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Home My WebLink About08-2830KLINE & SPECTER, A Professional Corporation BY: THOMAS R. KLINE, ESQUIRE ANDREW S. YOUMAN, ESQUIRE KILA B. BALDWIN, ESQUIRE IDENTIFICATION NO. 28895/65924/94430 Nineteenth Floor 1525 Locust Street Philadelphia, Pennsylvania 19102 (215) 772-1000 DOUGLAS WISER and BARBARA WISER, h/w Plaintiffs, vs. BAXTER DREW WELLMON, II, D.O. and BAXTER DREW WELLMON, II, D.O FAMILY PRACTICE Defendants Attorneys for Plaintiffs COURT OF COMMON PLEAS CUMBERLAND COUNTY NO. 0$ - 2%"6C> -Ff'm JURY TRIAL DEMANDED YOU HAVE BEEN SUED IN COURT. IF YOU WISH TO DEFEND AGAINST THE CLAIMS SET FORTH IN THE FOLLOWING PAGES, YOU MUST TAKE ACTION WITH IN TWENTY (20) DAYS AFTER THIS COMPLAINT AND NOTICE ARE SERVED, BY ENTERING A WRITTEN APPEARANCE PERSONALLY OR BY AN ATTORNEY AND FILING IN WRITING WITH THE COURT YOUR DEFENSES OR OBJECTIONS TO THE CLAIMS 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 THE TELEPHONE OR THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. CUMBERLAND COUNTY BAR ASSOCIATION 32 SOUTH BEDFORD STREET CARLISLE, PA 17013 1-800-990-9108 717-249-3166 KLINE & SPECTER, A Professional Corporation BY: THOMAS R. KLINE, ESQUIRE ANDREW S. YOUMAN, ESQUIRE KILA B. BALDWIN, ESQUIRE IDENTIFICATION NO. 28895/65924/94430 Nineteenth Floor 1525 Locust Street Philadelphia, Pennsylvania 19102 (215) 772-1000 Attorneys for Plaintiffs DOUGLAS WISER and BARBARA WISER, h/w 1838 Ritner Highway Shippensburg, PA 17257 Plaintiffs, vs. BAXTER DREW WELLMON, H, D.O 127 Walnut Bottom Road Shippensburg, PA 17257 and BAXTER DREW WELLMON, II, D.O. FAMILY PRACTICE 127 Walnut Bottom Road Shippensburg, PA 17257 Defendants. COURT OF COMMON PLEAS CUMBERLAND COUNTY NO. JURY TRIAL DEMANDED NOTICE You have been sued in court. If you wish to defend against the claims set forth in the following pages, you must take action within twenty (20) days after this complaint and notice are served, by entering a written appearance personally or by attorney and filing in writing with the court your defenses or objections to the claims set forth against you. You are warned that if you fail to do so the case may proceed without you and a judgment may be entered against you by the court without further notice for any money claimed in the complaint or for any other claim or relief requested by the plaintiff. You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW. THIS OFFICE CAN PROVIDE YOU WITH INFORMATION ABOUT HIRING A LAWYER. IF YOU CANNOT AFFORD TO HIRE A LAWYER, THIS OFFICE MAY BE ABLE TO PROVIDE YOU WITH INFORMATION ABOUT AGENCIES THAT MAY OFFER LEGAL SERVICES TO ELIGIBLE PERSONS AT A REDUCED FEE OR NO FEE. Lawyer Referral Service Montgomery County Bar Association 100 West Airy Street, P.O. Box 268 Norristown, Pennsylvania 19404 (610) 279-9660 Ext. 202 ADVISO Le ban demandado a used en la corte. Si usted quiere defenderse de estas demandas expuestas en las paginas siguientes, usted tiene veinte (20) dias de plazo al partir de la fecha de la demanda y la notificacion. Hace falta asentar una comparencia escrita o en persona o con un abogado y entregar a la corte en forma escrita sus defensas o sus objeciones a las demandas en contra de su persona. Sea avisado que si usted no se defiende, la corte tomara medidas y puede continuar la demanda en contra suya sin previo aviso o notificacion. Ademas, la corte pueda decidir a favor del demandante y requiere que usted cumpla con todas las provisioner de esta demanda. Usted puede perder dinero o sus propiedades u otros derechos importantes para usted. LLEVE ESTA DEMANDA A UN ABOGADO INMEDIATAMENTE, SI NO TIENE ABOGADO O SI NO TIENE EL DINERO SUFICIENTE DE PAGAR TAL SERVICIO, VAYA EN PERSONA O LLAME POR TELEFONO A LA OFICINA CUYA DIRECCION SE ENCUENTRA ESCRITA ABAJO PARA AVERIGUAR DONDE SE PUEDE CONSEGUIR ASISTENCIA LEGAL. ESTA OFICINA LO PUEDE PROPORCIONAR CON INFORMACION ACERCA DE EMPLEAR A UN ABOGADO. SI USTED NO PUEDE PROPORCIONAR PARA EMPLEAR UN ABOGADO, ESTA OFICINA PUEDE SER CAPAZ DE PROPORCIONARLO CON INFORMACION ACERCA DE LAS AGENCIAS QUE PUEDEN OFRECER LOS SERVICOS LEGALES A PERSONAS ELEGIBLES EN UN HONORARIO REDUCIDO NINGUN HONORARIO. Lawyer Referral Service Montgomery County Bar Association 100 West Airy Street, P.O. Box 268 Norristown, Pennsylvania 19404 (610) 279-9660 Ext. 202 CIVIL ACTION COMPLAINT Plaintiffs, by and through their undersigned attorneys, Kline & Specter, P.C., hereby demand damages of the Defendants in a sum in excess of the local arbitration limits, exclusive of interest, costs and damages for prejudgment delay, upon the causes of action set forth below: 1. Plaintiff Douglas wiser ("Mr. Wiser"), is an adult, individual, and citizen of the Commonwealth of Pennsylvania, residing therein at 1838 Ritner Highway, Shippensburg, PA 17257. 2. Plaintiff Barbara Wiser ("Mrs. Wiser"), is an adult, individual, and citizen of the Commonwealth ofPennsylvania, residing therein at 1838 Ritner Highway, Shippensburg, PA 17257. 3. Defendant Baxter Drew Wellmon, 11, D.O. ("Dr. Wellmon"), is a duly licensed and practicing physician specializing in internal medicine with a professional office at 127 Walnut Bottom Road, Shippensburg, PA 17257. Plaintiffs are asserting aprofessional liability claim against Defendant Dr. Wellmon as stated more fully herein. 4. Defendant Baxter Drew Wellmon, U, D.O. Family Practice ("Family Practice"), is a partnership, corporation, or other jural entity organized and existing under the laws of the Commonwealth of Pennsylvania which maintains a professional office located at 127 Walnut Bottom Road, Shippensburg, PA 17257. 5. At all times relevant hereto, Defendant Dr. Wellmon was acting as an officer, director, managing agent, agent, ostensible agent, apparent agent, shareholder, and/or employee of Defendant Family Practice. The claims asserted against this Defendant are for professional negligence of its agents, employees and servants as stated more fully herein. As stated more fully herein, a claim for corporate negligence under Thompson v. Nason, 591 A.2d 703 (Pa. 1991), and its progeny is also asserted against this Defendant. 2 6. At all times relevant hereto, all Defendants were acting by themselves or by and through their agents (actual or ostensible), servants and/or employees including but not limited to the physicians, nurses, physician assistants, medical technicians, and other office personnel who rendered care and treatment to Mr. Wiser on or about March 23, 2006 through May 19, 2006 and who were responsible for attending to Mr. Wiser. The identities of other individuals involved in the events described herein are in the exclusive custody and control of Defendants and will be the subject of discovery. 7. At all times relevant hereto, Defendants were Mr. Wiser's primary care physician and practice and Mr. Wiser was under their care. 8. Plaintiffs' injuries and damages set forth below were caused solely and exclusively by the negligence of Defendants and/or their agents (actual or ostensible), servants and employees and were due in no manner whatsoever to any act or failure to act on his part. 9. At all times relevant hereto, all Defendants had a duty to conform to the standards of care required of them in their respective medical specialities as described herein. FACTUAL BACKGROUND 10. On or about January 4, 2006, Mr. Wiser had oral surgery to have a tooth removed. This surgery was performed by Dr. Charles L. Stoup Jr., D.D.S. ("Dr. Stoup") 11. On or about January 18, 2006, Dr. Stoup performed additional surgery on Mr. Wiser to remove a portion of his exposed lingual bone. 12. At all times relevant hereto, Defendants were aware or should have been aware that dental procedures such as those Mr. Wiser underwent put a patient at increased risk for bacterial endocarditis infection. 13. On or about March 23, 2006, Mr. Wiser presented to Dr. Wellmon at Family Practice with signs and symptoms and a history consistent with and suggestive of bacterial endocarditis, including but not limited to fever, joint aches, shortness of breath, flu-like symptoms and a recent history of dental procedures. 14. According to the records, on or about March 23, 2006, Dr. Wellmon prescribed doxycycline, and instructed Mr. Wiser to return to the office if there was no improvement in one week. 15. On March 23, 2006, Dr. Wellmon failed to take an appropriate and complete history, failed to perform a proper work-up and examination and failed to recognize the significance of Mr. Wiser's presenting signs, symptoms and history. 16. In or around March of 2006, Mr. Wiser was traveling to South Carolina from time to time to visit his ailing father-in-law. 17. On or about March 3, 2006, Mr. Wiser had visited Piedmont West Urgent Care Center in York, South Carolina ("Piedmont West") with complaints of sudden onset fever, cough, congestion, and body ache. This information was known or should have been known to Defendants as of March 23, 2006. 18. On or about April 4, 2006, Mr. Wiser visited Piedmont West with complaints including fever, joint aches and chronic tiredness. Mr. Wiser expressed a concern about having contracted Lyme Disease. Piedmont West ordered blood tests as well as a check for Rocky Mountain Spotted Fever and Lyme Disease and wrote Mr. Wiser a prescription for Levaquin. 19. On or about April 7, 2006, Mr. Wiser was screened for Lyme Disease by Quest Diagnostics. Although the Lyme AB screen was positive, the Lyme Disease IGG and IGM Western 4 Blot was negative, indicating that he did not have Lyme Disease. The blood tests also evidenced abnormal lab values, including but not limited to an increased sedimentation rate. 20. The above reports were sent to Dr. Wellmon's office and were known or should have been known to Defendants as of April 18, 2006. 21. On or about April 18, 2006, Mr. Wiser again presented to Dr. Wellmon at Family Practice with signs and symptoms consistent with and suggestive ofbacterial endocarditis, including but not limited to fever, joint aches, headache, chills, sweats, nausea, fatigue, weakness and shortness of breath. 22. Dr. Wellmon noted that Mr. Wiser "demonstrates diffuse constitutional symptoms and Lyme AB screen was positive patient will complete Levaquin prescribed by another practitioner and was given prescription for doxycycline and patient will follow up in office in two weeks." 23. On or about April 18, 2006, Dr. Wellmon again failed to take a proper history and again failed to recognize the signs and symptoms of bacterial endocarditis displayed by Mr. Wiser. Dr. Wellmon also failed to correctly interpret Mr. Wiser's Western Blot results and improperly ordered treatment for Lyme Disease despite the fact that his Western Blot was negative. 24. On or about April 28, 2006, Mr. Wiser again presented to Dr. Wellmon at Family Practice with signs and symptoms consistent with and suggestive of bacterial endocarditis. 25. On or about April 28, 2006, Dr. Wellmon's stated assessment and plan was "patients condition likely secondary to viral etiology and will chose and dramatically and supportive league is no improvement will finally further. Patient was instructed to return to office if no improvement in one week, and was invited to return sooner if symptoms worsen or any complications arise." 5 26. On April 28, 2006, Dr. Wellmon again failed to properly recognize the signs and symptoms of bacterial endocarditis displayed by Mr. Wiser. 27. On or about May 9, 2006, Mr. Wiser visited Piedmont West with complaints of fatigue and what Piedmont West determined to have been a TIA two days prior. 28. On or about May 9, 2006, Terry F. Hayes, M.D. of Piedmont West corresponded with Dr. Wellmon, reporting that Mr. Wiser had a TIA while visiting South Carolina, and that he needed further evaluation of his anemia, hematuria, and TIA, as well as a follow-up on his Lyme Disease. 29. Dr. Wellmon failed to appropriately follow up with Mr. Wiser for any of these conditions, as was required. 30. On or about May 17, 2006, Mr. Wiser visited Chambersburg Hospital with complaints of fatigue, high fevers, chills and night sweats. The physicians at Chambersburg Hospital ordered a cardiac pack, blood cultures, and a chest X-ray. It was noted that Mr. Wiser's previous Lyme Disease Western Blot screening was negative. 31. On or about May 17, 2006, Mr. Wiser was screened for Lyme Disease at the Chambersburg Hospital, and was found to be negative for Lyme Disease. 32. On or about May 19, 2006, Mr. Wiser was diagnosed at Chambersburg Hospital with extensive bacterial endocarditis with vegetations of the mitral valve, and at least moderate mitral regurgitation. He was also diagnosed with atherosclerotic changes of the aortic valve with moderate aortic insufficiency. The hospital could not exclude the possibility of vegetations or bacterial endocarditis on this valve, although there were not obvious vegetations appreciated. Mr. Wiser was deemed a candidate for mitral valve replacement, and the need for transfer to surgery was noted. 6 33. On or about May 19, 2006, Mr. Wiser was transferred to the Milton S. Hershey Medical Center for cardiac catheterization and a course of antibiotics. Mr. Wiser was to return after six full weeks of antibiotic treatment for surgery on his mitral valve. 34. On or about June 13, 2006, Mr. Wiser underwent mitral valve replacement. Following surgery, Mr. Wiser was prescribed Coumadin for his condition. 35. Due to the negligence and carelessness of Dr. Wellmon and Family Practice Center, there was a delay in the diagnosis ofMr. Wiser's bacterial endocarditis from March 23, 2006 through May 19, 2006, during which time his condition progressed and worsened, necessitating mitral valve replacement surgery and lifetime prescription for Coumadin. 36. The injuries to Mr. Wiser were caused solely and wholly by reason of the negligence of all Defendants, their agents, servants and/or employees, and were not caused or contributed thereto by any negligence on the part of Plaintiff, Mr. Wiser. 37. As a direct and proximate result of the negligence and carelessness of all Defendants, and their agents (actual or ostensible), servants, or employees, Mr. Wiser sustained personal injuries and damages all and some of which may be permanent, known and unknown, including but not limited to the following: a. Bacterial endocarditis; b. Mitral valve replacement surgery; C. Coumadin prescription and the sequella of events associated with this prescription; d. Bleeding problems; e. Blurred vision; 7 f. Problems controlling limbs; g. Slurred speech; h. Debilitating fatigue; i. Loss of opportunity for cure; j. Decreased life expectancy; k. Past and future physical pain and suffering; 1. Past and future mental anguish; in. Past and future severe emotional distress; n. Disfigurement; o. Past and future embarrassment; P. Past and future humiliation; q. Past and future loss of life's pleasures; r. Past and future loss of earnings; S. Incidental and other expenses; t. Past and future loss of household services; and, U. Past and future medical expenses. 38. As a direct and proximate result of the negligence and carelessness of all Defendants, and their agents (actual or ostensible), servants, or employees, Plaintiff Mrs. Wiser has suffered the loss of consortium o f her husband, Mr. Wiser. 8 FIRST CAUSE OF ACTION MEDICAL PROFESSIONAL NEGLIGENCE COUNTI DOUGLAS AND BARBARA WISER V. BAXTER DREW WELLMON II D.O. 39. The previous paragraphs are incorporated herein by reference and made a part thereof as if set forth in full. 40. The negligence of Defendant, Dr. Wellmon, his, agents (actual or ostensible), servants, and employees, and ostensible agents, consisted of one or more of the following: a. failure to conform to the acceptable standards of internal medicine by failing to correctly interpret Lyme Disease Western Blot results, take full and complete medical history, and properly recognize the signs and symptoms of bacterial endocarditis; b. failure to properly and correctly interpret Mr. Wiser's symptoms of bacterial endocarditis following dental surgery; C. failure to properly inquire as to history of dental surgery upon presentation with signs and symptoms of bacterial endocarditis; d. failure to make proper medical decisions about the diagnostic testing required for Mr. Wiser; e. failure to recommend further testing, including blood cultures and thorough cardiac examination upon presentation with signs and symptoms of bacterial endocarditis; ff, failure to anticipate and prevent the untoward condition of Mr. Wiser; 9 g. failure to appreciate the nature, gravity and significance of the signs and symptoms displayed by Mr. Wiser following dental surgery in January of 2006; h. failure to recommend and/or perform the necessary medical consultation and testing, including, but not limited to, cardiac and or infectious disease consultation upon presentation with signs and symptoms of bacterial endocarditis; i. failure to timely refer Mr. Wiser to proper specialists, including a cardiac surgeon, an infectious disease specialist, and/or another specialist for the diagnosis and treatment of his condition; j. failure to follow up on Mr. Wiser's TIA, anemia, and hematuria, as was required and recommended by other physicians; k. failure to take those steps a reasonably prudent physician would take in the management of Mr. Wiser's condition; 1. failure to properly evaluate Mr. Wiser's medical history and test results and make proper clinical findings and medical decision; M. failure to set forth a proper diagnosis and treatment plan on March 23, 2006 and thereafter; n. failure to provide necessary medical information to Mr. Wiser regarding his medical condition; and, o. negligently delaying the diagnosis of Mr. Wiser's bacterial endocarditis. 10 WHEREFORE, Plaintiffs Mr. and Mrs. Wiser respectfully demand judgment against Defendants, individually, jointly and severally, for sums in excess of the local arbitration limits in excess of $50,000.00, exclusive of interest, prejudgment interest and costs. COUNT II DOUGLAS AND BARBARA WISER V. BAXTER DREW WELLMON II D.O. FAMILY PRACTICE 41. The previous paragraphs are incorporated herein by reference and made a part thereof as if set forth in full. 42. The negligence of Defendant, Family Practice, his, agents (actual or ostensible), servants, and employees, and ostensible agents, consisted of one or more of the following: a. failure to conform to the acceptable standards of internal medicine by failing to correctly interpret Lyme Disease Western Blot results, take full and complete medical history, and properly recognize signs and symptoms of bacterial endocarditis; b. failure to properly and correctly interpret Mr. Wiser's symptoms of bacterial endocarditis following dental surgery; C. failure to properly inquire as to history of dental surgery upon presentation with signs and symptoms of bacterial endocarditis; d. failure to make proper medical decisions about the diagnostic testing required for Mr. Wiser; e. failure to recommend further testing, including blood cultures and thorough cardiac examination upon presentation with signs and symptoms of bacterial endocarditis; 11 f. failure to anticipate and prevent the untoward condition of Mr. Wiser; g. failure to appreciate the nature, gravity and significance of the signs and symptoms displayed by Mr. Wiser following dental surgery in January of 2006; h. failure to recommend and/or perform the necessary medical consultation and testing, including, but not limited to, cardiac and or infectious disease consultation upon presentation with signs and symptoms of bacterial endocarditis; i. failure to timely refer Mr. Wiser to proper specialists, including a cardiac surgeon, an infectious disease specialist, and/or another specialist for the diagnosis and treatment of his condition; J. failure to follow up on Mr. Wiser's TIA, anemia and hematuria, as was required and recommended by other physicians; k. failure to take those steps a reasonably prudent physician would take in the management of Mr. Wiser's condition; 1. failure to properly evaluate Mr. Wiser's medical history and test results and make proper clinical findings and medical decision; in. failure to set forth a proper diagnosis and treatment plan on March 23, 2006 and thereafter; n. failure to provide necessary medical information to Mr. Wiser regarding his medical condition; and, o. negligently delaying the diagnosis of Mr. Wiser's bacterial endocarditis. 12 WHEREFORE, Plaintiffs Mr. and Mrs. Wiser respectfully demand judgment against Defendants, individually, jointly and severally, for sums in excess of the local arbitration limits in excess of $50,000.00, exclusive of interest, prejudgment interest and costs. SECOND CAUSE OF ACTION CORPORATE NEGLIGENCE DOUGLAS AND BARBARA WISER V. BAXTER DREW WELLMON II D.O FAMILY PRACTICE 43. This is a claim of corporate negligence for a non-delegable duty to Mr. Wiser under Thompson v. Nason Hospital, 527 Pa. 330, 591A.2d 703 (1991) and its progeny by Defendant Family Practice. 44. The corporate negligence of Family Practice consisted of a breach of the following duties: a. deviating from the standard of care by failing to require that all physicians were properly and adequately trained to recognize and/or identify and treat bacterial endocarditis; b. deviating from the standard of care by failing to require that all physicians were properly and adequately trained to evaluate and diagnose bacterial endocarditis; C. deviating from the standard of care by failing to require and assure that all physicians were properly and adequately supervised so as to obtain full and complete appropriate medical histories, check prior medical history, perform full and complete evaluations, order and/or recommend needed and required follow up or repeat testing; and, 13 d. deviating from the standard of care by failing to properly and adequately diagnose Mr. Wiser's bacterial endocarditis. 45. The Defendant Family Practice failed to supervise and oversee the conduct of its medical staff by their: a. deviating from the standard of care by failing to provide adequate competent medical staff for the evaluation, treatment and diagnosis of patients presenting with signs and symptoms of bacterial endocarditis; b. deviating from the standard of care by failing to provide adequate supervisory oversight in order to ensure that proper consultation and follow-up occurred in response to patients showing medical signs and symptoms of bacterial endocarditis; C. deviating from the standard of care by failing to provide adequate supervisory oversight in order to ensure that proper consultation and follow-up occurred at each presentation to their facilities and that full and adequate medical histories were taken and full and complete evaluations were performed; d. deviating from the standard of care by failing to provide supervisory oversight to ensure that proper evaluation, interpretation, and reporting of symptoms, complaints and test results were performed; e. deviating from the standard of care by failing to provide supervisory oversight to ensure needed was performed; f. deviating from the standard of care by failing to provide adequate supervisory 14 oversight to ensure facilities were adequately equipped, staffed, and situated to provide adequate and appropriate care to Mr. Wiser; and, g. deviating from the standard of care by failing to timely diagnose Mr. Wiser's bacterial endocarditis. 