Loading...
HomeMy WebLinkAbout99-07794a d 2 e S KAI'RINA M. ROMAN, Executrix ofthe Estate of DENNIS J. ROMAN, Deceased. 2109 Parkside Road Camp I-lill, PA 17011 Plaintiff V. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. q9 - 779y REZA G. AZIZKI-IAN, M.D.. 888 Poplar Church Road Cantp I-lill, PA 17011, Defendant JURY TRIAL DEMANDED PR.AECiPE FOR WRIT OF SUMMONS TO.1.1-IE PROTI-IONOTARY: Please issue a Writ of Summons in the above-captioned action against the Defendant. The Writ shall be issued and forwarded to Attorney David B. Dowling. David B. Dowling, Esquire RIIOADS & SINON LLP One South Market Square P. 0. Box 1146 I-lanisburg, PA 17108-1146 (717) 233-5731 Attorneys for Plaintiff of Attorney Supreme Court ID No. 25452 Date: December 28, 1999 WRIT OF SUMMONS TO'rl-IL' ABOVE NAMED DEFENDANT: YOU ARE NOTIFIED TI-IAT THE ABOVE-NAMED PLAINTIFF I-IAS C NIMENCED AN ACTION AGAINST YOU. rc thonotary (Deputy) 325330.1 Z .,' 2 ?J David B. Dowling, Esquire A1lomey I.D. No. 25452 RFIOADS & SINON LLP One South Market Square, 12th Floor P.O. Box It 46 Harrisburg, PA 17108-1146 (717) 233.5731 Attorneys for Plaintiff KATRINA M. ROMAN, Executrix of the Estate of DENNIS J. ROMAN, Deceased Plaintiff V. REZA G. AZIZKHAN, M.D. Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION LAW NO. 99-7794 JURY TRIAL DEMANDED ACCEPTANCE OF SERVICE I accept service of the Writ of Summons on behalf of Defendant Reza G. Azizkhan, M.D. and certify that I am authorized to do so. DATE J1,14,1,1d d a.. "W'. J, S. Walter Foulkrod, Esquire (Authorized Agent) S. Walter Foulkrod & Associates 1800 Linglestown Road, Suite 305 Harrisburg, PA 17110 i ti 327633.1 CERTIFICATE OF SERVICE I hereby certify that on this I Oth day of January, 2000, a true and correct copy of the foregoing Acceptance of Service was served by means of United States mail, first class, postage prepaid, upon the following: S. Walter Foulkrod, Esquire S. Walter Foulkrod & Associates 1800 Linglestown Road, Suite 305 Harrisburg, PA 17110 } CO y CE; lT. IC w Sr: . . q ?" ? Y .I i ZE y 1 ? f10. O v U David B. Dowling, Esquire Attorney I.D. No. 25452 RHOADS & SINON LLP One South Market Square, 12th Floor P.O. Box 1146 Harrisburg, PA 17108-1146 (717) 233-5731 Attorneys for Plaintiffs KATRINA M. ROMAN, Executrix of the Estate of DENNIS J. ROMAN, Deceased, Plaintiff V. REZA G. AZIZKHAN, M.D., Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 99-7794 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 COUNTY LAWYER REFERRAL SERVICE CUMBERLAND COUNTY BAR ASSOCIATION Two Liberty Avenue Carlisle, PA 17013 (717) 249-3166 328284.1 AVISO USTED FIA SIDE DEMANDADO/A EN CORTE. Si usted desea delcnderse de las demandas que se presentan mas adclante en las siguientes paginas, debe tomar action denlro de los proximos veinte (20) dias despues de la notification de esta Demanda y Aviso radieando personalmente o por medio de un abogado una compareccncia escrita y radicando en In Corte por escrito sus defensas de, y objecciones a, las demandas presentadas aqui en contra suyn. Se le advierte de que si usted falla de tomar action como se describe anteriormente, el euso puede proceder sin usted y un fallo por cualquier suma de dinero rcclamada en la demnndu o eualquier otra reclamation o remedio solicitado por el demandante puede ser dietado en contra suyn por In Corte sin mas aviso adicional. Usted puede perder dinero o propiedad a olros derechos imporlnntes para usted. USTED DEBE LLEVAR ESTE DOCUMENTO A Sl1 ABOGADO INMEDIATAMENTE. SI USTED NO TIENE UN ABOGADO O NO PIJI:I)Is PAGARLE A UNO, LLAME O VAYA A LA SIGUIENTE OpICINA PARA AVERIGUAR DONDIs I'lll"sDfi ENCONTRAR ASISTENCIA LEGAL. CUMBERLAND COUNTY LAWYER REFERRAL SERVICH CUMBERLAND COUNTY BAR ASSOCIATION Two Liberty Avenue Carlisle, PA 17013 (717) 249-3166 David B- Dowling, Esquire Attorney I.D. No. 25452 RHOADS & SINON LLP One South Market Square, 12th Floor P.O. Box 1146 Harrisburg, PA 17108-1146 (717) 233-5731 Attorneys for Plaintiffs KATRINA M. ROMAN, Executrix of the Estate of DENNIS J. ROMAN, Deceased, Plaintiff V. REZA G. AZIZKHAN, M.D., Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 99-7794 JURY TRIAL DEMANDED COMPLAINT NOW COMES, Plaintiff, Katrina M. Roman, Executrix of the Estate of Dennis J. Roman, Deceased, by and through her attorneys, Rhoads & Sinon LLP, and files the within Complaint as follows: PARTIES Plaintiff is Katrina M. Roman, Executrix of the Estate of her late husband, Dennis J. Roman. She resides at 2109 Parkside Road, Camp Hill, Cumberland County, Pennsylvania. 2. Defendant is Reza G. Azizkhan, M.D., a physician with an office located at 888 Poplar Church Road, Camp Hill, Cumberland County, Pennsylvania. 728185.1 FACTUAL ALLEGATIONS 3. Dennis J. Roman, age 52, first sought treatment with Defendant on November 6, 1995, with a chiel' complaint of a swollen right foot. He was referred to Defendant by Inners Davis Associates, physicians specializing in internal medicine. 4. On November 6, 1995, Dennis J. Roman completed a New Patient Questionnaire as requested by Defendant. 