the use of his finger and non-tooth forceps, he summoned Dr. Joseph Esposito from Susquehanna Surgeons to perform the replacement. The procedure was accomplished by Dr. Esposito after he extended the fascial incision. No injury to the bowel was noted, and the incision was closed. On 11/15/97, she was noted to be in pain and her hematocrit was observed to have decreased. Antibiotics were administered. A surgical consultation with Dr. Kenneth Graft was obtained. An obstruction series revealed free air under the diaphragm and a paralytic ileus. A perforation of her bowel was suspected. As such, on 11/16/97 she returned to the operating room where through a lower midline incision, an exploratory laparotomy was undertaken by Dr. Graf. The exploration revealed three small perforations / puncture sites at the junction of the mid and distal third of the ileum, and bleeding from the right corpus luteum cyst. A 12 cm segment of ileum was resected, and the bleeding from the corpus luteum was stopped with a single suture. Approximately 500 cc of intra-abdominal blood was evacuated. After a post-operative course which was appropriate for her condition, she was discharged from the Holy Spirit Hospital on 11/25/97. No microorganisms were able to be cultured from the fluid in her abdomen at the time of the surgery to repair the bowel perforations. Dimitri Schild has gone one to experience various medical problems which seem to be of a gastrointestinal nature. On 12/11/97, an obstruction series, an Leigh A. J. Ellis, Esquire March 1, 2004 Re: Schild v. Kundu, et al Page 7 abdominal ultrasound examination, and a pelvic ultrasound examination were all reported as being within normal limits. In May, 1998, an abdominal CT scan and a pelvic CT scan were reported as being with normal limits. Likewise, in May, 1998, an upper gastrointestinal series and small bowel series revealed only a small hiatal hernia. In August, 1998, she underwent a laparoscopic cholecystectomy with lyses of adhesions. Adhesions in her left lower quadrant were noted at that time. In January, 2000, she underwent an operative laparoscopy with lysis of adhesions. In December, 2000, she was described at her annual examination as being amenorrheic, and her abdomen was noted to be non-tender. In 2001, she was described as still taking LoEstrin and experiencing dysmenorrhea and occasional dyspareunia, which occurred after coitus but not during coitus. Chronic abdominal pain / pelvic and abdominal adhesions were also noted. In August, 2001, a repeat laparoscopic lysis of adhesions was performed. Following that procedure she was described as "doing well with minimal symptoms." In summary, this is the case of a woman, pregnant for the first time, who developed a classic picture for ectopic pregnancy: 1. Beta HCG with titre not rising appropriately 2. Ultrasound finding of early gestational sac vs pseudosac 3. Lower abdominal pain 4. Vaginal bleeding Because ectopic pregnancy is a potentially lethal diagnosis, it became imperative for Dr. Kundu to absolutely rule out this possibility. His plan to perform a D&C, and if no obvious products of conception could be detected then perform a laparoscopy, was exemplary. His decision to decompress the ovarian cyst was likewise appropriate, since it was likely that the cyst was causing her pain. When at the conclusion of the laparoscopic procedure, a knuckle of small bowl became lodged in the incision and could not be replaced, he appropriately requested that a general surgeon come into the case. It is the standard of practice, that when a gynecologist calls a general surgeon into a gynecologic case because of issues with the gastrointestinal tract, the gynecologist from that time on in the case, defers to the general surgeon on issues relating to the gastrointestinal tract. At the time that a general surgeon 'Al Leigh A. J. Ellis, Esquire March 1, 2004 Re: Schild v. Kundu, et al Page 8 comes in to such a case, he / she assumes responsibility with respect to bowel issues from that time forward. It is unfortunate that the ileum of Mrs. Schild was injured at that point. However, it would be incorrect to assume that an actual perforation was present at that time. It is highly likely that there was a subtle injury to the ileum which proceeded to frank perforation on the following day. Ms. Schild was carefully observed and returned to the operating room in a timely manner, when perforation of the bowel became a likely diagnosis. It is unfortunate that Dimitra Schild has gone to experience medical problems related to her abdomen / gastrointestinal tract, but it is not clear that these symptoms are due to the events of 1997. The medical record indicates that she had experienced chronic lower abdominal pain, incapacitating dysmenorrhea, cervical motion tenderness, and oligomenorrhea long before the events of 1997. Her abdominal pain had previously been described as becoming worse after her appendectomy. Dr. Creary has suggested that he would not be surprised if Dimitra Schild would require a repeat lysis of adhesions during her lifetime. It is my opinion that this gloomy prediction of her future is not justified. Modem adhesion barriers have the potential to prevent significant adhesion formation. Dr. Finklestein believes that here was no reason for the concern that Dimitra Schild might have had an ectopic pregnancy. He is manifestly incorrect for reasons elucidated in the preceding paragraphs. In addition, one can easily mistake a pseudosac for a true early gestational sac. He goes on to state that had a frozen section been performed on the tissue removed at the time of the D & C, that the pathologist would have confirmed the presence of chorionic villi. The state-of-the-art however precludes such a sanguine assumption. It is not uncommon, that in the minimal amount of tissue which is processed at frozen section in cases such as these, that chorionic villi are easily missed by the pathologist. In addition, the fact that a frozen section would have taken an additional hour and twenty minutes precluded its use as a diagnostic tool. Leigh A. J. Ellis, Esquire Re: Schild v. Kundu. et al Page 9 March 1, 2004 It is my opinion, the statement to the contrary by Dr. Finkelstein notwithstanding, that the laparoscopy performed by Dr. Kundu was absolutely indicated. It was Dr. Kundu's duty and obligation to rule out a potentially lethal condition. Dr. Finklestein then goes on to assume that the perforations of the ileum were created by Dr. Kundu. There is absolutely no basis for this assumption. As stated in the paragraphs above, the bowel may not have sustained a true perforation on 11/14/97. In addition, it is impossible from the records to ascertain whether it was in fact Dr. Kundu or Dr. Esposito who caused the injury to the ileum. It is nothing short of outrageous and without any basis, that Dr. Finklestein describes the operative laparoscopic skills of Dr. Kundu as being below an acceptable standard. Dr. Finklestein criticizes Dr. Kundu for decompressing the ovarian cyst at the time of the laparoscopy. Since it was highly probable that the cyst was causing the pelvic pain which Dimitra Schild had been experiencing, it was clearly appropriate to drain it. In the final analysis, it is my opinion that the care provided by Dr. Kundu was in accordance with the standard of care. I hope that this review and analysis has been helpful to your understanding of this case. If I can provide any additional information please contact me. All opinions provided in this report are to a reasonable degree of medical certainty. Sincerely yours, J;el 1. t olin, M.D. Professor of Obstetrics & Gynecology Temple University School of Medicine CURRICULUM VITAE NAME: .foci Ian Polin, NI.D. HOME ADDRESS: 19 Quail Drive Doylestown, Pennsylvania 18901 OFFICE ADDRESS: Abington Memorial Hospital 1200 York Road Abington, Pennsylvania 19001 SOCIAL SEC. # 187-28-8253 DATE OF BIRTH: August 27, 1935 PLACE OF BIRTH: Philadelphia, Pennsylvania MARITAL STATUS: Married 1967 to Irene Louise Janssen born in Netherlands, 1941 Children: Monica Anne 1969 Glenn Michael 1971 EDUCATION: 1953- 1957 1957-1961 POST GRADUATE 1961- 1962 TRAINING: 1962- 1965 MILITARY SERVICE: 1965- 1967 A.B. Temple University M.D. Temple University Rotating Internship, Philadelphia General Hospital Residency in Obstetrics & Gynecology Philadelphia General Hospital Assistant Chief or Obstetrics &. Gynecology U.S. Army Hospital Bad Cannstatt, Germany FACULTY 1981 - Pres. Professor of Obstetrics & Gynecology APPOINTMENTS: Temple University School of Medicine Chairman, Department of Obstetrics & Gynecology, Abington Memorial Hospital 1981 - Pres. Residency Program Director Obstetrics & Gynecology Abington Memorial Hospital 1994 - 1995 Adjunct Professor of Obstetrics & Gynecology University of Pennsylvania School of Medicine 1977-1981 Associate Professor of Obstetrics & Gynecology Department of Obstetrics & Gynecology University of Pennsylvania School of Medicine 1972- 1977 Assistant Professor of Obstetrics & Gynecology Department of Obstetrics & Gynecology University of Pennsylvania School of Medicine HOSPITAL AND ADMINISTRATIVE APPOINTMENTS: SPECIALTY CERTIFICATION: EXAMINER: LICENSURE: 1971 - 1972 Assistant in Obstetrics & Gynecology Department of Obstetrics & Gynecology University of Pennsylvania School of Medicine 1967-1971 Instructor in Obstetrics & Gynecology Department of Obstetrics & Gynecology University of Pennsylvania School of Medicine 1981 - Pres. Chairman, Department of Obstetrics & Gynecology Abington Memorial Hospital 1988- 1989 Interim Chairman, Department of Obstetrics & Gynecology Temple University School of Medicine 1973- 1977 Chairman, Department of Obstetrics & Gynecology Philadelphia General Hospital 1971-1973 Assistant Chief of Obstetrics & Gynecology Philadelphia General Hospital 1970- 1981 Director of Outpatient Services Department of Obstetrics & Gynecology Hospital of the University of Pennsylvania 1976-1981 Medical Director of Gynecology Short Procedure Unit Hospital of the University of Pennsylvania 1967 American Board of Obstetrics and Gynecology 1978 Candidate for certification by American Board of Obstetrics & Gynecology, Division of Maternal-Fetal Medicine 1998 Recertification, American Board of Obstetrics and Gynecology 1996 - Pres. American Board of Obstetrics & Gynecology State of Pennsylvania -1- ---... NATIONAL 1994- 1997 Residency Review Committee for Obstetrics & APPOINTMENTS: Gynecology, First Term 1997 -1999 Residency Review Committee for Obstetrics & Gynecology, Second Term 1997 - 2000 American College of Obstetricians & Gynecologists Primary Care Committee 1997- 1999 Accreditation Council for Graduate Medical Education, Council of Chairs 2000 - 2003 American College of Obstetricians & Gynecologists Committee on Scientific Program 2003 - Pres. American College of Obstetricians & Gynecologists Committee on Industry 2000 - Pres. President, Board of Directors, Foundation of The Obstetrical Society of Philadelphia 2000 - Pres. Council on Resident Education in Obstetrics & Gynecology, Director, Consultation Service 2000- Pres. Specialist Site Visitor, Residency Review Committee for Obstetrics & Gynecology 1993 - 1994 Executive Committee, Council on Resident Education in Obstetrics & Gynecology ELECTED OFFICES: 1997 - 1999 Chair, Residency Review Committee for Obstetrics & Gynecology 1994 - 1996 Vice Chair Residency Review Committee for Obstetrics & Gynecology 1991- 1994 Council on Resident Education in Obstetrics & Gynecology, Second Term 1988-1991 Council on Resident Education in Obstetrics & Gynecology, First Term 1993 - 1994 President, Obstetrical Society of Philadelphia 1992 - 1993 President-Elect, Obstetrical Society of Philadelphia -3- Li AWARDS: 1991- 1992 Chairman, By-Laws Committee, Obstetrical Society of Philadelphia 1987- 1988 President, Obstetrical Society of Philadelphia 1987- 1987 Vice President, Obstetrical Society of Philadelphia 1985- 1987 Treasurer, Obstetrical Society of Philadelphia 1983 - 1985 Assistant Secretary, Obstetrical Society of Philadelphia 1980 - 1985 Executive Council, American College of Obstetricians & Gynecologists, Pennsylvania Section 1976- 1977 Assistant Secretary, Obstetrical Society of Philadelphia 1975 - 1976 Program Chairman, Obstetrical Society of Philadelphia 1967 - Pres. Secretary and Program Chairman, Blocldey Obstetrical Society 1965 Obstetrical Society of Philadelphia Resident Prize Paper 1965 Charles Burr Award for original investigation by a resident 1999 Medal of The Obstetrical Society of Philadelphia: J. Robert Willson Award American College of Obstetricians & Gynecologists; Association of Professors of Gynecology & Obstetrics; American Society For Reproductive Medicine Obstetrical Society of Philadelphia; College of Physicians of Philadelphia; Philadelphia Perinatal Society; Blockley Obstetrical Society; Association of Planned Parenthood Physicians; -4- Pan American Medical Association; American Medical Association Pennsylvania Nledical Society; Montgomery County Medical Society; American Association for the History of Medicine. ADVISORY 1996- Pres. American College of Obstetricians & Gynecologists COMMITTEES: District III Advisory Council 1996-Pres. American College of Obstetricians & Gynecologists District III Junior Fellow Advisor 1967-1987 Medical Advisory Committee of Planned Parenthood Association of Southeastern Pennsylvania PRINCIPAL Grant #29461-01-67A from Department of Health, Education and INVESTIGATOR Welfare. OF GRANTS: "A Comprehensive Hospital Based Cervical Cancer Control Program," 1967 through 1969. ACADEMIC Elected in 1980 to a two year term to the Steering Committee of OFFICES: the Medical Faculty Senate, University of Pennsylvania School of Medicine. MAJOR TEACHING 1967-1995 Lecturer in Obstetrics 200 Course, University of RESPONSIBILITIES: Pennsylvania School of Medicine 1981- Pres. Course Director, Abington Memorial Hospital third year core rotation and fourth year elective rotation in Obstetrics & Gynecology for students of Temple University School of Medicine 1981- Pres. Program Director, Residency in Obstetrics & Gynecology, Abington Memorial Hospital ACADEMIC 1983-1989 Steering Committee, Obstetrical Society of Philadelphia COMMITTEES: Basic Science Course for Residents in Obstetrics & Gynecology -5- PAPERS PRESENTED "Poetry in Obstetrics & Gynecology," Luncheon Conference at Annual AT NATIONAL Clinical Meeting, American College of Obstetricians & Gynecologists, NIEETINGS: 1998, 1999, 2000 "Faculty In-House Supervision of Residents in Obstetrics Gynecology," Presented at 1992 CREOG-APGO annual meeting. "The Acquisition of Clinical Experience by Residents in Obstetrics and Gynecology," Presented at 1991 CREOG-APGO annual meeting. "Bromoderma in Pregnancy" Coauthored with Parish, L., Presented at 1971 annual meeting of American Academy of Dermatology. "Current Concepts in The Management of Pregnant Narcotic Addicts." Coauthored with Connaughton, J.F., Finnegan, L., and Wieland, W. Presented at 1971 annual meeting of American College of Obstetricians and Gynecologists. JOURNAL SPECIAL 1991- Pres. American Journal of Obstetrics & Gynecology. REVIEWER: 1998 - Pres. Obstetrics and Gynecology 1999 - Pres. International Journal of Gynecology & Obstetrics BIBLIOGRAPHY: Connaughton, J., Finnegan, L., Wieland, W., Polin, J.: ORIGINAL PAPERS Current Concepts in Management of Pregnant Narcotic Addicts Obstetrics & Gynecology 37:631, April, 1971. Parish, L., Polin, J.: Common Dermatologic Complaints in Pregnancy, Consultant 12:33-35, October 1972. Parish, L., Polin, J.: Bromoderma in Pregnancy. Dermatologica 148:247- 252,1974. Ott, A., Hayes, J., Polin, J.I., Severe Lactic Acidosis Associated with Intravenous Alcohol for Premature Labor. Obstetrics and Gynecology 48:362-364, 1976. Hatjis, C., Polin, J.: Amenorrhea-Galactorrhea Associated with a Testosterone Producing Solid Granulosa Cell Tumor. American Journal of Obstetrics and Gynecology 131:226, 1978. Hatjis, C., Polin, J.: A Clinical Approach to Post-Operative Fever in Gynecologic Surgery: Its Theoretical Risks and Its Practical Failings. Journal of Reproductive Medicine 22:161-164, March, 1979. -6- Freeman, E., Rickles, K., Huggins, G., Garcia, C-R., Polin, J.: Emotional Distress Patterns Among Women Having First or Repeat Abortions. Obstetrics and Gynecology 55:630-636, 1980. Freeman, E., Rickles, K., Huggins, G., Garcia, C.R., Polin, J.: Emotional Distress Patterns Among Urban Black Women Having First or Repeat Abortions: A One Year Follow-Up. Advances in Planned Parenthood 16(3):91-97. 1981. Polin, J., Knox, 1., Baumgart, S., Campman, E., Mennuti, M., Polin, R.: Use of Umbilical Cord Blood Culture for Detection of Neonatal Bacteremia. Obstetrics and Gynecology 57:233-2337, 1981. Knox, 1., Baumgart, S., Campman, E., Mennuti, M., Polin, J., Polin, R.: Umbilical Cord Blood Culture as a Test for Neonatal Bacteremia. Pediatric Research 14:1980. Sacks, L, Polin, J., Breckenridge, J.: Congenital Chylothorax Presenting as Hydrops Fetalis. The Journal of Reproductive Medicine 28:341-344, May 1983. Minassian, S., Frangipane, W., Polin, J., Ellis, M.: Leiomyomatosis Peritoncalis, Disseminata: A Case Report and Literature Review. The Journal of Reproductive Medicine 31:997-1000 1986. Polin, J., Frangipane, W., Monitoring the High-Risk Fetus Pediatrics Clinics of North America 33:621-647 1986. Polin, J., Frangipane, W., Modern Concepts in the Management of Multiple Gestation. Pediatric Clinics of North America 33:649-661 1986. Cilley, R.E., Colletti, L.M., Dent, T.L., Polin, J.1. Management of unexpected gynecologic abnormalities encountered during abdominal exploration. American Surgeon, 1987 11:617-621 1987. CHAPTERS: "Septic Shock," By Richard H. Schwartz, M.D., and Joel I. Polin, M.D. in Davis Gynecology and Obstetrics, (c) 1971, Harper and Row. Obstetrics and Gynecology Pretest: Self Assessment and Review, McGraw Hill Book Co., 1977. Dr. Polin has contributed a chapter. February 2004 -7- CERTIFICATE OF SERVICE I HEREBY CERTIFY that true and correct copies of the PRETRIAL CONFERENCE MEMORANDUM OF DEFENDANTS, SAMBHU N. KUNDU, M.D. AND CENTRAL PENNSYLVANIA OBSTETRICS-GYNECOLOGY, INC. was served upon all counsel of record this 8th day of April, 2004, by depositing said copy in the United States Mail at Harrisburg, Pennsylvania, postage prepaid, first class delivery, and addressed as follows: April L. Strang-Kutay, Esquire Goldberg, Katzman & Shipman, P.C. Strawberry Square 320 Market Street P.O. Box 1268 Harrisburg, PA 17108-1268 FOULKROD ELLIS PROF IONAL CORPOR?ATI?ON By: E Beth E. Forbes, Pa aleg 1 f+_ . r--- - I------- ?--__ ___ 1------ -- ----- I------ 1 _ ___ _ i ,I AUG 2 6 2003 V . DIMITRA SCHILD, : IN THE COURT OF COMMON PLEAS Plaintiff : OF CUMBERLAND COUNTY, PENNSYLVANIA V. CIVIL ACTION - LAW SAMBHU N. KUNDU, M.D., NO. 99-6832 CENTRAL PENNSYLVANIA OBSTETRICS - GYNECOLOGY, INC., JOSEPH P. ESPOSITO, M.D., and SUSQUEHANNA SURGEONS, LTD., Defendants JURY TRIAL DEMANDED ORDER AND NOW, this ,'77a day of LLCf?[c.o 2003, upon consideration of the Petition for Status Conference of Defendants, Sambhu N. Kundu, M.D. and Central Pennsylvania Obstetrics-Gynecology, Inc., it is hereby ORDERED and DECREED that a status conference will be held before the Honorable q L- feel///1 rI • Ne5S in Courtroom of the Cumberland County Courthouse on 2003, at O ewe/p.m- BY THE COURT: 9? J. ra Cu'v: C ? J FOULKROD ELLIS PROFESSIONAL CORPORATION 1800 Linglestown Road - Suite 305 Attorneys for Defendants: Harrisburg, Pennsylvania 17110 Sambhu N. Kundu, M.D. and Telephone: [7171 213-42 00 Central Pennsylvania Pax, L7171_21.3_4202 Obetetric_s_Gyne_cologl _InQ., DIMITRA SCHILD, Plaintiff V. SAMBHU N. KUNDU, M.D., CENTRAL PENNSYLVANIA OBSTETRICS- GYNECOLOGY, INC., JOSEPH P. ESPOSITO, M.D., and SUSQUEHANNA SURGEONS, LTD., Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 99-6832 JURY TRIAL DEMANDED PETITION FOR STATUS CONFERENCE OF DEFENDANTS, SAMBHU N. KUNDU, M.D. AND CENTRAL PENNSYLVANIA 013STETRICS-GYNECOLOGY, INC. AND NOW, come Defendants, Sambhu N. Kundu, M.D. and Central Pennsylvania Obstetrics-Gynecology, Inc. ("Moving Defendants"), by and through their counsel, Foulkrod Ellis Professional corporation, and respectfully request that this Honorable Court grant a status conference and in support thereof aver as follows: 1. Plaintiff commenced this medical professional liability action by way of Complaint over 31/2 years ago, on December 15, 1999. 