47. The Defendant Family Practice failed to formulate, copy, review, revise and enforce adequate rules, policies, and procedures to ensure quality of care rendered for the safety of Mr. Wiser for the following: a. deviating from the standard of care by failing to adopt and implement policies, procedures, and/or protocols to ensure that patients with the medical signs and symptoms suspicious for bacterial endocarditis would be properly and timely attended to and followed up on at the time of presentation and at subsequent visits for the timely surgical and other intervention necessary for the treatment of that condition; b. deviating from the standard of care by failing to have policies, procedures, and/or protocols in place for the proper management of Mr. Wiser's bacterial endocarditis; C. deviating from the standard of care by failing to initiate appropriate physician intervention in response to patients with medical signs and symptoms of bacterial endocarditis, including proper communication with appropriate specialists and/or proper diagnostic testing; d. deviating from the standard of care by failing to have policies, procedures 15 and/or protocols to ensure the appropriate work-up of abnormal clinical, diagnostic, and/or other findings were completed; e. deviating from the standard of care by failing to implement, institute and enforce a policy, procedure, and/or protocol requiring prompt consultation, evaluation, and treatment in the face of signs and symptoms of bacterial endocarditis; and, f, deviating from the standard of care by failing to have policies, procedures and/or protocols to ensure that full and complete histories are obtained from patients at each presentation and follow-up and investigation of prior visits and symptoms is conducted and appropriate evaluations, consults, and testing ordered and performed at each visit given a patient's current presentation and history. WHEREFORE, Plaintiffs Mr. and Mrs. Wiser respectfully demand judgment against Defendants, individually, jointly and severally, for sums in excess of the local arbitration limits in excess of $50,000.00, exclusive of interest, prejudgment interest and costs. THIRD CAUSE OF ACTION LOSS OF CONSORTIUM BARBARA WISER v. ALL DEFENDANTS 48. The preceding paragraphs are incorporated by reference as though fully set forth herein. 49. As a result of the negligence of Defendants, jointly and severally, their agents, 16 servants, employees, and ostensible agents, as set forth herein, Plaintiff's wife, Mrs. Wiser, suffered the loss of services, society, comfort, and companionship of her husband, Mr. Wiser. 50. As a result of the negligence of Defendants, Mrs. Wiser claims the full measure of damages allowable under Pennsylvania law for the loss to her of the consortium of her husband, Mr. Wiser. WHEREFORE, Plaintiffs Mr. and Mrs. Wiser respectfully demand judgment against Defendants, individually, jointly and severally, for sums in excess of the local arbitration limits in excess of $50,000.00, exclusive of interest, prejudgment interest and costs. KLINE & SPECTER A Professional Corporation Date: Z? C>a By: THOMAS R. LE. ESQUIRE ANDREW S. Y AN, ESQUIRE KILA B. BALDWIN, ESQUIRE Attorneys for Plaintiffs 17 VERIFICATION ANDREW S. YOUMAN, hereby states that he is the attorney for the Plaintiffs in this action and verifies that the statements made in the foregoing Civil Action Complaint are true and correct to the best of his knowledge, information and belief. The undersigned understands that the statements herein are made subject to the penalties of 19 PA.C.S. §4904 relating to unswom falsification to authorities. Date: a9 D ANDREWS, Y UMAN, ESQUIRE Attorney for Plaintiffs VERIFICATION I, Douglas Wiser, hereby state that I am a Plaintiff in this action and that the facts set forth in the foregoing Complaint in Civil Action are true and correct to the best of my knowledge, information and belief. I understand that this statement is made subject to the penalties of 18 Pa. P.C.S.A. §4904 relating to unsworn falsification to authorities. IG 41C CA DOU S WISER DATE: 14 r- .1 q '? C)CP IK oho D u1 L D D 3 t KLINE & SPECTER, A Professional Corporation BY: THOMAS R. KLINE, ESQUIRE ANDREW S. YOUMAN, ESQUIRE KILA B. BALDWIN, ESQUIRE IDENTIFICATION NO. 28895/65924/94430 Nineteenth Floor 1525 Locust Street Philadelphia, Pennsylvania 19102 (215) 772-1000 Attorneys for Plaintiffs DOUGLAS WISER and COURT OF COMMON PLEAS BARBARA WISER, h/w CUMBERLAND COUNTY Plaintiffs, NO. ?C vs. JURY TRIAL DEMANDED BAXTER DREW WELLMON,11, D.O. and BAXTER DREW WELLMON,11, D.O. : FAMILY PRACTICE Defendants. X X Certificate of Merit as to BAXTER DREW WELLMON II D.O. FAMILY PRACTICE I, Kila B. Baldwin, certify that: An appropriate licensed professional has supplied a written statement to the undersigned that there is a basis to conclude that the care, skill or knowledge exercised or exhibited by this defendant in the treatment, practice or work that is the subject of the complaint, fell outside acceptable professional standards and that such conduct was a cause in bringing about the harm; OR An appropriate licensed professional has supplied a written statement to the undersigned that there is a basis to conclude that the care, skill or knowledge exercised or exhibited by other licensed professionals for whom this defendant is responsible in the treatment, practice or work that is the subject of the complaint, fell outside acceptable professional standards and that such conduct was a cause in bringing about the harm; OR X the claim that this defendant deviated from an acceptable professional standard is based on allegations that other licensed professionals for whom this defendant is responsible deviated from an acceptable professional standard and an appropriate licensed professional has supplied a written statement to the undersigned that there is a basis to conclude that the care, skill or knowledge exercised or exhibited by the other licensed professionals in the treatment, practice or work that is the subject of the complaint, fell outside acceptable professional standards and that such conduct was a cause in bringing about the harms; OR expert testimony of an appropriate licensed professional is unnecessary for prosecution of the claim against this defendant. D 1 ate: KILA B. BALDWIN s KLINE & SPECTER, A Professional Corporation BY: THOMAS R. KLINE, ESQUIRE ANDREWS. YOUMAN, ESQUIRE KILA B. BALDWIN, ESQUIRE IDENTIFICATION NO. 28895/65924/94430 Nineteenth Floor 1525 Locust Street Philadelphia, Pennsylvania 19102 (215) 772-1000 COURT OF COMMON PLEAS CUMBERLAND COUNTY DOUGLAS WISER and BARBARA WISER, h/w Plaintiffs, vs. BAXTER DREW WELLMON, II, D.O. and BAXTER DREW WELLMON, II, D.O. FAMILY PRACTICE Attorneys for Plaintiffs NO. 0?- ?t S-YJ JURY TRIAL DEMANDED Defendants. X Certificate of Merit as to BAXTER DREW WELLMON II D O I, Kila B. Baldwin, certify that: An appropriate licensed professional has supplied a written statement to the undersigned that there is a basis to conclude that the care, skill or knowledge exercised or exhibited by this defendant in the treatment, practice or work that is the subject of the complaint, fell outside acceptable professional standards and that such conduct was a cause in bringing about the harm; OR An appropriate licensed professional has supplied a written statement to the undersigned that there is a basis to conclude that the care, skill or knowledge exercised or exhibited by other licensed professionals for whom this defendant is responsible in the treatment, practice or work that is the subject of the complaint, fell outside acceptable professional standards and that such conduct was a cause in bringing about the harm; OR the claim that this defendant deviated from an acceptable professional standard is based on allegations that other licensed professionals for whom this defendant is responsible deviated from an acceptable professional standard and an appropriate licensed professional has supplied a written statement to the undersigned that there is a basis to conclude that the care, skill or knowledge exercised or exhibited by the other licensed professionals in the treatment, practice or work that is the subject of the complaint, fell outside acceptable professional standards and that such conduct was a cause in bringing about the harms; OR 1:1 expert testimony of an appropriate licensed professional is unnecessary for prosecution of the claim against this defendant. Date: ,) A KILA B. BALDWIN I r FOULKROD ELL.IS Professional Corporation 2010 Market Street Camp Hill, Pennsylvania 17011 Telephone: (717) 909-7006 Fax: (717) 909-6955 DOUGLAS WISER AND BARBARA WISER, Plaintiffs V. BAXTER DREW WELLMON II, D.O. AND BAXTER DREW WELLMON II, D.O. FAMILY PRACTICE, Defendants Attorneys for Defendants: Baxter Drew Wellmon, D.O.,and Baxter Drew Wellmon, D.O., P.C. IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 08-2830 JURY TRIAL DEMANDED PRAECIPE FOR ENTRY OF APPEARANCE Kindly enter our appearance on behalf of Defendants, Baxter Drew Wellmon, D.O. and Baxter Drew Wellmon, D.O., P.C., in the above-referenced action. Respectfully submitted, Date: S --30 ^ D S FOULKROD ELLIS By: -__ LIf L1 Leigh A.. ins, Esquire Attorney I P. #53229 Cindy N. llis, Esquire Attorney I.D. #83823 CERTIFICATE OF SERVICE I HEREBY CERTIFY that true and correct copies of the foregoing were served upon all counsel of record this 30`h day of May 2008, by depositing said copy in the United States Mail at Camp Hill, Pennsylvania, postage prepaid, first class delivery, and addressed as follows: Andrew S. Youman, Esquire Kline & Specter Nineteenth Floor 1525 Locust Street Philadelphia, PA 19102 (Counsel to Plaintiffs) FOULKROD ELLIS PROF= NAL CO O TION By: Stacy L. Breo, Paralegal i ;. r%j `` C-7 T -% CASE NO: 2008-02830 P SHERIFF'S RETURN - REGULAR COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND WISER DOUGLAS ET AL VS WELLMON BAXTER DREW II DO ET RONALD E HOOVER , Sheriff or Deputy Sheriff of Cumberland County,Pennsylvania, who being duly sworn according to law, says, the within COMPLAINT & NOTICE was served upon WELLMON BAXTER DREW II DO the DEFENDANT , at 0017:37 HOURS, on the 22nd day of May 2008 at 127 WALNUT BOTTOM ROAD SHIPPENSBURG, PA 17257 by handing to LORI RAUBER OFFICE MANAGER a true and attested copy of COMPLAINT & NOTICE together with and at the same time directing Her attention to the contents thereof. Sheriff's Costs: Docketing Service Affidavit Surcharge 18.00 20.00 .00 10.00 .00 X8.00 Sworn and Subscibed to before me this day of , So Answers: 4?z- R. Thomas Kline 05/23/2008 KLINE & SPECTER By: ?2 ,411 Deputy Sheriff A. D. CASE NO: 2008-02830 P SHERIFF'S RETURN - REGULAR COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND WISER DOUGLAS ET AL VS WELLMON BAXTER DREW II DO ET RONALD E HOOVER , Sheriff or Deputy Sheriff of Cumberland County,Pennsylvania, who being duly sworn according to law, says, the within COMPLAINT & NOTICE was served upon BAXTER DREW WELLMON II DO FAMILY PRACTICE the DEFENDANT , at 0017:37 HOURS, on the 22nd day of May 2008 at 127 WALNUT BOTTOM ROAD SHIPPENSBURG, PA 17257 by handing to LORI RAUBER OFFICE MANAGER 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 L/b4fdg L 16.00 Sworn and Subscibed to before me this day of , So Answers: Thomas Klin 05/23/2008 KLINE & SPECTER By: Deputy heriff A. D. FOULKROD ELLIS Professional Corporation 2010 Market Street Camp Hill, Pennsylvania 17011 Telephone: (717) 909-7006 Fax: (717) 909-6955 Attorneys for Defendants: Baxter Drew Wellmon, D.O.,and Baxter Drew Wellmon, D.O., P.C. DOUGLAS WISER AND BARBARA WISER, Plaintiffs V. BAXTER DREW WELLMON II, D.O. AND BAXTER DREW WELLMON II, D.O. FAMILY PRACTICE, Defendants IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 08-2830 JURY TRIAL DEMANDED PRELIMINARY OBJECTIONS OF DEFENDANTS TO PLAINTIFFS' COMPLAINT AND NOW come Defendants, Baxter Drew Wellmon, II, D.O. (hereinafter, "Dr. Wellmon") and Baxter Drew Wellmon, II, D.O. Family Practice (hereinafter, "the Family Practice") by and through their attorneys, Foulkrod Ellis, P.C., to file the within Preliminary Objections to Plaintiffs' Complaint as follows: The within medical malpractice action was initiated with the filing of a Complaint on May 2, 2008. A true and correct copy of the Complaint is attached hereto. 2. Service of the Complaint is docketed to have been achieved on May 22, 2008. 3. According to the Complaint, this case arises out of care and treatment provided to Plaintiff-husband by Dr. Wellmon is the spring of 2006. 4. Specifically, Plaintiffs allege that Dr. Wellmon failed to diagnose bacterial endocarditis suffered by Plaintiff-husband. All care and treatment provided by Dr. Wellmon appears to have been provided within his office within the exclusive practice of family medicine. PRELIMINARY OBJECTION IN THE NATURE OF A DEMURRER RELATING TO PLAINTIFFS' CORPORATE NEGLIGENCE CLAIM AGAINST BAXTER DREW WELLMON, II, D.O. FAMILY PRACTICE 6. Plaintiffs' Second Cause of Action sets forth allegations against the Family Practice that are representative of a corporate negligence claim. 7. Pennsylvania law does not recognize a direct corporate negligence claim against a physician practice such as the Family Practice. 8. The Family Practice is a private physician office that exclusively provides primary care to its patients. 9. The Superior Court has explicitly refused to extend the theory of corporate negligence to physician practice groups in Sutherland v. Monongahela Valley Hospital, 856 A.2d 55 (Pa. Super 2004). 10. The rationale behind a corporate negligence claim relates to the perception that "the corporate hospital of today has assumed the role of comprehensive health center with responsibility for arranging and coordinating the total health care of its patients." Id. 11. The Family Practice is in no way assuming the role of a "comprehensive health center with responsibility for arranging and coordinating the total health care of its patients." WHEREFORE, Moving Defendants respectfully request that this Honorable Court dismiss Plaintiffs' claim for direct corporate negligence against Defendant, Baxter Drew Wellmon, II, D.O. Family Practice, and strike Paragraph 5 and the Second Cause of Action from Plaintiffs' Complaint with prejudice. PRELIMINARY OBJECTION IN THE NATURE OF A MOTION TO STRIKE 12. Paragraphs 6, 36, 37, 38, 40, 42 and 49 of Plaintiffs' Complaint reference acts of unidentified agents, servant and/or employees of the Defendants as having been acts of negligence. 13. Pursuant to Pennsylvania law, Plaintiffs are required to specifically identify any agents, servants, and/or employees of the Defendant upon his actions the alleged liability is based. Alumni Association v. Sullivan, 535 A.2d 1092 (Pa. Super. 1987). 14. Plaintiffs have had the opportunity to conduct an investigation into this matter and obtain the relevant medical records. If they were unable to identify individuals by name, they could have identified the specific acts or at least dates of involvement. 15. Plaintiffs' lack of specificity as to identification of agents and their specific involvement is Plaintiff's care, is violative of Pa. R.C.P. 1019(a). 16. Plaintiffs' lack of specificity regarding agency, deprives Defendants of their ability to comply with Pa. R.C.P. 1029(e)(1) relating to specific denials relating to agency averments. WHEREFORE, Defendants respectfully request that Plaintiffs specifically identify individuals upon whom their negligence claims rest or be precluded from pursuing claims against any individual other that those specifically named and identified within the Complaint. PRELIMINARY OBJECTION IN THE NATURE OF A MOTION TO STRIKE 17. The following paragraphs of Plaintiffs' Complaint are objectionable in that they contain nothing more than "boiler plate" and "catch all" allegations of negligence that are not specific to this action and could be pled against any health care provider in any malpractice action: 40(f), 40(k), 40(1), 40(m), 40(n), 42(f), 42(k), 42(1), 42(m) and 42(n) 18. Pursuant to Pa. R.C.P. 1019(a), "the material facts on which a cause of action or defense is based shall be stated in concise and summary form." 19. It is Moving Defendants' perception that the case relates solely to an alleged negligence of Dr. Wellmon failure to diagnose and treat bacterial endocarditis. 20. The above-cited paragraphs are so general that they could relate to any care provided to Plaintiff-husband by Dr. Wellmon during the entire course of Plaintiff- husband's treatment with the office over any timeframe. 21. These allegations of negligence as they now read afford Plaintiffs the opportunity to introduce new theories of recovery at any time prior to the commencement of trial and after the expiration of the statute of limitations in violation of Connor v. Alleuhenv General Hosvital, 461 A.2d 600 (Pa. 1983). 22. Moving Defendants are prejudiced by these allegations, because a defense to these vague and conclusory allegations cannot be prepared. 23. Pursuant to Pa. R.C.P. 1028, this Court is empowered to strike from Plaintiffs' Complaint any allegations that fail to conform to law or rule of court. WHEREFORE, Moving Defendants respectfully request that paragraphs 40(f), 40(k), 40(1), 40(m), 40(n), 42(f), 42(k), 42(1), 42(m) and 42(n) be stricken from Plaintiffs' Complaint with prejudice. Respectfully submitted, FOULKROD ELLIS PROFESSIONAL CORPORATION Date: By: Leigh . Ellis Attorney I.D. No. 53229 Cindy N. Ellis Attorney I.D. No. 83823 CERTIFICATE OF SERVICE I HEREBY CERTIFY that true and correct copies of the foregoing were served upon all counsel of record this day of Y 2008, by depositing said copy in the United States Mail at Camp Hill, Pennsylvania, postage prepaid, first class delivery, and addressed as follows: Andrew S. Youman, Esquire Kline & Specter Nineteenth Floor 1525 Locust Street Philadelphia, PA 19102 (Counsel to Plaintiffs) FOULKROD ELLIS PROFESSIONAL CORPORATION By: ? N Crysta L. Nemetz, Secretary m° r 1y. 419 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, DOUGLAS WISER AND BARBARA WISER, Plaintiffs V. BAXTER DREW WELLMON II, D.O. AND BAXTER DREW WELLMON II, D.O. FAMILY PRACTICE, Defendants CIVIL ACTION - LAW NO. 08-2830 1. State matter to be argued: Preliminary Objections of Defendants to Plaintiffs' Complaint 2. Identify counsel who will argue cases: (a) for plaintiff: Kline & Specter, P.C. Nineteenth Floor, 1525 Locust Street Philadelphia PA 19102 (b) for defendants: 3 4. Cindy N. Ellis Esquire Foulkrod Ellis 2010 Market Street Camp Hill PA 17011 I will notify all parties in writing within two days that this case has been listed for argument. Argument Court Date: September 3, 2008 June 10, 2008 Signa e Cindv N. Ellis Print your name Attorney for Defendants ti o < ?? ? ?? ? ??? _ ?# Q .Sam ?? ??,, KLINE & SPECTER, A Professional Corporation BY: THOMAS R. KIM, ESQUIRE ANDREW S. YOUMAN, ESQUIRE KILA B. BALDWIN, ESQUIRE IDENTIFICATION NO. 28895/65924/94430 Nineteenth Floor 1525 Locust Street Philadelphia, Pennsylvania 19102 (215) 772-1000 Attorneys for Plaintiffs DOUGLAS WISER and BARBARA WISER, h/w Plaintiffs, VS. BAXTER DREW WELLMON, 11, D.O. and BAXTER DREW WELLMON,11, D.O. FAMILY PRACTICE COURT OF COMMON PLEAS CUMBERLAND COUNTY NO. 08-2830 JURY TRIAL DEMANDED Defendants. PRAECIPE TO ATTACH VERIFICATION TO PLAINTIFFS' COMPLAINT TO THE PROTHONOTARY: Kindly attach the Verification of Plaintiff, Barbara Wiser, to Plaintiffs' Complaint filed on May 21, 2008. Respectfully submitted, KLINE & SPECTER A Professional Corporation By: THOMAS R. KLINE, ESQUIRE ANDREW S. YOUMAN, ESQUIRE K:ILA B. BALDWIN, ESQUIRE Attorneys for Plaintiffs Date: June 9, 2008 VERIFICATION I, Barbara Wiser, hereby state that I am a Plaintiff in this action and that the facts set forth in the foregoing Complaint in Civil Action are true and correct to the best of my knowledge, information and belief. I understand that this statement is made subject to the penalties of 18 Pa. P.C.S.A. §4904 relating to unsworn falsification to authorities. c' EMARA WISER a ?? DATE: -W CERTIFICATE OF SERVICE I, Andrew S. Youman, Esq. hereby certify that, this 9' day of June 2008, a true and correct copy of Praecipe to Attach Verification to Plaintiffs' Complaint was served on all counsel listed below by first class mail, postage prepaid: Leigh A. J. Ellis, Esquire Cindy N. Ellis, Esquire Foulkrod Ellis, P.C. 2010 Market Street Camp Hill, PA 17011 Andrew S. Youman, Esquire r__ N a Office of the Prothonotary Cumberland County Curtis R. Long Prothonotary Andrew Youman, Esq. Kline & Specter, P.C. Nineteenth Floor, 1625 Locust Street Philadelphia, PA 19102 DATE: June 19, 2008 TO Attorney Youman: THIS IS TO NOTIFY YOU THAT CASE NUMBER 08-2830, DOUGLAS WISER AND BARBARA WISER VS. RA'K'A12 clip VRtAN'r) r'dt1TJ rv myl SA4 PA nu .w WFT T hTnN II_ D.O. AND BAXTER DREW WELLMON II, iVAS P08r mricy BOWES OF THE ~r ?RY , 02 1A $ 00•4A 0004631598 JUN20 2C MAILED FROM ZIPCODE 1 7C t "j, J L Andrew Youman, Esq. d r3 Kline & Specter, P.C. Nineteenth -'- -- 1625 Locus NIXIE 191 DE 1 00 06/2S/04 Philadelphi RETURN TO SENDER NOT DELIVERABLE. AS ADDRESSED UNABLE 70 FORWARD SC: 17013330199 *0819-01068-20-41 ?' ?`?'''`??"? ??is.`?i???o1 l?,?UI???111??,,,?l1„ll,,,i1,,,l1,1{,,,?„111,1„!,1„„11,.1 • KLINE & SPECTER, A Professional Corporation BY: THOMAS R. KIM, ESQUIRE ANDREW S. YOUMAN, ESQUIRE KILA B. BALDWIN, ESQUIRE IDENTIFICATION NO. 28895/65924/94430 Nineteenth Floor 1525 Locust Street Philadelphia, Pennsylvania 19102 (215) 772-1000 Attorneys for Plaintiffs DOUGLAS WISER and BARBARA WISER, h/w Plaintiffs, vs. BAXTER DREW WELLMON, II, D.O. and BAXTER DREW WELLMON, II, D.O. FAMILY PRACTICE COURT OF COMMON PLEAS CUMBERLAND COUNTY NO. 08-2830 JURY TRIAL DEMANDED Defendants. PLAINTIFFS' RESPONSE TO PRELIMINARY OBJECTIONS OF DEFENDANTS TO PLAINTIFFS' COMPLAINT Plaintiffs Drew and Barbara Wiser hereby respond to the Preliminary Objections of Defendants to Plaintiffs' Complaint, incorporating the Civil Action Complaint as if set forth fully herein: Admitted. 2. Admitted. 3. Denied. The Complaint is a written document which speaks for itself, and Plaintiffs deny any characterization which is inconsistent with its actual text. 4. Denied. The Complaint is a written document which speaks for itself, and Plaintiffs deny any characterization which is inconsistent with its actual text. 5. Denied. 6. Denied. The Complaint is a written document which speaks for itself, and Plaintiffs deny any characterization which is inconsistent with its actual text. 7. This paragraph contains a conclusion of law to which no response is required. To the extent it is factual, it is specifically denied. 8. Denied. 9. This paragraph contains a conclusion of law to which no response is required. To the extent it is factual, it is specifically denied. 10. This paragraph contains a conclusion of law to which no response is required. To the extent it is factual, it is specifically denied. 11. Denied. 12. Denied. The Complaint is a written document which speaks for itself, and Plaintiffs deny any characterization which is inconsistent with its actual text. 13. This paragraph contains a conclusion of law to which no response is required. To the extent it is factual, it is specifically denied. 14. Denied. 15. This paragraph contains a conclusion of law to which no response is required. To the extent it is factual, it is specifically denied. 16. This paragraph contains a conclusion of law to which no response is required. To the extent it is factual, it is specifically denied. 17. Denied. The Complaint is a written document which speaks for itself, and Plaintiffs deny any characterization which is inconsistent with its actual text. 18. This paragraph contains a conclusion of law to which no response is required. To the extent it is factual, it is specifically denied. 0 19. Denied. The Complaint is a written document which speaks for itself, and Plaintiffs deny any characterization which is inconsistent with its actual text. 20. Denied. The Complaint is a written document which speaks for itself, and Plaintiffs deny any characterization which is inconsistent with its actual text. 21. This paragraph contains a conclusion of law to which no response is required. To the extent it is factual, it is specifically denied. 22. Denied. 23. This paragraph contains a conclusion of law to which no response is required. To the extent it is factual, it is specifically denied. Wherefore, Plaintiffs request that this Court overrule Defendants' Preliminary Objections. KLINE & SPECTER A Professional Corporation Dated: -15 / U b By: )LL 6. P? ANDREW S. YOUMAN, ESQUIRE KILA B. BADLWIN, ESQUIRE Attorneys for Plaintiffs Alo VERIFICATION I, Kila B. Baldwin, Esquire, counsel for Plaintiffs herein, hereby verify that the statements made in the foregoing Plaintiffs' Response to Defendants Preliminary Objections to Plaintiffs' Complaint are true and correct, to the best of my knowledge, information and belief. I understand that false statements herein are made subject to the penalties of 18 Pa. C.S. §4904 relating to unsworn falsification to authorities. 