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HomeMy WebLinkAbout01-6391IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA PATRICIA BETTGER, Plaintiff, SAMBHU N. KUNDU, M.D. and OBSTETRICS AND GYNECOLOGY, INC., Defendants. CIVIL DIVISION Code: COMPLAINT IN CIVIL ACTION Filed On Behalf Of: Patricia Bettger, Plaintiff NOTICE TO DEFENDANTS You are hereby notified to file a written response to the enclosed Complaint within twenty (20) days from service hereof or a judgment may be entered {)AVID C. MARTIN, JR. PATTI COLLINS LERDA Counsel of Record for This Party: Patti Collins Lerda, Esq. Pa. ID No. 56492 MARTIN & LERDA 2006 Noble Street Pittsburgh, PA 15218 412/271-6800 JURY TRIAL DEMANDED IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL DIVISION PATRICIA BETTGER, ) ) Plaintiff, ) ) ) No. ot- ; ctf V. ) SAMBHU N. KUNDU, M.D. and ) OBSTETRICS AND GYNECOLOGY, ) INC., ) ) Defendants. ) NOTICE TO DEFEND YOU HAVE BEEN SUED IN COURT. If you wish to defend against the claims set forth in the following pages, you must take action within TWENTY (20) days after this complaint and notice are served, by entering a written appearance personally or by attorney and filing in writing with the court your defenses or objections to the claims set forth against you. You are warned that if you fail to do so the case may proceed without you and a judgment may be entered against you by the court without further notice for any money claimed in the complaint or for any other claim or relief requested by the plaintiff. You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. LEGAL REFERRAL SERVICE THE CUMBERLAND COUNTY BAR ASSOCIATION 2 LIBERTY AVENUE CARLISLE, PA 17013 (717) 249-3166 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL DIVISION PATRICIA BETTGER, Plaintiff, SAMBHU N. KUNDU, M.D. and OBSTETRICS AND GYNECOLOGY, INC., Defendants. COMPLAINT IN CIVIL ACTION AND NOW Comes the Plaintiff, Patricia Bettger, by and through her attorney, Patti Collins Lerda, Esquire, and the firm of Martin & Lerda, and files the following Complaint in Civil Action, averring the following in support thereof: 1. The Plaintiff, Patricia Bettger, is an individual residing at 3825 Carriage House Drive, Camp Hill, Pennsylvania 17011, hereinafter referred to as "Plaintiff." 2. The Defendant, Sambhu Kundu, M.D., is an individual resident of the Commonwealth of Pennsylvania and is duly licensed to practice medicine in the Commonwealth of Pennsylvania, having his principal office located at 890 Poplar Church Road, Camp Hill, Pennsylvania 17011, hereinafter referred to as "Defendant Doctor." 3. The Defendant, Obstetrics and Gynecology, Inc., is a Pennsylvania corporation, and at all times material hereto was duly licensed and authorized to transact business in the Commonwealth of Pennsylvania, having its principal place of business located at 890 Poplar Church Road, Camp Hill, Pennsylvania 17011, hereinafter referred to as "Defendant Corporation." 4. At all times material and relevant hereto, Defendant Doctor was associated with and/or provided medical services to Plaintiff through Defendant Corporation, and at all such times was then and thereabout acting within the course and scope of his employment or agency with said Defendant Corporation. 5. At ail times material and relevant hereto, Defendant Corporation acted by and through its/their agents, servants, workmen or employees who were then and thereabout acting within the course and scope of their employment with said Defendant, one of whom may have been or was Defendant Doctor herein and Dr. William F. Carr. 6. At all times material and relevant hereto, Defendant Corporation was engaged, through its agents, servants, employees and those staff personnel hereinafter identified, in rendering professional medical care to the public, and thereby held itself out to the public generally, and to the Plaintiff specifically, as being skilled in the practice of gynecological medicine and had the responsibility of providing appropriate and adequate medical care to the Plaintiff in accordance with the prevailing standards of medical practice. 7. At all times material and relevant hereto, said Defendant Doctor held himself out to the public, and to Plaintiffparticularly, as a physician in gynecological medicine and related medical care, duly qualified to practice medicine in the Commonwealth of Pennsylvania and thoroughly trained and knowledgeable in the field of gynecology. 8. At all times material and relevant hereto, Dr. William F. Can' was associated with and provided medical services to Plaintiffthrough Defendant Corporation, and at all such times was then and thereby acting with the course and scope of his employment or agency with said Defendant. 9. As a direct result of the aforesaid, said Defendants accepted responsibility for the care and treatment of Plaintiff and, in doing so, understood and assumed a duty to her to render competent, proper, adequate and appropriate medical care and treatment, and to take appropriate preventative and curative measures to treat Plaintiff and to avoid harm to her. 10. At all times material hereto, all acts of agents, servants and employees of Defendant Corporation within the scope of their agency or employment by operation of law are imputed to Defendant Corporation. 11. On or about November 21, 1997, Plaintiff consulted Dr. William F. Carr at the office of Defendant Corporation for the purpose of obtaining medical care for complaints of redness, crusting and irritation of her left nipple area. Plaintiff also reported noticing a bloody discharge on her bra. At that time, Dr. Cart conducted a breast examination of Plaintiff and prescribed an ointment for the nipple area. 12. On or about December 17, 1997, Plaintiff was again examined by Dr. Carr at the Defendant Corporation office, complaining of breast soreness and redness of the left nipple. At that time, Dr. Carr ordered a diagnostic mammogram of the Plaintiff. 13. On or about October 23, 1998, Plaintiff contacted Defendant Corporation's office with complaints of left breast soreness, nipple discharge as bloody and hardness underneath the nipple, and requested a mammogram be ordered. -3- 14. On or about October 23, 1998, Defendant Doctor examined Plaintiffs breasts and found asymmetry of the left nipple with reddening, noting Plaintiff s report of a bloody discharge of the left nipple two weeks prior and soreness. 15. On or about October 23, 1998, Defendant Doctor performed an ultrasound study in Defendant Corporation's office and told Plaintiff she had multiple cysts in her left breast. 16. On or about October 26, 1998, Plaintiff had a mammogram performed which showed two new nodules in her left breast. 17. On or aboutNovember 10, 1998, Defendant Doctor performed a fine needle aspiration of Plaintiff's left breast, which showed fibrocystic disease. 18. On or about December, 14, 1998, Plaintiff was examined by Defendant Doctor and again complained of redness and soreness in her left breast. At that time, Defendant Doctor performed an ultrasound of Plaintiff s left breast and told Plaintiff she had cysts in her breast and prescribed Vitamin E cream. 19. On or about January 25, 1999, Plaintiff was examined by Defendant Doctor and was again told she had cysts in her left breast. 20. On or about May 3, 1999, Plaintiffconsulted Defendant Doctor for medical treatment and was examined by Defendant Doctor. 21. On or about February 7, 2000, Plaintiff was examined by Defendant Doctor. She continued to complain of redness and irritation of the left nipple. Defendant Doctor referred Plaintiff for a surgical opinion regarding the left nipple. 22. On or about February 16, 2000, Plaintiff had a surgical biopsy of her left nipple performed by Dr. Salvatore A. Parascandola at Holy Spirit Hospital. -4- 23. On March 9, 2000, Dr. Parascandola informed the Plaintiff that her biopsy revealed Paget's disease, breast cancer of her left breast. 24. Plaintiff had clear signs of Paget's disease on or about November 21, 1997, and thereafter, which were not recognized by Defendant Doctor and were not timely diagnosed. 25. Defendants' continuously reassured Plaintiffduring her office visits that there was no real problem with her breast and never told her she could have signs of breast cancer. 26. As a result of Defendants' actions, Plaintiff has suffered the injuries and damages herein. 27. As a result of the delayed diagnosis and treatment of breast cancer, Plaintiff had a mastectomy of her left breast on June 15, 2000, and reconstructive surgery. 28. As a result of the delayed diagnosis and treatment of breast cancer, Plaintiff is at an increased risk of developing recurring cancer in the future. 29. As a direct and proximate result of the aforesaid carelessness and negligence of the Defendants, jointly and/or severally, Plaintiff suffered: (a) Severe, painful and permanent injuries; (b) Scarring and permanent disfigurement of her left breast; (c) Removal of left breast; (d) (e) (f) (g) (h) Medical expenses and costs past and into the future; Impairment of general health, strength and vitality; Lost earnings; Emotional and mental trauma, anguish and humiliation, any or all of which may be permanent in nature and continuing indefinitely into the future; Loss of the enjoyment of some of life's pleasures and activities; -5- 30. herein. 31. (i) O) Additional surgical procedures and medical treatment; and Pain and suffering past and into the future. COUNT I PATRICIA BETTGER VS. SAMBHU KUNDU, M.D. Plaintiff incorporates Paragraphs 1 through 29 as if set forth more fully verbatim Defendant Doctor was negligent in the following particulars: (a) In failing to recognize clinical signs and symptoms of breast cancer in a timely manner; (b) In failing to order appropriate diagnostic tests and procedures to diagnose breast cancer in a timely manner; (c) In failing to refer Plaintiffto a surgeon or specialist in a timely manner to seek advice or consultation regarding Plaintiff s condition; (d) In failing to inform Plaintiff that her symptoms could indicate breast cancer; (e) In failing to diagnose Plaintiff s breast cancer when Defendant should have recognized signs of Paget's disease several years before Plaintiff s diagnosis was made so that treatment could have begun earlier; (f) In failing to heed and investigate Plaintiff s complaints of left breast pain, redness, irritation and nipple discharge, assuring Plaintiff she did not have a serious medical condition; -6- (g) In failing to review and evaluate Plaintiff s medical records for ahistory of left breast pain, irritation, redness and nipple discharge upon Defendant's initial consultation and thereafter; (h) In causing a delay in medical treatment of Plaintiff's breast cancer, allowing the cancer to spread in Plaintiffs body; (i) In failing to avail himselfofand~or utilize available and pertinent information, medical records and diagnostic tests pertaining to Plaintiff's medical condition; (j) In failing to timely discover his aforenoted careless and negligent conduct and/or to timely diagnose or respond to the consequences and significance thereof; and (k) Providing medical care and treatment below the accepted standard of care for treatment. WHEREFORE, Plaintiffdemands judgment against Defendant Doctor, jointly and severally, in an amount in excess of $25,000.00. COUNT II PATRICIA BETTGER VS. OBSTETRICS AND GYNECOLOGY, INC. 32. herein. 