5. The questionnaire asked if the patient had any allergies, and, if so "what type of reaction you experience". 6. Dennis J. Roman wrote that he was allergic to aspirin and Tylenol products and that they caused him to experience "breathing problems". 7. Defendant saw Dennis J. Roman as a patient approximately six times between November 1995 and January 1999. 8. On January 21, 1999, Dennis J. Roman was examined and treated by Dr. Azizkhan for a chief complaint of swelling and pain in his great toe and foot. 9. Following the examination on January 21, 1999, Dr. Azizkhan prescribed Naprosyn 500 mg bid and Cipro 500 mg bid. 10. Naprosyn contains aspirin. - 2 - 1 1. Defendant knew or should have known that Naprosyn contains aspirin. 12. On January 21, 1999, after receiving the prescription from Dr. Azizkhan, Dennis J. Roman had the prescription for Cipro and Naprosyn filled at a local Rite Aid Pharmacy. 13. Shortly after taking the Cipro and Naprosyn on January 21,1999, Dennis J. Roman, phoned the pharmacy and inquired if Naprosyn contained aspirin. He was informed by the pharmacist that it did. 14. By now Dennis J. Roman was experiencing shortness of breath and difficulty breathing. He told his wife to urgently take him to the Emergency Department at Holy Spirit Hospital because he was having an allergic reaction to Naprosyn, medication he had just taken. 15. Katrina Roman drove her husband the short distance to Holy Spirit Hospital from their home. Upon arrival his condition had worsened. In addition to experiencing shortness of breath, he was coughing up mucus. 16. Upon arrival at Holy Spirit Hospital at approximately 5:00 p.m., Dennis J. Roman was emergently treated by physicians and nurses in the Emergency Department. His oxygen level dropped. He was given epinephrine, Proventil and Solu-Medrol. He continued to experience severe shortness of breath and became increasingly cyanotic and was subsequently intubated. - 3 - l? 17. Dennis J. Roman was given succinylcholine and Versed IV. His heart rate dropped and he went into ventricular tachycardia and ventricular fibrillation. Despite the efforts of physicians, nurses and healthcare providers at Holy Spirit Hospital, Dennis J. Roman was pronounced dead at 2055 hours. The cause of death was complications from an acute asthmatic attack. 18. The negligence and carelessness of the Defendant consisted of the following acts and omissions which were a substantial factor in bringing about the death of Dennis J. Roman. The sub-paragraphs listed below are to be read in conjunction with paragraphs 1 through 17: (a) Prescribing Naprosyn to Dennis J. Roman; (b) Prescribing Naprosyn to Dennis J. Roman knowing that he was allergic to it and that his allergy resulted in "breathing problems"; (c) Prescribing Naprosyn to Dennis J. Roman despite the data contained in the patient's chart stating that he was allergic to aspirin; (d) Failing to review Dennis J. Roman's chart before prescribing Naprosyn and Cipro; (e) Prescribing Cipro to Dennis J. Roman; (1) Failure to take a patient history on January 21, 1999. 19. The negligence and carelessness of the Defendant caused Dennis J. Roman to suffer an allergic reaction to medication prescribed by Defendant, which led to and caused his death. - 4 - COUNT 1 Katrina M. Roman, Executrix of the Estate of Dennis J. Roman, Deceased v. Reza G. Azizkhan, M.D. (Survival Action) 20. The averments of paragraphs 1 through 19 are incorporated herein by reference. 21. The Plaintiff brings this action on behalf of Dennis J. Roman's Estate, pursuant to 20 Pa. C.S.A. 3373 and 42 Pa. C.S. 8302 for damages by the Estate as a result of Dennis J. Roman's death, as well as pain, suffering, inconvenience, which the decedent underwent prior to his death. 22. As a direct and proximate result of the negligence and carelessness of the Defendant as described herein, Dennis J. Roman died. 23. As a proximate result of the negligence and carelessness of the Defendant, Dennis J. Roman suffered physical pain, mental anguish, emotional distress, discomfort, loss of earnings and future earnings, loss of life's pleasures. Katrina M. Roman, as Executrix of the Estate of Dennis J. Roman makes a claim therefor, together with all other damages allowed and recoverable pursuant to Pennsylvania law. WHEREFORE, Katrina M. Roman, Executrix of the Estate of Dennis J. Roman, Deceased, pursuant to the Survival Statute demands judgment against the Defendant in an amount which exceeds the amount requiring compulsory arbitration, together with interest, costs of suit and delay damages as allowed by law. - 5 - Z. COUNT If Katrina M. Roman, Executrix of the Estate of Dennis J. Roman, Deceased v. Reza G. Azizkhan, M.D. (Wrongful Death Action) 24. l'he averments of paragraphs 1 through 23 are incorporated herein by reference. 25. Katrina M. Roman brings this action pursuant to Pa. R.C.P. 2202(x) and 42 Pa. C.S. 8301 as a personal representative of Dennis J. Roman and on her own behalf to recover for the wrongful death of Dennis J. Roman. 