1 KILA B. BALDWIN, ESQUIRE Date: a *v CERTIFICATE OF SERVICE I, Kila B. Baldwin, hereby certify that I served Plaintiffs' Response to Defendants Preliminary Objections to Plaintiffs' Complaint via first class, postage pre-paid U. S. mail upon the following: Leigh A. J. Ellis, Esquire Cindy N. Ellis, Esquire Foulkrod Ellis Professional Corporation 2010 Market Street Camp Hill, PA 17011 Dated: ? Z46 By: 10" KILA B. BALDWIN, ESQUIRE KLINE & SPECTER, A Professional Corporation BY: THOMAS R. KLINE, ESQUIRE ANDREW S. YOUMAN, ESQUIRE KILA B. BALDWIN, ESQUIRE IDENTIFICATION NO. 28895/65924/94430 Nineteenth Floor 1525 Locust Street Philadelphia, Pennsylvania 19102 Attorneys for Plaintiffs (215) 772-1000 DOUGLAS WISER and COURT OF COMMON PLEAS BARBARA WISER, h/w CUMBERLAND COUNTY Plaintiffs, NO. 08-2830 vs. JURY TRIAL DEMANDED BAXTER DREW WELLMON, II, D.O. and BAXTER DREW WELLMON, II, D.O. FAMILY PRACTICE Defendants. ORDER AND NOW, this day of , 2008, upon consideration of the Preliminary Objections of Defendants to Plaintiffs' Complaint and Plaintiffs' Response thereto, it is hereby ORDERED and DECREED that said Preliminary Objections are OVERRULED. BY THE COURT: #19 DOUGLAS WISER AND BARBARA WISER, Plaintiffs IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA V. BAXTER DREW WELLMON II D.O. AND BAXTER DREW WELLMON II, D.O. FAMILY PRACTICE, Defendants NO. 2008 - 2830 CIVIL TERM IN RE: DEFENDANTS' PRELIMINARY OBJECTIONS TO PLAINTIFFS' COMPLAINT BEFORE HESS, OLER, GUIDO, JJ. ORDER OF COURT AND NOW, this 14TH day of JULY, 2008, Defendants' preliminary objections are sustained in part. The demurrer to plaintiffs' corporate negligence claim and the request to strike paragraphs 40(f), 40(k), 42(f), and 42(k) are SUSTAINED. The remaining preliminary objections are DENIED. Andrew Youman, Esquire Cindy N. Ellis, Esquire . Court Administrator :sld GOP c12S rnatLL By the Court, Edward E. Guido, J. E"' t 7D < Q- LLJ ?- C U rv a ' COMMONWEALTH OF PENNSYLVANIA COUNTY OF CUM&E-R- ND Douglas Wiser Court of Common Pleas VS. Baxter Drew Wellmon II DO et al Case Number: 08- 2830 CERTIFICATE PREREQUISITE TO THE SERVICE OF A SUBPOENA PURSUANT TO RULE 4009.22 As a prerequisite to service of a subpoena for documents and things pursuant to Rule 4009.22, Litigation Solutions, LLC ('LSLLC') on behalf of Leigh Ellis, Esquire of Foulkrod Ellis PC 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: 7/28/2008 Litigation Solutions, LLC on behalf of Leigh Ellis, Esquire of Foulkrod Ellis PC Attorney for the Defense CC: Leigh Ellis, Esquire Foulkrod Ellis PC 2010 Market Street Camp Hill PA 17011 PENNSYLVANIA COURT OF COMMON PLEAS COUNTY OF CUMBERLAaLD Douglas Wiser Court of Common Pleas Vs. Baxter Drew Wellmon II DO et al 08-2830 NOTICE OF INTENT TO SERVE A SUBPOENA TO PRODUCE DOCUMENTS AND THINGS FOR DISCOVERY PURSUANT TO RULE 4009.21 Provider: Franklin County Heart Center Medical Charles Stoup Medical Chambersburg Hospital Medical Hershey Medical Center Medical Carlisle Regional Medical Center Medical Ali Yousufuddin Medical Franklin County ENT Medical TO: Andrew Youman, Esquire note: please see enclosed list of all other interested counsel Record Type: Litigation Solutions, LLC ('LSLLC') on behalf of Leigh Ellis, Esquire intends to serve a subpoena identical to the one that is attached to this notice. You have twenty (20) days from the date listed below in which to file of record and serve upon the undersigned an objection to the subpoena. If the twenty day notice period is waived or if no objection is made, then the subpoena may be served. Date of Issue: 7/7/2008 CC: Leigh Ellis, Esquire - Court of Common Pleas If you have any questions regarding this matter, please contact: Litigation Solutions, LLC (412.263.5656) Brentwood Towne Centre 101 Towne Square Way, Suite 251 Pittsburgh, PA 15227 Litigation Solutions, LLC on behalf of: Leigh Ellis, Esquire Defense COUNSEL LISTING FOR DOUGLAS WISER VS. BAXTER DREW WELLMON II DO ET AL County of-Cumberland Court of Common-Pleas Counsel Firm Counsel Type Youman, Esquire, The Nineteenth Floor 1525 Locust Street Philadelphia PA Opposing Andrew 19102 Counsel ?N- fd\5-?l?a ICS fi 5- M n COMMONWEALTH OF PENNSYLVANIA COUNTY OF CUMBERLAND Douglas Wiser VS. Baxter Drew Wellmon II DO et al 08-2830 File No. SUBPOENA TO PRODUCE DOCUMENTS OR THINGS FOR DISCOVERY PURSUANT TO RULE 4009.22 TO: Carlisle Regional Medical Center (Name of Person or Entity) Within twenty (20) days after service of this subpoena, you are ordered by the court to produce the following documents or things: ;PLEASE SEE ATTACHED RIDER 101 Towne Square Way, Suite 251 Pittsburgh, PA 15227 at (Address) You may deliver or mail legible copies of the documents or produce things requested by this subpoena, together with the certificate of compliance, to the party making this request at the address listed above. You have the right to seek in advance the reasonable cost of preparing the copies or producing the things sought. If you fail to produce the documents or things required by this subpoena within twenty (20) days after.its service, the party serving this subpoena may seek a court order compelling you to comply with it. THIS SUBPOENA WAS ISSUED AT THE REQUEST OF THE FOLLOWING PERSON: NAME: Leigh Ellis, Esquire ADDRESS:2010 Market Street Camp Hill PA, 17011 'TELEPHONE: _717-909-7006 SUPREME COURT ID # 5 3 2 2 9 ATTORNEY FOR: D e f e n s e Date: L Seal of the Court BY THE COURT: ?A/ 44 ?? ?. Z --?? Prothonotary, Civil Division / / Deputy Rider to Subpoena Explanation of Required Documents and Things TO: CUSTODIAN OF RECORDS FOR: Carlisle Regional Medical Center 361 Alexander Spring Road Carlisle PA 17015 Attention: Medical Records Correspondence Subject: Wiser, Douglas SS#: 180-38-9393 Date of Birth: 6/1/1948 Requested Items: Please remit: a complete copy of any and all medical records from 1980 to Present, including records, charts, test results, reports, correspondence, office notes, and computerized records. COMMONWEALTH OF PENNSYLVANIA COUNTY OF CUMBERLAND Douglas Wiser VS. Baxter Drew Wellmon II DO et al File No. 08-2830 SUBPOENA TO PRODUCE DOCUMENTS OR THINGS FOR DISCOVERY PURSUANT TO RULE 4009.22 TO: Chambersburg Hospital (Name of Person or Entity) Within twenty (20) days after service of this subpoena, you are ordered by the court to produce the following documents or things: ;PLEASE SEE ATTACHED RIDER 101 Towne Square Way, Suite 251 Pittsburgh, PA 15227 at (Address) You may deliver or mail legible copies of the documents or produce things requested by this subpoena, together with the certificate of compliance, to the party making this request at the address listed above. You have the right to seek in advance the reasonable cost of preparing the copies or producing the things sought. If you fail to produce the documents or things required by this subpoena within twenty (20) days after.its service, the party serving this subpoena may seek a court order compelling you to comply with it. THIS SUBPOENA WAS ISSUED AT THE REQUEST OF THE FOLLOWING PERSON: NAME: Leigh Ellis, Esquire ADDRESS:2010 Market Street Camp Hill PA, 17011 TELEPHONE: 717 - 9 0 9- 7 0 0 6 SUPREME COURT ID # 5 3 2 2 9 ATTORNEY FOR: Defense Date: z 4k- Seof the Court BY THE COURT: Arl Prothonotary, Civil Division Deputy Rider to Subpoena Explanation of Required Documents and Things TO: CUSTODIAN OF RECORDS FOR: Chambersburg Hospital 112 North 7th Street Chambersburg PA 17201 Attention: Medical Records Correspondence Subject: Wiser, Douglas SS#: 180-38-9393 Date of Birth: 6/1/1948 Requested Items: Please remit: a complete copy of any and all medical records from 1980 to Present, including records, charts, test results, reports, correspondence, office notes, and computerized records. COMMONWEALTH OF PENNSYLVANIA COUI? 71)' OF CUMBERLAND Douglas Wiser VS. Baxter Drew Wellmon II DO et al 08-2830 File No. SUBPOENA TO PRODUCE DOCUMENTS OR THINGS FOR DISCOVERY PURSUANT TO RULE 4009.22 TO: Franklin County ENT (Name of Person or Entity) Within twenty (20) days after service of this subpoena, you are ordered by the court to produce the following documents or things: ;PLEASE SEE ATTACHED RIDER 101 Towne Square Way, Suite 251 Pittsburgh, PA 15227 at (Address) You may deliver or mail legible copies of the documents or produce things requested by this subpoena, together with the certificate of compliance, to the party malting this request at the address listed above. You have the right to seek in advance the reasonable cost of preparing the copies or producing the things sought. If you fail to produce the documents or things required by this subpoena within twenty (20) days after.its service, the party-serving this subpoena may seek a court order compelling you to comply with it. THIS SUBPOENA WAS ISSUED AT THE REQUEST OF THE FOLLOWING PERSON: NAME: Leigh Ellis, Esquire ADDRESS:2010 Market Street Camp Hill PA, 17011 TELEPHONE: 717-909-7006 SUPREME COURT ID # 5 3 2 2 9 ATTORNEY FOR: De fen s e Date:_ &2W Seal of the Court BY THE COURT: Prothonotary, Civil Division Deputy Rider to Subpoena Explanation of Required Documents and Things TO: CUSTODIAN OF RECORDS FOR: Franklin County ENT 7SS Norland Avenue Suite 202 Chambersburg PA 17201 Attention: Medical Records Correspondence Subject: Wiser, Douglas SS#: 180-38-9393 Date of Birth: 6/1/1948 Requested Items: Please remit: a complete copy of any and all medical records from 1980 to Present, including records, charts, test results, reports, correspondence, office notes, and computerized records. COMMONWEALTH OF PENNSYLVANIA COUNTY OF CUMBERLAND Douglas Wiser VS. Baxter Drew Wellmon II DO et al • 08-2830 File No. SUBPOENA TO PRODUCE DOCUMENTS OR THINGS FOR DISCOVERY PURSUANT TO RULE 4009.22 TO: Franklin County Heart Center (Name of Person or Entity) Within twenty (20) days after service of this subpoena, you are ordered by the court to produce the following documents or things: :PLEASE SEE ATTACHED RIDER 101 Towne Square Way, Suite 251 Pittsburgh, PA 15227 at (Address) You may deliver or mail legible copies of the documents or produce things requested by this subpoena, together with the certificate of compliance, to the party making this request at the address listed above. You have the right to seek in advance the reasonable cost of preparing the copies or producing the things sought. If you fail to produce the documents or things required by this subpoena within twenty (20) days after.its service, the party-serving this subpoena may seek a court order compelling you to comply with it. THIS SUBPOENA WAS ISSUED AT THE REQUEST OF THE FOLLOWING PERSON: NAME: Leigh Ellis, Esquire ADDRESS:2010 Market Street Camp Hill PA, 17011 TELEPHONE: 717-909-7006 SUPREME COURT ID # 5 3 2 2 9 ATTORNEY FOR: D e f e n s e Date:_ Seal of the Court BY THE COURT: Prothonotary, Civil Division eputy ???2? Rider to Subpoena Explanation of Required Documents and Things TO: CUSTODIAN OF RECORDS FOR: Franklin County Heart Center 755 Norland Avenue Suite 201 Chambersburg PA 17201 Attention: Medical Records Correspondence Subject: Wiser, Douglas SS#: 180-38-9393 Date of Birth: 6/1/1948 Requested Items: Please remit: a complete copy of any and all medical records from 1980 to Present, including records, charts, test results, reports, correspondence, office notes, and computerized records. COMMONWEALTH OF PENNSYLVANIA COUNTY OF CUMBERLAND Douglas Wiser VS. Baxter Drew Wellmon II DO et al File No. 08-2830 SUBPOENA TO PRODUCE DOCUMENTS OR THINGS FOR DISCOVERY PURSUANT TO RULE 4009.22 TO: Hershey Medical Center (Name of Person or Entity) Within twenty (20) days after service of this subpoena, you are ordered by the court to produce the following documents or things: ;PLEASE SEE ATTACHED RIDER at 101 Towne Square Way, Suite 251 Pittsburgh, PA 15227 (Address) You may deliver or mail legible copies of the documents or produce things requested by this subpoena, together with the certificate of compliance, to the party making this request at the address listed above. You have the right to seek in advance the reasonable cost of preparing the copies or producing the things sought. If you fail to produce the documents or things required by this subpoena within twenty (20) days after.its service, the party serving this subpoena may seek a court order compelling you to comply with it THIS SUBPOENA WAS ISSUED AT THE REQUEST OF THE FOLLOWING PERSON: NAME: Leigh Ellis, Esquire ADDRESS:2010 Market-Street Camp Hill PA, 17011 TELEPHONE: 717-909-7006 SUPREME COURT ID# 5 3 2 2 9 ATTORNEY FOR: D e f e n s e Date. Z96/--t Seal of the Court BY THE COURT: Pr onotary, Civil Division i ? Deputy Rider to Subpoena Explanation of Required Documents and Things TO: CUSTODIAN OF RECORDS FOR. Hershey Medical Center 500 University Drive Hershey PA 17033 Attention: Medical Records Correspondence Subject: Wiser, Douglas SS# : 180-38-9393 Date of Birth: 6/1/1948 Requested Items: Please remit: a complete copy of any and all medical records from 1980 to Present, including records, charts, test results, reports, correspondence, office notes, and computerized records. COMMONWEALTH OF PENNSYLVANIA COUNTY OF CUMBERLAND Douglas Wiser VS. Baxter Drew Wellmon II DO et al 08-2830 File No. SUBPOENA TO PRODUCE DOCUMENTS OR THINGS FOR DISCOVERY PURSUANT TO RULE 4009.22 TO: Charles Stoup (Name of Person or Entity) Within twenty (20) days after service of this subpoena, you are ordered by the court to produce the following documents or things: ;PLEASE SEE ATTACHED RIDER at 101 Towne Square Way, Suite 251 Pittsburgh, PA 15227 (Address) You may deliver or mail legible copies of the documents or produce things requested by this subpoena, together with the certificate of compliance, to the party making this request at the address listed above. You have the right to seek in advance the reasonable cost of preparing the copies or producing the things sought. If you fail to produce the documents or things required by this subpoena within twenty (20) days after.its service, the party serving this subpoena may seek a court order compelling you to comply with it. THIS SUBPOENA WAS ISSUED AT THE REQUEST OF THE FOLLOWING PERSON: NAME: Leigh Ellis, Esquire ADDRESS:2010 Marken Street Camp Hill PA, 17011 TELEPHONE: 717-909-7006 SUPREME COURT ID# 5-3 2 2 9 ATTORNEY FOR: D e f e n s e Date: &?& Seal of the Court BY THE COURT: Prothonotary, Civil Division Deputy Rider to Subpoena Explanation of Required Documents and Things TO: CUSTODIAN OF RECORDS FOR: Dr. Charles Stoup 820 Belvedere Street Carlisle PA 17013 Attention: Medical Records Correspondence Subject: Wiser, Douglas SS#: 180-38-9393 Date of Birth: 6/1/1948 Requested Items: Please remit: a complete copy of any and all medical/dental records from 1980 to Present, including records, charts, test results, reports, correspondence, office notes, and computerized records. COMMONWEALTH OF PENNSYLVANIA COUNTY OF CUMBERLAND. Douglas Wiser VS. Baxter Drew Wellmon II DO et al File No. SUBPOENA TO PRODUCE DOCUMENTS OR THINGS FOR DISCOVERY PURSUANT TO RULE 4009.22 TO: Ali Yousufuddin (Name of Person or Entity) Within twenty (20) days after service of this subpoena, you are ordered by the court to produce the following documents or things: ;PLEASE SEE ATTACHED RIDER 101 Towne Square Way, Suite 251 Pittsburgh, PA 15227 at (Address) You may deliver or mail legible copies of the documents or produce things requested by this subpoena, together with the certificate of compliance, to the party making this request at the address listed above. You have the right to seek in advance the reasonable cost of preparing the copies or producing the things sought. If you fail to produce the documents or things required by this subpoena within twenty (20) days after.its service, the party serving this subpoena may seek a court order compelling you to comply with it. THIS SUBPOENA WAS ISSUED AT THE REQUEST OF THE FOLLOWING PERSON: NAME: Leigh Ellis, Esquire ADDRESS:2010 Market Street Camp Hill PA, 17 11 TELEPHONE: 717-909-7006 SUPREME COURT ID # 5 3 2 2 9 ATTORNEY FOR: De f e n s e Date: Seal of the Court BY THE COURT: ? C Prothonotary, Civil Division / Deputy 08-2830 Rider to Subpoena Explanation of Required Documents and Things TO: CUSTODIAN OF RECORDS FOR: Dr. Ali Yousufuddin 112 North 7th Street Chambersburg PA 17201 Attention: Medical Records Correspondence Subject: Wiser, Douglas SS#: 180-38-9393 Date of Birth: 6/1/1948 Requested Items: Please remit: a complete copy of any and all medical records from 1980 to Present, including records, charts, test results, reports, correspondence, office notes, and computerized records. r? ? s:w? t.!} ._. ,...? ? t.__ ??_.,?.? .? r- ""'Y r :.r ?_ . KLINE & SPECTER, A Professional Corporation BY: THOMAS R. KLINE, ESQUIRE ANDREW S. YOUMAN, ESQUIRE KILA B. BALDWIN, ESQUIRE IDENTIFICATION NO. 28895/65924/94430 Nineteenth Floor 1525 Locust Street Philadelphia, Pennsylvania 19102 (215) 772-1000 DOUGLAS WISER and BARBARA WISER, h/w Plaintiffs, VS. BAXTER DREW WELLMON, Il, D.O. and BAXTER DREW WELLMON,11, D.O. FAMILY PRACTICE Defendants. Attorneys for Plaintiffs COURT OF COMMON PLEAS CUMBERLAND COUNTY NO. 08-2830 JURY TRIAL DEMANDED PLAINTIFFS' MOTION FOR RECONSIDERATION Plaintiffs Douglas and Barbara Wiser, by and through their undersigned counsel, hereby respectfully request this Court reconsider its ruling on the Preliminary Objections of Defendants, Baxter Drew Welhnon H, D.O. and Baxter Drew Wellmon, 11, D.O. Family Practice, and in support thereof hereby aver: 1. On June 9, 2008, Defendants Baxter Drew Wellmon, II, D.O. and Baxter Drew Wellmon, II, D.O. Family Practice filed Preliminary Objections of Defendants to Plaintiffs Complaint. See Exhibit "A." 2. The Praecipe for Listing for Argument listed the argument court date as September 3, 2008. See id. 3. On June 19, 2008, the Prothonotary set the argument date for July 7, 2008. 4. Plaintiffs' never received notice of this new argument date, as the Prothonotary inadvertently listed counsel for Plaintiffs, Kline & Specter's address as 1625 Locust Street on the notice. See Exhibit "B." 5. Kline & Specter's correct address is 1525 Locust Street, 19`'' Floor, Philadelphia, PA 19102. 6. This notice was returned to the sender as undeliverable because of the incorrect address. See id. 7. On June 24, 2008 Defendants filed Brief in Support of Preliminary Objections of Defendants to Plaintiffs' Complaint. See Exhibit "C." 8. On June 26, 2008, Plaintiffs filed Response to Preliminary Objections of Defendants to Plaintiffs' Complaint. See Exhibit "D." 9. On July 14, 2008, this Court ruled on Defendants' Preliminary Objections. See Exhibit "B." 10. On July 21, 2008, more than five (5) days before the argument scheduled for September 3, 2008, Plaintiffs filed Memorandum of Law in Support of Plaintiffs' Response to Preliminary Objections of Defendants to Plaintiffs' Complaint. See Exhibit "F." 11. Thus, this Court ruled on the Preliminary Objections without ever receiving Plaintiffs' briefing and without hearing oral argument. 12. Plaintiffs are obviously prejudiced in this regard, and respectfully request the Court vacate its Order on Preliminary Objections, set a new hearing date for argument, and thereafter decide the Preliminary Objections on the merits. 13. Counsel for Defendants, Cindy Ellis, Esq., does not object to this Motion because Plaintiffs never received the notice of argument date. 2 Wherefore, Plaintiffs respectfully request this Court reconsider and vacate its previous ruling on Preliminary Objections, order the prothonotary to set an argument hearing date, and decide the Preliminary Objections on the merits. Respectfully submitted, KLINE & SPECTER A Professional Corporation By: THOMAS R. KLINE, ESQUIRE ANDREW S. YOUMAN, ESQUIRE KILA B. BALDWIN, ESQUIRE Attorneys for Plaintiffs Date: 3 CERTIFICATE OF SERVICE I, Kila B. Baldwin, Esq. hereby certify that, this 315L day of July 2008, a true and correct copy of Plaintiffs' Motion for Reconsideration was served on all counsel listed below by first class mail, postage prepaid: Leigh A. J. Ellis, Esquire Cindy N. Ellis, Esquire Foulkrod Ellis, P.C. 2010 Market Street Camp Hill, PA 17011 Kila B. Baldwin, Esquire FOULKROD ELLIS Professional Corporation 2010 Market Street Camp Hill, Pennsylvania 17011 Telephone: (717) 909-7006 Fax: (717) 909-6955 DOUGLAS WISER AND BARBARA WISER, Plaintiffs V. BAXTER DREW WELLMON II, D.O. AND BAXTER DREW WELLMON II, D.O. FAMILY PRACTICE, Defendants Attorneys for Defendants: Baxter Drew Wellmon, D.O.,and Baxter Drew Wellmon, D.O., P.C. IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 08-2830 JURY TRIAL DEMANDED PRELIMINARY OBJECTIONS OF DEFENDANTS TO PLAINTIFFS' COMPLAINT AND NOW come Defendants, Baxter Drew Wellmon, II, D.O. (hereinafter, "Dr. Wellmon") and Baxter Drew Wellmon, II, D.O. Family Practice (hereinafter, "the Family Practice") by and through their attorneys, Foulkrod Ellis, P.C., to file the within Preliminary Objections to Plaintiffs' Complaint as follows: The within medical malpractice action was initiated with the filing of a Complaint on May 2, 2008. A true and correct copy of the Complaint is attached hereto. 2. Service of the Complaint is docketed to have been achieved on May 22, 2008. 3. According to the Complaint, this case arises out of care and treatment provided to Plaintiff-husband by Dr. Wellmon is the spring of 2006. 4. Specifically, Plaintiffs allege that Dr. Wellmon failed to diagnose bacterial endocarditis suffered by Plaintiff-husband. All care and treatment provided by Dr. Wellmon appears to have been provided within his office within the exclusive practice of family medicine. PRELIMINARY OBJECTION IN THE NATURE OF A DEMURRER RELATING TO PLAINTIFFS' CORPORATE NEGLIGENCE CLAIM AGAINST BAXTER DREW WELLMON, II, D.O. FAMILY PRACTICE 6. Plaintiffs' Second Cause of Action sets forth allegations against the Family Practice that are representative of a corporate negligence claim. 7. Pennsylvania law does not recognize a direct corporate negligence claim against a physician practice such as the Family Practice. 8. The Family Practice is a private physician office that exclusively provides primary care to its patients. 9. The Superior Court has explicitly refused to extend the theory of corporate negligence to physician practice groups in Sutherland v. Monongahela Valley Hospital, 856 A.2d 55 (Pa. Super 2004). 10. The rationale behind a corporate negligence claim relates to the perception that "the corporate hospital of today has assumed the role of comprehensive health center with responsibility for arranging and coordinating the total health care of its patients." Id. 11. The Family Practice is in no way assuming the role of a "comprehensive health center with responsibility for arranging and coordinating the total health care of its patients." WHEREFORE, Moving Defendants respectfully request that this Honorable Court dismiss Plaintiffs' claim for direct corporate negligence against Defendant, Baxter Drew Wellmon, II, D.O. Family Practice, and strike Paragraph 5 and the Second Cause of Action from Plaintiffs' Complaint with prejudice. PRELIMINARY OBJECTION IN THE NATURE OF A MOTION TO STRIKE 12. Paragraphs 6, 36, 37, 38, 40, 42 and 49 of Plaintiffs' Complaint reference acts of unidentified agents, servant and/or employees of the Defendants as having been acts of negligence. 13. Pursuant to Pennsylvania law, Plaintiffs are required to specifically identify any agents, servants, and/or employees of the Defendant upon his actions the alleged liability is based. Alumni Association v. Sullivan, 535 A.2d 1092 (Pa. Super. 1987). 14. Plaintiffs have had the opportunity to conduct an investigation into this matter and obtain the relevant medical records. If they were unable to identify individuals by name, they could have identified the specific acts or at least dates of involvement. 15. Plaintiffs' lack of specificity as to identification of agents and their specific involvement is Plaintiff's care, is violative of Pa. R.C.P. 1019(a). 16. Plaintiffs' lack of specificity regarding agency, deprives Defendants of their ability to comply with Pa. R.C.P. 1029(e)(1) relating to specific denials relating to agency averments. WHEREFORE, Defendants respectfully request that Plaintiffs specifically identify individuals upon whom their negligence claims rest or be precluded from pursuing claims against any individual other that those specifically named and identified within the Complaint. PRELIMINARY OBJECTION IN THE NATURE OF A MOTION TO STRIKE 17. The following paragraphs of Plaintiffs' Complaint are objectionable in that they contain nothing more than "boiler plate" and "catch all" allegations of negligence that are not specific to this action and could be pled against any health care provider in any malpractice action: 40(f), 40(k), 40(1), 40(m), 40(n), 42(f), 42(k), 42(1), 42(m) and 42(n) 18. Pursuant to Pa. R.C.P. 1019(a), "the material facts on which a cause of action or defense is based shall be stated in concise and summary form." 19. It is Moving Defendants' perception that the case relates solely to an alleged negligence of Dr. Wellmon failure to diagnose and treat bacterial endocarditis. 