33. Plaintiff incorporates Paragraphs 1 through 31 as if set forth more fully verbatim Defendant Corporation is negligent in the following particulars: (a) Defendant Doctor, Dr. Carr and employees failed to timely diagnose and treat Plaintiff's breast cancer; -7- (b) (c) (d) Defendant Doctor, Dr. Carr and employees failed to order appropriate diagnostic tests and procedures to diagnose Plaintiff,s breast cancer in a timely manner; Defendant Doctor, Dr. Carr and employees failed to refer Plaintiff to a surgeon/specialist to seek advice or consultation regarding Plaintiffs condition in a timely manner; Failed to monitor the competency of its medical staff and employees, the adequacy of patient treatment and practices relating to breast cancer diagnosis and treatment; (e) Failed to assure that Defendant Doctor, Dr. Carr and employees that were associated with the aforementioned care and treatment of Plaintiffwem aware of and/or properly investigated Plaintiff, s continued complaints relating to her left breast; and (f) Failed to timely inform the Plaintiff that her complaints relating to her left breast could be a form of breast cancer. WHEREFORE, Plaintiff demands judgment against Defendant Corporation, jointly and severally, in an amount in excess of $25,000.00. Respectfully submitted, Dated: Patti Collins Lerda Attorney for Plaintiff -8- VERIFICATION I, PATRICIA BETTGER, verify that the statements made in the foregoing Complaint in Civil Action are true and correct. I understand that false statements herein are made subject to the penalties of 18 Pa. C.S. §4904, relating to unsworn falsification to authorities. FOULKROD ELLIS PROFESSIONAL CORPORATION 1800 Linglestown Road - Suite 305 Harrisburg, Pennsylvania 17110 Telephone: [717] 213-4200 Fax: [717] 213-4202 PATRICIA BETTGER, Plaintiff SAMBHU N. KUNDU, M.D., AND CENTRAL PENNSYLVANIA OBSTETRICS-GYNECOLOGY, INC., Defendants Attorney for Defendants: Sambhu N. Kundu, M.D., and Central Pennsylvania OB-GYN. Inc. : IN THE COURT OF COF~40N PLEAS : OF CUMBERLAND COUNTY, : PENNSYLVANIA : : NO. 01-6391 : CIVIL ACTION - LAW : : JURY TRIAL DEMANDED PRAECIPE TO ENTER APPEARANCE TO: PROTHONOTARY OF CUMBERLAND COUNTY, PENNSYLVANIA Kindly enter our appearance as counsel on behalf of Defendants, Sambhu Kundu, M.D., and Central Pennsylvania Obstetrics-Gynecology, Inc., in the above captioned matter. By: Respectfully submitted, FOULKROD ELLIS PROFESSIONAL CORPORATION Leigh A.J.~li~,s~~ire Attorney I.~. No. 53229 CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing PRAECIPE TO ENTER APPEARANCE was served upon counsel of record this 27TH day of November, 2001 by depositing said copy in the United States Mail at Harrisburg, Pennsylvania, postage prepaid, first class delivery, and addressed as follows: Patti Collins Lerda, Esquire Martin & Lerda 2006 Noble Street Pittsburgh, PA 15218 (412) 271-6800 FOULKROD ELLIS PROFESSIONAL CORPOP~ATION Beth~. ~orbes, Paralegal SHERIFF'S RETURN CASE NO: 2001-06391 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAiqD BETTGER PATRICIA VS KUNDU SAMBHU N ME ET AL - REGULAR JASON VIORAL , Sheriff or Deputy Sheriff of Cumberland County, Pennsylvania, who being duly sworn according to law, says, the within COMPLAINT & NOTICE was served upon KUNDU SAMBHU N the DEFENDkNT , at 1335:00 HOURS, at 890 POPLAR CHURCH ROAD CAMP HILL, PA 17011 BONNIE KUNDU, WIFE on the t4th day of November , 2001 by handing to a true and attested copy of COMPLAINT & NOTICE together with and at the same time directing Her attention to the contents thereof. Sheriff,s Costs: Docketing 18.00 Service 9.75 Affidavit .00 Surcharge 10.00 .00 37.75 Sworn and Subscribed to before me this ~'~ day of ~l~c~_, ~ A.D. / ! Prothonotary ~ So Answers: R. Thomas Kline 11/15/2001 MARTIN & LERDA /~t~h~riff SHERIFF' S RETURN - REGULAR CASE NO: 2001-06391 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND BETTGER PATRI CIA VS KUNDU SAMBHU N ME ET AL JASON VIORAL Sheriff or Deputy Sheriff of Cumberland County, Pennsylvania, who being duly sworn according to says, the within COMPLAINT & NOTICE was served upon OBSTETRICS AND GYNECOLOGY INC the DEFENDANT at 1335:00 HOURS, at 890 POPLAR CHURCH ROAD CAMP HILL, PA 17011 on the 14th day of November , 2001 by handing to BONNIE KUNDU, RN a true and attested copy of COMPLAINT & NOTICE together with and at the same time directing Her attention to the contents thereof. Sheriff's Costs: Docketing 6.00 Service .00 Affidavit .00 Surcharge 10.00 .00 16.00 Sworn and Subscribed to before me this 2d ~ day of ~ ~ A.D. ' ~rothonotary ,, r ~ So Answers: R. Thomas Kline 11/15/2001 MARTIN & LERDA /~u~y S~eriff PATRICIA BETTGER, Plaintiff Vo SAMBHU N. KUNDU, M.D., AND CENTRAL PENNSYLVANIA OBSTETRICS-GYNECOLOGY, INC., Defendants IN THE COURT OF C05~40N PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 01-6391 CIVIL ACTION - LAW JURY TRIAL DEMANDED ORDER AND NOW this day of , 2001, upon consideration of the Preliminary Objections to Plaintiff's Complaint of Defendants, Sambhu N. Kundu, M.D., and Central Pennsylvania Obstetrics-Gynecology, Inc., and any response thereto, it is hereby ORDERED and DECREED that: (1) subparagraphs 31(i), (j) and (k) are dismissed with prejudice; (2) Plaintiff's cause of action against Central Pennsylvania Obstetrics-Gynecology, Inc., for direct corporate negligence is dismissed with prejudice; and (3) subparagraphs 33(a), (b), and (c), are dismissed with prejudice, or in the alternative, must be plead with more specificity. BY THE COURT: Jo FOULKROD ELLIS PROFESSIONAL CORPORATION 1800 Linglestown Road - Suite 305 Harrisburg, Pennsylvania 17110 Telephone: [717] 213-4200 F~n.x: [717] 2134202 PATRICIA BETTGER, Plaintiff SAMBHU N. KUl~DU, M.D., AND CENTRAL PENNSYLVANIA OBSTETRICS-GYNECOLOGY, INC., Defendants Attorney for Defendants: Sambhu N. Kundu, M.D., and Central Pennsvlvani~QB-GYl~, Inc. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 01-6391 CIVIL ACTION - LAW JURY TRIAL DEMANDED PRELIMINARY OBJECTIONS TO PLAINTIFF'S COMPLAINT OF DEFENDANTS, SAMBHU N. KUNDU, M.D. AND CENTP~kL PENNSYLVANIA OBSTETRICS-GYNECOLOGY, INC. AND NOW come Defendants, Sambhu N. Kundu, M.D. and Central Pennsylvania Obstetrics-Gynecology, Inc., ("Objecting Defendants"), by and through their counsel, Foulkrod Ellis, P.C., and assert preliminary objections to Plaintiff's Complaint as follows: 1. Plaintiff initiated this medical professional liability action alleging a delay in diagnosis of breast cancer by way of Complaint filed on or about November 9, 2001. (A copy of Plaintiff's Complaint is attached hereto as Exhibit "A.") I. PRELIMIARY OBJECTION IN THE NATURE OF A MOTION TO STRIKE SUBPA~AGRPARS 31(i), (j), and (k) PURSUANT TO Pa.R.C.P. 1028(a) and Pa.R.C.P. 1019(a). 2. Paragraph 1 is incorporated by reference as fully set forth herein at length. 3. The following subparagraphs of paragraph 31 constitute vague, boilerplate allegations which should be stricken from Plaintiff's Complaint with prejudice: (i) In failing to avail himself of and/or utilize available and pertinent information, medical records and diagnostic tests pertaining to Plaintiff's medical condition; (j) In failing to timely discover his aforenoted careless and negligent conduct and/or timely diagnose or respond to the consequences and significance thereof; and (k) Providing medical care and treatment below the accepted standard of care for treatment. 4. Pa.R.C.P. 1019(a) requires a Plaintiff to state in his or her Complaint, in concise and summary form, the material facts upon which a cause of action is based. 5. In Connor v. Allegheny General Hosp., 461 A.2d 600 (Pa. Su~er 1983), the Supreme Court of Pennsylvania placed the onus on defendants to preliminarily object to all "catchall" language which may allow a Plaintiff to subsequently introduce new theories of negligence and new causes of action well after the statute of limitations has run. Id. at 603, n. 3. 6. This Honorable Court in Winters v. Loner~an, 36 Cumb. 98 (1985), interpreted Connor to mean that a defendant should not, by virtue of boilerplate averments be subject to defend against any conceivable theory of negligence. See also Estate of Evans v. Simmers. et al., 42 Cumb. 184 (1992). (emphasis added). 2 7. Courts have also recognized that Pa.R.C.P. 1019(a) must be applied even more strictly in medical malpractice actions. Mikula v. Harrisburg Polyclinic Hosp., 58 D. & C. 2d 125 (C.P. Dauphin County, 1972). 8. The above-cited allegations of negligence constitute vague, boilerplate averments in the nature of mere "Notice Pleading" which Pennsylvania has clearly rejected in adopting a requirement of "Fact Pleading" in Pa.R.C.P. 1019(a) and Pa.R.C.P. 1028(a) (3). These allegations of negligent acts or omissions could be asserted against any healthcare provider or medical doctor in any medical malpractice action, and therefore, do not give Objecting Defendants sufficient notice to prepare an adequate defense. 9. These overly-broad, boilerplate allegations of negligence are insufficient in that they fail to apprise Objecting Defendants of the tortious conduct which Plaintiff asserts. See Dibble v. Penn State Geisin~er Clinic, 42 D&C 4th 225 (Lackawanna C.P. 1999). Absent specific acts of negligence, Objecting Defendants have not been adequately provided with the facts upon which Plaintiff's claim is based and thus Objecting Defendants are not able to adequately prepare a defense to such allegations. 10. The above-cited boilerplate allegations of negligence would allow Plaintiff to later amend her Complaint well after the statute of limitations has run to add new allegations of negligence not originally plead, thereby prejudicing Objecting Defendants from preparing a defense of the instant matter. 11. The above-cited allegations are further prejudicial to Objecting Defendants inasmuch as these allegations may result in the waiver of various defenses and objections pursuant to Pa.R.C.P. 1032. WHEREFORE, Defendants, Sambhu N. Kundu, M.D. and Central Pennsylvania Obstetrics-Gynecology, Inc., respectfully request that this Honorable Court enter an order dismissing with prejudice subparagraphs 31(i), (j), and (k) from Plaintiff's Complaint. II. PLAINTIFF HAS NOT STATED A CAUSE OF ACTION AGAINST CENTP~AL PENNSYLVANIA OBSTETRICS-GYNECOLOGY, INC., ON A THEORY OF CORPORATE NEGLIGENCE PURSUANT TO THOMPSON V. NASON HOSP,, 591 A.2d 703 (Pa. 1991). 12. Paragraphs 1 through 11 are incorporated by reference as fully set forth at length. 13. In paragraph 33 of her Complaint, Plaintiff alleges that Central Pennsylvania Obstetrics-Gynecology, Inc., was negligent in the following particulars: (a) Defendant Doctor, Dr. Carr and employees failed to timely diagnose and treat Plaintiff's breast cancer; (b) Defendant Doctor, Dr. Carr and employees failed to order appropriate diagnostic tests and procedures to diagnose Plaintiff's breast cancer in a timely manner; (c) Defendant Doctor, Dr. Carr and employees failed to refer Plaintiff to a surgeon/specialist to seek advice or consultation regarding Plaintiff's condition in a timely manner; 4 (d) Failed to monitor the competency of its medical staff and employees, the adequacy of patient treatment and practices relating to breast cancer d±agnosis and treatment; (e) Failed to assure that Defendant Doctor, Dr. Carr and employees that were associated with the aforementioned care and treatment of Plaintiff were aware of and/or properly investigated Plaintiff's continued complaints relating to her left breast; and (f) Failed to timely inform the Plaintiff that her complaints relating to her left breast could be a form of breast cancer. 14. However, there is no Pennsylvania appellate authority for extending the theory of direct corporate liability set forth in Thompson v. Nason HOSD., 591 A.2d 703 (Pa. 1991), to include medical professional corporations. 15. Although efforts by Objecting Defendants to locate case law from this Honorable Court proved to be unfruitful, both the federal courts and other Pennsylvania courts of common pleas have consistently declined to apply ThomDson's theory of direct corporate liability to non- hospital or non-H/~O defendants. See Milan v, American Vision Ctr., 34 F.Supp.2d 279 Judson, 119 Dauph. 366 (2000); Geisin~er Clinic, 98 CV 2281, (E.D. Pa. 1998); Dowhouer v. Dibble v. Penn State (C.P. Lackawanna); Brewer v. Geisin~er Clinic, PICS Case No. 00-0686 (C.P. Lackawanna March 31, 2000); Remshifskv v. Kraus, No. 1845 Civil 1992 (C.P. Monroe); Paul v. B~r~on, Action No. 2000-530, (C.P. Franklin). 