26. At no time did the decedent bring an action to recover damages for his personal injuries and no other action has been commenced to recover damages for her death. 27. Katrina M. Roman, as Executrix of the Estate of Dennis J. Roman, brings this action on behalf of the following persons, who are all of the persons entitled to recover damages in this action: (a) Amy Roman - Daughter (b) Peter Roman Son (c) Sara Roman - Daughter (d) Matthew Roman Son (e) Katrina M. Roman - Spouse - 6 - 28. As a direct and proximately result of the Defendant's negligence as set forth herein, the Plaintiff has suffered and the Defendant is liable for the following damages: (a) Funeral expenses for the decedent in the amount of $8,723.00. (b) Medical expenses related to the medical treatment provided to Dennis J. Roman; (c) Expenses of administration related to decedent's injuries; (d) Plaintiffs loss of contribution, support, consortium, comfort, counsel, aide, association, care and services of the decedent which would have been provided to his family; (e) Such other damages as are permissible in a Wrongful Death Action under Pennsylvania law. WHEREFORE, Katrina M. Roman, Executrix of the Estate of Dennis J. Roman, Deceased, pursuant to the Wrongful Death Act demands judgment against the Defendant in an amount which exceeds the amount requiring compulsory arbitration, together with interest, costs of suit and delay damages as allowed by law. RHOADS & SINON LLP By. David B. Dowling, Esqui One South Market Square P. 0. Box 1146 Harrisburg, PA 17108-1146 (717) 233-5731 Attorneys for Plaintiffs Date: January 12, 1000 - 7 - VERIFICA•riON Katrina M. Roman, Executrix of the Estate of Dennis J. Roman. Deceased, deposes and I. says, subject to the penalties of 18 Pa. C.S. § 4904 relating to unsworn falsification to authorities, that the facts set forth in the foregoing "COMPLAINT" are true and correct to the best of her knowledge, information and belief. Date: 111kL, &a?-)OV. AgAeuD Katrina M. Roman, Executrix of the Estate of Dennis J. Roman, Deceased i{ t 728561.1 - 't r_0 CERTIFICATE OF SERVICE I hereby certify that on this 12th day of January, 2000, a true and correct copy of the foregoing Complaint was served by means of United States mail, first class, postage prepaid, upon the following: S. Walter Foulkrod, Esquire S. Walter Foulkrod & Associates 1800 Linglestown Road, Suite 305 Harrisburg, PA 17110 i ?? Z g c?° p CQJ "? 1 i?ni J Ll'7 rt ? .ilq O CZ) David B. Dowling, Esquire Attomey I.D. No. 25452 RHOADS & SINON UP One South Market Square, 12111 Floor P.O. Box 1 146 Harrisburg, PA 17108.1146 (717) 233-5731 Attorneys for Plaintiffs KATRINA M. ROMAN, Executrix of the Estate of DENNIS J. ROMAN, Deceased, IN TFIE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff V. REZA G. AZIZKFIAN, M.D., Defendant CIVIL ACTION -LAW NO. 99-7794 JURY TRIAL DEMANDED NOTICE OF SERVICE OF PLAINTIFF'S COMPLAINT AND WRITTEN DISCOVERY TO DEFENDANT Kindly have notice that on January 12, 2000, copies of the following: I) Plaintiffs Complaint- CivilAction; 2) Plaintiffs Interrogatories Directed to Defendant Roza G. Azizkhan, M.D. - Set I; and 3) Plaintiffs Request for Production of Documents Directed to Defendant )]87]1.1 were served by U.S. Mail, first class and postage prepaid upon: S. Walter Poulkrod, Esquire S. Walter Poulkrod & Associates 1800 Linglestown Road, Suite 305 Harrisburg, PA 17110 Respectfully Submitted, RHOADS & SINON LLP Y avid B. Dowling, Esquire One South Market Square P. O. Box 1146 Harrisburg, PA 17108-1146 (717) 233-5731 Attorneys for Plaintiffs DATE: January 12, 2000 2- -- 1r?- Fit, CERTIFICATE OF SERVICE I hereby certify that on January 12, 2000, a true and correct copy of the foregoing "Notice of Service of Plaintiff's Complaint and Written Discovery to Defendant" was served by means of United States mail, first class, postage prepaid, upon the following: S. WalterF0ulkrod, Esquire S. Walter Foulkrod & Associates 1800 Linglestown Road, Suite 305 Harrisburg, PA 17110 nthia L. Zucaro Cl) CL CJ O `? I 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 COLLEEN E. EHRESMAN, ESQUIRE Pa. Supreme Court I.D. No. 82484 S. WALTER FOULKROD, III & ASSOCIATES 1800 Linglestown Road - Suite 305 Harrisburg, Pennsylvania 17110 Telephone: [7171 213-4200 Attorneys for Defendant: Fax: (7171 213-4202 REZA G AZIZKHAN M D KATRINA A. ROMAN, Executrix IN THE COURT OF COMMON PLEAS of the Estate of CUMBERLAND COUNTY, PENNSYLVANIA DENNIS J. ROMAN, Deceased Plaintif f CIVIL ACTION LAW NO. 99-7794 V. REZA G. AZIZKHAN, M.D. Defendant JURY TRIAL DEMANDED NOTICE TO PLEAD TO: Katrina A. Roman C/O David B. Dowling, Esquire Rhoads & Sinon LLP Dauphin Bank Building One South Market Square, 12th Floor P.O. Box 1146 Harrisburg, PA 17108-1146 YOU ARE HEREBY NOTIFIED to plead to the enclosed NEW MATTER OF DEFENDANT, REZA G. AZIZKHAN, M.D. within twenty (20) days from service hereof, or a default judgment may be entered against you. Respectfully submitted, 7 ) S. WALTER FOULKR/ODD, III & ASSOCIATES Date: J VU BY: LAC ?t ! Lf( ?XL' :l? L? S. WALTER FOUL ROD, III ANSWER AND NEW MATTER OF DEFENDANT, REZA G. AZIZKHAN, M.D., TO PLAINTIFF'S COMPLAINT 1. Denied. After reasonable investigation Defendant Reza G. Azizkhan, M.D. ("Dr. Azizkhan") does not have information sufficient to form a belief as to the identity of Katrina M. Roman, whether she was married to Dennis J. Roman and whether or not letters testamentary were issued to her. Nor is Dr. Azizkhan able to verify her address as alleged. Accordingly, the entirety of paragraph 1 is specifically denied. 