2. Although several depositions have occurred since that time, another deposition is currently scheduled and it is anticipated that additional depositions still need to be scheduled. 3. As such, reasonable deadlines are necessary to avoid further delays and to expedite this litigation. 4. Moving Defendants request a status conference in order that deadlines can be set for: • The completion of discovery; • The submission of Plaintiff's expert reports; • Submission of Defendants' expert reports; • Submission of Plaintiff's rebuttal reports (if any) ; • Dispositive motions; and • The scheduling of a trial date. 5. Counsel for Plaintiff and counsel for co-Defendants, Joseph P. Esposito, M.D. and Susquehanna Surgeons, Ltd. concur in Moving Defendants' request for a status conference in this matter. 6. The Honorable Kevin A. Hess has previously ruled upon a Motion of Defendants, Joseph P. Esposito, M.D. and Susquehanna Surgeons, Ltd. to Amend New Matter in this matter. WHEREFORE, Defendants, Sambhu N. Kundu, M.D. and Central Pennsylvania Obstetrics-Gynecology, Inc. respectfully request that this Honorable court set a status conference for purposes of scheduling in the above-captioned matter. Date: By: Respectfully submitted, FOULKROD ELLIS PROFESSIONAL CORPORATION LC :. aiii?, zsquire At or a D. No. 53229 Amon Jayman, Esquire Attorney I.D. No. 85651 2 CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing PETITION FOR STATUS CONFERENCE OF DEFENDANTS, SAMBHU N. KUNDU, M.D. AND CENTRAL PENNSYLVANIA OBSTETRICS-GYNECOLOGY, INC. was served upon counsel of record this 20th day of August, 2003, by depositing said copy in the United States Mail at Harrisburg, Pennsylvania, postage prepaid, first class delivery, and addressed as follows: April L. Strang-Kutay, Esquire Goldberg, Katzman & Shipman, P.C. Strawberry Square 320 Market Street P.O. Box 1268 Harrisburg, PA 17108-1268 Edwin Schwartz, Esquire McKissock & Hoffman, P.C. 2040 Linglestown Road, Suite 302 Harrisburg, PA 17110 l i FOULKROD ELLIS PROFESSIONAL CORPORATION By: /v t Be E. Forbes, Paralegal DIMITRA SCHILD, : IN THE COURT OF COMMON PLEAS Plaintiff : OF CUMBERLAND COUNTY, PENNSYLVANIA V. CIVIL ACTION - LAW SAMBHU N. KUNDU, M.D., NO. 99-6832 CENTRAL PENNSYLVANIA OBSTETRICS- GYNECOLOGY, INC., JOSEPH P. ESPOSITO, M.D., and SUSQUEHANNA SURGEONS, LTD., Defendants JURY TRIAL DEMANDED ORDER AND NOW, this day of , 2003, upon consideration of the Petition for Status Conference of Defendants, Sambhu N. Kundu, M.D. and Central Pennsylvania Obstetrics-Gynecology, Inc., it is hereby ORDERED and DECREED that a status conference will be held before the Honorable in Courtroom of the Cumberland County Courthouse on , 2003, at a.m/p.m. BY THE COURT: FOULKROD ELLIS PROFESSIONAL CORPORATION 1800 Linglestown Road - Suite 305 Attorneys for Defendants: Harrisburg, Pennsylvania 17110 Sambhu N. Kundu, M.D. and Telephone: [717] 213-4200 Central Pennsylvania Fax• [717] 213=4202 Obstetrics-Gynecology. Inc.. DIMITRA SCHILD, Plaintiff V. SAMBHU N. KUNDU, M.D., CENTRAL PENNSYLVANIA OBSTETRICS- GYNECOLOGY, INC., JOSEPH P. ESPOSITO, M.D., and SUSQUEHANNA SURGEONS, LTD., Defendants : IN THE COURT OF COMMON PLEAS : OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 99-6832 JURY TRIAL DEMANDED PETITION FOR STATUS CONFERENCE 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. ("Moving Defendants"), by and through their counsel, Foulkrod Ellis Professional Corporation, and respectfully request that this Honorable Court grant a status conference and in support thereof aver as follows: 1. Plaintiff commenced this medical professional liability action by way of Complaint over 31/2 years ago, on December 15, 1999. 2. Although several depositions have occurred since that time, another deposition is currently scheduled and it is anticipated that additional depositions still need to be scheduled. 3. As such, reasonable deadlines are necessary to avoid further delays and to expedite this litigation. 4. Moving Defendants request a status conference in order that deadlines can be set for: ¦ The completion of discovery; • The submission of Plaintiff's expert reports; • Submission of Defendants' expert reports; • Submission of Plaintiff's rebuttal reports (if any) ; • Dispositive motions; and ¦ The scheduling of a trial date. 5. Counsel for Plaintiff and counsel for co-Defendants, Joseph P. Esposito, M.D. and Susquehanna Surgeons, Ltd. concur in Moving Defendants' request for a status conference in this matter. 6. The Honorable Kevin A. Hess has previously ruled upon a Motion of Defendants, Joseph P. Esposito, M.D. and Susquehanna Surgeons, Ltd. to Amend New Matter in this matter. WHEREFORE, Defendants, Sambhu N. Kundu, M.D. and Central Pennsylvania Obstetrics,-Gynecology, Inc. respectfully request that this Honorable Court set a status conference for purposes of scheduling in the above-captioned matter. Date: By: Respectfully submitted, FOULKROD ELLIS PROFESSIONAL CORPORATION Ldl#hh ].%Ellis, Esquir Att/oripey I .D. No. 53229 AaYcn Lg. Jayman, Esquire Attorney I.D. No. 85651 2 CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing PETITION FOR STATUS CONFERENCE OF DEFENDANTS, SAMBHU N. KUNDU, M.D. AND CENTRAL PENNSYLVANIA OBSTETRICS-GYNECOLOGY, INC. was served upon counsel of record this 20th day of August, 2003, by depositing said copy in the United States Mail at Harrisburg, Pennsylvania, postage prepaid, first class delivery, and addressed as follows: April L. Strang-Kutay, Esquire Goldberg, Katzman & Shipman, P.C. Strawberry Square 320 Market Street P.O. Box 1268 Harrisburg, PA 17108-1268 Edwin Schwartz, Esquire McKissock & Hoffman, P.C. 2040 Linglestown Road, Suite 302 Harrisburg, PA 17110 FOULKROD ELLIS RATION PROFESSIONAL CORPlu'?_-? ` By: t Be E. Forbes, 'Paralegal „ ...? E F Y N ? ? ` S ? i= ? ' U? 4, - i :-. ;? G?'r=? ?? ' .• 3 -' N G ';iii ?? - ? - M fit, v ra S. WALTER FOULKROD, III, ESQUIRE Pa. Supreme Court I.D. No. 01982 LEIGH A.J. ELLIS, ESQUIRE Pa. Supreme Court I.D. No. 53229 ANDREW H. FOULKROD, ESQUIRE Pa. Supreme Court I.D. No. 77394 S. WALTER FOULKROD, IV, ESQUIRE Pa. Supreme Court I.D. No. 65207 COLLEEN E. EHRESMAN, ESQUIRE Pa. Supreme Court Z.D. No. 82482 S. WALTER FOULKROD, III & ASSOCIATES 1800 Linglestown Road - Suite 305 Attorneys for Defendants: Harrisburg, Pennsylvania 17110 SAMBHU N. KUNDU, M.D. and Telephone: [717] 213-4200 CENTRAL PENNSYLVANIA Fax• [17]_213-4202 OBSTETRICS =GYNECOLOG , INC DIMITRA SCHILD, : IN THE COURT OF COMMON PLEAS Plaintiff : OF CUMBERLAND COUNTY, PENNSYLVANIA Nr . SAMBHU N. KUNDU, M.D., CENTRAL PENNSYLVANIA OBSTETRICS- GYNECOLOGY, INC., JOSEPH P. ESPOSITO, M.D and SUSQUEHANNA SURGEONS, LTD. , Defendants . CIVIL ACTION - LAW . NO. 99-6832 . JURY TRIAL DEMANDED NOTICE TO PLEAD TO: Dimitra Schild C/O April L. Strang-Kutay, Esquire Goldberg, Katzman & Shipman, P.C. P.O. Box 1268 Harrisburg, PA 17108-1268 YOU ARE HEREBY NOTIFIED to plead to the enclosed NEW MATTER OF DEFENDANTS, SAMBHU N. KUNDU, M.D. and CENTRAL PENNSYLVANIA OBSTETRICS-GYNECOLOGY, INC. to Plaintiff's Complaint within twenty (20) days from service hereof, or a default judgment may be entered against you. Respectfully submitted, p S. WALTER FOULKROD, 'I & ASSOCIATES Date: // (w By: S. WALTER FO KROD, III E LEIGH A.J. LIS, ESQUIRE S. WALTER FOULKROD, III, ESQUIRE Pa. Supreme Court I.D. No. 01982 LEIGH A.J. ELLIS Pa. Supreme Court I.D. No. 53229 ANDREW H. FOULKROD, ESQUIRE Pa. Supreme Court I.D. No. 77394 S. WALTER FOULKROD, IV, ESQUIRE Pa. Supreme Court I.D. No. 65207 COLLEEN E. EHRESMAN, ESQUIRE Pa. Supreme Court I.D. No. 82482 S. WALTER FOULKROD, III & ASSOCIATES 1800 Linglestown Road - Suite 305 Attorneys for Defendants: Harrisburg, Pennsylvania 17110 SAMBHU N. KUNDU, M.D. and Telephone: (717] 213-4200 CENTRAL PENNSYLVANIA Fax: 717 213-4202 OBSTETRICS=GYNECOLOGY. INC_ DIMITRA SCHILD, IN THE COURT OF COMMON PLEAS Plaintiff OF CUMBERLAND COUNTY, PENNSYLVANIA V. SAMBHU N. KUNDU, M.D., CENTRAL PENNSYLVANIA OBSTETRICS- GYNECOLOGY, INC. JOSEPH P. ESPOSITO, M.D and SUSQUEHANNA SURGEONS, LTD., Defendants CIVIL ACTION - LAW NO. 99-6832 JURY TRIAL DEMANDED ANSWER AND NEW MATTER OF SAMBHU N. KUNDU, M.D. AND CENTRAL PENNSYLVANIA OBSTETRICS-GYNECOLOGY, INC. TO PLAINTIFFS' COMPLAINT 1. Denied. After reasonable investigation, Answering Defendants have insufficient information to either admit or deny the averments of the corresponding paragraph of Plaintiff's Complaint. Strict proof thereof is demanded at trial. 2. Admitted. 3. Admitted in part and denied part. It is admitted that Central Pennsylvania Obstetrics-Gynecology, Inc. ("CPOG") is a business entity with a business address of 890 Poplar Church Road, Suite 530, Camp Hill, Pennsylvania. It is specifically denied that CPOG is a medical entity. To the contrary, CPOG performs functions ancillary to the practice of obstetrics and gynecology by Dr. Kundu. CPOG is not licensed to practice medicine or surgery and therefore cannot supervise, direct or control the manner and nature in which Dr. Kundu practices medicine and surgery. Therefore, CPOG cannot be vicariously liable for the conduct of Dr. Kundu. 4-5. Sambhu N. Kundu, M.D. ("Dr. Kundu") and CPOG, collectively hereinafter referred to as Answering Defendants, are advised by counsel and therefore aver that paragraphs 4 and 5 of Plaintiff's Complaint do not pertain to them and that no answer is required. 6. Admitted in part and denied in part. It is admitted that Mrs. Schild consulted Dr. Kundu for gynecologic care within the several months prior to November 14, 1997. It is specifically denied that Dr. Kundu cared for Mrs. Schild prior to an operative procedure in 1999 or several months prior to November 14, 1999. It is admitted that on June 25, 1997 Mrs. Schild presented to Dr. Kundu's office and said that she would like to get pregnant. Accordingly, oral contraceptives which had been taken over the years were discontinued. 7-24. Denied pursuant to Pa.R.C.P. 1029(e). 2 COUNT I - NEGLIGENCE DIMITRA SCHILD V. DR. KUNDU 25. Dr. Kundu herein incorporates by reference answers contained in paragraphs 1-24 above as though the same were fully set forth herein and at length. 26. Admitted. 27. Denied. It is specifically denied that Dr. Kundu was negligent, either generally or specifically as alleged in subparagraphs (i) through (yii). Dr. Kundu is advised by counsel and therefor avers that the corresponding allegations of Plaintiff's Complaint are deemed to be denied by operation of law pursuant to Pa.R.C.P. 1029(e) and that no further answer is required. By way of further answer, at all times relevant hereto Dr. Kundu complied with the applicable standard of care. 28. Denied. It is specifically denied that D=. Kundu was negligent or that his conduct caused or contributed to the injuries, damages and losses as alleged in paragraph 28 of Plaintiff's Complaint. WHEREFORE, Sambhu Kundu, M.D. demands judgement in his favor and against Plaintiff. COUNT II - BATTERY DIMITRA SCHILD v. DR. KUNDU 29. Dr. Kundu herein incorporates by reference answers contained in paragraphs 1-28 above as though the same were fully set forth herein and at length. 30. Denied. It is specifically denied that D3:- Kundu committed a battery. It is specifically denied that: Dr. Kundu 3 failed to inform the Plaintiff of the particular risk of damage to her bowel in connection with laparoscopy to rule out ectopic pregnancy. It is further specifically denied that Dr. Kundu failed to inform the patient and her husband of a specific risk and alternative to manage her clinical presentation. Dr. Kundu, the patient and her husband thoroughly discussed the risks and complications of surgery as well as the alternatives to the proposed surgery which a reasonably prudent patient would want to be informed of under like circumstances and both the patient and her husband willfully consented. 31. Denied. It is specifically denied that Dr. Kundu failed to obtain an informed consent. To the contrary, he obtained a willful and knowing informed consent fully commensurate with Pennsylvania law. It is specifically denied that Plaintiff consented to a surgical procedure without having explained to her the risks and complications of surgery and the alternatives to surgery, all of which a reasonably prudent patient would want to be informed of under like circumstances. Answer to paragraph 30 is herein incorporated by reference. 32-33. It is specifically denied that Dr. Kundu either failed to obtain a valid informed consent or that his conduct caused or contributed to the injuries and damages as alleged in the corresponding paragraphs of Plaintiff's Complaint. WHEREFORE, Sambhu Kundu, M.D. demands judgement in his favor and against Plaintiff. 4 COUNT III - NEGLIGENCE DIMITRA SCHILD V. CENTRAL PENNSYLVANIA OBSTETRICS- GYNECOLOGY. INC. 42. CPOG herein incorporates by reference answers contained in paragraphs 1-41 above as though the same were fully set forth herein and at length. 43. Denied. It is specifically denied that CPOG is a medical business entity or that, as a business corporation, it is vicariously liable for the conduct of Dr. Kundu. It is specifically denied that Dr. Kundu is an agent, servant, employee or otherwise acting for or on behalf of CPOG. By way of further answer, the answer contained in paragraph 3 is herein incorporated by reference. It is specifically denied that CPOG was negligent as alleged in paragraphs (i) through (vi) of Plaintiff's Complaint. CPOG is advised by counsel and therefor avers that corresponding allegations of negligence are deemed to be denied by operation of law pursuant to Pa.R.C.P. 1029(e) and that no further answer is required. 44. Denied pursuant to Pa.R.C.P. 1029(e). WHEREFORE, Central Pennsylvania Obstetrics-Gynecology, Inc. demands judgement in its favor and against Plaintiff. COUNT IV - NEGLIGENCE DIMITRA SCHILD v JOSEPH P. ESPOS ITO, M.D. 45. Answering Defendants herein incorporate by reference answers contained in paragraphs 1-44 above as though the same were fully set forth herein and at length. 5 46-48. Answering Defendants are advised by counsel and therefor aver that the corresponding allegations of Plaintiff's Complaint do not pertain to them and that no answer is required. WHEREFORE, Sambhu Kundu, M.D. and Central Pennsylvania Obstetrics-Gynecology, Inc. demand judgement in their favor and against Plaintiff. COUNT V - NEGLIGENCE DIMITRA SCHILD v. SUSOUEHANNA SURGEONS. LTD. 49. Answering Defendants herein incorporate by reference answers contained in paragraphs 1-48 above as though the same were fully set forth herein and at length. 50-51. Answering Defendants are advised by counsel and therefor aver that the corresponding allegations of Plaintiff's Complaint do not pertain to them and that no answer is required. WHEREFORE, Sambhu Kundu, M.D. and Central Pennsylvania Obstetrics-Gynecology, Inc.'demand judgement in their favor and against Plaintiff. NEW MATTER 52. Facts set forth in the foregoing answers to Plaintiff's Complaint are incorporated herein by reference as though fully set forth at length. 53. At no time relevant hereto was Dr. Kundu an agent, servant, employee or otherwise acting for or on behalf of any other Defendant in this action or any other natural person, partnership, corporation or other legal entity. 54. At no time relevant hereto was any other natural person, partnership, corporation or other legal entity acting or 6 serving as an agent, servant, employee or otherwise for or on behalf of Dr. Kundu. 55. 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.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 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. 56. In the event 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. 57. In the alternative, all care and treatment rendered to Plaintiff by the employees,. agents, apparent agents and/or servants of Central Pennsylvania Obstetrics-Gynecology, Inc. was appropriate, reasonable and within the applicable standard of care. 58. At all times relevant hereto Dr. Kundu acted within and followed the precepts of a school of thought followed by a 7 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. 59. Plaintiff assumed.the risk of her injuries and this action is therefore barred by the Doctrine of Assumption of Risk. 60. Dr. Kundu believes and therefore avers that evidence accumulated through discovery and provided at trial may establish Plaintiff was contributorily or comparatively negligent, and in order to protect the record, Dr. Kundu hereby pleads contributory and comparative negligence as an affirmative defense. 61. Dr. Kundu is entitled to contribution in accordance with the Pennsylvania Comparative Negligence Act, 42 P.S. §7102. 62. In the event that it is determined that Dr. Kundu was negligent with regard to any of the allegations contained in, and with respect to Plaintiffs Complaint, said allegations being specifically denied, said negligence was superseded by the intervening negligent acts of other persons, parties and/or organizations other than Answering Defendants and over whom said Answering Defendants had no control, right or responsibility and, therefore, Answering Defendants are not liable. 63. At all times relevant hereto, Dr. Kundu was a competent and qualified physician acting in compliance with the applicable standard of care. 64. To the extent that the evidence may show that other persons, partnerships, corporations or other legal entities 8 caused or contributed to the injuries or exacerbation of the pre- existing condition of Plaintiff, then the conduct of the Answering Defendants was not the legal cause of such conditions or injuries. 65. Any acts or omissions of Answering Defendants alleged to constitute negligence were not substantial factors contributing to and the injuries and damages alleged in Plaintiff's Complaint. 66. Whatever injuries and damages, if any, 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, then Answering Defendants are not liable, and Plaintiff may not recover against them. 67. 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, Plaintiff may not recover against them. 68. The acts or omissions of others, and not Answering Defendants, constituted intervening and/or superseding causes; of the injuries and/or damages alleged to have been sustained by Plaintiff and Answering Defendants cannot, therefore, pursuant to Pennsylvania law, be held liable for the alleged injuries to Plaintiff . 69. Plaintiff was advised of the alternatives to surgery, the nature of the proposed procedure, and the risks and 9 :I i I I complications that a reasonable patient would consider to be material to the decision of whether or not to undergo the procedure, and Plaintiff willingly and knowingly consented to the procedure. 70. This action is barred by the Statute of Limitations, 42 Pa.C.S.A. §5524 as to each of the Answering Defendants. I 71. Answering Defendants assert all defenses and immunities afforded under the Health Care Services Malpractice Act, as I amended. WHEREFORE, Sambhu N. Kundu, M.D. and Central Pennsylvania Obstetrics-Gynecology, Inc., demand judgment in their favor and against Plaintiff. Respectfully submitted, S. WALTER FOULKROD, III & ASSOCIATES Date: ?j GV BY: ?- ??