16. Furthermore, Central Pennsylvania Obstetrics- Gynecology, Inc., did not render any medical or surgical or professional services to Plaintiff. Under the Pennsylvania Medical Practice Act of 1985, 63 P.S., §422.10 et seq., only an individual person may be licensed as medical doctor to practice medicine and surgery. At no time was Central Pennsylvania Obstetrics-Gynecology, Inc., licensed as a medical doctor and Central Pennsylvania Obstetrics- Gynecology, Inc., did not in fact have the right to supervise, direct or control the manner in which Dr. Kundu provided professional services to Plaintiff. WHEREFORE, Defendants, Sambhu N. Kundu, M.D. and Central Pennsylvania Obstetrics-Gynecology, Inc., respectfully request that this Honorable Court enter an order dismissing with prejudice Plaintiff's cause of action against Central Pennsylvania Obstetrics-Gynecology, Inc., for direct corporate negligence. III. AVERMENTS IN SUBPAR~GP~APHS 33(a), (b), AND (c) OF PLAINTIFF'S COMPLAINT CONTRAVENE THE IDENTITY REQUIREMENT OF Pa.R.C.P. 1029. 17. Paragraphs 1 through 16 are incorporated by reference as fully set forth at length. 18. In paragraphs 33(a), (b) and (c) of her Complaint, Plaintiff alleges agency without identifying which individuals are allegedly Objecting Defendants' employees. 19. Pa.R.C.P. 1029 requires that averments of agency must by denied specifically or they will deemed admitted. 20. In order to comply with the provisions of Rule 1029, Objecting Defendants must know the identity of the individuals who are alleged to be their employees. Willin~er v. Mercy Catholic Medical Center of Southeast~r~ Pennsylvania, 362 A.2d 280 (Pa. Super. 1976), affirmed, 393 A.2d 1188 (Pa. 1978) 21. If the allegations set forth in subparagraphs 33(a), (b), and (c) are allowed to remain, Objecting Defendants would not be able to specifically deny agency, and therefore, agency would be deemed admitted. WHEREFORE, Defendants, Sambhu N. Kundu, M.D. and Central Pennsylvania Obstetrics-Gynecology, Inc., respectfully request that this Honorable Court enter an order dismissing with prejudice subparagraphs 33(a), (b), and (c), or in the alternative, direct Plaintiff to file a more specific pleading addressing the identity of the unnamed individuals referenced within these subparagraphs. By: Respectfully submitted, FOULKROD ELLIS PROFESS I~N~ CORPOP~ATION Aar6~ f ~ayman, Esquire Att~ I.D. No. 85651 7 Exhibit A IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIl. DIVISION Code: COMPLAINT IN CIVIL ACTION Filed On B~.b-if Of.' Patricia Bett$er, PJaintiff NOTICE TO DEFENDANTS You arc hereby notified to file · written response to the enclosed Complaint · ~dthin t~ent~ (20) da~s from s~rvice hereof or a judp~ncnt may be entered PATTI COLLINS LBRDA Cour~el of Record for This Party: Pard Collins Lcrda, E.~. Pa. ID No. S6492 MARTIN & LERDA 2006 Noble Street Piuzburgh, PA 15218 412/271-6500 JURY TRIAL DEMAb]D~I) ~n T~mtlmm~ ~. i ~Fe untD ~M n~ hano IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, pENNSYLVANIA CIVIL DIVISION pATRICIA BE'I'TGER, Plah'~iff, ~. SAMBHU N. IOJ~DU, M.D. and OBSTETRICS AND GYNECOLOGY, INC., Defendants. No. YOU HAV~ BEEN SUED IN COURT, Il*you wish m defend against tho claims set forth in the following pages, you m~t 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 thc court your defenses or ob]serious to the claims set forth against you. You are warned that Jr Y°u rnjl to do so the case may proceed without you and a judgment may be tumid against you by the court without further notice for uny money chimed in thc complaint or for any other claim or relier requested by the plaintiff. You may lose money or property or other rights imperinnt to you. YOU SHOULD TAKE THIS pAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFI~ORD ONE, GO TO OR TELEPHONE THE OYp'iCE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP, LEGAL HEFERRAL SERVICE THE CUMBERLAND COUNTY BAR A~OCIATION 2 LIBERTY IVI~NUE CARLISLE. PA 17013 (?r/) 249-3166 ~0U-15-2~i i4:45 5589884 96~. P.02 FROM:O~ c.y~ I~ 717-761-395G T0: 7,J -'~4 PaGE: 84 IN THE COURT OF COMNION PLEAS OF CUMBERLAND COUNTY, PENNSYI.VAN]A CIVIL DIVISION PATRICIA BETTGF.,R. Pl~ntiff, v. SAM~HU N. KUNDU, M.D. and OBSTETRICS AND GYNECOLOGY, 1NC., Defendants. NO. COMPLAINT IN CIVIL ACTION AND NOW Comes thc Plaintiff, Pairicia Bgttger, by and throush her attorney, Patti CoUim Lerda, Esquire, and the firm of Martin & Lerda, and files the following Complaint in Civil Action, averring thc followin8 in s~pport thereof: 1. The Plaintiff, Patricia Bettger, is an individual residin8 at 3825 Can'ia~e Hou,~ Drlve, Camp Hill, Pennsylvania 17011, herinafter referred to as "Plaintiff." 2. The Defendant, Sambhu Kundu, M.D.,is an individual resident of the Commonwealth of Penmylvania and is duly licensed to practice medicine in the Commonwealth of Penn,sylvania, h/inn bis principal office located at 890 Pop[ar Church Road, Camp Hill, Pennsylvania 17011, hereinafter referred to as "Defandant Doctor." NOU-15-200:L 14:46 5589804 96Y. P.0;3 '.5 B1 10::~4 7~.7-7/~1 -~'95~ TO.' :3. The Defendant, Obstetrics end OynccoloD,, Inc., is a Pennsylvania corporal/on, end et ell times material hereto was du/y licensed end authorized to transact bu.~iness in the Commonwealth of PennsTIvanla, having it~ principal place o/'business located et! 890 Poplar Church Road, Camp Hill, Pennsylvania ! 701 !, hereina~er re/erred co n~ "Defendant Corporation." 4. At all times mater/el and relevant hereto, Defcndam Doctor was assoclami with and/or provided medical services to Plaintiff-through Defendant Corporation, and et all such times was ~hen end thereabout acting with/n the course and scope of his emplo~'ment or agency with seed Defendan! Corporat/on. 5. At all times materiel and relevant hereto, Dcfcndant Corporation acted by and through it~/their agcnt~, servants, worluncn or employees who were then and thereabout acting within the course and scope of their employment with said Defendant, eno of whom may have bean or was Defendant Doctor herein and Dr. William P. Carr. 6. At ell times material and relevant hereto, Defendant Corporation was engaged, through its agents, servants, employees and those staffpersonne] hereinafter identified, in rcndcrlng professional medical cam to the public, and thereby held itself out to the public generally, and to the Plaintiff specifically, ~ being skilled in the practice of g),necologicee medicine and had the responsibility of providing appropriate and adequate medical care to the Plaintiff-in accordance with the prevailing standards of medical practice. 7. At all times material and relevant hereto, said Defendant Doctor held himself out to the public, and to Plaintiff-particularly, ns a physician in gynecological medicine and related mod/cee care, duly qualified m practice mcdicinc in the Commonwealth of Pennsylvania and thoroughly trained and knowledgeable in the field of gynocology. -2- 5 01 10-'14 Fl~O~q:r~ ~ I~. .\ 8. At all times material and relevant hereto, Dr. William F. Car was associated with and provided medical services to Plalntiffthrough Defendant Corporation, and at all a'~,h times was then end thereby acting with thc c. omc etd scope of his employment or agency w~th said Defendant. 9. As a direct result of the aJ'oresaid~ said Defendants accepted responsibility for tho care and treatment of Plaintiff and, in doing so, understood end assumed a duty to her to render competent, proper, adequate end appropriate medical care and treatment, and to take appropriate preventative and curative measu~a to treat Plaintiffand to avoid harm to her. 10. At all times material hereto, all acts of agents, servants and employees of Defendant Corporation within the scope of their agency or employment by operation of law are imputed to Dcfendent Corlaoration, ll. On or about November 21, 1997, lalalntiffconsulted Dr, William F. Cart at the office of Defendant Corporation for thc purpose of obtaining medical care for complaints of redness, crusting and irritatioo of her left nipple area. Plaiotiffalso reported noticing a Moody discharge on her bra. At that time, Dr. Car conducted a breast examination of Plnintiffend prescribed en ointment for the nipple area. 12. On or about December 17, 1997. Plaintiff was again examined by Dr. Cart at the Defendant Corporation office, complaining of breast soreness and redness of thc left nipple. At that time, Dr. Can' ordered a diagnostic msmmogram of the Plaintiff. 13. On or about October 23,19~.}8, p]alntiffcontacted Defendant Corporation,s office with complalnt~ of left breast ~oreness, nipple discharge as bloody and hardness underneath the nipple, and requested a mana~o~am be ordered. -3- NOU-15-2001 14:46 5589004 96Y. P,05 717-762-~95B T0:7},~56~04 PI:>~E:07 14. On or about October 23, ! 998, Defendant Doctor examined Plaintiff's breasts and f'ound asynu~etry of the left nipple with reddening, noting Plaintiff's report of a bloody discharge of the left nipple two weeks prior and soreness. 15. On or about October 23, 1998, Defendant Doctor performed an ultrasound study in Defendant Corporation's off'icc and told Plaintiff.she had multiple cysts in her left breast. 16. On or about October 26, 1998, Plaintiff.bed a mammogram performed which showed two new oodules in bet left breast_ 17. On or aboutNovembet 10, 1998, Defendant Doctorperformad aline needle as.citation of Plaintiff's loft bteeat, which showed fibrocystic disease. ! 8. On or about December, ! 4, 1998, Plaintiff was ~xamined by Defoliant Doctor and again complained of redness and soreness in her left breast. At that time, Defendant Doctor pcrfosmed an ~hrasound of Plaintiff's left breast and told Plaintiff she had cysts in her breast and pre~'ibed Vitami~ ]/c~arn, 19. On or abou~ Senuary 25, 1999, Plaintiff was examined by Dcfandant Doctor and wa~ again told abc had cysts in her left br~. 20. On ur about May 3, 1999, Plaintiff consulted Defendan! Doctor for medical ttea/men! and was examined by Defendant Doctor. 21. On or about February 7, 2000, Plaintiff was examined by Defendant Doctor. She continued to complain of redness and irt/tat/on of thc ]eft nipple. Defendant Doctor referred Plaintiff for a surgical opinion regarding lhe left nipple. 22. On or about February 16, 2000, Plaintiff had a surgical biopsy of her left nipple performed by Dr. Salvatore A. Para~¢andola at Holy Spirit Hospital. -4- 23. On Match 9, 2000, Dr. Patasca~dola informed the Plaintiff that beg biopsy revealed Paget's disease, breast cancer of her IeR breast. 24. Plaintiff had clear signs of Paget's disease on or about Novembe~ 21, 1997, and thereafter, which were not recognized by Defendant Doctor and were not timely diagnosed. 25. Defendants' continuously reassured Plaintiffdurlug her o~ce visita',hat there was no reai problem with her breast and never told her she could have signs of breast cancer. 26. As a result of Defendants~ actions, Plaintiff has suffered the injuries and damages herein. 27. As a result of ~he delayed diagnosis and a'eatment of breast cancer, Plaintiff had a mastectomy of her left breast on June ! 5, :2000, and reconstructive surgery. 