20. The above-cited paragraphs are so general that they could relate to any care provided to Plaintiff-husband by Dr. Wellmon during the entire course of Plaintiff- husband's treatment with the office over any timeframe. 21. These allegations of negligence as they now read afford Plaintiffs the opportunity to introduce new theories of recovery at any time prior to the commencement of trial and after the expiration of the statute of limitations in violation of Connor v. Allegheny General Hospital, 461 A.2d 600 (Pa. 1983). 22. Moving Defendants are prejudiced by these allegations, because a defense to these vague and conclusory allegations cannot be prepared. 23. Pursuant to Pa. R.C.P. 1028, this Court is empowered to strike from Plaintiffs' Complaint any allegations that fail to conform to law or rule of court. WHEREFORE, Moving Defendants respectfully request that paragraphs 40(f), 40(k), 40(1), 40(m), 40(n), 42(f), 42(k), 42(1), 42(m) and 42(n) be stricken from Plaintiffs' Complaint with prejudice. Respectfully submitted, FOULKROD ELLIS PROFESSIONAL CORPORATION Date: Lkld By: Leigh K.J. Ellis Attorney I.D. No. 53229 Cindy N. Ellis Attorney I.D. No. 83823 CERTIFICATE OF SERVICE I HEREBY CERTIFY that true and correct copies of the foregoing were served upon all counsel of record this I day of 2008, by depositing said copy in the United States Mail at Camp Hill, Pennsylvania, postage prepaid, first class delivery, and addressed as follows: Andrew S. Youman, Esquire Kline & Specter Nineteenth Floor 1525 Locust Street Philadelphia, PA 19102 (Counsel to Plaintiffs) FOULKROD ELLIS PROFESSIONAL CORPORATION By: / v Crysta L. Nemetz, Secretary 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, -------------- DOUGLAS WISER AND BARBARA WISER, Plaintiffs V. CIVIL ACTION - LAW NO. 08-2830 BAXTER DREW WELLMON II, D.O. AND BAXTER DREW WELLMON II, D.O. FAMILY PRACTICE, Defendants 1. State matter to be argued: Preliminary Objections of Defendants to Plaintiffs' Complaint 2. Identify counsel who will argue cases: (a) for plaintiff: Kline & Specter P.C., Nineteenth Floor, 1525 Locust Street, Philadelphia, PA 19102 (b) for defendants: 3 4. Cindy N Ellis Esquire Foulkrod Ellis 2010 Market Street, Camp Hill PA 17011 I will notify all parties in writing within two days that this case has been listed for argument. Argument Court Date: September 3, 2008 Signa e Cindy N. Ellis Print your name Attorney for Defendants June 10, 2008 DOUGLAS WISER AND IN THE COURT OF COMMON PLEAS BARBARA WISER, CUMBERLAND COUNTY, Plaintiffs PENNSYLVANIA V. CIVIL ACTION - LAW NO. 08-2830 BAXTER DREW WELLMON II, D.O. AND BAXTER DREW WELLMON II, D.O. FAMILY PRACTICE, Defendants JURY TRIAL DEMANDED ORDER AND NOW this day of 2008, upon consideration of the Preliminary Objections of Defendants, it is hereby ORDERED that said Objections are SUSTAINED. It is specifically ORDERED as follows: 1. Plaintiffs' claim of Corporate Negligence against Baxter Drew Wellmon, II, D.O. Family Practice is STRICKEN with prejudice; 2. Plaintiffs will specifically identify agents alleged to have been negligent with twenty (20) days of the date of this Order or they will be precluded from pursuing any claims against individuals not identified by name within the Complaint; and 3. Paragraphs 40(f), 40(k), 40(l), 40(m), 40(n), 42(f), 42(k), 42(1), 42(m) and 42(n) are hereby stricken with prejudice. J. Laserfiche WebLink Laserfiche WebLink Browse Template: Civil Docket# 08-2830 Plaintiff WISER DOUGLAS Defendant WELLMON BAXTER DREW It D O Term Civil Case Type COMPLAINT Date 5!2/2008 Plaintiff2 WISER BARBARA Plaintiff3 Plaintiff4 Plaintiff5 Plaintiff6 Plaintiff7 Plaintiff8 Plaintiff9 Plaintiffl0 Plaintiffl 1 Plaintiffl2 Plaintiff13 Plaintiffl4 Plaintiffl5 Plaintiffl6 Plaintiffl7 Plaintiffl8 f Plaintiffl9 Platntiff20 Plaintiff21 Plaintiff22 Plaintiff23 Plaintiff24 Defendant2 WELLMON BAXTER DREW II D OFAMILY PRACTICE Defendant3 Defendant4 Defendant5 Defendants Defendant? Page 1 of 1 Logout Page 47 ?o?f, % Go 0 ®? ?? LJ', 23.96% Pages 47 to 56 Prothonotary_7 > Civil Dockets > 2006 Dockets > 08- 2801 thru 08- 2900 > 08-2830 Offlee of the Prothonotary Cumberland County Cwft R. Long mot-Afty And"W Toone o, Esq. KBee ds Spater, P.C. N[rst00ntlt Floor. IM IAIMU Street Piiltddphtlt, PA 19192 DATE. 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This copy Is registered to: County of Cumberland - Commissioners httn://records_ccna_net/weblink nub1ic/DocView.asnx?id=196067&dbid=0 7/24/2008 FOULKROD ELLIS Professional Corporation 2010 Market Street Camp Hill, Pennsylvania 17011 Telephone: (717) 909-7006 Fax: (717) 909-6955 DOUGLAS WISER AND BARBARA WISER, Plaintiffs V. BAXTER DREW WELLMON II, D.O. AND BAXTER DREW WELLMON II, D.O. FAMILY PRACTICE, Defendants Attorneys for Defendants: Baxter Drew Wellmon, D.O.,and Baxter Drew Wellmon, D.O., P.C. IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 08-2830 JURY TRIAL DEMANDED BRIEF IN SUPPORT OF PRELIMINARY OBJECTIONS OF DEFENDANTS TO PLAINTIFFS' COMPLAINT AND NOW come Defendants, Baxter Drew Wellmon, H, D.O. (hereinafter, "Dr. Wellmon") and Baxter Drew Wellmon, II, D.O. Family Practice (hereinafter, "the Family Practice") by and through their attorneys, Foulkrod Ellis, P.C., to submit the within Brief in Support of Preliminary Objections to Plaintiffs' Complaint. Statement of Facts The within medical malpractice action was initiated with the filing of a Complaint on May 2, 2008. Service of the Complaint is docketed to have been achieved on May 22, 2008. According to the Complaint, this case arises out of care and treatment provided to Plaintiff-husband by Dr. Wellmon is the spring of 2006. Specifically, Plaintiffs allege that Dr. Wellmon failed to diagnose bacterial endocarditis suffered by Plaintiff-husband. All care and treatment provided by Dr. Wellmon appears to have been provided within his office within the exclusive practice of family medicine. Discussion PRELIMINARY OBJECTION IN THE NATURE OF A DEMURRER RELATING TO PLAINTIFFS' CORPORATE NEGLIGENCE CLAIM AGAINST BAXTER DREW WELLMON, H, D.O. FAMILY PRACTICE Plaintiffs' Second Cause of Action sets forth allegations against the Family Practice that are representative of a corporate negligence claim. The Superior Court has explicitly refused to extend the theory of corporate negligence to physician practice groups in Sutherland v. Monongahela Valla Hospital, 856 A.2d 55 (Pa. Super 2004). The Family Practice is a private physician office that exclusively provides primary care to its patients. The rationale behind a corporate negligence claim relates to the perception that "the corporate hospital of today has assumed the role of comprehensive health center with responsibility for arranging and coordinating the total health care of its patients." Id. Defendant, Baxter Drew Wellmon, II, D.O. Family Practice is an entity operated solely for the purposes of providing primary care treatment to patients. The Family Practice is 2 in no way assuming the role of a "comprehensive health center with responsibility for arranging and coordinating the total health care of its patients." Pennsylvania Common Pleas Courts generally agree that direct corporate negligence claims may not be levied against medical professional corporations. The issues posed in the instant case were posed before this Honorable Court in Angeloff v. Armston ,eg` t al. (Civil Docket No. 2004-4743). The Honorable Edward E. Guido relied on Sutherland in refusing to extend corporate negligence to physician practice groups. In Dowhouer v. Judson, 119 Dauph. 366 (2000), a medical professional group preliminarily objected to, inter alia, Plaintiffs asserted claims of corporate negligence. The Dauphin County Common Pleas Court sustained the objection, reasoning that the corporate negligence doctrine does not apply to "physician practices." Id. at 370.1 The court stated. Therefore, defendant's preliminary objections regarding corporate negligence is granted. CSI is a physician practice group devoted exclusively to the practice of cardiovascular surgery. Each of plaintiffs claims alleging corporate negligence attempts to impose a corporate negligence-type duty upon CSI. In doing so plaintiffs are attempting to extend the doctrine of corporate negligence to include specialty physician practices. As stated above, the basis for the creation of such a doctrine was due to the corporate entity's role in the delivery of total health care to the patient. A physician's gout) which is exclusively devoted to the ' But see Risser v. Pepper. 116 Dauph. 109 (1996) (holding that plaintiff could sue a dental partnership pursuant to the corporate negligence doctrine). It is important to note, however, that the Risser decision was based on a particularly egregious factual scenario, i.e., an operation was performed by a partner who was not certified to do so. Thus Risser is easily distinguishable from the facts of the instant case. 3 [T]he facts in the instant case do not indicate that plaintiff was required to commit to a single health care provider for treatment of her heart or the circulation in her legs. Plaintiff was free at any time to choose another like CSI is not the type of corporate entity for which the Pennsylvania Suyreme Court intended to be created in Thompson. Id. at 372 (emphasis supplied). In Dibble v. Penn State Geisinaer Clinic, 98 CV 2281, Lackawanna County, Judge Minora held that the theory of direct corporate negligence under ThoLnR does not extend beyond hospitals and HMOs to professional corporations which are not "comprehensive medical care facilities" : In order to decide whether the doctrine of corporate negligence should be extended to an entity such as the Clinic, it is instructive to review the reasons for its application to hospitals and HMOs. Corporate negligence was applied to corporate hospitals "in full recognition of [their] role in the total health care of [their] patients." Thompson, supra at p. 708. The Thompson court stated that [t]he corporate hospital of today has assumed the role of comprehensive health center with responsibility for arranging and coordinating the total health care of its patients." Id. at p. 706. Here, it appears that the Clinic, like a hospital and HMO, is a critical component of the comprehensive health care delivery system to the patient. Further, it is generally the first interface that a patient has in entering into the health care delivery system. Despite this role, a clinic cannot be considered a comprehensive health care center such as a hospital, nor can it be construed to play a central role in the "total health care of its subscribers." Shannon, supra. In fact, this type of facility is referred to as a primary care facility. As such, it is only a gateway for further referrals into the health care delivery system where appropriate. Because a clinic is not a comprehensive medical care facility, but instead is a primary care facility this Court believes Thompson (supra) does not apply- A clinic, while it plays a critical primary role, albeit limited, in providing health care it cannot be considered to be a central role ... in the total health care of its subscribers. Therefore, Shannon (supra) is not applicable to a clinic. Oftentimes, both the primary care facility and primary care doctor are told how a patient can be treated within the limits of the subscriber's 4 HMO plan. Therefore, based upon our findings, we hold that the Clinic's preliminary objections to Count I of Plaintiffs' Complaint alleging a cause of action under a theory of corporate negligence is granted. See also Brewer v. Geisinger Clinic, PICS Case No. 00-0686 (C.P. Lackawanna March 31, 2000), Cotton, S.J., (declining to apply the corporate negligence doctrine to medical clinic). In Remshifsky v. Kraus, No. 1845 Civil 1992 (Monroe), Monroe County Common Pleas Court similarly refused to extend the corporate negligence doctrine to impose liability to non-hospital Defendants: Corporate negligence is a doctrine which creates a non-delegable duty on a hospital to uphold the proper standard of care owed the patient, which' is to ensure the patient's safety and well-being while at the hospital. This doctrine has not been extended to entities other than hospitals. (Emphasis supplied) (citation omitted). The Bradford County Court of Common Pleas has also agreed that no claim for direct corporate negligence lies against a professional corporation which is not a comprehensive healthcare facility functioning as the coordinator of the total healthcare of the patient. Johnson v. Wiseman , 98 CV 000393, Bradford County. Lastly, in Paul v. Barton, Action No. 2000-530, Franklin County, Judge Walsh sustained a preliminary objection of Cumberland Valley Emergency Associates ("CVEA") to Plaintiffs claims of direct corporate negligence. The court declared: The Court finds compelling the reasoning articulated by the majority of the courts and it will decline to extend corporate liability to a professional medical corporation such as Defendant CVEA. In this case, the Plaintiff describes the Defendant CVEA as "a corporate medical institution with offices and facilities in Chambersburg, Franklin County, Pennsylvania." Complaint at 18. The Plaintiff makes no mention of Defendant CVEA's control over the total health care of its patients. (Emphasis in original). 5 It is abundantly clear that a direct liability/corporate negligence claim is not a recognized claim against a private practice such as The Family Practice. Accordingly, Plaintiff's Second Cause of Action should be stricken and any claim for corporate negligence against The Family Practice should be dismissed with prejudice. PRELIMINARY OBJECTION IN THE NATURE OF A MOTION TO STRIKE Pa.R.C.P. No. 1019(a) provides that: the material facts on which a cause of action or defense is based shall be stated in concise and summary form. The purpose of Pa.R.C.P. No. 1019(a) is to require the pleader to disclose in the complaint the specific facts upon which the plaintiffs' cause of action is based, so that the plaintiffs' proof may be confined to such actions, thus providing the defendant a reasonable opportunity to prepare a defense. Baker v. Rangos, 324 A.2d 498 (Pa.Super. 1974); PennDot v. Shipley Humble Oil Co., 370 A.2d 438 (Pa.Cmwlth. 1977). Paragraphs 6, 36, 37, 38, 40, 42 and 49 of Plaintiffs' Complaint reference acts of unidentified agents, servant and/or employees of the Defendants as having been acts of negligence. Pursuant to Pennsylvania law, Plaintiffs are required to specifically identify any agents, servants, and/or employees of the Defendant upon his actions the alleged liability is based. Alumni Association v. Sullivan, 535 A.2d 1092 (Pa. Super. 1987). The court noted in a footnote that while it is unnecessary to plead all-the various details of an alleged agency relationship, a complaintant must allege, at a minimum, facts which: (1) identify the agent by name or appropriate description; and 6 (2) set forth the agents authority and how the tortious acts of the agent either fall within the scope of that authority, or, if unauthorized, were ratified by the principal. (citations omitted.) Id. 535 A.2d at 1100. Plaintiffs have had the opportunity to conduct an investigation into this matter and obtain the relevant medical records. If they were unable to identify individuals by name, they could have identified the specific acts or at least dates of involvement. Plaintiffs' lack of specificity as to identification of agents and their specific involvement is Plaintiffs care, is violative of Pa. R.C.P. 1019(x). As a result of Plaintiffs' lack of specificity Defendants are deprived of their ability to comply with Pa. R.C.P. 1029(e)(1) relating to specific denials relating to agency averments. Accordingly, Plaintiffs should be required to specifically identify individuals upon whom their negligence claims rest or be precluded from pursuing claims against any individual other that those specifically named and identified within the Complaint. PRELIMINARY OBJECTION IN THE NATURE OF A MOTION TO STRIKE The following paragraphs of Plaintiffs' Complaint are objectionable in that they contain nothing more than "boiler plate" and "catch all" allegations of negligence that are not specific to this action and could be pled against any health care provider in any malpractice action: 40(f), 40(k), 40(1), 40(m), 40(n), 42(f), 42(k), 420), 42(m) and 42(n) Pursuant to Pa. R.C.P. 1019(a), "the material facts on which a cause of action or defense is based shall be stated in concise and summary form." It is Moving Defendants' perception that the case relates solely to an alleged negligence of Dr. Wellmon failure to 7 diagnose and treat bacterial endocarditis. The above-cited paragraphs are so general that they could relate to any care provided to Plaintiff-husband by Dr. Wellmon during the entire course of Plaintiff-husband's treatment with the office over any timeframe. These allegations of negligence as they now read afford Plaintiffs the opportunity to introduce new theories of recovery at any time prior to the commencement of trial and after the expiration of the statute of limitations in violation of Connor v. Allegheny General Hospital, 461 A.2d 600 (Pa. 1983). Moving Defendants are prejudiced by these allegations, because a defense to these vague and conclusory allegations cannot be prepared. Pursuant to Pa. R.C.P. 1028, this Court is empowered to strike from Plaintiffs' Complaint any allegations that fail to conform to law or rule of court. Accordingly, Moving Defendants request that paragraphs 40(f), 40(k), 40(1), 40(m), 40(n), 42(f), 42(k), 42(l), 42(m) and 42(n) be stricken from Plaintiffs' Complaint with prejudice. Respectfully submitted, FOULKROD ELLIS PROFESSIONAL CORPORATION Date: ( -l'D By: 0,- r l Leig)h A.J. Ellis Attorney I.D. No. 53229 Cindy N. Ellis Attorney I.D. No. 83823 8 CERTIFICATE OF SERVICE I HEREBY CERTIFY that true and correct copies of the foregoing were served upon all counsel of record this n" day of 2008, by depositing said copy in the United States Mail at Camp Hill, Pennsylvania, postage prepaid, first class delivery, and addressed as follows: Andrew S. Youman, Esquire Kline & Specter Nineteenth Floor 1525 Locust Street Philadelphia, PA 19102 (Counsel to Plaintiffs) FOULKROD ELLIS PROFESSIONAL CORPORATION By: CLA J Crystal L. Nemetz, Secret KLINE & SPECTER, A Professional Corporation BY: THOMAS R. KLINE, ESQUIRE ANDREW S. YOUMAN, ESQUIRE KILA B. BALDWIN, ESQUIRE IDENTIFICATION NO. 28895/65924/94430 Nineteenth Floor 1525 Locust Street Philadelphia, Pennsylvania 19102 (215) 772-1000 c. Attorneys for Plaintiffs rti DOUGLAS WISER and BARBARA WISER, h/w Plaintiffs, vs. BAXTER DREW WELLMON, 111, D.O. and BAXTER DREW WELLMON, II, D.O. FAMILY PRACTICE PIZ c_.. PQ r4 10 1 -1 5-T7 7" \ r i i --c JURY TRIAL DEMANDED Defendants. ORDER AND NOW, this day of 2008, upon consideration of the Preliminary Objections of Defendants to Plaintiffs' Complaint and Plaintiffs' Response thereto, it is hereby ORDERED and DECREED that said Preliminary Objections are OVERRULED. UUUKI Ur UUMMUN.MbAJ CUMBERLAND COUNTY NO. 08-2830 BY THE COURT: KLINE & SPECTER, A Professional Corporation BY: THOMAS R. KLINE, ESQUIRE ANDREW S. YOUMAN, ESQUIRE KILA B. BALDWIN, ESQUIRE IDENTIFICATION NO. 28895/65924/94430 Nineteenth Floor 1525 Locust Street Philadelphia, Pennsylvania 19102 (215) 772-1000 Attorneys for Plaintiffs DOUGLAS WISER and BARBARA WISER, h/w Plaintiffs, VS. BAXTER DREW WELLMON, H, D.O. and BAXTER DREW WELLMON, II, D.O. FAMILY PRACTICE Defendants. COURT OF COMMON PLEAS CUMBERLAND COUNTY NO. 08-2830 : JURY TRIAL DEMANDED PLAINTIFFS' RESPONSE TO PRELIMINARY OBJECTIONS OF DEFENDANTS TO PLAINTIFFS' COMPLAINT Plaintiffs Drew and Barbara Wiser hereby respond to the Preliminary Objections of Defendants to Plaintiffs' Complaint, incorporating the Civil Action Complaint as if set forth fully herein: 1. Admitted. 2. Admitted. 3. Denied. The Complaint is a written document which speaks for itself, and Plaintiffs deny any characterization which is inconsistent with its actual text. 4. Denied. The Complaint is a written document which speaks for itself, and Plaintiffs deny any characterization which is inconsistent with its actual text. 5. Denied. 6. Denied. The Complaint is a written document which speaks for itself, and Plaintiffs deny any characterization which is inconsistent with its actual text. 7. This paragraph contains a conclusion of law to which no response is required. To the extent it is factual, it is specifically denied. 8. Denied. 9. This paragraph contains a conclusion of law to which no response is required. To the extent it is factual, it is specifically denied. 10. This paragraph contains a conclusion of law to which no response is required. To the extent it is factual, it is specifically denied. 11. Denied. 12. Denied. The Complaint is a written document which speaks for itself, and Plaintiffs deny any characterization which is inconsistent with its actual text. 13. This paragraph contains a conclusion of law to which no response is required. To the extent it is factual, it is specifically denied. 14. Denied. 15. This paragraph contains a conclusion of law to which no response is required. To the extent it is factual, it is specifically denied. the extent it is factual, it is specifically denied. 17. Denied. The Complaint is a written document which speaks for itself, and Plaintiffs deny any characterization which is inconsistent with its actual text. 18. This paragraph contains a conclusion of law to which no response is required. To the extent it is factual, it is specifically denied. 19. Denied. The Complaint is a written document which speaks for itself, and Plaintiffs deny any characterization which is inconsistent with its actual text. 20. Denied. The Complaint is a written document which speaks for itself, and Plaintiffs deny any characterization which is inconsistent with its actual text. 21. This paragraph contains a conclusion of law to which no response is required. To the extent it is factual, it is specifically denied. 22. Denied. 23. This paragraph contains a conclusion of law to which no response is required. To the extent it is factual, it is specifically denied. Wherefore, Plaintiffs request that this Court overrule Defendants' Preliminary Objections. KLINE & SPECTER A Professional Corporation Dated: a By. )LL 6. P? ANDREW S. YOUMAN, ESQUIRE KILA B. BADLWIN, ESQUIRE Attorneys for Plaintiffs VERIFICATION I, Kila B. Baldwin, Esquire, counsel for Plaintiffs herein, hereby verify that the statements made in the foregoing Plaintiffs' Response to Defendants Preliminary Objections to Plaintiffs' Complaint are true and correct, to the best of my knowledge, information and belief. I understand that false statements herein are made subject to the penalties of 18 Pa. C.S. §4904 relating to unsworn falsification to authorities. ?)i- a .?^ KILA B. BALDWIN, ESQUIRE Date: a CERTIFICATE OF SERVICE I, Kila B. Baldwin, hereby certify that I served Plaintiffs' Response to Defendants Preliminary Objections to Plaintiffs' Complaint via first class, postage pre-paid U. S. mail upon the following: Leigh A. J. Ellis, Esquire Cindy N. Ellis, Esquire Foulk od Ellis Professional Corporation 2010 Market Street Camp Hill, PA 17011 Dated: ? ZJ'd (e BY: I L? 6 . 