2. Admitted. 3. Admitted in part and denied in part. It is admitted that Dennis J. Roman first sought treatment with Dr. Azizkhan on November 6, 1995. It is specifically denied that his chief complaint was a swollen right foot. To the contrary, the patient stated he tore the skin of his right lower leg when a car part scraped over the area one week ago. The right leg and foot were swollen the last couple of days. It is admitted that he was referred by Inners and Davis and that Drs. Inners and Davis are physicians. Dr. Azizkhan does not have information sufficient to form a belief as to the speciality of Drs. Inners and Davis but believes they may hold themselves out as pulmonologists. 4. Admitted. 5. Admitted. 6. Denied as stated. It is specifically denied that Mr. Roman "wrote that he was allergic to aspirin and Tylenol products and that they caused him to experience ' breathing problems I . " To the contrary, Mr. Roman wrote: Sulfa - hives, burning of skin Aspirin Products Tylenol " " breathing problems 7. Denied. It is specifically denied that Dr. Azizkhan saw Mr. Roman approximately six times between November 1995 and January 1999. To the contrary, Dr. Azizkhan saw Mr. Roman on November 6, 7 and 14, 1995, July 22, 25, 1996, August 5, 26, 1996 and then not until January 21, 1999. 8. Admitted. 9. Admitted. 10. Denied. It is specifically denied that Naprosyn contains aspirin. To the contrary, Naprosyn contains naproxen, a member of the arylacetic acid group of non-steriodal anti- inflammatory drugs and croscarmellose sodium, iron oxides, povidone and magnesium stearate. 3-1. Denied. It is specifically denied that Dr. Azizkhan knew or should have known that Naprosyn contains aspirin. Naprosyn does not contain aspirin. 12. Denied. After reasonable investigation Dr. Azizkhan does not have information sufficient to form a belief as to the accuracy or inaccuracy of the averment that Mr. Roman had the prescription for Cipro and Naprosyn filled at the local Rite Aid pharmacy and the same is specifically denied. 13. Denied. After reasonable investigation Dr. Azizkhan 2 +rc does not have information sufficient to form a belief as to whether or not Mr. Roman telephoned the pharmacy and made inquiry as to whether Naprosyn contained aspirin or what the pharmacist answered and the same is specifically denied. 14-17. Denied. After reasonable investigation Dr. Azizkhan does not have sufficient information to form a belief as to the accuracy or inaccuracy of the averment as to the patient's course after January 21, 1999 and the same is accordingly denied. By way of further answer, Dr. Azizkhan did hear that Mr. Roman had expired. 18. Denied. It is specifically denied that Dr. Azizkhan was negligent or careless or that his conduct fell below the applicable standard of care. To the contrary, at all times relevant hereto, Dr. Azizkhan's conduct was commensurate with the applicable standard of care. It is specifically denied that Dr. Azizkhan's conduct, as alleged, was a substantial factor in bringing about the death of Mr. Roman. By way of further answer, Dr. Azi zkhan is advised by counsel and therefore avers that the allegations contained in paragraph 18 of Plaintiff's Complaint, including subparagraphs (a) through (f) pertaining to both negligence and causation, are deemed to be denied by operation of law and that no further answer is required. 19. Denied. It is specifically denied that Dr. Azizkhan was negligent or careless or that his conduct caused or contributed to the injuries as alleged in paragraph 19 of Plaintiff's Complaint. By way of further answer, at all times 3 relevant hereto Dr. Azizkhan complied with the applicable standard of care. COUNT I Katrina M. Roman, Executrix of Estate of Dennis J. Roman, Deceased V. Reza G. Azizkhan, M.D. Survival Action 20. Dr. Azizkhan herein incorporates by reference answers contained in paragraphs 1-19 above as though fully set forth herein at length. 21. It is admitted that Plaintiff has brought this action purportedly as a survival action. It is specifically denied that Dr. Azizkhan was negligent or that his conduct caused or contributed to Mr. Roman's death. 22. Denied. It is specifically denied that Dr. Azizkhan was negligent or that his conduct caused or contributed to Mr. Roman's death. 23. Denied. It is specifically denied that Dr. Azizkhan was negligent or careless or that his conduct caused the injuries as alleged in the corresponding paragraph of Plaintiff's Complaint. By way of further answer, after reasonable investigation Dr. Azizkhan does not have information Buff icient to form a belief as to the averments of injury and damages and the same are accordingly denied. WHEREFORE, Defendant, Reza G. Azizkhan, M.D., demands judgment in his favor and against Plaintiff. 