28. As a result oft. he delayed diagnosis and treatment of breast cancer, Plaintiff is at an increased risk of developing recurring cancer in the future. :29. As a direct and proximate result oftbe aforeeaid ;'areleasness and negligence of the Defendants, jointly and/or severally, Plaintiff suffered: (a) Severe, painful and permanent injuries; Co) Scatting and permanent dls~gurement of her left breast; Removal of left breast; (d) Medical expenses and co~ pa~ and into the future; (e) Impairment of general health, strength and vitality; (f) Lost eaxnings; (8) Emotional and mental trauma, anguish and humiliation, any or all of which may be permanent in nature and continuing indefinitely into the future; (h) Loss of the enjoyment of some of life's pleasures and activities;' -5- NEIU-15-2001 14: 4'7 55B'::JB04 ~,SY. P, 0'7 717- 7G1-39~1 TO: 7~9~4 I~GE: 89 Additional surgical procadu~es and medical treatment; and Pain and suffering past and into the future. COUNT I PATR/CIA BETTGER VS. SAM~HU KUNpu~ M,D. herein, 30. Plaintiff incorporates Pamgra~s I t~roug~ 29 as if set forth more f'u]ly verbatim 31. Defendant Doctor was negligent in ~e following particulars: (a) In failing to recol~nize cllnicai signs and symptoms ofbreast cancer in atimcly maoner; (b) In failing to order appropriate diagnoslic tests and procedures to diagnose breast cancer ia a timely reenact; In failing to ret'et Plalntiffto a sm'geon or spe~iaii s~ in a tlmely m Aeee r to seek ad. ice or coasulmtinn regarding Plaintiff's condition; In failing to inform Plaintiffthet her symptoms could indicate bt~t cancer; In failing to dia~ose Plaintiffs breast cancer when Defendant should have recognized sig~s of Paget's disease several yeare before Plaintiff's diagnos!s was made so that lreatment could have begtm earlier; In failing to heed and investigate Plainti~s complaints of left breait pain. redness, irritation and nipple discharge, assuring PlainUffsh¢ did not have a serious medical condition; -6- NOU-15-2001 14:47 5509004 96Z P.08 717-761 -~950 TO: 7 ~'~89804 PA~E: 10 (g) In failing to ~eview and evaluate Plaintiffs medical reconJs for a history of left breast pain. irritation, redness and nipple diecha=ge upon Defendant's initiai (h) In causing · delay in medicai treemxent of Plaintiff's breast cancer, a~lowing the cancer to ~=ad in Plaintiff's body: (i) In failing to avail himsel for and/or utilize available and pcztincnt information, medical records and diegnostic tests peV. eining to PlaintiVe medical condition; (j) ~ failing to timely discover his a~'orenoted careless and negligent conduct and/or to timely diagnose or ~eepond to the consequences end signLficance Providing medical care and treatment below the ~ccepted sm~daM of care for l~catmcnt. WHER.EPOI~E, Plaintiffdemands judgment egainst Defendant Doctor, jointly and sevtn~ly, in en amount in excess of $25,000.00. COUNT Il PATRICIA B~FTGF.,R VS. OBSTI~TRICS AND GYNECOLOGY, INC. Plaintiff inco~ora~es Para~aph$ I ~ougl~ 31 as if set for~ more fully verbatim Defendant Corporation is negligent in the following particulars: (a) Defendant Doctor, Dr. Can' and employees failed to timely diagnose and treat Plaintiff'a breast cancer; -7- NOU-15-2002 14:48 5589804 96Z P. 09 ' NOU-I$ 0~ 10:1~ FROM:OB GYN (b) Defendant Doctor, Dr. Cart end employees b. iled to ord¢~ appropriatc diagnostic tests and procedmes to di~nosc Plaintiff's breast cancer in a timely manner; (c) Defendant Doctor, Dr, C~rr and employees fihled to re,er Pl*infiff to a surgeon/spcciails~ to seek advice or consultation regatrding Plaintiff's condition in a timely manner; (d) Failed to monitor the compatency of its medical staff and employees, the adcquacyofpatient treatment and practices relating to breaat cancer diagnosis and treatment; (e) Failed to assure that Defendant Doctor, Dr. Carr and employees that were associated with thc aforementioned ca~ and treatmeat of Plaintiffwereaware of and/or properly investigated PlaintitT's continued complaints relath~ to her lef~ breast; and (f) Failed to timely inform the Plaintiff that her complaints relating to her left breast could be a form of bremt cancer. WHEREFORI~. Plaintiff demands judgment against Defendant Corporation, jointly and severally, in an amount in excess of $25,000.00. Rcspccffully submitted, Paul CoUins Lerda Attorney for Plaintiff -8- CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing PRELIMINARY OBJECTIONS TO PLAINTIFF'S COMPLAINT OF DEFENDANTS, SAMBU N. KUNDU, M.D., AND CENTRAL PENNSYLVANIA OBSTETRICS-GYNECOLOGY, was served upon counsel of record this 29TH day of November, 2001 by depositing said copy in the United States Mail at Harrisburg, Pennsylvania, postage prepaid, first class delivery, and addressed as follows: Patti Collins Lerda, Esquire Martin & Lerda 2006 Noble Street Pittsburgh, PA 15218 (412) 271-6800 FOULKROD ELLIS PROFESSIONAL CORPORATION Be~%-~ E. Forbes, ~Paralegal CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing PRELIMINARY OBJECTIONS TO PLAINTIFF'S COMPLAINT OF DEFENDANTS, SAMBU N. KUNDU, M.D., AND CENTRAL PENNSYLVANIA OBSTETRICS-GYNECOLOGY, was served upon counsel of record this 29TH day of November, 2001 by depositing said copy in the United States Mail at Harrisburg, Pennsylvania, postage prepaid, first class delivery, and addressed as follows: Patti Collins Lerda, Esquire Martin & Lerda 2006 Noble Street Pittsburgh, PA 15218 (412) 271-6800 FOULKROD ELLIS PROFESSIONAL CORPORATION (b) De~ndent Doctor, Dr. C~UT and employees ~e/led · ~s~c msm ~d ~ced~ m di~o~ Pl~s ~ c~ ~ a ~cl~ ~ (c) Defen~t ~ctor, Dr. C~ ~d empJoy~s ~ed to ~er Pl~nfiff to a s~e~sp~Jalist to ~ ~cc or con.fica ~g Plainfi~s condi~on ~ ~ ~cly ~ (d) F~led m ~ulmr ~e comp~cy of i~ medical ~d F~led ~ a~ ~a ~f~t DocTOr, Dr. C~ or--or ~p~y ~v~ d~d Pl~t~ s contin ued complain br~ co~d ~ a ~o~ of~ c~r. ~FO~, pJslnH~ d~s.~ j~t ~t De~e~t Co.radon, Dated: submit'ted, Pa~ Collins Lerda Attorney for Plaintiff -8- ~0u=15 81 1B:15 FROM:OB G'fN I,l~ 717-7~1-5~5'~ T0:??~9884 FP~:I~ (,?,) In failing to ~eview and eval,~*~ Plaintiff's rnedlcai n~cords for a history ofle/t breast pain~ in/tstion, redness and nipple discharge upon Defendnnt's initial consultation and thereafter;, (h) In c~u~in~ a delay in medical Ir=etment of Plaintiff's brca.st cancer, allowing t~e ~ to i~,~..~t in Plaintiff's body; (i) In failln~ W avail himself of and/or utilize available end pertinent information, medical records and dia~ostlc tests pe~,ainiag to Plaintiff's m~sdical condition; 0) In failing to timely discover his aforcnotcd careless end negligent conduct end/or to greely diennose or respond to thc coneequeaces and significanc~ thereof; and (k) Providing medical care and lreatment belowthe accepted st~nd*,d ofcare for txeatmenL WHERI~ORtl, Plaintiffdsmneds judgmen! against Defendant Doctor, jointly and severally, in en amount in excess of~25,000.00. COUNT H PATRICIA ]~K"FI'GRR VS, OBSTk"TRICS AND GYNECOLOGY. 32. herein. 33. Plaifftiffincorporate$ Paragraphs I thtou~lt 31 as if set forth more fully verbatim Defendant Corporation is negligent in the following particulars: (a) Defendant Doctor, Dr. Carr and employees failed to tlmcly diagnose nnd treat Plaintiff's breast center; -7- NOU-15-2001 14:48 5589804 P.09 ' NOU-15 ~1 10:14 FROI~:(~B GYN ]'~..,-.~ 717-761-395{B TO: 7/.~1991~4 PI:iGE: ~9 30. herein. 31. (i) O) COUNT I PATRICIA BETTGER V~. SAMBHU KUN]~U, M.D. Plainfiffincorporatas Paragraphs I through 29 as if set forth more fully verbatim Defandant Do,,-tor was negligent in tha following particulars: (a) In tailing to t~co_oni=,~ clinical signs and sYmlXoms of breast canc~in atimely manner; Co) In failing to cadet appropriate diagnostic tests and procedures to diagnose breast cane. er in a timely manner; (c) In failing to re,'er Plainfiffto a su~gann or sl~ecialist In a timely m~..~eto s~ek advice or consultation ~garding PhlntLft~s condition; · (d) In failing to inform Plaint~ffthat her sympton~ could ind/cate breast eanc~; (e) ~n fa/ling to diagnose Plainti:Ws breast cancer when Def~tdant should have recognized sj~o~ of Pair's disease seveng yea~ before Plaint/~ dla~nosis was made so that t~ato~ent could have begun (f) In riffling to he~d and investigate Plaintiff's complnJnt~ nf 1¢~ b~a~t pain, redness, irritation and nipple dlscbar~e, n~sm-ing ?laint/ffsh: did not ~ave serious mefiicaI condition; -6- 23. On March 9, 2000, Dr. Parascan~la informed the Plaindffthat her biopsy revealed Pag~t',t disease, breast cancer other leR breast. 24. Plaintiff had clear sig~s of Pag=t's disease on or about Novembe~ 21, 1997, and thcrca/~cr, which were not recog~zcd by Defendant Doctor and w~r~ not timely diagnosed. 25. D~f=~h~ts' continuously r~msured Plainfiffduring her office vig~ that the~ was no r~al problem w/th h~r brensi and hayer told her she ~ould have si/ns of breast cancer. As a result of Defand~mts' actions, Plaintlff has suffered ~he injuries and damages 26. hc~in. 27. As a result of the d~laycd diasnosis and ~t of b~t c~, P~nfiff ~ a m~ccmmy of ~r left ~ on J~c 15, 2000, ~ teco~fiw 28. ~ a ~lt of~c delayed ~os~ ~d inc~ ~k of d~opin~ ~c~ng ~ in &e ~. 29. ~ a ~a ~d pro~ ~t of~ (a) Severe, painful and permanent iajud=; Co) Scarrin~ and permanent dld~gna'~ment of her lef~ breast;, Cc) Removal of left (d) Medical expenses and costs pa~t and into the future; (e) Impairment of general health, strength and vitality; (f) Lost eaminss: (8) Emotional and mcntal uamna, anguish and humiliation, any or all of which may be permanent in nature and continuing ind¢ilnitcly into the futurc; (h) Loss of thc enjoyment of some of life's pleasures and activitic_~;- 727-761-3cJ~ TO~7}':a~l PP~E~07 14. On Or about October 23, 199~, Defen/anr Doctor examined Pla/nt/ff's breasts and found asymmetry of the left nipple with reddening, noting Plaintiff's report of a bloody clis,~har~e of the lef~ rdpple two weeks pdor and soreness. 15. On or about October 23, 1998, Defe~lant Doctor performed an ultrasound study in Defendant Corporation's offic,' and told Plaintiff she had multiple cysts in her le~ breast. 16. On or about Octoher 26, ! 998, Plaintiffhad a mammogram perfom~d which showed two new nodules in her left breasL 17. On or about November I 0,1998, Defendant Doctor l~rformad a fine needle asl~irafion of Plaintiff's left bt~st, wlgch showed fibrocystic disease. 18. On or about December, 14, 1998, Plaintiff was examined by Def~d~_nt Do,or and a~ain complained of redness and sorenass in her left breast. At that time, Defendant Doctor pe~I'o,~,ed an ulnasound of Plainti/f's left breast and told Plaintiff`she had cysts in her hzast and prescribed Vitamin 1~ cream. 19. On or nbou~ Janua_,y 25, 1999. Plalntiff'was examined by Defendant Doctor and was a~aln told she had ~ in I~' ~ brea~. 20. On or about May 3, 19~9, Plaintiffconsulted Defendant Doctor for medical tr~airocut and was examined by Defendant Doctor. 21. On or about Februa:y 7, 2000, Plaintiff` was examined by Defendant Doetnr. She continued to complain of redness and irritation of the left nipple. Defendant Doctor referred Plaintiff for a surgical opinion ~gerding the left nipple. 22. On or about February 16. 2000, Plaintiff had a s~rgical biopsy of her let nipple performed by Dr. Salvatore A. Parascandola at Holy Spirit Hospital. -4- At all times material and ~cI~vant hereto, Dr. William F. Cart wu ~sociated with and provided m~ical services to Plalnt~ffthrou~h Defendant Corporation, and at all such d~'z~s was then and thereby acling with the course and scope of his emp]oyment or agency with said Defendant. 9. As a direct result of the aforesaid, said Dei'endams accepted responsibility for thc care and treatment of Plaintiff and, in doing so, understood and assumed a duty to her to render competent, proper, adequate and appropriat~ medical care and treatment, an~l to take appropriate preventative and curative measures m treat Plaintiffand to avoid harm to her. 10. At all tim~s material het'eto, all acts ofagent~, servants and employees of Defendant Co~oration within the scope of thclr agency or employment by operation of law am imputed to Defendant Corpora, lion. 11. On or about November 2 I, 1997, Plaimiffcoamlted Dr. William ¥. Cart at the office of Defendant Corporation for thc purpose of obtaining medical care for complaints of r~in~s, crusting and irritation of her left nipple area. Plaiatiffalso reported noticing a bloody discharge on her bra. At that time, Dr. Carl- conducted a breast examination o fPlaintiffand presc-dbed an ointment for the nipple area. 12. On o~ about December I?, 1997, Plaintiff was again examined by Dr. Can' a~ the Defcndimt Corporation office, complahti~ ofbr~a~t soreness and redness of thc ]eft nipple. At that time, Dr. Car ordmed a dia~ostic mammo~ram of the Plaintiff. 13. On or about October 23,1998, Plaintiff contacted Defandant Corporation's office with complaints of lc ii breast soreness, nipple discharge as bloody a~d hardness underneath the nipple, and requested a mammo~'am be ordered. -3- '~ Bi 10:14 FROM:08 GYN IN~.