-- S. WA1,TF.R F(1TTT nnn TTT Leigh A.J.EJolvylvania S __y Attorneys fSambhu N. Kundu, M.D. and Central Pen Obstetrics- Gynecology, Inc. 10 ?? V E R I F I C A T I O N I, Sambhu N. Kundu, M.D., individually and behalf of Central Obstetrics-Gynecology, Inc., have read the foregoing Answer and New Matter to Plaintiff's Complaint which have been drafted by counsel on my behalf. The information contained therein is based upon information provided to counsel but the wording and phraseology is not mine. The information contained therein 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. §4904, relating to unsworn fabrication to authorities which provides that, if I knowingly make false averments, I may be subject to criminal penalties. // A 1 17 17- Date: ??r? 9AMBHU N. KUNDU, M.D. (Individually and on behalf of Central Pennsylvania obstetrics- Gynecology, Inc.) P1 CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing ANSWER AND NEW MATTER TO PLAINTIFFS COMPLAINT was served upon counsel of record this 15th day of September, 2000, by depositing said copy in the United States Mail at Harrisburg, Pennsylvania, postage prepaid, first class delivery, and addressed as follows: April L. Strang-Kutay, Esquire Goldberg, Katzman & Shipman, P.C. 320 Market Street Harrisburg, PA 17108-1268 Paul E: Scanlan, Esquire Duane, Morris & Heckscher P.O. Box 1003 Harrisburg, PA 17108-1003 S. WALTER FOULKROD, III & ASSOCIATES By: l Lind L. Reidenbau Secretary ,r) r - APHI L Strang-Kutay, Esquire I.D. No. 46728 Coldbert, Katmun & SNPmaty P.C. P.O. Box 1268 Ilurisburg. PA 17108.1268 (717) 234-4161 Attorney for Plaintiff DIMITRA SCMLD IN THE COURT OF COMMON PLEAS Plaintiff CUMBERLAND COUNTY, PA V. SAMBHU N. KUNDU, M.D., CENTRAL PENNSYLVANIA OBSTETRICS- GYNECOLOGY, INC., JOSEPH P. ESPOSITO, M.D., and SUSQUEHANNA SURGEONS, LTD. Defendants NO. 99-6832-Civil CIVIL ACTION - LAW JURY TRIAL DEMANDED NOTICE YOU HAVE BEEN SUED IN COURT. If you wish to defend against the claims set forth in the following pages, you must take action within twenty (20) days after this Complaint and Notice are served, by entering a written appearance personally or by attorney and filing in writing with the Court your defenses or objections to the claims set forth against you. You are warned that if you fail to do so the case may proceed without you and a judgment may be entered against you by the Court without further notice for any money claimed in the Complaint or for any other claim or relief requested by the Plaintiff. You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. Cumberland Bar Association 2 Liberty Avenue Carlisle, PA 17013 (717) 249-3166 NOTICIA Le han demandado a usted en la corte. Si usted quiere defenderse de estas demandas expuestas en las paginas siguientes, usted tiene viente (20) dias de plazo al partir de la fecha de la demanda y la notificacion. Usted debe presentar una apariencia escrita o en persona o por abogado y archivar en la corte en forma escrita sus defensas o sus objectiones a las demandas en contra de su persona. Sea adisado que si usted no se defiende, la sin previo aviso o notificacion y por cualquier quja o puede perder dinero o sus propiedades o otros derechos importantes para usted. LLEVE ESTA DEMANDA A UN ABOGADO IMMEDIATAMENTE. SI NO TIENE ABOGADO O SI NO TIENE EL DINERO SUFICIENTE DE PAGAR TAL SERVICIO, VAYA EN PERSONA O LLAME POR TELEFONO A LA OFICINA CUYA DIRECCION SE ENCUENTRA ESCRITA ABAJO PARA AVERIGUAR DONDE SE PUEDE CONSEGUIR ASISTENCIA LEGAL. Cumberland Bar Association 2 Liberty Avenue Carlisle, PA 17013 (717) 249-3166 April L. Strang-Kntay, Lsquire I.U. No. 46728 Goldberg, Katzman & Shipman, P.C. P.O. Box 1268 Ilarrisburg, PA 17108-1268 (717) 234-1161 Allorncy for Plaintiff DIMITRA SCHILD IN THE COURT OF COMMON PLEAS Plaintiff CUMBERLAND COUNTY, PA V. SAMBHU N. KUNDU, M.D., CENTRAL NO. 99-6832-Civil PENNSYLVANIA OBSTETRICS- GYNECOLOGY, INC., CIVIL ACTION - LAW JOSEPH P. ESPOSITO, M.D., and JURY TRIAL DEMANDED SUSQUEHANNA SURGEONS, LTD. Defendants COMPLAINT AND NOW, comes the plaintiff, Dimitra Schild, by her attorneys, Goldberg, Katzman and Shipman, P.C., who respectfully represent as follows: That the plaintiff, Dimitra Schild, is an adult individual who resides at 5005 Seneca Drive, Mechanicsburg, Cumberland County, Pennsylvania. 2. That the defendant, Sambhu N. Kundu, M.D., is a physician licensed to practice medicine in the Commonwealth of Pennsylvania, who holds himself out as a specialist in obstetrics and gynecology, with his principle place of business in Cumberland County, located at 890 Poplar Church Road, Suite 503, Camp [-till, PA. 3. That the defendant, Central Pennsylvania Obstetrics-Gynecology, Inc.,is a medical business entity with its business address at 890 Poplar Church Road, Suite 503, Camp Hill, PA. 4. That the defendant, Joseph P. Esposito, M.D., is a physician and surgeon licensed practice medicine in the Commonwealth of Pennsylvania, with a business address at 532 North Front Street, Wormleysburg, PA. 5. That the defendant, Susquehanna Surgeons, LTD., is a medical business entity with its business address at 532 North Front Street, Wormleysburg, Cumberland County, PA. 6. That plaintiff routinely relied upon Dr. Kundu for gynecologic advice and treatment, and had, within the past several months prior to her November 14, 1999 operative procedure„ consulted with Dr. Kundu relative to her wishes to become pregnant and start a family with her husband. 7. On November 12, 1997, Plaintiff experienced severe abdominal cramps and vaginal bleeding, and was seen by her gynecologic physician, Dr. Kundu, at the Harrisburg Hospital for this complaint. 8. In tests ordered by Dr. Kundu to evaluate her status, her beta-sub unit was 1850 milliunits/ML on November 12, 1997, and a pelvic sonogram on the same date revealed an intrauterine pregnancy represented by a sac in the uterus. 9. The ultrasound test performed on November 12, 1997 also indicated the presence of an ovarian cyst, which was consistent with her right lower abdominal pain complaints. 10. On November 12, 1997, according to Dr. Kundu's instructions, site was sedated and advised to return for further tests in 48 hours. IL A second test for pregnancy was ordered by Dr. Kundu on or about November 14, 1997, with a sonogram which indicated an intrauterine sac, now reduced, and blood tests which indicated a beta sub unit of 1928 milliunit/ML. Due to her continued heavy bleeding and pain, Dr. Kundu recommended a D&C with possible laparoscopy for suspected intrauterine or ectopic pregnancy. 12. During the operative procedure on November 14, 1997, Plaintiff underwent D&C, which resulted in endometrial currettings which were examined grossly by Dr. Kundu. 13. At the conclusion of the D&C procedure, and prior to the pathologist's report on the endometrial currettings, Dr. Kundu proceeded with a video laparoscopy of the abdomen, noting a right corpus luteum ovarian cyst which was ablated by Dr. Kundu. 14. At the conclusion of the laparoscopic portion of the operation, a piece of bowel protruded through the umbilical incision; Dr. Kundu attempted to reduce the portion of bowel digitally but was unsuccessful. 15. On November 14, 1997, while the Plaintiff was still in the operating room, Dr. Esposito was called to assist in the reduction of the bowel by further opening of the fascial incision, manipulating and reducing the bowel segment. 16. At the point following her surgery, with the unanticipated manipulation of her extruded bowel, Plaintiff was admitted to the hospital for observation. 17. Over the next two days, the Plaintiff complained of extreme pain and did not improve medically. 18. An X-ray of her abdonun performed on November 16, 1997 demonstrated massive pneuntoperitoncutn, raising the suspicion of perforated viscus. 19. On November 16, 1997, an exploratory operation for suspected ruptured viscus was undertaken by Dr. Graf, with the finding of three separate small perforations in the ileum, hemoperitoneum with bleeding right ovarian cyst. 20. The surgery of November 16, 1997 was necessary to correct the occurrences during the November 14, 1997 surgery, including debridement of the abdominal laparotomy wound, evacuation of the intraperitoneal blood, small bowel resection with an end-to-end stapled anastomosis and suture ligation of the bleeding right ovary. 21. Postoperatively, the Plaintiff had a stormy course, was slow to improve, and was not discharged to home until November 25, 1997. 22. Following her discharge from the hospital on November 25, 1997, Plaintiff has suffered a long period of debility; she required continued medical treatment for weakness, electrolyte imbalance, anemia, and continued bowel complications, including extreme abdominal pain and tenderness, and scarring. 23. During the period of long recuperation from the November 1997 surgery, her marriage collapsed, and she moved into her mother's home at the end of January, 1998. 24. Plaintiff continues to suffer from bowel dysfunction which has been diagnosed as due to her extensive adhesions. She continues to require medical follow up, medication, and severe restriction in her activities. COUNT I NEGLIGENCE Dimitra Schild v. Dr. Kundu 25. Paragraphs 1 through 24 are incorporated herein by reference as though fully set forth. 26. Defendant, Dr. Kundu, holds himself out to be a medical provider who possesses skill and knowledge in his specialty (i,e. gynecology and obstetrics), and holds himself out to the public as so qualified. 27. Dr. Kundu negligently provided medical care to Dimitra Schild as follows: Failed to rely on the diagnostic information suggestive of intrauterine pregnancy, as indicated in the two sonograms performed prior to the November 14, 1997 surgery; ii. Proceeded with laparoscopy prior to learning the results of the pathology report on the endometrial tissue, including presence of chorionic villi, removed during the D&C; iii. Performed a laparoscopy which was not indicated by any gynecologic findings; iv. During performance of the unnecessary laparoscopy, caused or contributed to the cause of the perforated bowel in three separate areas; V. At the conclusion of the unnecessary laparoscopy, failed to carefully inspect, notice and correct the multiple bowel perforations, exposing the plaintiff to increased risks from infection and further surgery; vi. During performance of the unnecessary laparoscopy, evacuated an ovarian cyst which did not require operative intervention, and which bled into the peritoneal area necessitating further surgical risk, attention, drainage and suturing on November 16, 1997; vii. During performance of the unnecessary laparoscopy, withdrew the instruments in such a manner that a loop of bowel was entrapped. 28. As a direct and proximate result of the conduct set forth above, Dimitra Schild has suffered as follows: i. Ruptured viscus, with perforation in three separate areas and peritonitis; ii. A second surgery, performed on November 16, 1997 which was necessitated by the actions of Dr. Kundu during the November 14, 1997 laparoscopy; iii. Extensive bowel adhesions, bowel dysfunction and scarring, and extensive external abdominal scarring. iv. Extended pain, suffering, upset and worry; V. Additional medical procedures; vi. Collapse of her marriage; vii. Unnecessary medical costs, both in the past and in the future; viii. Humiliation and embarrassment; ix. incidental expenses, including medications, diet restrictions, and continued medical care; and X. Past and future loss of income, including loss of income potential. WHEREFORE, Dimitra Schild claims damages from the defendant in excess of the limits of arbitration, including interest and attorney's fees. COUNT II BattC Dimitra Schild Y. Dr. Kundu 29. Paragraphs I through 28 above are incorporated herein by reference. 30. That the Defendant, Dr. Kundu, committed a battery in his treatment of plaintiff when he: Failed to inform plaintiff of the particular risk of damage to her bowel in conjunction with the laparoscopy to rule out ectopic pregnancy; and ii. Failed to acquaint the plaintiff with the specific risks and alternatives to manage her concluding pregnancy, without the additional risks of laparoscopic surgery. 31. That as a result of Dr. Kundu's conduct as described in the proceeding paragraph of this Complaint, plaintiff underwent an unauthorized surgical procedure through which her bowel was damaged, causing loss of normal gastrointestinal function and scarring, both internal and external. 32. That as a result of Dr. Kundu's conduct as described in the paragraph 30. above, plaintiff has been'caused to incur additional medical expenses and may incur further medical expense in the future to treat her adherent bowel. 33. That as a result of Dr. Kundu's conduct as described in the paragraph 30 above, plaintiff has been caused to sustain, and will, in the future, continue to sustain pain, suffering, inconvenience, emotional distress, loss of income, embarrassment and loss of life's pleasures. Wherefore, plaintiff demandsjudgmcnt against dcf'endant, Dr. Kundu, for a sum in excess of $25,000, together with interest and costs. Count 111 Nerzlieence Dimitra Schild v. Central Pennsylvania Obstetrics-Gynecology Inc. 42. Paragraphs 1 through 41 are incorporated herein by reference as though fully set forth. 43. Central Pennsylvania Obstetrics-Gynecology, Inc., a medical business entity, through the professional conduct of Dr. Kundu, as an employee, agent or ostensible agent of that practice, negligently provided medical care to Dimitra Schild as follows: Failed to rely on the diagnostic information suggestive of intrauterine pregnancy, as indicated in the two sonograms performed prior to the November 14, 1997 surgery; ii. Proceeded with laparoscopy prior to learning the results of the pathology report on the endometrial tissue, including presence of chorionic villi, removed during the D&Q iii. Performed a laparoscopy which was not indicated by any gynecologic findings; iv. During performance of the unnecessary laparoscopy, perforated the bowel in three separate areas; During performance of the unnecessary laparoscopy, evacuated an ovarian cyst which did not require operative intervention, and which bled into the peritoneal area and required further surgical attention, drainage and suturing on November 16,1997; and vi. During performance of the unnecessary laparoscopy, withdrew the instruments in such a manner that a loop of bowel was entrapped. ,:gym 44. As a direct and proximate result of the conduct set forth above, Dimitra Schild has suffered as follows: i. Ruptured viscus, with perforation in three separate areas; ii. A second surgery, performed on November 16, 1997 which was a direct result of the problems encountered during the laparoscopy; iii. Extensive bowel adhesions, bowel dysfunction, extensive abdominal scarring and pain. iv. Extended pain, suffering, upset and worry;additional medical procedures; V. Collapse of her marriage; vi. Unnecessary medical bills, both in the past and in the future; vii. Humiliation and embarrassment; and viii. Incidental expenses, including medications, diet restrictions, and continued medical care; and past and future loss of income, including loss of income potential. WHEREFORE, Dimitra Schild claims damages from the defendant in excess of the limits of arbitration, including interest and attorney's fees. Count IV Ncelieence Dimitra Schild v. Joseph P Esposito M.D. 45. Paragraphs I through 44 are incorporated herein by reference as though fully set forth. 46. That the Defendant, Dr. Esposito, holds himself out to be a medical provider who possesses skill and knowledge in his specialty (i.e. general surgery), and holds himself out to the public as so qualified. 47. Dr. Esposito negligently provided medical care to Dimitra Schild as follows: i. failed to adequately inspect Plaintiffs bowel during the surgical procedure of November 14,1997 such that the bowel perforations were not diagnosed in a timely manner. 48. As a direct and proximate result of the conduct set forth above, Dimitra Schild has suffered as follows: i. delay in the diagnosis of the multiple perforations of the bowel; ii. a second operative procedure performed on November 16, 1997; iii. Extensive bowel adhesions, bowel dysfunction and scarring, and extensive external abdominal scarring. iv. Extended pain, suffering, upset and worry; V. Additional medical procedures; vi. Collapse of her marriage; vii. Unnecessary medical costs, both in the past and in the future; viii. Humiliation and embarrassment; and ix. Incidental expenses, including medications, diet restrictions, and continued medical care. WHEREFORE, Dimitra Schild claims damages from the Defendant in excess of the limits of arbitration, including interest and attorneys' fees. CountV Neeliaence Dimitra Schild v. Susquehanna Surgeons, Ltd. 49. Paragraphs I through 48 are incorporated herein by reference as though fully set forth. 50. Susquehanna Surgeons, Ltd., a medical business entity, through the professional conduct of Dr. Esposito, as an employee, agent or ostensible agent of that practice, negligently provided medical care to Dimitra Schild as follows: i. failed to adequately inspect Plaintiff's bowel during the surgical procedure of November 14, 1997 such that the bowel perforations were not diagnosed in a timely manner. 51. As a direct and proximate result of the conduct set forth above, Dimitra Schild has suffered as follows: i. delay in the diagnosis of the multiple perforations of the bowel; ii. a second operative procedure performed on November 16, 1997; iii. Extensive bowel adhesions, bowel dysfunction and scarring, and extensive external abdominal scarring. iv. Extended pain, suffering, upset and worry; V. Additional medical procedures; vi. Collapse of her marriage; vii. Unnecessary medical costs, both in the past and in the future; viii. Humiliation and embarrassment; and ix. Incidental expenses, including medications, diet restrictions, and continued medical care. WHEREFORE, Dimitra Schild claims damages from Defendant in excess of the limits of arbitration, $25,000 including interest and attorney's fees. Respectfully submitted, By:Z4? April L: Strang-Kuto, Esgalre Goldberg, Katzman & Shipman, P.C. 320 Market Street Harrisburg, PA 17108-1268 (717) 234-4161 Attorney for Plaintiff Date: IVA$"" 32823.1 I hereby acknowledge that I have read the foregoing document and that the facts stated herein are true and correct to the best of my knowledge, information and belief. The undersigned understands that the statements therein are made subject to the penalties of 18 Pa. C.S. Section 4904 relating to unsworn falsifications to authorities. QijtZrnal Schild Date: 12 Jlfijq? CERTIFICATE OF SERVICE I hereby certify that I served a copy of the foregoing document upon the person (s) indicated below by depositing a copy of the same in the United States mail, postage prepaid, at Harrisburg, Pennsylvania and addressed as follows: Paul E. Scanlan, Esquire Duane, Morris & Heckscher PO Box 1003 Harrisburg, PA 17108-1003 Attorney for Defendants Esposito and Susquehanna Surgeons Sambhu N. Kundu, M.D. Central PA Obstetrics-Gynecology, Inc. 890 Poplar Church Road Camp Hill, PA 17011 GOLDBERG, KATZMAN & SHIPMAN, P.C. BY: JFfy/ T A ril Stra -Kutay, Esquire Attorney for Plaintiff Date: is ?:. April L. Strang-Kutay, Esquire ID # 46728 GOLDBERG, KATZMAN & SHIPMAN, P.C. P.O. Box 1268 Harrisburg, PA 17108-1268 (717) 234-4161 Fax (717) 234-6810 Attorneys for Plaintiff DIMITRA SCHILD IN THE COURT OF COMMON PLEAS Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA VS. NO. SAMBHU N. KUNDU, M.D., CENTRAL PENNSYLVANIA CIVIL ACTION - LAW OBSTETRICS-GYNECOLOGY, INC., JOSEPH P. ESPOSITO,: JURY TRIAL DEMANDED M.D. & SUSQUEHANNA SURGEONS, LTD., Defendants PRAECIPE TO THE PROTHONOTARY: Please issue Writs of Summons against Sambhu N. Kundu, M.D. and Central Pennsylvania Obstetrics-Gynecology, Inc., at 890 Poplar Church Road, Camp Hill, PA 17011; and Joseph P. Esposito, M.D. and Susquehanna Surgeons, Ltd. at 523 North Front Street, Wormlysburg, PA 17043 advising them that an action has been commenced against them. Respectfully submitted, GOLDBER?G/, KATTZM?AN &&SSHIIPMAN, P.C. BY: 1. '' / C lF?v 1 A ril L St ang-Kutay, Esquire ID#: 46728 P.O. Box 1268 Harrisburg, PA 17108-1268 (717) 234-4161 9 Attorney for Plaintiff Date: 33147.1 } C." ti (,! ; UC L - 7 ? L? V C?) L: O ti) '.J v O SZS T 1?^VVV ?l W , Commonwealth of Pennsylvania County of Cumberland Dimitra Schild VS. Sambhu N. Kundu, M.D. and Central Pennsylvania Obstetrics-Gynecology, Inc. 890 Poplar Church Rd. Camp Hill, PA 17011 and Joseph P. Esposito, M.D. and Susquehanna Surgeons, Ltd. Court of Common Pleas 523 North Fron St. 6832 Civil Wormlysburg, PA 17043 No. ----9--9-_------------------------------ 19"--- Civil Action _ Law To ___Sambhu N,_Kundu,_M_D._ Central RQUnsylvania Obstetrics-Gynecology, Inc. Joseph P. Esposito, M.D. & Susquehanna Surgeons, LTD. You are hereby notified that ------------------------------------- ------- Pi-sutrs3_SchilcL------------------- ---------- -------- the Plaintiff ha s commenced an action in _8ival--ACt3or}--- w-------------'---------" against you which you are required to defend or a default judgment may be entered against you. (SEAL) --- his _B._S,ons;------------------ Prothonotary Date November 10,------------ 19-99 By ---Y O ca-- ------- ---------- - Deputy (_A . U w c ? N m t 1 ; • W N I I Ul >. 