HomeMy WebLinkAbout07-6286IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
LISA J. BOYER
Plaintiff
V.
NO. 01 _ 6 2 p G &;,-j, JENNIFER BLACK,
CUMBERLAND VALLEY
ENDOCRINOLOGY CENTER, LLC,
and
MEGHAN BOUDER
Defendants
CIVIL ACTION - MEDICAL
PROFESSIONAL LIABILITY ACTION
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, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW.
THIS OFFICE CAN PROVIDE YOU WITH INFORMATION ABOUT HIRING A
LAWYER.
IF YOU CANNOT AFFORD TO HIRE A LAWYER, THIS OFFICE MAY BE ABLE TO
PROVIDE YOU WITH INFORMATION ABOUT AGENCIES THAT MAY OFFER LEGAL
SERVICES TO ELIGIBLE PERSONS AT A REDUCED FEE OR NO FEE.
CUMBERLAND COUNTY BAR ASSOCIATION,
32 South Bedford St.
Carlisle, Pennsylvania 17013-3302
717-249-3166
AVISO
USTED HA SIDO DEMANDADO/A EN CORTE. Si usted desea defenderse de [as
demandas que se presentan mas adelante en las siguientes paginas, debe tomar
accibn dentro de los pr6ximos veinte (20) dias despues de la notificaci6n de esta
Demanda y Aviso radicando personalmente o por medio de un abogado una
comparecencia escrita y radicando en la Corte por escrito sus defensas de, y
objecciones a, las demandas presentadas aqui en contra suya. Se le advierte de que
si usted falla de tomar accibn Como se describe anteriormente, el caso puede proceder
sin usted y un fallo por cualquier suma de dinero reclamada en la demanda o cualquier
otra reclamaci6n o remedio solicitado por el demandante puede ser dictado en contra
suya por la Corte sin mas aviso adicional. Usted puede perder dinero o propiedad u
otros derechos importantes para usted.
USTED DEBE LLEVAR ESTE DOCUMENTO A SU ABOGADO INMEDIATAMENTE.
SI USTED NO TIENE UN ABOGADO, LLAME O VAYA A LA SIGUIENTE OFICINA.
ESTA OFICINA PUEDE PROVEERLE INFORMACION A CERCA DE COMO
CONSEGUIR UN ABOGADO.
SI USTED NO PUEDE PAGAR POR LOS SERVICIOS DE UN ABOGADO, ES
POSIBLE QUE ESTA OFICINA LE PUEDA PROVEER INFORMACION SOBRE
AGENCIAS QUE OFREZCAN SERVICIOS LEGALES SIN CARGO O BAJO COSTO A
PERSONAS QUE CUALIFICAN.
CUMBERLAND COUNTY BAR ASSOCIATION,
32 South Bedford St.
Carlisle, Pennsylvania 17013-3302
717-249-3166
2
Counsel for the Plaintiff
McCarthy Weisberg Cummings, P.C.
2041 Herr Street
Harrisburg, PA 17103-1624
(717) 238-5707
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
LISA J. BOYER
Plaintiff
NO... G z
V.
CIVIL ACTION - MEDICAL
JENNIFER BLACK, PROFESSIONAL LIABILITY ACTION
CUMBERLAND VALLEY
ENDOCRINOLOGY CENTER, LLC, JURY TRIAL DEMANDED
and
MEGHAN BOUDER
Defendants
PLAINTIFF'S COMPLAINT AGAINST DEFENDANTS
FOR PROFESSIONAL MALPRACTICE AND NEGLIGENCE
Plaintiff, Lisa J. Boyer, by and through her counsel, McCarthy Weisberg Cummings,
P.C., hereby files the following Complaint-Civil Action (hereinafter "Complaint")
asserting a claim for damages against the Defendants set forth herein, jointly and
severally, as follows:
Counsel for the Plaintiff
McCarthy Weisberg Cummings, P.C.
2041 Herr Street
Harrisburg, PA 17103-1624
(717) 238-5707
1. Plaintiff, an adult individual, is a resident and citizen of the Commonwealth of
Pennsylvania, residing at 5156 Erie Road, Harrisburg, Dauphin County, Pennsylvania
17111.
2. Defendant, Jennifer Black (hereinafter "Defendant Black"), a Medical Assistant
and Laboratory Technician, is and was at all times relevant and material to this
Complaint, an agent, employee, representative and/or independent contractor, who
conducted the business of Defendant Cumberland Valley Endocrinology Center, LLC
(hereinafter "Defendant CVEC") within the scope of her authority, employment and/or
job duties, at the principal place of business of Cumberland Valley Endocrinology
Center, LLC, located at 49 Brookwood Avenue, Carlisle, Cumberland County,
Pennsylvania 17013.
3. Defendant Black, at all times relevant and material to this Complaint, represented
to Plaintiff, as well as the general public, that she was an agent, employee,
representative and/or independent contractor of Defendant CVEC, of which Plaintiff
reasonably relied.
4. Defendant, Meghan Bouder (hereinafter "Defendant Bouder"), a Medical
Assistant, is and was at all times relevant and material to this Complaint, an agent,
employee, representative and/or independent contractor, who conducted the business
of Defendant CVEC within the scope of her authority, employment and/or job duties, at
the principal place of business of Cumberland Valley Endocrinology Center, LLC,
located at 49 Brookwood Avenue, Carlisle, Cumberland County, Pennsylvania 17013.
2
Counsel for the Plaintiff
McCarthy Weisberg Cummings, P.C.
2041 Herr Street
Harrisburg, PA 17103-1624
(717) 238-5707
5. Defendant Bouder, at all times relevant and material to this Complaint,
represented to Plaintiff, as well as the general public, that she was an agent, employee,
representative and/or independent contractor of Defendant CVEC, of which Plaintiff
reasonably relied.
6. Defendant CVEC, is and was at all times relevant and material to this Complaint,
a limited liability company organized and existing under the laws of the Commonwealth
of Pennsylvania, conducting its business operations as an organization which
specializes in endocrinology, or disorders of hormones and metabolism, from its
principal place of business at Cumberland Valley Endocrinology Center, LLC, 49
Brookwood Avenue, Carlisle, Cumberland County, Pennsylvania 17013.
7. Defendant CVEC, at all times relevant and material to this Complaint, acted or
held itself out to be acting through its agents, employees, representatives and/or
independent contractors, who conducted the business of Defendant CVEC within the
scope of their authority, employment and/or job duties.
8. Defendant CVEC, at all times relevant and material to this Complaint,
represented to Plaintiff, as well as the general public, that it provided services and
conducted its business operations through competent and qualified physicians, nurses
and other medical staff, of which Plaintiff reasonably relied.
9. On August 1, 2006, Plaintiff attended a scheduled appointment at Defendant
CVEC, and was seated in an examination room to discuss treatment for Plaintiff's
thyroid condition.
3
Counsel for the Plaintiff
McCarthy Weisberg Cummings, P.C.
2041 Herr Street
Harrisburg, PA 17103-1624
(717) 238-5707
10. During this appointment, Plaintiff met with a Nurse Practitioner (hereinafter
"Practitioner"), who at all times relevant and material to this Complaint held herself out
as an agent, employee, representative and/or independent contractor of Defendant
CVEC, to discuss Plaintiffs thyroid function.
11. Practitioner, prior to leaving Plaintiffs examination room, further explained that
Plaintiff would need to have her blood drawn to determine her thyroid's functionality by
examining the blood's Thyroid Stimulating Hormone (hereinafter "TSH") levels.
12. Following Plaintiff's consultation with Practitioner, Defendant Black entered
Plaintiff's examination room to draw Plaintiffs blood.
13. Defendant Black, without supporting either of Plaintiff's arms and while Plaintiff
sat on the front of the examination room's table, placed a turnoquite on Plaintiffs right
arm to begin the process of drawing Plaintiff's blood.
14. Defendant Black, after having difficulty and struggling to locate a vein on
Plaintiff's right arm, abruptly inserted a needle into the antecubita fossa (area just above
the elbow crease) of Plaintiffs right arm in an attempt to obtain a blood sample.
15. Once the needle was inserted into Plaintiff's arm, Plaintiff felt a severe shooting
pain that extended from her elbow to her wrist, and immediately shouted three (3) times
for Defendant Black to stop this attempt to draw her blood.
4
Counsel for the Plaintiff
McCarthy Weisberg Cummings, P.C.
2041 Herr Street
Harrisburg, PA 17103-1624
(717) 238-5707
16. Plaintiff asked Defendant Black why Plaintiff had experienced this severe
shooting pain and why the area at the bottom of her arm and wrist were beginning to
swell.
17. Defendant Black ignored Plaintiffs concern and questions regarding her pain and
swelling, and told Plaintiff that she would need to attempt to obtain a blood sample from
Plaintiff's left arm.
18. Defendant Black, without changing needles, began examining Plaintiff's left arm
for a vein to initiate a second attempt to obtain a blood sample.
19. Plaintiff stopped Defendant Black from attempting to draw blood from her left am
because Defendant Black was once again having difficulty and seemed uncertain as to
where to insert the needle.
20. Defendant Black informed Plaintiff that a blood sample was necessary, and that
she would have to attempt to draw blood from Plaintiff's right hand.
21. Defendant Black informed Plaintiff that drawing blood from Plaintiffs right hand
would require a different type of needle, which Defendant Black inserted into Plaintiffs
right hand.
22. Defendant Black was able to draw a blood sample from Plaintiffs right hand, but
terminated the procedure because Plaintiff's vein began to swell.
23. Plaintiff informed Defendant Black that the lower portion of Plaintiffs right arm
was numb.
5
Counsel for the Plaintiff
McCarthy Weisberg Cummings, P.C.
2041 Herr Street
Harrisburg, PA 17103-1624
(717) 238-5707
24. Without consulting with a physician or any other qualified staff member of
Defendant CVEC, Defendant Black informed Plaintiff that the numbness would go away
and took no remedial action prior to Plaintiff's discharge from Defendant CVEC.
25. No physician or any other qualified staff member of Defendant CVEC examined
Plaintiff's arm or took any remedial action after Plaintiff complained of pain and
numbness in her right arm.
26. Plaintiff continued to have pain and numbness for six (6) days after her visit with
Defendants, and contacted Defendants by phone on August 7, 2006, to inform them
that her pain and numbness were not going away.
27. Plaintiff spoke by phone with Defendant Bouder about her situation and was told
that Defendant Black must have inserted the needle into either Plaintiffs nerve or
tendon while attempting to draw Plaintiff's blood.
28. Plaintiff was further informed by Defendant Bouder that there was nothing further
Defendants could do regarding Plaintiff's pain and numbness.
29. Plaintiff visited with her primary care physician, Dr. Thomas E. Trosko, D. O.
(hereinafter "Dr. Trosko"), on August 8, 2006, to discuss the pain and numbness in her
right arm.
30. Plaintiff explained to Dr. Trosko that the pain and numbness in her right arm did
not exist prior to her appointment at Defendant CVEC, and began immediately after
Defendant Black inserted the needle into right her arm in a failed attempt to draw blood.
6
Counsel for the Plaintiff
McCarthy Weisberg Cummings, P.C.
2041 Herr Street
Harrisburg, PA 17103-1624
(717) 238-5707
31. Dr. Trosko referred Plaintiff for a Magnetic Resonance Imaging (hereinafter
"MRI") procedure to rule out any pre-existing injuries and an Electromyography
(hereinafter "EMG") procedure to determine the cause of the pain and numbness in the
right arm.
32. On August 18, 2006, Plaintiff had an MRI performed at PinnacleHealth System,
which was interpreted and reviewed by Dr. Paul S. Potok, D.O. (hereinafter "Dr. Potok").
Dr. Potok's interpretation of the MRI is incorporated herein by reference as Attachment
"A", and states the following:
Discussion: The included portions of the posterior fossa
contents and spinal cord show intrinsically normal
morphology and signal character. Some straightening of the
cervical lordosis is likely positional. There is no segmental
malalignment. Mild narrowing of the C5/6 disc. Remaining
discs are normal. There is no significant marrow signal
abnormality.
Axial imaging at the cervicothoracic junction at C6/7 shows
no disc herniation, spinal or forminal narrowing.
At C5/6, there is broad-based osteophyte/disc bulge causing
mild spinal stenosis. Facet and uncovertebral join
hypertrophy combine to cause a moderate-severe degree of
right foraminal narrowing at this level.
C4/5, C3/4 and C2/3 show no disc herniation, spinal or
foraminal stenosis.
Impression: Spondylosis at C5/6. Bulging disc causes mild
spinal stenosis. There is significant right foraminal
narrowing.
7
Counsel for the Plaintiff
McCarthy Weisberg Cummings, P.C.
2041 Herr Street
Harrisburg, PA 17103-1624
(717) 238-5707
33. On September 21, 2006, Plaintiff had an EMG performed at Morganstein
Rehabilitation Associates, which was interpreted and reviewed by Dr. Steven E.
Morganstein, D.O. (hereinafter "Dr. Morganstein"). Dr. Morganstein's interpretation of
the EMG is incorporated herein by reference as Attachment "B", and states the
following:
Impression: 1.) There is electrodiagnostic evidence of relative
slowing of the right lateral cutaneous nerve. This would
correspond to her subjective complaint as well as objective
findings on clinical examination as this nerve would provide
sensory innerveation to the radial forearm region. All other
testing is normal and there is no evidence of cervical
radiculopathy.
34. Plaintiff continues to have pain and numbness in her right arm.
35. As a result of the pain and numbness in Plaintiffs right arm, Plaintiff has been
unable to use her right arm and hand to perform routine tasks as she was prior to the
blood draw incident.
36. As a result of the pain and numbness in Plaintiffs right arm, Plaintiff has had to
learn to compensate for not having the full use of her right arm and hand.
8
Counsel for the Plaintiff
McCarthy Weisberg Cummings, P.C.
2041 Herr Street
Harrisburg, PA 17103-1624
(717) 238-5707
COUNTI
(NEGLIGENCE)
Plaintiff, Lisa J. Boyer v.
Defendant, Jennifer Black
37. Paragraphs 1 through 36 above are incorporated herein by reference as if more
fully set forth at length.
38. The pain, suffering, injuries and other losses of Plaintiff were the direct and
proximate cause of the negligence of Defendant Black, jointly and severally with the
other named Defendants, acting as an agent, employee, representative and/or
independent contractor, who conducted the business of Defendant CVEC within the
scope of her authority, employment and/or job duties as follows:
a) Failure to exercise due care according to appropriate standards of care by
not possessing sufficient experience to properly draw blood from Plaintiff's
right arm, thereby increasing the risk of harm and injury to her;
b) Failure to exercise due care according to appropriate standards of care by
not moving Plaintiff from her examination table to an area suitable to
secure Plaintiff's right arm before attempting to draw blood, thereby
increasing the risk of harm and injury to her;
c) Failure to exercise due care according to appropriate standards of care by
not supporting Plaintiffs right arm before attempting to draw blood,
thereby increasing the risk of harm and injury to her;
d) Failure to exercise due care according to appropriate standards of care by
not taking any procedures or action to mitigate the injuries sustained by
Plaintiff after attempting to draw blood from her right arm, thereby
increasing the risk of harm and injury to her;
9
Counsel for the Plaintiff
McCarthy Weisberg Cummings, P.C.
2041 Herr Street
Harrisburg, PA 17103-1624
(717) 238-5707
e) Failure to exercise due care according to appropriate standards of care by
ignoring Plaintiffs concern that she was experiencing pain and swelling
after the failed attempt to draw blood from Plaintiff's right arm, thereby
increasing the risk of harm and injury to her;
f) Failure to exercise due care according to appropriate standards of care by
not informing a doctor or supervisor of Plaintiff's incident, and that Plaintiff
was experiencing pain and swelling after the failed attempt to draw blood
from her right arm, thereby increasing the risk of harm and injury to her.
39. Defendant Black agreed to provide medical care to Plaintiff which she knew or
should have known under the circumstances was necessary to protect Plaintiff.
40. The negligence, carelessness and other tortuous conduct of Defendant Black
proximately caused the harm and injury to Plaintiff, thus subjecting Plaintiff to an
increased risk of harm and injury that were a substantial factor in causing and/or
contributing to the cause of the serious and permanent injuries and other losses
sustained by Plaintiff.
41. In addition to proving specific negligence, carelessness and other tortuous
conduct of Defendant Black, Plaintiff hereby expressly reserves the right to rely on the
doctrine of res ipsa loquitur to show fault, liability and/or negligence of Defendant Black,
jointly and severally with the other named Defendants.
WHEREFORE, Plaintiff respectfully requests judgment against Defendant Black,
jointly and severally with Defendant CVEC and Defendant Bouder, for an amount in
excess of the limits of arbitration, exclusive of interests and costs.
10
Counsel for the Plaintiff
McCarthy Weisberg Cummings, P.C.
2041 Herr Street
Harrisburg, PA 17103-1624
(717) 238-5707
COUNT II
(NEGLIGENCE)
Plaintiff, Lisa J. Boyer v.
Defendant, Meghan Bouder
42. Paragraphs 1 through 41 above are incorporated herein by reference as if more
fully set forth at length.
43. The pain, suffering, injuries and other losses of Plaintiff were the direct and
proximate cause of the negligence of Defendant Bouder, jointly and severally with the
other named Defendants, acting as an agent, employee, representative and/or
independent contractor, who conducted the business of Defendant CVEC within the
scope of her authority, employment and/or job duties as follows:
a) Failure to exercise due care according to appropriate standards of care by
informing Plaintiff via telephone on August 7, 2007, that there was nothing
Defendants could do about the continued pain and numbness in Plaintiffs
right arm following the attempt by Defendant Black to draw her blood,
thereby increasing the risk of harm and injury to her;
b) Failure to exercise due care according to appropriate standards of care by
informing Plaintiff over the telephone and without ever examining
Plaintiffs right arm, that her nerve or tendon were probably stuck with the
needle used by Defendant Black while attempting to draw her blood,
thereby increasing the risk of harm and injury to her;
c) Failure to exercise due care according to appropriate standards of care by
not advising Plaintiff on August 7, 2007 to have her arm examined by a
doctor to determine the extent of any damage to her right arm following
the attempt by Defendant Black to draw her blood, thereby increasing the
risk of harm and injury to her.
11
Counsel for the Plaintiff
McCarthy Weisberg Cummings, P.C.
2041 Herr Street
Harrisburg, PA 17103-1624
(717) 238-5707
44. Defendant Bouder agreed to provide care to Plaintiff which she knew or should
have known under the circumstances was necessary to protect Plaintiff.
45. The negligence, carelessness and other tortuous conduct of Defendant Bouder
proximately caused the harm and injury to Plaintiff, thus subjecting Plaintiff to an
increased risk of harm and injury that were a substantial factor in causing and or
contributing to the cause of the serious and permanent injuries and other losses
sustained by Plaintiff.
46. In addition to proving specific negligence, carelessness and other tortuous
conduct of Defendant Bouder, Plaintiff hereby expressly reserves the right to rely on the
doctrine of res ipsa loquitur to show fault, liability and/or negligence of Defendant
Bouder, jointly and severally with the other named Defendants.
WHEREFORE, Plaintiff respectfully requests judgment against Defendant Bouder,
jointly and severally with Defendant CVEC and Defendant Black, for an amount in
excess of the limits of arbitration, exclusive of interests and costs.
12
Counsel for the Plaintiff
McCarthy Weisberg Cummings, P.C.
2041 Herr Street
Harrisburg, PA 17103-1624
(717) 238-5707
COUNT III
(NEGLIGENCE-CORPORATE LIABILITY)
Plaintiff, Lisa J. Boyer v.
Defendant, Cumberland Valley Endocrinology Center, LLC
47. Paragraphs 1 through 46 above are incorporated herein by reference as if more
fully set forth at length.
48. The pain, suffering, injuries and other losses of Plaintiff were the direct and
proximate cause of the negligence of Defendant CVEC, jointly and severally with the
other named Defendants, as follows:
a) Failure to exercise due care according to appropriate standards of care by
not providing a proper and sufficient medical facility and the adequate
equipment to perform phlebotomy procedures to stabilize and support
Plaintiff's right arm before drawing blood, thereby increasing the risk of
harm and injury to her;
b) Failure to exercise due care according to appropriate standards of care by
not providing competent and sufficient medical staff and/or personnel to
properly draw blood from Plaintiffs right arm, thereby increasing the risk
of harm and injury to her;
C) Failure to exercise due care according to appropriate standards of care by
not properly hiring and/or training its agents, employees, representatives
and/or independent contractors with regard to the proper technique and
appropriate standards of care for drawing Plaintiffs blood, thereby
increasing the risk of harm and injury to her;
d) Failure to exercise due care according to appropriate standards of care by
not creating, implementing and/or enforcing adequate rules and
procedures to ensure quality of care while attempting to draw blood from
Plaintiff's right arm, thereby increasing the risk of harm and injury to her;
13
Counsel for the Plaintiff
McCarthy Weisberg Cummings, P.C.
2041 Herr Street
Harrisburg, PA 17103-1624
(717) 238-5707
e) Failure to exercise due care according to appropriate standards of care by
not creating, implementing and/ enforcing adequate rules and procedures
to ensure quality of care to report the occurrence of pain and numbness in
Plaintiffs right arm following the attempted blood draw, thereby increasing
the risk of harm and injury to Plaintiff.
49. Defendant CVEC agreed to provide medical care to Plaintiff which it knew or
should have known under the circumstances was necessary to protect Plaintiff.
50. The negligence, carelessness and other tortuous conduct of Defendant CVEC
proximately caused the harm and injury to Plaintiff, thus subjecting Plaintiff to an
increased risk of harm and injury that were a substantial factor in causing and/or
contributing to the cause of the serious and permanent injuries and other losses
sustained by Plaintiff.
51. In addition to proving specific negligence, carelessness and other tortuous
conduct of Defendant CVEC, Plaintiff hereby expressly reserves the right to rely on the
doctrine of res ipsa loquitur to show fault, liability and/or negligence of Defendant
CVEC, jointly and severally with the other named Defendants.
