Loading...
HomeMy WebLinkAbout04-0946ALBERTA ROGERS and JAMES ROGERS, husband and wife, Plaintiffs V. J. BRET DELONE, M.D., and KUNKEL SURGICAL GROUP, Defendants IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA No.: /?'/ 9c/: CIVIL ACTION-LAW :JURY TRIAL DEMANDED PRAECIPE FOR WRIT OF SUMMONS TO THE PROTHONOTARY: Please issue a writ of summons upon the above named defendants at the following address: J. Bret DeLone, M.D. 809 Poplar Church Road Suite 210 Camp Hill, PA 17011 717-761-7244 Kunkel Surgical Group 809 Poplar Church Road Suite 210 Camp Hill, PA 17011 717-761-7244 Thank you. BY: Leslie M. Fie ds, Esquire I. D. # 29411 COSTOPOULOS, FOSTER & FIELDS 831 Market Street/ P. O. Box 222 Lemoyne, PA 17043 Phone: (717) 761-2121 Attorney for Plaintiffs Date: March 5, 2004 c' G ' 1. U` 1 n :. j I C i .,1 C? Commonwealth of Pennsylvania County of Cumberland WRIT OF SUMMONS Albert Rogers and James Roger Husband and Wife Plaintiff Vs. Court of Common Pleas No. 04-0946 In CivilAction-Law J. Bret Delone, M.D., and Kunkel Surgical Group 809 Popolar Church Road Suite 210 Camp Hill PA 17011 Defendant To J. Bret Delone, M.D., and Kunkel Surgical Group You are hereby notified that Alberta Rogers and James Rogers husband and wife the Plaintiff has / have commenced an action in Civil Action-Law against you which you are required to defend or a default judgment may be entered against you. (SEAL) Date March 5, 2004 Attorney: Name: Leslie M. Fields, Esq. Address: 831 Market Street P.O. Box 222 Lemoyne, PA 17043 Attorney for: Plaintiff Telephone: 717-761-2121 Supreme Court ID No. 29411 CURTIS R. LONG Prothonotary By -&' 0 41t Deputy MUE COPY F.7 10&4 p In 7estlratony arts T6,,t, d h aF t unt2 sot n)y h€arld alldt the t of said Coin at Carlisle, p3. 07 qay ?? Prothon CASE NO: 2004-00946 P SHERIFF'S RETURN - REGULAR COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND ROGERS ALBERTA ET AL VS DELONE J BRET MD ET AL RONALD HOOVER , Sheriff or Deputy Sheriff of Cumberland County,Pennsylvania, who being duly sworn according to law, says, the within WRIT OF SUMMONS DELONE J BRET DEFENDANT at 890 POPLAR CAMP HILL, PA CINDY FETROW, a true and at MD , at 1340:00 CHURCH ROAD 17011 MEDICAL RECOR rested copy of was served upon the HOURS, on the 10th day of March 2004 SUITE 210 by handing to DS, ADULT IN CHARGE WRIT OF SUMMONS together with and at the same time directing Her attention to the contents thereof. Sheriff's Costs: Docketing 18.00 Service 10.35 Affidavit .00 Surcharge 10.00 .00 38.35 Sworn and Subscribed to before me this s&i day of prothonotary So Answers: R. Thomas Kline 03/11/2004 COSTOPOULOS FOSTER FIELDS By: Deputy Sheriff SHERIFF'S RETURN - REGULAR CASE NO: 2004-00946 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND ROGERS ALBERTA ET AL VS DELONE J BRET MD ET AL RONALD HOOVER , Sheriff or Deputy Sheriff of Cumberland County,Pennsylvania, who being duly sworn according to law, says, the within WRIT OF SUMMONS KUNKEL SURGICAL GROUP DEFENDANT , at 1340:00 at 890 POPLAR CHURCH ROAD CAMP HILL, PA 17011 CINDY FETROW, MEDICAL RECOR a true and attested copy of was served upon the HOURS, on the loth day of March 2004 SUITE 210 by handing to DS, ADULT IN CHARGE WRIT OF SUMMONS together with and at the same time directing Her attention to the contents thereof. Sheriff's Costs: Docketing 6.00 Service .00 Affidavit .00 Surcharge 10.00 .00 16.00 Sworn and Subscribed to before me this IS day of -2077Y A.D. oth? no' t' So Answers: R. Thomas Kline 03/11/2004 COSTOPOULOS FOSTER FIELDS By. (1?