14-? KILA B. BALDWIN, ESQUIRE #19 DOUGLAS WISER AND BARBARA WISER, Plaintiffs V, BAXTER DREW WELLMON II D.O. AND BAXTER DREW WELLMON H, D.O. FAMILY PRACTICE, Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA : NO. 2008 - 2830 CIVIL TERM BEFORE HESS. DLER, GUIDD, JJ. ORDER OF COURT AND NOW, this 14UI day of JULY, 2008, Defendants' preliminary objections are sustained in part. The demurrer to plaintiffs' corporate negligence claim and the request to strike paragraphs 40(f), 40(k), 42(f), and 42(k) are SUSTAINED. Tile remaining preliminary objections are DENIED. By?tli6 Court, Edward E. Guido, J. Andrew Youman, Esquire Cindy N. Ellis, Esquire 3(?? KLINE & SPECTER, A Professional Corporation BY: THOMAS R. KLINE, ESQUIRE ANDREW S. YOUMAN, ESQUIRE KIDLA B. BALDWIN, ESQUIRE IDENTIFICATION NO. 28895/65924/94430 Nineteenth Floor 1525 Locust Street Philadelphia, Pennsylvania 19102 (215) 772-1000 Attorneys for Plaintiffs DOUGLAS WISER and BARBARA WISER, h/w Plaintiffs, VS. COURT OF COMMON PLEAS CUMBERLAND COUNTY NO. 08-2830 JURY TRIAL DEMANDED BAXTER DREW WELLMON, II, D.O. and DREW VFELEMOP D.O. FAMILY PRACTICE Defendants ORDER AND NOW, this day of , 2007, upon consideration of the Preliminary Objections of Defendants Baxter Drew Wellmon, If, D.O. and Baxter Drew Wellmon, II, D.O. Family Practice to Plaintiffs' Complaint, and Plaintiffs' Response thereto, it is hereby ORDERED and DECREED that said Preliminary Objections are OVERRULED. BY THE COURT: J. KLINE & SPECTER, A Professional Corporation BY: THOMAS R. KLINE, ESQUIRE ANDREW S. YOUMAN, ESQUIRE KILA B. BALDWIN, ESQUIRE IDENTIFICATION NO. 28895/65924/94430 Nineteenth Floor 1525 Locust Street Philadelphia, Pennsylvania 19102 (215) 772-1000 DOUGLAS WISER and BARBARA WISER, h/w Plaintiffs, vs. Attorneys for Plaintiffs COURT OF COMMON PLEAS CUMBERLAND COUNTY NO. 08-2830 JURY TRIAL DEMANDED BAXTER DREW WELLMON, II, D.O. and BAXTER DREW WEE it ON f f, O FAMILY PRACTICE Defendants. MEMORANDUM OF LAW IN SUPPORT OF PLAINTIFFS' RESPONSE TO PRELIMINARY OBJECTIONS OF DEFENDANTS TO PLAINTIFFS' COMPLAINT Plaintiffs Douglas and Barbara Wiser, by and through their attorneys, Kline & Specter, P.C., respectfully submit the following Memorandum of Law in Support of Plaintiffs' Response to Preliminary Objections of Defendants Baxter Drew Wellmon, H, D.O. ("Dr. Wellmon") and Baxter Drew Wellmon, II, D.O. Family Practice ("Family Practice") to Plaintiffs' Complaint. I. INTRODUCTION This is a medical malpractice action filed on behalf of Douglas and Barbara Wiser, husband and wife, arising out of Defendants' sustained failure to properly diagnose and treat Douglas Wiser's bacterial endocarditis, eventually forcing Mr. Wiser to undergo a mitral valve replacement and suffering various related injuries. Defendants Dr. Wellmon and Family Practice have made Preliminary Objections to Plaintiffs' Complaint, alleging various "Connor" objections, including "Connor" objections to Plaintiffs' agency claims, as well as objections regarding the corporate negligence claims brought against Family Practice. However, all of Defendants' contentions are unfounded. Plaintiffs set forth a detailed, well-pled Complaint which in no way can be considered vague such that "Connor" objections are appropriate, even with regard to Plaintiffs' agency claims. Moreover, there is valid case law holding that corporate negligence claims can be brought against corporate entities such as Family Practice. Thus, Plaintiffs respectfully request that this Honorable Court deny Defendants' Preliminary Objections. II. STATEMENT OF THE FACTS On January 4, 2006, Plaintiff Mr. Wiser had oral surgery to have a tooth removed. On January 18, 2006, Mr. Wiser had additional surgery to remove a portion of his exposed lingual bone. Thereafter, on March 23, 2006, Mr. Wiser presented to Dr. Wellmon at Family Practice with signs and symptoms and a history consistent with and suggestive of bacterial endocarditis, including but not limited to fever, joint aches, shortness of breath, flu-like symptoms and a recent history of dental procedures. According to the records, on or about March 23, 2006, Dr. Wellmon prescribed doxycycline, and instructed Mr. Wiser to return to the office if there was no improvement in one week. In or around March of 2006, Mr. Wiser was traveling to South Carolina from time to time to visit his ailing father-in-law. On March 3, 2006, Mr. Wiser had visited Piedmont West Urgent Care Center in York, South Carolina ("Piedmont West") with complaints of sudden onset fever, 2 cough, congestion, and body ache. This information was known or should have been known to Defendants as of March 23, 2006. On April 4, 2006, Mr. Wiser visited Piedmont West with complaints including fever, joint aches and chronic tiredness. Mr. Wiser expressed a concern about having contracted Lyme Disease. Piedmont West ordered blood tests as well as a check for Rocky Mountain Spotted Fever and Lyme Disease and wrote Mr. Wiser a prescription for Levaquin. On April 7, 2006, Mr. Wiser was screened for Lyme Disease by Quest Diagnostics. Although the Lyme AB screen was positive, the Lyme Disease IGG and IGM Western Blot was negative, indicating that he did not have Lyme Disease. The blood tests also evidenced abnormal lab values, including but not limited to an increased sedimentation rate. The above reports were sent to Dr. Wellmon's office and were known or should have been known to Defendants as of April 18, 2006. On April 18, 2006, Mr. Wiser again presented to Dr. Wellmon at Family Practice with signs and symptoms consistent with and suggestive of bacterial endocarditis, including but not limited to fever, joint aches, headache, chills, sweats, nausea, fatigue, weakness and shortness of breath. Dr. Wellmon noted that Mr. Wiser "demonstrates diffuse constitutional symptoms and Lyme AB screen was positive patient will complete Levaquin prescribed by another practitioner and was given prescription for doxycycline and patient will follow up in office in two weeks." On April 28, 2006, Mr. Wiser again presented to Dr. Wellmon at Family Practice with signs and symptoms consistent with and suggestive of bacterial endocarditis. Dr. Wellmon's stated assessment and plan was "patients condition likely secondary to viral etiology and will chose and dramatically and supportive league is no improvement will finally further. Patient was instructed 3 to return to office if no improvement in one week, and was invited to return sooner if symptoms worsen or any complications arise." On May 9, 2006, Mr. Wiser visited Piedmont West with complaints of fatigue and what Piedmont West determined to have been a TIA two days prior. Terry F. Hayes, M.D. of Piedmont West corresponded with Dr. Wellmon, reporting that Mr. Wiser had a TIA while visiting South Carolina, and that he needed further evaluation of his anemia, hematuria, and TIA, as well as a follow-up on his Lyme Disease. Dr. Wellmon failed to appropriately follow up with Mr. Wiser for any of these conditions, as was required. On May 17, 2006, Mr. Wiser visited Chambersburg Hospital with complaints of fatigue, high fevers, chills and night sweats. The physicians at Chambersburg Hospital ordered a cardiac pack, blood cultures, and a chest X-ray. It was noted that Mr. Wiser's previous Lyme Disease Western Blot screening was negative. Mr. Wiser was screened for Lyme Disease at the Chambersburg Hospital, and was found to be negative for Lyme Disease. On May 19, 2006, Mr. Wiser was diagnosed at Chambersburg Hospital with extensive bacterial endocarditis with vegetations of the mitral valve, and at least moderate mitral regurgitation. He was also diagnosed with atherosclerotic changes of the aortic valve with moderate aortic insufficiency. The hospital could not exclude the possibility of vegetations or bacterial endocarditis on this valve, although there were not obvious vegetations appreciated. Mr. Wiser was deemed a candidate for mitral valve replacement, and the need for transfer to surgery was noted. Mr. Wiser was then transferred to the Milton S. Hershey Medical Center for cardiac catheterization and a course of antibiotics. Mr. Wiser was to return after six full weeks of antibiotic treatment for surgery on his mitral valve. 4 On June 13, 2006, Mr. Wiser underwent mitral valve replacement. Following surgery, Mr. Wiser was prescribed Coumadin for his condition. Due to the negligence and carelessness of Dr. Wellmon and Family Practice, there was a delay in the diagnosis of Mr. Wiser's bacterial endocarditis from March 23, 2006 through May 19, 2006, during which time his condition progressed and worsened, necessitating mitral valve replacement surgery and lifetime prescription for Coumadin. III. QUESTIONS PRESENTED 1. Should any of Plaintiffs' claims of corporate negligence against Family Practice be stricken? Suggested Answer: No. 2. Should any of Plaintiffs' agency claims against Defendants be stricken? Suggested Answer: No. 3. Should any of Plaintiffs' detailed, well-pled claims against Defendants be stricken for failing to provide a factual basis to support the claims? Suggested Answer: No. IV. LEGAL ARGUMENT A. Family Practice May Be Charged With Claims of Corporate Negligence Under Pennsylvania Law In Pennsylvania, the theories of negligence against hospitals have changed significantly over the past century, likely representative of the changes to health care practice. See Oven v. Pascucci, 46 Pa. D. & C. 4`h 506,512 (C.P. Lackawanna Co. 2000). For instance, in 1910, the Pennsylvania Supreme Court held that hospitals were completely immune from liability. Gable v. Sisters of St. 5 Francis, 75 A. 1087, 1089 (Pa. 1910). Thereafter, in 1974, the Supreme Court reversed itself, holding that hospitals could be held vicariously liable for the negligence of their employees. Tonsic v. Wa ner, 329 A.2d 497, 501 (Pa. 1974). And, beginning in 1980, hospitals have been could be held liable for the malpractice of independent contractor physicians based on a theory of ostensible or apparent agency. Capan v. Providence Hosn., 430 A. 2d 647, 649-50 (Pa. Super. Ct. 1980). Finally, in Thomson v. Nason, 591 A.2d 703 (Pa. 1991), the Supreme Court set forth four general areas of corporate negligence for which hospitals may be held liable: "(1) a duty to use reasonable care in the maintenance of safe and adequate facilities and equipment...; (2) a duty to select and retain only competent physicians...; (3) a duty to oversee all persons who practice medicine within its walls as to patient care...; and (4) a duty to formulate, adopt and enforce adequate rules and policies to ensure quality care for the patients..." Similarly, the liability of other non-hospital healthcare entities is changing representative of the changes to the health care practice. Although Defendants attempted to argue otherwise, there is no binding case law holding that corporate negligence claims cannot be brought against non- hospital entities. In fact, numerous Pennsylvania Courts have already accepted that corporate negligence claims can be brought against non-hospital entities, with many more likely to follow. By way of example, in Oven, after exploring various Pennsylvania Courts' treatment of corporate negligence claims brought against non-hospital entities, the court specifically afforded Plaintiffs the right to explore such claims against Defendants during the discovery process, holding that the Defendants could revisit the issue with a Motion for Summary Judgment if the investigation did not establish these claims. 46 Pa. D. & C. 4t' at 522-23. Likewise, in 2002, the Eastern District examined Pennsylvania's stance on corporate negligence claims brought against non-hospital 6 entities. See Dotonville v. Jefferson Health System, 2002 WL 59318 (E.D. Pa. 2002). Here, the Court recognized the Oven Court's analysis that "the Superior Court of Pennsylvania has expanded the principle of corporate negligence to health care entities other than hospitals", and allowed claims of corporate negligence to be brought against non-hospital entities. Id. at *3 (quoting Oven, 46 Pa. D. & C. 4" at 517). Applying this standard, Plaintiffs claim Baxter Drew Wellmon, R, D.O. Family Practice committed the following acts of corporate negligence: 44. The corporate negligence of Family Practice consisted of a breach of the following duties: 1. deviating from the standard of care by failing to require that all physicians were properly and adequately trained to recognize and/or identify and treat bacterial endocarditis; 2 deviating from the standard of care by failing to require that all physicians were properly and adequately trained to evaluate and diagnose bacterial endocarditis; 3. deviating from the standard of care by failing to require and assure that all physicians were properly and adequately supervised so as to obtain full and complete appropriate medical histories, check prior medical history, perform full and complete evaluations, order and/or recommend needed and required follow up or repeat testing; and, 4. deviating from the standard of care by failing to properly and adequately diagnose Mr. Wiser's bacterial endocarditis. 45. The Defendant Family Practice failed to supervise and oversee the conduct of its medical staff by their: a. deviating from the standard of care by failing to provide adequate competent medical staff for the evaluation, treatment and diagnosis of patients presenting with signs and symptoms of bacterial endocarditis; b. deviating from the standard of care by failing to provide adequate supervisory oversight in order to ensure that proper consultation and follow-up occurred in response to patients showing medical signs and symptoms of bacterial endocarditis; C. deviating from the standard of care by failing to provide adequate supervisory oversight in order to ensure that proper consultation and follow-up occurred at each presentation to their facilities and that full and adequate medical histories were taken and full and complete evaluations were performed; 7 d. deviating from the standard of care by failing to provide supervisory oversight to ensure that proper evaluation, interpretation, and reporting of symptoms, complaints and test results were performed; e. deviating from the standard of care by failing to provide supervisory oversight to ensure needed was performed; f, deviating from the standard of care by failing to provide adequate supervisory oversight to ensure facilities were adequately equipped, staffed, and situated to provide adequate and appropriate care to Mr. Wiser; and, g. deviating from the standard of care by failing to timely diagnose Mr. Wiser's bacterial endocarditis. 46. The Defendant Family Practice failed to formulate, copy, review, revise and enforce adequate rules, policies, and procedures to ensure quality of care rendered for the safety of Mr. Wiser for the following: a. deviating from the standard of care by failing to adopt and implement policies, procedures, and/or protocols to ensure that patients with the medical signs and symptoms suspicious for bacterial endocarditis would be properly and timely attended to and followed up on at the time of presentation and at subsequent visits for the timely surgical and other intervention necessary for the treatment of that condition; b. deviating from the standard of care by failing to have policies, procedures, and/or protocols in place for the proper management of Mr. Wiser's bacterial endocarditis; C. deviating from the standard of care by failing to initiate appropriate physician intervention in response to patients with medical signs and symptoms of bacterial endocarditis, including proper communication with appropriate specialists and/or proper diagnostic testing; d. deviating from the standard of care by failing to have policies, procedures and/or protocols to ensure the appropriate work-up of abnormal clinical, diagnostic, and/or other findings were completed; e. deviating from the standard of care by failing to implement, institute and enforce a policy, procedure, and/or protocol requiring prompt consultation, evaluation, and treatment in the face of signs and symptoms of bacterial endocarditis; and, f. deviating from the standard of care by failing to have policies, procedures 8 and/or protocols to ensure that full and complete histories are obtained from patients at each presentation and follow-up and investigation of prior visits and symptoms is conducted and appropriate evaluations, consults, and testing ordered and performed at each visit given a patient's current presentation and history. See Complaint, attached hereto as Exhibit "A," at 1144-46. Defendants pointed out in their Preliminary Objections that several lower courts in Pennsylvania have limited the application of corporate negligence to non-hospital entities. However, there is no consensus among Pennsylvania Courts, and the Supreme Court has not decided this issue. As such, it is most appropriate for this Court to adopt the Dotonville ruling and afford Plaintiffs the opportunity to explore such claims through the discovery process. If indeed such claims are not valid, it will become evident to all parties during the discovery process. However, it is near impossible for this Court to make such a determination now, without any of the parties having had the opportunity to explore the issue in detail given the facts of this case that will naturally arise through interrogatories, document requests, depositions, and the like. Moreover, preliminary objections should only be sustained in cases that are free and clear from doubt. Courts must overrule preliminary objections to Complaints if it pleads sufficient facts, if believed, would entitle the Plaintiffs to relief under the law. Dotonville, 2002 WL 59318 at *4. Quite obviously, the Oven and Dotonville Courts recognized that Plaintiffs could seek relief against non-hospital entities for corporate negligence claims. As such, this Court must overrule Defendants' objections to Plaintiffs' corporate negligence claims against Family Practice, as there is a basis for such claims under Pennsylvania law. B. Plaintiffs Have Properly Identified All Agents to the Extent Required at this Point in the Pleadings 9 Defendants improperly object to the allegations of agency set forth in the Complaint on the grounds that they are unspecific. However, at this point in the litigation Plaintiffs are not required to identify by name Defendants' agents who participated in the care and treatment of Mr. Wiser, as the information is not readily available and must be obtained through discovery in accordance with the Rules of Civil Procedure. Defendants cannot claim any prejudice by Plaintiffs' inability to identify the agents who participated in Mr. Wiser's care by name at this point, as they are already in possession of such information or are easily able to obtain it. As stated quoted by the Court in Gill v. Wilkes-Barre Pub Co., 30 Pa. D. & C. 2d 251, 252-53 (C.P. Luzerne Co. 1963) uotin Hassler v. Saracena, 60 Dauph. 237, 241 (C.P. Dauphin Co. 1949)), in addressing the issue of identifying agents by name in a Complaint in a tort action (emphasis added): "It is hardly conceivable that contractual liability could be imposed upon principal without full knowledge by the plaintiff and disclosure on his part of the name of the agent who imposed such contractual liability... There is however, a wide diversity in the factual situations which give rise to actions in tort. Whereas in contract actions, by their nature, the parties usually have complete knowledge of the identity of the contracting parties, tort actions on the other hand, frequently arise between parties who are utter strangers to each other. They do not always know the names of all parties involved, and sometimes in the inherent nature of the case cannot know the names of all parties involved." Here plaintiff sets forth that the containers of oil were delivered at a certain place., on a given date, and at a time fixed. It seems that defendant would be better able to ascertain which of its agents, if any, worked in this area at that time and whether or not any statement or instructions were given by him. In addition to Gill and Hassler, numerous other courts have also denied Defendants' Preliminary Objections to Plaintiffs' Complaint alleging Plaintiffs failed to specifically identify the names of 10 agents and held that there was no such requirement for a pleading in a tort/negligence action. See Sprecker v. Minutola, 70 Pa. D. & C. 595 (C.P. Dauphin Co. 1950); Huss v. Atlas Powder Co., 75 Pa. D. & C. 366 (C.P. Schuylkill Co. 1951). As explained by the Court in Huss: "Actually, the only question before us under Rule 1017 (b)(3) is whether the complaint is sufficiently clear to enable the defendant in this case to prepare his defense. In other words, does the failure of the plaintiff to name defendant's servants, agents and employees in his complaint render the complaint so vague and uncertain that plaintiff must amend the same and name those servants, agents and employees, so as to enable the defendant to prepare his evidence and present the same at the trial? There is nothing in the complaint to indicate that the plaintiff has any knowledge concerning the names or identity of the defendant's employees who are alleged to have committed the wrongful acts complained of. It was argued by the plaintiff, of course, that he did not know such names, and this argument does not seem to have been seriously controverted by the defendant. The defendant, however, by the very nature of this operation had either knowledge or means of knowledge as to the employees who were engaged in the particular operation complained of. At least it can be said with reasonable certainty that the defendant's means of ascertaining the names of these particular employees on the basis of the pleadings in this case, are shown to be far superior to any means available to the plaintiff. "In these circumstances, we confess that we do not understand how a particular allegation as to the names of the defendant's servants is essential to the preparation of the defense or the presentation of defendant's evidence. In the very nature of this particular case, the plaintiff probably could not know with accuracy the names of these servants or agents, and it is difficult to see how the plaintiffs could otherwise identify them, except by stating that they were the particular servants engaged in that operation." Every word of the foregoing quotation applies with equal force to the situation in the case before us. Defendant can ascertain the names of particular servants, agents or employees from its own records. On the other hand, it is highly improbable that plaintiff knows such names, and if he were required to state them in his complaint it is possible that he would have to resort to some time-consuming, and perhaps 11 costly, ancillary discovery procedure. "As a general rule, a party will not be required to furnish information which is peculiary within the knowledge of the parry demanding the particulars": Georges Township v. Union Trust Co., 293 Pa. 364, 378... 75 Pa. D. & C. at 369 uotin Hassler, 60 Dauph. at 239-40). Thus, in accordance with Pennsylvania law, Plaintiffs are not required at this time to identify byname specific agents of Defendants. The allegations of agency in Plaintiffs' Complaint when read in conjunction with the rest of the Complaint clearly put Defendants on notice of the claims against them. Defendants' objections to plaintiffs' claims of agency must therefore be overruled. C. Plaintiffs Filed a Detailed Well-Pled Complaint Which Specified the Alleged Acts of Negligence of Dr. Wellmon and Family Practice Pennsylvania is a fact pleading state whereby the Complaint must provide the Defendant notice of the basis of the claim, as well as a summary of the facts essential to support that claim. Alpha Tau Omega Fraternity v. Univ. of Pa., 464 A.2d 1349 (Pa. Super. Ct. 1983). Preliminary objections in the form of motions to strike items in a complaint for lack of specificity of pleading may be filed by any party. Pa. R.C.P. 1028(a)(3). However, in determining whether a pleading is pled with the requisite specificity, this Court must determine "whether the complaint is sufficiently clear to enable the Defendant to prepare his defense or [if it] informs the Defendant with accuracy and completeness of the specific basis on which recovery is sought so that he may know without question upon what grounds to make his defense." McNeil v. Jordan , 814 A.2d 234, 237-38 (Pa. Super. Ct. 2002). To determine if a paragraph contains the appropriate specificity, the Court must look not only to the particular paragraph at issue, but also to that paragraph in the context of the other allegations in the complaint. 12 Yacoub v. Lehigh Med. Assoc. P.C., 805 A.2d 579, 588 (Pa. Super. Ct. 2002). Yet, it is not necessary to plead evidence which can be developed through discovery. Local No. 163. Int' 1 Union U.B.F.C.S.D. & D.W. v. Watkins. 207 A.2d 776 (Pa. 1965). The Court need only ensure that the challenged averments present no risk of a future, unexpected amendment to the complaint based upon new facts after the statute of limitations has run. Connor v. AlleghgnGeri. Hosp., 461 A.2d 600 (Pa. 1983). In the instant situation Defendants argue that portions of the Complaint are so general that they could relate to any care provided to Mr. Wiser by Dr. Wellmon over any timeframe. Yet, Plaintiffs' Complaint was clear that Dr. Welhnon saw Mr. Wiser on or about March 23, 2006, and the specific legations took place between March 23, 2006 and his diagnosis on May 19, 2006. See Exhibit "A" at 1113-32. Subsequent paragraphs of the Complaint explained very specifically the precise manner in which Dr. Wellmon and Family Practice were alleged to have been negligent. See id. at 1139-42. When examining a specific paragraph of a Complaint, the Court must look at that paragraph in the context of all other allegations in the Complaint to determine if there is the requisite level of specificity. Yacoub, 805 A.2d at 588. As such, it is quite obvious that Paragraphs 40(f), 40(k), 40(l), 40(m), 40(n), 42(f), 42(k), 42(1), 42(m), and 42(n), when read in combination with all the other paragraphs and subparagraphs relating to the objecting Defendants, are quite clear as to the alleged acts of negligence of these Defendants, and easily provide adequate specificity allowing them to prepare an Answer to the Complaint. Additionally, in Local No. 163. Int'1 Union U.B.F.C.S.D. & DW , the Superior Court explained that a Complaint can be deemed sufficiently specific if each Defendant knows "the nature 13 of the improprieties with which he is charged." 