1 W "? N O i i 10 m ri a 4-J 4-1 ' ' N £ o Ul 10 Ci i 10 1 1 r i ro roo?IC a C ?cc?cw? I u Cl J ID N°N +pP co >; J ra x c 1 a o o; C-4C 4iJNN o W ; ri 1 O S y Ul W Ul I •ri I U) r .-1 t I ' U , I N W U Ul 7 I 2 •H O N U) I W 1 U I m d V' X M >I M N j l O I I C N i i 7 Ip . ID .. Ul Fi `? 00i A m , ?i r O ro• x 1 , I ?j E C N U I > I r"I N O rl '1'I rt ? U) Cl) c??¢Hax--a 1 1 ; , 1 I 1 1 1 , I 1 t. SHERIFF'S RETURN - REGULAR CASE NO: 1999-06832 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND SCHILD DIMITRA VS. KUNDU SAMBHU N MD ET AL SHANNON SUNDAY , Sheriff or Deputy Sheriff of CUMBERLAND County, Pennsylvania, who being duly sworn according to law, says, the within WRIT OF SUMMONS was served upon KUNDU SAMBHU N M D the defendant, at 13:10 HOURS, on the 22nd day of November 1999 at 890 POPLAR CHURCH ROAD CAMP HILL, PA 17011 CUMBERLAND County, Pennsylvania, by handing to GEORGIA WEBER (SECRETARY) a true and attested copy of the WRIT OF SUMMONS and at the same time directing Her attention to the contents thereof. Sheriff's Costs: So answers ,d// Docketing 18.00 Service 6.2071Pr??<'C?2 Affidavit .00 Surcharge 8.00 omas ine, Sheriff $32.20-GOLDBERGG, KATZ/MAN & SHIPMAN 11/231999 by ?j Al /1 m rl /rn /A_M e u ' e i ?T Sworn and subscribed to before me this ?3 rt' day of l Qc o, ?w 19q q A. D. rounonouar SHERIFF'S RETURN - REGULAR CASE NO: 1999-06832 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND SCHILD DIMITRA vs. KUNDU SAMBHU N MD ET AL SHANNON SUNDAY , Sheriff or Deputy Sheriff of CUMBERLAND County, Pennsylvania, who being duly sworn according to law, says, the within WRIT OF SUMMONS was served upon CENTRAL PENNSYLANIA OBSTETRICS -GYNECOLOGY INC the defendant, at 13:10 HOURS, on the 22nd day of November 1999 at 890 POPLAR CHURCH ROAD CAMP HILL, PA 17011 CUMBERLAND County, Pennsylvania, by handing to GEORC-IA WEBER (SECRETARY) a true and attested copy of the WRIT OF SUMMONS and at the same time directing Her attention to the contents thereof. Sheriff's Costs: So answers: Docketing 6.00 Service 00 ??y2 Affidavit .00 Surcharge 8.00 tZmas ine, 5 eri -1O/2BERG KATZMAN & SHIPMAN P by ? mir?Jrn ? . ?tl? epu y 5 eri Sworn and subscribed to before me this /. 6? day of 19?G A.D. rocnonotary SHERIFF'S RETURN - REGULAR CASE NO: 1999-06832 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND SCHILD DIMITRA VS. KUNDU SAMBHU N MD ET AL SHANNON SUNDAY Sheriff or Deputy Sheriff of CUMBERLAND County, Pennsylvania, who being duly sworn according to law, says, the within WRIT OF SUMMONS was served upon ESPOSITO JOSEPH P M D the defendant, at 13:20 HOURS, on the 22nd day of November 1999 at 523 NORTH FRONT STREET WORMLYSBURG, PA 17043 CUMBERLAND County, Pennsylvania, by handing to MARY BETH HAMACHER (SUPERVISOR) a true and attested copy of the WRIT OF SUMMONS and at the same time directing Her attention to the contents thereof. Sheriff's Costs: So answers: Docketing 6.00 Service 6.20 Affidavit .00 ?. Surcharge 8.00 x. 7 omfi as Aline, Seri $20.20 101I23ERG, KATZMAN & SHIPMAN b lj . 5 ryrt,?-A-u y Z LLnnu ?Upu?y Sworn and subscribed to before me this /3tt? day of 19 (9 A.D. rocnonor-ar i -- CASE NO: 1999-06832 P SHERIFF'S RETURN - REGULAR COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND SCHILD DIMITRA VS. KUNDU SAMBHU N MD ET SHANNON SUNDAY , Sheriff or Deputy Sheriff of CUMBERLAND County, Pennsylvania, who being duly sworn according to law, says, the within WRIT OF SUMMONS was served upon SUSQUEHANNA SURGEONS LTD the defendant, at 13:20 HOURS, on the 22nd day of November 1999 at 523 NORTH FRONT STREET WORMLYSBURG, PA 17043 CUMBERLAND County, Pennsylvania, by handing to MARY BETH HAMACHER a true and attested copy of the WRIT OF SUMMONS and at the same time directing Her attention to the contents thereof. Sheriff's Costs: Docketing 00 6 So answer ,y /''? ?` . Service .00 Affidavit .00 / Surcharge 8.00 omas 1ne, eri $14.0u GOLDBERG9§9KATZMAN 11/23/1 & SHIPMAN by j epuu S iFerif-I- Sworn and subscribed to before me this /9 r day of /?}rc?,,,,(?? 19 99 A. D. \ 61 / ro ono ar April L Swang-Kutay, rsquire I.D. No. 46728 Coldhcrg, Kalman & Shlpuum, l'.C. 11.0. Box 1268 I larrisburg, PA 17108-1268 (717) 274-1161 Atlomcy lbr Plaintiff DIMITRA SCHILD Plaintiff' V. SAMBHU N. KUNDU, M.D., CENTRAL PENNSYLVANIA OBSTETRICS- GYNECOLOGY, INC., JOSEPH P. ESPOSITO, M.D., and SUSQUEHANNA SURGEONS, LTD. Defendants IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PA NO. 99-6832-Civil CIVIL ACTION - LAW JURY TRIAL DEMANDED ANSWER TO NEW MATTER 53. Plaintiff is without knowledge of information sufficient to admit or deny the corresponding averments in Defendant's New Matter. 54. Plaintiff is without knowledge of information sufficient to admit or deny the corresponding averments in Defendant's New Matter. 55. Paragraph 55 of Defendant's New Matter contains a conclusion of law to which no answer is deemed to be required . To the extent that an answer is required, a denial is made. 56. Paragraph 56. of Defendant's New Matter contains a conclusion of law to which no answer is deemed to be required . To the extent that an answer is required, a denial is made. 57. Denied. jI i 58. Denied. 59. Denied. 60. Denied. 61. Paragraph 61 of Defendant's New Matter contains a conclusion of law to which no answer is deemed to be required . To the extent that an answer is required, a denial is made. 62. Denied. 63. Denied. 64. Denied. 65. Denied. 66. Denied. 67. Denied. 68. Denied. 69. Denied. 70. Denied. 71. Paragraph 71 of Defendant's New Matter contains a conclusion of law to which no answer is deemed to be required . To the extent that an answer is required, a denial is made. Date: C/// J/ y Respectfully submitted, Goldberg, Katzman & Shipman, P.C. By: . - April L. trang-Kutay, Esqu r CERTIFICATE OF SERVICE I hereby certify that I served a copy of the foregoing document upon the person(s) indicated below by depositing a copy of the same in the United States mail, postage prepaid, at Harrisburg, Pennsylvania and addressed as follows: Paul E. Scanlan, Esquire Duane, Morris & Heckscher PO Box 1003 Harrisburg, PA 17108-1003 Attorney for Defendants Esposito and Susq S. Walter Foulkrod, III, Esquire 1800 Linglestown Rd., Suite 305 Harrisburg, PA 17110 Attorney for Defendant, Sambhu N. Kundu, Date: GOLDBERG, KA BY: /c.. 1.t?t Ap)fi1 S Attorne CL' ?' CV F =' ?. ? .r ??! ?J 'r ` _ , 1 J C-? ' ?- .:/) C?; ,1 '-? :? CL i?.i ;y V: - - a7 .., :_) L} DUANE MORRIS I.I.P BY: Paul E. Scanlan, Esquire Pa. I.D. No. 75733 305 North Front Street - P.O. Box 1003 Harrisburg, PA 17108.1003 (717) 237-5529 Attorneys for Defendants Joseph P. Esposito, M.D. and Susquehanna Surgeons, Ltd. DIMI•I PA SCHILD, Plaintiff, V. SAMBHU N. KUNDU, M.D., CENTRAL PENNSYLVANIA OBSTETRICS-GYNECOLOGY, INC., JOSEPH P. ESPOSITO, M.D. and SUSQUEHANNA SURGEONS, LTD., Defendants. IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 99-6832 CIVIL CIVIL ACTION - LAW JURY TRIAL DEMANDED NOTICE OF NAME CHANGE The law firm which is counsel in the above-captioned matter on behalf of Defendants Joseph P. Esposito, M.D. and Susquehanna Surgeons, Ltd., hereby advises that as of January 1, 2002, its name has been changed to Duane Morris LLP. Dated: January , 2002 submitted, Paul Scanlan, Esq. Pa. I orney I.D. No. 75733 305 North Front Street, 5th Floor P.O. Box 1003 Harrisburg, PA 17108-1003 (717)237-5529 r TO: April L. Strang-Kutay, Esq. Goldberg, Katzman & Shipman, P.C. 320 Market Street Harrisburg, PA 17108-1268 Leigh A. I Ellis, Esquire Foulkrod Ellis 1800 Linglestown Road - Suite 305 Harrisburg, PA 17110 -9- CERTIFICATE OF SERVICE On this `" y of January, 2002, 1, Paul E. Scanlan, Esquire, Special Counsel to Duane Morris LLP, hereby certify that a true and correct copy of the foregoing Notice of Name Change was served upon the following individual at his respective address by depositing the same in the United States mail, first-class, postage prepaid, at Harrisburg, Pennsylvania, this date. April L. Strang-Kutay, Esq. Goldberg, Katzman & Shipman, P.C. 320 Market Street Harrisburg, PA 17108-1268 Leigh A. J. Ellis, Esquire Foulkrod Ellis 1800 Linglestown Road - Suite 305 Harrisburg, PA 17110 IIOG189678.1 -3- ?_? :- ?_: ._. , =_ ._1 r j ? l1J ?_ ? 11 I ? ?^J _] ?? ?? ?, A? DUANE, MORRIS & IIECKSCIIER LLP BY: Paul E. Scanlan, Esquire Pa. I.D. No. 75733 305 North Front Street - P.O. Box 1003 Harrisburg, PA 17108-1003 (717) 237-5529 Attorneys for Defendants Joseph P. Esposito, M.D. and Susquehanna Surgeons, Ltd. DIMITRA SCHILD, Plaintiff, IN 1 HE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA V. SAMBHU N. KUNDU, M.D., CENTRAL PENNSYLVANIA OBSTETRICS-GYNECOLOGY, INC., JOSEPH P. ESPOSITO, M.D. and SUSQUEHANNA SURGEONS, LTD., Defendants. NO. 99-6832 CIVIL CIVIL ACTION - LAW JURY TRIAL DEMANDED NOTICE TO PLEAD TO: DIMITRA SCHILD, and APRIL L. STRANG-KUTAY, ESQUIRE. Plaintiff Goldberg, Katzman & Shipman, P.C. 320 Market Street Harrisburg, PA 17108-1268 (717) 234-4161 Attorney for Plaintiff YOU ARE HEREBY NOTIFIED to file a written response to the within NEW MATTER within twenty (20) days from service hereof or a judgme y entered a inst you. ? ?Ly?jL1? Pau E. Scanlan, Esq. At mcy Id. No. 75733 DUANE, MORRIS & HECKSCHER LLP 305 North Front Street, 5th Floor P.O. Box 1003 Harrisburg, PA 17108-1003 (717) 237-5529 Attorneys for Defendants Joseph P, Esposito, M.D. and Susquehanna Surgeons, Ltd. DUANE, NIORRIS & HECKSCHER LLP BY: Paul E. Scanlan, Esquire Pa. I.D. No. 75733 305 North Front Street - P.O. Box 1003 Harrisburg, PA 17108-1003 (717) 237-5529 Attomcys for Defendants Joseph P. Esposito, M.D. and Susquehanna Surgeons, Ltd. DIMITRA SCHILD, Plaintiff, IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA V. SAMBHU N. KUNDU, M.D., CENTRAL PENNSYLVANIA OBSTETRICS-GYNECOLOGY, INC., JOSEPH P. ESPOSITO, M.D., and SUSQUEHANNA SURGEONS, LTD., Defendants. NO. 99-6832 CIVIL CIVIL ACTION - LAW JURY TRIAL DEMANDED ANSWER AND NEW MATTER OF DEFENDANTS JOSEPH P. ESPOSITO, M.D. and SUSOUEHANNA SURGEONS LTD TO PLAINTIFF'S COMPLAINT Defendants Joseph P. Esposito, M.D. and Susquehanna Surgeons, Ltd., by and through their counsel, Duane, Morris and Heckscher LLP, respectfully submit their Answer and New Matter to the Complaint as follows: 1. After reasonable investigation, these answering Defendants are without knowledge or information sufficient to form a belief as to the truth of the averments set forth in Paragraph 1 and those averments are therefore deemed denied and strict proof of same will be required at trial. 2. After reasonable investigation, these answering Defendants are without knowledge or information sufficient to form a belief as to the truth of the averments set forth in Paragraph 2 and those averments are therefore deemed denied and strict proof of same will be required at trial. 3. After reasonable investigation, these answering Defendants are without knowledge or information sufficient to form a belief as to the truth of the averments set forth in Paragraph 3 and those averments are therefore deemed denied and strict proof of same will be required at trial. 4. Admitted. 5. Admitted. 6. After reasonable investigation, these answering Dcfcndants are without knowledge or information sufficient to form a belief as to the truth of the averments set forth in Paragraph 6 and those averments arc therefore deemed denied and strict proof of same will be required at trial. 7. After reasonable investigation, these answering Defendants are without knowledge or information sufficient to form a belief as to the truth of the averments set forth in Paragraph 7 and those averments are therefore deemed denied and strict proof of same will be required at trial. 8. After reasonable investigation, these answering Dcfcndants arc without knowledge or information sufficient to form a belief as to the truth of the avcrmcnts set forth in Paragraph 8 and those averments are therefore deemed denied and strict proof of same will be required at trial. 9. After reasonable investigation, these answering Dcfcndants are without knowledge or information sufficient to form a belief as to the truth of the avcrmcnts sel forth in Paragraph 9 and those averments are therefore deemed denied and strict proof of same will be required at trial. 1) 10. After reasonable investigation, these answering Defendants are without knowledge or information sufficient to form a belief as to the truth of the averments set forth in Paragraph 10 and those averments are therefore deemed denied and strict proof of same will be required at trial. 11. After reasonable investigation, these answering Defendants are without knowledge or information sufficient to form a belief as to the truth of the averments set forth in Paragraph 1 l and those averments are therefore deemed denied and strict proof of same will be required at trial. 12. After reasonable investigation, these answering Defendants are without knowledge or information sufficient to form a belief as to the truth of the averments set forth in Paragraph 12 and those averments are therefore deemed denied and strict proof of same will be required at trial. 13. After reasonable investigation, these answering Defendants are without knowledge or information sufficient to form a belief as to the truth of the averments set forth in Paragraph 13 and those averments are therefore deemed denied and strict proof of same will be required at trial. 14. After reasonable investigation, these answering Defendants are without knowledge or information sufficient to form a belief as to the truth of the averments set forth in Paragraph 14 and those averments are therefore deemed denied and strict proof of same will be required at trial. 15. Admitted in part. It is admitted only that on November 14, 1997, while the Plaintiff was still in the operating room, Dr. Esposito was called to assist in the reduction of the 3 bowel, and that in order to do so, he did enlarge the existing fascial incision, manipulated and reduced the bowel segment. The remaining avcmcnts or implications contained in this Paragraph of life Complaint are denied in conformity with Pa.R.C.P. 1029(c). 16. Admitted. 17. After reasonable investigation, these answering Defendants are without knowledge or information sufficient to form a belief as to the truth of the averments set forth in Paragraph 17 and those averments are therelbre deemed denied and strict proof of same will be required at trial, Reference is specifically mule to the medical records and the recollections of witnesses in this regard. 18. Admitted in part. The allegations of Ibis paragraph of the Complaint are admitted with the exception of the descriptive "massive," which is denied. Reference is specifically made to the medical records and the recollections of wilnesses in this regard. 19. Admitted. 20. Denied. The Ivcantents conlnined in this Paragraph of the Complaint are denied in conformity with Pa.R.C.P. 1029(e). 21. Denied. The averments contained in this paragraph of the Complaint are denied in conformity with Pa.R.C.P. 1029(c), 22. Denied, 'I'hc ave'nnenls conl;tincd in this Paragraph of the Complaint are denied in conformity with 1029(c). 23. Aller reasonable invesligation, these answering Defendants are without knowledge or infomnation sufficient to liarnI It helief as to the truth of the averments set forth in Paragraph 4 23 and those averments are therefore deemed denied and strict proof of same will be required at trial. 24. Denied. The averments contained in this Paragraph of the Complaint are denied in conformity with Pa.R.C.P. 1029(e). COUNT 1 NEGLIGENCE Dimitra Schild V. Dr. Kundu 25. The responses set forth herein at Paragraphs 1 through 24 are incorporated herein by reference as though fully set forth. 26. Denied. The averments contained in this Paragraph of the Complaint refer to a Defendant other than the Answering Defendants herein; accordingly, no affirmative response is required. To the extent that an affirmative response may be required on behalf of these Answering Defendants, said averments are specifically denied and strict proof of same is demanded at trial. 27. Denied. The averments contained in this Paragraph of the Complaint and their subparts refer to a Defendant other than the Answering Defendants herein; accordingly, no affirmative response is required. To the extent that an affirmative response may be required on behalf of these Answering Defendants, said averments are specifically denied and strict proof of same is demanded at trial. 28. Denied. The averments contained in this Paragraph of the Complaint and their subparts refer to a Defendant other than the Answering Defendants herein; accordingly, no affirmative response is required. To the extent that an affirmative response may be required on 5 behalf of these Answering Defendants, said averments are specifically denied and strict proof of same is demanded at trial. WHEREFORE, Answering Defendants Joseph P. Esposito, M.D. and Susquehanna Surgeons, Ltd. respectfully request that judgment be entered in their favor and against the Plaintiff herein and that the Complaint herein be dismissed with prejudice and that Answering Defendants be awarded appropriate costs and fees and such other and further relief as may be just and proper. COUNT If Batterv Dimitra Schild v. Dr. Kundu 29. The responses set forth herein at Paragraphs 1 through 28 are incorporated herein by reference as though fully set forth. 30. Denied. The averments contained in this Paragraph of the Complaint and their subparts refer to a Defendant other than the Answering Defendants herein; accordingly, no affirmative response is required. To the extent that an affirmative response may be required on behalf of these Answering Defendants, said averments are specifically denied and strict proof of same is demanded at trial. 31. Denied. The averments contained in this Paragraph of the Complaint refer to a Defendant other than the Answering Defendants herein; accordingly, no affirmative response is required. To the extent that an affirmative response may be required on behalf of these Answering Defendants, said averments arc specifically denied and strict proof of same is demanded at trial. 6 32. Denied. The avernicnts contained in this Paragraph of the Complaint refer to a Defendant other than the Answering Defendants herein; accordingly, no affirmative response is required. To the extent that an affirmative response may be required on behalf of these Answering Defendants, said averments are specifically denied and strict proof of same is demanded at trial. 33. Denied. The averments contained in this Paragraph of the Complaint refer to a Defendant other than the Answering Defendants herein; accordingly, no affirmative response is required. To the extent that an affirmative response may be required on behalf of these Answering Defendants, said averments are specifically denied and strict proof of same is demanded at trial. WHEREFORE, Answering Defendants Joseph P. Esposito, M.D. and Susquehanna Surgeons, Ltd. respectfully request that judgment be entered in their favor and against the Plaintiff herein and that the Complaint herein be dismissed with prejudice and that Answering Defendants be awarded appropriate costs and fees and such other and further relief as may be just and proper. COUNT III Neeligence 11 ! Dimitra Schild v. Central Pennsylvania Obstetrics-Gynecoloev. Inc. 42. The responses set forth herein at Paragraphs I through 33 are incorporated herein by reference as though fully set forth. (PLEASE NOTE: The Complaint has no paragraphs 34 through 41, inclusive). 7 43. Denied. The averments contained in this Paragraph of the Complaint and their subparts refer to a Defendant other than the Answering Defendants herein; accordingly, no affirmative response is required. To the extent that an affirmative response may be required on behalf of these Answering Defendants, said averments are specifically denied and strict proof of same is demanded at trial. 