< ? f Deputy Sheriff Commonwealth of Pennsylvania County of Cumberland Alberta Rogers and James Rogers Husband and Wife Plaintiff V. J. Bret Delone, M.D., and Kunkel Surgical Group Defendants No. 04-0946 CIVIL ACTION - LAW JURY TRIAL DEMANDED ENTRY OF APPEARANCE, TO THE PROTHONOTARY: Kindly enter our appearance on behalf of Defendants J. Bret Delone, M.D. and Kunkel Surgical Group in the above-captioned action. Respectfully submitted, Thomas, Thomas & Hafer, LLP Date: 4/7/04 By: EVAN BLACK, ESQ. Identification No. 17884 Attorney for Defendants :287195.1 THOMAS, THOMAS @ HAFER, LLP 305 North Front Street P.O. Box 999 Harrisburg, PA 17108 EVAN BLACK, ESQ, Attorney I.D. 17884 (717) 441-7051 Attorney for Defendants J. Bret Delone, M.D. and Kunkel Surgical Group Commonwealth of Pennsylvania County of Cumberland Alberta Rogers and James Rogers Husband and Wife Plaintiff V. J. Bret Delone, M.D., and Kunkel Surgical Group Defendant TO THE PROTHONOTARY: No. 04-0946 CIVIL ACTION - LAW JURY TRIAL DEMANDED Kindly issue a Rule on Plaintiffs to file a Complaint in the above case within twenty (20) days of service of said Rule, or suffer a judgment of non pros pursuant to Pa.R.C.P. 1037(a). Respectfully Submitted, Date: 4 7• D q THOMAS, THOMAS Et HAFER, LLP i?? - Evan Black, Esq. Attorney for Defendants J. Bret Delone, M. D. and Kunkel Surgical Group THOMAS, THOMAS & HAFER, LLP 305 North Front Street P.O. Box 999 Harrisburg, PA 17108 Commonwealth of Pennsylvania County of Cumberland Alberta Rogers and James Rogers Husband and Wife Plaintiff V. J. Bret Delone, M.D., and Kunkel Surgical Group Defendant EVAN BLACK, ESQ. Attorney I.D. 17884 (717) 441-7051 Attorney for Defendant J. Bret Delone, M. D. and Kunkel Surgical Group No. 04-0946 CIVIL ACTION - LAW JURY TRIAL DEMANDED RULE TO FILE A COMPLAINT TO: Leslie M. Fields, Esq. 831 Market Street P.O. Box 222 Lemoyne, PA 17043 AND NOW, this day of 2004, a Rule is hereby issued upon the Plaintiff to file a Complaint herein within twenty (20) days after service hereof, or suffer the entry of a Judgment of Non Pros pursuant to Pa. R.C.P. 1037(a). Prothonotary n N ca rj C= mo r 11 p" ? T ?'i i ill_ ? 7 W i ?'1 ' ? ) ?__ ? , r' .? - 1 K n a -? Commonwealth of Pennsylvania County of Cumberland Alberta Rogers and James Rogers Husband and Wife Plaintiff V. No. 04-0946 CIVIL ACTION - LAW J. Bret Delone, M.D., and Kunkel Surgical Group JURY TRIAL DEMANDED Defendants ENTRY OF APPEARANCE_ TO THE PROTHONOTARY: Kindly enter our appearance on behalf of Defendants J. Bret Delone, M.D. and Kunkel Surgical Group in the above-captioned action. Respectfully submitted, Thomas, Thomas & Hafer, LLP Date: 4/7/04 By: EVAN BLACK, ESQ. Identification No. 17884 Attorney for Defendants :287195.1 THOMAS, THOMAS @ HAFER, LLP 305 North Front Street P.O. Box 999 Harrisburg, PA 17108 Commonwealth of Pennsylvania County of Cumberland Alberta Rogers and James Rogers Husband and Wife Plaintiff V. J. Bret Delone, M.D., and Kunkel Surgical Group Defendant EVAN BLACK, ESQ. Attorney I. D. 17884 (717) 441-7051 Attorney for Defendants J. Bret Delone, M.D. and Kunkel Surgical Group No. 04-0946 CIVIL ACTION - LAW JURY TRIAL DEMANDED Kindly issue a Rule on Plaintiffs to file a Complaint in the above case within twenty (20) days of service of said Rule, or suffer a judgment of non pros pursuant