WHEREFORE, Plaintiff respectfully requests judgment against Defendant CVEC,
jointly and severally with Defendant Black and Defendant Bouder, for an amount in
excess of the limits of arbitration, exclusive of interests and costs.
14
Counsel for the Plaintiff
McCarthy Weisberg Cummings, P.C.
2041 Herr Street
Harrisburg, PA 17103-1624
(717) 238-5707
COUNT IV
(NEGLIGENCE-RESPONDEAT SUPERIOR)
Plaintiff, Lisa J. Boyer v.
Defendant, Cumberland Valley Endocrinology Center, LLC
52. Paragraphs 1 through 51 above are incorporated herein by reference as if more
fully set forth at length.
53. The pain, suffering, injuries and other losses of Plaintiff were the direct and
proximate cause of Defendant CVEC, jointly and severally with the other named
Defendants, acting by and through their agents, employees, representatives and/or
independent contractors, as follows:
a) Failure to exercise due care according to appropriate standards of care by
not providing a proper and sufficient medical facility and the adequate
equipment to perform phlebotomy procedures to stabilize and support
Plaintiff's right arm before drawing blood, thereby increasing the risk of
harm and injury to her;
b) Failure to exercise due care according to appropriate standards of care by
not providing competent and sufficient medical staff and/or personnel to
properly draw blood from Plaintiffs right arm, thereby increasing the risk
of harm and injury to her;
c) Failure to exercise due care according to appropriate standards of care by
not properly hiring and/or training its agents, employees, representatives
and/or independent contractors with regard to the proper technique and
appropriate standards of care for drawing Plaintiff's blood, thereby
increasing the risk of harm and injury to her;
d) Failure to exercise due care according to appropriate standards of care by
not creating, implementing and/or enforcing adequate rules and
procedures to ensure quality of care while attempting to draw blood from
Plaintiff's right arm, thereby increasing the risk of harm and injury to her;
15
Counsel for the Plaintiff
McCarthy Weisberg Cummings, P.C.
2041 Herr Street
Harrisburg, PA 17103-1624
(717) 238-5707
e) Failure to exercise due care according to appropriate standards of care by
not creating, implementing and/ enforcing adequate rules and procedures
to ensure quality of care to report the occurrence of pain and numbness in
Plaintiffs right arm following the attempted blood draw, thereby increasing
the risk of harm and injury to Plaintiff.
54. Defendant CVEC agreed to provide medical care to Plaintiff which it knew or
should have known under the circumstances was necessary to protect Plaintiff.
55. The negligence, carelessness and other tortuous conduct of Defendant CVEC
proximately caused the harm and injury to Plaintiff, thus subjecting Plaintiff to an
increased risk of harm and injury that were a substantial factor in causing and/or
contributing to the cause of the serious and permanent injuries and other losses
sustained by Plaintiff.
56. In addition to proving specific negligence, carelessness and other tortuous
conduct of Defendant CVEC, Plaintiff hereby expressly reserves the right to rely on the
doctrine of res ipsa loquitur to show fault, liability and or negligence of Defendant
CVEC, jointly and severally with the other named Defendants.
57. Defendant CVEC is vicariously liable for the negligence, carelessness and other
tortuous conduct of all of its agents, ostensible agents, employees, representatives
and/or independent contractors, including named Defendant Black and Defendant
Bouder, jointly and severally.
16
Counsel for the Plaintiff
McCarthy Weisberg Cummings, P.C.
2041 Herr Street
Harrisburg, PA 17103-1624
(717) 238-5707
WHEREFORE, Plaintiff respectfully requests judgment against Defendant CVEC,
jointly and severally with Defendant Black and Defendant Bouder, for an amount in
excess of the limits of arbitration, exclusive of interests and costs.
Respectfully submitted,
10 -- 2 (o - 0 '-T-
Date
McCarthy Weisberg Cummings, P.C.
Derrek . Cummings, Esquire
Sup. Ct. I.D. #83286
Larry A. Weisberg, Esquire
Sup. Ct. I.D. #83410
2041 Herr Street
Harrisburg, PA 17103-1624
(717) 238-5707
(717) 233-8133 (FAX)
Attorneys for Plaintiff
17
PINNACLEHEALTH System Radiology Imaging Report
M R#: 209364971
xJ- SSN: 209364971
ADM: 000270041674
DOB: 02/27/1963 AGE: 43Y
BED: -
PTCLASS: O BCRD
NAME: BOYER, LISA
5156 ERIE RD
HARRISBURG, PA 17111
ORD DR: TROSKO, THOMAS
ORD#: 90002
ATT DR: TROSKO, THOMAS
--^?+?+?-• LJILM I t%r-%ivi i-qulvltslVtJJ COMMENTS:
***Final Report***
COMMUNITY IMAGING MRI DEPARTMENT
PROCEDURE: CMR - 2141 - MR CERVICAL W/O CONTRAST
PROCEDURE DATE: Aug 18 2006 4:25PM ACCESSION#: 5444289
Exam: Unenhanced MR cervical spine
Clinical History: Bilateral arm numbness.
Discussion: The included portions of the posterior fossa contents and spinal cord show intrinsically normal
morphology and signal character. Some straightening of the cervical lordosis is likely positional. There is no
segmental malalignment. Mild narrowing of the C5/6 disc. Remaining discs are normal. There is no significant
marrow signal abnormality.
Axial imaging at the cervicothoracic junction at C6/7 shows no disc herniation, spinal or foraminal narrowing.
At C5/6, there is broad-based osteophyte/disc bulge causing mild spinal stenosis. Facet and uncovertebral joint
hypertrophy combine to cause a moderate-severe degree of right foraminal narrowing at this level.
C4/5, C3/4 and C2/3 shows no disc herniation, spinal or foraminal stenosis.
Impression: Spondylosis at C5/6. Bulging disc causes mild spinal stenosis. There is significant right foraminal
narrowing.
DICTATED: (08/18/2006 16:50)
TRANS: (ALW/PS) ON: 08/18/2006 16:53
INTERPRETED AND REVIEWED BY: PAUL S. POTOK, D.O.
ELECTRONICALLY SIGNED: 08/21/2006 10:14
To provide the best and safest patient care:
During routine daytime weekday, weekend, and holiday on-site coverage, a Radiologist can be contacted at 782-5881 (1-11-1),
657-7199
(CGOH), or 791-2467 (Fredricksen Center). Alternatively a Quantum Radiologist can be reached by phone 24 x 7 x 365 at 932-8030.
As Clinicians' consultants, the Quantum Radiologists are genuinely committed to providing meaningful interpretations. Accordingly, if
the clinical team is in search of answers to specific questions, please include your questions(s) on the xray request form, and the
question(s) will be specifically addressed in the Radiologist's report. Furthermore, if clinical urgency necessitates an immediate verbal
report, please insure that the xray request includes a reliable phone number where you can be reached immediately.
Study interpretation provided by Quantum Imaging & Therapeutic Associates. If you have received this document by facsimile,
the information contained in this transmission is privileged and confidential. If the reader of this message is not the intended recipient, you
are hereby notified that any dissemination, distribution, or copy of this communication is strictly prohibited. If you have received this
coy,.munication in error, please notify us immediately at: 1-717-782-3240.
Printed: September 18, 2006 9:33 AM
09/28/2006 12:45 7174697966 THOMAS TROSKO DO PAGE 01
f.N. ws; ct ZKO ua;uqm rauIMI
?l?E,':r?;9VS'F'?I•N?f??9f,?1?ll?.34??t?J1f.a1SS?'lal.`3?S
845 sir ?1+ IRM court
5&rP*§WV, 7A 17JoD-4849
76• (717) 651•,F800 -f= (717) 6M-:;8o8
To I1r.?g?
Fad ?..?,.
P"
PRELDAMMY EMOMCS RESULTS
)de OfRom
"ohm
?t
AdyRaq,?..` - ... ??
RWMTS
f
a-Ilk -t
1
r V
?a
°.?se UN ifyou have iny quNiou l?folkw
4ORGANST'EIN
1 HUMAS I RDSKO
Fax:
REHABILITATION
DO PAGE 02
Oct is 20Ub U1;a1as rat,IJUU0
A-ViSOCIATES
.wry wi?..r? ?.rr?¦i..?.?. r .+i..r??
STEVEN E. MORGANSTON, D.O.
SQP1 sober 21, 2006
Ti0 tas Trosk% D.O.
1C 1t > Jon stown Road
P(? 1 ox 240
0 ai villa, ?A 17028
itlr: Liu Royer
two of JCVzl: 9/2V06
Dim Tom:
71" s you for M&Tins Lisa Boyer to the office for electiodiagnosdr. testij Yg. As you know, she
is I. 3ryev-old, rq trt hand doraiUM feoWe witb chief complaint of n& arm munbness. She
desc :bes numbness extending along the radial aspect of the forearm. She i leries any symptoms
in th bind. She denies any symptoms Aulber up the mm or into the neck. &he repotU her
sy n tans occurred following attempt at a blood draw from the mrtocubita. fossa on August 1,
200(
Ste rcaa?ts todty with an Mitt of the cervical spine wtuch does reveal 301me fOmminal
nam wing to the right at the C5-C6 level. There is no evidence of any foci t disc herWations,
Past nediva history, Peat surgical history, family history, social history, ci trrent medications,
next ml allergies, and review of systems have all been reviewed per patient history form and
di; v ;sod in daWl with patient.
Fln QCAL EXAMINATION: She is a very pleasant female who does, iot appear to be in any
ac it dixomfort. She bas W range of motion throughout the cervical spi -w in all planes. Upper
exv nity neurologic testing teveels full 515 motor strength throughout. "I" mn is used light
tout. sansatm along the right mid to distal forearm Moon along the radix 1 surface, udmwix
sate :ion is normal dwoughout. Tind's aad Phalen's testing at the wrists t.re negative. Distal
pu Is- ;are symmetrical. There is no iattittsic muscular Weakness or atrophy.
In 1b office todtxy, I perfb=Aod doofto tf<gnostie testing of the right upper extremity. Utilizing
sit nc Ord technique, zwve conduction studies were perfmned on the right , nedian and u[wL
mote • and xmsory nerves as we11 as the tight radial and tic right lateral cu Aneous nerve. Left
Ms, ry nerve testing was padbi'med as well for comparison. All distal lat stun, amplitudes,
ani : conduction velocities were fomad to be normal with regards to u sting of the median
Uhm and radial nerves. The right lateral cutaneous naive ravelled borderli me norz-l findings
845 ,31F I -iOMAS COURT. SUrre 7 (717) 651-5800
HARF:ISISL 3G, PA 17109 FAX: (719) 651-8808
10/20!2006 10:51 7174697966
Pa 0 rwo
PT: visa Boyer
Se * nber 21, 2006
THOMAS TROSKO DO PAGE 03
a• WL It Zuw u(:sbU rULJ/UUb
wi b 08 millisecond lstancy and 15.52 microvolt amplitude response in c )mparison to the left
side; xuwv mr, this was f'Dmd to be slow as ft disW latency wag 1.44 mill iseconids.
Ut li ing mormopolar needle., EMG was paormed on selected muscles of the right upper
ex w :qty. All muscles tested were found to be ziomal. Their is no eviden :e of any acute or
cb 1m i.c dentm4 ion changes.
Ilvp tRS8J0N: I.) There is eleetrodi ostlc cvidmes of lwative slowing
of the eight iateral ent nem nerve. This would c Qrrespond to
her subjective comp! w vroU w objw&e find: ngs on cibUaulcal
txankh ation as this nerve would prodde sensory iauervottos
to the radial foram region. AR other testing is i normal and
there it no evidenee or cervical rammlopatby,
Thm:: you again for referring Ms. Boyer for EMO.
Si=!eg elI?,
low
St(v? E. Morgansbein, D.O.
SEM 3sf
En I, ire
ir,: ai I1 x4697966
THOMAS TROSKO DO PAGE 04
uci ib xwk u ; &W euuj/UU6
MaRGAN&MIN REHABILITATION ASSOC'(ATES
843 air ThOMW C01M Ste.7
HauriebR & PA 17109
(717) Gil-SOW
?'at t::3< mr, Lim
Ret. rhys• X. T DOS: 712711963 Priem: St:ven E. MO .
ros?a r6a»stain. D. O.
EMt:
Rod
AM
e"
pbe
am
b*pw C
WNWW
RAW &U.?f Ad
NJ* ma
C0.1
NW V419
Nw )w tw o
?
e Abd 1b &w
as" (Pat ho
CI,t
IW ?
NW Neal low
0
od
od
W& iwrwl . L7eW MT1 mw Jw
N" Ned )&d Nd 0 NW)
Ad Ai l
mw
Motcor'N Nazi. Ad N?ql 0 Nep1 mw
!r ves
Ni NWR004
?
N'mAmp
1410'
Dr 11
R? i? j11 i r`^t mow)
...
eso M,
(AU vii rfmw vel
Wit 3.34
Pi i 13
114.2
7.74
x3.0
5.23 l1hoM?Weis
4
: 3
3b
COr„??vw maw
s.ss . S f ?0 >f0 4
2.ee
b lhbm 3.lS
144.s
7n
}3.0
B Blbsw?Writ
T
7 9
9
. 1 63.71 :SOA
SeNsf)r!? : serves
Njt !" X 4M Amp
g l'f ll?n
BrMM lilir. ?ftt Dw lom n D AbI Doe vd N1"1t Yd
) ? UWr)
MifPa4n 349
lid ?
14.41
>1911D
?'1i1F9o0 D
_
---w,
Disr: AnN
*am
70A2
m 3
-213
3A.0
wriMt 7.69
FftWburs A al ftn jM gp e.4
!d 30
?! s.o
VAI =0
7.0
Rent
Zi6
7
.17 > o.a
s
mlwxdp?e N MiDOmIdCD* 216
AN* t.3!
LA*N644ftAdl ayDW) 13.52
231
12
11 l4by1966 THOMAS TROSKO DO PAGE 05
F$!t: UCt lb JUUb Ut:4:i= FUV4/UJU
P+?tI?n1: ,ror I.Jq ZrMt Qi1r: iiR1/2Q?0 p. 2
wsilt 3.73 <3A 376!! >LoA VAi mt W W* 1.72 s39 Q
LexUwrbM( kW400
WOW 194 4.7 3127 }L SA wrire•m ois t :51s >sa.0
LAMIMdA)d hwIfi ft
wets U7 4.7 6.47 VMK4%n le?tEil L47
Left LaM:+Wu•
Wdo L" La.1s ?Ae iep?rl ..44 12
t
s
Steven E. N
III4bbl?Jbb
pamopl B yer, um
ChM M????
R1Nh! Mxdl#t N
----- NAbsry ?-'-,-
'_-..--j---,____-_.
,... ---- -----
----------
•.
.?. ..ate ? • .F •.• f .... F__._.?_ .•?•. _.?
THOMAS TROSKO DO
Fax:
Yew am: onlam
PAGE 06
uct 7b [uub uf:4utlm ruwfuub
p. a
-----------------------------
.....
--------- -------
-- ----------- ------
..33?_ 1111 l1 •1. .l. ..?. ..?.
-........_.......F.....}rc. ------•? ¢...•wt..
Maier
Lm* Ubw1W1 rY•. ..y.._
• _?._...?..-.
• .4• _•...........
•?-1- -..i.--_.i....•?.....C•.....-...Jf..•.
I
- -----------
f_
.....?._...c .._ ,...__ - ---•---
-----------------
.. pull! ON lC11 om ftuw) ? I
.. ?....` .. -r.. } .s .C...
..L..- ?- •i•-•--T-._
-----------
m .••..
? ? (ply
L?It ?r t IMU r
?. ..`.__ •?
............
LU- ?jl IA (µbb (`Jbb THOMAS TROSKO DO
PAGE 07
Fax. Oct 16 2006 01:11am PoG6/006
Pa1?ri1: & rsr, Lisa T4W ONW. W21FJM
p- 4
--------------
- : -
..... : -----------------
-------------
- ------- ----------
w Olin
.? t?
41
Counsel for the Plaintiff
McCarthy Weisberg Cummings, P.C.
2041 Herr Street
Harrisburg, PA 17103-1624
(717) 238-5707
VERIFICATION
I, Lisa J. Boyer, verify that I am the Plaintiff in the foregoing Complaint and that
the facts set forth therein are true and correct to the best of my knowledge, information,
and belief; and that this verification is subject to the penalties of 18 Pa.C.S. § 4909
relative to unsworn falsification to authorities.
Dated: October
2007. a
Lisa J. Boy r
Counsel for the Plaintiff
McCarthy Weisberg Cummings, P.C.
2041 Herr Street
Harrisburg, PA 17103-1624
(717) 238-5707
CERTIFICATE OF SERVICE
I hereby certify that I am this day serving a copy of the foregoing Complaint upon
the person and in the manner indicated below, which service satisfies the requirements
of the Pennsylvania Rules of Civil Procedure, by depositing a copy of the same in the
United States Mail, first-class postage prepaid, addressed as follows:
Andrew H. Foulkrod, Esquire
Foulkrod Ellis, P.C.
2010 Market Street
Camp Hill, PA 17011
(Counsel for Defendants)
ko --Z- b-o -
Date
McCarthy Weisberg Cummings, P.C.
Derrek W. Cummings, Esquire
Sup. Ct. I.D. #83286
Larry A. Weisberg, Esq.
Sup. Ct. I.D. #83410
2041 Herr Street
Harrisburg, PA 17103-1624
(717) 238-5707
(717) 233-8133 (FAX)
Attorneys for Plaintiff
--; r7z
-TI
v J ?
7 ?
c
r.: ?
A .._
Counsel for the Plaintiff
McCarthy Weisberg Cummings, P.C.
2041 Herr Street
Harrisburg, PA 17103-1624
(717) 238-5707
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
LISA J. BOYER
Plaintiff
V.
NO. 7- t, a yL 0.?.? 1 ?.,...
JENNIFER BLACK,
CUMBERLAND VALLEY
ENDOCRINOLOGY CENTER, LLC,
and
MEGHAN BOUDER
Defendants
CIVIL ACTION - MEDICAL
PROFESSIONAL LIABILITY ACTION
JURY TRIAL DEMANDED
CERTIFICATE OF MERIT AS TO DEFENDANT CUMBERLAND VALLEY
ENDOCRINOLOGY CENTER. LLC
I, Derrek W. Cummings, Esquire, Attorney for Plaintiff Lisa J. Boyer, certify that:
an appropriate licensed professional has supplied a written statement to the
undersigned that there is a basis to conclude that the care, skill or knowledge exercised
or exhibited by this defendant in the treatment, practice or work that is the subject of the
complaint, fell outside acceptable professional standards and that such conduct was a
cause in bringing about the harm;
AND/OR
the claim that this defendant deviated from an acceptable professional standard
is based solely on allegations that other licensed professionals for whom this defendant
A ;_ .
Counsel for the Plaintiff
McCarthy Weisberg Cummings, P.C.
2041 Herr Street
Harrisburg, PA 17103-1624
(717) 238-5707
is responsible deviated from an acceptable professional standard and an appropriate
licensed professional has supplied a written statement to the undersigned that there is a
basis to conclude that the care, skill or knowledge exercised or exhibited by the other
licensed professionals in the treatment, practice or work that is the subject of the
complaint, fell outside acceptable professional standards and that such conduct was a
cause in bringing about the harm;
OR
expert testimony of an appropriate licensed professional is unnecessary for
prosecution of the claim against this defendant.
Cummings, P.C.
Icy- Zb -- o
Date
f
Derrek W. Cummings, Esq.
Sup. Ct. I.D. #83286
Larry A. Weisberg, Esq.
Sup. Ct. I.D. #83410
2041 Herr Street
Harrisburg, PA 17103-1624
(717) 238-5707
(717) 233-8133 (FAX)
Attorneys for Plaintiff
2
n,a
--? rn
f t' Cal
+
?..,.? 7
t p 'y
r 4
t
Counsel for the Plaintiff
McCarthy Weisberg Cummings, P.C.
2041 Herr Street
Harrisburg, PA 17103-1624
(717) 238-5707
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
LISA J. BOYER
V.
Plaintiff
JENNIFER BLACK,
CUMBERLAND VALLEY
ENDOCRINOLOGY CENTER, LLC,
and
MEGHAN BOUDER
Defendants
NO. 0'2. t, a PG Cc:c? L1
CIVIL ACTION - MEDICAL
PROFESSIONAL LIABILITY ACTION
JURY TRIAL DEMANDED
CERTIFICATE OF MERIT AS TO DEFENDANT JENNIFER BLACK
I, Derrek W. Cummings, Esquire, Attorney for Plaintiff Lisa J. Boyer, certify that:
_ an appropriate licensed professional has supplied a written statement to the
undersigned that there is a basis to conclude that the care, skill or knowledge exercised
or exhibited by this defendant in the treatment, practice or work that is the subject of the
complaint, fell outside acceptable professional standards and that such conduct was a
cause in bringing about the harm;
AND/OR
the claim that this defendant deviated from an acceptable professional standard
is based solely on allegations that other licensed professionals for whom this defendant
t
Counsel for the Plaintiff
McCarthy Weisberg Cummings, P.C.
2041 Herr Street
Harrisburg, PA 17103-1624
(717) 238-5707
is responsible deviated from an acceptable professional standard and an appropriate
licensed professional has supplied a written statement to the undersigned that there is a
basis to conclude that the care, skill or knowledge exercised or exhibited by the other
licensed professionals in the treatment, practice or work that is the subject of the
complaint, fell outside acceptable professional standards and that such conduct was a
cause in bringing about the harm;
OR
expert testimony of an appropriate licensed professional is unnecessary for
I0-21?- p-iiL
Date
Weisber Cummings, P.C.
Derrek W. Cummin sq.
Sup. Ct. I.D. #83286
Larry A. Weisberg, Esq.
Sup. Ct. I.D. #83410
2041 Herr Street
Harrisburg, PA 17103-1624
(717) 238-5707
(717) 233-8133 (FAX)
Attorneys for Plaintiff
prosecution of the claim against this defendant.
2
C7
?
'
_ }
?
._.
r
mow..{ Hi M,
e , t r^°',.
C_
+ 33
e
-00
Counsel for the Plaintiff
McCarthy Weisberg Cummings, P.C.