4 COUNT II Katrina M. Roman, Executrix of Estate of Dennis J. Roman, Deceased v. Reza G. Azizkhan, K.D. (Wrongful Death Action) 24. Dr. Azizkhan herein incorporates by reference answers contained in paragraphs 1-23 above as though fully set forth herein at length. 25. It is admitted that Plaintiff has brought this action purportedly as a wrongful death action. It is specifically denied that Dr. Azizkhan was negligent or that his conduct caused or contributed to Mr. Roman's death. 26. Denied. After reasonable investigation Dr. Azizkhan does not have information sufficient to form a belief as to admit or deny the corresponding allegation of Plaintiff's Complaint and the same is accordingly denied. 27. Denied. After reasonable investigation Dr. Azizkhan does not have information sufficient to form a belief as to the accuracy of inaccuracy of the averment with respect to the persons entitled to recover damages in a wrongful death action and the same accordingly denied. 28. Denied. It is specifically denied that Dr. Azizkhan was negligent or that his conduct caused or contributed to the injuries and death of Mr. Roman as alleged. Accordingly, it is specifically denied that Dr. Azizkhan is liable for the damages as alleged in paragraph 28 of Plaintiff's Complaint. By way of further answer, after reasonable investigation Dr. Azizkhan does not have information sufficient to form a belief as to the nature 'i 5 of such damages and whether or not they were incurred and the same is specifically denied. WHEREFORE, Defendant, Reza G. Azizkhan, M.D., demands judgment in his favor and against Plaintiff. NEW MATTER 29. Facts set forth in the foregoing answers to Plaintiff's Complaint are incorporated herein by reference as though fully set forth at length. 30. At all times relevant hereto Dr. Azizkhan acted within and followed the precepts of a school of thought followed by a 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. 31. Plaintiff's decedent assumed the risk of his injuries and this action is therefore barred by the Doctrine of Assumption of Risk. 32. Dr. Azizkhan believes and therefore avers that evidence accumulated through discovery and provided at trial may establish Plaintiff's decedent was contributorily or comparatively negligent, and in order to protect the record, Dr. Azizkhan hereby pleads contributory and comparative negligence as an affirmative defense. 33. Dr. Azizkhan is entitled to contribution in accordance with the Pennsylvania Comparative Negligence Act, 42 P.S. $7102. 34. In the event that it is determined that Dr. Azizkhan 6 was negligent with regard to any of the allegations contained in, and with respect to Plaintiff's complaint, said allegations being specifically denied, said negligence was superseded by the intervening negligent acts of other persons, parties and/or organizations other than answering Defendant and over whom said Answering Defendant had no control, right or responsibility and, therefore, Dr. Azizkhan is not liable. 35. At all times relevant hereto, Dr. Azizkhan was a competent and qualified physician acting in compliance with the applicable standard of care. 36. To the extent that the evidence may show that other persons, partnerships, corporations or other legal entities caused or contributed to the injuries or exacerbation of the pre- existing condition of Plaintiff's decedent, then the conduct of the Answering Defendant was not the legal cause of such conditions or injuries. 37. Any acts or omissions of Answering Defendant alleged to constitute negligence were not substantial factors contributing to and the injuries and damages alleged in Plaintiff's Complaint. 38. 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 Defendant had no duty to supervise or control, then Answering Defendant is not liable, and Plaintiff may not recover against him. 39. Plaintiff's decedent's injuries and losses, if any, 7 were not caused by the conduct or negligence of Answering Defendant but rather were caused by pre-existing medical conditions and causes beyond the control of Answering Defendant, Plaintiff may not recover against them. 40. The acts or omissions of others, and not Answering De :Eendant, constituted intervening and/or superseding causes of the injuries and/or damages alleged to have been sustained by Plaintiff and Answering Defendant cannot, therefore, pursuant to Pennsylvania law, be held liable for the alleged injuries to Plaintiff's decedent. 41. Plaintiff fIs decedent was advised of the alternatives to surgery, the nature of the proposed procedure, and the risks and complications that a reasonable patient would consider to be material to the decision of whether or not to undergo the procedure, and Plaintiff's decedent willingly and knowingly consented to the procedure. 42. A prescription of a physician, under Pennsylvania law, does not require an informed consent. 