207 A.2d at 779-806. Here, both Dr. Wellmon and Family Practice can easily discern the alleged improprieties with which they are being charged. Plaintiffs' Complaint is devoid of any "boiler plate" or "catch all" allegations which "are not specific to this action and could be pled against anyhealth care provider in any malpractice action." See Brief in Support of Preliminary Objections of Defendants. V. CONCLUSION For the foregoing reasons, Plaintiffs Douglas and Barbara Wiser respectfully request that this Honorable Court overrule the Defendants' Preliminary Objections, and enter an Order in the fonn attached hereto. Respectfully yours, Date: KLINE & SPECTER A Professional Corporation By: _ ]a THOMAS R. KLINE, ESQUIRE ANDREW S. YOUMAN, ESQUIRE KILA B. BALDWIN, ESQUIRE Attorneys for Plaintiffs CERTIFICATE OF SERVICE I, Kila B. Baldwin, Esquire, hereby certify that on July a (, 2008 service of a true and correct copy of Plaintiffs' Response to Preliminary Objections of Defendants, Baxter Drew Wellmon, H, D.O. and Baxter Drew Wellmon, II, D.O. Family Practice to Plaintiffs' Complaint was served via first-class mail, postage prepaid, upon the following: Leigh A.J. Ellis Cindy N. Ellis Foulkrod Ellis Professional Corporation 2010 Market Street Camp Hill, PA 17011 -? -2) b?, Date: KLINE & SPECTER A Professional Corporation By: I/iL, 6. /Lx. THOMAS R. KLINE, ESQUIRE ANDREW S. YOUMAN, ESQUIRE KILA B. BALDWIN, ESQUIRE Attorneys for Plaintiffs VERIFICATION I, Kila B. Baldwin, Esquire, counsel for Plaintiffs in the foregoing action, hereby verify that the statements made in the foregoing Plaintiffs' Response to Preliminary Objections of Defendants Baxter Drew Wellmon, 11, D.O. and Baxter Drew Wellmon, II, D.O. Family Practice to Plaintiffs' Complaint are true and correct to the best of my knowledge, information and belief. The undersigned understands that the statements therein are made subject to the penalties of 18 PA.C.S. Section 4904 relating to unsworn falsification to authorities. KLINE & SPECTER Professional Corporation ?6? Date: -)/) By: ) ?k 6. P--.n THOMAS R. KLINE, ESQUIRE ANDREW S. YOUMAN, ESQUIRE KILA B. BALDWIN, ESQUIRE Attorneys for Plaintiffs / r AUG U 5 Z008? KLINE & SPECTER, A Professional Corporation BY: THOMAS R. KLINE, ESQUIRE ANDREW S. YOUMAN, ESQUIRE KILA B. BALDWIN, ESQUIRE IDENTIFICATION NO. 28895/65924/94430 Nineteenth Floor 1525 Locust Street Philadelphia, Pennsylvania 19102 Attorneys for Plaintiffs (215) 772-1000 DOUGLAS WISER and COURT OF COMMON PLEAS BARBARA WISER, h/w CUMBERLAND COUNTY Plaintiffs, NO. 08-2830 vs. JURY TRIAL DEMANDED BAXTER DREW WELLMON, II, D.O. and BAXTER DREW WELLMON, H, D.O. FAMILY PRACTICE Defendants. ORDER AND NOW, this ?O day of , 2008, upon consideration of Plaintiffs' Motion for Reconsideration (the "Motion"), it is hereby ORDERED that the Motion is GRANTED, and it is FURTHER ORDERED that the Court Order dated July 14, 2008An Preliminary Objections is hereby w4 ps ? OM&T VACATED a ?DlecTion er s? VINVAWNN3d r, > ?. ,U, NriCYD ? i :q wd s- qna oooz KdVlOl' dd 3Hi K 3 )tl-j_#,"?--(33 i3 PRAECIPE FOR LISTING CASE FOR ARGUMENT (Must be typewritten and submitted in duplicate) TO THE PROTHONOTARY OF CUMBERLAND COUNTY: (List the within matter for the next Argument Court.) CAPTION OF CASE (entire caption must be stated in full) Douglas Wiser and Barbara Wiser vs. Baxter Drew Wellmon, II. D.O. and Baxter Drew Wellmon, II, D.O. Family Practice No. 2830 , 90O8 Term 1. State matter to be argued (i.e., plaintiff's motion for new trial, defendant's demurrer to complaint, etc.): Preliminary Objections 2. Identify all counsel who will argue cases: (a) for plaintiffs: Kila Baldwin, Esq. Kline & Specter, P.C. 1525 Locust St, (Name and Address) Philadelphia, PA 19102 (b) for defendants: Cindy Ellis, Esq. Foulkrod Ellis, P.C. 2010 Market St, (Name and Address) Camp Hill, PA 17011 3. 1 will notify all parties in writing within two days that this case has been listed for argument. 4. Argument Court Date: September 3. 2008 Signature Kila B. Baldwin. Esauire Print your name PIC..In},Tf's {? ?e Attorney for Date: V INSTRUCTIONS: 1. Two copies of all briefs must be filed with the COURT ADMINISTRATOR (not the Prothonotary) before argument. 2. The moving party shall file and serve their brief 12 days prior to argument. 3. The responding party shall file their brief 5 days prior to argument. 4. If argument is continued new briefs must be filed with the COURT ADMINISTRATOR (not the Prothonotary) after the case Is relisted. '0. " .4- 1 CERTIFICATE OF SERVICE I, Kila B. Baldwin, hereby certify that I served Plaintiffs' Praecipe for Listing Case for Argument via first class, postage pre-paid U. S. mail upon the following: Leigh A. J. Ellis, Esquire Cindy N. Ellis, Esquire Foulkrod Ellis Professional Corporation 2010 Market Street Camp Hill, PA 17011 Dated: ? I CI V By: I L? 6n; KILA B. BALDWIN, ESQUIRE ! " C7 ? v ca v 0 Film :?i DOUGLAS WISER AND IN THE COURT OF COMMON PLEAS OF BARBARA WISER, CUMBERLAND COUNTY, PENNSYLVANIA PLAINTIFFS V. BAXTER DREW WELLMON, II, D.O. AND BAXTER DREW WELLMON, II, D.O. FAMILY PRACTICE, DEFENDANTS 08-2830 CIVIL TERM IN RE: PRELIMINARY OBJECTIONS OF DEFENDANTS TO PLAINTIFFS' COMPLAINT BEFORE BAYLEY, J. AND GUIDO, J. ORDER OF COURT AND NOW, this 7A day of September, 2008, IT IS ORDERED: (1) Plaintiffs "second cause of action" for corporate negligence, IS DISMISSED. (2) Paragraphs 40F, 40K, 40N, 42F and 42N of plaintiffs' complaint, ARE STRICKEN. (3) All other preliminary objections of defendants to plaintiffs' complaint, ARE DENIED. By pe Court, 1 ila B. Baldwin, Esquire Nineteenth Floor 1525 Locust Street Philadelphia, PA 19102 For Plaintiffs v,Keigh A.J. Ellis, Esquire For Defendants J ?el Edgar B. Bayley, J. I/ U.J - GL CIO LIJ wry W :. LL.- G7 C C=;) :f ? C7 FOULKROD ELLIS Professional Corporation 2010 Market Street Camp Hill, Pennsylvania 17011 Telephone: (717) 909-7006 Fax: (717) 909-6955 Attorneys for Defendants: Baxter Drew Wellmon, D.O., and Baxter Drew Wellmon, D.O., P.C. DOUGLAS WISER AND BARBARA WISER, Plaintiffs V. BAXTER DREW WELLMON II, D.O. AND BAXTER DREW WELLMON II, D.O. FAMILY PRACTICE, IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 08-2830 Defendants JURY TRIAL DEMANDED NOTICE TO PLEAD TO: Douglas Wiser and Barbara Wiser c/o Andrew S. Youman, Esquire Kline & Specter Nineteenth Floor 1525 Locust Street Philadelphia, PA 19102 YOU ARE HEREBY NOTIFIED to plead to the attached NEW MATTER OF DEFENDANTS, BAXTER DREW WELLMON, II, D.O. AND BAXTER DREW WELLMON, II, D.O. FAMILY PRACTICE within twenty (20) days from service hereof, or a default judgment may be entered against you. Respectfully submitted, FOULKROD ELLIS PROFESSIONAL CORPORATION Date: By: J" -, Leigh .J. is Attorney I.D. No. 53229 Cindy N. Ellis Attorney I.D. No. 83823 2 FOULKROD ELLIS Professional Corporation 2010 Market Street Camp Hill, Pennsylvania 17011 Telephone: (717) 909-7006 Fax: (717) 909-6955 DOUGLAS WISER AND BARBARA WISER, Plaintiffs V. BAXTER DREW WELLMON II, D.O. AND BAXTER DREW WELLMON II, D.O. FAMILY PRACTICE, Defendants Attorneys for Defendants: Baxter Drew Wellmon, D.O., and Baxter Drew Wellmon, D.O., P.C. IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 08-2830 TT TR V TR T A T TIUX d o ATT1L'Tl ANSWER AND NEW MATTER OF DEFENDANTS BAXTER DREW WELLMON, II, D.O. AND BAXTER DREW WELLMON, II, D.O. FAMILY PRACTICE TO PLAINTIFFS' COMPLAINT AND NOW come Defendants, Baxter Drew Wellmon, II, D.O. and Baxter Drew Wellmon, II, D.O. Family Practice (hereinafter "Answering Defendants"), by and through their counsel, Foulkrod Ellis, Professional Corporation, and hereby respond to Plaintiffs' Complaint and in support of the same, aver as follows: 1-2. Denied. After reasonable investigation, Answering Defendants are without knowledge or information sufficient to form a belief as to the truth of the allegations contained in these paragraphs, and the same are deemed denied and strict proof thereof is demanded at the time of trial. 3. Admitted in part, denied in part. It is denied that Baxter Drew Wellmon, II, D.O. is a practicing physician specializing in internal medicine. To the contrary, Baxter Drew Wellmon, II, D.O. specializes in family practice medicine. It is admitted that he has a professional office at 127 Walnut Bottom Road, Shippensburg, PA 17257. The remainder of the allegations are denied as conclusions of law or fact to which no response is required. 4. Admitted. 5. Admitted in part, denied in part. It is admitted that Defendant, Dr. Wellmon was acting as an agent of Defendant Family Practice. The remainder of the allegations are denied as conclusions of law or fact to which no response is required. By way of further answer, Plaintiffs' claim of corporate negligence under Thompson v. Nason, 591 A.2d 703 (Pa. 1991) has been stricken by Order of Court dated September 3, 2008. 6. Denied. As Plaintiffs have failed to specifically identify the individuals upon whom the allegation relies, Answering Defendants are unable to respond to the allegations. 7. Denied. After reasonable investigation, Answering Defendants are without knowledge or information sufficient to form a belief as to the truth of the 2 allegations contained in this paragraph, and the same are deemed denied and strict proof thereof is demanded at the time of trial. 8-9. Denied. The averments contained within these paragraphs are conclusions of law or fact to which no response is necessary. To the extent a response is deemed necessary, the allegations are denied generally and strict proof thereof is demanded at trial. FACTUAL BACKGROUND 10-28. Denied generally pursuant to Pa.R.C.P. 1029(e). 29. Denied. The averments contained within this paragraph are conclusions of law or fact to which no response is necessary. To the extent a response is deemed necessary, the allegations are denied generally and strict proof thereof is demanded at trial. 30-34. Denied generally pursuant to Pa.R.C.P. 1029(e). 35-38. Denied. The averments contained within these paragraphs are conclusions of law or fact to which no response is necessary. To the extent a response is deemed necessary, the allegations are denied generally and strict proof thereof is demanded at trial. FIRST CAUSE OF ACTION MEDICAL PROFESSIONAL NEGLIGENCE COUNTI DOUGLAS AND BARBARA WISER V. BAXTER DREW WELLMON, 11, D.O. 39. Answering Defendants hereby incorporate their responses to Paragraphs 1 through 38 of the answer as though fully set forth herein. 3 40. Denied. The averments contained within these paragraphs and subparagraphs are conclusions of law or fact to which no response is necessary. To the extent a response is deemed necessary, the allegations are denied generally and strict proof thereof is demanded at trial. By way of further answer, paragraphs 40(f), 40(k) and 40(n) have been stricken pursuant to Order of Court dated September 3, 2008. WHEREFORE, Answering Defendants demand judgment in their favor and against Plaintiffs. COUNT II DOUGLAS AND BARBARA WISER V. BAXTER DREW WELLMON, II., D.O. FAMILY PRACTICE 41. Answering Defendants hereby incorporate their responses to Paragraphs 1 through 40 of the answer as though fully set forth herein. 42. Denied. The averments contained within these paragraphs and subparagraphs are conclusions of law or fact to which no response is necessary. To the extent a response is deemed necessary, the allegations are denied generally and strict proof thereof is demanded at trial. By way of further answer, paragraphs 42(f), 42(k) and 42(n) have been stricken pursuant to Order of Court dated September 3, 2008. WHEREFORE, Answering Defendants demand judgment in their favor and against Plaintiffs. SECOND CAUSE OF ACTION CORPORATE NEGLIGENCE DOUGLAS AND BARBARA WISER V. BAXTER DREW WELLMON, II., D.O FAMILY PRACTICE 43-47. Plaintiffs' second cause of action for corporate negligence has been dismissed pursuant to Order of Court dated September 3, 2008. 4 THIRD CAUSE OF ACTION LOSS OF CONSORTIUM BARBARA WISER V. ALL DEFENDANTS 48. Answering Defendants hereby incorporate their responses to Paragraphs 1 through 47 of the answer as though fully set forth herein. 49-50. Denied. The averments contained within these paragraphs are conclusions of law or fact to which no response is necessary. To the extent a response is deemed necessary, the allegations are denied generally and strict proof thereof is demanded at trial. WHEREFORE, Answering Defendants demand judgment in their favor and against Plaintiffs. NEW MATTER 51. Plaintiffs have failed to state a claim against Answering Defendants upon which relief may be granted. 52. The Plaintiffs' claim may be barred and/or limited by the applicable statute of limitations. 53. Answering Defendants are not liable to the Plaintiffs for the claims set forth in Plaintiffs' Complaint. The injuries and damages referred therein are a result of medical conditions beyond the control of Answering Defendants for which Answering Defendants are not liable or were caused by persons or entities beyond the control of Answering Defendants. 54. Plaintiffs' claims may be barred by or limited by the doctrine of relief, res judicata, and/or collateral estoppel. 5 55. Plaintiffs' claims may be barred and/or limited by the Medical Care Availability and Reduction of Error Act of 2002. 56. Plaintiffs may not recover damages for past medical expenses and/or past lost earnings incurred to the time of trial to the extent that the loss is covered by a private or public benefit or gratuity that has been received prior to trial. 57. Future damages for loss of earnings shall be reduced to present value. 58. The Answering Defendants aver that insofar as the treatment modality was elected which is recognized as proper, but may differ from another appropriate treatment modality, Answering Defendants raise the two school of thoughts defense. 59. Answering Defendants believe and therefore aver that evidence accumulated through discovery and provided at trial may establish that Plaintiffs were contributorily or comparatively negligent, and in order to protect the record, Answering Defendants hereby plead contributory and comparative negligence as affirmative defenses. WHEREFORE, Answering Defendants demand judgment in their favor and against Plaintiffs. Respectfully submitted, FOULKROD ELLIS PROFESSIONAL CORPORATION Date: gl110 By: e- ,, ? g", ?, - Leigh J. Ellis Attorney I.D. No. 53229 Cindy N. Ellis Attorney I.D. No. 83823 6 VERIFICATION I, Baxter Drew Wellmon, II, D.O., hereby certify that I have read the foregoing Answer and New Matter of Defendant Baxter Drew Wellmon, II, D. 0. and Baxter Drew Wellmon, II, D.O. Family Practice to Plaintiffs' Complaint, which has been drafted by my counsel on my behalf and that the facts set forth therein are true and correct to the best of my knowledge, information and belief. This statement and Verification are made subject to the penalties of 18 Pa.C.S.A. §4904, relating to unworn fabrication to authorities; I verify that all the statements made in the foregoing are true and correct and that false statements may subject me to the penalties of 18 Pa.C.S.A. §4904. Date: Baxter Drew Wellmon, II., D.O. \\\. VERIFICATION I, Baxter Drew Wellmon, II, D.O., on behalf of Baxter Drew Wellmon, II, D.O. Family Practice, hereby certify that I have read the foregoing Answer and New Matter of Defendant Baxter Drew Wellmon, II, D. 0. and Baxter Drew Wellmon, II, D. 0. Family Practice to Plaintiffs' Complaint, which has been drafted by my counsel on my behalf and that the facts set forth therein are true and correct to the best of my knowledge, information and belief. This statement and Verification are made subject to the penalties of 18 Pa.C.S.A. §4904, relating to unsworn fabrication to authorities; I verify that all the statements made in the foregoing are true and correct and that false statements may subject me to the penalties of 18 Pa.C.S.A. §4904. Date: r J Baxter Drew Wellmon, II., D.O. on behalf of Baxter Drew Wellmon, II, D.O. Family Practice CERTIFICATE OF SERVICE I HEREBY CERTIFY that true and correct copies of the foregoing were served upon all counsel of record this CI day of 2008, by depositing said copy in the United States Mail at Camp Hill, Pennsylvania, postage prepaid, first class delivery, and addressed as follows: Andrew S. Youman, Esquire Kline & Specter Nineteenth Floor 1525 Locust Street Philadelphia, PA 19102 (Counsel to Plaintiffs) FOULKROD ELLIS PROFESSIONAL CORPORATION By: Onomfl Crystal L. Nemetz, Secretary °s.? 9 ?a ?1 ?? '? ?f--, ?j ..? l m j ?'i'? f ?.' a KLINE & SPECTER, A Professional Corporation BY: THOMAS R. KLINE, ESQUIRE ANDREW S. YOUMAN, ESQUIRE KILA B. BALDWIN, ESQUIRE IDENTIFICATION NO. 28895/65924/94430 Nineteenth Floor 1525 Locust Street Philadelphia, Pennsylvania 19102 Attorneys for Plaintiffs (215) 772-1000 DOUGLAS WISER and COURT OF COMMON PLEAS BARBARA WISER, h/w CUMBERLAND COUNTY Plaintiffs, NO. 08-2830 VS. JURY TRIAL DEMANDED BAXTER DREW WELLMON, H, D.O. and BAXTER DREW WELLMON, II, D.O. FAMILY PRACTICE Defendants PLAINTIFFS' RESPONSE TO THE NEW MATTER OF DEFENDANTS, BAXTER DREW WELLMON, II, D.O. AND BAXTER DREW WELLMON. H. D.O. FAMILY PRACTICE Plaintiffs, Douglas and Barbara Wiser, hereby respond to the New Matter of Defendants, Baxter Drew Wellmon, II, D.O. and Baxter Drew Wellmon, II, D.O Family Practice as follows: 51. Denied. Defendants' averments state legal conclusions to which no response is required and therefore the allegations are deemed denied. 52. Denied. Defendants' averments state legal conclusions to which no response is required and therefore the allegations are deemed denied. 53. Denied. Defendants' averments state legal conclusions to which no response is required and therefore the allegations are deemed denied. 54. Denied. Defendants' averments state legal conclusions to which no response is required and therefore the allegations are deemed denied. 55. Denied. Defendants' averments state legal conclusions to which no response is required and therefore the allegations are deemed denied. 56. Denied. Defendants' averments state legal conclusions to which no response is required and therefore the allegations are deemed denied. 57. Denied. Defendants' averments state legal conclusions to which no response is required and therefore the allegations are deemed denied. 58. Denied. Defendants' averments state legal conclusions to which no response is required and therefore the allegations are deemed denied. 59. Denied. Defendants' averments state legal conclusions to which no response is required and therefore the allegations are deemed denied. WHEREFORE, Plaintiffs respectfully request judgment in their favor, together with costs, interest, delay damages and such other relief as this Honorable Court may deem appropriate in their favor. KLINE & SPECTER, A Professional Corporation By: Kila B. Baldwin, Esquire Attorney for Plaintiffs 2 VERIFICATION I, Kila B. Baldwin, attorney for Plaintiffs, hereby verify that I have knowledge of the facts set forth in the foregoing Response to New Matter, and that said facts are true and correct to the best of my knowledge, information and belief. I understand that this Verification is made subject to the penalties provided for under 18 Pa.C.S. §4904 relating to unsworn falsification to authorities. Date: C-1 I I ? f U t- Kila B. Baldwin CERTIFICATE OF SERVICE I, Kila Baldwin, hereby certify that on September , 2008, a true and correct copy of Plaintiffs' Response to New Matter of Defendants, Baxter Drew Wellmon, H, D.O. and Baxter Drew Wellmon, II, D.O. Family Practice was served on all the parties listed below by first class mail, postage prepaid: Cindy N. Ellis, Esquire Foulkrod Ellis, P.C. 2010 Market Street Camp Hill, PA 17011 Dated: Kila B. Baldwin, Esquire CIO, `T'? r- .• f"v"1 .m?? r SF.';3P0F-NA RECORDS Page 2 of 3 I Douglas Wiser vs. Baxter Drew Wellmon II CERTIFI COMMONWEALTH OF PENNSYLVANIA COUNTY OF CUMBERLAND Court of Common Pleas et al Case Number: 08- 2830 PREREQUISITE TO THE SERVICE OF A SUBPOENA PURSUANT TO RULE 4009.22 As a prerequisite to service f a subpoena for documents and things pursuant to Rule 4009.22, Litigation Solutions, LLC ('LS LC') on behalf of Leigh Ellis, Esquire of Foulkrod Ellis PC certifies that: (1) A notice of intent to serv the subpoena with a copy of the subpoena attached thereto was mailed or delivered to each p rty 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 a served is identical to the subpoena which is attached to the notice of intent to serve the subpoe a. Date: 4/13/2009 CC: Leigh Ellis, Esquire Foulkrod Ellis PC 2010 Market Street Camp Hill PA 17011 http://rats.litsol Litigation Solutions, LLC on behalf of Leigh Ellis, Esquire of Foulkrod Ellis PC Attorney for the Defense _records.asp?WRid=WR35341 &PLid=PL314449... 4/13/2009 SUBPOENA NOTICE OF INTENT Page 1 of 3 PeNNSYLVANIA COURT OF COMMON PLEAS i COUNTY OF CUMBERLAND Wiser Court of Common Pleas Baxter Drew WeIlmon II DO et al 08-2830 NOTICE OF INTENT TO S RVE A SUBPOENA TO PRODUCE DOCUMENTS AND THINGS FOR ISCOVERY PURSUANT TO RULE 4009.21 Neil Flenniken Record Type: Medical TO: Andrew Youman, Esquire note: please see enclosed list of Oil other interested counsel Litigation Solutions, LLC ('LSLLC' on behalf of Leigh Ellis, Esquire intends to serve a subpoena identical to the one that is attached to this notic . You have twenty (20) days from the date listed below in which to file of record and serve upon the under igned an objection to the subpoena. If the twenty day notice period is waived or if no objection is made then the subpoena may be served. Date of Issue: CC: Leigh Ellis, Esquire - C urt of Common Pleas ?3(j??Oc??`??? If you have any questions regardi g this matter, please contact: Litigation Solutions, LLC (412.263 5656) Brentwood Towne Centre 101 Towne Square Way, Suite 25 Pittsburgh, PA 15227 Litigation Solutions, LLC on behalf of: Leigh Ellis, Esquire Defense http://rats.litsol.com/ratsevents/noti e_of intent. asp?save_report_to_db=X&PLid=PL31444... 4/9/2009 St!13POENA NOTICE OF INTENT Page 2 of 3 COUNSEL LISTING FOR DOUGLAS WISER VS. BAXTER DREW WELLMON II DO ET AL Counsel Youman, Esquire, Andrew ?h- 91 County of Cumberland Court of Common Pleas Firm The Nineteenth Floor 1525 Locust Street Philadelphia PA 191)2 ^1 - 1CU U C?) Counsel Type Opposing Counsel http://rats.litsol.com/ratsevents/noti e_of intent. asp?save_report_to_db=X&PLid=PL31444... 