2041 Herr Street
Harrisburg, PA 17103-1624
(717) 238-5707
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
LISA J. BOYER
V.
Plaintiff
JENNIFER BLACK,
CUMBERLAND VALLEY
ENDOCRINOLOGY CENTER, LLC,
and
MEGHAN BOUDER
Defendants
NO. n-1 • 0,-l T,.
CIVIL ACTION - MEDICAL
PROFESSIONAL LIABILITY ACTION
JURY TRIAL DEMANDED
CERTIFICATE OF MERIT AS TO DEFENDANT MEGHAN BOUDER
I, Derrek W. Cummings, Esquire, Attorney for Plaintiff Lisa J. Boyer, certify that:
an appropriate licensed professional has supplied a written statement to the
undersigned that there is a basis to conclude that the care, skill or knowledge exercised
or exhibited by this defendant in the treatment, practice or work that is the subject of the
complaint, fell outside acceptable professional standards and that such conduct was a
cause in bringing about the harm;
AND/OR
the claim that this defendant deviated from an acceptable professional standard
is based solely on allegations that other licensed professionals for whom this defendant
4K
Counsel for the Plaintiff
McCarthy Weisberg Cummings, P.C.
2041 Herr Street
Harrisburg, PA 17103-1624
(717) 238-5707
is responsible deviated from an acceptable professional standard and an appropriate
licensed professional has supplied a written statement to the undersigned that there is a
basis to conclude that the care, skill or knowledge exercised or exhibited by the other
licensed professionals in the treatment, practice or work that is the subject of the
complaint, fell outside acceptable professional standards and that such conduct was a
cause in bringing about the harm;
OR
expert testimony of an appropriate licensed professional is unnecessary for
prosecution of the claim against this defendant.
islfg Cummings, P.C.
t0-z6-off
Date
'Derrek W. Cummings, Esq.
Sup. Ct. I.D. #83286
Larry A. Weisberg, Esq.
Sup. Ct. I.D. #83410
2041 Herr Street
Harrisburg, PA 17103-1624
(717) 238-5707
(717) 233-8133 (FAX)
Attorneys for Plaintiff
2
C cza
Q
rat.". c=
.r
FOULKROD ELLIS
Andrew H. Foulkrod, Esquire
Attorney I.D. #77394
Michael C. Mongiello, Esquire
Attorney I.D. #87532
2010 Market Street
Camp Hill, PA 17011
Phone. (717) 909-7006
Fax: (717) 909-6955
V.
LISA J. BOYER,
Plaintiff
JENNIFER BLACK, CUMBERLAND
VALLEY ENDOCRINOLOGY CENTER, LLC,
and MEGHAN BOUDER,
Attorneys for Defendants:
JENNIFER BLACK, CUMBERLAND VALLEY
ENDOCRINOLOGY CENTER, LLC, and MEGHAN BOUDER
COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL DIVISION - MEDICAL
PROFESSIONAL LIABILITY ACTION
No. 07-6286
JURY TRIAL DEMANDED
ENTRY OF APPEARANCE
TO THE PROTHONOTARY:
Kindly enter our appearance on behalf of Defendants, Jennifer Black,
Cumberland Valley Endocrinology Center, LLC, and Meghan Bouder in the above-
captioned action.
Date: ?U r'
Respectfully submitted,
FOULKROD ELLIS
Professional Corporation
M
BY. '
Andrew H. Foulkrod, Esquire
Attorney I.D. #77394
Michael C. Mongiello, Esquire
Attorney I.D. #87532
2010 Market Street
Camp Hill, PA 17011
(717) 909-7006
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the foregoing was served
upon counsel of record this 29 day of t?CA/tfyLVD? , 2007, by
depositing said copy in the United States Mail at Camp Hill, Pennsylvania, postage
prepaid, first class delivery, and addressed as follows:
Derrek W. Cummings, Esquire
McCarthy, Weisberg, Cummings, P.C.
2041 Herr Street
Harrisburg, PA 17103-1624
FOULKROD ELLIS
Professional Corporation
Laurie C. Hollinger, Paralega
-?-` ._.a
:?
?? ? j -r;
r`
? a?
_
?-
,,.,? ?;
, ?:
-
" -
,
} = a:? r... .--t
?.
?.?.? cwt ;?
...t„ r?
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
LISA J. BOYER
Plaintiff
NO. 07-6286
V.
CIVIL ACTION - MEDICAL
JENNIFER BLACK, PROFESSIONAL LIABILITY ACTION
MEGHAN BOUDER
and
ANDREW J. BEHNKE, M.D., F.A.C.E.
Defendants
NOTICE
JURY TRIAL DEMANDED
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, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW.
THIS OFFICE CAN PROVIDE YOU WITH INFORMATION ABOUT HIRING A
LAWYER.
IF YOU CANNOT AFFORD TO HIRE A LAWYER, THIS OFFICE MAY BE ABLE TO
PROVIDE YOU WITH INFORMATION ABOUT AGENCIES THAT MAY OFFER LEGAL
SERVICES TO ELIGIBLE PERSONS AT A REDUCED FEE OR NO FEE.
CUMBERLAND COUNTY BAR ASSOCIATION,
32 South Bedford St.
Carlisle, Pennsylvania 17013-3302
717-249-3166
AVISO
USTED HA SIDO DEMANDADO/A EN CORTE. Si usted desea defenderse de las
demandas que se presentan mas adelante en las siguientes paginas, debe tomar
accion dentro de los proximos veinte (20) dias despues de la notificaci6n de esta
Demanda y Aviso radicando personalmente o por medio de un abogado una
comparecencia escrita y radicando en la Corte por escrito sus defensas de, y
objecciones a, las demandas presentadas aqui en contra suya. Se le advierte de que
si usted falla de tomar accion como se describe anteriormente, el caso puede proceder
sin usted y un fallo por cualquier suma de dinero reclamada en la demanda o cualquier
otra reclamacion o remedio solicitado por el demandante puede ser dictado en contra
suya por la Corte sin mas aviso adicional. Usted puede perder dinero o propiedad u
otros derechos importantes para usted.
USTED DEBE LLEVAR ESTE DOCUMENTO A SU ABOGADO INMEDIATAMENTE.
SI LISTED NO TIENE UN ABOGADO, LLAME O VAYA A LA SIGUIENTE OFICINA.
ESTA OFICINA PUEDE PROVEERLE INFORMACION A CERCA DE COMO
CONSEGUIR UN ABOGADO.
SI USTED NO PUEDE PAGAR POR LOS SERVICIOS DE UN ABOGADO, ES
POSIBLE QUE ESTA OFICINA LE PUEDA PROVEER INFORMACION SOBRE
AGENCIAS QUE OFREZCAN SERVICIOS LEGALES SIN CARGO O BAJO COSTO A
PERSONAS QUE CUALIFICAN.
CUMBERLAND COUNTY BAR ASSOCIATION,
32 South Bedford St.
Carlisle, Pennsylvania 17013-3302
717-249-3166
2
Counsel for the Plaintiff
McCarthy Weisberg Cummings, P.C.
2041 Herr Street
Harrisburg, PA 17103-1624
(717) 238-5707
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
LISA J. BOYER
Plaintiff
V.
NO. 07-6286
CIVIL ACTION - MEDICAL
JENNIFER BLACK, PROFESSIONAL LIABILITY ACTION
MEGHAN BOUDER
JURY TRIAL DEMANDED
and
ANDREW J. BEHNKE, M.D., F.A.C.E.
Defendants
PLAINTIFF'S AMENDED COMPLAINT AGAINST DEFENDANTS
FOR PROFESSIONAL MALPRACTICE AND NEGLIGENCE
Plaintiff, Lisa J. Boyer, by and through her counsel, McCarthy Weisberg Cummings,
P.C., hereby files the following Complaint-Civil Action (hereinafter "Complaint")
asserting a claim for damages against the Defendants set forth herein, jointly and
severally, as follows:
Counsel for the Plaintiff
McCarthy Weisberg Cummings, P.C.
2041 Herr Street
Harrisburg, PA 17103-1624
(717) 238-5707
1. Plaintiff, an adult individual, is a resident and citizen of the Commonwealth of
Pennsylvania, residing at 5156 Erie Road, Harrisburg, Dauphin County, Pennsylvania
17111.
2. Defendant Jennifer Black (hereinafter "Defendant Black"), an adult individual, is a
licensed professional with offices in Cumberland County, Pennsylvania. Plaintiff is
asserting a professional liability claim against this Defendant.
3. Defendant Black, a Medical Assistant and Laboratory Technician, is and was at
all times relevant and material to this Complaint, an agent, employee, representative
and/or independent contractor, who conducted the business of Defendant Andrew J.
Behnke, M.D., F.A.C.E. (hereinafter "Defendant Dr. Behnke") within the scope of her
authority, employment and/or job duties, at the principal place of business of
Cumberland Valley Endocrinology Center, LLC, located at 49 Brookwood Avenue,
Carlisle, Cumberland County, Pennsylvania 17013.
4. Defendant Black, at all times relevant and material to this Complaint, represented
to Plaintiff, as well as the general public, that she was an agent, employee,
representative and/or independent contractor of Defendant Dr. Behnke, of which
Plaintiff reasonably relied.
5. Defendant Meghan Bouder (hereinafter "Defendant Bouder"), an adult individual,
is a licensed professional with offices in Cumberland County, Pennsylvania. Plaintiff is
asserting a professional liability claim against this Defendant.
2
Counsel for the Plaintiff
McCarthy Weisberg Cummings, P.C.
2041 Herr Street
Harrisburg, PA 17103-1624
(717) 238-5707
6. Defendant Bouder, a Medical Assistant, is and was at all times relevant and
material to this Complaint, an agent, employee, representative and/or independent
contractor, who conducted the business of Defendant Dr. Behnke within the scope of
her authority, employment and/or job duties, at the principal place of business of
Cumberland Valley Endocrinology Center, LLC, located at 49 Brookwood Avenue,
Carlisle, Cumberland County, Pennsylvania 17013.
7. Defendant Bouder, at all times relevant and material to this Complaint,
represented to Plaintiff, as well as the general public, that she was an agent, employee,
representative and/or independent contractor of Defendant Dr. Behnke, of which
Plaintiff reasonably relied.
8. Defendant Dr. Behnke, an adult individual, is a licensed professional with offices
in Cumberland County, Pennsylvania. Plaintiff is asserting a professional liability claim
against this Defendant.
9. Defendant Dr. Behnke is and was at all times relevant and material to this
Complaint, a medical doctor licensed to practice medicine under the laws of the
Commonwealth of Pennsylvania, and is the principal medical doctor of his business
operations at Cumberland Valley Endocrinology Center, LLC (hereinafter "CVEC"), an
organization which specializes in endocrinology, or disorders of hormones and
metabolism, from its principal place of business at Cumberland Valley Endocrinology
Center, LLC, 49 Brookwood Avenue, Carlisle, Cumberland County, Pennsylvania
17013.
3
Counsel for the Plaintiff
McCarthy Weisberg Cummings, P.C.
2041 Herr Street
Harrisburg, PA 17103-1624
(717) 238-5707
10. Defendant Dr. Behnke, at all times relevant and material to this Complaint, acted
or held himself out to be acting through his agents, employees, representatives and/or
independent contractors, who conducted the business of CVEC within the scope of their
authority, employment and/or job duties.
11. Defendant Dr. Behnke, at all times relevant and material to this Complaint,
represented to Plaintiff, as well as the general public, that he provided services and
conducted his business operations through competent and qualified physicians, nurses
and other medical staff, of which Plaintiff reasonably relied.
12. On August 1, 2006, Plaintiff attended a scheduled appointment at CVEC, and
was seated in an examination room to discuss treatment for Plaintiff's thyroid condition.
13. During this appointment, Plaintiff met with a Nurse Practitioner (hereinafter
"Practitioner"), who at all times relevant and material to this Complaint held herself out
as an agent, employee, representative and/or independent contractor of Defendant Dr.
Behnke, to discuss Plaintiff's thyroid function.
14. Practitioner, prior to leaving Plaintiff's examination room, further explained that
Plaintiff would need to have her blood drawn to determine her thyroid's functionality by
examining the blood's Thyroid Stimulating Hormone (hereinafter "TSH") levels.
15. Following Plaintiffs consultation with Practitioner, Defendant Black entered
Plaintiff's examination room to draw Plaintiffs blood.
4
Counsel for the Plaintiff
McCarthy Weisberg Cummings, P.C.
2041 Herr Street
Harrisburg, PA 17103-1624
(717) 238-5707
16. Defendant Black, without supporting either of Plaintiff's arms and while Plaintiff
sat on the front of the examination room's table, placed a turnoquite on Plaintiff's right
arm to begin the process of drawing Plaintiff's blood.
17. Defendant Black, after having difficulty and struggling to locate a vein on
Plaintiff's right arm, abruptly inserted a needle into the antecubita fossa (area just above
the elbow crease) of Plaintiff's right arm in an attempt to obtain a blood sample.
18. Once the needle was inserted into Plaintiff's arm, Plaintiff felt a severe shooting
pain that extended from her elbow to her wrist, and immediately shouted three (3) times
for Defendant Black to stop this attempt to draw her blood.
19. Plaintiff asked Defendant Black why Plaintiff had experienced this severe
shooting pain and why the area at the bottom of her arm and wrist were beginning to
swell.
20. Defendant Black ignored Plaintiff's concern and questions regarding her pain and
swelling, and told Plaintiff that she would need to attempt to obtain a blood sample from
Plaintiff's left arm.
21. Defendant Black, without changing needles, began examining Plaintiff's left arm
for a vein to initiate a second attempt to obtain a blood sample.
22. Plaintiff stopped Defendant Black from attempting to draw blood from her left arm
because Defendant Black was once again having difficulty and seemed uncertain as to
where to insert the needle.
5
Counsel for the Plaintiff
McCarthy Weisberg Cummings, P.C.
2041 Herr Street
Harrisburg, PA 17103-1624
(717) 238-5707
23. Defendant Black informed Plaintiff that a blood sample was necessary, and that
she would have to attempt to draw blood from Plaintiff's right hand.
24. Defendant Black informed Plaintiff that drawing blood from Plaintiff's right hand
would require a different type of needle, which Defendant Black inserted into Plaintiffs
right hand.
25. Defendant Black was able to draw a blood sample from Plaintiffs right hand, but
terminated the procedure because Plaintiff's vein began to swell.
26. Plaintiff informed Defendant Black that the lower portion of Plaintiffs right arm
was numb.
27. Without consulting with a physician or any other qualified staff member of CVEC,
Defendant Black informed Plaintiff that the numbness would go away and took no
remedial action prior to Plaintiff's discharge from CVEC.
28. Neither Defendant Dr. Behnke, nor any other qualified staff member of CVEC
examined Plaintiffs arm or took any remedial action after Plaintiff complained of pain
and numbness in her right arm.
29. Plaintiff continued to have pain and numbness for six (6) days after her visit with
Defendants, and contacted Defendants by phone on August 7, 2006, to inform them
that her pain and numbness were not going away.
6
Counsel for the Plaintiff
McCarthy Weisberg Cummings, P.C.
2041 Herr Street
Harrisburg, PA 17103-1624
(717) 238-5707
30. Plaintiff spoke by phone with Defendant Bouder about her situation and was told
that Defendant Black must have inserted the needle into either Plaintiff's nerve or
tendon while attempting to draw Plaintiffs blood.
31. Plaintiff was further informed by Defendant Bouder that there was nothing further
Defendants could do regarding Plaintiff's pain and numbness.
32. Plaintiff visited with her primary care physician, Dr. Thomas E. Trosko, D. O.
(hereinafter "Dr. Trosko"), on August 8, 2006, to discuss the pain and numbness in her
right arm.
33. Plaintiff explained to Dr. Trosko that the pain and numbness in her right arm did
not exist prior to her appointment at CVEC, and began immediately after Defendant
Black inserted the needle into right her arm in a failed attempt to draw blood.
34. Dr. Trosko referred Plaintiff for a Magnetic Resonance Imaging (hereinafter
"MRI") procedure to rule out any pre-existing injuries and an Electromyography
(hereinafter "EMG") procedure to determine the cause of the pain and numbness in the
right arm.
35. On August 18, 2006, Plaintiff had an MRI performed by Pinnacle Health
Hospitals, which was interpreted and reviewed by Dr. Paul S. Potok, D.O. (hereinafter
"Dr. Potok"). Dr. Potok's interpretation of the MRI is incorporated herein by reference as
Attachment "A", and states the following:
7
Counsel for the Plaintiff
McCarthy Weisberg Cummings, P.C.
2041 Herr Street
Harrisburg, PA 17103-1624
(717) 238-5707
Discussion: The included portions of the posterior fossa
contents and spinal cord show intrinsically normal
morphology and signal character. Some straightening of the
cervical lordosis is likely positional. There is no segmental
malalignment. Mild narrowing of the C5/6 disc. Remaining
discs are normal. There is no significant marrow signal
abnormality.
Axial imaging at the cervicothoracic junction at C6/7 shows
no disc herniation, spinal or forminal narrowing.
At C5/6, there is broad-based osteophyte/disc bulge causing
mild spinal stenosis. Facet and uncovertebral join
hypertrophy combine to cause a moderate-severe degree of
right foraminal narrowing at this level.
C4/5, C3/4 and C2/3 show no disc herniation, spinal or
foraminal stenosis.
Impression: Spondylosis at C5/6. Bulging disc causes mild
spinal stenosis. There is significant right foraminal
narrowing.
36. On September 21, 2006, Plaintiff had an EMG performed at Morganstein
Rehabilitation Associates, which was interpreted and reviewed by Dr. Steven E.
Morganstein, D.O. (hereinafter "Dr. Morganstein"). Dr. Morganstein's interpretation of
the EMG is incorporated herein by reference as Attachment "B", and states the
following:
Impression: 1.) There is electrodiagnostic evidence of relative
slowing of the right lateral cutaneous nerve. This would
correspond to her subjective complaint as well as objective
findings on clinical examination as this nerve would provide
sensory innerveation to the radial forearm region. All other
8
Counsel for the Plaintiff
McCarthy Weisberg Cummings, P.C.
2041 Herr Street
Harrisburg, PA 17103-1624
(717) 238-5707
testing is normal and there is no evidence of cervical
radiculopathy.
37. Plaintiff continues to have pain and numbness in her right arm.
38. As a result of the pain and numbness in Plaintiffs right arm, Plaintiff has been
unable to use her right arm and hand to perform routine tasks as she was prior to the
blood draw incident.
39. As a result of the pain and numbness in Plaintiff's right arm, Plaintiff has had to
learn to compensate for not having the full use of her right arm and hand.
COUNTI
(NEGLIGENCE)
Plaintiff, Lisa J. Boyer v.
Defendant, Jennifer Black
40. Paragraphs 1 through 39 above are incorporated herein by reference as if more
fully set forth at length.
41. The pain, suffering, injuries and other losses of Plaintiff were the direct and
proximate cause of the negligence of Defendant Black, jointly and severally with the
other named Defendants, acting as an agent, employee, representative and/or
independent contractor, who conducted the business of Defendant Dr. Behnke within
the scope of her authority, employment and/or job duties as follows:
a) Failure to exercise due care according to appropriate standards of care by
not possessing sufficient experience to properly draw blood from Plaintiff's
right arm, thereby increasing the risk of harm and injury to her;
9
Counsel for the Plaintiff
McCarthy Weisberg Cummings, P.C.
2041 Herr Street
Harrisburg, PA 17103-1624
(717) 238-5707
b) Failure to exercise due care according to appropriate standards of care by
not moving Plaintiff from her examination table to an area suitable to
secure Plaintiff's right arm before attempting to draw blood, thereby
increasing the risk of harm and injury to her;
C) Failure to exercise due care according to appropriate standards of care by
not supporting Plaintiffs right arm before attempting to draw blood,
thereby increasing the risk of harm and injury to her;
d) Failure to exercise due care according to appropriate standards of care by
not taking any procedures or action to mitigate the injuries sustained by
Plaintiff after attempting to draw blood from her right arm, thereby
increasing the risk of harm and injury to her;
e) Failure to exercise due care according to appropriate standards of care by
ignoring Plaintiff's concern that she was experiencing pain and swelling
after the failed attempt to draw blood from Plaintiffs right arm, thereby
increasing the risk of harm and injury to her;
f) Failure to exercise due care according to appropriate standards of care by
not informing a doctor or supervisor of Plaintiffs incident, and that Plaintiff
was experiencing pain and swelling after the failed attempt to draw blood
from her right arm, thereby increasing the risk of harm and injury to her.
42. Defendant Black agreed to provide medical care to Plaintiff which she knew or
should have known under the circumstances was necessary to protect Plaintiff.
43. The negligence, carelessness and other tortuous conduct of Defendant Black
proximately caused the harm and injury to Plaintiff, thus subjecting Plaintiff to an
increased risk of harm and injury that were a substantial factor in causing and/or
contributing to the cause of the serious and permanent injuries and other losses
sustained by Plaintiff.
10
Counsel for the Plaintiff
McCarthy Weisberg Cummings, P.C.
2041 Herr Street
Harrisburg, PA 17103-1624
(717) 238-5707
WHEREFORE, Plaintiff respectfully requests judgment against Defendant Black,
jointly and severally with Defendant Bouder and Defendant Dr. Behnke, for an amount
in excess of the limits of arbitration, exclusive of interests and costs.
COUNT II
(NEGLIGENCE-RES IPSA LOQUITUR)
Plaintiff, Lisa J. Boyer v.
Defendant, Jennifer Black
44. Paragraphs 1 through 43 above are incorporated herein by reference as if more
fully set forth at length.
45. The pain, suffering, injuries and other losses of Plaintiff were the direct and
proximate cause of the negligence of Defendant Black, jointly and severally with the
other named Defendants, acting as an agent, employee, representative and/or
independent contractor, who conducted the business of Defendant Dr. Behnke within
the scope of her authority, employment and/or job duties as follows:
a) Failure to exercise due care according to appropriate standards of care by
not possessing sufficient experience to properly draw blood from Plaintiff's
right arm, thereby increasing the risk of harm and injury to her;
b) Failure to exercise due care according to appropriate standards of care by
not moving Plaintiff from her examination table to an area suitable to
secure Plaintiff's right arm before attempting to draw blood, thereby
increasing the risk of harm and injury to her;
C) Failure to exercise due care according to appropriate standards of care by
not supporting Plaintiff's right arm before attempting to draw blood,
thereby increasing the risk of harm and injury to her;
11
Counsel for the Plaintiff
McCarthy Weisberg Cummings, P.C.