43. Answering Defendants assert all defenses and immunities afforded under the Health Care Services Malpractice Act, as amended. WHEREFORE, Defendant, Reza G. Azizkhan M.D., demands judgment in his favor and against Plaintiff. Respectfully submitted, S. WALTER FOULKROD, III & ASSOCIATES Date: V(/ By: S. WALTER FOULKROD, III 8 t ?'.ta v:acin V E R I F I C A T I ON I, REZA G. AZIZKHAN, M.D., have read the foregoing ANSWER AND NEW MATTER which have been drafted by my counsel on my behalf. The information contained therein is based upon information I have provided to my counsel but the wording and phraseology is not mine. The information contained in the ANSWERS AND NEW MATTER is true and correct to the best of my knowledge, information and belief. This Verification is made subject to the penalties of is 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. Date 3 7 'LCao 1?2 u- /??u REZA G. AZ'ZKHAN, D.D. CERTIFICATE OF SERVICE I HEREBY CERTIFY that true and correct copies of the foregoing ANSWER AND M.D., TO PLAINTIFF'S record this 41- in the United States prepaid, first class NEW MATTER OF DEFENDANT, REZA G. AZIZKHAN, COMPLAINT were served upon all counsel of day of March, 2000, by depositing said copy Mail at Harrisburg, Pennsylvania, postage delivery, and addressed as follows: David B. Dowling, Esquire Rhoads & Sinon LLP Dauphin Bank Building One South Market Square, 12th Floor P.O. Box 1146 Harrisburg, PA 17108-1146 S. WALTER FOULKROD, III & ASSOCIATES By: Q1? 6?2f CD _ i erly J. rA hue, Paralegal CN, _ ?r CN: David B. Dowling. Esquire Attorney I.D. No. 25452 RHOADS & SINON One South Market Square Harrisburg, Pennsylvania 17101 (717) 233-5731 Attorneys for Plaintiff KATRINA M. ROMAN, Executrix of the Estate of DENNIS J. ROMAN, Deceased, Plaintiff V. REZA G. AZIZKHAN, M.D., Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 99-7794 JURY TRIAL DEMANDED PLAINTIFF'S REPLY TO DEFENDANT'S NEW MATTER NOW COMES Plaintiff, Katrina M. Roman, as Executrix of the Estate of Dennis J. Roman, Deceased, through her attorneys, Rhoads & Sinon LLP, and files the within Plaintiff's Reply to Defendant's New Matter, as follows: Plaintiff objects to Defendant's New Matter to the extent that it raises issues and 338951.1 defenses for which there is no support or factual basis. Without waiving said objection, Plaintiff responds as follows: 29. Plaintiff incorporates the allegations contained in her initial complaint against Defendant. 30. The allegations contained in Defendant's New Matter paragraphs 30 constitute conclusions of law and, therefore, no answer is required. In the event and to the extent they are deemed not to be conclusions of law, it is specifically denied that the two schools of thought defense has any application to the facts at hand. Strict proof to the contrary is demanded at time of trial. 31. The allegations contained in Defendant's New Matter paragraphs 31 constitute conclusions of law and, therefore, no answer is required. In the event and to the extent they are deemed not to be conclusions of law, it is specifically denied that Plaintiff's decedent assumed the riskof his injuries. Strict proof to the contrary is demanded at time of trial. 32. The allegations contained in Defendant's New Matter paragraphs 32 constitute conclusions of law and, therefore, no answer is required. In the event and to the extent they are deemed not to be conclusions of law, it is specifically denied that Plaintiffs decedent was comparatively negligent. Strict proof to the contrary is demanded at time of trial. 33. The allegations contained in Defendant's New Matter paragraphs 33 constitute conclusions of law and, therefore, no answer is required. In the event and to the extent - 2 - they are deemed not to be conclusions of law, it is specifically denied that Plaintiff's decedent was comparatively negligent. Strict proof to the contrary is demanded at time of trial. 34. The allegations contained in Defendant's New Matter paragraphs 34 constitute conclusions of law and, therefore, no answer is required. In the event and to the extent they are deemed not to be conclusions of law, it is specifically denied that the negligence of the Defendant was superseded by any intervening acts of other persons, parties, organizations and/or other entities. If Defendant has facts in support thereof, it is Defendant's obligation to join them as Defendants in this litigation. Strict proof to the contrary is demanded at time of trial. 35. The allegations contained in Defendant's New Matter paragraphs 35 constitute conclusions of law and, therefore, no answer is required. In the event and to the extent they are deemed not to be conclusions of law, it is specifically denied that Dr. Azizkhan was a competent and qualified physician acting in compliance with the standard of care. Strict proof to the contrary is demanded at time of trial. 36. The allegations contained in Defendant's New Matter paragraphs 36 constitute conclusions of law and, therefore, no answer is required. In the event and to the extent they are deemed not to be conclusions of law, it is specifically denied that the negligence of the Defendant was superseded by any intervening acts of other persons, parties, organizations and/or - 3 - other entities. If Defendant has facts in support thereof, it is Defendant's obligation to join them as Defendants in this litigation. Strict proof to the contrary is demanded at time of trial. 