to Pa.R.C.P. 1037(a). Respectfully Submitted, THOMAS, THOMAS Et HAFER, LLP Evan Black, Esq. Attorney for Defendants q J. Bret Delone, M. D. and Kunkel Surgical Group Date: 0-7 TO THE PROTHONOTARY: THOMAS, THOMAS 8: HAFER, LLP 305 North Front Street P.O. Box 999 Harrisburg, PA 17108 EVAN BLACK, ESQ. Attorney I. D. 17884 (717) 441-7051 Attorney for Defendant J. Bret Delone, M. D. and Kunkel Surgical Group Commonwealth of Pennsylvania County of Cumberland Alberta Rogers and James Rogers Husband and Wife Plaintiff V. J. Bret Delone, M.D., and Kunkel Surgical Group Defendant No. 04-0946 CIVIL ACTION - LAW JURY TRIAL DEMANDED RULE TO FILE A COMPLAINT TO: Leslie M. Fields, Esq. 831 Market Street P.O. Box 222 Lemoyne, PA 17043 AND NOW, this 13-4L day of Y t c 21004, a Rule is hereby issued upon the Plaintiff to file a Complaint herein within twenty (20) days after service hereof, or suffer the entry of a Judgment of Non Pros pursuant to Pa.R.C.P. 1037(a). Prothonotary r' J ?- _ m J • 7 _ W % L ; t; THOMAS, THOMAS a HAFER, LLP 305 North Front Street P.O. BOX 999 Harrisburg, PA 17108 EVAN BLACK, ESQ. Attorney I.D. 17884 (717) 441-7051 Attorney for Defendants J. Bret Delone, M.D. and Kunkel Surgical Group Commonwealth of Pennsylvania County of Cumberland Alberta Rogers and James Rogers Husband and Wife Plaintiff V. J. Bret Delone, M.D., and Kunkel Surgical Group Defendant No. 04-0946 CIVIL ACTION - LAW JURY TRIAL DEMANDED CERTIFICATE PREREQUISITE TO SERVICE OF A SUBPOENA PURSUANT TO RULE 4009,22 As a prerequisite of a subpoena for documents and things pursuant to Rule 4009.22, Defendant certifies that: (1) a Notice of Intent to serve the Subpoenas with a copy of the Subpoenas attached thereto was mailed to each party on April 23, 2004; (2) a copy of the Notice of Intent, including the proposed Subpoenas, is attached to this certificate; (3) opposing counsel waived the twenty (20)-day notice period by telephone dated April 26, 2004; and (4) the Subpoenas which will be served are identical to the Subpoenas which are attached to the Notice of Intent to serve the Subpoenas. Date: THOMAS, THON iS & HAFLLP Evan Black, Esq. Attorney for Defendants J. Bret Delone, M.D. & Kunkel Surgical Group THOMAS, THOMAS & HAFER LLP ATTORNEYS AT LAW 305 North Front Street, P.O. Box 999, Harrisburg, PA 17108 Phone: (717) 237-7100 Fax: (717) 237-7105 -"Y1 www.tttilaw.com Miriam L. Hogan, Paralegal (717) 237-7111 mhogan@tthlaw.com April 23, 2004 Leslie M. Fields, Esq. 831 Market Street P.O. Box 222 Lemoyne, PA 17043 Re: Rogers v. Delone TT&H File No. 355-40647 Dear Attorney Fields: Enclosed please find a Notice of Intent to Serve Subpoenas for records from Wilson Jackson, M.D. and updated records from Holy Spirit Hospital. Kindly inform our office if you are willing to waive the twenty day (20) notice period. If you have any questions, please do not hesitate to contact me. Thank you. Sincerely yours, THOMAS, THOMAS & HAFER, LLP Miriam L. Hogan U MLH/Enclosures: 287577v.3 Lehigh Valley Office: 3400 Bath Pike, Suite 302, Bethlehem, PA 18017 • Phone: (610) 868-1675 • Fax: (610) 868-1702 THOMAS, THOMAS & HAFER, LLP 305 North Front Street P.O. Box 999 Harrisburg, PA 17108 EVAN BLACK, ESQ. Attorney I.D. 17884 (717) 441-7051 Attorney for Defendants J. Bret Delone, M.D. and Kunkel Surgical Group Commonwealth of Pennsylvania County of Cumberland Alberta Rogers and James Rogers Husband and Wife Plaintiff V. J. Bret