-~; 717-7G1-~95~ TO: 77~'~ PAGE: ]. The De. fcndant, Obs~zics and C~nccolo~, Inc., is a Pennsylvania corporation, and at all ~imes maleriai hereto was duly licensed and authorized ~o ~r'ansact business in the Commonwealth of Pelto,sylvania, having i~s p~incipal place of business located a: 890 Poplar C~u~h Road, Camp Hill, Pennsylvania ! 701 !, herei~t~er referred ~o as "Defendant Corporalion." 4. At ail lime-~ martial sea relevant hereto, Defendant Doctor was associar~i with and/or provided medical services to Plainfiff~h"ou~h D~andant Corporation, and at all such firaes ~ then and ri~anbou! acgnlt within the course ~ scope of his ~mploymant or a~ncy with said De~danl Corporetio~. 5. At all times material and relevant hereto, Defendant Corporation ucted by and fl~ough /ts/their agents, servants, workm~n or employees who were than and thereabou! acting within the course and scope of their emplol~mant with said Dct'cndan~, one of whom may have been or was Defendant Doctor h~rcin and Dr. William F. Can'. 6. At all gmes material and relevant hereto, Defendant Corporalion wa~ entailed. throu~,h its a~cnts, s~rvanis, e~nplo~,ees and ~hose ~Aff'persom~el hereinafter ideniitied, in rcadczins professional medical care to th~ public, and thereby held itssii'out to the public llcneraily, and to the Plaintiff' specifically, as bein8 skilled In the practice ot' ~'necololgcal medicine and l~d the respoztsibility ofpro¥idinl~ appropria~ and adequate medical care to the Plaintiffin scoordanco with the prevaili~ s~mdards of medical practice. 7. At ail §mcs ma~e]'iai and rel~vani hereto, ~aid Defandant Doclor held himself out to the public, and [o Plaingffpanicularly, as a physician in ~colo~ical medicine and relalcd medical care, duly qualified [o practice medicine in thc Commonwealth o~'P~nnsylvania aad thoroughly l~ained and lmowledseable in the field of ~Imecoin~y. -2- 7~.7-76~.-39..=g 7/3: 7.~ -=~-I~g4 P~: 84 IN THE COURT OF COMMON ?L~AS OF CUMB£RLAND COUNTY, P~NNSYLVANIA CFV~L DIVISION ) Plnintiff, ) ) v. ) ) SAMBHU N. KUNDU, M.D. mad ) OBSTETRICS AND OYN]ECOLOOY. ) INC., ) ) l~feadants. ) No, CO~P~NT~ ~ ACTION AND NOW Comes thc Plaintiff, Pa~'i¢ia Bmttger, by and tl, u'ouih hut attorney, Patti Collins Lc. fda, Esquire, and the fu'm of Mardn & Lerda, and files the following Complaint in Civil Action, av~rin~ th~ follow~ng in support thereof: 1. The Plaintiff, Patricia Bet~gmr, is an individual residing at 3825 Carriage House Drive, Camp Hill, P~ut.mylvauia 17011, he~i~ r,.fe~cd to es "Plnintiff." 2. The Dc£cndant. Sambhu Kundu, M.D., is an individual residcat of the Commonwealth or' P~unzylvania and is duly licensed to practice medicine in thc Commonwealth of Pennsylvania, ha/inS his principal office located at 890 Poplar Church Road, Camp Hill, Peunsylvania 17011, hereinafter ref~,~d to es "Defendant Doctor." 96z .... · ' ' P.03 ' IN THE COURT OF COMMON PLEAS OF CUMBEI{LAND COUNTY, PENNSYLVANIA CIVIL DM$ION PATI~CIA B~:~/'(~ER, Plaimiff, v. SAMBI-1U N. KUNDU, M.D. and OBSTR-'TP. ICS AND GYNECOLOGY, INC., Defendants. No, T D YOU HAV~ REiN SUEA) IN COURT. If you wisb to d~fend agniast the dahns set forth in tho following pages, you mast take aetion within TWENTY (20) days after this eomplaint and notiee aru s~rved, by sneering a written appearance penonnlly or by attorney and filing in writing w/th the court your defenses or obj~tlons to the claims set forth against you. You are warned that if you fail to do so the case ma,/pressed without yon and a judgment may bo entered against you by the court without further notice for any money claimed in tho tomplaint or for any other elaim or relisf requested by the plaintiff. You may lose money or prupei~ or other fights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE Ov'~rlCg SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL Ngx.P. LEGAL REFERRAL SERVICE THE CIJ'M~EBLAND COUNTY BAR ASSOCIATION 2 L/BERTY AVENUE CARLISLE, PA 17013 (;17) 249-3166 NOUSi5-2001 14:45 5589804' 96X P.02 '- 1N THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA PATRICIA BETTGEI~ ?laindE, V. SAMBHU N. KUNDU, M.D. and OBSTETRICS AND GYNECOLOGY, INC., CTV1L DMSION Code: COMPLAINT IN CIVIL ACTION Filed On B-.h-if Of: Patricia Bettger, Plaintiff NOTICE TO DEFENDANTS You am hereby notified to file a written response to r~e enclosed Complaint within t~-nty (20) day~ from sg~ice hereof or a judgment may be enlered PATTI COLLINS LERDA Cmmsel of Reco~ for This Party: Patti Collins Lc. fda, F,,sq. Pa. ID No. $6492 MARTIN & LERDA 2006 Noble Sue~t Pittsburgh, PA 15218 412/271-6800 JURY TRIAL DEMANDg]~ 20. In order to comply with the provisions of Rule 1029, Objecting Defendants must know the identity of the individuals who are alleged to be their employees. Willin~er v. Mercy Catholic Medical Center of Southeastern Penn~, 362 A.2d 280 (Pa. Super. 1976), affirmed, 393 A.2d 1188 (Pa. 1978) 21. If the allegations set forth in subparagraphs 33(a), (b), and (c) are allowed to remain, Objecting Defendants would not be able to specifically deny agency, and therefore, agency would be deemed admitted. WHEREFORE, Defendants, Sambhu N. Kundu, M.D. and Central Pennsylvania Obstetrics-Gynecology, Inc., respectfully request that this Honorable Court enter an order dismissing with prejudice subparagraphs 33(a), (b), and (c), or in the alternative, direct Plaintiff to file a more specific pleading addressing the identity of the unnamed individuals referenced within these subparagraphs. By: Respectfully submitted, FOULI(ROD ELLIS PROFESSI~CORPORATION Aa~o~ / ~ayman, Esquire Att~3f I.D. No. 85651 7 Gynecology, Inc., did not render any medical or surgical or professional services to Plaintiff. Under the Pennsylvania Medical Practice Act of 1985, 63 P.S., §422.10 et seq., only an individual person may be licensed as medical doctor to practice medicine and surgery. At no time was Central Pennsylvania Obstetrics-Gynecology, Inc., licensed as a medical doctor and Central Pennsylvania Obstetrics- Gynecology, Inc., did not in fact have the right to supervise, direct or control the manner in which Dr. Kundu provided professional services to Plaintiff. WHEREFORE, Defendants, Sambhu N. Kundu, M.D. and Central Pennsylvania Obstetrics-Gynecology, Inc., respectfully request that this Honorable Court enter an order dismissing with prejudice Plaintiff's cause of action against Central Pennsylvania Obstetrics-Gynecology, Inc., for direct corporate negligence. III. AVERMENTS IN SUBPA~AGP~APHS 33(a), (b), AND (c) OF PLAINTIFF'S COMPLAINT CONTRAVENE THE IDENTITY REQUIREMENT OF Pa.R.C.P. 1029. 17. Paragraphs 1 through 16 are incorporated by reference as fully set forth at length. 18. In paragraphs 33(a), (b) and (c) of her Complaint, Plaintiff alleges agency without identifying which individuals are allegedly Objecting Defendants' employees. 19. Pa.R.C.P. 1029 requires that averments of agency must by denied specifically or they will deemed admitted. (d) Failed to monitor the competency of its medical staff and employees, the adequacy of patient treatment and practices relat±ng to breast cancer diagnosis and treatment; (e) Failed to assure that Defendant Doctor, Dr. Carr and employees that were associated with the aforementioned care and treatment of Plaintiff were aware of and/or properly investigated Plaintiff's continued complaints relating to her left breast; and (f) Failed to timely inform the Plaintiff that her complaints relating to her left breast could be a form of breast cancer. 14. However, there is no Pennsylvania appellate authority for extending the theory of direct corporate liability set forth in Thompson v. Nason Hosp., 591 A.2d 703 (Pa. 1991), to include medical professional corporations. 15. Although efforts by Objecting Defendants to locate case law from this Honorable Court proved to be unfruitful, both the federal courts and other Pennsylvania courts of common pleas have consistently declined to apply ThomDson's theory of direct corporate liability to non- hospital or non-HMO defendants. See Milan v. American Vision Ctr., 34 F.Supp.2d 279 (E.D. Pa. 1998); Dowhouer v. Judson, 119 Dauph. 366 (2000); Dibble v. Penn State Geisin~er Clinic, 98 CV 2281, (C.P. Lackawanna); Brewer v. Geisin~er Clinic, PICS Case No. 00-0686 (C.P. Lackawanna March 31, 2000); Remshifskv v. (C.P. Monroe); Paul v. Barton, Franklin). 16. Kraus, No. 1845 Civil 1992 Action No. 2000-530, (C.P. Furthermore, Central Pennsylvania Obstetrics- thereby prejudicing Objecting Defendants from preparing a defense of the instant matter. 11. The above-cited allegations are further prejudicial to Objecting Defendants inasmuch as these allegations may result in the waiver of various defenses and objections pursuant to Pa.R.C.P. 1032. WHEREFORE, Defendants, Sambhu N. Kundu, M.D. and Central Pennsylvania Obstetrics-Gynecology, Inc., respectfully request that this Honorable Court enter an order dismissing with prejudice subparagraphs 31(i), (j), and (k) from Plaintiff's Complaint. II. PLAINTIFF HAS NOT STATED A CAUSE OF ACTION AGAINST CENTRAL PENNSYLVANIA OBSTETRICS-GYNECOLOGY, INC., ON A THEORY OF C0RPOP~ATE NEGLIGENCE PURSUANT TO THOMPSON V. NASON HOSP., 591 A.2d 703 (Pa. 1991). 12. Paragraphs 1 through 11 are incorporated by reference as fully set forth at length. 13. In paragraph 33 of her Complaint, Plaintiff alleges that Central Pennsylvania Obstetrics-Gynecology, Inc., was negligent in the following particulars: (a) Defendant Doctor, Dr. Carr and employees failed to timely diagnose and treat Plaintiff's breast cancer; (b) Defendant Doctor, Dr. Carr and employees failed to order appropriate diagnostic tests and procedures to diagnose Plaintiff's breast cancer in a timely manner; (c) Defendant Doctor, Dr. Cart and employees failed to refer Plaintiff to a surgeon/specialist to seek advice or consultation regarding Plaintiff's condition in a timely manner; 4 7. Courts have also recognized that Pa.R.C.P. 1019(a) must be applied even more strictly in medical malpractice actions. Mikula v. Harrisbura Polyclinic HosD., 58 D. & C. 2d 125 (C.P. Dauphin County, 1972). 8. The above-cited allegations of negligence constitute va~ue, boilerplate averments in the nature of mere "Notice Pleading" which Pennsylvania has clearly rejected in adopting a requirement of "Fact Pleading" in Pa.R.C.P. 1019(a) and Pa.R.C.P. 1028(a) (3). These allegations of negligent acts or omissions could be asserted against any healthcare provider or medical doctor in any medical malpractice action, and therefore, do not give Objecting Defendants sufficient notice to prepare an adequate defense. 9. These overly-broad, boilerplate allegations of negligence are insufficient in that they fail to apprise Objecting Defendants of the tortious conduct which Plaintiff asserts. See Dibbl~ v. Penn State Geisinaer Clinic, 42 D&C 4th 225 (Lackawanna C.P. 1999). Absent specific acts of negligence, Objecting Defendants have not been adequately provided with the facts upon which Plaintiff's claim is based and thus Objecting Defendants are not able to adequately prepare a defense to such allegations. 10. The above-cited boilerplate allegations of negligence would allow Plaintiff to later amend her Complaint well after the statute of limitations has run to add new allegations of negligence not originally plead, set forth herein at length. 3. The following subparagraphs of paragraph 31 constitute vague, boilerplate allegations which should be stricken from Plaintiff's Complaint with prejudice: (i) (j) (k) In failing to avail himself of and/or utilize available and pertinent information, medical records and diagnostic tests pertaining to Plaintiff's medical condition; In failing to timely discover his aforenoted careless and negligent conduct and/or timely diagnose or respond to the consequences and significance thereof; and Providing medical care and treatment below the accepted standard of care for treatment. 