37. The allegations contained in Defendant's New Matter paragraphs 37 constitute conclusions of law and, therefore, no answer is required. In the event and to the extent they are deemed not to be conclusions of law, it is specifically denied that the negligence of the Defendant was not a substantial contributing factor to the injuries and damages suffered by the Plaintiff's decedent. Strict proof to the contrary is demanded at time of trial. 38. The allegations contained in Defendant's New Matter paragraphs 38 constitute conclusions of law and, therefore, no answer is required. In the event and to the extent they are deemed not to be conclusions of law, it is specifically denied that the injuries and damages suffered by the Plaintiffs decedent were caused in whole or in part by entities other than the Defendant named herein. Strict proof to the contrary is demanded at time of trial. 39. The allegations contained in Defendant's New Matter paragraphs 39 constitute conclusions of law and, therefore, no answer is required. In the event and to the extent they are deemed not to be conclusions of law, it is specifically denied that any pre-existing condition of the Plaintiffs decedent was a substantial factor in bringing out his death. Any pre- existing condition, including allergies known by the Defendant, do not supersede Defendant's negligence. Strict proof tothe contrary is demanded at time of trial. - 4 - V.. . . 40. The allegations contained in Defendant's New Matter paragraphs 40 constitute conclusions of law and, therefore, no answer is required. In the event and to the extent they are deemed not to be conclusions of law, it is specifically denied that the negligence of the Defendant was superseded by any intervening acts of other persons, parties, organizations and/or other entities. If Defendant has facts in support thereof, it is Defendant's obligation tojoin them as Defendants in this litigation. Strict proof to the contrary is demanded at time of trial. 41. The allegations contained in Defendant's New Matter paragraphs 41 constitute conclusions of law and, therefore, no answer is required. In the event and to the extent they are deemed not to be conclusions of law, each is speci fically denied. Moreover, not only are the allegations in paragraph 41 conclusions of law, they have no applicability to the facts at hand. To the best of Plaintiff's knowledge, no surgery performed by Defendant caused decedent's death. 42-43. The allegations contained in Defendant's New Matter paragraphs 42-43 constitute conclusions of law and, therefore, no answer is required. In the event and to the extent they are deemed not to be conclusions of law, each is specifically denied. Strict proof to the contrary is demanded at time of trial. - 5 - tgt:a! WHEREFORE, Plaintiff, Katrina A. Roman, as Executrix of the Estate of Dennis J. Roman, Deceased, requests that the New Matter of Defendant be dismissed. RHOADS & SINON LLP David B. Dow mgt-g Esquire One South Market Square Harrisburg, PA 17101 (717) 233-5731 Attorneys for Plaintiff Dated: 1-{ 31 00 - 6 - VERIFICATION Katrina M. Roman, Executrix of the Estate of Dennis J. Roman, Deceased, deposes and says, subject to the penalties of 18 Pa. C.S. § 4904 relating to unsworn falsification to authorities, that the facts set forth in the foregoing "Plaintiffs Reply to Defendant's New Matter" are true and correct to the best of her knowledge, information and belief. Date: 3/31/00 /L]?v&, -I )//YYI ?/??? Katrina M. Roman, Executrix of the Estate of Dennis J. Roman, Deceased CERTIFICATE OF SERVICE I hereby certify that on April ? , 2000, a true and correct copy of the foregoing "Plaintiff's Reply to Defendant's New Matter " was served by means of United States mail, first class postage prepaid, as follows: S. Walter Foulkrod, Esquire S. Walter Foulkrod & Associates 1800 Linglestown Road, Suite 305 Harrisburg, PA 17110 001? 4?70(?t nthia L. Zuearo -Y a :? l ?. •1W (? d ?afnY t '1 KATRINA A. ROMAN, Executrix IN THE COURT OF COMMON PLEAS of the Estate of CUMBERLAND COUNTY, PENNSYLVANIA DENNIS J. ROMAN, Deceased Plaintiff CIVIL ACTION LAW NO. 99-7794 V. REZA G. AZIZKHAN, M. D. Defendant JURY TRIAL DEMANDED CERTIFICATE PREREQUISITE TO SERVICE OF A SUBPOENA PURSUANT TO RULE 4009.22 As a prerequisite to service of a subpoena for documents and things pursuant to Rule 4009.22, Defendant Reza G. Azizkahn, M.D., certifies that (1) a notice of intent to serve the subpoena attached thereto was mailed or delivered to each party at least twenty days prior to the day 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. Respectfully submitted, FOULKROD ELLIS A PROFESISONAL CORPORATION Date: ?Z By: :: r'; /I . waiter oulkrod, III Esquire Attorney I.D. No. 01982 Attorneys for Defendant, Reza G. Azizkhan, M.D. 1800 Linglestown Road - Suite 305 Harrisburg, PA 17110 (717) 213-4200 S. WALTER FOULKROD, III, ESQUIRE Pa. Supreme Court Z.