4/9/2009 V1 ON WEALTH OF PENNSYLVANLA, COUNTY OF CTJ-1v1BERLA2 D Douglas Wiser vs. Baxter Drew Wellmon II O et al File No. 08-2830 SUBPOENA TO PRODUCE DOCUMENTS OR TAGS FOR DISCOVERY PURSUANT TO RULE 4009.22 (Name of Person or Entity) Within twenty (20) day after service of this subpoena, you are ordered by the court to produce the following documents or things: I; PLEASE SEE ATTACHED RIDER at 101 Towne Squar Way, Suite 251 Pittsburgh, PA 15227 TO: Dr. Neil Flenniken You may deliver or mai] subpoena, together with the certific above. You have the right to seek things sought. If you fail to produce the i after.its service, the party serving th THIS SUBPOENA WAS Esquire NAME: Leigh Ellisi-reet ADDRESS: 2010 Market Camp Hill PA, 17011 TELEPHONE:_ 717-909-71 SUPRENM COURT ID # 532 ATTORNEY FOR: D e f e n s e Date: Seal ofth the Court (Address) legible copies of the documents or produce things requested by this to of compliance, to the party making this request at the address listed advance the reasonable cost of preparing the copies or producing the ocuments or things required by this subpoena within twenty (20) days subpoena may seek a court order compelling you to comply with it AT THE REQUEST OF THE FOLLOWING PERSON: BY CO T: Prothonot evil D' ision Deputy S ?, ,B`0 E7\"A 'ZT ?r?, Page 1 of 1 Rider to Subpoena of Required Documents and Things TO: CUSTODIAN OF RECORDS Dr. Neil Flenniken 30 State Avenue Carlisle PA 17013 Attention: Medical Records Subject: Wiser, Douglas SS # : 9393 Date of Birth: 6/1/1948 Requested Items: Please remit: a complete copy of any results, reports, correspondence, offic http://rats.litsol.com/ratsevents/su id all medical/dental records (1980 to Present), including records, charts, test notes, and computerized records. ._rider.asp?PLid=PL314449& WRid=WR35341 4/9/2009 2009 APR 14 AM 11: 02 . S ? POIENA P.ECORDS COMMONWEALTH OF PENNSYLVANIA COUNTY OF CUMBERLAND Douglas Wiser vs. Baxter Drew Wellmon II DO et al Page 2 of 3 Court of Common Pleas Case Number: 08- 2830 CERTIFICATE PREREQUISITE TO THE SERVICE OF A SUBPOENA PURSUANT TO RULE 4009.22 As a prerequisite to service of a subpoena for documents and things pursuant to Rule 4009.22, Litigation Solutions, LLC ('LSLLC') on behalf of Leigh Ellis, Esquire of Foulkrod Ellis PC 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: 4/24/2009 CC: Leigh Ellis, Esquire Foulkrod Ellis PC 2010 Market Street Camp Hill PA 17011 Litigation Solutions, LLC on behalf of Leigh Ellis, Esquire of Foulkrod Ellis PC Attorney for the Defense lhttn-//rate litcnl rnm/ratca??Pnte/cnhnnPna rarnrrlc ac„?'WP;r1-UURIr%Zd1 RrPT ;r1-PT 11 G7(1Q dhdhnno SUBPOENA NOTICE OF INTENT PENNSYLVANIA COURT OF COMMON PLEAS COUNTY OF CUMBERLAND Douglas Wiser Court of Common Pleas VS. Baxter Drew Wellmon II DO et al 08-2830 Page 1 of 3 NOTICE OF INTENT TO SERVE A SUBPOENA TO PRODUCE DOCUMENTS AND THINGS FOR DISCOVERY PURSUANT TO RULE 4009.21 Provider: Record Type: Horizon Healthcare Services Medical Jan Solli Medical D Hoffmann Medical Louis Glass Medical John Chang Medical Cumberland Valley Parochial Medical Clinic Medical TO: Andrew Youman, Esquire note: please see enclosed list of all other interested counsel Litigation Solutions, LLC ('LSLLC') on behalf of Leigh Ellis, Esquire intends to serve a subpoena identical to the one that is attached to this notice. You have twenty (20) days from the date listed below in which to file of record and serve upon the undersigned an objection to the subpoena. If the twenty day notice period is waived or if no objection is made, then the subpoena may be served. Date of Issue: 4/13/2009 CC: Leigh Ellis, Esquire - Court of Common Pleas Fc-)?-L ??-ro & VC, If you have any questions regarding this matter, please contact: Litigation Solutions, LLC (412.263.5656) Brentwood Towne Centre 101 Towne Square Way, Suite 251 Pittsburgh, PA 15227 Litigation Solutions, LLC on behalf of: Leigh Ellis, Esquire Defense httn://rafs.lit?ol.cnm/ratsevents/notice of intent asn?save re.nort to dh=XRr.PT.ir1=PT.'115') 4/110000 5Tj??POENA NOTICE OF INTENT Page 2 of 3 COUNSEL LISTING FOR DOUGLAS WISER VS. BAXTER DREW WELLMON II DO ET AL County of Cumberland Court of Common Pleas Counsel Firm Counsel Type Youman, Esquire, The Nineteenth Floor 1525 Locust Street Philadelphia PA Opposing Andrew 19102 Counsel http://rats.litsol.com/ratsevents/notice of intent.aS0save report to db=X&PT.id=PT,3152... 4/11/?000 COIV31ONWEALTH OF PENNSY-LVANIA COUNTY OF CUMEERLA N Douglas'Wiser v5. Baxter Drew Wellmon II DO et al 08-2830 File No. SUBPOENA TO PRODUCE DOCUMENTS OR TFIINGS FOR. DISCOVERY PURSUANT TO RULE 4009.22 TO: Dr. John Chang (Name of Person or Entity) Within twenty (20) days after service of this subpoena, you are ordered by the court to produce the following documents or things: PLEASE SEE ATTACHED RIDER at 101 Towne Square Way, Suite 251 Pittsburgh, PA 15227 (Address) You may deliver or mail legible copies of the documents or produce things requested by this subpoena, together with the certificate of compliance, to the party making this request at the address listed above. You have the right to seek in advance the reasonable cost of preparing the copies or producing the things sought. If you fail to produce the documents or things required by this subpoena within twenty (20) days after.its service, the party serving this subpoena may seek a court order compelling you to comply with it. THIS SUBPOENA WAS ISSUED AT THE REQUEST OF THE FOLLOWING PERSON: NAME: Leigh Ellis, Esquire ADDRESS: 2010 Market Street Camp Hill PA, 17011 TELEPHONE: 717-909-7006 SUPREME COURT ID# 5 3 2 2 9 ATTORNEY FOR: Defense Date: ? &) 1 Seal of the Court BY TH UR.T: rothonotary v' ion Deputy SUBPOENA RIDER Rider to Subpoena Explanation of Required Documents and Things TO: CUSTODIAN OF RECORDS FOR: Dr John Chang 755 Norland Avenue Suite 202 Chambersburg PA 17201 Attention: Medical Records Correspondence Subject: Wiser, Douglas SS#: 9393 Date of Birth: 6/1/1948 Page 1 of 1 Requested Items: Please remit: a complete copy of any and all medical records (01/01/1980 to present), including records, charts, test results, reports, correspondence, office notes, and computerized records. httn//rats.iits?Lcnm/ratseventc(c»hnnena ritie.racn?PT.iri=PT.'115')11RrWRiri=WR'I,'141 A11'11')(Nl4 COMMONWEALTH OF PENNSYLVANIA COUNTY OF CUMPERLAt L Douglas Wiser VS. Baxter Drew Wellmon II DO et al 08-2830 File No. SUBPOENA TO PRODUCE DOCUMENTS OR TAGS FOR DISCOVERY PURSUANT TO RILE 4009.22 TO: Cumberland Valley Parochial Medical Clinic (Name of Person or Entity) Within twenty (20) days after service of this subpoena, you are ordered by the court to produce the following documents or things: PLEASE SEE ATTACHED RIDER at 101 Towne Square Way, Suite 251 Pittsburgh, PA 15227 (Address) You may deliver or mail legible copies of the documents or produce things requested by this subpoena, together with the certificate of compliance, to the party making this request at the address listed above. You have the right to seek in advance the reasonable cost of preparing the copies or producing the things sought. If you fail to produce the documents or things required by this subpoena within twenty (20) days after.its service, the party'serving this subpoena may seek a court order compelling you to comply with it. THIS SUBPOENA WAS ISSUED AT THE REQUEST OF THE FOLLOWING PERSON: NAME: Leigh Ellis, Esquire ADDRESS: 2010 Market Street Camp Hill PA, 17011 TELEPHONE: 717-909-7006 SUPREME COURT ID # 5 3 2 2 9 ATTORNEY FOR: Defense Date: L`) j Seal of the Court BY COURT: rothonot ivi sion Deputy SUBPOENA RIDER Rider to Subpoena Explanation of Required Documents and Things TO: CUSTODIAN OF RECORDS FOR: Cumberland Valley Parochial Medical Clinic 67 West King Street Shippensburg PA 17257 Attention: Medical Records Correspondence Subject: Wiser, Douglas SS#: 9393 Date of Birth: 6/1/1948 Page 1 of 1 Requested Items: Please remit: a complete copy of any and all medical records (01/01/1980 to present), including records, charts, test results, reports, correspondence, office notes, and computerized records. httD://rats.litsol.coi /ratsevents/subDoena rider.asn?PLid=PL315212&WRid="35341 4/13/2009 COMMONTiVEALTN OF PENNSYLVANIA COUNTY OF CUMBERLAND Douglas Wiser 08-2830 Fie No. vs. Baxter Drew Wellmon II DO et al SUBPOENA TO PRODUCE DOCUMENTS OR THINGS FOR DISCOVERY PURSUANT TO RULE 4009.22 TO: Dr. Louis Glass (Name of Person or Entity) Within twenty (20) days after service of this subpoena, you are ordered by the court to produce the following documents or things: PLEASE SEE ATTACHED RIDER at 101 Towne Square Way, Suite 251 Pittsburgh, PA 15227 (Address) You may deliver or mail legible copies of the documents or produce things requested by this subpoena, together with the certificate of compliance, to the party making this request at the address listed above. You have the right to seek in advance the reasonable cost of preparing the copies or producing the things sought. If you fail to produce the documents or things required by this subpoena within twenty (20) days after.its service, the party-serving this subpoena may *seek a court order compelling you to comply with it. THIS SUBPOENA WAS ISSUED AT THE REQUEST OF THE FOLLOWING PERSON: NAME: Leigh Ellis, Esquire ADDRESS: 2010 Market Street Camp Hill PA, 17011 TELEPHONE: 717-909-7006 SUPREME COURT ID # 5 3 2 2 9 ATTORNEY FOR: Defense Date: I/ &M Seal of the Court BY THE URT: P'fothono Ci vi on Deputy SUBPOENA RIDER Rider to Subpoena Explanation of Required Documents and Things TO: CUSTODIAN OF RECORDS FOR: Dr. Louis Glass 767 Fifth Avenue Chambersburg PA 17201 Attention: Medical Records Correspondence Subject: Wiser, Douglas SS#: 9393 Date of Birth: 6/1/1948 Page 1 of 1 Requested Items: Please remit: a complete copy of any and all medical records (01/01/1980 to present), including records, charts, test results, reports, correspondence, office notes, and computerized records. httD://rats.litsol.com/ratsevents/subnoena rider.asn?PT,id=PT3152.10k..WRic1=WR35141 4/1'1/2()()9 COMMONWEALTH OF PENNSYLVANIA COUNTY OF CUMBERLAND Douglas Wiser VS. Baxter Drew Wellmon II DO et al 08-2830 File No. SUBPOENA TO PRODUCE DOCUMENTS OR THINGS FOR DISCOVER' PURSUANT TO RULE 4009.22 TO: Dr. D Hoffmann (Name of Person or Entity) Within twenty (20) days after service of this subpoena, you are ordered by the court to produce the following documents or things: PLEASE SEE ATTACHED RIDER at 101 Towne Square Way, Suite 251 Pittsburgh, PA 15227 (Address) You may deliver or mail legible copies of the documents or produce things requested by this subpoena, together with the certificate of compliance, to the party making this request at the address listed above. You have the right to seek in advance the reasonable cost of preparing the copies or producing the things sought. If you fail to produce the documents or things required by this subpoena within twenty (20) days after.its service, the party serving this subpoena may seek a court order compelling you to comply with it. THIS SUBPOENA WAS ISSUED AT THE REQUEST OF THE FOLLOWING PERSON: NAME: Leigh Ellis, Esquire ADDRESS: 2010 Market Street Camp Hill PA, 17011 TELEPHONE: 71 7- g 0 9- 7 0 0 6 SUPREME COURT ID# 5 3 2 2 9 ATTORNEY FOR: Defense Date: Seal of the Court BY THE OUR. : rothonotary iv- ion Deputy SUBPOENA RIDER Rider to Subpoena Explanation of Required Documents and Things TO: CUSTODIAN OF RECORDS FOR: Dr. D Hoffmann 820 5th Avenue Chambersburg PA 17201 Attention: Medical Records Correspondence Subject: Wiser, Douglas SS#: 9393 Date of Birth: 6/1/1948 Page 1 of I Requested Items: Please remit: a complete copy of any and all medical records (01/01/1980 to present), including records, charts, test results, reports, correspondence, office notes, and computerized records. httD://rats.litsol.coin/ratsevents/subnoena rider. asn?PT,id=PLI1.5?.09k..WRiri=WTZIS141 4/1 ?/?(1l)q COMMONWEALTH OF PENNSYLVANLQ COUNTY OF CUIvBERL, . D Douglas Wiser vs. Baxter Drew Wellmon II DO et al Fie No 08-2830 SUBPOENA TO PRODUCE DOCUMENTS OR TIMINGS FOR DISCOVERY PURSUANT TO RULE 4009.22 TO: Horizon Healthcare Services (Name of Person or Entity) Within twenty (20) days after service of this subpoena, you are ordered by the court to produce the following documents or things: PLEASE SEE ATTACHED RIDER at 101 Towne Square Way, Suite 251 Pittsburgh, PA 15227 (Address) You may deliver or mail legible copies of the documents or produce things requested by this subpoena, together with the certificate of compliance, to the party making this request at the address listed above. You have the right to seek in advance the reasonable cost of preparing the copies or producing the things sought. If you fail to produce the documents or things required by this subpoena within twenty (20) days after.its service, the party serving this subpoena may seek a court order compelling you to comply with it. THIS SUBPOENA WAS ISSUED AT THE REQUEST OF THE FOLLOWING PERSON: NAME: Leigh Ellis, Esquire ADDRESS: 2010 Market Street Camp Hill PA, 17011 TELEPHONE: 717-209-7006 SUPREME COURT ED # 5 3 2 2 9 ATTORNEY FOR: Defense Date: L &C L 14 Seal of the Court BY THE C T: Pr onotary, ion Deputy SUBPOENA RJDER Rider to Subpoena Explanation of Required Documents and Things TO: CUSTODIAN OF RECORDS FOR: Horizon Healthcare Services 1070 New Holland Ave Lancaster PA 17601 Attention: Medical Records Correspondence Subject: Wiser, Douglas SS # : 9393 Date of Birth: 6/1/1948 Page 1 of 1 Requested Items: Please remit: a complete copy of any and all medical records (01/01/1980 to present), including records, charts, test results, reports, correspondence, office notes, and computerized records. http://rats.litsol.com/ratsevents/subpoena rider. asn?PT,id=PT3152_07&1AMid=WR 'IS 141 4/1Ii?nnA COY-MONWEALTH OF PENNSYLVANIA COUNTY OF CUNBERLAty? Douglas Wiser VS. Baxter Drew Wellmon II DO et al File No. 08-2830 SUBPOENA TO PRODUCE D0CUA1ENTS OR THINGS FOR DISCOVER' PURSUANT TO RULE 4009.22 Try: Dr. Jan Solli (Name of Person or Entity) Within twenty (20) days after service of this subpoena, you are ordered by the court to produce the following documents or things: PLEASE SEE ATTACHED RIDER at 101 Towne Square Way, Suite 251 Pittsburgh, PA 15227 (Address) You may deliver or mail legible copies of the documents or produce things requested by this subpoena, together with the certificate of compliance, to the party making this request at the address listed above. You have the right to seek in advance the reasonable cost of preparing the copies or producing the things sought. If you fail to produce the documents or things required by this subpoena within twenty (20) days after its service, the party serving this subpoena may seek a court order compelling you to comply with it. THIS SUBPOENA. WAS ISSUED AT THE REQUEST OF THETOLLOWING PERSON: NAME: Leigh Ellis, Esquire ADDRESS: 2010 Market Street Camp Hill PA, 17011 TELEPHONE: 71 7- g o a- 7 o o h SUPREME COURT ED # 5 3 2 2 9 ATTORNEY FOR: Defense Date: Seal of the Court BY THE COURT: Pr thonotary, C ivis Deputy SU73POENA RIDER Rider to Subpoena Explanation of Required Documents and Things TO: CUSTODIAN OF RECORDS FOR: Dr Jan Solli 757 Norland Ave Suite 207 Chambersburg PA 17201 Attention: Medical Records Correspondence Subject: Wiser, Douglas SS#:9393 Date of Birth: 6/1/1948 Page 1 of 1 Requested Items: Please remit: a complete copy of any and all medical records (01/01/1980 to present), including records, charts, test results, reports, correspondence, office notes, and computerized records. http://rats.litsol.com/ratsevents/subpoena rider.asD?PLid=PT,31520R&WRi(i=WRIS141 4./111 nnno Fl L E.D.t _ ;"l_... T!- `i?Y E F 20 1% re23 P12.0 Ty KLINE & SPECTER, A Professional Corporation BY: THOMAS R. KLINE, ESQUIRE ANDREW S. YOUMAN, ESQUIRE KILA B. BALDWIN, ESQUIRE IDENTIFICATION NO. 28895/65924/94430 Nineteenth Floor 1525 Locust Street Philadelphia, Pennsylvania 19102 (215) 772-1000 Attorneys for Plaintiffs DOUGLAS WISER and BARBARA WISER, h/w Plaintiffs, VS. BAXTER DREW WELLMON, II, D.O JURY TRIAL DEMANDED Defendant. PLAINTIFFS DOUGLAS AND BARBARA WISER' S PETITION FOR A STATUS CONFERENCE Plaintiffs, Douglas and Barbara Wiser, by and through their undersigned counsel, hereby petition the Court for a status conference in this matter, and in support thereof hereby aver: 1. Plaintiffs commenced this suit by way of a complaint filed on May 12, 2008. See Exhibit "A." 2. Plaintiffs allege, inter alia, that Defendant Dr. Wellmon failed to timely diagnose and treat plaintiff Douglas Wiser's bacterial endocarditis, causing him to suffer serious and permanent injuries. 3. The depositions of Douglas Wiser and defendant Dr. Wellmon were taken on Friday, July 10, 2009. COURT OF COMMON PLEAS CUMBERLAND COUNTY NO. 08-2830 2 4. Plaintiffs now requests a status conference to determine, inter alia, discovery and expert report deadlines. 5. Counsel for defendant Dr. Wellmon is unopposed to this petition. See Exhibit «B 6. A suggested form of order is attached hereto as Exhibit "C." WHEREFORE, plaintiffs Douglas and Barbara Wiser hereby petition the Court for a status conference to be held in this matter. KLINE & SPECTER, A Professional Corporation By: I L-k 6 /h Thomas R. Kline, Esquire Andrew S. Youman, Esquire Kila B. Baldwin, Esquire Attorney for Plaintiffs Dated: 7/23/09 CERTIFICATE OF SERVICE I, Kila B. Baldwin, Esquire, hereby certify that on July 23, 2009, a true and correct copy of Plaintiffs' Petition for a Status Conference was served on all the counsel listed below by first class mail, postage prepaid: Leigh A.J. Ellis Cindy N. Ellis Foulkrod Ellis Professional Corporation 2010 Market Street Camp Hill, PA 17011 Dated: 7/23/09 I 1? 8 - &--? 1 KILA B. BALDWIN, ESQUIRE Attorney for Plaintiffs EXHIBIT "A" `a V E COPY F iU', 7 s9vi O D KLINE & SPECTER, n T by why, 9 ho re unto sd ha, A Professional Corporation 04 th4 S" d said Coud at C3i'ti*, Pa. BY: THOMAS R. KLINE, ESQUIRE ??- ANDREW S. YOUMAN, ESQUIRE KII.,A B. BALDWIN, ESQUIRE IDENTIFICATION NO. 28895/65924/94430 Nineteenth Floor 1525 Locust Street Philadelphia, Pennsylvania 19102 Attorneys for Plaintiffs (215) 772-1000 DOUGLAS WISER and COURT OF COMMON PLEAS BARBARA WISER, h/w CUMBERLAND COUNTY Plaintiffs, NO. d Saol VS. JURY TRIAL DEMANDED BAXTER DREW WELLMON, II, D.O. and BAXTER DREW WELLMON, II, D.O FAMILY PRACTICE Defendants YOU HAVE BEEN SUED IN COURT. IF YOU WISH TO DEFEND AGAINST THE CLAIMS SET FORTH IN THE FOLLOWING PAGES, YOU MUST TAKE ACTION WITH IN TWENTY (20) DAYS AFTER THIS COMPLAINT AND NOTICE ARE SERVED, BY ENTERING A WRITTEN APPEARANCE PERSONALLY OR BY AN ATTORNEY AND FILING IN WRITING WITH THE COURT YOUR DEFENSES OR OBJECTIONS TO THE CLAIMS 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 THE TELEPHONE OR THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. CUMBERLAND COUNTY BAR ASSOCIATION 32 SOUTH BEDFORD STREET CARLISLE, PA 17013 1-800-990-9108 717-249-3166 KLINE & SPECTER, A Professional Corporation BY: THOMAS R. KLINE, ESQUIRE ANDREW S. YOUMAN, ESQUIRE KILA B. BALDWIN, ESQUIRE IDENTIFICATION NO. 28895/65924/94430 Nineteenth Floor 1525 Locust Street Philadelphia, Pennsylvania 19102 (215) 772-1000 COURT OF COMMON PLEAS CUMBERLAND COUNTY DOUGLAS WISER and BARBARA WISER, h/W 1838 Ritner Highway Shippensburg, PA 17257 Plaintiffs, VS. BAXTER DREW WELLMON, II, D.O. 127 Walnut Bottom Road Shippensburg, PA 17257 and BAXTER DREW WELLMON, II, D.O. FAMILY PRACTICE 127 Walnut Bottom Road Shippensburg, PA 17257 Defendants. Attorneys for Plaintiffs NO. JURY TRIAL DEMANDED NOTICE You have been sued in court. If you wish to defend against the claims set forth in the following pages, you must take action within twenty (20) days after this complaint and notice are served, by entering a written appearance personally or by attorney and filing in writing with the court your defenses or objections to the claims set forth against you. You are warned that if you fail to do so the case may proceed without you and a judgment may be entered against you by the court without further notice for any money claimed in the complaint or for any other claim or relief requested by the plaintiff. You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW. THIS OFFICE CAN PROVIDE YOU WITH INFORMATION ABOUT HIRING A LAWYER. IF YOU CANNOT AFFORD TO HIRE A LAWYER, THIS OFFICE MAY BE ABLE TO PROVIDE YOU WITH INFORMATION ABOUT AGENCIES THAT MAY OFFER LEGAL SERVICES TO ELIGIBLE PERSONS AT A REDUCED FEE OR NO FEE. Lawyer Referral Service Montgomery County Bar Association 100 West Airy Street, P.O. Box 268 Norristown, Pennsylvania19404 (610) 279-9660 Ext. 202 ADVISO Le ban demandado a used en la torte. Si usted quiere defenderse de estas demandas expuestas en las paginas siguientes, usted tiene veinte (20) dias de plazo al partir de ]a fecha de la demands y la notification. Hace falta asentar una comparencia escrita o en persona o con un abogado y entregar a la colic en forms, escrita sus defenses o sus objeciones a ]as demandas en contra de su persona. Sea avisado que si usted no se defiende, la torte tomara medidas ypuede continuar la demands en contra suya sin previo aviso o notification. Ademas, la torte pueda decidir a favor del demandante y requiere que usted cumpla con todas las provisions de esta demanda. Usted puede perder dinero o sus propiedades u otros derechos importantes para usted. LLEVE ESTA DEMANDA A UN ABOGADO INMEDIATAMENTE, ST NO TIENE ABOGADO O SI NO TIENE EL DINERO SUFICIENTE DE PAGAR TAL SERVICIO, VAYA EN PERSONA O LAME POR TELEFONO A IA OFICINA CUYA DIRECCION SE ENCUENTRA ESCRITA ABAJO PARA AVERIGUAR DONDE SE PUEDE CONSEGUIR ASISTENCIA LEGAL ESTA OFICINA LO PUEDE PROPORCIONAR CON 1NFORMACION ACERCA DE EMPLEAR A UN ABOGADO. SI USTED NO PUEDE PROPORCIONAR PARA EMPLEAR UN ABOGADO, ESTA OFICINA PUEDE SER CAPAZ DE PROPORCIONARLO CON INFORMACION ACERCA DE LAS AGENCIES QUE PUEDEN OFRECER LOS SERVICOS LEGALES A PERSONAS ELEGIBLES EN UN HONORARIO REDUCIDO NINGUN HONORARIO. Lawyer Referral Service Montgomery County Bar Association 100 West Airy Street, P.O. Box 268 Norristown, Pennsylvania19404 (610) 279-9660 Ext. 202 CIVIL ACTION COMPLAINT Plaintiffs, by and through their undersigned attorneys, Kline & Specter, P. C., hereby demand damages of the Defendants in a sum in excess of the local arbitration limits, exclusive of interest, costs and damages for prejudgment delay, upon the causes of action set forth below: 1. Plaintiff Douglas Wiser ("Mr. Wiser', is an adult, individual, and citizen of the Commonwealth ofPennsylvania, residing therein at 1838 Ritner Highway, Shippensburg, PA 17257. 2. Plaintiff Barbara Wiser ("Mrs. Wiser"), is an adult, individual, and citizen of the Commonwealth ofPennsylvania, residing therein at 1838 RitnerHighway, Shippensburg, PA 17257. 3. Defendant Baxter Drew Welhnon, II, D.O. ("Dr. Wellmoe ), is a duly licensed and practicing physician specializing in internal medicine with a professional office at 127 Walnut Bottom Road, Shippensburg, PA 17257. Plaintiffs are asserting aprofessional liability claim against Defendant Dr. Wellmon as stated more fully herein. 4. Defendant Baxter Drew Wellmon, II, D.O. Family Practice ("Family Practice"), is a partnership, corporation, or other jural entity organized and existing under the laws of the Commonwealth ofPennsylvaniawhich maintains aprofessional office located at127 Walnut Bottom Road, Shippensburg, PA 17257. 5. At all times relevant hereto, Defendant Dr. Wellmon was acting as an officer, director, managing agent, agent, ostensible agent, apparent agent, shareholder, and/or employee of Defendant Family Practice. The claims asserted against this Defendant are for professional negligence of its agents, employees and servants as stated more fully herein. As stated more fully herein, a claim for corporate negligence under Thompson v. Nason, 591 A.2d 703 (Pa. 1991), and its progeny is also asserted against this Defendant. 2 6. At all times relevant hereto, all Defendants were acting by themselves or by and through their agents (actual or ostensible), servants and/or employees including but not limited to the physicians, nurses, physician assistants, medical technicians, and other office personnel who rendered care and treatment to Mr. Wiser on or about March 23, 2006 through May 19, 2006 and who were responsible for attending to Mr. Wiser. The identities of other individuals involved in the events described herein are in the exclusive custody and control of Defendants and will be the subject of discovery. 7. At all times relevant hereto, Defendants were Mr. Wiser's primary care physician and practice and Mr. Wiser was under their care. 8. Plaintiffs' injuries and damages set forth below were caused solely and exclusively by the negligence of Defendants and/or their agents (actual or ostensible), servants and employees and were due in no manner whatsoever to any act or failure to act on his part. 9. At all times relevant hereto, all Defendants had a duty to conform to the standards of care required of them in their respective medical specialities as described herein. FACTUAL BACKGROUND 10. On or about January 4, 2006, Mr. Wiser had oral surgery to have a tooth removed. This surgery was performed by Dr. Charles L. Stoup Jr., D.D.S. ("Dr. Stoup") 11. On or about January 18, 2006, Dr. Stoup performed additional surgery on Mr. Wiser to remove a portion of his exposed lingual bone. 12. At all times relevant hereto, Defendants were aware or should have been aware that dental procedures such as those Mr. Wiser underwent put a patient at increased risk for bacterial endocarditis infection. 3 13. On or about March 23, 2006, Mr. Wiser presented to Dr. Wellmon at Family Practice with signs and symptoms and a history consistent with and suggestive of bacterial endocarditis, including but not limited to fever, joint aches, shortness of breath, flu-like symptoms and a recent history of dental procedures. 