44. Denied. The averments contained in this Paragraph of the Complaint and their subparts refer to a Defendant other than the Answering Defendants herein; accordingly, no affirmative response is required. To the extent that an affirmative response may be required on behalf of these Answering Defendants, said averments are specifically denied and strict proof of same is demanded at trial. WHEREFORE, Answering Defendants Joseph P. Esposito, M.D. and Susquehanna Surgeons, Ltd. respectfully request that judgment be entered in their favor and against the Plaintiff herein and that the Complaint herein be dismissed with prejudice and that Answering Defendants be awarded appropriate costs and fees and such other and further relief as may be just and proper. COUNT IV Neelieence Dimitra Schild v. Josenh P. Esposito, M.D. 45. The responses set forth herein at Paragraphs I through 44 are incorporated herein by reference as though fully set forth. 46. Admitted. 8 47. Denied. The avemicnts contained in this Paragraph of the Complaint are denied in conformity with Pa.R.C.P. 1029(c), and it is specifically denied that Dr. Esposito failed to adequately inspect Plaintiff's bowel during the surgical procedure of November 14, 1999 such that any bowel perforations, if they then existed, were not diagnosed in a timely manner, or that Dr. Esposito was in any other way negligent in providing medical care to Dimitra Schild. 48. Denied. The averments contained in this Paragraph of the Complaint and their subparts are each denied in conformity with Pa.R.C.P. 1029(c). WHEREFORE, Answering Defendants Joseph P. Esposito, M.D. and Susquehanna Surgeons, Ltd. respectfully request that judgment be entered in their favor and against the Plaintiff herein and that the Complaint herein be dismissed with prejudice and that Answering Defendants be awarded appropriate costs and fees and such other and further relief as may be just and proper. COUNT V Neeli2ence Dimitra Schild v. Susquehanna Surgeons, Ltd. 49. The responses set forth herein at Paragraphs I through 48 are incorporated herein by reference as though fully set forth. 50. It is admitted only that Susquehanna Surgeons, Ltd. was a medical business entity and that Dr. Esposito was an employee of that practice. The remaining averments contained in this Paragraph of the Complaint are denied in conformity with Pa.R.C.P. 1029(c), and it is specifically denied that Dr. Esposito failed to adequately inspect Plaintiff's bowel during the surgical procedure of November 14, 1999 such that any bowel perforations, if they then existed, 9 were not diagnosed in a timely manner, or that Dr. Esposito was in any way negligent in providing medical care to Dimitra Schild. 51. Denied. The averments contained in this Paragraph of the Complaint and their subparts arc each denied in conformity with Pa.R.C.P. 1029(e). WHEREFORE, Answering Defendants Joseph P. Esposito, M.D. and Susquehanna Surgeons, Ltd. respectfully request that judgment be entered in their favor and against the Plaintiff herein and that the Complaint herein be dismissed with prejudice and that Answering Defendants be awarded appropriate costs and fees and such other and further relief as may be just and proper. NEW MATTER 52. The responses and affirmative allegations set forth herein at Paragraphs 1 through 51 are incorporated herein by reference as though fully set forth. 53. Plaintiffs Complaint fails to state a claim upon which relief may be granted under Pennsylvania Law. 54. Plaintiff has failed to properly plead causes of action against Joseph P. Esposito, M.D. and Susquehanna Surgeons, Ltd. 55. The Plaintiffs causes of action, the existence of which is denied, are barred by the applicable statute of limitations or statute of repose under Pennsylvania law. 56. These answering Defendants believe, and therefore aver,, that the facts accumulated in discovery and/or propounded at trial will establish that the Plaintiff was contributorily and/or comparatively negligent and/or assumed the risk and in order to protect these 10 Answering Defendants' rights to plead such defenses, they hereby plead contributory and comparative negligence and assumption of the risk as formal defenses. 57. Plaintiffs claims are barred by the doctrines of estoppel, waiver, and/or Inches. 58. Plaintiffs claimed injuries and/or damages, the existence of which arc denied, were caused, if at all, in whole or in part by acts or omissions of another or others for whom these Answering Defendants were not responsible and whose conduct these answering Defendants had no reason to anticipate and had no control over, and therefore these Answering Defendants are not liable herein. 59. Plaintiff's claimed injuries and/or damages, the existence of which are denied, were caused, if at all, in whole or in part by acts or omissions of another or others for whom these Answering Defendants were not responsible and whose conduct these answering Defendants had no reason to anticipate and had no control over, thus constituting intervening and/or superseding causes of any claimed injuries and/or damages for which these Answering Defendants are not liable herein. 60. Any acts or omissions of these Answering Defendants alleged to constitute negligence or malpractice, all of which are denied, were not the legal cause, proximate cause or cause-in-fact of any of the alleged injudes/illness and damages, if any, of the Plaintiff, as alleged in the Complaint. 61. Any acts or omissions of these Answering Defendants alleged to constitute negligence or malpractice, all of which are denied, were not substantial factors contributing to the alleged injurics/illness and damages, if any, of the Plaintiff, as alleged in the Complaint. M 62. Any alleged injurics/ilhress and/or damages, if any, of the Plaintiff, the existence of which is denied, resulted, if at all, from an act of God or some other cause, and were not caused in any way by any act or omission on the part of these Answering Defendants. 63. Plaintiffs claimed injuries and/or damages, if any, the existence of which is denied, were not caused by the conduct or negligence of these Answering Defendants, but rather were caused, if at all, by pre-existing or independently existing medical conditions and causes beyond the control of these Answering Defendants. 64. Insofar as these Answering Defendants elected a diagnostic and/or treatment modality which is recognized as proper but may differ from another appropriate diagnostic and/or treatment modality, then said Answering Defendants herein raise and plead the "two schools of thought" doctrine as a defense. 65. These Answering Defendants took all reasonable and necessary steps to make a proper and appropriate diagnosis, and, to the extent that it may be determined that that diagnosis was in error, which is denied, these Answering Defendants assert that any such error in diagnosis was a reasonable and legally justifiable error. 66. At all material times alleged in the Complaint, Answering Defendant Susquehanna Surgeons, Ltd. was a professional corporation which employed, among others, Answering Defendant Joseph P. Esposito, M.D., and was not a comprehensive health care center coordinating the total care of its patients, nor was it an entity, separate from its physician members, that controls a patient's total medical care. Accordingly, Answering Defendant Susquehanna Surgeons, Ltd. may not be found liable herein. 12 67. In the event it may be ultimately determined that Susquehanna Surgeons, Ltd. is liable to Plaintiff, which liability is specifically denied herein, 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. 68. At all times material to Plaintiff's allegations in the Complaint, all care and treatment rendered to Plaintiff by Dr. Esposito anal/or Susquehanna Surgeons, Ltd. was appropriate, reasonable and met or exceeded the applicable standard of care. 69. These Answering Defendants are entitled to contribution in accordance with the Pennsylvania Comparative Negligence Act, 42 P.S. § 7102. 70. Joseph P. Esposito, Cv1.D. and Susquehanna Surgeons, Ltd. give notice that they intend to rely on such other and further defenses as may become available or apparent during discovery during this action and hereby reserve the right to assert any such defense or defenses. WHEREFORE, Defendants Joseph P. Esposito, M.D. and Susquehanna Surgeons, Ltd. respectfully request that judgment be entered in their favor and against the Plaintiff and that the Complaint herein be dismissed with prejudice and that these Answering Defendants be awarded reasonable attorneys fees and costs together with such other relief as the Court may deem just and equitable. 13 Dated: January Z'i 1 1000. Respectfully submitted, Paul E. Scanlan Esq. Attorney I.D. No. 75733 DU'1NE, MORRIS & HECKSCHER LLP 305, North Front Street, 5th Floor P.O. Box 1003 Harrisburg, PA 17108-1003 (717) 237-5529 Counsel for Defendants Joseph P. Esposito, M.D. and Susquehanna Surgeons, Ltd. IIOG\J 1220.1 14 VERIFICAT10N I, JOSEPH P. ESPOSITO, M.D., hereby depose and state that I ann a shareholder of Susquehanna Surgeons, Ltd., a defendant in this case, as well as an individual defendant in this case; that I am authorized to make this Verification on behalf of myself and Susquehanna Surgeons, Ltd.; that I have read the foregoing ANSWER AND NEW MATTER which has been drafted by my counsel. The factual statements contained therein axe true and correct to the best of my information, knowledge and belief although the language is that of my counsel and, to the extent that the content of the foregoing document is that of counsel, I have relied upon counsel in making this Verification. This statement is made subject to the penalties o£ 18 Pa. C.S.A, §4904 relating to unswom falsification to authorities, which provides that if I make knowingly false statements, I may be subject to criminal penalties. Dated: 2000. Joseph P_ Esposito, M,D. 15 CERTIFICATE OF SERVICE On this 24th day o0anuary. 2000, 1, Nora A. Starnes, a secretary with the law firm of Duane, Morris & Fieckscher, LLP, hereby certify that a true and correct copy of the foregoing Answer and New Matter of Defendants Joseph P. Esposito, M.D. and Susquehanna Surgeons, Ltd. to Plaintiffs Complaint was served upon the following individuals at their respective addresses by depositing the same in the United States mail, first-class, postage prepaid, at Flarrisburg, Pennsylvania. April L. Strang-Kutay, Esq. S. Walter Foulkrod, III, Esquire Goldberg, Katzman & Shipman, P.C. S. Walter Foulkrod, III & Associates 320 Market Street 1800 Linglestown Road - Suite 305 Harrisburg, PA 17108-1268 Harrisburg, PA 17110 Nora A. Starnes cl_ Cl. ,.J cli K 1 ?IJ ' 1 i, i 1 ; '® S. WALTER FOULKROD, III, ESQUIRE Pa. Supreme Court I.D. No. 01982 S. WALTER FOULKROD, IV, ESQUIRE Pa. Supreme Court I.D. No. 65207 ANDREW H. FOULKROD, ESQUIRE Pa. Supreme Court I.D. No. 77394 S. WALTER FOULKROD, III & ASSOCIATES 1800 Linglestown Road - Suite 305 Attorneys for Defendants: Harrisburg, Pennsylvania 17110 SAMBHU N. KUNDU, M.D. Telephone: (7173 213-4200 CENTRAL PENNSYLVANIA Fax: 717 213-4202 OBSTETRICS-GYNECOLOGY INC. DIMITRA SCHILD, : IN THE COURT OF COMMON PLEAS Plaintiff : OF CUMBERLAND COUNTY, PENNSYLVANIA V. CIVIL ACTION LAW SAMBHU N. KUNDU, M.D., CENTRAL PENNSYLVANIA OBSTETRICS- GYNECOLOGY, INC., JOSEPH P. ESPOSITO, M.D and SUSQUEHANNA SURGEONS, LTD., Defendants NO. 99-6832 JURY TRIAL DEMANDED PRAECIPE TO ENTER APPEARANCE TO: PROTHONOTARY OF CUMBERLAND COUNTY, PENNSYLVANIA Kindly enter our appearance as counsel on behalf of Defendants, Sambhu N. Kundu, M.D. and Central Pennsylvania Obstetrics-Gynecology, Inc., in the above-captioned matter. Respectfully submitted, S. WALTER FOULK? I ;;I & ASSOCIATES Date: /? 3O By: III ESQUIRE S. WALTER F LKROD, Attorney I.D. NO. 01982 S. WALTER FOULKROD, IV, ESQUIRE Attorney I.D. No. 65207 ANDREW H. FOULKROD, ESQUIRE Attorney I.D. No. 77394 CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing PRAECIPE TO ENTER APPEARANCE was served upon counsel of record this 30th day of December, 1999, by depositing said copy in the United States mail at Harrisburg, Pennsylvania, postage prepaid, first class delivery, and addressed as follows: April L. Strang-Kutay, Esquire Goldberg, Katzman & Shipman, P.C. 320 Market Street Harrisburg, PA 17108-1268 Paul E. Scanlan, Esquire Duane, Morris & Heckscher P.O. Box 1003 Harrisburg, PA 17108-1003 S. WALTER FOULKROD, III & ASSOCIATES By:z Y, Donna V. Sturr, Paralegal ?_ .; : C ' , : . ?. ;.' . , . ._ / ' f ?. _. r. `? u..in -? _? r?? C c?•,• Ci L L •J Tit; ?-?J i --? . r' .d - ?- ?? Ql Cl .? ? 17 DIMITRA SCHILD, Plaintiff, V. SAMBHU N. KUNDU, M.D., CENTRAL PENNSYLVANIA OBSTETRICS-GYNECOLOGY, INC., JOSEPH P. ESPOSITO, M.D., and SUSQUEHANNA SURGEONS, LTD., Defendants. i IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 99-6832 CIVIL CIVIL ACTION - LAW PRAECIPE FOR ENTRY OF APPEARANCE Please enter my appearance in the above-captioned matter on behalf of the Defendants Joseph P. Esposito, M.D. and Susquehanna Surgeons, Ltd. I am authorized to accept service on behalf of said Defendants. Dated: November 24, 1999 P+1 E. Scazflatf, Esq. Attorney I.D. No. 75733 DUANE, MORRIS & HECKSCHER LLP 305 North Front Street, 5th Floor P.O. Box 1003 Harrisburg, PA 17108-1003 (717) 237-5529 Counsel for Defendants Joseph P. Esposito, M.D. and Susquehanna Surgeons, Ltd. r.. n HBGGll8799.1 CERTIFICATE OF SERVICE On this 24th day of November, 1999, 1, Nora A. Starnes, a secretary with the law firm of Duane, Moms & Heckscher, LLP, hereby certify that a true and correct copy of the foregoing Praecipe for Entry of Appearance was served upon the following individual at her respective address by depositing the same in the United States mail, first-class, postage prepaid, at Harrisburg, Pennsylvania. April L. Strang-Kutay, Esq. Goldberg, Katzman & Shipman, P.C. P.O. Box 1268 Harrisburg, PA 17108-1268 Nora A. Starnes • Y „_=3 • r1? DIMITRA SCHILD, Plaintiff, V. SAMBHU N. KUNDU, M.D., CENTRAL PENNSYLVANIA OBSTETRICS-GYNECOLOGY, INC., JOSEPH P. ESPOSITO, M.D., and SUSQUEHANNA SURGEONS, LTD., Defendants. IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 99-6832 CIVIL CIVIL ACTION - LAW PRAECIPE FOR RULE TO FILE A COMPLAINT TO THE PROTHONOTARY: Please issue a Rule upon Plaintiff to file a Complaint within twenty (20) days from service hereof or suffer judgment of non pros. Respectfully Attorneys for Defendants Joseph P. Esposito, M.D. and Susquehanna Surgeons, Ltd. AND NOW, this day of ?) l C T! , a Rule has been entered upon Dated: November 24, 1999 Paul E. Sc ilan, Esq. Attorney 1.4). No. 75733 DUANE, MORRIS & HECKSCHER LLP 305 North Front Street P.O. Box 1003 Harrisburg, PA 17108-1003 (717) 237-5529 Plaintiff as above directed. It CERTIFICATE OF SERVICE On this 24th day of November, 1999, I, Nora A. Starnes, a secretary with the law firm of Duane, Moms & Heckscher, LLP, hereby certify that a true and correct copy of the foregoing Praecipe for Rule to File a Complaint was served upon the following individual at her respective address by depositing the same in the United States mail, first-class, postage prepaid, at Harrisburg, Pennsylvania. April L. Strang-Kutay, Esq. Goldberg, Katzman & Shipman, P.C. P.O. Box 1268 Harrisburg, PA 17108-1268 A?v-. Nora A. Starnes i McKissock & Hoffman, P.C. By: Edwin A.D. Schwartz, Esquire I.D. 75902 By: Michael B. Volk, Esquire I.D. 88553 2040 Linglestown Road Suite 302 Harrisburg, PA 17110 (717) 540-3400 Plaintiff V. SAMBHU N. KUNDU, M.D., CENTRAL PENNSYLVANIA OBSTETRICS- GYNECOLOGY, INC., JOSEPH P. ESPOSITO, M.D. and SUSQUEHANNA SURGEONS, LTD., Attorneys for Defendants, Joseph P. Esposito, M.D. and Susquehanna Surgeons, Ltd. IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 99-6832 CIVIL ACTION - LAW JURY TRIAL DEMANDED ENTRY OF APPEARANCE Please enter our appearance on behalf of Defendants, Joseph P. Esposito, M.D. and Susquehanna Surgeons, Ltd., in the above-captioned matter. Respectfully submitted, Date: 6 ari e? McKissock & Hoffman, P.C. By: Edwin A.D. Sch squire I.D. No.: 75902 Michael B. Volk, Esquire I.D. No.: 88553 2040 Linglestown Road Suite 302 Harrisburg, PA 17110 (717) 540-3400 Attorneys for Defendants, Joseph P. Esposito, M.D. and Susquehanna Surgeons, Ltd. K CERTIFICATE OF SERVICE I hereby certify that I am this day serving a copy of the foregoing Entry of Appearance upon the person(s) and in the manner indicated below, which service satisfies the requirements of the Pennsylvania Rules of Civil Procedure, by depositing a copy of same in the United States Mail, first-class postage prepaid, addressed as follows: April Strang-Kutay, Esquire Goldberg, Katzman & Shipman, P.C. 320 Market Street Harrisburg, PA 17108-1268 Leigh A.J. Ellis, Esquire Foulkrod Ellis 1800 Linglestown Road Suite 305 Harrisburg, PA 17110 McKissock & Hoffman, P.C. By: Edwin A.D. Sch a , Esquire Attorney I.D. No.: 75902 2040 Linglestown Road Suite 302 Harrisburg, PA 17110 (717) 540-3400 Date: ?? e z Attorneys for Defendants, Joseph P. Esposito, M.D. and Susquehanna Surgeons, Ltd. DIMITRA SCHILD, Plaintiff, V. SAMBHU N. KUNDU, M.D., CENTRAL PENNSYLVANIA OBSTETRICS-GYNECOLOGY, INC., JOSEPH P. ESPOSITO, M.D. and SUSQUEHANNA SURGEONS, LTD., Defendants. IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 99-6832 CIVIL CIVIL ACTION - LAW JURY TRIAL DEMANDED WITHDRAWAI, OF APPEARANCE Please withdraw my prior Appearance in the above-captioned matteron behalf of the named Defendants Joseph P.Esposito, M.D.and Susquehanna Surgeons, Ltd. We are no longer authorized to accept service on behalf of said Defendant. Dated: June 19, 2002 Respectfully submitted, DU LLP Paul Scanlan-Esq. Pa. Attorney I.D. No. 75733 305 North Front Street, 5th Floor P.O. Box 1003 Harrisburg, PA 17108-1003 (717) 237-5529 TO: April L. Strang-Kutay, Esq. Goldberg, Katzman & Shipman, P.C. 320 Market Street Harrisburg, PA 17108-1268 Leigh A. J. Ellis, Esquire Foulkrod Ellis 1800 Linglestown Road - Suite 305 Harrisburg, PA 17110 -2- CE,RTI ICATF OF SERVICE, On this 19°i day of June, 2002, 1, Paul E. Scanlan, Esquire, Special Counsel to Duane Morris LLP, hereby certify that a true and correct copy of the foregoing Withdrawal of Appearance was served upon the following individual at his respective address by depositing the same in the United States mail, first-class, postage prepaid, at Harrisburg, Pennsylvania, this date. April L. Strang-Kutay, Esq. Goldberg, Katzman & Shipman, P.C. 320 Market Street Harrisburg, PA 17108-1268 Leigh A. J. Ellis, Esquire Foulkrod Ellis 1800 Linglestown Road - Suite 305 Harrisburg, PA 17110 IlaG'99329.1 -3- , _ 17 JUL 2 4 2002 McKissock & Hoffman, P.C. By: Edwin A.D. Schwartz, Esquire I.D. 75902 By: Michael B. Volk, Esquire I.D. 88553 2040 Linglestown Road Suite 302 Harrisburg, PA 17110 (717) 540-3400 Plaintiff V. SAMBHU N. KUNDU, M.D., CENTRAL PENNSYLVANIA OBSTETRICS- GYNECOLOGY, INC., JOSEPH P. ESPOSITO, M.D. and SUSQUEHANNA SURGEONS, LTD., Attorneys for Defendants, Joseph P. Esposito, M.D. and Susquehanna Surgeons, Ltd. IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 99-6832 CIVIL ACTION - LAW JURY TRIAL DEMANDED MEMORANDUM OF LAW IN SUPPORT OF MOTION FOR LEAVE TO AMEND NEW MATTER 1. HISTORY OF THE CASE Plaintiff alleges that Dimitra Schild sustained injuries and damages as a result of alleged negligence of Joseph P. Esposito, M.D. and Susquehanna Surgeons, Ltd. Defendants, Joseph P. Esposito, M.D. and Susquehanna Surgeons, Ltd. , were insured under a policy issued by PHICO Insurance Company ("PHICO"). The Commonwealth Court of Pennsylvania entered an Order of Liquidation with a finding of insolvency against PHICO on February 1, 2002. as a result of the Liquidation Order, the provisions of 40 P.S. § 991.1917(a) apply to Plaintiffs claim. The Pennsylvania Property and Casualty Insurance Guaranty Association has assumed the defense of Defendants, Joseph P. Esposito, M.D. and Susquehanna Surgeons, Ltd. , under the Pennsylvania Property and Casualty Insurance Guaranty Association Act, 40 P.S. §§ 991.1801 et M. The Pennsylvania Property and Casualty Insurance Guaranty Association has asserted that any amount that may be payable by it on behalf of Defendants, Joseph P. Esposito, M.D. and Susquehanna Surgeons, Ltd. , is reduced by the amount of Plaintiffs recovery under other insurance. Defendants, Joseph P. Esposito, M.D. and Susquehanna Surgeons, Ltd. , now moves to amend the New Matter to plead defenses that arose after the filing of the original Answer, as a result of the Liquidation Order. These defenses are the requirement to exhaust all other insurance, and the reduction of any amount that may be payable by Defendants, Joseph P. Esposito, M.D. and Susquehanna Surgeons, Ltd. , by the amount of recovery under other insurance, to the same extent as the reduction of any amount payable by the Pennsylvania Property and Casualty Insurance Guaranty Association. See Exhibit "A". II. STATEMENT OF QUESTION INVOLVED Should Defendants, Joseph P. Esposito, M.D. and Susquehanna Surgeons, Ltd. , be permitted to amend the new matter to plead defenses arising as a result of an event, the PHICO Liquidation Order, that occurred after the filing of the original pleading? Suggested answer in the affirmative. III. ARGUMENT Pa.R.Civ.P. 1033 permits amendment to plead occurrences that happened after the original pleading. The Rule provides: A party, either by filed consent of the adverse party or by leave of court, may at any time change the form of action, correct the name of a party or amend his pleading. The amended pleading may aver transactions or occurrences which have happened before or after the filing of the original pleading, even though they give rise to a new cause of action or defense. An amendment may be made to conform the pleading to the evidence offered or admitted. Amendments are liberally allowed. Lateness is not grounds for denying leave to amend where the defense became available after the original pleadings were closed. The fact that an amendment may affect a plaintiff's case is not in itself a sufficient reason to deny the amendment. Capobianchi v BIG Corp., 666 A.2d 344 (Pa. Super. 