2041 Herr Street
Harrisburg, PA 17103-1624
(717) 238-5707
d) Failure to exercise due care according to appropriate standards of care by
not taking any procedures or action to mitigate the injuries sustained by
Plaintiff after attempting to draw blood from her right arm, thereby
increasing the risk of harm and injury to her;
e) Failure to exercise due care according to appropriate standards of care by
ignoring Plaintiff's concern that she was experiencing pain and swelling
after the failed attempt to draw blood from Plaintiff's right arm, thereby
increasing the risk of harm and injury to her;
f) Failure to exercise due care according to appropriate standards of care by
not informing a doctor or supervisor of Plaintiff's incident, and that Plaintiff
was experiencing pain and swelling after the failed attempt to draw blood
from her right arm, thereby increasing the risk of harm and injury to her.
46. Defendant Black agreed to provide medical care to Plaintiff which she knew or
should have known under the circumstances was necessary to protect Plaintiff.
47. Plaintiff hereby expressly relies on the doctrine of res ipsa loquitur to show fault,
liability and/or negligence of Defendant Black, jointly and severally with the other named
Defendants., thus subjecting Plaintiff to an increased risk of harm and injury that were a
substantial factor in causing and/or contributing to the cause of the serious and
permanent injuries and other losses sustained by Plaintiff.
WHEREFORE, Plaintiff respectfully requests judgment against Defendant Black,
jointly and severally with Defendant Bouder and Defendant Dr. Behnke, for an amount
in excess of the limits of arbitration, exclusive of interests and costs.
12
Counsel for the Plaintiff
McCarthy Weisberg Cummings, P.C.
2041 Herr Street
Harrisburg, PA 17103-1624
(717) 238-5707
COUNT III
(NEGLIGENCE)
Plaintiff, Lisa J. Boyer v.
Defendant, Meghan Bouder
48. Paragraphs 1 through 47 above are incorporated herein by reference as if more
fully set forth at length.
49. The pain, suffering, injuries and other losses of Plaintiff were the direct and
proximate cause of the negligence of Defendant Bouder, jointly and severally with the
other named Defendants, acting as an agent, employee, representative and/or
independent contractor, who conducted the business of Defendant Dr.Behnke within the
scope of her authority, employment and/or job duties as follows:
a) Failure to exercise due care according to appropriate standards of care by
informing Plaintiff via telephone on August 7, 2007, that there was nothing
Defendants could do about the continued pain and numbness in Plaintiffs
right arm following the attempt by Defendant Black to draw her blood,
thereby increasing the risk of harm and injury to her;
b) Failure to exercise due care according to appropriate standards of care by
informing Plaintiff over the telephone and without ever examining
Plaintiff's right arm, that her nerve or tendon were probably stuck with the
needle used by Defendant Black while attempting to draw her blood,
thereby increasing the risk of harm and injury to her;
c) Failure to exercise due care according to appropriate standards of care by
not advising Plaintiff on August 7, 2007 to have her arm examined by a
doctor to determine the extent of any damage to her right arm following
the attempt by Defendant Black to draw her blood, thereby increasing the
risk of harm and injury to her.
13
Counsel for the Plaintiff
McCarthy Weisberg Cummings, P.C.
2041 Herr Street
Harrisburg, PA 17103-1624
(717) 238-5707
50. Defendant Bouder agreed to provide care to Plaintiff which she knew or should
have known under the circumstances was necessary to protect Plaintiff.
51. The negligence, carelessness and other tortuous conduct of Defendant Bouder
proximately caused the harm and injury to Plaintiff, thus subjecting Plaintiff to an
increased risk of harm and injury that were a substantial factor in causing and or
contributing to the cause of the serious and permanent injuries and other losses
sustained by Plaintiff.
WHEREFORE, Plaintiff respectfully requests judgment against Defendant Bouder,
jointly and severally with Defendant Black and Defendant Dr. Behnke, for an amount in
excess of the limits of arbitration, exclusive of interests and costs.
COUNT IV
(NEGLIGENCE)
Plaintiff, Lisa J. Boyer v.
Defendant, Andrew J. Behnke, M.D., F.A.C.E.
52. Paragraphs 1 through 51 above are incorporated herein by reference as if more
fully set forth at length.
53. The pain, suffering, injuries and other losses of Plaintiff were the direct and
proximate cause of the negligence of Defendant Dr. Behnke, jointly and severally with
the other named Defendants, as follows:
14
Counsel for the Plaintiff
McCarthy Weisberg Cummings, P.C.
2041 Herr Street
Harrisburg, PA 17103-1624
(717) 238-5707
a) Failure to exercise due care according to appropriate standards of care by
not providing a proper and sufficient medical facility and the adequate
equipment to perform phlebotomy procedures to stabilize and support
Plaintiff's right arm before drawing blood, thereby increasing the risk of
harm and injury to her;
b) Failure to exercise due care according to appropriate standards of care by
not providing competent and sufficient medical staff and/or personnel to
properly draw blood from Plaintiff's right arm, thereby increasing the risk
of harm and injury to her;
c) Failure to exercise due care according to appropriate standards of care by
not properly hiring and/or training its agents, employees, representatives
and/or independent contractors with regard to the proper technique and
appropriate standards of care for drawing Plaintiff's blood, thereby
increasing the risk of harm and injury to her;
d) Failure to exercise due care according to appropriate standards of care by
not creating, implementing and/or enforcing adequate rules and
procedures to ensure quality of care while attempting to draw blood from
Plaintiff's right arm, thereby increasing the risk of harm and injury to her;
e) Failure to exercise due care according to appropriate standards of care by
not creating, implementing and/ enforcing adequate rules and procedures
to ensure quality of care to report the occurrence of pain and numbness in
Plaintiff's right arm following the attempted blood draw, thereby increasing
the risk of harm and injury to Plaintiff.
54. Defendant Dr. Behnke agreed to provide medical care to Plaintiff which he knew
or should have known under the circumstances was necessary to protect Plaintiff.
15
Counsel for the Plaintiff
McCarthy Weisberg Cummings, P.C.
2041 Herr Street
Harrisburg, PA 17103-1624
(717) 238-5707
55. The negligence, carelessness and other tortuous conduct of Defendant Dr.
Behnke proximately caused the harm and injury to Plaintiff, thus subjecting Plaintiff to
an increased risk of harm and injury that were a substantial factor in causing and/or
contributing to the cause of the serious and permanent injuries and other losses
sustained by Plaintiff.
WHEREFORE, Plaintiff respectfully requests judgment against Defendant Dr.
Behnke, jointly and severally with Defendant Black and Defendant Bouder, for an
amount in excess of the limits of arbitration, exclusive of interests and costs.
COUNT IV
(NEGLIGENCE-RESPONDEAT SUPERIOR)
Plaintiff, Lisa J. Boyer v.
Defendant, Andrew J. Behnke, M.D., F.A.C.E.
56. Paragraphs 1 through 55 above are incorporated herein by reference as if more
fully set forth at length.
57. The pain, suffering, injuries and other losses of Plaintiff were the direct and
proximate cause of Defendant Dr. Behnke, jointly and severally with the other named
Defendants, acting by and through their agents, employees, representatives and/or
independent contractors, as follows:
16
Counsel for the Plaintiff
McCarthy Weisberg Cummings, P.C.
2041 Herr Street
Harrisburg, PA 17103-1624
(717) 238-5707
a) Failure to exercise due care according to appropriate standards of care by
not providing a proper and sufficient medical facility and the adequate
equipment to perform phlebotomy procedures to stabilize and support
Plaintiff's right arm before drawing blood, thereby increasing the risk of
harm and injury to her;
b) Failure to exercise due care according to appropriate standards of care by
not providing competent and sufficient medical staff and/or personnel to
properly draw blood from Plaintiffs right arm, thereby increasing the risk
of harm and injury to her;
c) Failure to exercise due care according to appropriate standards of care by
not properly hiring and/or training its agents, employees, representatives
and/or independent contractors with regard to the proper technique and
appropriate standards of care for drawing Plaintiffs blood, thereby
increasing the risk of harm and injury to her;
d) Failure to exercise due care according to appropriate standards of care by
not creating, implementing and/or enforcing adequate rules and
procedures to ensure quality of care while attempting to draw blood from
Plaintiffs right arm, thereby increasing the risk of harm and injury to her;
e) Failure to exercise due care according to appropriate standards of care by
not creating, implementing and/ enforcing adequate rules and procedures
to ensure quality of care to report the occurrence of pain and numbness in
Plaintiff's right arm following the attempted blood draw, thereby increasing
the risk of harm and injury to Plaintiff.
58. Defendant Dr. Behnke agreed to provide medical care to Plaintiff which he knew
or should have known under the circumstances was necessary to protect Plaintiff.
59. The negligence, carelessness and other tortuous conduct of Defendant Dr.
Behnke proximately caused the harm and injury to Plaintiff, thus subjecting Plaintiff to
an increased risk of harm and injury that were a substantial factor in causing and/or
17
Counsel for the Plaintiff
McCarthy Weisberg Cummings, P.C.
2041 Herr Street
Harrisburg, PA 17103-1624
(717) 238-5707
contributing to the cause of the serious and permanent injuries and other losses
sustained by Plaintiff.
60. Defendant Dr. Behnke, is vicariously liable for the negligence, carelessness and
other tortuous conduct of all of his agents, ostensible agents, employees,
representatives and/or independent contractors, including named Defendant Black and
Defendant Bouder, jointly and severally, under the Doctrine of Respondeat Superior.
WHEREFORE, Plaintiff respectfully requests judgment against Defendant Behnke,
jointly and severally with Defendant Black and Defendant Bouder, for an amount in
excess of the limits of arbitration, exclusive of interests and costs.
t'L-21-e7
Date
Respectfully submitted,
McCarthy Weisberg Cummings, P.C.
I
'Derrek W. Cummings, Esqu
Sup. Ct. I.D. #83286
Larry A. Weisberg, Esquire
Sup. Ct. I.D. #83410
2041 Herr Street
Harrisburg, PA 17103-1624
(717) 238-5707
(717) 233-8133 (FAX)
Attorneys for Plaintiff
18
Counsel for the Plaintiff
McCarthy Weisberg Cummings, P.C.
2041 Herr Street
Harrisburg, PA 17103-1624
(717) 238-5707
VERIFICATION
I, Lisa J. Boyer, verify that I am the Plaintiff in the foregoing First Amended
Complaint and that the facts set forth therein are true and correct to the best of my
knowledge, information, and belief; and that this verification is subject to the penalties of
18 Pa.C.S. § 4909 relative to unsworn falsification to authorities.
Dated: December,!qt° 1 '2007.
isa J. Bo r
I-J
Counsel for the Plaintiff
McCarthy Weisberg Cummings, P.C.
2041 Herr Street
Harrisburg, PA 17103-1624
(717) 238-5707
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
LISA J. BOYER
V.
Plaintiff
JENNIFER BLACK,
MEGHAN BOUDER
and
ANDREW J. BEHNKE, M.D., F.A.C.E.
Defendants
NO. 07-6286
CIVIL ACTION - MEDICAL
PROFESSIONAL LIABILITY ACTION
JURY TRIAL DEMANDED
CERTIFICATE OF MERIT AS TO DEFENDANT JENNIFER BLACK
I, Derrek W. Cummings, Esquire, Attorney for Plaintiff Lisa J. Boyer, certify that:
an appropriate licensed professional has supplied a written statement to the
undersigned that there is a basis to conclude that the care, skill or knowledge exercised
or exhibited by this defendant in the treatment, practice or work that is the subject of the
complaint, fell outside acceptable professional standards and that such conduct was a
cause in bringing about the harm;
AND/OR
the claim that this defendant deviated from an acceptable professional standard
is based solely on allegations that other licensed professionals for whom this defendant
is responsible deviated from an acceptable professional standard and an appropriate
Counsel for the Plaintiff
McCarthy Weisberg Cummings, P.C.
2041 Herr Street
Harrisburg, PA 17103-1624
(717) 238-5707
licensed professional has supplied a written statement to the undersigned that there is a
basis to conclude that the care, skill or knowledge exercised or exhibited by the other
licensed professionals in the treatment, practice or work that is the subject of the
complaint, fell outside acceptable professional standards and that such conduct was a
cause in bringing about the harm;
OR
expert testimony of an appropriate licensed professional is unnecessary for
prosecution of the claim against this defendant.
12--zk-(-?7
Date
McCarthy Weisberg Cummings, P.C.
Derrek W. Cummings, Esq.
Sup. Ct. I.D. #83286
Larry A. Weisberg, Esq.
Sup. Ct. I.D. #83410
2041 Herr Street
Harrisburg, PA 17103-1624
(717) 238-5707
(717) 233-8133 (FAX)
Attorneys for Plaintiff
2
Counsel for the Plaintiff
McCarthy Weisberg Cummings, P.C.
2041 Herr Street
Harrisburg, PA 17103-1624
(717) 238-5707
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
LISA J. BOYER
Plaintiff
V.
NO. 07-6286
CIVIL ACTION - MEDICAL
JENNIFER BLACK, PROFESSIONAL LIABILITY ACTION
MEGHAN BOUDER
JURY TRIAL DEMANDED
and
ANDREW J. BEHNKE, M.D., F.A.C.E.
Defendants
CERTIFICATE OF MERIT AS TO DEFENDANT MEGHAN BOUDER
I, Derrek W. Cummings, Esquire, Attorney for Plaintiff Lisa J. Boyer, certify that:
an appropriate licensed professional has supplied a written statement to the
undersigned that there is a basis to conclude that the care, skill or knowledge exercised
or exhibited by this defendant in the treatment, practice or work that is the subject of the
complaint, fell outside acceptable professional standards and that such conduct was a
cause in bringing about the harm;
AND/OR
the claim that this defendant deviated from an acceptable professional standard
is based solely on allegations that other licensed professionals for whom this defendant
is responsible deviated from an acceptable professional standard and an appropriate
Counsel for the Plaintiff
McCarthy Weisberg Cummings, P.C.
2041 Herr Street
Harrisburg, PA 17103-1624
(717) 238-5707
licensed professional has supplied a written statement to the under
bads to conclude that the care, skill or knowledge exercised or exhibited by the other
licensed professionals in the treatment, practice or work that i
complaint, fell outside acceptable professional is the subject of the
standards and that such conduct was a
cause in bringing about the harm;
OR
expert testimony of an appropriate licensed professional is unnecessary for
prosecution of the claim against this defendant. ry or
McCarthy Weisberg Cummings, P.C.
1 2 -Z1?-C7
Date
Derrek W. Cummings, Esq
Sup. Ct. I.D. #83286
Larry A. Weisberg, Esq.
Sup. Ct. I.D. #83410
2041 Herr Street
Harrisburg, PA 17103-1624
(717) 238-5707
(717) 233-8133 (FAX)
Attorneys for Plaintiff
2
Counsel for the Plaintiff
McCarthy Weisberg Cummings, P.C.
2041 Herr Street
Harrisburg, PA 17103-1624
(717) 238-5707
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
LISA J. BOYER
Plaintiff
V.
NO. 07-6286
JENNIFER BLACK,
CIVIL ACTION - MEDICAL
PROFESSIONAL LIABILITY ACTION
MEGHAN BOUDER
and JURY TRIAL DEMANDED
ANDREW J. BEHNKE, M.D., F.A.C.E.
Defendants
F
B
I, Derrek W. Cummings, Esquire, Attorney for Plaintiff Lisa J. Boyer, certify that:
an appropriate licensed professional has supplied a written statement to the
undersigned that there is a basis to conclude that the care, skill or knowledge exercised
or exhibited by this defendant in the treatment, practice or work that is the subject of the
complaint, fell outside acceptable professional standards and that such conduct was a
cause in bringing about the harm;
AND/OR
the claim that this defendant deviated from an acceptable professional standard
is based solely on allegations that other licensed professionals for whom this defendant
is responsible deviated from an acceptable professional standard and an appropriate
Counsel for the Plaintiff
McCarthy Weisberg Cummings, P.C.
2041 Herr Street
Harrisburg, PA 17103-1624
(717) 238-5707
licensed professional has supplied a written statement to the undersigned that there is a
basis to conclude that the care, skill or knowledge exercised or exhibited by the other
licensed professionals in the treatment, practice or work that is the subject of the
complaint, fell outside acceptable professional standards and that such conduct was a
cause in bringing about the harm;
OR
expert testimony of an appropriate licensed professional is unnecessary for
prosecution of the claim against this defendant.
12 "2-1 -d 7
Date
McCarthy Weisberg Cummings, P.C.
C
errek W. Cummings, Esq.
Sup. Ct. I.D. #83286
Larry A. Weisberg, Esq.
Sup. Ct. I.D. #83410
2041 Herr Street
Harrisburg, PA 17103-1624
(717) 238-5707
(717) 233-8133 (FAX)
Attorneys for Plaintiff
2
Counsel for the Plaintiff
McCarthy Weisberg Cummings, P.C.
2041 Herr Street
Harrisburg, PA 17103-1624
(717) 238-5707
CERTIFICATE OF SERVICE
I hereby certify that I am this day serving a copy of the foregoing First Amended
Complaint upon the person and in the manner indicated below, which service satisfies
the requirements of the Pennsylvania Rules of Civil Procedure, by depositing a copy of
the same in the United States Mail, first-class postage prepaid, addressed as follows:
Andrew H. Foulkrod, Esquire
Foulkrod Ellis, P.C.
2010 Market Street
Camp Hill, PA 17011
(Counsel for Defendants)
1 -L--L t - o-7
Date
McCarthy Weisberg Cummings, P.C.
c
L'A_ ?_ -
ACummings, Esqu e
Derrek
Sup. Ct. I.D. #83286
Larry A. Weisberg, Esq.
Sup. Ct. I.D. #83410
2041 Herr Street
Harrisburg, PA 17103-1624
(717) 238-5707
(717) 233-8133 (FAX)
Attorneys for Plaintiff
C"? ? L7
-'' '
n? ? c-.?
,
?
?
?
?-n
G ?? N r
._
-•l ' - ? -1_ -a`i
„
.C:" ??
?
.,,J "V
FOULKROD ELLIS
Andrew H. Foulkrod, Esquire
Attorney I.D. #77394
Michael C. Mongiello, Esquire
Attorney I.D. #87532
2010 Market Street
Camp Hill, PA 17011
Phone: (717) 909-7006
Fax: (717) 909-6955
Attorneys for Defendants:
JENNIFER BLACK, CUMBERLAND VALLEY
ENDOCRINOLOGY CENTER, LLC, MEGHAN BOUDER
and ANDREW J. BEHNKE, M.D., F.A.C.E.
LISA J. BOYER,
V.
Plaintiff
JENNIFER BLACK, CUMBERLAND
VALLEY ENDOCRINOLOGY CENTER, LLC,
and MEGHAN BOUDER,
Defendants
No. 07-6286
JURY TRIAL DEMANDED
-------------------------------------------------------------- --------------------------------------------------------------
LISA J. BOYER,
V.
Plaintiff
JENNIFER BLACK, MEGHAN BOUDER,
and ANDREW J. BEHNKE, M.D., F.A.C.E.,
Defendants
No. 07-6286
JURY TRIAL DEMANDED
ENTRY OF APPEARANCE
TO THE PROTHONOTARY:
Kindly enter our appearance on behalf of Defendant, ANDREW J. BEHNKE,
M.D., F.A.C.E. in the above-captioned action.
Respectfully submitted,
ELLIS
iona{i COrAoration
Date: t D By:
COURT OF COMMON PLEAS C)r
CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL DIVISION - MEDICAL
PROFESSIONAL LIABILITY ACTION
COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL DIVISION - MEDICAL
PROFESSIONAL LIABILITY ACTION
Arid' ` ?''Nu od, Esquire
Mojlin , b. 94
Michael C. Mongiello, Esquire
Attorney I.D. #87532
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the foregoing was served
upon counsel of record this o%vx? day of , 2008, by
depositing said copy in the United States Mail at Camp Hill, Pennsylvania, postage
prepaid, first class delivery, and addressed as follows:
Derrek W. Cummings, Esquire
McCarthy, Weisberg, Cummings, P.C.
2041 Herr Street
Harrisburg, PA 17103-1624
FOULKROD ELLIS
Professional Corporation
Laurie C. Hollinger, Paraleg
i
c°sa i
T
i
•r"? ? 4 )CC1
_
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
LISA J. BOYER
Plaintiff
NO. 07-6286
V.
JENNIFER BLACK,
MEGHAN BOUDER
and
ANDREW J. BEHNKE, M.D., F.A.C.E.
Defendants
CIVIL ACTION - MEDICAL
PROFESSIONAL LIABILITY ACTION
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, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW.
THIS OFFICE CAN PROVIDE YOU WITH INFORMATION ABOUT HIRING A
LAWYER.
IF YOU CANNOT AFFORD TO HIRE A LAWYER, THIS OFFICE MAY BE ABLE TO
PROVIDE YOU WITH INFORMATION ABOUT AGENCIES THAT MAY OFFER LEGAL
SERVICES TO ELIGIBLE PERSONS AT A REDUCED FEE OR NO FEE.
CUMBERLAND COUNTY BAR ASSOCIATION,
32 South Bedford St.
Carlisle, Pennsylvania 17013-3302
717-249-3166
AVISO
USTED HA SIDO DEMANDADO/A EN CORTE. Si usted desea defenderse de las
demandas que se presentan mas adelante en las siguientes paginas, debe tomar
accibn dentro de los pr6ximos veinte (20) dias despues de la notificaci6n de esta
Demanda y Aviso radicando personalmente o por medio de un abogado una
comparecencia escrita y radicando en la Corte por escrito sus defensas de, y
objecciones a, las demandas presentadas aqui en contra suya. Se le advierte de que
si usted falla de tomar accibn como se describe anteriormente, el caso puede proceder
sin usted y un fallo por cualquier suma de dinero reclamada en la demanda o cualquier
otra reclamaci6n o remedio solicitado por el demandante puede ser dictado en contra
suya por la Corte sin mas aviso adicional. Usted puede perder dinero o propiedad u
otros derechos importantes para usted.