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 COLLEEN E. EHRESMAN, ESQUIRE Pa. Supreme Court I.D. No. 82482 FOULKROD ELLIS A PROFESSIONAL CORPORATION 1800 Linglestown Road - Suite 305 Harrisburg, Pennsylvania 17110 Telephone: (7173 213-4200 Attorneys for Defendant: KATRINA A. ROMAN, Executrix of the Estate of DENNIS J. ROMAN, Deceased Plaintiff V. REZA G. AZIZKHAN, M.D. Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION LAW NO. 99-7794 JURY TRIAL DEMANDED NOTICE OF INTENT TO SERVE A SUBPOENA TO PRODUCE DOCUMENTS AND THINGS FOR DISCOVERY PURSUANT TO RULE 4009.21 To: David B. Dowling, Esquire Rhoads & Sinon LLP Dauphin Bank Building One South Market Square, 12th Floor P.O. Box 1146 Harrisburg, PA 17108-1146 Defendant, Reza J. Azizkhan, M.D., 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. Respectfully submitted, FOULKROD ELLIS A PROFESSIONAL CORPORATION Date: II22 Zc:G1 By: Colleen E. Ehresman, Esquire Attorney I.D. 82482 32x0 C m-CNWEr L`Ii OF ?^INS'n'Jr\NIA CWNi OF CAM== zI. ND Katrina A. Roman, Executrix of the Estate of Dennis J. Roman, Deceased File N0.99-7794 V. Reza G. Azizkhan, H.D. S J 3? O N A Rite-Aid, 1137 Market Street, Lemoyne, PA 17043-1416 1. You are Orcerad oy the Gu-r- to ccxe LOS--••-- " ? nfPCC'on 1 Connotation 1800 Lin lestown Road. Suite 305 (Scec'-'^y ccu- '=can Cr at e= o? ace ) at Harrisburg , Dauphin County, Pennsylvania, on 319101 at 9.00 o'clock, A. M., to test-"V' on tera1° of n t a accve case, and to remain unt! excuses. ne. All records, zorcM^ h letters, documents, memoranda. photographs 2. And being with you - e t or an other matters or thins not rivile ed which are relevant and material to Dennis J. Roman. If you L"1 to attend Cr to pr-,)cuce the CCCSnLRtS Or t:lSS1C5 re '-?_L1'2C:' bV tY2 ?s subDc you may be subject to the sanctions aut.'"4 zed by Rule 234.5 of the Pennsylvania Rules of Civ- P-ocecure, including but not Iir'.ten= to costs, attorney tees anc i•[rs^_sorarent. ISSu•D By A PAiRry/CCUNza I. CCM°JIANC `erl'19 Pa.R.C.P. No. 234.2(a) N'p+s•; Colleen E. Ehresman, Esquire „DDFWSS:1800 Linglestown Road, Suite 305 Harrisburg, PA 17110 :== CNE. (717) 213-4200 Ste R- .= COURT I„ 82482 Seal of the Ccu_: ' ?^t`croLarr, :Ei•r' C•ir_sian C,e^uc' CFTC-- NCTE: Th s 5crn of subccena st al be used wherever a subcce.'ia is issuable, ircl'ucizg hear'_ncs ? connect'n with dexsiticrs and before a_bitt_tors, masters, ?a. R.C. P. No. 234.1. I` a subccena :cr :•cuct:cn ecrrrrissicners, etc. in cc:=.4anc_ with ° ccc^razts, r>`crds or t:>'-nos is cescctrc_ete Iatsc_ch 2. (?ev. 1/90) CERTIFICATE OF SERVICE I HEREBY CERTIFY that true and correct copies of the foregoing NOTICE OF INTENT TO SERVE SUBPOENA were served upon all counsel of record this day of January, 2001, by depositing said copy in the United States Mail at Harrisburg, Pennsylvania, postage prepaid, first class delivery, and addressed as follows: David B. Dowling, Esquire Rhoads & Sinon LLP Dauphin Bank Building One South Market Square, 12th Floor P.O. Box 1146 Harrisburg, PA 17108-1146 S .( WALTER FOULKROD, III & ASSOCIATES By: ti Ll.. a' Amy L. Kn se, Paralegal CERTIFICATE OF SERVICE I HEREBY CERTIFY that true and correct copies of the foregoing CERTIFICATE PREREQUISITE TO SERVICE OF A SUBPOENA were _LL served upon all counsel of record this 1-7111 day of )-LOQ 2001, by depositing said copy in the United States Mail at ?JI Harrisburg, Pennsylvania, postage prepaid, first class delivery, and addressed as follows: David B. Dowling, Esquire Rhoads & Sinon LLP Dauphin Bank Building One South Market Square, 12th Floor P.O. Box 1146 Harrisburg, PA 17108-1146 FOULKROD ELLIS A PROFESSIONAL CORPORATION By: (),A LU I(I1L114- Amy L. Kn use, Paralegal .., ,. _J ?-? _ _? 1!.:' ?.... f .? ?. 1. i ?" 1 GI '. I a LL- ??_. -) - c? U David B. Dowling, Esquire Attorney I.D. No. 25452 RHOADS & SINON LLP One South Market Square, 12th Floor P.O. Box 1146 Harrisburg, PA 17108-1146 (717) 233-5731 Attorneys for Plaintiff KATRINA M. ROMAN, Executrix of the Estate of DENNIS J. ROMAN, Deceased, IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff V. REZA G. AZIZKHAN, M.D., Defendant : CIVIL ACTION -LAW : NO. 99-7794 FILED UNDER SEAL JURY TRIAL DEMANDED PRAECIPE TO DISCONTINUE TO THE PROTHONOTARY: Pursuant to Pa. R. Civ. P. 229, Plaintiff hereby files this Praecipe to Discontinue, with prejudice, ending any and all claims associated with the above litigation, that have been raised, or could have been raised, against Defendant. RHOADS R. SINON LLP r 55vid B. Dowling One South Market Square P. O. Box 1146 Harrisburg, PA 17108-1146 (717) 233-5731 Attorneys for Plaintiff -11 CERTIFICATE OF SERVICE. 14 I hereby certify that on September K 2004, a true and correct copy of the Praecipe to Discontinue was served by means of United States mail, first class, postage prepaid, upon the following: S. Walter Foulkrod, Esquire Foulkrod Ellis, A Professional Corporation 1800 Linglestown Road - Suite 305 Harrisburg, PA 17110 C, this L. Zuear J _ CO