4. Pa.R.C.P. 1019(a) requires a Plaintiff to state his or her Complaint, in concise and summary form, the material facts upon which a cause of action is based. in 5. In Connor v. Allegheny General HOSD., 461 A.2d 600 (Pa. Su~er 1983), the Supreme Court of Pennsylvania placed the onus on defendants to preliminarily object to all "catchall" language which may allow a Plaintiff to subsequently introduce new theories of negligence and new causes of action well after the statute of limitations has run. Id. at 603, n. 3. 6. This Honorable Court in Winters v. Loner~an, 36 Cumb. 98 (1985), interpreted Connor to mean that a defendant should not, by virtue of boilerplate averments be subject to defend against any conceivable theory of negligence. See also Estate of Evans v. Sinuners. et al., 42 Cumb. 184 (1992). (emphasis added). 2 PRAECIPE FOR LISTING CASE FOR ARGUMENT (Must be typewritten and submitted in duplicate) TO THE PROTHONOTARY OF CUMBERLAND COUNTY: Please list the within matter for the next Argument Court. CAPTION OF CASE (entire caption must be stated in full) PATRICIA BETTGER, (Plaintiffs) vs. SAMBHU N. KUNDU, M.D., AND CENTP~kL PENNSYLVANIA OBSTETRICS-GYNECOLOGY, INC., (Defendants) No. 6391 Civil Action - Law 200--1 State matter to be argued (i.e., plaintiff's motion for new trial, defendant's demurrer t complaint, etc.): Preliminary Objections to Plaintiff's Complaint of Defendants, Sambhu N. Kundu, M.D., and Central Pennsylvania Obstetrics-Gynecology, Inc. 2. Identify counsel who will argue case: (a) for plaintiff: Patti Collins Lerda, Esquire Address: Martin & Lerda 2006 Noble Street Pittsburgh, PA 15218 o (b) for defendant:Aaron S. Jayman, Esquire Address: Foulkrod Ellis 1800 Linglestown Road - Suite Harrisburg, PA 17110 305 I will notify all parties in writin9 within two days that this case has been listed for argument. Argument Court Date: January 2, 2002 Dated: /~1~10 1 I' Aar~ire Atto~ I.D. No. 85651 Attorney for Sambhu Kundu, M.D., and Central Pennsylvania Obstetrics-Gynecology, Inc. CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing, PP~AECIPE FOR LISTING CASE FOR ARGUMENT was served upon counsel of record this 12TH day of December, 2001 by depositing said copy in the United States Mail at Harrisburg, Pennsylvania, postage prepaid, first class delivery, and addressed as follows: Patti Collins Lerda, Esquire Martin & Lerda 2006 Noble Street Pittsburgh, PA 15218 (412) 271-6800 FOULKROD ELLIS PROFESSIONAL CORPOP~ATION 13. Patricia Bettger V Sambhu N. Kundu, M.D., and Central Pennsylvania Obstetrics-Gynecology, Inc. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 01-6391 CIVIL TERM AND NOW, January 2, 2002, by agreement of counsel, the above-captioned matter is continued fi.om the January 2, 2002 Argument Court list. Counsel is directed to relist the case when ready. By the Court, ~ Collins Lerda, Esquire For the Plaintiff ~/aron S. Jayman, Esquire For the Defendant Court Administrator ld FOULKROD ELLIS PROFESSIONAL CORPORATION 1800 Linglestown Road - Suite 305 Harrisburg, Pennsylvania 17110 Telephone: [717] 213-4200 Fax:[7171213~202 PATRICIA BETTGER, Plaintiff Vo SAMBHU N. KUNDU, M.D., AND CENTRAL PENNSYLVANIA OBSTETRICS-GYNECOLOGY, INC., Defendants Attorney for Defendants: Sambhu N. Kundu, M.D., and Central Pennsylvania OB-GYN. Inc. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 01-6391 CIVIL ACTION - LAW JURY TRIAL DEMANDED PRAECIPE TO FILE STIPULATION TO: PROTHONOTARY OF CUMBERLAND COUNTY, PENNYSLVANIA Kindly file of record the attached stipulation. Dated: Aa Esquire att~h~ I.D. No. 85651 Attorney for Sambhu Kundu, M.D., and Central Pennsylvania Obstetrics- Gynecology, Inc PATRICIA BETTGER, Plaintiff SAMBHU N. KUNDU, M.D., AND CENTRAL PENNSYLVANIA OBSTETRICS ~ GYNECOLOGY, INC., Defendants : PENNSYLVANIA : : NO. 01-6391 : CIVIL ACTION - LAW : : JURY TRIAL DEMANDED IN THE COURT OF CO~ON PLEAS OF CUMBERLAND COUNTY, STIPULATION AND NOW, comes Plaintiff, Patricia Bettger, by and through her counsel, Patti Collins Lerda, Esquire, and Defendants, Sambhu N. Kundu, M.D. and Central Pennsylvania Obstetrics-Gynecology, Inc., by and through their counsel, Aaron S. Jayman, Esquire, and hereby stipulate and agree as follows: 1. Counsel hereby represent and warrant that they are authorized to enter into this Stipulation on behalf of their respective clients. 2. Plaintiff will not assert a cause of action against Central Pennsylvania Obstetrics-Gynecology, Inc., on a theory of corporate negligence. 3. Sub-paragraph 31(j) is stricken, with prejudice, from paragraph 31 of Plaintiff's Complaint. 4. Sub-paragraph 31(k) of paragraph 31 of Plaintiff,s Complaint is amended to read: Providing medical care and treatment below the accepted standard of care for treatment for the reasons set forth in this Complaint. 5. Defendants are granted a reasonable extension of time in which to file their Answer and New Matter. Date: MARTIN & LERDA Patti Collins Lerda, Esquire Counsel for Plaintiff Date: FOULKROD ELLIS p oFEss CO PO T ON AarOn ~ ~yman, Esquzre Coun~ '~or Defendants CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing, PRAECIPE TO FILE STIPULATION was served upon counsel of record this 18TM day of JANUARY, 2002 by depositing said copy in the United States Mail at Harrisburg, Pennsylvania, postage prepaid, first class delivery, and addressed as follows: Patti Collins Lerda, Esquire Martin & Lerda 2006 Noble Street Pittsburgh, PA 15218 FOULKROD ELLIS PROFESSIONAL CORPORATION Beth- I~. Forbes, FOULKROD ELLIS PROFESSIONAL CORPORATION 1800 Linglestown Road - Suite 305 Harrisburg, Pennsylvania 17110 Telephone: [717] 213-4200 Fax:J717]2134202 PATRICIA BET',~ER, Plaintiff SAMBHU N. KUNDU, M.D., AND CENTRAL PENNSYLVANIA OBSTETRICS-GYNECOLOGY, INC., Defendants Attorney for Defendants: Sambhu N. Kundu, M.D., and Central p~nn~vlvania OB-GYN. Inc. IN '"aS COURT OF CONA~ON PLEAS OF CUMBERLAND COUNTY, : PENNSYLVANIA : : NO. 01-6391 : CIVIL ACTION - LAW : JURY TRIAL DEMANDED NOTICE TO PLEAD TO: Patricia Bettger c/o Patti Collins Lerda, Martin & Lerda 2006 Noble Street Pittsburgh, PA 15218 Esquire YOU ARE HEREBY NOTIFIED to plead to the attached NEW MATTER OF SAMBHU N. KUNDU, M.D. AND CENTP~AL PENNSYLVANIA OBSTETRICS- GYNECOLOGY, INC. within twenty (20) days from service hereof, or a default judgment may be entered against you. Date: By: FOULKROD ELLIS P~P~ATIiN ~e&f~h/~/J./ Ellis, Esquire ~tt~_y I.D. NO. 53~29 Aaron S. Jayman, Esquire Attorney I.D. No. 85651 FOULKROD ELLIS PROFESSIONAL CORPORATION 1800 Linglestown Road - Suite 305 Harrisburg, Pennsylvania 17110 Telephone: [717] 213-4200 Fax:[717~21342~ PATRICIA B~'r'~ER, Plaintiff SAMBHU N. KUNDU, M.D., AND CENTR/LL PENNSYLVANIA OBSTETRICS-GYNECOLOGY, INC., Defendants Attorney for Defendants: Sambhu N. Kundu, M.D., and Central P~nn~vlvan~, OB-GYN. Inc. IN THE COURT OF C05~40N PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 01-6391 CIVIL ACTION - LAW JURY TRIAL DEMANDED ANSWER AND NEW MATTER OF DEFENDANTS, SAMBHUN. KUNDU, M.D. AND CENTRAL PENNSYLVANIA OBSTETRICS-GYNECOLOGY, INC. TO PLAINTIFF'S COMPLAINT Defendants, Sambhu N. Kundu, M.D. and Central Pennsylvania Obstetrics-Gynecology, Inc. (hereinafter referred to as "Answering Defendants',), by and through their counsel, Foulkrod Ellis Professional Corporation, hereby respond to Plaintiff,s Complaint and in support of the sa~ne aver as follows: 1. Denied. After reasonable investigation Answering Defendants are without knowledge or information sufficient to form a belief as to the truth of the averments contained in this paragraph of Plaintiff,s Complaint and the same are deemed denied and proof demanded at the time of trial. 2. Admitted. 3. Denied as stated. It is specifically denied that Obstetrics and Gynecology, Inc., is a Pennsylvania corporation, duly licensed and authorized to transact business in the Commonwealth of Pennsylvania, having its principal place of business located at 890 Poplar Church Road, Camp Hill, Pennsylvania 17011. Central Pennsylvania 0bstetrics-Gynecology, Inc., is a Pennsylvania corporation duly licensed and authorized to transact business in the Commonwealth of Pennsylvania, having its principal place of business located at 890 Poplar Church Road, Camp Hill, Pennsylvania 17011. 4. Admitted. 5.-6. Denied. The allegations contained in these paragraphs of Plaintiff's Complaint are conclusions of law as opposed to statements of fact and no response is required. To the extent a response may be deemed required, Central Pennsylvania Obstetrics-Gynecology, Inc., did not render any medical or surgical or professional services to Plaintiff. Under the Pennsylvania Medical Practice Act of 1985, 63 P.S., §422.10 et seq., only an individual person may be licensed as a medical doctor to practice medicine and surgery. At no time hereto was Central Pennsylvania Obstetrics-Gynecology, Inc., licensed as a medical doctor and it did not in fact have the right to supervise, direct or control the manner in which Dr. Kundu provided professional services to Plaintiff. 7. Admitted. 8. Denied. The allegations contained in this paragraph of Plaintiff's Complaint are conclusions of law as opposed to statements of fact and no response is required. To the extent a response may be deemed required, at no time relevant hereto was Dr. Carr an agent, servant, employee or otherwise acting for or 2 on behalf of any Defendant in this action or any other natural person, partnership, corporation or other legal entity. 9. Denied. The allegations contained in this paragraph of Plaintiff,s Complaint are conclusions of law as opposed to statements of fact and no response is required. Answering Defendants aver that with respect to their professional involvement in this matter, they at all times acted appropriately and in a fashion commensurate with the standard of medical care applicable under similar circumstances and that they were in no way negligent. By way of further response, Answering Defendants in no way negligently or otherwise caused or contributed to cause any injury or damage to Plaintiff. 10. Denied. Plaintiff has failed to identify the "agents, servants and employees,, to whom she refers and therefore Answering Defendants cannot specifically respond. By way of further answer, the remaining corresponding allegations are denied as conclusions of law to which no responsive pleading is required. 11.-23. Denied. Denied pursuant to the provisions of Pa.R.C.P. 1029(e). 24.-29. Denied. Denied as a conclusion of law to which no responsive pleading is required and also denied generally pursuant to Pa.R.C.P. 1029(e). By way of further answer, Answering Defendants were not negligent. To the contrary, at all relevant times Answering Defendants met or exceeded the standard of care and at no time caused or contributed to the injuries as alleged. PATRICIA BETT~R VS. SAMBHI;N. _Er3~D__U, M.D, 30. contained in paragraphs forth at length. 31(a-k). Denied. responsive pleading is Answering Defendants incorporate by reference answers i through 29 above as though fully set Denied as a conclusion of law to which no required and also denied generally pursuant to Pa.R.C.P. 1029(e). By way of further answer, Dr. Kundu was not negligent. To the contrary, at all relevant times Dr. Kundu met or exceeded the standard of care and at no time caused or contributed to the injuries as alleged. The stipulation filed on January 23, 2002 is hereby incorporated by reference striking sub-paragraph 31(j), with prejudice, and amending sub-paragraph 31(k) to read as follows: Providing medical care and treatment below the accepted standard of care for treatment for the reasons set forth in this Complaint. (The stipulation of January 23, 2002 attached hereto as "Exhibit WHEREFORE, Defendants, Sambhu N. Kundu, M.D. and Central Pennsylvania Obstetrics-Gynecology, Inc., hereby demand judgment in their favor and against Plaintiff. COUNT II PATRICIA BETTGER VS. OBSTETRICS AND GYNECOLOGY, INC. 32. Answering Defendants incorporate by reference answers contained in paragraphs forth at length. 