USTED DEBE LLEVAR ESTE DOCUMENTO A SU ABOGADO INMEDIATAMENTE.
SI USTED NO TIENE UN ABOGADO, LLAME O VAYA A LA SIGUIENTE OFICINA.
ESTA OFICINA PUEDE PROVEERLE INFORMACION A CERCA DE COMO
CONSEGUIR UN ABOGADO.
SI USTED NO PUEDE PAGAR POR LOS SERVICIOS DE UN ABOGADO, ES
POSIBLE QUE ESTA OFICINA LE PUEDA PROVEER INFORMACION SOBRE
AGENCIAS QUE OFREZCAN SERVICIOS LEGALES SIN CARGO O BAJO COSTO A
PERSONAS QUE CUALIFICAN.
CUMBERLAND COUNTY BAR ASSOCIATION,
32 South Bedford St.
Carlisle, Pennsylvania 17013-3302
717-249-3166
2
Counsel for the Plaintiff
McCarthy Weisberg Cummings, P.C.
2041 Herr Street
Harrisburg, PA 17103-1624
(717) 238-5707
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
LISA J. BOYER
Plaintiff
NO. 07-6286
V.
JENNIFER BLACK,
CIVIL ACTION - MEDICAL
PROFESSIONAL LIABILITY ACTION
MEGHAN BOUDER
and
ANDREW J. BEHNKE, M.D., F.A.C.E.
Defendants
JURY TRIAL DEMANDED
PLAINTIFF'S SECOND AMENDED COMPLAINT AGAINST DEFENDANTS
Plaintiff, Lisa J. Boyer, by and through her counsel, McCarthy Weisberg Cummings,
P.C., hereby files the following Complaint-Civil Action (hereinafter "Complaint")
asserting a claim for damages against the Defendants set forth herein, jointly and
severally, as follows:
Counsel for the Plaintiff
McCarthy Weisberg Cummings, P.C.
2041 Herr Street
Harrisburg, PA 17103-1624
(717) 238-5707
1. Plaintiff, an adult individual, is a resident and citizen of the Commonwealth of
Pennsylvania, residing at 5156 Erie Road, Harrisburg, Dauphin County, Pennsylvania
17111.
2. Defendant Jennifer Black (hereinafter "Defendant Black"), an adult individual, is a
licensed professional with offices in Cumberland County, Pennsylvania. Plaintiff is
asserting a professional liability claim against this Defendant.
3. Defendant Black, a Medical Assistant and Laboratory Technician, is and was at
all times relevant and material to this Complaint, an agent, employee, representative
and/or independent contractor, who conducted the business of Defendant Andrew J.
Behnke, M.D., F.A.C.E. (hereinafter "Defendant Dr. Behnke") within the scope of her
authority, employment and/or job duties, at the principal place of business of
Cumberland Valley Endocrinology Center, LLC, located at 49 Brookwood Avenue,
Carlisle, Cumberland County, Pennsylvania 17013.
4. Defendant Black, at all times relevant and material to this Complaint, represented
to Plaintiff, as well as the general public, that she was an agent, employee,
representative and/or independent contractor of Defendant Dr. Behnke, of which
Plaintiff reasonably relied.
5. Defendant Meghan Bouder (hereinafter "Defendant Bouder"), an adult individual,
is a licensed professional with offices in Cumberland County, Pennsylvania. Plaintiff is
asserting a professional liability claim against this Defendant.
2
Counsel for the Plaintiff
McCarthy Weisberg Cummings, P.C.
2041 Herr Street
Harrisburg, PA 17103-1624
(717) 238-5707
6. Defendant Bouder, a Medical Assistant, is and was at all times relevant and
material to this Complaint, an agent, employee, representative and/or independent
contractor, who conducted the business of Defendant Dr. Behnke within the scope of
her authority, employment and/or job duties, at the principal place of business of
Cumberland Valley Endocrinology Center, LLC, located at 49 Brookwood Avenue,
Carlisle, Cumberland County, Pennsylvania 17013.
7. Defendant Bouder, at all times relevant and material to this Complaint,
represented to Plaintiff, as well as the general public, that she was an agent, employee,
representative and/or independent contractor of Defendant Dr. Behnke, of which
Plaintiff reasonably relied.
8. Defendant Dr. Behnke, an adult individual, is a licensed professional with offices
in Cumberland County, Pennsylvania. Plaintiff is asserting a professional liability claim
against this Defendant.
9. Defendant Dr. Behnke is and was at all times relevant and material to this
Complaint, a medical doctor licensed to practice medicine under the laws of the
Commonwealth of Pennsylvania, and is the principal medical doctor of his business
operations at Cumberland Valley Endocrinology Center, LLC (hereinafter "CVEC"), an
organization which specializes in endocrinology, or disorders of hormones and
metabolism, from its principal place of business at Cumberland Valley Endocrinology
Center, LLC, 49 Brookwood Avenue, Carlisle, Cumberland County, Pennsylvania
17013.
3
Counsel for the Plaintiff
McCarthy Weisberg Cummings, P.C.
2041 Herr Street
Harrisburg, PA 17103-1624
(717) 238-5707
10. Defendant Dr. Behnke, at all times relevant and material to this Complaint, acted
or held himself out to be acting through his agents, employees, representatives and/or
independent contractors, who conducted the business of CVEC within the scope of their
authority, employment and/or job duties.
11. Defendant Dr. Behnke, at all times relevant and material to this Complaint,
represented to Plaintiff, as well as the general public, that he provided services and
conducted his business operations through competent and qualified physicians, nurses
and other medical staff, of which Plaintiff reasonably relied.
12. On August 1, 2006, Plaintiff attended a scheduled appointment at CVEC, and
was seated in an examination room to discuss treatment for Plaintiffs thyroid condition.
13. During this appointment, Plaintiff met with a Nurse Practitioner (hereinafter
"Practitioner"), who at all times relevant and material to this Complaint held herself out
as an agent, employee, representative and/or independent contractor of Defendant Dr.
Behnke, to discuss Plaintiffs thyroid function.
14. Practitioner, prior to leaving Plaintiffs examination room, further explained that
Plaintiff would need to have her blood drawn to determine her thyroid's functionality by
examining the blood's Thyroid Stimulating Hormone (hereinafter "TSH") levels.
15. Following Plaintiffs consultation with Practitioner, Defendant Black entered
Plaintiffs examination room to draw Plaintiff's blood.
4
Counsel for the Plaintiff
McCarthy Weisberg Cummings, P.C.
2041 Herr Street
Harrisburg, PA 17103-1624
(717) 238-5707
16. Defendant Black, without supporting either of Plaintiffs arms and while Plaintiff
sat on the front of the examination room's table, placed a turnoquite on Plaintiffs right
arm to begin the process of drawing Plaintiffs blood.
17. Defendant Black, after having difficulty and struggling to locate a vein on
Plaintiffs right arm, abruptly inserted a needle into the antecubita fossa (area just above
the elbow crease) of Plaintiffs right arm in an attempt to obtain a blood sample.
18. Once the needle was inserted into Plaintiffs arm, Plaintiff felt a severe shooting
pain that extended from her elbow to her wrist, and immediately shouted three (3) times
for Defendant Black to stop this attempt to draw her blood.
19. Plaintiff asked Defendant Black why Plaintiff had experienced this severe
shooting pain and why the area at the bottom of her arm and wrist were beginning to
swell.
20. Defendant Black ignored Plaintiffs concern and questions regarding her pain and
swelling, and told Plaintiff that she would need to attempt to obtain a blood sample from
Plaintiffs left arm.
21. Defendant Black, without changing needles, began examining Plaintiffs left arm
for a vein to initiate a second attempt to obtain a blood sample.
22. Plaintiff stopped Defendant Black from attempting to draw blood from her left arm
because Defendant Black was once again having difficulty and seemed uncertain as to
where to insert the needle.
5
Counsel for the Plaintiff
McCarthy Weisberg Cummings, P.C.
2041 Herr Street
Harrisburg, PA 17103-1624
(717) 238-5707
23. Defendant Black informed Plaintiff that a blood sample was necessary, and that
she would have to attempt to draw blood from Plaintiff's right hand.
24. Defendant Black informed Plaintiff that drawing blood from Plaintiff's right hand
would require a different type of needle, which Defendant Black inserted into Plaintiff's
right hand.
25. Defendant Black was able to draw a blood sample from Plaintiffs right hand, but
terminated the procedure because Plaintiffs vein began to swell.
26. Plaintiff informed Defendant Black that the lower portion of Plaintiffs right arm
was numb.
27. Without consulting with a physician or any other qualified staff member of CVEC,
Defendant Black informed Plaintiff that the numbness would go away and took no
remedial action prior to Plaintiffs discharge from CVEC.
28. Neither Defendant Dr. Behnke, nor any other qualified staff member of CVEC
examined Plaintiff's arm or took any remedial action after Plaintiff complained of pain
and numbness in her right arm.
29. Plaintiff continued to have pain and numbness for six (6) days after her visit with
Defendants, and contacted Defendants by phone on August 7, 2006, to inform them
that her pain and numbness were not going away.
6
Counsel for the Plaintiff
McCarthy Weisberg Cummings, P.C.
2041 Herr Street
Harrisburg, PA 17103-1624
(717) 238-5707
30. Plaintiff spoke by phone with Defendant Bouder about her situation and was told
that Defendant Black must have inserted the needle into either Plaintiff's nerve or
tendon while attempting to draw Plaintiffs blood.
31. Plaintiff was further informed by Defendant Bouder that there was nothing further
Defendants could do regarding Plaintiff's pain and numbness.
32. Plaintiff visited with her primary care physician, Dr. Thomas E. Trosko, D. O.
(hereinafter "Dr. Trosko"), on August 8, 2006, to discuss the pain and numbness in her
right arm.
33. Plaintiff explained to Dr. Trosko that the pain and numbness in her right arm did
not exist prior to her appointment at CVEC, and began immediately after Defendant
Black inserted the needle into right her arm in a failed attempt to draw blood.
34. Dr. Trosko referred Plaintiff for a Magnetic Resonance Imaging (hereinafter
"MRI") procedure to rule out any pre-existing injuries and an Eliectromyography
(hereinafter "EMG") procedure to determine the cause of the pain and numbness in the
right arm.
35. On August 18, 2006, Plaintiff had an MRI performed by Pinnacle Health
Hospitals, which was interpreted and reviewed by Dr. Paul S. Potok, D.O. (hereinafter
"Dr. Potok"). Dr. Potok's interpretation of the MRI is incorporated herein by reference as
Attachment "A", and states the following:
7
Counsel for the Plaintiff
McCarthy Weisberg Cummings, P.C.
2041 Herr Street
Harrisburg, PA 17103-1624
(717) 238-5707
Discussion: The included portions of the posterior fossa
contents and spinal cord show intrinsically normal
morphology and signal character. Some straightening of the
cervical lordosis is likely positional. There is no segmental
malalignment. Mild narrowing of the C5/6 disc. Remaining
discs are normal. There is no significant marrow signal
abnormality.
Axial imaging at the cervicothoracic junction at C6/7 shows
no disc herniation, spinal or forminal narrowing.
At C5/6, there is broad-based osteophyte/disc bulge causing
mild spinal stenosis. Facet and uncovertebral join
hypertrophy combine to cause a moderate-severe degree of
right foraminal narrowing at this level.
C4/5, C3/4 and C2/3 show no disc herniation, spinal or
foraminal stenosis.
Impression: Spondylosis at C5/6. Bulging disc causes mild
spinal stenosis. There is significant right foraminal
narrowing.
36. On September 21, 2006, Plaintiff had an EMG performed at Morganstein
Rehabilitation Associates, which was interpreted and reviewed by Dr. Steven E.
Morganstein, D.O. (hereinafter "Dr. Morganstein"). Dr. Morganstein's interpretation of
the EMG is incorporated herein by reference as Attachment "B", and states the
following:
Impression: 1.) There is electrodiagnostic evidence of relative
slowing of the right lateral cutaneous nerve. This would
correspond to her subjective complaint as well as objective
findings on clinical examination as this nerve would provide
sensory innerveation to the radial forearm region. All other
testing is normal and there is no evidence of cervical
radiculopathy.
8
Counsel for the Plaintiff
McCarthy Weisberg Cummings, P.C.
2041 Herr Street
Harrisburg, PA 17103-1624
(717) 238-5707
37. Plaintiff continues to have pain and numbness in her right arm.
38. As a result of the pain and numbness in Plaintiffs right arm, Plaintiff has been
unable to use her right arm and hand to perform routine tasks as she was prior to the
blood draw incident.
39. As a result of the pain and numbness in Plaintiffs right arm, Plaintiff has had to
learn to compensate for not having the full use of her right arm and hand.
COUNTI
(NEGLIGENCE)
Plaintiff, Lisa J. Boyer v.
Defendant, Jennifer Black
40. Paragraphs 1 through 39 above are incorporated herein by reference as if more
fully set forth at length.
41. The pain, suffering, injuries and other losses of Plaintiff were the direct and
proximate cause of the negligence of Defendant Black, jointly and severally with the
other named Defendants, acting as an agent, employee, representative and/or
independent contractor, who conducted the business of Defendant Dr. Behnke within
the scope of her authority, employment and/or job duties as follows:
a) Failure to exercise due care according to appropriate standards of care by
not possessing sufficient experience to properly draw blood from Plaintiffs
right arm, thereby increasing the risk of harm and injury to her;
9
Counsel for the Plaintiff
McCarthy Weisberg Cummings, P.C.
2041 Herr Street
Harrisburg, PA 17103-1624
(717) 238-5707
b) Failure to exercise due care according to appropriate standards of care by
not moving Plaintiff from her examination table to an area suitable to
secure Plaintiffs right arm before attempting to draw blood, thereby
increasing the risk of harm and injury to her;
c) Failure to exercise due care according to appropriate standards of care by
not supporting Plaintiffs right arm before attempting to draw blood,
thereby increasing the risk of harm and injury to her;
d) Failure to exercise due care according to appropriate standards of care by
not taking any procedures or action to mitigate the injuries sustained by
Plaintiff after attempting to draw blood from her right arm, thereby
increasing the risk of harm and injury to her;
e) Failure to exercise due care according to appropriate standards of care by
ignoring Plaintiffs concern that she was experiencing pain and swelling
after the failed attempt to draw blood from Plaintiff's right arm, thereby
increasing the risk of harm and injury to her;
f) Failure to exercise due care according to appropriate standards of care by
not informing a doctor or supervisor of Plaintiffs incident, and that Plaintiff
was experiencing pain and swelling after the failed attempt to draw blood
from her right arm, thereby increasing the risk of harm and injury to her.
42. Defendant Black agreed to provide medical care to Plaintiff which she knew or
should have known under the circumstances was necessary to protect Plaintiff.
43. The negligence, carelessness and other tortuous conduct of Defendant Black
proximately caused the harm and injury to Plaintiff, thus subjecting Plaintiff to an
increased risk of harm and injury that were a substantial factor in causing and/or
contributing to the cause of the serious and permanent injuries and other losses
sustained by Plaintiff.
10
Counsel for the Plaintiff
McCarthy Weisberg Cummings, P.C.
2041 Herr Street
Harrisburg, PA 17103-1624
(717) 238-5707
WHEREFORE, Plaintiff respectfully requests judgment against Defendant Black,
jointly and severally with Defendant Bouder and Defendant Dr. Behnke, for an amount
in excess of the limits of arbitration, exclusive of interests and costs.
COUNT II
(NEGLIGENCE-RES IPSA LOQUITUR)
Plaintiff, Lisa J. Boyer v.
Defendant, Jennifer Black
44. Paragraphs 1 through 43 above are incorporated herein by reference as if more
fully set forth at length.
45. The pain, suffering, injuries and other losses of Plaintiff were the direct and
proximate cause of the negligence of Defendant Black, jointly and severally with the
other named Defendants, acting as an agent, employee, representative and/or
independent contractor, who conducted the business of Defendant Dr. Behnke within
the scope of her authority, employment and/or job duties as follows:
a) Failure to exercise due care according to appropriate standards of care by
not possessing sufficient experience to properly draw blood from Plaintiff's
right arm, thereby increasing the risk of harm and injury to her;
b) Failure to exercise due care according to appropriate standards of care by
not moving Plaintiff from her examination table to an area suitable to
secure Plaintiffs right arm before attempting to draw blood, thereby
increasing the risk of harm and injury to her;
c) Failure to exercise due care according to appropriate standards of care by
not supporting Plaintiffs right arm before attempting to draw blood,
thereby increasing the risk of harm and injury to her;
11
Counsel for the Plaintiff
McCarthy Weisberg Cummings, P.C.
2041 Herr Street
Harrisburg, PA 17103-1624
(717) 238-5707
d) Failure to exercise due care according to appropriate standards of care by
not taking any procedures or action to mitigate the injuries sustained by
Plaintiff after attempting to draw blood from her right arm, thereby
increasing the risk of harm and injury to her;
e) Failure to exercise due care according to appropriate standards of care by
ignoring Plaintiff's concern that she was experiencing pain and swelling
after the failed attempt to draw blood from Plaintiffs right arm, thereby
increasing the risk of harm and injury to her;
f) Failure to exercise due care according to appropriate standards of care by
not informing a doctor or supervisor of Plaintiffs incident, and that Plaintiff
was experiencing pain and swelling after the failed attempt to draw blood
from her right arm, thereby increasing the risk of harm and injury to her.
46. Defendant Black agreed to provide medical care to Plaintiff which she knew or
should have known under the circumstances was necessary to protect Plaintiff.
47. Plaintiff hereby expressly relies on the doctrine of res ipsa loquitur to show fault,
liability and/or negligence of Defendant Black, jointly and severally with the other named
Defendants., thus subjecting Plaintiff to an increased risk of harm and injury that were a
substantial factor in causing and/or contributing to the cause of the serious and
permanent injuries and other losses sustained by Plaintiff.
WHEREFORE, Plaintiff respectfully requests judgment against Defendant Black,
jointly and severally with Defendant Bouder and Defendant Dr. Behnke, for an amount
in excess of the limits of arbitration, exclusive of interests and costs.
12
Counsel for the Plaintiff
McCarthy Weisberg Cummings, P.C.
2041 Herr Street
Harrisburg, PA 17103-1624
(717) 238-5707
COUNT III
(NEGLIGENCE)
Plaintiff, Lisa J. Boyer v.
Defendant, Meghan Bouder
48. Paragraphs 1 through 47 above are incorporated herein by reference as if more
fully set forth at length.
49. The pain, suffering, injuries and other losses of Plaintiff were the direct and
proximate cause of the negligence of Defendant Bouder, jointly and severally with the
other named Defendants, acting as an agent, employee, representative and/or
independent contractor, who conducted the business of Defendant Dr.Behnke within the
scope of her authority, employment and/or job duties as follows:
a) Failure to exercise due care according to appropriate standards of care by
informing Plaintiff via telephone on August 7, 2007, that there was nothing
Defendants could do about the continued pain and numbness in Plaintiff's
right arm following the attempt by Defendant Black to draw her blood,
thereby increasing the risk of harm and injury to her;
b) Failure to exercise due care according to appropriate standards of care by
informing Plaintiff over the telephone and without ever examining
Plaintiff's right arm, that her nerve or tendon were probably stuck with the
needle used by Defendant Black while attempting to draw her blood,
thereby increasing the risk of harm and injury to her;
c) Failure to exercise due care according to appropriate standards of care by
not advising Plaintiff on August 7, 2007 to have her arm examined by a
doctor to determine the extent of any damage to her right arm following
the attempt by Defendant Black to draw her blood, thereby increasing the
risk of harm and injury to her.
13
Counsel for the Plaintiff
McCarthy Weisberg Cummings, P.C.
2041 Herr Street
Harrisburg, PA 17103-1624
(717) 238-5707
50. Defendant Bouder agreed to provide care to Plaintiff which she knew or should
have known under the circumstances was necessary to protect Plaintiff.
51. The negligence, carelessness and other tortuous conduct of Defendant Bouder
proximately caused the harm and injury to Plaintiff, thus subjecting Plaintiff to an
increased risk of harm and injury that were a substantial factor in causing and or
contributing to the cause of the serious and permanent injuries and other losses
sustained by Plaintiff.
WHEREFORE, Plaintiff respectfully requests judgment against Defendant Bouder,
jointly and severally with Defendant Black and Defendant Dr. Behnke, for an amount in
excess of the limits of arbitration, exclusive of interests and costs.
COUNT IV
(NEGLIGENCE-RESPONDEAT SUPERIOR)
Plaintiff, Lisa J. Boyer v.
Defendant, Andrew J. Behnke, M.D., F.A.C.E.
52. Paragraphs 1 through 51 above are incorporated herein by reference as if more
fully set forth at length.
53. The pain, suffering, injuries and other losses of Plaintiff were the direct and
proximate cause of Defendant Dr. Behnke, jointly and severally with the other named
Defendants, acting by and through their agents, employees, representatives and/or
independent contractors, as follows:
14
Counsel for the Plaintiff
McCarthy Weisberg Cummings, P.C.
2041 Herr Street
Harrisburg, PA 17103-1624
(717) 238-5707
a) Failure to exercise due care according to appropriate standards of care by
not providing a proper and sufficient medical facility and the adequate
equipment to perform phlebotomy procedures to stabilize and support
Plaintiff's right arm before drawing blood, thereby increasing the risk of
harm and injury to her;
b) Failure to exercise due care according to appropriate standards of care by
not providing competent and sufficient medical staff and/or personnel to
properly draw blood from Plaintiffs right arm, thereby increasing the risk
of harm and injury to her;
c) Failure to exercise due care according to appropriate standards of care by
not properly hiring and/or training its agents, employees, representatives
and/or independent contractors with regard to the proper technique and
appropriate standards of care for drawing Plaintiffs blood, thereby
increasing the risk of harm and injury to her;
d) Failure to exercise due care according to appropriate standards of care by
not creating, implementing and/or enforcing adequate rules and
procedures to ensure quality of care while attempting to d''raw blood from
Plaintiffs right arm, thereby increasing the risk of harm and injury to her;
e) Failure to exercise due care according to appropriate standards of care by
not creating, implementing and/ enforcing adequate rules and procedures
to ensure quality of care to report the occurrence of pain and numbness in
Plaintiffs right arm following the attempted blood draw, thereby increasing
the risk of harm and injury to Plaintiff.