1995), app. denied, 544 Pa. 599, 674 A.2d 1065 (1996). (Defense of collateral estoppel may be raised by amended answer and new matter approximately three years after action filed, shortly before trial.) Amendment of new matter may be permitted even during trial. Pallante v. City of Philadelphia, 133 Pa. Commw. 441, 575 A.2d 980 (1990). The party opposing amendment must establish more than undue delay to overcome the policy of liberal amendment. Horowitz v. Universal Underwriters Insurance Co., 580 A.2d 395,400 (Pa. Super. 1990), app. denied, 527 Pa. 610, 590 A.2d 297 (1991); Carpitella v. Consolidated Rail Corp., 533 A.2d 762 (Pa. Super. 1987). In this case, Defendants, Joseph P. Esposito, M.D. and Susquehanna Surgeons, Ltd. , moves to amend shortly after the defense became available as a result of the PHICO Liquidation Order. The February 1, 2002 Liquidation Order started a statutory stay, "to permit proper defense by" the Pennsylvania Property and Casualty Insurance Guaranty Association. 40 P.S. § 991.1819(a). Defendants cannot be required to file a motion during the stay. As a result, no delay can be attributed to Defendants, Joseph P. Esposito, M.D. and Susquehanna Surgeons, Ltd. The Amended New Matter will plead two related defenses, the requirement to exhaust other insurance and the offset for recoveries under other insurance. 40 P.S. § 991.1817(a) provides: Any person having a claim under an insurance policy shall be required to exhaust first his right under such policy. For purposes of this section, a claim under an insurance policy shall include a claim under any kind of insurance, whether it is a first- party or a third-party claim, and shall include, without limitation, accident and health insurance, worker's compensation, Blue Cross and Blue Shield and all other coverages except for policies of an insolvent insurer. Anv ammmt The definition of "exhaust" provides in pertinent part: The term, with respect to other insurance, means obtaining the maximum limit under the policy. 40 P.S. § 991.1802. This definition makes clear the strong legislative intent that policies of solvent insurance companies must pay as much as possible of any "covered claim." The exhaustion and offset defenses protect Defendants, the insureds of an insolvent insurer. If a plaintiff fails to exhaust other insurance, that plaintiff cannot recover a judgment against the insured of the insolvent insurer. Burke v. Valley Lines, Inc., 617 A.2d 1335 (Pa. Super. 1992). The amount of an offset, not recoverable against the Pennsylvania Property and Casualty Insurance Guaranty Association, is also not recoverable from the insured of the insolvent insurer. Panea v. Isdaner, 773 A.2d 782 (Pa. Super. 2001), app. granted sub nom. Bell v. Slezak, 782 A.2d 509 (Pa. 2001). Defendants should be permitted to plead these defenses, which may require action by Plaintiff before trial. Pleading this new matter notifies Plaintiff to exhaust any other insurance or be barred from recovery of a later verdict, as in Burke. If Plaintiff recovers under other insurance, the new matter notifies her of a reduction in the amount recoverable in this case. IV. CONCLUSION For the above reasons, Defendants, Joseph P. Esposito, M.D. and Susquehanna Surgeons, Ltd., respectfully submit that they should be permitted to plead newly available defenses. Respectfully submitted, McKissock & Hoffman, P.C. By: Edwin A.D. Sch squire Attorney ID No.: 75902 Michael B. Volk, Esquire Attorney ID No.: 88553 2040 Linglestown Road Suite 302 Harrisburg, PA 17110 (717) 540-3400 Date: a Z- Attorneys for Defendants, Joseph P. Esposito, M.D. and Susquehanna Surgeons, Ltd. CERTIFICATE OF SERVICE I hereby certify that I am this day serving a copy of the foregoing Memorandum of Law in Support of Motion for Leave to Amend New Matter upon the person(s) and in the manner indicated below, which service satisfies the requirements of the Pennsylvania Rules of Civil Procedure, by depositing a copy of same in the United States Mail, first-class postage prepaid, addressed as follows: April Strang-Kutay, Esquire Goldberg, Katzman & Shipman, P.C. 320 Market Street Harrisburg, PA 17108-1268 Leigh A.J. Ellis, Esquire Foulkrod Ellis 1800 Linglestown Road Suite 305 Harrisburg, PA 17110 McKissock & Hoffman, P.C. By: Edwin A.D. Schwartz s uire Attorney ID No. 7590 Michael B. Volk, Esquire Attorney ID No.: 88553 2040 Linglestown Road Suite 302 Harrisburg, PA 17110 (717) 540-3400 Attorneys for Defendants, Joseph P. Esposito, M.D. and Susquehanna Surgeons, Ltd. Dated: ??a/o z JUL 2 4 200? N McKissock & Hoffman, P.C. By: Edwin A.D. Schwartz, Esquire I.D. 75902 By: Michael B. Volk, Esquire I.D. 88553 2040 Linglestown Road Suite 302 Harrisburg, PA 17110 (717) 540-3400 Attorneys for Defendants, Joseph P. Esposito, M.D. and Susquehanna Surgeons, Ltd. Plaintiff V. SAMBHU N. KUNDU, M.D., CENTRAL PENNSYLVANIA OBSTETRICS- GYNECOLOGY, INC., JOSEPH P. ESPOSITO, M.D. and SUSQUEHANNA SURGEONS, LTD., IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 99-6832 CIVIL ACTION - LAW JURY TRIAL DEMANDED MEMORANDUM OF LAW IN SUPPORT OF MOTION FOR LEAVE TO AMEND NEW MATTER 1. HISTORY OF THE CASE Plaintiff alleges that Dimitra Schild sustained injuries and damages as a result of alleged negligence of Joseph P. Esposito, M.D. and Susquehanna Surgeons, Ltd. Defendants, Joseph P. Esposito, M.D. and Susquehanna Surgeons, Ltd. , were insured under a policy issued by PHICO Insurance Company ("PHICO"). The Commonwealth Court of Pennsylvania entered an Order of Liquidation with a finding of insolvency against PHICO on February 1, 2002. as a result of the Liquidation Order, the provisions of 40 P.S. § 991.1917(a) apply to Plaintiffs claim. The Pennsylvania Property and Casualty Insurance Guaranty Association has assumed the defense of Defendants, Joseph P. Esposito, M.D. and Susquehanna Surgeons, Ltd. , under the Pennsylvania Property and Casualty Insurance Guaranty Association Act, 40 P.S. §§ 991.1801 et seq. The Pennsylvania Property and Casualty Insurance Guaranty Association has asserted that any amount that may be payable by it on behalf of Defendants, Joseph P. Esposito, M.D. and Susquehanna Surgeons, Ltd. , is reduced by the amount of Plaintiffs recovery under other insurance. Defendants, Joseph P. Esposito, M.D. and Susquehanna Surgeons, Ltd. , now moves to amend the New Matter to plead defenses that arose after the filing of the original Answer, as a result of the Liquidation Order. These defenses are the requirement to exhaust all other insurance, and the reduction of any amount that may be payable by Defendants, Joseph P. Esposito, M.D. and Susquehanna Surgeons, Ltd. , by the amount of recovery under other insurance, to the same extent as the reduction of any amount payable by the Pennsylvania Property and Casualty Insurance Guaranty Association. See Exhibit "A". II. STATEMENT OF QUESTION INVOLVED Should Defendants, Joseph P. Esposito, M.D. and Susquehanna Surgeons, Ltd. , be permitted to amend the new matter to plead defenses arising as a result of an event, the PHICO Liquidation Order, that occurred after the filing of the original pleading? Suggested answer in the affirmative. III. ARGUMENT Pa.R.Civ.P. 1033 permits amendment to plead occurrences that happened after the original pleading. The Rule provides: A party, either by filed consent of the adverse party or by leave of court, may at any time change the form of action, correct the name of a party or amend his pleading. The amended pleading may aver transactions or occurrences which have happened before or after the filing of the original pleading, even though they give rise to a new cause of action or defense. An amendment may be made to conform the pleading to the evidence offered or admitted. Amendments are liberally allowed. Lateness is not grounds for denying leave to amend where the defense became available after the original pleadings were closed. The fact that an amendment may affect a plaintiffs case is not in itself a sufficient reason to deny the amendment. Capobianchi v. BIC Corp., 666 A.2d 344 (Pa. Super. 1995), app. denied, 544 Pa. 599, 674 A.2d 1065 (1996). (Defense of collateral estoppel may be raised by amended answer and new matter approximately three years after action filed, shortly before trial.) Amendment of new matter may be permitted even during trial. Pallante v. City of Philadelphia, 133 Pa. Commw. 441, 575 A.2d 980 (1990). The party opposing amendment must establish more than undue delay to overcome the policy of liberal amendment. Horowitz v. Universal Underwriters Insurance Co., 580 A.2d 395, 400 (Pa. Super. 1990), app. denied, 527 Pa. 610, 590 A.2d 297 (1991); Caroitella v. Consolidated Rail Corp., 533 A.2d 762 (Pa. Super. 1987). In this case, Defendants, Joseph P. Esposito, M.D. and Susquehanna Surgeons, Ltd. , moves to amend shortly after the defense became available as a result of the PHICO Liquidation Order. The February 1, 2002 Liquidation order started a statutory stay, "to permit proper defense by" the Pennsylvania Property and Casualty Insurance Guaranty Association. 40 P.S. § 991.1819(a). Defendants cannot be required to file a motion during the stay. As a result, no delay can be attributed to Defendants, Joseph P. Esposito, M.D. and Susquehanna Surgeons, Ltd. The Amended New Matter will plead two related defenses, the requirement to exhaust other insurance and the offset for recoveries under other insurance. 40 P.S. § 991.1817(a) provides: Any person having a claim under an insurance policy shall be required to exhaust first his right under such policy. For purposes of this section, a claim under an insurance policy shall include a claim under any kind of insurance, whether it is a first- party or a third-party claim, and shall include, without limitation, accident and health insurance, worker's compensation, Blue Cross and Blue Shield and all other coverages except for policies of an insolvent insurer. Anv amnun4 n -kl The definition of "exhaust" provides in pertinent part: The term, with respect to other insurance, means obtaining the maximum limit under the policy. 40 P.S. § 991.1802. This definition makes clear the strong legislative intent that policies of solvent insurance companies must pay as much as possible of any "covered claim." The exhaustion and offset defenses protect Defendants, the insureds of an insolvent insurer. If a plaintiff fails to exhaust other insurance, that plaintiff cannot recover a judgment against the insured of the insolvent insurer. Burke v. Valley Lines Inc., 617 A.2d 1335 (Pa. Super. 1992). The amount of an offset, not recoverable against the Pennsylvania Property and Casualty Insurance Guaranty Association, is also not recoverable from the insured of the insolvent insurer. Panea v. Isdaner, 773 A.2d 782 (Pa. Super. 2001), app. granted sub nom. Bell v. Slezak, 782 A.2d 509 (Pa. 2001). Defendants should be permitted to plead these defenses, which may require action by Plaintiff before trial. Pleading this new matter notifies Plaintiff to exhaust any other insurance or be barred from recovery of a later verdict, as in Burke. If Plaintiff recovers under other insurance, the new matter notifies her of a reduction in the amount recoverable in this case. IV. CONCLUSION For the above reasons, Defendants, Joseph P. Esposito, M.D. and Susquehanna Surgeons, Ltd., respectfully submit that they should be permitted to plead newly available defenses. Respectfully submitted, McKissock & Hoffman, P.C. By: t: Edwin A.D. Sch squire Attorney ID No.: 75902 Michael B. Volk, Esquire Attorney ID No.: 88553 2040 Linglestown Road Suite 302 Harrisburg, PA 17110 (717) 540-3400 Date: Z-Attorneys for Defendants, Joseph P. Esposito, M.D. and Susquehanna Surgeons, Ltd. CERTIFICATE OF SERVICE I hereby certify that I am this day serving a copy of the foregoing Memorandum of Law in Support of Motion for Leave to Amend New Matter upon the person(s) and in the manner indicated below, which service satisfies the requirements of the Pennsylvania Rules of Civil Procedure, by depositing a copy of same in the United Stales Mail, first-class postage prepaid, addressed as follows: April Strang-Kutay, Esquire Goldberg, Katzman & Shipman, P.C. 320 Market Street Harrisburg, PA 17108-1268 Leigh A.J. Ellis, Esquire Foulkrod Ellis 1800 Linglestown Road Suite 305 Harrisburg, PA 17110 McKissock & Hoffman, P.C. By: Edwin A.D. Schwartz s uire Attorney ID No.: 7590 Michael B. Volk, Esquire Attorney ID No.: 88553 2040 Linglestown Road Suite 302 Harrisburg, PA 17110 (717) 540-3400 Attorneys for Defendants, Joseph P. Esposito, M.D. and Susquehanna Surgeons, Ltd. Dated: ??a? =_ ,IUI. 2 A 2007 McKissock & Hoffman, P.C. By: Edwin A.D. Schwartz, Esquire I.D. 75902 By: Michael B. Volk, Esquire I.D. 88553 2040 Linglestown Road Suite 302 Harrisburg, PA 17110 (717) 540-3400 DIMITRA Plaintiff V. SAMBHU N. KUNDU, M.D., CENTRAL PENNSYLVANIA OBSTETRICS- GYNECOLOGY, INC., JOSEPH P. ESPOSITO, M.D. and SUSQUEHANNA SURGEONS, LTD., Attorneys for Defendants, Joseph P. Esposito, M.D. and Susquehanna Surgeons, Ltd. IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 99-6832 CIVIL ACTION - LAW JURY TRIAL DEMANDED MEMORANDUM OF LAW IN SUPPORT OF MOTION FOR LEAVE TO AMEND NEW MATTER 1. HISTORY OF THE CASE Plaintiff alleges that Dimitra Schild sustained injuries and damages as a result of alleged negligence of Joseph P. Esposito, M.D. and Susquehanna Surgeons, Ltd. Defendants, Joseph P. Esposito, M.D. and Susquehanna Surgeons, Ltd. , were insured under a policy issued by PHICO Insurance Company ("PHICO"). The Commonwealth Court of Pennsylvania entered an Order of Liquidation with a finding of insolvency against PHICO on February 1, 2002. as a result of the Liquidation Order, the provisions of 40 P.S. § 991.1917(a) apply to Plaintiffs claim. ? e The Pennsylvania Property and Casualty Insurance Guaranty Association has assumed the defense of Defendants, Joseph P. Esposito, M.D. and Susquehanna Surgeons, Ltd. , under the Pennsylvania Property and Casualty Insurance Guaranty Association Act, 40 P.S. §§ 991.1801 et sec l. The Pennsylvania Property and Casualty Insurance Guaranty Association has asserted that any amount that may be payable by it on behalf of Defendants, Joseph P. Esposito, M.D. and Susquehanna Surgeons, Ltd. , is reduced by the amount of Plaintiffs recovery under other insurance. Defendants, Joseph P. Esposito, M.D. and Susquehanna Surgeons, Ltd. , now moves to amend the New Matter to plead defenses that arose after the filing of the original Answer, as a result of the Liquidation Order. These defenses are the requirement to exhaust all other insurance, and the reduction of any amount that may be payable by Defendants, Joseph P. Esposito, M.D. and Susquehanna Surgeons, Ltd. , by the amount of recovery under other insurance, to the same extent as the reduction of any amount payable by the Pennsylvania Property and Casualty Insurance Guaranty Association. See Exhibit "A". II. STATEMENT OF QUESTION INVOLVED Should Defendants, Joseph P. Esposito, M.D. and Susquehanna Surgeons, Ltd. , be permitted to amend the new matter to plead defenses arising as a . esult of an event, the PHICO Liquidation order, that occurred after the filing of the original pleading? Suggested answer in the affirmative. III. ARGUMENT Pa.R.Civ.P. 1033 permits amendment to plead occurrences that happened after the original pleading. The Rule provides: A party, either by filed consent of the adverse party or by leave of court, may at any time change the form of action, correct the name of a party or amend his pleading. The amended pleading may aver transactions or occurrences which have happened before or after the filing of the original pleading, even though they give rise to a new cause of action or defense. An amendment may be made to conform the pleading to the evidence offered or admitted. Amendments are liberally allowed. Lateness is not grounds for denying leave to amend where the defense became available after the original pleadings were closed. The fact that an amendment may affect a plaintiffs case is not in itself a sufficient reason to deny the amendment. Capobianchi v. BIC Corp., 666 A.2d 344 (Pa. Super. 1995), app_ denied, 544 Pa. 599, 674 A.2d 1065 (1996). (Defense of collateral estoppel may be raised by amended answer and new matter approximately three years after action filed, shortly before trial.) Amendment of new matter may be permitted even during trial. Pallante v. City of Philadelphia, 133 Pa. Commw. 441, 575 A.2d 980 (1990). The party opposing amendment must establish more than undue delay to overcome the policy of liberal amendment. Horowitz v. Universal Underwriters Insurance Co., 580 A.2d 395, 400 (Pa. Super. 1990), app. denied, 527 Pa. 610, 590 A.2d 297 (1991); Carpitella v. Consolidated Rail Corp., 533 A.2d 762 (Pa. Super. 1987). In this case, Defendants, Joseph P. Esposito, M.D. and Susquehanna Surgeons, Ltd. , moves to amend shortly after the defense became available as a result of the PHICO Liquidation Order. The February 1, 2002 Liquidation Order started a statutory stay, "to permit proper defense by" the Pennsylvania Property and Casualty Insurance Guaranty Association. 40 P.S. § 991.1819(a). Defendants cannot be required to file a motion during the stay. As a result, no delay can be attributed to Defendants, Joseph P. Esposito, M.D. and Susquehanna Surgeons, Ltd. The Amended New Matter will plead two related defenses, the requirement to exhaust other insurance and the offset for recoveries under other insurance. 40 P.S. § 991.1817(a) provides: Any person having a claim under an insurance policy shall be required to exhaust first his right under such policy. For purposes of this section, a claim under an insurance policy shall include a claim under any kind of insurance, whether it is a first- party or a third-party claim, and shall include, without limitation, accident and health insurance, worker's compensation, Blue Cross and Blue Shield and all other coverages except for policies of an insolvent insurer. Any amount payable on a covered recovery under other insurance. (emphasis supplied). The definition of "exhaust" provides in pertinent part: The term, with respect to other insurance, means obtaining the maximum limit under the policy. 