33(a-f). Denied. responsive pleading is 1 through 31 above as though fully set Denied as a conclusion of law to which no required and also denied generally 4 pursuant to Pa.R.C.P. 1029(e). By way of further answer, Central Pennsylvania Obstetrics-Gynecology, Inc., did not render any medical or surgical or professional services to Plaintiff. Under the Pennsylvania Medical Practice Act of 1985, 63 P.S., §422.10 et seq., only an individual person may be licensed as a medical doctor to practice medicine and surgery. At no time hereto was Central Pennsylvania Obstetrics~Gynecology, Inc., licensed as a medical doctor and it did not in fact have the right to supervise, direct or control the manner in which professional services were provided to Plaintiff. By way of further answer, at all times relevant hereto Answering Defendants met or exceeded the standard of care and at no time caused or contributed to the injuries as alleged. The stipulation filed on January 23, 2002 is hereby incorporated by reference establishing that Plaintiff will not assert a cause of action against Central-Pennsylvania Obstetrics-Gynecology, Inc., on a theory of corporate negligence. (The stipulation of January 23, 2002 attached hereto as "Exhibit A.") WHEREFORE, Defendants, Sambhu N. Kundu, M.D. and Central Pennsylvania Obstetrics-Gynecology, Inc. hereby demand judgment in their favor and against the Plaintiff. 34. The foregoing answers to Plaintiff,s Complaint are incorporated herein by reference as though fully set forth at length. 35. At no time relevant hereto was any other natural person, partnership, corporation or other legal entity acting or serving as an agent, servant, employee or otherwise for or on behalf of Dr. Kundu. 36. Central Pennsylvania Obstetrics-Gynecology, Inc., did not render any medical or surgical or professional services to Plaintiff. Central Pennsylvania Obstetrics-Gynecology, Inc., is not and cannot be vicariously liable for the conduct of Dr. Kundu. Under the Pennsylvania Medical Practice Act of 1985, 63 P.S., §422.10 et seq., only an individual person may be licensed as a medical doctor to practice medicine and surgery. At no time hereto was Central Pennsylvania Obstetrics-Gynecology, Inc., licensed as a medical doctor and it did not in fact have the right to supervise, direct or control the manner in which Dr. Kundu provided professional services to Plaintiff. 37. In the event that it is ultimately determined that Central Pennsylvania Obstetrics-Gynecology, Inc. is liable to Plaintiff, which liability is specifically denied, under the Pennsylvania Professional Corporation Law, 15 Pa.C.S.A. §2925(c), the professional corporation may be held liable only to the extent of the value of its property. 38. At all times relevant hereto Dr. Kundu acted within and followed the precepts of a school of though followed by a considerable nun%ber of qualified and well respected specialists in the field and, accordingly, his professional conduct was fully commensurate with the applicable standard of care. Evidence at trial may establish two or more schools of thought applicable to the issues presented in this case. 39. Plaintiff assumed the risk of her injuries and this action is therefore barred by the Doctrine of Assumption of Risk. 40. Answering Defendants believe and therefore aver that the evidence accumulated through discovery and provided at trial may establish that Plaintiff was contributorily or comparatively negligent, and in order to protect the record Answering Defendants hereby plead contributory and comparative negligence as an affirmative defense. 41. In the event that it is determined that Answering Defendants were negligent with regard to any of the allegations contained in, and with respect to Plaintiff,s Complaint, said allegations being specifically denied, said negligence was superseded by the intervening negligent acts of other persons, parties and/or organizations other than Answering Defendants and over whom Answering Defendants had no control, right or responsibility and, therefore Answering Defendants are not liable. 42. To the extent that the evidence may show other persons, partnerships, corporations or other legal entities caused or contributed to the injuries or exacerbation of the pre-existing condition of Plaintiff, then the conduct of the Answering 7 Defendants was not the legal cause of such conditions or injuries. 43. Injuries and damages, if any, which were sustained by Plaintiff as averred in Plaintiff,s Complaint, were caused in whole or in part by persons or entities over whom Answering Defendants had no duty to supervise or control and therefore, Answering Defendants are not liable, and Plaintiff may not recover against them. 44. Plaintiff,s injuries and losses, if any, were not caused by the conduct or negligence of Answering Defendants, but rather were caused by pre-existing medical conditions and causes beyond the control of Answering Defendants and therefore, Answering Defendants are not liable, and Plaintiff may not recover against them. 45. At all times relevant hereto, Dr. Kundu was a competent and qualified physician acting in compliance with the applicable standard of care. 46. Any acts or omissions of Dr. Kundu alleged to constitute negligence were not substantial factors contributing to the injuries and damages alleged in Plaintiff,s Complaint. 47. To the extent applicable, or to the extent it may later become applicable, Answering Defendants assert the statute of limitations to personal injury actions to preserve this affirmative defense for the record. 48. Answering Defendants assert all defenses and immunities afforded under the Health Care Services Malpractice Act, as amended. 8 WHEREFORE, Defendants, Sambhu N. Kundu, M.D. and Central Pennsylvania Obstetrics-Gynecology, Inc. hereby demand judgment in their favor and against Plaintiff. Date: By: Respectfully submitted, FOULKROD ELLIS P~TIiN L~Z~/~JF Ellis, Esquire AarSr~,~. Jayman, Esquire Attorney I.D. No. 85651 Attorneys for Defendants, Sambhu N. Kundu, M.D. and Central Pennsylvania Obstetrics-Gynecology, Inc. 1800 Linglestow-n Road Harrisburg, PA 17110 (717) 213-4200 Suite 305 9 FE~-20 02 10:54 FROM:OB ~YN INC 717-761-3950 TO:i 717 2134202 PAGE:02 I, SAMBHu N. KUNDU, M.D. individually and on behalf of CENTRAL PENNSYLVANIA OESTETRICS-GYNECOLOGy, INC. have read the foregoing ANSWER AND NEW MATTER TO PLAINTIPF,S COMPLAINT which has been drafted by my counsel on our behalf. The information COntained therein is based Upon information I have provided to my Counsel but the wording and phraseology is not mine. The information contained in the ANSWER AND NEW MATTER is true and correct to the best of my knowledge, information and belief. This Verification is made subject to the penalties of 18 Pa.C.S.A. §4904, relating to unsworn fabrication to au~hori=ies which provides that, if I knowingly make false averments, I may be subject to criminal penalties. Date: Sambhu N. Kundu, M.D. individually, and on behalf of Central Pennsylvania Ohs =et tics - Gynecol o~y, Inc. FEB-20-2~2 12:36 717 761 3950 967. P.02 Exhibit A FOULKROD ELLIS PROFESSIONAL CORPORATION 1800 Linglestown Road - Suite 305 Harrisburg, Pennsylvania 17110 Telephone: [717] 213-4200 Fax: [717] 2134202 PATRICIA BETTGER, Plaintiff SAMBHU N. KUNDU, M.D., AND CENTR3%L PENNSYLVANIA OBSTETRICS-GYNECOLOGY, INC., Defendants : PENNSYLVANIA : NO. 01-6391 : CIVIL ACTION - LAW : : JURY TRIAL DEMANDED Attorney for Defendants: Sambhu N. Kundu, M.D., and Central Pennsylvania OB-GYN. Inc. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PRAECIPE TO FILE STIPULATION TO: PROTHONOTAI{Y OF CUMBERLAND COUNTY, PENNYSLVANIA Kindly file of record the attached stipulation. Dated: Aa , Esquire Att~n~ I.D. No. 85651 Att6rney for Sambhu Kundu, M.D., and Central Pennsylvania Obstetrics- Gynecology, Inc PATRICIA BETTGER, Plaintiff Vo SAI~BHU N. KUNDU, M.D., AND CENTRJkL PENNSYLVANIA OBSTETRICS-GYNECOLOGY, INC., Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 01-6391 CIVIL ACTION - LAW JURY TRIAL DEMANDED STIPULATION AND NOW, comes Plaintiff, Patricia Bettger, by and through her counsel, Patti Collins Lerda, Esquire, and Defendants, Sarabhu N. Kundu, M.D. and Central Pennsylvania Obstetrics-Gynecology, Inc., by and through their counsel, Jayman, Esquire, and hereby stipulate and agree as Aaron S. follows: 1. Counsel hereby represent and warrant that they are authorized to enter into this Stipulation on behalf of their respective clients. 2. Plaintiff will not assert a cause of action against Central Pennsylvania Obstetrics-Gynecolog];, Inc., on a theory of corporate negligence. 3. Sub-paragraph 31(j) is stricken, with prejudice, from paragraph 31 of Plaintiff's Complaint. 4. Sub-paragraph 31(k) of paragraph 31 of Plaintiff's Complaint is amended to read: Providing medical care and treatment below the accepted standard of care for treatment for the reasons set forth in this Complaint. 5. Defendants are granted a reasonable extension of time in which to file their Answer and New Matter. Date: MARTIN & LERDA Patti Collins Lerda, Esquire Counsel for Plaintiff Date: FOULKROD ELLIS PROF~SS~ CORPOP~ATION Aa~ ~ ~ayman, Esquire Coun~ f~or Defendants CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing, ANSWER AND NEW MATTER OF DEFENDANTS, SAMBHU N. KUNDU, M.D. AND CENTP~AL PENNSYLVANIA OBSTETRICS-GYNECOLOGY, INC. TO PLAINTIFF'S COMPLAINT was served upon counsel of record this 25th day of February, 2002 by depositing said copy in the United States Mail at Harrisburg, Pennsylvania, postage prepaid, first class delivery, and addressed as follows: Patti Collins Lerda, Esquire Martin & Lerda 2006 Noble Street Pittsburgh, PA 15218 FOULKROD ELLIS PROFESSIONAL CORPOR.A~ION IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA PATRICIA BETTGER, Plaintiff, SAMBHU N. KUNDU, M.D. and OBSTETRICS AND GYNECOLOGY, INC., Defendants. CIVIL DIVISION Code: No. 01-6391 Civil PLAINTIFF'S REPLY TO DEFENDANTS' NEW MATTER Filed On Behalf Off Patricia Bettger, Plaintiff Counsel of Record for This Party: Patti Collins L~rda, Esq. Pa. ID No. 56492 MARTIN & LERDA 2006 Noble Street Pittsburgh, PA 15218 412/271-6800 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL DIVISION PATRICIA BETTGER, Plaintiff, SAMBHU N. KUNDU, M.D. and OBSTETRICS AND GYNECOLOGY, INC., Defendants. No. 01-6391 Civil PLAINTIFF'S REPLY TO DEFENDANTS' NEW MATTEl'[ 34. The allegations contained in Paragraph 34 of Defendants' New Matter state conclusions of law to which no response is deemed necessary. 35. The allegations contained in Paragraph 35 of Defendants' New Matter state conclusions of law to which no response is deemed necessary. 36. The allegations contained in Paragraph 36 of Defendants' New Matter state conclusions of law to which no response is deemed necessary. 37. The allegations contained in Paragraph 37 of Defendants' New Matter state conclusions of law to which no response is deemed necessary. 38. Denied. It is specifically denied that Defendant Kundu acted in accordance with the applicable standard of care in providing medical treatment to the Plaintiff. 39. The allegations contained in Paragraph 39 of Defendants' New Matter state conclusions of law to which no response is deemed necessary. To the extent that a response is deemed necessary, it is strictly denied that Plaintiff assumed any risk of her injuries during her medical treatment by Defendants. 40. The allegations contained in Paragraph 40 of Defendants' New Matter state conclusions of law to which no response is deemed necessary. To the extent that a response is deemed necessary, all of Plaintiffs injuries and damages were solely caused by Defendants' negligence as stated in Plaintiff's Complaint, incorporated herein by reference. 41. The allegations contained in Paragraph 41 of Defendants' New Matter state conclusions of law to which no response is deemed necessmy. To the extent that a response is deemed necessary, Plaintiff's injuries and damages were caused solely by Defendants' negligence as stated in Plaintiff's Complaint. 