54. Defendant Dr. Behnke agreed to provide medical care to Plaintiff which he knew
or should have known under the circumstances was necessary to protect Plaintiff.
55. The negligence, carelessness and other tortuous conduct of Defendant Dr.
Behnke proximately caused the harm and injury to Plaintiff, thus subjecting Plaintiff to
an increased risk of harm and injury that were a substantial factor in causing and/or
15
Counsel for the Plaintiff
McCarthy Weisberg Cummings, P.C.
2041 Herr Street
Harrisburg, PA 17103-1624
(717) 238-5707
contributing to the cause of the serious and permanent injuries and other losses
sustained by Plaintiff.
56. Defendant Dr. Behnke, is vicariously liable for the negligence, carelessness and
other tortuous conduct of all of his agents, ostensible agents, employees,
representatives and/or independent contractors, including named Defendant Black and
Defendant Bouder, jointly and severally, under the Doctrine of Respondeat Superior.
WHEREFORE, Plaintiff respectfully requests judgment against Defendant Behnke,
jointly and severally with Defendant Black and Defendant Bouder, for an amount in
excess of the limits of arbitration, exclusive of interests and costs.
Respectfully submitted,
Cummings, P.C.
P
-"d A--- J'a'r` !I `'` ' Z o n $
Date
Derrek W. Cummings, Esd(uire
Sup. Ct. I.D. #83286
Larry A. Weisberg, Esquire
Sup. Ct. I.D. #83410
2041 Herr Street
Harrisburg, PA 17103-1624
(717) 238-5707
(717) 233-8133 (FAX)
Attorneys for Plaintiff
16
PINNACLEHEALTH System Radiology Imaging Report
MR#: 209364971
SSN: 209364971
ADM: 000270041674
DOB: 02/27/1963 AGE: 43Y
BED: -
PTCLASS: O BCRD
NAME: BOYER, LISA
5156 ERIE RD
HARRISBURG, PA 17111
ORD DR: TROSKO, THOMAS
ORD#: 90002
ATT DR: TROSKO, THOMAS
REASON: BILAT ARM NUMBNESS COMMENTS:
***Final Report***
COMMUNITY IMAGING MRI DEPARTMENT
PROCEDURE: CMR - 2141 - MR CERVICAL W/O CONTRAST
PROCEDURE DATE: Aug 18 2006 4:25PM ACCESSIONM 5444289
Exam: Unenhanced MR cervical spine
Clinical History: Bilateral arm numbness.
Discussion: The included portions of the posterior fossa contents and spinal cord show intrinsically normal
morphology and signal character. Some straightening of the cervical lordosis is likely positional. There is no
segmental malalignment. Mild narrowing of the C5/6 disc. Remaining discs are normal. There is no significant
marrow signal abnormality.
Axial imaging at the cervicothoracic junction at C617 shows no disc herniation, spinal or foraminal narrowing.
At C5/6, there is broad-based osteophyte/disc bulge causing mild spinal stenosis. Facet and uncovertebral joint
hypertrophy combine to cause a moderate-severe degree of right foraminal narrowing at this level.
C4/5, C3/4 and C2/3 shows no disc herniation, spinal or foramina) stenosis.
Impression: Spondylosis at C5/6. Bulging disc causes mild spinal stenosis. There is significant right foraminal
narrowing.
DICTATED: (08/18/2006 16:50)
TRANS: (ALW/PS) ON: 08/18/2006 16:53
INTERPRETED AND REVIEWED BY: PAUL S. POTOK, D.O.
ELECTRONICALLY SIGNED: 08/21/2006 10:14
To provide the best and safest patient care:
During routine daytime weekday, weekend, and holiday on-site coverage, a Radiologist can be contacted at 782-5881 (HH), 657-7199
(CGOH), or 791-2467 (Fredricksen Center). Alternatively a Quantum Radiologist can be reached by phone 24 x 7 x 365 at 932-8030.
As Clinicians' consultants, the Quantum Radiologists are genuinely committed to providing meaningful interpretations. Accordingly, if
the clinical team is in search of answers to specific questions, please include your questions(s) on the xray request form, and the
question(s) will be specifically addressed in the Radiologist's report. Furthermore, if clinical urgency necessitates an immediate verbal
report, please insure that the xray request includes a reliable phone number where you can be reached immediately.
Study interpretation provided by Quantum Imaging 8 Therapeutic Associates. If you have received this document by facsimile,
the information contained in this transmission is privileged and confidential. If the reader of this message is not the intended recipient, you
are hereby notified that any dissemination, distribution, or copy of this communication is strictly prohibited. If you have received this
communication in error, please notify us immediately at: 1-717-782-3240.
Printed: September 18, 2006 9:33 AM
TRMW DO OU cj IWO "Wo P? uJivj
TH
26!2006
12.45 7174697966
ASSOWL?MS
845 Sir J*OMN cmr,t
7A ly7ag-4849
(nth gy?•geaa ?40: (7=7) ?gos
ToD .
Y ?gg?.`fS
TOM"
C 4,XA-A
in V
F qMe ce 1 if ymba" 1p°y
10 follow
1 AORGANSTEIN
1 H U MA5 I RUSK0
fu; 3
REHADIL.ITATION
DO PAGE
Oct 15 2M 01l J tss fvtj Itwo 02
ACIPSOCIATES
STEveN E. MoRGANMiN, D.O.
f' . T
Sept mbar 21, 2006
Ito ws Trosko, D.O.
ICI( i Jonestown Road
POI ox 240
Ojai villa. PA 17028
RIC: Liss Boyer
Date of Mewl: M06
Dew Tom:
nau c you for rc&nins Lisa Bo3w to ties office for alatr+odiagnosr. testisrg. AS you know, she
is I- 3-Yew-OK ft* band doQaieuaM female WO chWQMPWW of right arm numbness. She
dssc beg numbness Mading along the radial aspect of tbs forearm. She 4 tries any symptoms
in tb hawk Sba denies any sympmiaa flusher up the arm or into the noel[. She reports her
ay mtoms occurred following atkmvt at a blood draw from ft m tbcubita . fosse on August 1,
200(
Ste rew is today with an MRI ofthe cervical 3pim which does reveal so?ue totanunal
nam a?ing to the rion at the C5-C6 level. Tbere is no evidence of any foes-I disc hemiations.
Past nedwd history, pest suzWool bfstory, family WS Wry. W Cial history. c, wrest ttreaKMi RnOns,
Woad ad allergies, and review of systems how all been wdewed per patie :t history form and
di-sal ;sed in detail with padmi.
ri n ilCAL E ANIINATIOM. She is a very pleassnt fensak who does, sot appear to be in any
ac 10 discomfort. She bats Rsl': ranee of motioa throughout the cervical spi ue in all plan M. Upper
CCU pity neurologic testing tweets fall 515 motor ettr.ngth throughout. rwe is daMumd light
tolic. sensation along the right mid to distal fixesttn region along the radii I surface, othawne
Ms :ion is normal throughout. T'end's and Phalen's testing at Ow wrists i ze negative. Distant
puts, ;are symmetrical. Thar+e is no in it*c muscular was Tawas or atrophy.
In th office today, I pedom2ed d- --a uW - Iic toning of the right upper extrmnity. UtiH24
sun( ird oecimique, nerve conduction studies wore pe fomnd on dw right , nedian and ulna-
and K( • and sa Lwry nerves as 'well as ft right radial and the right lateral cu :an w nicrvc. Lott
=is ry nerve testing was performed as well for cooalrparison. All distal latmciea, amplitudes,
ani : wen om3duction velocities were fond to be normal with regards to U sting of t?e muff=
ulrut and radial nerves. The right Sahel cutaneous nerve mvealW borrdsrline norm al fmdir- es
8455.3!F''I -fom" COURT. Surre 7 (717) 651-5800
HARRISHL 2G. PA 17109 FAX. (717) 651.5808
1.0/20/2006 10:51 7174697966 THOMAS TROSKO DO PAGE 03
«. u;? ?o tuW ut:sb= rULZ/UUb
Pale fwo
RI.: !a Boyar
Se* aber 21, 2006
wi h :.38 miUisecmd btmcy eat! 1 S.S2 nc kWvolt WVUU le t?espo"nse is c amgatisou t0 the left
sid e; wwveer, this was found to be slow as the distal lsteacy was 1.44 m01, iseoofids.
Ut H ing monopolar madIs EMO was petfonned on seleced muscles of 1h e right upper
ex re iity. All mumks uwod were SnW ov be dormal. That is no evidan:a of any acute or
cbuv. is demvadon chaagas.
INP XWON: 1.) These is eleetrsdiagsoeek ntdmes dr dadve slawh*
of the right lateral a aftwo es sons. TWb would correspond to
bor ssbjeedve eompl4aW as wW m objective $a* uws om dWCW
cmdmdos a dds uerro would provide eeaw7 iawe"adon
10 the nWW form= rsom An elver "oft u Iarool and
tbe» is no evicusee of cervinl "mmlopuby.
Tb K : you again for referring ML Soya for EMO.
Silo •ely,
. F.,
. .40? ??o
3tf vt IF, M+aripmsldin, D.O.
SEM 3sf
EnA.
<wj LUUU ICl; /1 /4by7966 THOMAS TROSKO DO PAGE 04
ran. im lb zuw 0; - um rouvoUb
MORGANSMU4 REHAMITATION ASSOC'fATES
"S sir ThOMM Carom. $W.7
Hag, PA 17109
(717) 651-SM
9121/= 2:02-, 15 Pm
ratmt::3( ?W, Lim DOS: 212711963 P'h?triepar. St.-4enR Wrp tdin, D.O.
RBE ]Mqv: 3r. Trodco
EMC:
aft i+..r 16" IwAa rm we I mm W ro cwmmmw
RW Tiia Wti Ci.7-4 fAW KW Ad Rd NW 0 NW r"
Rift Rma& Ad lBM{?a 067 Rd tW tW Md No 0 Md Nd
RW ad Ile m now OP40 W) C7-8 m 1404 A w lid mw 0 ww NMI
Riaft Abd ft Sm Man CiTI Mg Nd wad Nd Nat 0 low mw
Rift lWal . Law CWT2 p" Nat N" !loll no 0 Ad mw
Motor :Y ?Irves
aw :YI 011111 XWWQWA "Amp NOMAW NoD W tWMMiw.. Do" UK Val r.
.
?
Yd
I
.
lMe lirv? ? + 1144 tib?)
wTid 3.99 u.2 7.74 y5.0 S.is zbvwilMs 4.:3 36 $7.40 >$oh
imbow 0_I3 L90 3.ss
swo ubw V w x8 aft
wow 2.i6 rw t i.4s ".0 4.17 H AVARI%wlbt 2j o f9 63.74 =$0A
DOW $.ss 7.75 3.16
Senwry, . ienres
NR P
ri X4M
Pub JP-T A
p PoM Ar0 /1mst PbM 0 a*? Dot va KaW Yd
?
\
l /
?11Wr?n- -- / ? / -
tt?UlfwlMa.M tpliitl?
wwa 34M <3.tt M43 >20.0 %iiRdDW
miawn Lm 10A1 h6dit OWN -1.13
I%UUSWAtd Asia
W*kl w QT i4Jl! >IS.O tibilhsdDt? 1.69 >46.0
q#tRM1i AaA gna In EM
wvia Lit <2.7 7.17 Mtiil1 am 1RDIR 1 i6
YAOUKAOAfte
Wi* 2.52 ti-S4 dYew.itsirn 2 )t 12
L s p"41 :4t MA Drq
tW LUJ LUDO tn: ?1 tl NbV'366 THOMAS TROSKO DO PAGE 05
Fu: lb:t lb NO u! 4*M ruurru,,u
PaRi«il: B Aw, use TMt DOW. iilZ9tm P? 1
Wrist 3.72 40A SUP >10-0 w*ww V* >390
LesUwrAnd( *D4p*
wf w 294 4.7 3271 >IfA wdoo >ot
URVA"Ai¦ %mtwwo
wrist 247 47 60 woam IttD16 1-47
Las uw,7m%
was 1.44 ilr7s 41 l3
s
Ste"nE. N ?r?n
,..,...+vv iu.J1 11[4bJtJbb THOMAS TROSKO DO PAGE 06
ho; uct 16 ZUUO U i : 4un rutivuut
PWAWc B yer, Liss
Ted DW: K1/M
P. a
w1MfM?M / r r „ ---- - --- - 11hn??11 Y. ..
T
----------- --------------
..L. ..:... .. L _
_. -t- __.?'_ !• .L.-.._?_• _}_._?} .._.Y._.-}.. . h«../«..^-.?¢-..__:»_.-?....,y._.. --...Y-....j ./.....i.....i... ....i... .. _..
_ .?..._•
__ ---t---- }•• - ...y....;.... _ ,_.j.....i....-._....j.....j.....
FAW Ift4 t it for _ .. N?f {IMMt MalYr c
.. .._ _?.._ _• •_ .. ...t. _.
-----------------
• .•
names"
taR wM?al ?? --?--.
----------- ---- ------
----------- ---------- - -----
?
`
....Y..-.
..
.......- - - - -___?_ - ------
-----------------
L?It ?? t IMNt??
..;»....... ~ 1
'° ,1- - ... .,_. - - ..:... ... --- -' .:. .i,...-:.__ _'._.-:.__..}._? .}--. t•.....5•,°_ ----------------- >-------- --.
---•- --A- -•--.- .-._}. _..t--- -F-•---F--- -t ----b•--.- Y..-• `» .}'--- ..}... ...'...._i -. a..__.,t
??'+ 611 2
THOMAS TROSKO DO PAGE 07
Ir ..w ?w? tu. Ji !1 14b7/ybb Fu* Oct 16 20 07:410 POG6/OQB
PrIMn1: 9? for, Liar
Too DiM 9021FA0S
P. 4
l _ ._.
?_, . ., i.. -.
-------- .. ..:...
.. ..........
F. ._. .....?_ ... Tr ..T.
........ ;. _ ----------- ..-_ ___ w
JD im
Counsel for the Plaintiff
McCarthy Weisberg Cummings, P.C.
2041 Herr Street
Harrisburg, PA 17103-1624
(717) 238-5707
VERIFICATION
I, Lisa J. Boyer, verify that I am the Plaintiff in the foregoing Second Amended
Complaint and that the facts set forth therein are true and correct to the best of my
knowledge, information, and belief; and that this verification is subject to the penalties of
18 Pa.C.S. § 4909 relative to unsworn falsification to authorities.
Dated: January 1 2008.
Lisa 4Br?
Counsel for the Plaintiff
McCarthy Weisberg Cummings, P.C.
2041 Herr Street
Harrisburg, PA 17103-1624
(717) 238-5707
CERTIFICATE OF SERVICE
I hereby certify that I am this day serving a copy of the foregoing Second
Amended Complaint upon the person and in the manner indicated below, which service
satisfies the requirements of the Pennsylvania Rules of Civil Procedure, by depositing a
copy of the same in the United States Mail, first-class postage prepaid, addressed as
follows:
Andrew H. Foulkrod, Esquire
Foulkrod Ellis, P.C.
2010 Market Street
Camp Hill, PA 17011
(Counsel for Defendants)
MJAC?L Z
Date
y W isbe Cummings, P.C.
? c
Derrek W. Cummings, Esquire
Sup. Ct. I.D. #83286
Larry A. Weisberg, Esq.
Sup. Ct. I.D. #83410
2041 Herr Street
Harrisburg, PA 17103-1624
(717) 238-5707
(717) 233-8133 (FAX)
Attorneys for Plaintiff
C?
n
)KZ
J
C
Cl
FOULKROD ELLIS
Andrew H. Foulkrod, Esquire
Attorney I.D. #77394
Michael C. Mongiello, Esquire
Attorney I.D. #87532
2010 Market Street
Camp Hill, PA 17011 Attorneys for Defendants:
Phone: (717) 909-7006 JENNIFER BLACK, CUMBERLAND VALLEY
Fax: (717) 909-6955 ENDOCRINOLOGY CENTER, LLC, and MEGHAN BOUDER
LISA J. BOYER, COURT OF COMMON PLEAS OF
Plaintiff CUMBERLAND COUNTY,
PENNSYLVANIA
V.
CIVIL DIVISION - MEDICAL
JENNIFER BLACK, CUMBERLAND PROFESSIONAL LIABILITY ACTION
VALLEY ENDOCRINOLOGY CENTER,
LLC, and MEGHAN BOUDER, No. 07-6286
Defendants JURY TRIAL DEMANDED
LISA J. BOYER, COURT OF COMMON PLEAS OF
Plaintiff CUMBERLAND COUNTY,
PENNSYLVANIA
V.
CIVIL DIVISION - MEDICAL
JENNIFER BLACK, and MEGHAN PROFESSIONAL LIABILITY ACTION
BOUDER,
Defendants No. 07-6286
JURY TRIAL DEMANDED
PRAECIPE TO FILE STIPULATION
TO THE PROTHONOTARY:
Kindly file of record the attached Stipulation to Discontinue Action with Prejudice
Pursuant to Pa.R.C.P. No. 229 as to Defendant, Cumberland Valley Endocrinology, LLC
regarding the above-referenced matter.
FOILKROD ELLIS
DATE: 0 d
By:
MWIIA " llo, Esquire
Attorne D. #87 2
Attorney for Defendants
Jennifer Black, Cumberland Valley
Endocrinology Center LLC and
Meghan Bouder
.4i A.
" FOULKROD ELLIS
?o?eaoioKal ?oaatloK
Andrew H. Foulkrod, Esquire
Attorney I.D. #77394
Michael C. Mongiello, Esquire
Attorney I.D. #87532
2010 Market Street
Camp Hill, PA 17011 Attorneys for Defendants:
Phone: (717) 909-7006 JENNIFER BLACK, CUMBERLAND VALLEY
Fax: (717) 909-6955 ENDOCRINOLOGY CENTER, LLC, and MEGHAN BOUDER
LISA J. BOYER, COURT OF COMMON PLEAS OF
Plaintiff CUMBERLAND COUNTY,
PENNSYLVANIA
V.
CIVIL DIVISION - MEDICAL
JENNIFER BLACK, CUMBERLAND PROFESSIONAL LIABILITY ACTION
VALLEY ENDOCRINOLOGY CENTER,
LLC, and MEGHAN BOUDER, No. 07-6286
Defendants
JURY TRIAL DEMANDED
LISA J. BOYER, COURT OF COMMON PLEAS OF
Plaintiff CUMBERLAND COUNTY,
PENNSYLVANIA
V.
CIVIL DIVISION - MEDICAL
JENNIFER BLACK, and MEGHAN PROFESSIONAL LIABILITY ACTION
BOUDER,
Defendants No. 07-6286
JURY TRIAL DEMANDED
STIPULATION TO DISCONTINUE ACTION WITH PREJUDICE
PURSUANT TO PA.R.C.P. NO. 229
AS TO DEFENDANT, CUMBERLAND VALLEY ENDOCRINOLOGY. LLC
AND NOW, comes Plaintiff, Lisa J. Boyer, by and through her counsel, Derrek W.
Cummings, Esquire; and Defendants, Jennifer Black, Cumberland Valley Endocrinology Center,
LLC and Meghan Bouder, by and through their counsel, Michael C. Mongiello, Esquire; and
hereby stipulate and agree as follows:
1. Counsel executing this Stipulation hereby represent and warrant that they are
authorized to do so by their respective clients.
M .4.
2. This action is hereby discontinued with prejudice as to Defendant, Cumberland
Valley Endocrinology, LLC.
3. The Prothonotary is directed to amend the caption to delete Cumberland Valley
Endocrinology, LLC, as a Defendant without further action by, or Order of, Court.
4. This Stipulation may be executed in counterparts and shall be considered effective
when signed by all counsel, even though signed on separate signature pages, and may be filed of
record. Facsimile or photocopy reproduction of signatures shall have the effect of original
signatures.
IN WITNESS WHEREOF, the parties by their counsel have caused this Stipulation to be
executed and intend to be legally bound thereby.
SBERG, CUMMINGS, P.C.
DATE: l - Z - v b
By:
All
DATE: Ifluo
Anorney Ior riamnri
Lisa A. Boyer
Attorney I.D. #87532
Attorney for Defendants
Jennifer Black, Cumberland Valley
Endocrino(bogy Cdnter LLC and
Meghan B-ouder
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the foregoing was served upon
counsel of record this day of , 2008, by depositing said copy in the
United States Mail at Camp Hill, Pennsylvania, postage prepaid, first class delivery, and
addressed as follows:
Derrek W. Cummings, Esquire
McCarthy, Weisberg, Cummings, P.C.
2041 Herr Street
Harrisburg, PA 17103-1624
FOULKROD ELLIS
Professional Corporation
Jl v
Crystal . Nemetz, Secretary
c's w
w
Q
?e t
a
FOULKROD ELLIS
P-0"1;1-d
Andrew H. Foulkrod, Esquire
Attorney I.D. #77394
Michael C. Mongielio, Esquire
Attorney I.D. #87532
2010 Market Street
Camp Hill, PA 17011
Phone: (717) 909-7006
Fax: (717) 909-6955
Attorneys for Defendants:
JENNIFER BLACK, MEGHAN BOUDER
and ANDREW J. BEHNKE, M.D., F.A.C.E.
LISA J. BOYER,
V.