40 P.S. § 991.1802. This definition makes clear the strong legislative intent that policies of solvent insurance companies must pay as much as possible of any "covered claim." The exhaustion and offset defenses protect Defendants, the insureds of an insolvent insurer. If a plaintiff fails to exhaust other insurance, that plaintiff cannot recover a judgment against the insured of the insolvent insurer. Burke v. Valley Lines. Inc., 617 A.2d 1335 (Pa. Super. 1992). The amount of an offset, not recoverable against the Pennsylvania Property and Casualty Insurance Guaranty Association, is also not recoverable from the insured of the insolvent insurer. Panea v. Isdaner, 773 A.2d 782 (Pa. Super. 2001), app. rg anted sub nom. Bell v. Slezak, 782 A.2d 509 (Pa. 2001). Defendants should be permitted to plead these defenses, which may require action by Plaintiff before trial. Pleading this new matter notifies Plaintiff to exhaust any other insurance or be barred from recovery of a later verdict, as in Burke. If Plaintiff recovers under other insurance, the new matter notifies her of a reduction in the amount recoverable in this case. IV. CONCLUSION For the above reasons, Defendants, Joseph P. Esposito, M.D. and Susquehanna Surgeons, Ltd., respectfully submit that they should be permitted to plead newly available defenses. Respectfully submitted, McKissock & Hoffman, P.C. Date: a z By: Edwin A.D. Sch squire Attorney ID No.: 75902 Michael B. Volk, Esquire Attorney ID No.: 88553 2040 Linglestown Road Suite 302 Harrisburg, PA 17110 (717) 540-3400 Attorneys for Defendants Joseph o Esposito M.D. and Susquehanna Surgeons, CERTIFICATE OF SERVICE I hereby certify that I am this day serving a copy of the foregoing Memorandum of Law in Support of Motion for Leave to Amend New Matter upon the person(s) and in the manner indicated below, which service satisfies the requirements of the Pennsylvania Rules of Civil Procedure, by depositing a copy of same in the United States Mail, first-class postage prepaid, addressed as follows: April Strang-Kutay, Esquire Goldberg, Katzman & Shipman, P.C. 320 Market Street Harrisburg, PA 17108-1268 Leigh A.J. Ellis, Esquire Foulkrod Ellis 1800 Linglestown Road Suite 305 Harrisburg, PA 17110 McKissock & Hoffman, P.C. By: Edwin A.D.Schwartz squire Attorney ID No.: 7590 Michael B. Volk, Esquire Attorney ID No.: 88553 2040 Linglestown Road Suite 302 Harrisburg, PA 17110 (717) 540-3400 Attorneys for Defendants, Joseph P. Esposito, M.D. and Susquehanna Surgeons, Ltd. Dated: ? zz? z DIMITRA SCHILD, Plaintiff vs. SAMBHU N. KUNDU, M.D., CENTRAL PENNSYLVANIA OBSTETRICS-GYNECOLOGY, INC., JOSEPH P. ESPOSITO, M.D. : and SUSQUEHANNA SURGEONS: LTD., Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA 99-6832 CIVIL CIVIL ACTION - LAW JURY TRIAL DEMANDED IN RE: MOTION OF DEFENDANTS. JOSEPH P. ESPOSITO, M.D. AND SUSQUEHANNA SURGEONS. LTD. TO AMEND NEW MATTER ORDER AND NOW, this 3c' day of July, 2002, a rule is issued on all parties to show cause why the relief requested in the within motion ought not to be granted. This rule returnable twenty (20) days after service. BY THE COURT, __/ /? Kevin X. Hess, J. r + r M? F A , trLL, JUL 2 5 2002 McKissock & Hoffman, P.C. By: Edwin A.D. Schwartz, Esquire I.D. 75902 By: Michael B. Volk, Esquire I.D. 88553 2040 Linglestown Road Suite 302 Harrisburg, PA 17110 (717) 540-3400 Attorneys for Defendants, Joseph P. Esposito, M.D. and Susquehanna Surgeons, Ltd. Plaintiff V. SAMBHU N. KUNDU, M.D., CENTRAL PENNSYLVANIA OBSTETRICS- GYNECOLOGY, INC., JOSEPH P. ESPOSITO, M.D. and SUSQUEHANNA SURGEONS, LTD., Defendants IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 99-6832 CIVIL ACTION - LAW JURY TRIAL DEMANDED ORDER AND NOW, this day of 2002, upon consideration of the Motion to Amend New Matter of Defendants, Joseph P. Esposito, M.D. and Susquehanna Surgeons, Ltd. , and any responses, it is hereby ORDERED that the motion is GRANTED. It is further ORDERED that Defendants, Joseph P. Esposito, M.D. and Susquehanna Surgeons, Ltd. , may file amended new matter within twenty (20) days of the date of this Order. BY THE COURT: J. McKissock & Hoffman, P.C. By: Edwin A.D. Schwartz, Esquire I.D. 75902 By: Michael B. Volk, Esquire I.D. 88553 2040 Linglestown Road Suite 302 Harrisburg, PA 17110 (717) 540-3400 Plaintiff V. SAMBHU N. KUNDU, M.D., CENTRAL PENNSYLVANIA OBSTETRICS- GYNECOLOGY, INC., JOSEPH P. ESPOSITO, M.D. and SUSQUEHANNA SURGEONS, LTD., Attorneys for Defendants, Joseph P. Esposito, M.D. and Susquehanna Surgeons, Ltd. IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 99-6832 CIVIL ACTION - LAW JURY TRIAL DEMANDED MOTION FOR LEAVE TO AMEND NEW MATTER Defendants, Joseph P. Esposito, M.D. and Susquehanna Surgeons, Ltd., by and through their attorneys, McKissock & Hoffman, P.C., moves this Honorable Court for leave to amend the new matter filed in this action, on the following grounds: 1. Defendants, Joseph P. Esposito, M.D. and Susquehanna Surgeons, Ltd. , were insured under a policy issued by PHICO Insurance Company ("PHICO"). 2. The Commonwealth Court of Pennsylvania entered an Order of Liquidation with a finding of insolvency against PHICO on February 1, 2002. 3. As a result of the Liquidation Order, the provisions of 40 P.S. § 991.1817(a) apply to Plaintiffs claim. 4. The Liquidation order occurred since the filing of the original new matter and gives rise to new defenses that were not previously available. 5. The Pennsylvania Property and Casualty Insurance Guaranty Association has assumed the defense of Defendants, Joseph P. Esposito, M.D. and Susquehanna Surgeons, Ltd. , under the Pennsylvania Property and Casualty Insurance Guaranty Association Act, 40 P.S. §§ 991.1801 et seq. 6. Under the Pennsylvania Property and Casualty Insurance Guaranty Association Act, 40 P.S. §§ 991.1819(a), a stay of all proceedings from the date of the Liquidation Order to permit a proper defense of this action by the Pennsylvania Property and Casualty Insurance Guaranty Association. 7. The Pennsylvania Property and Casualty Insurance Guaranty Association has asserted that any amount that may be payable by it on behalf of Defendants, Joseph P. Esposito, M.D. and Susquehanna Surgeons, Ltd. , is reduced by the amount of Plaintiffs recovery under other insurance. 8. Plaintiffs recovery under other insurance reduces any amount that may be payable by Defendants, Joseph P. Esposito, M.D. and Susquehanna Surgeons, Ltd. , to the same extent as the recovery reduces any amount payable by the Pennsylvania Property and Casualty Insurance Guaranty Association. 9. Any failure to exhaust other insurance bars Plaintiffs recovery, if any, in this action. 40 P.S. § 991.1817(a). 10. The above defenses protect Defendants, Joseph P. Esposito, M.D. and Susquehanna Surgeons, Ltd. , in this action, as required under the Pennsylvania Property and Casualty Insurance Guaranty Association Act. 11. The pleading of the above defenses now will not prejudice Plaintiff. 12. A copy of the proposed Amended New Matter is attached as Exhibit "A". 13. The amended pleading is permitted under Pa.R.Civ.P. 1033 to plead an occurrence that happened after the filing of the original pleading. WHEREFORE, Defendants, Joseph P. Esposito, M.D. and Susquehanna Surgeons, Ltd. , requests this Honorable Court grant leave to file amended new matter. Respectfully submitted: McKissock & Hoffman, P.C. By: Edwin A.D. S Esquire Attorney ID No.: 75902 Michael B. Volk, Esquire Attorney ID No.: 88553 2040 Linglestown Road Suite 302 Harrisburg, PA 17110 (717) 540-3400 Date: Attorneys for Defendants, Joseph P. Esposito, M.D. and Susquehanna Surgeons, Ltd. Exhibit "A" McKissock & Hoffman, P.C. By: Edwin A.D. Schwartz, Esquire I.D. 75902 By: Michael B. Volk, Esquire I.D. 88553 2040 Linglestown Road Suite 302 Harrisburg, PA 17110 (717) 540-3400 SCHILD, V. Plaintiff SAMBHU N. KUNDU, M.D., CENTRAL PENNSYLVANIA OBSTETRICS- GYNECOLOGY, INC., JOSEPH P. ESPOSITO, M.D. and SUSQUEHANNA SURGEONS, LTD., Attorneys for Defendants, Joseph P. Esposito, M.D. and Susquehanna Surgeons, Ltd. IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 99-6832 CIVIL ACTION - LAW JURY TRIAL DEMANDED Defendants Joseph P. Esposito, M.D. and Susquehanna Surgeons, Ltd. (hereinafter collectively referred to as "Defendants" unless otherwise indicated by syntax) incorporate by reference their previously filed New Matter. 2. Defendants were insured under a policy issued by PHICO Insurance Company ("PHICO"). 3. The Commonwealth Court of Pennsylvania entered an Order of Liquidation with a finding of insolvency against PHICO on February 1, 2002. 4. As a result of the Liquidation Order, the provisions of 40 P.S. § 991.1817(a) apply to Plaintiffs claims. 5. Plaintiff is required to exhaust first her rights under any insurance policy, including but not limited to claims under accident and health insurance, worker's compensation, Blue Cross and Blue Shield, and all other coverages except for policies of an insolvent insurer. 6. Any failure to exhaust other insurance bars Plaintiff's recovery, if any, in this action. Upon information and belief, bills or damages related to the loss for which Plaintiff seeks recovery in this action were paid or are payable under accident and health insurance, Blue Cross and Blue Shield, workers' compensation insurance, or other insurance. 8. The Pennsylvania Property and Casualty Insurance Guaranty Association has asserted that any amounts that may be payable by it on behalf of Defendants is reduced by the amount of Plaintiffs recovery under other insurance. 9. Plaintiffs recovery under other insurance reduces any amount that may be found to be payable by Defendants in this action, to the same extent as the recovery reduces any amount payable by the Pennsylvania Property and Casualty Insurance Guaranty Association. WHEREFORE, Defendants Joseph P. Esposito, M.D. and Susquehanna Surgeons, Ltd. demands judgment in his favor. Respectfully submitted, McKissock & Hoffman, P.C. By: Edwin A.D. Schwartz, Esquire Attorney ID No.: 75902 Michael B. Volk, Esquire Attorney ID No.: 88553 2040 Linglestown Road Suite 302 Harrisburg, PA 17110 (717) 540-3400 Date: Attorneys for Defendants, Joseph P. Esposito, M.D. and Susquehanna Surgeons, Ltd. CERTIFICATE OF SERVICE I hereby certify that I am this day serving a copy of the foregoing Motion for Leave to Amend New Matter upon the person(s) and in the manner indicated below, which service satisfies the requirements of the Pennsylvania Rules of Civil Procedure, by depositing a copy of same in the United States Mail, first-class postage prepaid, addressed as follows: April Strang-Kutay, Esquire Goldberg, Katzman & Shipman, P.C. 320 Market Street Harrisburg, PA 17108-1268 Leigh A.J. Ellis, Esquire Foulkrod Ellis 1800 Linglestown Road Suite 305 Harrisburg, PA 17110 McKissock & Hoffman, P.C. By: Edwin A.D. Schwart re Attorney ID No.: 75902 Michael B. Volk, Esquire Attorney ID No.: 88553 2040 Linglestown Road Suite 302 Harrisburg, PA 17110 (717) 540-3400 Attorneys for Defendants, Joseph P. Esposito, M.D. and Susquehanna Surgeons, Ltd. /z? o? Dated: SEP 0 G 2007 McKissock & Hoffman, P.C. By: Edwin A.D. Schwartz, Esquire I.D. 75902 By: Michael B. Volk, Esquire I.D. 88553 2040 Linglestown Road Suite 302 Harrisburg, PA 17110 (717) 540-3400 Plaintiff V. SAMBHU N. KUNDU, M.J., CENTRAL PENNSYLVANIA OBSTETRICS- GVNECOLOGY, INC., JOSEPH P. ESPOSITO, M.D. and SUSQUEHANNA SURGEONS, LTD., Attorneys for Defendants, Joseph P. Esposito, M.D. and Susquehanna Surgeons, Ltd. IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 99-6832 CIVIL ACTiON - LAW JURY TRIAL DEMANDED ORDER OF COURT AND NOW, this T day of September, 2002, upon consideration of Petition to Make Rule Absolute filed by Defendants, Joseph P. Esposito, M.D. and Susquehanna Surgeons, Ltd., the Rule issued on August 29, 2002 is made absolute and permits Defendants to file their Amended New Matter. q q O? Do ti Ci r By the Court: . ? CI G__? McKissock & Hoffman, P.C. By: Edwin A.D. Schwartz, Esquire I.D. 75902 By: Michael B. Volk, Esquire I.D. 88553 2040 Linglestown Road Suite 302 Harrisburg, PA 17110 (717) 540-3400 DIMITRA Plaintiff V. SAMBHU N. KUNDU, M.D., CENTRAL PENNSYLVANIA OBSTETRICS- GYNECOLOGY, INC., JOSEPH P. ESPOSITO, M.D. and SUSQUEHANNA SURGEONS, LTD., Defendants Attorneys for Defendants, Joseph P. Esposito, M.D. and Susquehanna Surgeons, Ltd. IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 99-6832 CIVIL ACTION - LAW JURY TRIAL DEMANDED PETITION TO MAKE RULE ABSOLUTE AND NOW, comes the Defendants Joseph P. Esposito, M.D., and Susquehanna Surgeons, Ltd., (hereinafter referred to as "Defendants"), by and through their attorneys, McKissock & Hoffman, P.C., in support of their Petition to Make Rule Absolute, aver the following: 1. On or about July 24, 2002, Defendants filed a Motion for Leave to Amend New Matter. 2. On or about July 30, 2002, the Honorable Judge Kevin A. Hess issued a Rule Returnable upon all non-moving parties to show cause why the relief requested by Defendants' Motion should not be granted. The Rule was returnable twenty (20) days after service. A true and correct copy of said Rule is attached hereto as Exhibit "A". 3. A copy of said Rule was served on all parties by the Court on or about August 5, 2002. See correspondence dated August 5, 2002 from Defendants' counsel to plaintiff's counsel, a copy of which is attached hereto as Exhibit "B". 4. More than twenty (20) days have elapsed since the service of the Rule and to date, no response has been filed by Plaintiff. WHEREFORE, Defendants respectfully requests that this Honorable Court make the Rule absolute and enter an Order permitting Defendants' leave to file their Amended New Matter. Respectfully submitted: McKissock & Hoffman, P.C. Date: Z9 c2 By: 4a Edwin A.D. Schwartz, ire Attorney ID # 75902 Michael B. Volk, Esquire Attorney ID # 88553 2040 Linglestown Road Suite 302 Harrisburg, PA 17110 (717) 540-3400 Attorneys for Defendants, Joseph P. Esposito, M.D. and Susquehanna Surgeons, Ltd. EXHIBIT A" DIMITRA SCHILD, Plaintiff VS. SAMBHU N. KUNDU, M.D., CENTRAL PENNSYLVANIA OBSTETRICS-GYNECOLOGY, INC., JOSEPH P. ESPOSITO, M.D. and SUSQUEHANNA SURGEONS: LTD., Defendants IN THE COUR"1' OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA 99-6832 CIVIL CIVIL ACTION - LAW JURY TRIAL DEMANDED IN RE: MOTION OF DEFENDANTS JOSEPH P ESPOSITO M.D. AND SUSQUEHANNA SURGEONS. LTD. TO AMEND NEW MATTER ORDER AND NOW, this 30 day of July, 2002, a rule is issued on all parties to show cause why the relief requested in the within motion ought not to be granted. This rule returnable twenty (20) days after service. BY THE COURT, Kevin ' * Hess, J. In '^dcii it i1V Y ?:(:i i:1 , : Id.r,? ?•;j:: y' [;n'" !t?J Ti r 1yy(t?_ a ???44r?G. Q1,00?.2 EXHIBIT "B" MCKISSOCK & HOFFMAN A PROITSSIONALCORPORATION EDWINA D. SCHWARTZ Died Dil 7171540-3400 Ea 24 a?AMMU?OnhMPc9m April Strang-Kutay, Esquire Goldberg, Katzman & Shipman, P.C. 320 Market Street Harrisburg, PA 17108-1268 ATTORNEYS AT LAW 2040 LINGLESTOWN ROAD SUITE 302 HARRISBURG, PA 17110 PHONE: (717) 540-3400 FAX: (717) 540-3434 WWWMRIUPWM August 5, 2002 Re: Schlld v. Esposito. M.D., et al. CCP -Cumberland County Docket #: 99-6832 Our File #: 872-201 Dear Ms. Strang-Kutay: 1700 AURKETSIREET SUITE 3000 PIIILADIEPIIIA. PA 19103 (215)24&21W FAX: (215) 262144 16 NORTH FRANKLIN STREET SURE 300 DOYLES20WN.PA 18901 (215) 3454501 FAX: (215) 3454503 25 OfESTNVr STREET SURE 108 HADDONFIEID•N108133 (S56)429.7200 FAX (856) 439-0099 105 E. EVANS STREET. SUITE D P.O. BOX 3086 WESTCHESIER.PA 19381 (610)71&8850 FAX (610) 7389121 Enclosed for service upon is an Order dated July 30, 2002 as issued by the Honorable Kevin A. Hess granting a Rule to Show Cause why Defendants, Joseph E. Esposito, M.D. and Susquehanna Surgeons, Ltd.'s, Motion for Leave to Amend New Matter should not be granted. I am providing you with a copy of the enclosed in order to comply with the Rules of Services pertaining to this matter. If you have any questions, please do not hesitate to contact me. Sincerely, 99 U ch Esquire McKissock & Hoffman, P.C. EAS/mjh Enclosure cc: Leigh A.J. Ellis, Esq. CERTIFICATE OF SERVICE I hereby certify that I am this day serving a copy of the foregoing Petition to Make Rule Absolute upon the person(s) and in the manner indicated below, which service satisfies the requirements of the Pennsylvania Rules of Civil Procedure, by depositing a copy of same in the United States Mail, first-class postage prepaid, addressed as follows: April Strang-Kutay, Esquire Goldberg, Katzman & Shipman, P.C. 320 Market Street Harrisburg, PA 17108-1268 Leigh A.J. Ellis, Esquire Foulkrod Ellis 1800 Linglestown Road Suite 305 Harrisburg, PA 17110 McKissock & Hoffman, P.C. By: Edwin A.D. Schwartz, ire Attorney ID #75902 Michael B. Volk, Esquire Attorney ID #88553 2040 Linglestown Road Suite 302 Harrisburg, PA 17110 (717) 540-3400 Attorneys for Defendants, Joseph P. Esposito, M.D. and Susquehanna Surgeons, Ltd. Dated: O 6 z 1 ' .J :1- C l l'J o U CERTIFICATE PREREQUISITE TO SERVICE OF A SUBPOENA PURSUANT TO RULE 4009.22 IN THE MATTER OF: COURT OF COMMON PLEAS DIMITRA SCHILD TERM, -VS- CASE NO: 99-6832 SAMBHU N. RUNDU, M.D. 5f AL As a prerequisite to service of a subpoena for documents and things pursuant to Rule 4009.22 MCS on behalf of LEIGH A.J. ELLIS, 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. on be Q. W DATE: 03/31/2003 EIG A. S ES Attorney for DEFENDANT DE11-402796 2 5 2 9 6 - L 0 1 Y COMMONWEALTH OF P E NN S Y LVAN ]:A C OUN T Y OF CUMBER LAN D IN THE MATTER OF: COURT OF COMMON PLEAS DIMITRA SCHILD -VS- SAMBHU N. KUNDU, M.D. ET AL PAUL FAIRBROTHER, M.D. SAMIR J. SROUJI, M.D. COLLEEN FOOS, M.D. JOAN MONTELL, M.D. MEDICAL RECORDS MEDICAL RECORDS MEDICAL RECORDS MEDICAL RECORDS TERM, CASE NO: 99-6832 TO: PAUL E SCANLAN,ESQUIRE -APRIL STRANG-KUTAY ESQUIRE MCS on behalf of LEIGH A.J. ELLIS, 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: 03/11/2003 MCS on behalf of LEIGH A.J. ELLIS, ESQ. Attorney for DEFENDANT CC: LEIGH A.J. ELLIS, ESQ. - FEPC03282 Any questions regarding this matter, contact THE MCS GROUP INC. 1601 MARKET STREET 0800 PHILADELPHIA, PA 19103 (215) 246-0900 DE02-218537 2 5 2 9 6- C O 2 COMMONWEALTH OF PENNSYLVANIA COUNTY OF CUMBERLAND DIMITRA SCHILD VS File No. 99-6832 SAMBHU N. KUNDU, MD. D, ET AL SUBPOENA TO PRODUCE DOCUMENTS OR THINGS FOR DISCOVERY PURSUANT TO RULE 4009.22 TO: CUSTODIAN OF RECORDS FOR: PAUL FAIRBROTHER, M.D. (Name of Person or Entity) Within twenty (20) days after service of this subp SEE ATTACHED red by the court to produce the following documents or things: lure r_vntm Txr._ 1601 MARKET ST., 11800, PHILA.,PA 19103 at (Address) 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: LEIGH A.J. ELLIS, ESQ. ADDRESS: 1800 LINGLESTOWN RD., STE 305 HARRISBURG PA 17110 TELEPHONE: 215-246-0900 SUPREME COURT ID #: ATTORNEY FOR: DEFENDANT 03/31/2003 B T E LOUR DATE: Prolhonotar)/CIeEk, Civil Divi. on D Puty Seal of the Court (Eff. 7/97) EXPLANATION OF REQUIRED RECORDS TO: CUSTODIAN OF RECORDS FOR: PAUL FAIRBROTHER, M.D. 2626 N. 3RD STREET HARRISBURG, PA 17110 RE: 25296 DIMITRA SCHILD Entire medical file, including but not limited to any and all records, correspondence to and from the consulting and treating physicians, files, memoranda, handwritten notes, history and physical reports, medication/ prescription records, including any and all such items as may be stored in a computer database or otherwise in electronic form, relating to any examination, diagnosis or treatment pertaining to: Dates Requested: up to and including the present. Subject : DIMITRA SCHILD 5005 SENECA DRIVE, MECHANICSBURG, PA 17055 Social Security N: 160-52-9783 Date of Birth: 10-27-1969 SU10-429362 25296-1,01 CERTIFICATE PREREQUISITE TO SERVICE OF A SUBPOENA PURSUANT TO RULE 4009.22 IN THE MATTER OF: COURT OF COMMON PLEAS DIMITRA SCHILD TERM, -VS- CASE NO: 99-6832 SAMBHU N. RUNDU, M.D. ET AL As a prerequisite to service of a subpoena for documents and things pursuant to Rule 4009.22 MCS on behalf of LEIGH A.J. ELLIS, 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 tc 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: 03/31/2003 LEIGH A.J. ELLIS, ESQ. Attorney for DEFENDANT DE11-402797 2S296-T,02 COMMONWEALTH OF P E NN S y L VAN 2 A COUNT y OF CUMBER LAND IN THE MATTER OF: COURT OF COMMON PLEAS DIMITRA SCHILD -VS- SAMBHU N. KUNDU, M.D. ET AL PAUL FAIRBROTHER, M.D SAMIR J. SROUJI, M.D. COLLEEN FOOS, M.D. JOAN MONTELL, M.D. MEDICAL RECORDS MEDICAL RECORDS MEDICAL RECORDS MEDICAL RECORDS TERM, CASE NO: 99-6832 TO: APRIL STRANG-KUTAY ESQUIRE PAUL E SCANLAN,ESQUIRE MCS on behalf of LEIGH A.J. ELLIS, 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: 03/11/2003 CC: LEIGH A.J. ELLIS, ESQ. - FEPC13282 MCS on behalf of LEIGH A.J. ELLIS, ESQ. Attorney for DEFENDANT Any questions regarding this matter, contact THE MCS GROUP INC. 1601 MARKET STREET 1800 PHILADELPHIA, PA 19103 (215) 246-0900 DE02-218536 25296-COX COMMONWEALTH OF PENNSYLVANIA COUNTY OF CUMBERLAND DIMITRA SCHILD VS SAMBHU N. KUNDU, MD. D, ET AL File No. 99-6832 SUBPOENA TO PRODUCE DOCUMENTS OR THINGS FOR DISCOVERY PURSUANT TO RULE 4009.22 TO: CUSTODIAN OF RECORDS FOR: SANTR SROUJI, M.D. (Name of person or Entity) Within twenty (20) days after service of this subpoetu, you are ordered by the court to produce the following documents or things: SEE ATTACHED at MCS GROUP INC., 1601 MARKET ST., 11800, PHILA.,PA 19103 (Address) 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. LEIGH A.J. ELLIS, ESQ. ADDRESS: 1800 LINGLESTOWN RD., STE 305 HARRISBURG. PA 17110 TELEPHONE.. 