42. The allegations contained in Paragraph 42 of Defendants' New Matter state conclusions of law to which no response is deemed necessary. 43. The allegations contained in Paragraph 43 of Defendants' New Matter state conclusions of law to which no response is deemed necessary. 44. The allegations contained in Paragraph 44 of Defendants' New Matter state conclusions of law to which no response is deemed necessary. To the extent that a response is deemed necessary, all of Plaintiff's injuries and damages were solely caused by the conduct and negligence of Defendants and not by any pre-existing medical conditions or causes beyond the control of Defendants. -2- 45. Denied. It is specifically denied that Defendant Kundu was a competent, qualified physician acting in compliance with the applicable standards of care during his medical treatment of the Plaintiff. 46. The allegations contained in Paragraph 46 of Defendants' New Matter state conclusions of law to which no response is deemed necessary. 47. The allegations contained in Paragraph 47 of Defendants' New Matter state conclusions of law to which no response is deemed necessary. 48. The allegations contained in Paragraph 48 of Defendants' New Matter state conclusions of law to which no response is deemed necessary. Dated: Respectfully submitted, ' Patti Collins Lerda Attorney for Plaintiff -3- CERTIFICATE OF SERVICE I hereby certify that I served the foregoing Plaintiff's Reply to Defendants' New Matter by United States first-class mail, postage prepaid, on the /~day ofMarch, 2002, upon the following: Aaron S. Jayman, Esq. FOULKROD ELLIS, P.C. 1800 Linglestown Road, Suite 305 Harrisburg, PA 17110 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA PATRICIA BETTGER, Plaintiff, SAMBHU N. KUNDU, M.D. and OBSTETRICS AND GYNECOLOGY, INC., Defendants. CIVIL DIVISION Code: No. 01-6391 Civil STIPULATION TO CORRECT NAME OF DEFENDANT Filed On Behalf Of: Patricia Bettger, Plaintiff Counsel of Record for This Party: Patti Collins Lerda, Esq. Pa. ID No. 56492 MARTIN & LERDA 2006 Noble Street Pittsburgh, PA 15218 412/271-6800 ss IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CWIL DIVISION PATRICIA BETTGER, ) ) Plaintiff, ) ) v. ) ) SAMBHU N. KUNDU, M.D. and ) OBSTETRICS AND GY2XlECOLOGY, ) INC., ) ) Defendants. ) No. 01-6391 Civil STIPULATION TO CORRECT NAME OF DEFENDANT AND NOW COME the parties, by and through their undersigned counsel, and file the following Stipulation to Correct Name of Defendant as follows: 1. Counsel for Plaintiffs and Counsel for Defendants agree that Defendant Central Pennsylvania Obstetrics-Gynecology, Inc. should be the proper Defendant listed in the above- captioned case, now improperly designated as Obstetrics and Gynecology, Inc. 2. The caption of this case is hereby amended to name Central Pennsylvania Obstetrics- Gynecology, Inc. as a Defendant. 3. All parties agree that all references in Plaintiffs' Complaint, Defendants' Answer and all other pleadings shall be seen to refer to Central Pennsylvania Obstetrics-Gynecology, Inc. who shall be hereafter listed as the proper Defendant. Respectfully submitted, for Defendants Dated: ~/~._ Patti Collins Lerda Attorney for Plaintiff Dated: -2- CERTIFICATE Pe~m~QUISITE TO SERVICE Off A SUBPOENA PURSUANT TO RULE 4009.22 IN THE MATTER OF: PATRICIA BETTGER COU~T OF C0~0N PLEAS TERM, KUNDU, ET AL -VS- CASE NO: 01-6391 .As a prerequisite to service of a subpoena for documents and things pursuant to Rule 4009.22 MCS on behalf of AARON S. JAYMAN, ESq. certifies that (1) A notice of intent to serve the subpoena with a copy of the subpoena attached thereto was mailed or delivered to each party at least twenty days prior to the date on which the subpoena is sought to be served, (2) A copy of the notice of intent, including the proposed subpoena, is attached to this certificate, (3) No objection to the subpoena has been received, and (4) The subpoena which will be served is identical to the subpoena which is attached to the notice of intent to serve the subpoena. DATE: 08~07~2002 n beha~l~ of AAKON $. JAYMAN, ESq. Attorney for DEFENDANT DEll-356462 01003 --LO1 COl~l,~Ol~--wa;~I~TH OF PENNS'~'I~V~I~IA COUNTY OF CT31~IBEI~LAND IN THE MATTER OF: PATRICIA BETTGER ICONDU, ET AL oVS- COURT OF CO~0N PLEAS TERM, CASE NO: 01-6391 NOTICE OF INTENT TO SERVE A SUBPOEN~ TO PRODUCE ~S AND THINGS FOR DISCOVERY PURSUANT TO RUf.R 4009.21 DR. JONATHAN TOCKS DR. PEROUT~A MEDICAL RECORDS ~mICAL RECORDS TO: PATTI COLLINS LE~DA, ESQ. HCS on behalf of AARfl# S. JAYH~, ESq. intends to serve a subpoena identical to the one that is attached to this notice. You have t~enty (20) days from the date listed below in which to file of record and serve upon the undersigned an objection to the subpoena. If the t~enty day noticeperiod is waived or if no objection is amde, then the subpoena may be served. Complete copies of any reproduced records may be ordered at your expense by completing the attached counsel card and returning same to HCS or by contacting our local l~S office. DAI~: 0711812002 CC= AARON S. JA~AN, ESQ. REITH eTC~aen - 3379 Any questions re~arding this matter, contact MCS on behalf of AARON S. JAYMAHt KSq. Attorney for DaeS, NL, AIIT THE MCS GROUP IIIC. 1601 MAerItT STm~T ~800 PHTI~.A, DKLPHIA, PA 19103 (215) 246-0900 DE02-194108 O1OO3--CO2 COMMONWEALTH OF PENNSYLVANL~ COUNTY OF CUMBERLAND PATRICIA BETTGER -VS- : File No. 01-6391 : : : KUNDU, ET AL SUBPOENA TO PRODUCE DOCUMENTS OR THING,e, FOR DISCOVERY PURSUANT TO RULE 4009-~ TO: CUSTODIAN OF RECORDS FOR: DR. JONATFu~ B. TOCKS, H.D. (Name of Perton or Eatity) Within twenty (20) days ~'ter service of this subpo*ni, you are ordered by the court to produce the following documents or thin~: SEE ATTACHED at THE MCS GROUP INC., 1601 MARKET STREET, SUITE 800, PHILADELPHIA PA 19103 -- (Addre#) You may deliver or mail legible copies of the documents or produce things requested by this subpoena, together with the certificate of compliance, to the party making this request at the address listed above. You have the right to seek, in advance, the reasonable cost of preparing the copies or producing the things sought. If you fail to produce the documents or things required by this subpoena, wL'hin twenty (20) days a~ter its service, the party serving this subpoena may seek a court order compelling you to comply with it. THIS SUBPOENA WAS ISSUED AT THE REQUEST OF THE FOLLOWING PERSON: NAME: AARON S. JAYI~L~, ESQ. ADDRESS: 1800 LTNGLESTOWN RD., SUITE 305 HARRISBURG PA 17110 TELEPHONE: {215) 246-0900 SUPREME COURT ID ~ A'I'rORNEY FOR: TIIE DEFENDANT DATE: Seal o~ the Court EXPLANATION OF REQUIRED RECORDS TO: CUSTODIAN OF RECORDS FOR: DR. JONATHAN TOCKS 4470 VALLEY ROAD ENOLA, PA 17025 RE: 1003 PATRICIA BETrGER Any and all records, correspondence, files and memorandums, handwritten notes, billing and payment records, relating to any examination, consultation, care or treatment. Dates Requested: up to and including the present. Subject: PATRICIA BETTG~ 3825 CARRIAGE HOUSE DRIVE, CAMP HILL, PA 17011 SociM Security #: 018-36-5633 Date of Birth: 06-22-1947 SU10-386578 01003 --LO1 CERTIFICAT~ PRER~QUISIT~ TO SERVICE OF A SUBPOENA PURSUANT TO RUL~ 4009.22 IN THE MATTER OF= PATRIC~A BETTGER COURT OF COI.~f0N PLEAS TERM, KUNDU, ET AL -VS- CASE NO= 01-6391 As a prerequisite to service of a subpoena for documents and things pursuant to Rule 4009.22 HCS on behalf of AARON S. JAYHAN~ ESq. certifies that (1) A notice of intent to serve the subpoena with a copy of the subpoena attached thereto was mailed or delivered to each party at least twenty days prior to the date on which the subpoena is sought to be served, (2) A copy of the notice of intent, including the proposed subpoena, is attached to this certificate, (3) No objection to the subpoena has been received, and (4) The subpoena which will be served is identical to the subpoena which is attached to the notice of intent to serve the subpoena. DATE, 08~07~2002 MCS on behalf of AARON S. JAYMAN~ ES~. Attorney for DEFENDANT DEll-356463 01003--L02 COI41~O~.~T-TH OF PENNSI'I.V.~d~IIA GOUNTY OF GIYI~IBEP. I../tI~D IN THE HATTEK OF: PATRICIA BETTGER KUNDU, ET AL -VSo COURT OF C0~fl/0N PLEAS TERM, CASE NO: 01-6391 NOTICE OF INTENT TO SERVE A SUBPOENA TO PRODUCE DOCI~ENTS AND THINGS FOR DISCOVERY PUI/SUAIIT TO RUT.w 4009.21 DH. JONATH~N TOCES DH. PEHOUTEA TO: PATTI COLLINS LERDA, ES on behalf of AAIOll S. JA~llt ES(~. iate~ds to serve a subpoena identical to the one that i8 attached to ~h~a notice. You have twenty (20) daya from the date listed beime in wkich to file of record and serve upon the underoi~ned an objection to the subpoe~. If the twenty day notice period is waived or if no objection ia mda, then the subpoena my be served. Complete copies of any reproduced records my be ordered at your ezpense the attached counsel card and return~ns a~ to I~S or by contact~ our local I~S off:Lce. DAYK: 0711812002 CC~ AABnW S. JA'fllAII, - 5579 Any queatton! re~rdhg thil rotter, contact HCS on behalf of AAHOll S. JA~fl~All~ ES~. Attorney for ~ 1~ MC8 &q~UP INC. 1601 M&HE~T Sl~aT ~000 PHiLADeLPhiA. PA 19105 (215) 24.6-0900 DE02-19410~ OiOO3--CO2 COMMONWEALTH OF PENNSYLVANIA COUNTY OF CUMBERLAND PATRICIA BETTGER -VS- KUNDU, ET AL File No. 01-63~I SUBPOENA TO PRODUCE DOCUMENTS OR THINGS FOR DISCOVERY PURSUANT TO RULE 4009.22 TO: CUSTODIAN OF REcoRDs FOR: DR. PEROUTKA (Nam* of Penon or F. ntit~) Within twenty (20) days after service of thia subpo?na, you are ordered by the court to produce the following documents or things: SEE ATTACHED at THE MCS GROUP INC., 1601 MARKET STREET, SUITE 800, PHILADELPHIA PA 19103 (Ad~) You may deliver or mail le~ble copies of the documents or produce things requested by this subpoena, together with the certificate of compliance, to the party making this request at the address listed above. You have the right to seek. in advance, the reasonable cost of preparing the copies or producing the things sought. If you fail to produce the documents or things required by this subpoena, within twenty (20) days after its service, the party serving this subpoena may seek a court order compelling you to comply with it. THIS SUBPOENA WAS ISSUED AT THE REQUEST OF THE FOLLOWING PERSON: NAME: AARON S. ,lAYMAN, ESQ. ADDRESS: 1800 LINGLESTOWN RD., SUITE 305 HARRISBURG PA 17110 TELEPHONE: {215) 246-0900 SUPREME COURT ID #: AI'rORNEY FOR: TEE DEFENDANT Seal of the Court ~XPLANATION OF Itl~'.QUi~lr.D I~g. CORDS TO: CUSTODIAN OF RECORDS FOR: DR. PEROUTKA 3912 TRINGI.E ROAD CAMP HII.I., PA 17011 PATRIClA BE'YI~ER notes, billing nnd payment records, relating to any exnnnnnnon, ca~k.~ultafiotl, ~ Of tfoatmcnt. Snhjeet: I)A_TI~_.C~__ B~-'TI~F,R _ __ 382S CARRIAGE HOUSE DRIVE, CAMI' Flil.I., PA 17011 Sold Security & 018-36-5633 Date of Biff]t: 06-22-.1947 SU10-386496 O1. OO3=I-.O2 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA PATRICIA BETTGER, Plaintiff, SAMBHU N. KUNDU, M.D. and OBSTETRICS AND GYNECOLOGY, INC., Defendants. CIVIL DIVISION Code: No. 01-6391 Civil PRAECIPE TO DISCONTINUE Filed On Behalf O£: Patricia Be~tger, Plaintiff Counsel of Record for This Party: Patti Collins Lerda, Esq. Pa. ID No. :56492 MARTIN & LERDA 2006 Noble Street Pittsburgh, ]?A 15218 412/271-681)0 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL DIVISION PATRICIA BETTGER, Vo Plaintiff, SAMBHU N. KUNDU, M.D. and OBSTETRICS AND GYNECOLOGY, INC., Defendants. No. 01-6391 Civil PRAECIPE TO DISCONTINUE TO THE PROTHONOTARY: Kindly mark the above-captioned case DISCONTINUED, with prejudice. Respectfully submitted, Patti Collins Lerda Attorney fi)r Plaintiff CERTIFICATE OF SERVICE I hereby certify that I served the foregoing Praecipe to Discontinue by United States first- class mail, postage prepaid, on the /~r~day of May, 2004, upon the following: Aaron S. Jayman, Esq. FOULKROD ELLIS, P.C. 1800 Linglestown Road, Suite 3~3,5 Harrisburg, PA 17110 Patti Collhas Lerda