Plaintiff
JENNIFER BLACK, MEGHAN BOUDER,
and ANDREW J. BEHNKE, M.D., F.A.C.E.,
Defendants
COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY,
PENNSYLVANIA
CIVIL DIVISION - MEDICAL
PROFESSIONAL LIABILITY ACTION
No. 07-6286
JURY TRIAL DEMANDED
PRAECIPE TO FILE STIPULATION
TO THE PROTHONOTARY:
Kindly file of record the attached Stipulation of Counsel regarding the above-referenced
matter.
By:
Respectfully submitted,
FOULKROD ELLIS
PROFESSIONAL ck)R
Andre* F Vrk Es
Attorney I 77
Michael C. Mongiello, Esq
Attorney I.D. No. 87532
TION
DATE: January 22, 2008
f '1M
FOULKROD ELLIS
PROFESSIONAL CORPORATION
Andrew H. Foulkrod, Esquire
Attorney I.D. #77394
Michael C. Mongiello, Esquire
Attorney I.D. #87532
2010 Market Street
Camp Hill, PA 17011
Phone: (717) 909-7006
Fax: (717) 909-6955
Attorneys for Defendants:
JENNIFER BLACK, MEGHAN BOLIDER
and ANDREW J. BFHNKF M D F A C F
LISA J. BOYER,
V.
Plaintiff
JENNIFER BLACK, MEGHAN BOUDER,
and ANDREW J. BEHNKE, M.D., F.A.C.E.,
Defendants
COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL DIVISION - MEDICAL
PROFESSIONAL LIABILITY ACTION
No. 07-6286
Y TRIAL DEMANDED
STIPULATION OF COUNSEL
AND NOW, comes Plaintiff, Lisa J. Boyer, by and through her counsel, Derrek W.
Cummings, Esquire; and Defendants, Jennifer Black, Meghan Bouder and Andrew J. Behnke,
M.D., F.A.C.E., by and through their counsel, Michael C. Mongiello, Esquire; and hereby
stipulate and agree as follows:
1. Counsel executing this Stipulation hereby represent and warrant that they are
authorized to do so by their respective clients.
2. Defendant, Andrew J. Behnke, M.D., F.A.C.E. is vicariously liable for the
actions/inactions of Co-Defendants, Meghan Bouder and Jennifer Black, in the event that there is
a finding of negligence made as to Co-Defendants, Meghan Bouder and/or Jennifer Black.
3. The insurance carrier for Andrew J. Behnke, M.D., F.A.C.E., the PMSLIC
Insurance Company, is aware that this stipulation is being entered into and has no objection
thereto.
4. Paragraphs fifty-three (53) through fifty-five (55) of Plaintiff's Second Amended
Complaint are hereby stricken, with prejudice.
5. Plaintiffs only claim against Defendant, Andrew J. Behnke, M.D., F.A.C.E. is for
vicarious liability based on the conduct of Co-Defendants, Meghan Bouder and/or Jennifer
Black.
6. This Stipulation may be executed in counterparts and shall be considered effective
when signed by all counsel, even though signed on separate signature pages, and may be filed of
record. Facsimile or photocopy reproduction of signatures shall have the effect of original
signatures.
IN WITNESS WHEREOF, the parties by their counsel have caused this Stipulation to be
executed and intend to be legally bound thereby.
McC RT Y ISBERG CUMMINGS P.C.
By:
Derrek W. Cu s, Esquir
Attorney I.D. #83286
Attorney for Plaintiff
Lisa A. Boyer
DATE: J r ..A+11 1 t3, Z-"06
FOULKROD ELLIS
By
Mibha4CXM W Esquire
Attorn I.D. 7532
Attorn for Defendants
Jennifer Black, Meghan Bouder and Andrew J.
Behnke, M.D., F.A.C.E.
DATE: ?V' , ? 2 1, Cot
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the foregoing was served upon
counsel of record this o D (v4day of 2008, by depositing said copy in the
United States Mail at Camp Hill, Pennsylvania, postage prepaid, first class delivery, and
addressed as follows:
Derrek W. Cummings, Esquire
McCarthy, Weisberg, Cummings, P.C.
2041 Herr Street
Harrisburg, PA 17103-1624
FOULKROD ELLIS
Professional Corporation
Crystal . Nemetz, Secret
??.?, j ?'\.?
f .S
?J
,? ? ??
-r?
y_±_
A r`Fi
!?.,I
?...?. '?
FOULKROD ELLIS
Andrew H. Foulkrod, Esquire
Attorney I.D. 077394
Michael C. Mongiello, Esquire
Attorney I.D. 987532
2010 Market Street
Camp Hill, PA 17011
Phone: (717) 909.7006
Fax: (717) 909-6955
LISA J. BOYER,
V.
Plaintiff
JENNIFER BLACK, MEGHAN BOUDER,
and ANDREW J. BEHNKE, M.D., F.A.C.E.,
Defendants
Attorneys for Defendants:
JENNIFER BLACK, MEGHAN BOUDER
and ANDREW J. BEHNKE, M.D., F.A.C.E.
COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY,
PENNSYLVANIA
CIVIL DIVISION - MEDICAL
PROFESSIONAL LIABILITY ACTION
No. 07-6286
JURY TRIAL DEMANDED
DEFENDANTS' PETITION FOR STATUS CONFERENCE
AND NOW come Defendants, Jennifer Black, Meghan Bouder, and Andrew J. Behnke,
M.D., F.A.C.E., by and through their counsel, Foulkrod Ellis, and petition this Honorable Court
for a status conference in light of the following:
1. Plaintiff commenced this medical professional liability action on October 26,
2007 by filing a Complaint, alleging that Defendants negligently performed and followed-up on
a venapuncture procedure resulting in right arm pain/numbness and associated physical
limitations.
2. The pleadings are almost closed and substantive discovery is beginning.
3. A status conference for the purpose of establishing pre-trial deadlines will ensure
that this litigation proceeds to resolution in a timely fashion.
4. Pursuant to Cumberland County Local Rule 208.3(a)(2) no judges have been
involved in this litigation as of this time.
5. Pursuant to Cumberland County Local Rule 208.3(a)(9), Plaintiff's counsel
concurs that a status conference would be appropriate at this time.
WHEREFORE, it is respectfully requested that this Honorable Court enter the attached
Order.
Respectfully submitted,
FOULKROD ELLIS
Date: ? ? Z?(Oq
2010 Market Street
Camp Hill, PA 17011
(717) 909-7006
Michael C. Mongiello, Esquire
Attorney I.D. #87532
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the foregoing was served upon
counsel of record this `) day of 2008, by depositing said copy in the
United States Mail at Camp Hill, Pennsylvania, postage prepaid, first class delivery, and
addressed as follows:
Derrek W. Cummings, Esquire
McCarthy, Weisberg, Cummings, P.C.
2041 Herr Street
Harrisburg, PA 17103-1624
FOULKROD ELLIS
Professional Corporation
?? AA J-?J) AJ!6:6?
Crystal L. emetz, Secretary
?..-?
C"?
w:- c;::a ---1
?.
??
?
tJZ '{`?
?? _' .i,
,,:.;! ,
?
C? ?
w :
.w,, yAJ
MAR as zo080e
FOULKROD ELLIS
pwp d
emovw-
Andrew H. Foulkrod, Esquire
Attorney I.D. #77394
Michael C. Mongiello, Esquire
Attorney I.D. #87532
2010 Market Street
Camp Hill, PA 17011
Phone: (717) 909-7006
Fax: (717) 909-6955
Attorneys for Defendants:
JENNIFER BLACK, MEGHAN BOLDER
and ANDREW J. BEHNKE, M.D,, F.A.C.E.
LISA J. BOYER,
Plaintiff
COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY,
PENNSYLVANIA
V.
JENNIFER BLACK, MEGHAN BOUDER,
and ANDREW J. BEHNKE, M.D., F.A.C.E.,
Defendants
CIVIL DIVISION - MEDICAL
PROFESSIONAL LIABILITY ACTION
No. 07-6286
JURY TRIAL DEMANDED
ORDER
AND NOW, this 2_ day of 2008, upon consideration
of Defendants' Petition for Status Conference, it is hereby ORDERED and DECREED that a
Status Conference will be held in Courtroom 1 _ of the Cumberland County Courthouse on
-1"ec-ej v2 at a. /p m.
BY THE COURT:
LISA J. BOYER, IN THE COURT OF COMMON PLEAS OF
Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA
V.
JENNIFER BLACK, MEGHAN BOUDER,
And ANDREW J. BEHNKE, M.D.,
F.A.C.E,
Defendants
CIVIL ACTION - LAW
NO. 07-6286 CIVIL TERM
ORDER OF COURT
AND NOW, this 29th day of May, 2008, upon
consideration of Defendants' Petition for Status Conference, and
following a status conference held in the chambers of the
undersigned judge in which Plaintiff was represented by Derrek W.
Cummings, Esquire, and Defendants were represented by Michael C.
Mongiello, Esquire, and pursuant to an agreement of counsel as
indicated at the conference, it is ordered and directed as follows
with respect to deadlines in this case:
1. Any and all discovery shall be completed on or
before May 29, 2009;
2. Plaintiff's expert reports shall be due on or
before July 29, 2009;
3. Defendants' expert reports shall be due on or
before December 29, 2009;
4. Any rebuttal reports shall be due on or before
October 29, 2009; and
5. Any dispositive motions shall be filed on or
before November 29, 2009.
By the Court,
"IASAKGd
rr ?4?gy?
AMC')
C .46 "- Z
Jlddl?? 3
? Derrek W. Cummings, Esquire
2041 Herr Street
Harrisburg, PA 17103-1624
For the Plaintiff
./'Michael C. Mongiello, Esquire
2010 Market Street
Camp Hill, PA 17011
For the Defendants
pcb
0,0 p i eS maa LL
1
1
c -"I
LISA J. BOYER,
Plaintiff
V.
JENNIFER BLACK, MEGHAN BOUDER,
And ANDREW J. BEHNKE, M.D.,
F.A.C.E,
Defendants
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION - LAW
NO. 07-6286 CIVIL TERM
AMENDED ORDER OF COURT
AND NOW, this 13th day of June, 2008, the order of
court dated May 29, 2008, is amended to reflect in Item No. 3 a
date of September 29, 2009, in accordance with the attached letter
of counsel for Defendants.
By the Court,
I Derrek W. Cummings, Esquire
2041 Herr Street
Harrisburg, PA 17103-1624
For the Plaintiff
Michael C. Mongiello, Esquire
2010 Market Street
Camp Hill, PA 17011
For the Defendants
pcb
0OF es VVQ%Lj,
9 Z :6 V 91 Nnr 80UZ
AdViON61,Lobd 3Hl JO
-r, lt?40--fljTU
FOJ L ROD ELLI S
c kotesstonav Cokponation
ATTORNEYS AND COUNSELORS AT LAW
2010 Market Street
CAMP HILL, PENNSYLVANIA 17011
PHONE (717) 909-7006 FAX (717) 909-6955
MICHAEL C. MONGIELLO'
June 9, 2008
The Honorable J. Wesley Oler, Jr.
Cumberland County Courthouse
One Courthouse Square
Carlisle, PA 17013-3387
Re: Boyer v. Black, et al
Civil Docket No. 07-6286
FEPC #3600
Dear Judge Oler:
Phone Extension: 2
mike@foulkrod.com
Following a Status Conference in this case on May 29, 2008, Your Honor entered the
enclosed Scheduling Order. I note that in Item No. 3, there is a typographical error in that this
sentence reads "December 29, 2009" instead of "September 29, 2009" as agreed upon at the
Status Conference.
Thank you for your attention to this matter.
c e
MCM/cln
Enclosure
cc: Derrek W. Cummings, Esquire
JUN 10 2008
FOULKROD ELLIS
pao6ea 4-d 6"AM4AZI.
,.
Andrew H. Foulkrod, Esquire
Attorney I.D. #77394
Michael C. Mongiello, Esquire
Attorney I.D. #87532
2010 Market Street
Camp Hill, PA 17011
Phone: (717) 909-7006
Fax: (717) 909-6955
Attorneys for Defendants:
JENNIFER BLACK, MEGHAN BOUDER
and ANDREW J. BEHNKE, M.D., F.A.C.E.
LISA J. BOYER,
V.
Plaintiff
JENNIFER BLACK, MEGHAN BOUDER,
and ANDREW J. BEHNKE, M.D., F.A.C.E.,
Defendants
COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY,
PENNSYLVANIA
CIVIL DIVISION - MEDICAL
PROFESSIONAL LIABILITY ACTION
No. 07-6286
JURY TRIAL DEMANDED
ANSWER AND NEW MATTER
TO PLAINTIFF'S SECOND' AMENDED COMPLAINT
AGAINST DEFENDANTS FOR PROFESSIONAL MALPRACTICE
AND NEGLIGENCE
AND NOW, come Defendants, Jennifer Black ("Ms. Black"), Meghan Bouder ("Ms.
Bouder") and Andrew J. Behnke, M.D., F.A.C.E. ("Dr. Behnke") (collectively hereinafter
referred to as "Answering Defendants"), by and though their counsel, Foulkrod Ellis, and answer
and assert New Matter to Plaintiff's Second Amended Complaint as follows:
1. Denied. Answering Defendants are advised by counsel and therefore aver that the
corresponding averments of Plaintiff's Second Amended Complaint do not pertain to them and
that no further answer is required. To the extent that a response is deemed necessary, the
allegations are denied generally and strict proof thereof is demanded at the time of trial.
2. Admitted in part and denied in part. Ms. Black is an adult individual certified as a
medical assistant and laboratory technician who was at all relevant times employed at
Cumberland Valley Endocrinology Center, LLC ("CVEC"), which has offices in Cumberland
County, Pennsylvania. While it is admitted that Plaintiff is asserting a professional liability
claim against Ms. Black, it is specifically denied that Ms. Black was negligent. To the contrary,
at all relevant times, Ms. Black met or exceeded the standard of care and at no time caused or
contributed to the injuries as alleged.
3. Admitted in part and denied in part. It is admitted that all relevant times Ms.
Black was a medical assistant and laboratory technician employed by Dr. Behnke, whose
principle place of business is CVEC, located at 49 Brookwood Avenue, Carlisle, Cumberland
County, Pennsylvania 17013. The allegation that Ms. Black was an independent contractor at
all times relevant and material to Plaintiff s Second Amended Complaint is specifically denied.
The allegations that Ms. Black was an agent and/or representative of Dr. Behnke at all times
relevant and material to Plaintiff s Second Amended Complaint, and that she was acting within
the scope of her authority, employment and/or job duties, are conclusions of law to which no
responsive pleading is required. These allegations are accordingly also specifically denied.
4. Denied. While it is admitted that Ms. Black was an employee of Dr. Behnke at
all times relevant and material to Plaintiff s Second Amended Complaint and so represented
hereof, it is specifically denied that she represented to Plaintiff or general public that she was an
agent, representative and/or independent contractor of Dr. Behnke. The remaining
corresponding allegations of Plaintiffs Second Amended Complaint are specifically denied as
conclusions of law to which no responsive pleading is required.
5. Admitted in part and denied in part. It is admitted that Ms. Bouder, an adult
individual certified as a medical assistant, was at all relevant times employed at CVEC, which
has offices in Cumberland County, Pennsylvania. While it is further admitted that Plaintiff is
asserting a professional liability claim against Ms. Bouder, it is specifically denied that Ms.
Bouder was negligent. To the contrary, at all relevant times, Ms. Bouder met or exceeded the
standard of care and at no time caused or contributed to the injuries as alleged.
6. Admitted in part and denied in part. It is specifically denied that at any time
relevant and material to Plaintiff's Second Amended Complaint, Ms. Bouder was an independent
contractor of Dr. Behnke. While it is admitted that Ms. Bouder was an employee of Dr. Behnke
at all times relevant and material to Plaintiffs Second Amended Complaint, the allegations that
Ms. Bouder was an agent or representative of Dr. Behnke who conducted the business of Dr.
Behnke within the scope of her authority, employment and/or job duties at the principle place of
business of CVEC located at 49 Brookwood Avenue, Carlisle, Cumberland County,
Pennsylvania 17013, are denied as conclusions of law to which no responsive pleading is
required and these allegations are accordingly specifically denied.
7. Denied. While it is admitted that Ms. Bouder was an employee of Dr. Behnke at
all times relevant and material to Plaintiff's Second Amended Complaint and so represented
herself, it is specifically denied that she represented to Plaintiff or the general public that she was
an agent, representative and/or independent contractor of Dr. Behnke. The remaining
corresponding allegations of Plaintiff's Second Amended Complaint are specifically denied as
conclusions of law to which no responsive pleading is required.
Admitted in part and denied in part. It is admitted that Dr. Behnke is an adult
individual and a licensed professional with offices in Cumberland County, Pennsylvania. While
it is also admitted that Plaintiff is asserting a professional liability claim against Dr. Behnke, it is
specifically denied that Dr. Behnke was negligent. To the contrary, at all relevant times, Dr.
Behnke met or exceeded the standard of care and at no time caused or contributed to the injuries
as alleged.
9. Admitted.
10. Denied. The corresponding allegations of Plaintiff's Second Amended Complaint
are conclusions of law to which no responsive pleading is required and these allegations are
accordingly specifically denied.
11. Admitted in part and denied in part. It is admitted that Dr. Behnke, at all times
relevant and material to Plaintiff's Second Amended Complaint represented to Plaintiff and the
general public that he provided services and conducted business operations through competent
and qualified physicians, nurses and other medical staff. The remaining corresponding
allegations of Plaintiffs Second Amended Complaint are unknown to Defendants and these
allegations are accordingly specifically denied.
12-39. Denied. The correspondence averments of Plaintiff s Second Amended
Complaint are denied by operation of Pa.R.C.P. No. 1029(e) and/or as conclusions or law to
which no responsive pleading is required. By way of further answer, Answering Defendants
were not negligent. To the contrary, at all relevant times, Answering Defendants met or
exceeded the standard of care and at no time caused or contributed to the injuries as alleged.
COUNTI
(NEGLIGENCE)
Plaintiff, Lisa J. Boyer v.
Defendant, Jennifer Black
40. Answering Defendants hereby incorporate by reference the answers contained in
Paragraphs 1 through 39 above as fully set forth herein at length.
41-43. Denied. The corresponding averments of Plaintiff s Second Amended Complaint
are denied generally by operation by Pa.R.C.P. No. 1029(e) and/or denied specifically as
conclusions of law or fact to which no responsive pleading is required. By way of further
answer, Ms. Black was not negligent. To the contrary, at all relevant times, Ms. Black met or
exceeded the standard of care and at no time caused or contributed to the injuries as alleged. The
Stipulation of Counsel, filed on January 23, 2008, is hereby incorporated by reference.
WHEREFORE, Defendants, Jennifer Black, Meghan Bouder and Andrew J. Behnke,
M.D., F.A.C.E., demand judgment in their favor and against Plaintiff.
COUNT II
(NEGLIGENCE-RES IPSA LOQUITUR)
Plaintiff, Lisa J. Boyer v.
Defendant, Jennifer Black
44. Answering Defendants hereby incorporate by reference the answers contained in
Paragraphs 1 through 43 above as fully set forth herein at length.
45-47. Denied. The corresponding averments of Plaintiff's Second Amended Complaint
are generally denied by operation by Pa.R.C.P. No. 1029(e) and/or specifically denied as
conclusions of law or fact to which no responsive pleading is required. By way of further
answer, Ms. Black was not negligent. To the contrary, at all relevant times, Ms. Black met or
exceeded the standard of care and at no time caused or contributed to the injuries as alleged. The
Stipulation of Counsel, filed on January 23, 2008, is hereby incorporated by reference.
WHEREFORE, Defendants, Jennifer Black, Meghan Bouder and Andrew J. Behnke,
M.D., F.A.C.E., demand judgment in their favor and against Plaintiff.
COUNT III
(NEGLIGENCE)
Plaintiff, Lisa J. Boyer v.
Defendant, Meghan Bouder
48. Answering Defendants hereby incorporate by reference the answers contained in
Paragraphs 1 through 47 above as fully set forth herein at length.
49-51. Denied. The corresponding averments of Plaintiff's Second Amended Complaint
are generally denied by operation by Pa.R.C.P. No. 1029(e) and/or specifically denied as
conclusions of law or fact to which no responsive pleading is required. By way of further
answer, Ms. Bouder was not negligent. To the contrary, at all relevant times, Ms. Bouder met or
exceeded the standard of care and at no time caused or contributed to the injuries as alleged. The
Stipulation of Counsel, filed on January 23, 2008, is hereby incorporated by reference.
WHEREFORE, Defendants, Jennifer Black, Meghan Bouder and Andrew J. Behnke,
M.D., F.A.C.E., demand judgment in their favor and against Plaintiff.
COUNT IV
(NEGLIGENCE-RESPONDEAT SUPERIOR)
Plaintiff, Lisa J. Boyer v.
Defendant, Andrew J. Behnke, M.D., F.A.C.E.
52. Answering Defendants hereby incorporate by reference the answers contained in
Paragraphs 1 through 51 above as fully set forth herein at length.
53-55. Denied. The Stipulation of Counsel, filed on January 23, 2008, is hereby
incorporated by reference.
56. Denied. The corresponding averments of Plaintiff's Second Amended Complaint
are generally denied by operation by Pa.R.C.P. No. 1029(e) and/or specifically denied as
conclusions of law or fact to which no responsive pleading is required. By way of further
answer, Dr. Behnke was not negligent. To the contrary, at all relevant times, Dr. Behnke met or
exceeded the standard of care and at no time caused or contributed to the injuries as alleged. The
Stipulation of Counsel, filed on January 23, 2008, is hereby incorporated by reference.
WHEREFORE, Defendants, Jennifer Black, Meghan Bouder and Andrew J. Behnke,
M.D., F.A.C.E., demand judgment in their favor and against Plaintiff.
NEW MATTER
57. The facts set forth in the foregoing Answers to Plaintiff's Second Amended
Complaint are incorporated by reference as though fully set forth herein at length.
58. Plaintiff's Second Amended Complaint fails to state any claim upon which relief
can be granted against Answering Defendants.
59. All care and treatment rendered to Plaintiff by the employees, agents, apparent
agents and/or servants of Dr. Behnke was appropriate, reasonable and within the applicable
standard of care.