215-246-0900 SUPREME COURT MO.- ATTORNEY FOR nFn mANT 03/31.42003 /?y) BRT Lt? DATE: '4 t 7' 9613 /S ProthonotaryCl;rk it Divbi Deputy Seal of the Court (Eff. 7/97) EXPLANATION OF REQUIRED RECORDS TO: CUSTODIAN OF RECORDS FOR: SAMIR J. SROUJI, M.D. 3438 TRINDLE ROAD CAMP HILL, PA 17011 RE:25296 DIMITRA SCHILD Entire medical file, including but not limited to any and all records, correspondence to and from the consulting and treating physicians, files, memoranda, handwritten notes, history and physical reports, medication/ prescription records, including any and all such items as may be stored in a computer database or otherwise in electronic form, relating to any examination, diagnosis or treatment pertaining to: Dates Requested: up to and including the present. Subject : DIMITRA SCHELD 5005 SENECA DRIVE, MECHANICSBURG, PA 17055 Social. Security N: 160-52-9783 Date of Birth: 10-27-1969 SU10-429364 25296-L 02 CERTIFICATE PREREQUISITE TO SERVICE OF A SUBPOENA PURSUANT TO RULE 4009.22 IN THE MATTER OF: COURT OF COMMON PLEAS DIMITRA SCHILD TERM, -VS- CASE NO: 99-6832 SAMBHU N. KUNDU, M.D. ET AL As a prerequisite to service of a subpoena for documents and things pursuant to Rule 4009.22 MCS on behalf of LEIGH A.J. ELLIS, 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 s^.rve the subpoena. MCS on behalf of DATE: 03/31/2003 LEIGH A.J. ELLIS, ESQ. Attorney for DEFENDANT DE11-402798 25296-1,03 C O M M O N W EAL 117H OF P E NN S Y L VAN 12k COUNT Y OF CUMBER LAN D IN THE MATTER OF: COURT OF COMMON PLEAS DIMITRA SCHILD -VS- SAMBHU N. KUNDU, M.D. ET AL PAUL FAIRBROTHBR, M.D. SAMIR J. SROUJI, X.D. COLLEEN FOOS, M.D. JOAN MONTELL, M.D. MEDICAL RECORDS MEDICAL RECORDS MEDICAL RECORDS MEDICAL RECORDS TERM, CASE NO: 99-6832 TO: APRIL STRANG-KUTAY ESQUIRE PAUL H SCANLAN,HSQDIRE MCS on behalf of LEIGH A.J. ELLIS, 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: 03/11/2003 CC: LEIGH A.J. HLLIS, ESQ. - FBPCt3282 MCS on behalf of LEIGH A.J. ELLIS, ESQ. Attorney for DEPENDANT Any questions regarding this matter, contact THE MCS GROUP INC. 1601 MARKET STREET 1800 PHILADELPHIA, PA 19103 (215) 246-0900 DR02-218536 2 5 2 9 6- C O 3- COMMONWEALTH OF PENNSYLVANIA COUNTY OF CUMBERLAND DIMITRA SCHILD VS File No. _99-6812 SAMBHU N. KUNDU, MD.D, ET AL SUBPOENA TO PRODUCE DOCUMENTS OR THINGS FOR DISCOVERY PURSUANT TO RULE 4009.22 TO: CUSTODIAN OF RECORDS FOR: COLLEEN FOOS, MD. (Name of Penan or 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 MCS GROUP INC., 1601 MARKET ST., 11800, PHILA.,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: LEIGH A.J. ELLIS, ESQ. ADDRESS: 1800 LINGLESTOWN RD., STE 305 HARRISBURG, PA 17110 TELEPHONE: 215-246-0900 SUPREME COURT ID # ATTORNEY FOR: . T)pPEjMANT ?Q13/31/p?003 By COURT: DATE: _ ?lttec.J?. L/, o?U LL/( ul> Prothonotary/Clerk C 1 Divi.'a Deputy Seal of the Court (Eff. 7/97) EXPLANATION OF REQUIRED RECORDS TO: CUSTODIAN OF RECORDS FOR: COLLEEN FOOS, M.D. 9 FLOWERS DRIVE MECHANICSBURG, PA RE: 25296 DIMITRA SCHILD Entire medical file, including but not limited to any and all records, correspondence to and from the consulting and treating physicians, files, memoranda, handwritten notes, history and physical reports, medication/ prescription records, including any and all such items as may be stored in a computer database or otherwise in electronic form, relating to any examination, diagnosis or treatment pertaining to: Dates Requested: up to and including the present. Subject : DIMITRA SCHILD 5005 SENECA DRIVE, MECHANICSBURG, PA 17055 Social Security N: 160-52-9783 Date of Birth: 10-27-1969 SU10-429366 25296-1,03 CERTIFICATE PREREQUISITE TO SERVICE OF A SUBPOENA PURSUANT TO RULE 4009.22 IN THE MATTER OF: COURT OF COMMON PLEAS DIMITRA SCHILD TERM, -VS- CASE NO: 99-6832 SAMBHU N. BUNDU, M. D. ET AL As a prerequisite to service of a subpoena for documents and things pursuant to Rule 4009.22 MCS on behalf of LEIGH A.J. ELLIS, 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: 03/31/2003 LEIGH A.J. ELLIS, ESQ. Attorney for DEFENDANT DE11-402799 25296-1,04 COMMONWEALTH OF PENNSYLVANIA COUNTY OF CUMBERLAND IN THE MATTER OF: DIMITRA SCHILD -VS- SAMBHU N. KUNDU, M.D. ET AL PAUL FAIRBROTHER, M.D SAMIR J. SROUJI, M.D. COLLEEN FOOS, M.D. JOAN MONTELL, M.D. MEDICAL RECORDS MEDICAL RECORDS MEDICAL RECORDS MEDICAL RECORDS COURT OF COMMON PLEAS TERM, CASE NO: 99-6832 TO: APRIL STRANG-KUTAY ESQUIRE PAUL E SCANLAN,HSQUIRH MCS on behalf of LEIGH A.J. ELLIS, 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: 03/11/2003 CC: LEIGH A.J. ELLIS, ESQ. - PEPC03282 Any questions regarding this matter, contact MCS on behalf of LEIGH A.J. ELLIS, ESQ. Attorney for DEFENDANT THE MCS GROUP INC. 1601 MARKET STREET 1800 PHILADELPHIA, PA 19103 (215) 246-0900 DE02-218536 25296-COI COMMONWEALTH OF PENNSYLVANIA COUNTY OF CUMBERLAND DIMITRA SCHILD VS SAMBHU N. KUNDU, :D).D, ET AL File No. 99-6832 SUBPOENA TO PRODUCE DOCUMENTS OR THINGS FOR DISCOVERY PURSUANT TO RULE 4009.22 TO: CUSTODIAN OF RECORDS FOR: JOAN MONTELL, M.D. (Name of person or 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 MCS GROUP INC., 1601 MARKET ST., 11800, PHILA.,PA 19103 (Address) 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. LEIGH A.J. ELLIS, ESQ. ADDRESS: 1800 LINGLESTOWN RD., STE 305 HARRISBURG. PA 17110 TELEPHONE: 215-246-0900 SUPREME COURT ID f: ATTORNEY FOR: nFFMANT 3/31/ 003 B T • COURT: DATE: ?/r1T1 -7? n Prothonotary/Clerk Cl 't ivisi Deputy Seal of the Court (Eff. 7/97) EXPLANATION OF REQUIRED RECORDS TO: CUSTODIAN OF RECORDS FOR: JOAN MONTELL, M.D. 220 WILSON STREET CARLISLE, PA RE: 25296 DIMITRA SCHILD Entire medical file, including but not limited to any and all records,, correspondence to and from the consulting and treating physicians, files, memoranda, handwritten notes, history and physical reports, medication/ prescription records, including any and all such items as may be stored in a computer database or otherwise in electronic form, relating to any examination, diagnosis or treatment pertaining to: Dates Requested: up to and Including the present. Subject : DIMPPRA SCHILD 5005 SENECA DRIVE, MECHANICSBURG, PA 17055 Social Security b: 160-52-9783 Date of Birth: 10-27-1969 SU10-423368 25296-L 04 ti ;> U U i April L Strang-xuuy, Psquire I.U. No. 46728 Goldberg, Kalman & Shipman, P.C. P.O. Box 1268 Harrisburg. PA 17108.1268 (717) 2344161 Attomey far Plaintiff DIMITRA SCHILD Plaintiff V. SAMBHU N. KUNDU, M.D., CENTRAL PENNSYLVANIA OBSTETRICS- GYNECOLOGY, INC., JOSEPH P. ESPOSITO, M.D., and SUSQUEHANNA SURGEONS, LTD. Defendants IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PA NO. 99-6832-Civil CIVIL ACTION - LAW JURY TRIAL DEMANDED PLAINTIFF DIMITRA SCHILD'S RESPONSE TO NEW MATTER OF DEFENDANTS JOSEPH P. ESPOSITO, M.D. AND SUSQUEHANNA SURGEONS, LTD. 52. No response is required. 53. Denied. Paragraph 953 states a conclusion of law to which no answer is required. To the extent that an answer is required, a denial is made. 54. Denied. Paragraph 954 states a conclusion of law to which no answer is required. To the extent that an answer is required, a denial is made. 55. Denied. Paragraph #55 states a conclusion of law to which no answer is required. To the extent that an answer is required, a denial is made. 56. Denied. Paragraph 956 states a conclusion of law to which no answer is required. To the extent that an answer is required, a denial is made. 57. Denied. Paragraph #57 states a conclusion of law to which no answer is required. To the extent that an answer is required, a denial is made. 58. Denied. Paragraph #58 states a conclusion of law to which no answer is required. To the extent that an answer is required, a denial is made. 59. Denied. Paragraph #59 states a conclusion of law to which no answer is required. To the extent that an answer is required, a denial is made. 60. Denied. Paragraph 960 states a conclusion of law to which no answer is required. To the extent that an answer is required, a denial is made. 61. Denied. Paragraph #61 states a conclusion of law to which no answer is required. To the extent that an answer is required, a denial is made. 62. Denied. Paragraph #62 states a conclusion of law to which no answer is required. To the extent that an answer is required, a denial is made. 63. Denied. Paragraph 463 states a conclusion of law to which no answer is required. To the extent that an answer is required, a denial is made. 64. Denied. Paragraph #64 states a conclusion of law to which no answer is required. To the extent that an answer is required, a denial is made. 65. Denied. 66. Plaintiff is without knowledge as to the truth or falsity of this averment, and it is therefore denied. 67. Denied. Paragraph #67 states a conclusion of law to which no answer is required. To the extent that an answer is required, a denial is made. 68. Denied. 69. Denied as stated. Defendants may or may not be entitled to a contribution under the Pennsylvania Comparative Negligence Act, 42 P. S. § 7102. 70. No response is required. Goldberg, Katzman & Shipman, P.C. B A4Ltrang- tay, Esquire I.D. No. 46728 320 Market Street Strawberry Square P.O. Box 1268 Harrisburg, PA 17108-1268 (717) 234-4161 Date: CERTIFICATE OF SERVICE I hereby certify that I served a copy of the foregoing document upon the person(s) indicated below by depositing a copy of the same in the United States mail, postage prepaid, at Harrisburg, Pennsylvania and addressed as follows: Paul E. Scanlan, Esquire Duane, Morris & Heckscher PO Box 1003 Harrisburg, PA 17108-1003 Attorney for Defendants Esposito and Susquehanna Surgeons S. Walter Foulkrod, III, Esquire 1800 Linglestown Rd., Suite 305 Harrisburg, PA 17110 Attorney for Defendant, Sambhu N. Kundu, M.D. Date: GOLDBERG, KATZMANN &?S7HIPMAN, P.C. BY: f+ _/ April Strang-Kdtayf Esquire Attorney for Plaintiff is ?:.. ?. r-i - - I - ?:.. ? _. i -.. ?_? !? CERTIFICATE PREREQUISITE TO SERVICE OF A SUBPOENA PURSUANT TO RULE 4009.221F COURT OF COMMON PLEAS IN THE MATTER OF. TERM. 0 DIMITRA SCHILD CASE NO: 99-6832 -VS- SAMBHU N. KUNDU, M.D., ET AL As a prerequisite to service of a subpoena for documents and things pursuant to Rule 4009.22 MCS on behalf of S NALmva FOULKROD ESQUIRE defendant certifies tttar (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 the certificate, (3) No objection to the subpoena has been received, and which will (4) iseattachedato the noticeeofe inrved which c WALTER FOULKROD ESQUIRE DATE: 03/27/2000 Attorney for DEFENDANT DF.11-16931.5. y174S-1 -T.0 C OMMO NWEAL T H OF P E N N S YI-VAN =A COUNT 'Z OF C IJMB E RI-A N D IN THE MATTER OF: COURT OF COMMON PLEAS DIMITRA SCHILD -VS- SAMBHU N. KUNDU, M.D., ET AL TERM, 0 CASE NO: 99-6832 NOTICE OF INTENT TO SERVE A SUBPOENA TO PRODUCE DOCUMENTS HOLY SPIRIT HOSPITAL MEDICAL TO: APRIL L. STANG-KUTAY ESQ PAUL E SCANLAN,ESQUIRE MCS on behalf of S. WALTER FOULKROD, ESQUIRE 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 no objection is made the subpoena may be served pursuant to the applicable Pennsylvania Rules of Civil Procedure 4009.24. 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: 03106/2000 CC: S. WALTER FOULKROD, ESQUIRE - SWF13282 WILLIAM BOLTZ - Any questions regarding this matter, contact MCS on behalf of S. WALTER FOULKROD, ESQUIRE Attorney for DEFENDANT THE MCS GROUP INC. 1601 MARKET STREET 1800 PHILADELPHIA, PA 19103 (215) 246-0900 DE02-115814 2 2 4 8 1- C O 3 -i COMMONWEALTH OF PENNSYLVANIA COUNTY OF CUMBERLAND DIMITRA SCHILD VS SAMBHU N. KUNDU, M.D., ET AL File No. 99-6832 SUBPOENA TO PRODUCE DOCUMENTS OR THINGS FOR DISCOVERY PURSUANT TO RULE 4009.22 TO: CUSTODIAN OF RECORDS FOR: HOLY SPIRIT HOSPITAL (Name of Person or 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 MCS GROUP INC. 1601 MARKET STREET SUITE 800 PHILADELPHIA PA 19103 (Address) 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 OFTHE FOLLOWING PERSON: NAME: S. WALTER FOULKROD, ESQUIRE ADDRESS: 1800 LINGLESTOWN ROAD. STE. 305 HARRISBURG PA 17110 TELEPHONE: (215) 246-0900 SUPREME COURT ID #: ATTORNEY FOR: THE DEFENDANT BY TT: DATE: I'rothonotaryxIerk, Civil ' ' 'on n , D (puty Seal of the Court EXPIANATION OF REQUIRED RECORDS TO. CUSTODIAN OF RECORDS POR: IIOLY SillRI'I' IIOSPITAL 503 N. 21ST STRilurr CAMP HILL, PA 17011 RE: 22481 DIMI'1'RA SCIIILD Any sand to any examination, cconsultation care or troy ment handwritten note, Dates Requested: up to and including the present- Subject: DIMITRA SCIIILD 5005 SENECA DRIVE, MECIIANICSBURG, PA 17055 Social Security /!: 160-52-9783 Date of Birth: 10-27-1969 SU10-237766 22481-L03- ?n r n" u ; ?- ?? .( I •• U .??_ LL i ? 1'. .? ?l .?? b ' c-O 1:-.? C:i -d ?` - iJ1.U ?? r_ p -1 c.`. O (J DIMITRA SCIIILD, Plaintiff VS. SAMBHU N. KUNDU, M.D., CENTRAL PENNSYLVANIA OBSTETRICS-GYNECOLOGY, INC., JOSEPH P. ESPOSITO, M.D. and SUSQUEHANNA SURGEONS : LTD., Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA 99-6832 CIVIL CIVIL ACTION - LAW JURY TRIAL DEMANDED IN RE: STATUS CONFERENCE ORDER AND NOW, this G day of September, 2003, following conference with counsel in chambers, the court directs the following pretrial schedule: 1. Discovery in this case will be completed on or before the close of business January 16, 2004. 2. The plaintiff's expert reports shall be forthcoming on or before January 30, 2004. 3. The defendants' expert reports shall be forthcoming on or before February 28, 2004. 4. Any response to expert reports will be due on or before March 30, 2004. 5. All dispositive motions shall be filed no later than February 10, 2004. Notwithstanding, any party may list this case for the trial term in May 2004, and counsel are herewith attached for trial during that term. This order is entered without prejudice to counsel for Dr. Esposito, Edwin Schwartz, CI' 03 SEP 26 Esquire, to seek a modification in the that event his client has not been dismissed from the case and he has a conflict with military duties. Ronald Katzman, Esquire For the Plaintiff Edwin Schwartz, Esquire Michael Mongiello, Esquire ?.. For the Defendants BY THE COURT, Kevin . 1-less, J. :rlm JAN 22004 IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 99-6832 CIVIL ACTION - LAW JURY TRIAL DEMANDED ORDER AND NOW, this z'L.4 day of q"_ , 2004, in accordance with the filed Stipulation of the parties, it is hereby ORDERED that, Joseph P. Esposito, M.D. and Susquehanna Surgeons, LTD., are hereby dismissed from the within action. The caption shall be modified as follows: Plaintiff V. SAMBHU N. KUNDU, M.D., CENTRAL PENNSYLVANIA OBSTETRICS- GYNECOLOGY, INC., JOSEPH P. ESPOSITO, M.D. and SUSQUEHANNA SURGEONS, LTD., Plaintiff V. SAMBHU N. KUNDU, M.D, and CENTRAL PENNSYLVANIA OBSTETRICS- GYNECOLOGY, INC., Defendants Ar? IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 99-6832 CIVIL ACTION - LAW JURY TRIAL DEMANDED By the Court ?Ii ,J yi ?... '.1.1 . ? CIVIL ACTION - LAW JURY TRIAL DEMANDED STIPULATION FOR DISMISSAL AND NOW, come counsel for all parties as set forth in the caption above and stipulate DIMITRA V. Plaintiff IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 99-6832 SAMBHU N. KUNDU, M.D., CENTRAL PENNSYLVANIA OBSTETRICS- GYNECOLOGY, INC., JOSEPH P. ESPOSITO, M.D. and SUSQUEHANNA SURGEONS, LTD., Defendants and agree as follows: 1. Defendants, Joseph P. Esposito, M.D. and Susquehanna Surgeons, LTD., shall be hereby dismissed with prejudice from the above-captioned action pursuant to Pa.R.C.P. 229. 2. All claims initiated by the Plaintiffs again3t Joseph P. Esposito, M.D. and Susquehanna Surgeons, LTD., are hereby withdrawn and dismissed. 3. Counsels' respective signatures as affixed hereto serves as certification that they have discussed this dismissal with their respective client or clients and that they are authorized to enter this stipulation on behalf thereof. 4. This Stipulation has been signed in counterparts, which method of execution shall not affect the validity or enforceability of this agreement. Respectfully submitted: Cam--- \ Edwin A.D. Schwa , Esquire Date: /s T o Attorney for Defendants, Joseph P. Esposito, M.D. And Susquehanna Surgeons, LTD I April trang-Kulay, Esquire Date: / 3 < < Attorney for Plaintiff Leiyn F7 J• IIW, Ga4u11c Date: AaronAJay an, Esquire Attorney for Defendants, Sambhu N. Kundu, M.D. and Central Pennsylvania Obstetrics- Gynecology ,m c d a d- cal ci c6 o .3- 00 r PRAECIPE FOR LISTING CASE FOR TRIAL (Must be typewritten and submitted in duplicate) TO THE PROTHONOTARY OF CUMBERLAND COUNTY Please list the following case: (Check one) ( X ) for JURY trial at the next term of civil court. ( ) for trial without a jury. CAPTION OF CASE (entire caption must be stated in full) Dimitra Schild (Plaintiff) (check one) ( ) Assumpsit ( ) Trespass ( ) Trespass (Motor Vehicle) (X ) other) VS. Sambhu N. Kundu, M.D., and Central Pennsylvania Obstetrics-Gynecology, Inc. (Defendant) VS. The trial list will be called on April 6. 2004 and -' Trials commence on may 3, 2004 Pretrials will be held on Autil 14. 2004 (Briefs are due 5 days before pretrials.) (The party listing this case for trial shall provide forthwith a copy of the praecipe to all counsel, pursuant to local Rule 214.1.) No. 99 Civil 6832 Indicate the attorney who will try case for the party who files this praecipe: April L. Strang-Kutay, Esquire Indicate trial counsel for other parties if known: Leigh A.J. Ellis, Esquire This case is ready for trial. Print Name: 19--- Date: March 12, 2004 Attorney for: Plaintiff- r. CERTIFICATE Or SERVICE I hereby ccrti fy that I served a copy of the foregoing document upon the person(s) indicated below by depositing a copy of the same in the United States mail, postage prepaid, at Harrisburg, Pennsylvania and addressed as follows: Leigh A. J. Ellis, Esquire S. Walter Poulkrod, 111, &. Associates 1800 Linglestown Road Suite 305 Harrisburg, PA 17110 Attorney for Defendant Sambhu N. Kundu, M.D. GOLDBERG, KATZMAN & SHIPMAN, P.C. Glenda J. Ebersole, S retary for April Strang-Kutay, Esquire Attorney for Plaintiff Date:3/a/a/ !A April L. Strang-Koury, Esquire I.D. No. 46726 Goldberg, Neuman & Shipman, P.C. P.O. Box 1266 Harrisburg, PA 17108.1268 (717) 234-4 1 6 1 Attorney for Plaintiff DIMITRA SCHILD, Plaintiff IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA V. SAMBHU N. KUNDU, M.D., and CENTRAL PENNSYLVANIA OBSTETRICS-GYNECOLOGY, INC., Defendants TO THE PROTHONOTARY: CIVIL ACTION - LAW NO. 99-6832-CIVIL JURY TRIAL DEMANDED PRAECIPE Please mark the above captioned matter as settled and discontinued. Thank you. GOLDBERG, KATZMAN & SHIPMAN, P.C. By C Apr' L. Strang- utay, Esquir I.D. No. 46728 320 Market Street P.O. Box 1268 Harrisburg, PA 17108-1268 (717) 234-4161 Attorney for Plaintiffs Date:5/31©y craTIFICATF. OF SERVICE. I hereby certify that I served a copy of the foregoing document upon the person(s) indicated below by depositing a copy of the same in the United States mail, postage prepaid, at Harrisburg, Pennsylvania and addressed as follows: Leigh A. J. Ellis, Esquire S. Walter Foulkrod, 111, & Associates 1800 Linglestown Road Suite 305 Harrisburg, PA 17110 Attorney for Defendant Stunbhu N. KnndU, M.D. GOLDBERG, KATZMAN & SHIPMAN, P.C. By; 4enda ?Q ag-Urctary J. Ebersole, for April Strang-Kutay, Esquire Attorney for Plaintiff Date: '13 /0-11 - to c i c;.; iCf-- rtt Q c5 N :, i