14. According to the records, on or about March 23, 2006, Dr. Wellmon prescribed doxycycline, and instructed Mr. Wiser to return to the office if there was no improvement in one week. 15. On March 23, 2006, Dr. Welhnon failed to take an appropriate and complete history, failed to perform a proper work-up and examination and failed to recognize the significance of Mr. Wiser's presenting signs, symptoms and history. 16. In or around March of 2006, Mr. Wiser was traveling to South Carolina from time to time to visit his ailing father-in-law. 17. On or about March 3, 2006, Mr. Wiser had visited Piedmont West Urgent Care Center in York, South Carolina ("Piedmont West") with complaints of sudden onset fever, cough, congestion, and body ache. This information was known or should have been known to Defendants as of March 23, 2006. 18. On or about April 4, 2006, Mr. Wiser visited Piedmont West with complaints including fever, joint aches and chronic tiredness. Mr. Wiser expressed a concern about having contracted Lyme Disease. Piedmont West ordered blood tests as well as a check for Rocky Mountain Spotted Fever and Lyme Disease and wrote Mr. Wiser a prescription for Levaquin. 19. On or about April 7, 2006, Mr. Wiser was screened for Lyme Disease by Quest Diagnostics. Although the Lyme AB screen was positive, the Lyme Disease IGG and IGM Western 4 Blot was negative, indicating that he did not have Lyme Disease. The blood tests also evidenced abnormal lab values, including but not limited to an increased sedimentation rate. 20. The above reports were sent to Dr. Wellmon's office and were known or should have been known to Defendants as of April 18, 2006. 21. On or about April 18, 2006, Mr. Wiser again presented to Dr. Wellmon at Family Practice with signs and symptoms consistent with and suggestive of bacterial endocarditis, including but not limited to fever, joint aches, headache, chills, sweats, nausea, fatigue, weakness and shortness of breath. 22. Dr. Wellmon noted that Mr. Wiser "demonstrates diffuse constitutional symptoms and Lyme AB screen was positive patient will complete Levaquin prescribed by another practitioner and was given prescription for doxycycline and patient will follow up in office in two weeks." 23. On or about April 18, 2006, Dr. Wellmon again failed to take a proper history and again failed to recognize the signs and symptoms of bacterial endocarditis displayed by Mr. Wiser. Dr. Wellmon also failed to correctly interpret Mr. Wiser's Western Blot results and improperly ordered treatment for Lyme Disease despite the fact that his Western Blot was negative. 24. On or about April 28, 2006, Mr. Wiser again presented to Dr. Wellmon at Family Practice with signs and symptoms consistent with and suggestive of bacterial endocarditis. 25. On or about April 28, 2006, Dr. Wellmon's stated assessment and plan was "patients condition likely secondary to viral etiology and will chose and dramatically and supportive league is no improvement will finally finther. Patient was instructed to return to office if no improvement in one week, and was invited to return sooner if symptoms worsen or any complications arise." 5 26. On April 28, 2006, Dr. Wellmon again failed to properly recognize the signs and symptoms of bacterial endocarditis displayed by Mr. Wiser. 27. On or about May 9, 2006, Mr. Wiser visited Piedmont West with complaints of fatigue and what Piedmont West determined to have been a TIA two days prior. 28. On or about May 9, 2006, TerryF. Hayes, M.D. of Piedmont West corresponded with Dr. Wellmon, reporting that Mr. Wiser had a TIA while visiting South Carolina, and that he needed further evaluation of his anemia, hematuria, and TIA, as well as a follow-up on his Lyme Disease. 29. Dr. Wellmon failed to appropriately follow up with Mr. Wiser for any of these conditions, as was required. 30. On or about May 17, 2006, Mr. Wiser visited Chambersburg Hospital with complaints of fatigue, high fevers, chills and night sweats. The physicians at Chambersburg Hospital ordered a cardiac pack, blood cultures, and a chest X-ray. It was noted that Mr. Wiser's previous Lyme Disease Western Blot screening was negative. 31. On or about May 17, 2006, Mr. Wiser was screened for Lyme Disease at the Chambersburg Hospital, and was found to be negative for Lyme Disease. 32. On or about May 19, 2006, Mr. Wiser was diagnosed at Chambersburg Hospital with extensive bacterial endocarditis with vegetations of the mitral valve, and at least moderate mitral regurgitation. He was also diagnosed with atherosclerotic changes of the aortic valve with moderate aortic insufficiency. The hospital could not exclude the possibility of vegetations or bacterial endocarditis on this valve, although there were not obvious vegetations appreciated. Mr. Wiser was deemed a candidate for mitral valve replacement, and the need for transfer to surgery was noted. 6 33. On or about May 19, 2006, Mr. Wiser was transferred to the Milton S. Hershey Medical Center for cardiac catheterization and a course of antibiotics. Mr. Wiser was to return after six full weeks of antibiotic treatment for surgery on his mitral valve. 34. On or about June 13, 2006, Mr. Wiser underwent mitral valve replacement. Following surgery, Mr. Wiser was prescribed Coumadin for his condition. 35. Due to the negligence and carelessness of Dr. Wellmon and Family Practice Center, there was a delay in the diagnosis of Mr. Wiser's bacterial endocarditis from March 23, 2006 through May 19, 2006, during which time his condition progressed and worsened, necessitating mitral valve replacement surgery and lifetime prescription for Coumadin. 36. The injuries to Mr. Wiser were caused solely and wholly by reason of the negligence of all Defendants, their agents, servants and/or employees, and were not caused or contributed thereto by any negligence on the part of Plaintiff, Mr. Wiser. 37. As a direct and proximate result of the negligence and carelessness of all Defendants, and their agents (actual or ostensible), servants, or employees, Mr. Wiser sustained personal injuries and damages all and some of which may be permanent, known and unknown, including but not limited to the following: a. Bacterial endocarditis; b. Mitral valve replacement surgery; C. Coumadin prescription and the sequella of events associated with this prescription; d. Bleeding problems; e. Blurred vision; 7 f. Problems controlling limbs; g. Slurred speech; h. Debilitating fatigue; i. Loss of opportunity for cure; j. Decreased life expectancy, k. Past and future physical pain and suffering; 1. Past and future mental anguish; M. Past and future severe emotional distress; n. Disfigurement; o. Past and future embarrassment; P. Past and future humiliation; q. Past and future loss of life's pleasures; r. Past and future loss of earnings; S. Incidental and other expenses; t. Past and future loss of household services; and, U. Past and future medical expenses. 38. As a direct and proximate result of the negligence and carelessness of all Defendants, and their agents (actual or ostensible), servants, or employees, Plaintiff Mrs. Wiser has suffered the loss of consortium of her husband, Mr. Wiser. 8 FIRST CAUSE OF ACTION MEDICAL PROFESSIONAL NEGLIGENCE COUNTI DOUGLAS AND BARBARA WISER V. BAXTER DREW WELLMON, H. D.O. 39. The previous paragraphs are incorporated herein by reference and made a part thereof as if set forth in full. 40. The negligence of Defendant, Dr. Wellmon, his, agents (actual or ostensible), servants, and employees, and ostensible agents, consisted of one or more of the following: a. failure to conform to the acceptable standards of internal medicine by failing to correctly interpret Lyme Disease Western Blot results, take full and complete medical history, and properly recognize the signs and symptoms of bacterial endocarditis; b. failure to properly and correctly interpret Mr. Wiser's symptoms of bacterial endocarditis following dental surgery; C. failure to properly inquire as to history of dental surgery upon presentation with signs and symptoms of bacterial endocarditis; d. failure to make proper medical decisions about the diagnostic testing required for Mr. Wiser; e. failure to recommend further testing, including blood cultures and thorough cardiac examination upon presentation with signs and symptoms of bacterial endocarditis; f. failure to anticipate and prevent the untoward condition of Mr. Wiser; 9 g. failure to appreciate the nature, gravity and significance of the signs and symptoms displayed by Mr. Wiser following dental surgery in January of 2006; h. failure to recommend and/or perform the necessary medical consultation and testing, including, but not limited to, cardiac and or infectious disease consultation upon presentation with signs and symptoms of bacterial endocarditis; i. failure to timely refer Mr. Wiser to proper specialists, including a cardiac surgeon, an infectious disease specialist, and/or another specialist for the diagnosis and treatment of his condition; j. failure to follow up on Mr. Wiser's TIA, anemia, and hematuria, as was required and recommended by other physicians; k. failure to take those steps a reasonably prudent physician would take in the management of Mr. Wiser's condition; 1. failure to properly evaluate Mr. Wiser's medical history and test results and make proper clinical findings and medical decision; m. failure to set forth a proper diagnosis and treatment plan on March 23, 2006 and thereafter; n. failure to provide necessary medical information to Mr. Wiser regarding his medical condition; and, o. negligently delaying the diagnosis of Mr. Wiser's bacterial endocarditis. 10 WHEREFORE, Plaintiffs Mr. and Mrs. Wiser respectfully demand judgment against Defendants, individually, jointly and severally, for sums in excess of the local arbitration limits in excess of $50,000.00, exclusive of interest, prejudgment interest and costs. COUNT II DOUGLAS AND BARBARA WISER V. BAXTER DREW WELLMON, H. D.O. FAMELY PRACTICE 41. The previous paragraphs are incorporated herein by reference and made a part thereof as if set forth in full. 42. The negligence of Defendant, Family Practice, his, agents (actual or ostensible), servants, and employees, and ostensible agents, consisted of one or more of the following: a. failure to conform to the acceptable standards of internal medicine by failing to correctly interpret Lyme Disease Western Blot results, take full and complete medical history, and properly recognize signs and symptoms of bacterial endocarditis; b. failure to properly and correctly interpret Mr. Wiser's symptoms of bacterial endocarditis following dental surgery; C. failure to properly inquire as to history of dental surgery upon presentation with signs and symptoms of bacterial endocarditis; d. failure to make proper medical decisions about the diagnostic testing required for Mr. Wiser; e. failure to recommend further testing, including blood cultures and thorough cardiac examination upon presentation with signs and symptoms of bacterial endocarditis; 11 f. failure to anticipate and prevent the untoward condition of Mr. Wiser; g. failure to appreciate the nature, gravity and significance of the signs and symptoms displayed by Mr. Wiser following dental surgery in January of 2006; h. failure to recommend and/or perform the necessary medical consultation and testing, including, but not limited to, cardiac and or infectious disease consultation upon presentation with signs and symptoms of bacterial endocarditis; i. failure to timely refer Mr. Wiser to proper specialists, including a cardiac surgeon, an infectious disease specialist, and/or another specialist for the diagnosis and treatment of his condition; j. failure to follow up on Mr. Wiser's TIA, anemia and hematuria, as was required and recommended by other physicians; k. failure to take those steps a reasonably prudent physician would take in the management of Mr. Wiser's condition; 1. failure to properly evaluate Mr. Wiser's medical history and test results and make proper clinical findings and medical decision; m. failure to set forth a proper diagnosis and treatment plan on March 23, 2006 and thereafter; n. failure to provide necessary medical information to Mr. Wiser regarding his medical condition; and, o. negligently delaying the diagnosis of Mr. Wiser's bacterial endocarditis. 12 WHEREFORE, Plaintiffs Mr. and Mrs. Wiser respectfully demand judgment against Defendants, individually, jointly and severally, for sums in excess of the local arbitration limits in excess of $50,000.00, exclusive of interest, prejudgment interest and costs. SECOND CAUSE OF ACTION CORPORATE NEGLIGENCE DOUGLAS AND BARBARA WISER V. BAXTER DREW WELLMON, H, D.O. FAMILY PRACTICE 43. This is a claim of corporate negligence for a non-delegable duty to Mr. Wiser under Thompson v. Nason Hospital, 527 Pa. 330, 591A.2d 703 (1991) and its progeny by Defendant Family Practice. 44. The corporate negligence of Family Practice consisted of a breach of the following duties: a. deviating from the standard of care by failing to require that all physicians were properly and adequately trained to recognize and/or identify and treat bacterial endocarditis; b. deviating from the standard of care by failing to require that all physicians were properly and adequately trained to evaluate and diagnose bacterial endocarditis; C. deviating from the standard of care by failing to require and assure that all physicians were properly and adequately supervised so as to obtain full and complete appropriate medical histories, check prior medical history, perform full and complete evaluations, order and/or recommend needed and required follow up or repeat testing; and, 13 d. deviating from the standard of care by failing to properly and adequately diagnose Mr. Wiser's bacterial endocarditis. 45. The Defendant Family Practice failed to supervise and oversee the conduct of its medical staff by their: a. deviating from the standard of care by failing to provide adequate competent medical staff for the evaluation, treatment and diagnosis of patients presenting with signs and symptoms of bacterial endocarditis; b. deviating from the standard of care by failing to provide adequate supervisory oversight in order to ensure that proper consultation and follow-up occurred in response to patients showing medical signs and symptoms of bacterial endocarditis; c. deviating from the standard of care by failing to provide adequate supervisory oversight in order to ensure that proper consultation and follow-up occurred at each presentation to their facilities and that full and adequate medical histories were taken and fall and complete evaluations were performed; d. deviating from the standard of care by failing to provide supervisory oversight to ensure that proper evaluation, interpretation, and reporting of symptoms, complaints and test results were performed; e. deviating from the standard of care by failing to provide supervisory oversight to ensure needed was performed; f. deviating from the standard of care by failing to provide adequate supervisory 14 oversight to ensure facilities were adequately equipped, staffed, and situated to provide adequate and appropriate care to Mr. Wiser; and, g. deviating from the standard of care by failing to timely diagnose Mr. Wiser's bacterial endocarditis. 47. The Defendant Family Practice failed to formulate, copy, review, revise and enforce adequate rules, policies, and procedures to ensure quality of care rendered for the safety of Mr. Wiser for the following: a. deviating from the standard of care by failing to adopt and implement policies, procedures, and/or protocols to ensure that patients with the medical signs and symptoms suspicious for bacterial endocarditis would be properly and timely attended to and followed up on at the time of presentation and at subsequent visits for the timely surgical and other intervention necessary for the treatment of that condition; b. deviating from the standard of care by failing to have policies, procedures, and/or protocols in place for the proper management of Mr. Wiser's bacterial endocarditis; C. deviating from the standard of care by failing to initiate appropriate physician intervention in response to patients with medical signs and symptoms of bacterial endocarditis, including proper communication with appropriate specialists and/or proper diagnostic testing; d. deviating from the standard of care by failing to have policies, procedures 15 and/or protocols to ensure the appropriate work-up of abnormal clinical, diagnostic, and/or other findings were completed; e. deviating from the standard of care by failing to implement, institute and enforce a policy, procedure, and/or protocol requiring prompt consultation, evaluation, and treatment in the face of signs and symptoms of bacterial endocarditis; and, f. deviating from the standard of care by failing to have policies, procedures and/or protocols to ensure that frill and complete histories are obtained from patients at each presentation and follow-up and investigation of prior visits and symptoms is conducted and appropriate evaluations, consults, and testing ordered and performed at each visit given apatient's current presentation and history. WHEREFORE, Plaintiffs Mr. and Mrs. Wiser respectfully demand judgment against Defendants, individually, jointly and severally, for sums in excess of the local arbitration limits in excess of $50,000.00, exclusive of interest, prejudgment interest and costs. THIRD CAUSE OF ACTION LOSS OF CONSORTIUM BARBARA WISER v. ALL DEFENDANTS 48. The preceding paragraphs are incorporated by reference as though fully set forth herein. 49. As a result of the negligence of Defendants, jointly and severally, their agents, 16 servants, employees, and ostensible agents, as set forth herein, Plaintiff's wife, Mrs. Wiser, suffered the loss of services, society, comfort, and companionship of her husband, Mr. Wiser. 50. As a result of the negligence of Defendants, Mrs. Wiser claims the full measure of damages allowable under Pennsylvania law for the loss to her of the consortium of her husband, Mr. Wiser. WHEREFORE, Plaintiffs Mr. and Mrs. Wiser respectfully demand judgment against Defendants, individually, jointly and severally, for sums in excess of the local arbitration limits in excess of $50,000.00, exclusive of interest, prejudgment interest and costs. KLINE & SPECTER A Professional Corporation Date: i" By: s THOMAS K K LINE, ESQUIRE ANDREW S. Y , ESQUIRE KILA B. BALDWIN, ESQUIRE Attorneys for Plaintiffs 17 VERIFICATION ANDREW S. YOUMAN, hereby states that he is the attorney for the Plaintiffs in this action and verifies that the statements made in the foregoing Civil Action Complaint are true and correct to the best of his knowledge, information and belief. The undersigned understands that the statements herein are made subject to the penalties of 19 PA.C.S. §4904 relating to unworn falsification to authorities. 'L Date: J916 ? IZ---Sr ANDREW S. Y UMAN, ESQUIRE Attorney for Plaintiffs VERIFICATION I, Douglas Wiser, hereby state that I am a Plaintiff in this action and that the facts set forth in the foregoing Complaint in Civil Action are true and correct to the best of my knowledge, information and belief. I understand that this statement is made subject to the penalties of 18 Pa. P.C.S.A. §4904 relating to unsworn falsification to authorities. DOU SER DATE: RECEIPT FOR PAYMENT ------------------- ------------------- Cumberland County Prothonotary's Office Receipt Date 5/02/2008 Carlisle, Pa 17013 Receipt Time 13:11:19 Receipt No. 208487 WISER DOUGLAS ET AL (VS) WELLMON BAXTER DREW II D O ET Case Number 2008-02830 Received of PD ATTY DKB Total Non-Cash..... + Total Cash......... + Change ............. - Receipt total...... _ 78.50 Check# 75046 .00 .00 $78.50 Distribution Of Payment Transaction Description Payment Amount COMPLAINT 55.00 TAX ON CMPLT .50 SETTLEMENT 8.00 AUTOMATION 5.00 JCP FEE 10.00 CUMBERLAND CO GENERAL FUND BUREAU OF RECEIPTS AND CONTROL CUMBERLAND CO GENERAL FUND CUMBERLAND CO AUTOMATION FUND BUREAU OF RECEIPTS AND CONTROL $78.50 EXHIBIT 66B" Jennifer Wright From: Baldwin, Kila B. Sent: Wednesday, July 22, 2009 1:05 PM To: Jennifer Wright Subject: Fw. Wiser v. Wellmon Sent using BlackBeny From: Cindy Ellis To: Baldwin, Kila B.; Leigh Ellis Sent: Tue Jul 14 11:55:43 2009 Subject: RE: Wiser v. Wellmon Hi Kila. We would not oppose a petition for status conference. Cindy From: Baldwin, Kila B. [mailto:Kila.Baldwin@KlineSpecter.com] Sent: Tuesday, July 14, 2009 11:51 AM To: Leigh Ellis; Cindy Ellis Subject: Wiser v. Wellmon Hello Leigh and Cindy. As Leigh and I discussed on Friday, I would like to petition the court for a status conference so we can get a scheduling order in this case. I can prepare the petition, but wanted to confirm w/ you that it would be unopposed. Thanks, Kila Kila B. Baldwin, JD, MBA Kline & Specter A Professional Corporation 1525 Locust Street, 19th Floor Philadelphia, PA 19102-3712 215-772-1000 telephone 215-772-1392 direct dial 215-772-1359 facsimile EXHIBIT "C" DOUGLAS WISER and BARBARA WISER, h/w Plaintiffs, VS. COURT OF COMMON PLEAS CUMBERLAND COUNTY NO. 08-2830 JURY TRIAL DEMANDED BAXTER DREW WELLMON, H, D.O. Defendant. ORDER AND NOW, this day of 2008, upon consideration of Plaintiffs Douglas and Barbara Wiser's Petition for a Status Conference, it is hereby ORDERED and DECREED that a status conference will be held on BY THE COURT: at , J. Fl LED-,C, OF THE -) " 20H JUL 27 Pil 2: S 8 Cum I E Yv, , JUL 2 8 2009 DOUGLAS WISER and COURT OF COMMON PLEAS BARBARA WISER, h/w CUMBERLAND COUNTY Plaintiffs, NO. 08-2830 vs. JURY TRIAL DEMANDED BAXTER DREW WELLMON, II, D.O. Defendant. ORDER AND NOW, this &?Iay of %J-tM- , 200 ?1 upon consideration of Plaintiffs Douglas and Barbara Wiser's Petition Vor a Status Conference, it is hereby ORDERED and at ??? •?? "M • DECREED that a status conference will be held on 41, T: : THE CO J. F e, n, 2009 JUL 31 GUt1 7/3! l ag - Co t Its •- zl &CL At i . LoCl 's F4? "T. K6"Ax? P f w 4 tl r ?? W ' iA ° ? A DOUGLAS WISER and BARBARA WISER, h/w, Plaintiffs V. BAXTER DREW WELLMON, II, D.O. AND BAXTER DREW WELLMON, II, D.O. FAMILY PRACTICE, Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 2008 - 2830 CIVIL TERM ORDER OF COURT AND NOW, this 25TH day of AUGUST, 2009, after a status conference with counsel, it is hereby ordered and directed as follows: (1) All discovery, including depositions shall be completed by October 20, 2009. (2) Plaintiffs' expert reports shall be provided to Defendant by November 16, 2009. (3) Defendant's expert reports shall be provided to Plaintiffs by January 18, 2010. (4) This case shall be tried during the APRIL 2010 term of court. A praecipe listing the case for trial must be filed in accordance with Local Rules of Court. (5) Counsel are attached to this Court during the week of A AZIL 26, 2010. y the Court, ./ Kila B. Baldwin, Esquire Leigh A.J. Ellis, Esquire /Cindy N. Ellis, Esquire Court Administrator a Co I Fs /rtzc C£rL e "/0l J. FIi..H 10 OF TI-lE 2099 UG 26 F 2: 3 cutvi;-?i:._ JU1 ?! KLINE & SPECTER, A Professional Corporation BY: THOMAS R. KLINE, ESQUIRE ANDREW S. YOUMAN, ESQUIRE KIL.A B. BALDWIN, ESQUIRE IDENTIFICATION NO. 28895/65924/94430 Nineteenth Floor 1525 Locust Street Philadelphia, Pennsylvania 19102 (215) 772-1000 Attorneys for Plaintiffs DOUGLAS WISER and BARBARA WISER, h/w Plaintiffs, vs. BAXTER DREW WELLMON, II, D.O. and BAXTER DREW WELLMON, R, D.O. FAMILY PRACTICE Defendants COURT OF COMMON PLEAS CUMBERLAND COUNTY NO. 08-2830 JURY TRIAL DEMANDED STIPULATION OF VOLUNTARY DISMISSAL WITH PREJUDICE TO THE PROTHONOTARY: Pursuant to Rule 229 of the Pennsylvania Rules of Civil Procedure, Plaintiffs, Douglas and Barbara Wiser, h/w and Defendants, hereby stipulate and agree as follows: 1. Plaintiffs, Douglas and Barbara Wiser, h/w, hereby voluntarily dismiss the instant action as to all defendants, and plaintiffs'complaint and all claims against all defendants are hereby dismissed with prejudice. 2. Each party shall bear their own attorneys'fees and costs. KLINE & SPECTER, P.C. FOULKROD ELLIS Attorneys for Plaintiffs Attorneys for Defendants A r?-- k-? I -A f ?111L'- THOMAS R. KLINE, ESQUIRE LEIGH A. . E LIS, ESQUIRE ANDREW S. YOUMAN, ESQUIRE CINDY . LLIS, ESQUIRE KILA B. BALDWIN, ESQUIRE CERTIFICATE OF SERVICE I, Kila Baldwin, hereby certify that on October 9, 2009 a true and correct copy of Plaintiffs' Stipulation of Voluntary Dismissal with Prejudice was served on all the parties listed below by first class mail, postage prepaid: Cindy N. Ellis, Esquire Foulkrod Ellis, P.C. 2010 Market Street Camp Hill, PA 17011 106, P? Dated: \ 0 1 (1 1 Uel Kila B. Baldwin, Esquire ?P RY