60. At all times relevant hereto, Dr. Behnke 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.
61. Plaintiff's allegations of negligence against Answering Defendants are without
reasonable basis in fact or medicine and may constitute an abuse of civil process.
62. To the extent that discovery or the evidence at trial may establish that the Plaintiff
was negligent and that such negligence caused or contributed to cause the injuries and damages
of which Plaintiff complains, Answering Defendants expressly reserve the right to assert the
affirmative defenses of contributory/comparative negligence and/or assumption of risk.
63. Answering Defendants are entitled to contribution in accordance with the
Pennsylvania Comparative Negligence Act, 42 P. S. §7102.
64. In the event it is determined that Answering Defendants were negligent with
regard to any of the allegations contained in, and with respect to Plaintiff's Second Amended
Complaint, said allegations being specifically denied, said negligence was superseded by the
intervening negligent acts of other persons, parties and/or organizations other than Answering
Defendants and over whom Answering Defendants had no control, right or responsibility.
65. At all times relevant hereto, Dr. Behnke was a competent and qualified physician
acting in compliance with the applicable standard of care.
66. 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, then the conduct of Answering Defendants was not the legal
cause of such conditions or injuries.
67. Acts or omissions of Dr. Behnke alleged to constitute negligence were not a
factual cause of, and did not contribute to, the injuries and damages alleged in Plaintiff's Second
Amended Complaint.
68. Whatever injuries and damages, if any, were sustained by Plaintiff as averred in
Plaintiff's Second Amended Complaint, were caused in whole or in part by persons or entities
over whom Answering Defendants had no duty to supervise or control.
69. 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.
70. 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.
71. To the extent currently applicable, or to the extent that it may later become
applicable, Answering Defendants plead the Statute of Limitations, 42 Pa. C.S.A. §5524.
72. Answering Defendants assert and incorporate by reference all limits, defenses and
immunities afforded under the Health Care Services Malpractice Act, as amended, 40 P.S. §
1301.101 et seq., and the Medical Care Availability and Reduction of Error Act, 40 P.S. §
1301.101 et seq.
73. Answering Defendants hereby plead the affirmative defense of release.
74. Plaintiff's claim may be barred or limited by the doctrines of res judicata and/or
collateral estoppel.
75. Plaintiff may not recover damages for past medical expenses and/or past lost
earnings incurred to the time of trial to the extent that the loss is covered by a private or public
benefit or gratuity that has been received prior to trial.
76. Future damages for loss of earnings shall be reduced to present value.
77. If there is a judicial determination of the application of Pa. R.C.P. No. 238 in the
within action is constitutional, such possibility being specifically denied, the liability for any
damages imposed under the said rule shall exclude the period of time that Plaintiff failed to
convey a reasonable settlement demand, delayed in responding to any of Defendants' discovery
requests, violated any discovery rules, or caused the delay of trial.
78. Answering Defendants specifically reserve the right to plead hereafter as further
New Matter those additional affirmative defenses, including, without limitation, those set forth in
Pa.R.C.P. No. 1030, that continuing investigation, discovery in accordance with court rules, and
the introduction of evidence at trial may render applicable to claims and causes of action
declared upon Plaintiff in the Second Amended Complaint.
WHEREFORE, Defendants, Jennifer Black, Meghan Bouder and Andrew J. Behnke,
M.D., F.A.C.E., demand judgment in their favor and against Plaintiff.
Date:
Respectfully submitted,
FOULKROD ELLIS
Professional Cor ora
By:
Andre 46 Foul od, Esquire
Attorney I.D. #77394
Michael C. Mongiello, Esquire
Attorney I.D. #87532
2010 Market Street
Camp Hill, PA 17011
(717) 909-7006
VERIFICATION
I, Andrew J. Behnke, M.D., F.A.C.E., hereby certify that I have read the foregoing
Answer and New Matter to Plaintiff's Second Amended Complaint Against Defendants for
Professional Malpractice and Negligence, and that the facts set forth therein are true and correct
to the best of my knowledge, information and belief
This statement and Verification are made subject to the penalties of 18 Pa.C.S.A. §4904,
relating to unsworn fabrication to authorities; I verify that all the statements made in the
foregoing are true and correct and that false statements may subject me to the penalties of 18
Pa.C.S.A. §4904.
Date: S-i2•Ob
AN EW J. BEHNKE, M.D., F.A.C.E.
VERIFICATIO
I, Jennifer Black, hereby certify that I have read the foregoing Answer and New Matter to
Plaintiff's Second Amended Complaint Against Defendants for Professional Malpractice and
Negligence, and that the facts set forth therein are true and correct to the best of my knowledge,
information and belief.
This statement and Verification are made subject to the penalties of 18 Pa.C.S.A. §4904,
relating to unsworn fabrication to authorities; I verify that all the statements made in the
foregoing are true and correct and that false statements may subject me to the penalties of 18
Pa.C.S.A. §4904.
Date: 6
J FER LA K
VERIFICATION
I, Megan Bouder, hereby certify that I have read the foregoing Answer and New Matter to
Plaintiff's Second Amended Complaint Against Defendants for Professional Malpractice and
Negligence, and that the facts set forth therein are true and correct to the best of my knowledge,
information and belief.
This statement and Verification are made subject to the penalties of 18 Pa.C.S.A. §4904,
relating to unsworn fabrication to authorities; I verify that all the statements made in the
foregoing are true and correct and that false statements may subject me to the penalties of 18
Pa.C.S.A. §4904.
Date: ?q V? ? a
MME6AJ B ER
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the foregoing was served upon
counsel of record this _ N *' day of , 2008, by depositing said copy in the
United States Mail at Camp Hill, Pennsylvania, postage prepaid, first class delivery, and
addressed as follows:
Derrek W. Cummings, Esquire
McCarthy, Weisberg, Cummings, P.C.
2041 Herr Street
Harrisburg, PA 17103-1624
FOULKROD ELLIS
Professional Corporation
zj)
Crystal . Nemetz, Secret
??
1...?
_ _'l,.N
?a?
. ; : r, r "__y
, _.
._
_.
r_... ?. a
::t
Derrek W. Cummings, Esquire
Supreme Ct. I.D. #: 83286
McCarthy Weisberg Cummings, P.C
2041 Herr Street
Harrisburg, PA 17103-1624
(717) 238-5707 (Phone)
(717) 233-8133 (Fax)
Counsel for Plaintiff:
Lisa J. Boyer
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
LISA J. BOYER
Plaintiff
V.
JENNIFER BLACK,
MEGHAN BOUDER
NO. 07-6286
CIVIL ACTION - MEDICAL
PROFESSIONAL LIABILITY ACTION
JURY TRIAL DEMANDED
and
ANDREW J. BEHNKE, M.D., F.A.C.E
Defendants
PLAINTIFF'S MOTION TO STRIKE DEFENDANTS'
ANSWER AND NEW MATTER
AND NOW comes Plaintiff, Lisa J. Boyer, by and through her counsel, McCarthy
Weisberg Cummings, P.C., to move this Court to Strike Defendants' Answer and New
Matter as follows:
1. Plaintiff filed her initial Complaint against Defendants Cumberland Valley
Endocrinology Center, LLC (hereinafter referred to as "CVEC"), Meghan Bouder
(hereinafter referred to as "Defendant Bouder") and Defendant Jennifer Black
(hereinafter referred to as "Defendant Black") on October 26, 2007. Plaintiff's Complaint
was endorsed with an appropriate notice to plead.
Counsel for Plaintiff
McCarthy Weisberg Cummings, P.C.
2041 Herr Street
Harrisburg, PA 17103-1624
(717) 238-5707
2. On or about December 1, 2007, Plaintiff's Counsel received Defendants' First Set
of Interrogatories and Request of Documents Directed to Plaintiff (hereinafter referred to
as "Discovery Requests").
3. Plaintiff provided timely responses to Defendants' Discovery Requests.
4. On or about December 3, 2007, Defendants filed Preliminary Objections on the
basis that Defendant CVEC should be removed as a Defendant from Plaintiff's
Complaint.
5. After Plaintiff's Counsel discussed the merits of these Preliminary Objections with
Defendants' Counsel, Plaintiff, in an effort to avoid delay, agreed to remove Defendant
CVEC from this action, and filed an Amended Complaint on December 26, 2007, adding
Andrew J. Behnke, M.D., F.A.C.E. (hereinafter referred to as "Defendant Behnke") as a
Defendant.
6. Despite Plaintiff amending her Complaint to remove Defendant CVEC, Defendants'
Counsel objected to Plaintiff's Amended Complaint.
7. On January 2, 2008, Defendants' Counsel requested that Plaintiff amend her
Complaint a second time and sign a Stipulation discontinuing this action against CVEC,
which Plaintiff through her Counsel agreed to sign.
8. Plaintiff again, in an effort to avoid delay and additional preliminary objections by
Defendants, agreed to amend her Complaint a second time and agreed to the terms of
the Stipulation proposed by Defendants' Counsel.
9. Plaintiff filed her Second Amended Complaint on January 8, 2008.
2
Counsel for Plaintiff
McCarthy Weisberg Cummings, P.C.
2041 Herr Street
Harrisburg, PA 17103-1624
(717) 238-5707
10. Defendants' Counsel continued to object to certain language in Plaintiffs Second
Amended Complaint.
11. In an effort to avoid further delay, Plaintiff's Counsel and Defendants' Counsel
filed an additional Stipulation on or about January 22, 2008, whereby Plaintiff agreed to
strike certain language from her Second Amended Complaint in exchange for
Defendant Behnke consenting to vicarious liability for Defendant Bouder and Defendant
Jennifer Black.
12. On or about February 22, 2008, Plaintiff sent Defendants' Counsel her First Set
of Interrogatories and Request of Documents Directed to Defendants.
13. On or about March 24, 2008, Defendants' Counsel filed a Petition for Status
Conference for the purpose of establishing pre-trial deadlines for this action.
14. On April 2, 2008, this Honorable Court issued an Order setting a Status
Conference for this action on May 29, 2008.
15. On or about April 30, 2008, Plaintiff's Counsel received Answers to Plaintiff's
First Set of Interrogatories and Request for Production of Documents Addressed to
Defendant Behnke.
16. On or about April 27, 2008, Plaintiff's Counsel received a Second Set of
Discovery Requests from Defendants' Counsel.
17. Plaintiff provided timely responses to Defendants' Second Set of Discovery
Requests.
3
Counsel for Plaintiff
McCarthy Weisberg Cummings, P.C.
2041 Herr Street
Harrisburg, PA 17103-1624
(717) 238-5707
18. On or about May 23, 2008, Plaintiff's Counsel received Answers to Plaintiff's First
Set of Interrogatories and Request for Production of Documents Addressed to
Defendant Bouder and Defendant Black.
19. On May 29, 2008, Plaintiff's Counsel and Defendant's Counsel met with the
Honorable J. Wesley Oler, Jr. in chambers to discuss pre-trial deadlines regarding this
action.
20. This Honorable Court issued an Order on June 4, 2008 directing Plaintiff's
Counsel and Defendants' Counsel on as to how this action would proceed to trial.
21. Throughout the course of these pleadings, Plaintiff had not been served with any
responsive pleading prior or subsequent to the June 4, 2008 Order issued in relation to
the Status Conference, nor had Plaintiff received any request from Defendants to
extend the time to respond.
22. Pursuant to Pa. R.C.P. No. 1026(a), Defendants were required to file a
subsequent pleading within twenty (20) days after service of Plaintiff's Second
Amended Complaint, filed with this Honorable Court on January 8, 2008.
23. Assuming five (5) business days receipt through the mail, Plaintiff's Second
Amended Complaint was received by Defendants on January 15, 2008, thus requiring
Defendants to file their responsive pleading on or before February 4, 2008.
24. Pursuant to Pa. R.C.P. No. 1029(b), by failing to provide a responsive pleading to
Plaintiff's Second Amended Complaint, Defendants are deemed to have admitted
Plaintiff's averments.
4
Counsel for Plaintiff
McCarthy Weisberg Cummings, P.C.
2041 Herr Street
Harrisburg, PA 17103-1624
(717) 238-5707
25. On July 21, 2008, Defendants filed an Answer and New Matter in response to
Plaintiffs' Second Amended Complaint.
26. As of the date of this motion, Defendants have not attempted to demonstrate any
just cause for the delay in filing their Answer and New Matter.
27. Plaintiffs have been prejudiced by Defendants' late pleading.
28. Pursuant to Peters Creek Sanitary Authority v Thomas Welch et al., 545 Pa.
309, 314-315, 681 A.2d 167, 170 (1996), "the trial court does not abuse its discretion in
granting a motion to strike an answer even though the moving party has not sought a
default judgment since the failure to seek a default judgment does not act to
automatically extend the period in which to file an answer. When a party moves to
strike a pleading, the party who files the untimely pleading must demonstrate just cause
for the delay. It is only after a showing that just cause has been made that the moving
party needs to demonstrate that it has been prejudiced by the late pleading. Thus, the
trial court does not abuse its discretion in striking a pleading as untimely where it finds
that a party's blatant disregard for the time limits established by the Rules of Civil
Procedure, without just cause for the delay, constitutes an abject indifference to the
Rules."
29. The Honorable J. Wesley Oler, Jr. has previously issued an Order scheduling a
Status Conference and an Order setting pre-trial deadlines in this matter.
30. The concurrence of Defendants' counsel of record was sought and counsel has
not concurred with Plaintiff's Motion to Strike Defendants' Answer and New Matter.
5
Counsel for Plaintiff
McCarthy Weisberg Cummings, P.C.
2041 Herr Street
Harrisburg, PA 17103-1624
(717) 238-5707
WHEREFORE, Plaintiff, Lisa J. Boyer, requests that this Honorable Court strike
Defendants' Answer and New Matter.
Respectfully submitted,
arthX,WeisbrM Cummings, P.C.
Date Derrek W. Cummings, Esq riu
Sup. Ct. I.D. #: 83286
2041 Herr Street
Harrisburg, PA 17103-1624
(717) 238-5707
(717) 233-8133 (FAX)
Attorney for Plaintiff
6
Counsel for Plaintiff
McCarthy Weisberg Cummings, P.C.
2041 Herr Street
Harrisburg, PA 17103-1624
(717) 238-5707
CERTIFICATION OF CONTESTED MOTION
I hereby certify that the full text of this motion and the proposed order has been
disclosed to all parties by electronic communication, and that concurrence to both the
motion and proposed order has not been given by each party, said party being counsel
for Defendants:
Date: ?- z 1 - o
2041 Herr Street
Harrisburg, PA 17103-1624
(717) 238-5707
(717) 233-8133 (FAX)
Andrew H. Foulkrod, Esquire
Foulkrod Ellis, P.C.
2010 Market Street
Camp Hill, PA 17011
(Counsel for Defendants)
By:
Derrek W. Cummings, Esquire
Sup. Ct. I.D. #: 83286
Attorney for Plaintiff
Counsel for Plaintiff
McCarthy Weisberg Cummings, P.C.
2041 Herr Street
Harrisburg, PA 17103-1624
(717) 238-5707
CERTIFICATE OF SERVICE
I hereby certify that I am this day serving a copy of the foregoing Motion To Strike
Defendants' Answer and New Matter upon the person 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, certified, addressed
as follows:
Andrew H. Foulkrod, Esquire
Foulkrod Ellis, P.C.
2010 Market Street
Camp Hill, PA 17011
(Counsel for Defendants)
McCarthy Weisberg Cummings, P.C.
e- Zl - v$'
Date
Derrek W. Cummings, Esquire
Sup. Ct. I.D. #: 83286
2041 Herr Street
Harrisburg, PA 17103-1624
(717) 238-5707
(717) 233-8133 (FAX)
Attorney for Plaintiff
,:.-:?
c.,
E'
, :..?
-r
? , ,?+ ?
r ?, ?-, ,
.
rV .?
,::,
,? ,,
,,
;1
'._r
;?
? ?.3
LISA J. BOYER,
Plaintiff
V.
JENNIFER BLACK,
MEGHAN BOUDER,
and ANDREW J.
BEHNKE, M.D., F.A.C.E., :
Defendants
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION - LAW
NO. 07-6286 CIVIL TERM
ORDER OF COURT
AND NOW, this 10th day of September, 2008, upon consideration of Plaintiffs
Motion To Strike Defendants' Answer and New Matter, a hearing is scheduled for
Monday, December 22, 2008, at 11:00 a.m., in Courtroom No. 1, Cumberland County
Courthouse, Carlisle, Pennsylvania.
/Derrek W. Cummings, Esq.
2041 Herr Street
Harrisburg, PA 17103-1624
Attorney for Plaintiff
4'. drew H. Foulkrod, Esq.
2010 Market Street
Camp Hill, PA 17011
Attorney for Defendants
:rc
(20 c Es •ln'a
P
c}/!c loe
BY THE COURT,
esley r, Jr., .
?t
VIA-VZ»
F; 9 : ! Wd Q 1 d35 NOZ
AdVIQ s :fed 3 iL
k
FOULKROD ELLIS
Andrew H. Foulkrod, Esquire
Attorney I.D. 077394
Michael C. Mongiello, Esquire
Attorney I.D. #87532
2010 Market Street
Camp Hill, PA 17011
Phone: (717) 909-7006
Fax: (717) 909-6955
Attorneys for Defendants:
JENNIFER BLACK, MEGHAN BOUDER
and ANDREW J. BEHNKE. M.D.. F.A.C.E.
LISA J. BOYER,
V.
Plaintiff
JENNIFER BLACK, MEGHAN BOUDER,
and ANDREW J. BEHNKE, M.D., F.A.C.E.,
Defendants
No. 07-6286
JURY TRIAL DEMANDED
ANSWER TO
PLAINTIFF'S MOTION TO STRIKE
DEFENDANTS' ANSWER AND NEW MATTER
AND NOW, come Defendants, Jennifer Black, Meghan Bouder and Andrew J. Behnke,
M.D., F.A.C.E., by and through their counsel, Foulkrod Ellis, and answer Plaintiff's Motion to
Strike Defendants' Answer and New Matter as follows:
1. - 30. Denied. The corresponding averments of Plaintiff's Motion to Strike
Defendants' Answer and New Matter are denied for the reasons set forth in Defendants' Brief in
COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL DIVISION - MEDICAL
PROFESSIONAL LIABILITY ACTION
Opposition filed simultaneously herewith.
Respectfully submitted,
FOULKROD ELLIS
By:
TION
n?Mo, Esquire
94
Esquire
Attorney I.D. No. 87532
Date: September 10, 2008
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the foregoing was served upon
counsel of record this / day of 2008, by depositing said copy in the
United States Mail at Camp Hill, Pennsylvania, postage prepaid, first class delivery, and
addressed as follows:
Derrek W. Cummings, Esquire
McCarthy, Weisberg, Cummings, P.C.
2041 Herr Street
Harrisburg, PA 17103-1624
FOULKROD ELLIS
Professional Corporation
J?
Crystal L. Nemetz, Secret
co
-v t ? rn
4
LISA J. BOYER,
Plaintiff
V.
JENNIFER BLACK,
MEGHAN BOUDER,
and ANDREW J.
BEHNKE, M.D., F.A.C.E., :
Defendants
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION - LAW
NO. 07-6286 CIVIL TERM
ORDER OF COURT
AND NOW, this 23`d day of December, 2008, upon consideration of Plaintiffs
Motion To Strike Defendants' Answer and New Matter, and following a proceeding held
on December 22, 2008, the motion is denied.
Derrek W. Cummings, Esq.
2041 Herr Street
Harrisburg, PA 17103-1624
Attorney for Plaintiff
Michael C. Mongiello, Esq.
,,,,Andrew H. Foulkrod, Esq.
2010 Market Street
Camp Hill, PA 17011
Attorneys for Defendants
:rc
1.?0 ? ES rn? t l£c?
P
BY THE COURT,
J
J. W ey Oler;., .
LISA J. BOYER, IN THE COURT OF COMMON PLEAS OF
Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA
V.
CIVIL ACTION - LAW
JENNIFER BLACK, MEGHAN
BOUDER, and ANDREW J.
BEHNKE, M.D., F.A.C.E.,
Defendant 07-6286 CIVIL TERM
ORDER OF COURT
AND NOW, this 22nd day of December, 2008, upon
consideration of Plaintiff's Motion To Strike Defendant's Answer
and New Matter, and following a proceeding held on this date, the
record is declared closed and the matter is taken under advisement.
By the Court,
/erek W. Cummings, Esquire
2041 Herr Street
Harrisburg, PA 17103-1624
For the Plaintiff
/Michael C. Mongiello, Esquire
Andrew H. Folkrod
2010 Market Street
Camp Hill, PA 17011
For the Defendants
pcb
L.G? l'P a'f't a`t? Lei-,
P
/zp r/D?
? ? .F'' 1,
t? ?? ?
?i IL
r ti 1
LISA J. BOYER,
v.
Plaintiff
JENNIFER BLACK, MEGHAN BOUDER,
and ANDREW J. BEHNKE, M.D., F.A.C.E.,
Defendants
COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY,
PENNSYLVANIA
CIVIL DIVISION - MEDICAL
PROFESSIONAL LIABILITY ACTION
No. 07-6286
JURY TRIAL DEMANDED
PRAECIPE TO DISCONTINUE ACTION WITH PREJUDICE
PURSUANT TO PA.R.C.P. NO. 229
TO THE PROTHONOTARY:
Kindly discontinue this action with prejudice pursuant to Pa.R.C.P. No 229.
..--McCARTHIV, ISBERG, CUMMINGS, P.C.
e 9
Date: B
Y•
Derrek . Cummings, squir
.2041 Herr Street
Harrisburg, PA 17103-1624
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the foregoing was served upon
JA_ counsel of record this day of I/ 009, by depositing said copy in the
United States Mail at Camp Hill, Pennsylvania, postage prepaid, first class delivery, and
addressed as follows:
Derrek W. Cummings, Esquire
McCarthy, Weisberg, Cummings, P.C.
2041 Herr Street
Harrisburg, PA 17103-1624
FOULKROD ELLIS
Professional Corporation
Oz)az&&??
Crystal L. emetz, Secret
r
r°-
ca '`7 C ,