Delone, M.D., and Kunkel Surgical Group Defendant No. 04-0946 CPVIL ACTION - LAW JURY TRIAL DEMANDED NOTICE OF INTENT TO SERVE SUBPOENAS TO PRODUCE DOCUMENTS AND THINGS FOR DISCOVERY PURSUANT TO RULE 4009.21 TO: Plaintiff and Counsel for Parties of Record Defendants J. Bret Delone, M.D. & Kunkel Surgical Group intend to serve the Subpoenas identical to the ones 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 objections to the subpoenas. If no objection is made, the Subpoenas may be served. THOMAS, THOMAS & HAFER, LLP 1 Date: 4( L5 / o y Evan Black, Esq. Commonwealth of Pennsylvania County of Cumberland Alberta Rogers and James Rogers Husband and Wife Plaintiff V. J. Bret Delone, M.D., and Kunkel Surgical Group Defendant No. 04-0946 CIVIL ACTION - LAW JURY TRIAL DEMANDED SUBPOENA TO PRODUCE DOCUMENTS OR THINGS FOR DISCOVERY PURSUANT TO RULE 4009.22 TO: Holy Spirit Hospital Harrisburg, PA 17101 Within twenty (20) days after service of this subpoena, you are ordered by the court to produce 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: ADDRESS: TELEPHONE: SUPREME COURT ID#: ATTORNEY FOR: Evan Black, Esquire P.O. Box 999, Harrisburg, PA 17108-0999 (717) 441-7053 17884 Defendant J. Bret Delone, M.D. & Kunkel Surgical Group BY THE COURT: DATE Seal of the Court Prothonotary/Clerk, Civil Division Deputy 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. Commonwealth of Pennsylvania County of Cumberland Alberta Rogers and James Rogers Husband and Wife Plaintiff V. J. Bret Delone, M.D., and Kunkel Surgical Group Defendant No. 04-0946 CIVIL ACTION - LAW JURY TRIAL DEMANDED SUBPOENA TO PRODUCE DOCUMENTS OR THINGS FOR DISCOVERY PURSUANT TO RULE 4009.22 TO: F. Wilson Jackson, M.D. 423 N. 21" Street, Suite 100 Camp Hill, PA 17011 Within twenty (20) days after service of this subpoena, you are ordered by the court to produce the following documents or things: Complete copies of any and all medical records, Harrisburo, PA 17108-0999. 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 parry 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: Evan Black, Esquire ADDRESS: P.O. Box 999, Harrisburg, PA 17108-0999 TELEPHONE: (717) 441-7053 SUPREME COURT ID#: 17884 ATTORNEY FOR: Defendant J. Bret Delone, M.D. & Kunkel Surgical Group BY THE COURT: DATE: Seal of the Court Prothonotary/Clerk, Civil Division Deputy CERTIFICATE OF SERVICE I, Miriam L. Hogan, an employee of the law offices of Thomas, Thomas & Hafer, LLP, do hereby certify that I served a true and correct copy of the foregoing document upon the following persons via United States mail, first class, postage prepaid, as follows: Leslie M. Fields, Esq. 831 Market Street P.O. Box 222 Lemoyne, PA 17043 Date: 4/x/04 I""i, L. u (c -? Miriam L. Hogan CERTIFICATE OF SERVICE I, Miriam L. Hogan, an employee of the law offices of Thomas, Thomas & Hafer, LLP, do hereby certify that I served a true and correct copy of the foregoing document upon the following persons via United States mail, first class, postage prepaid, as follows: Leslie M. Fields, Esq. 831 Market Street P.O. Box 222 Lemoyne, PA 17043 Date: V a /04 -- ?' .1 - Miriam L. Hogan ? w 1 F ? in co F AC7 W N ? ALBERTA M. ROGERS AND JAMES ROGERS, HUSBAND AND WIFE, Plaintiffs V. J. BRET DELONE, M.D., AND KUNKEL SURGICAL GROUP, Defendants . IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA No. 04-946 CIVIL ACTION - LAW JURY TRIAI, DEMANDED NOTICE TO DEFEND YOU HAVE BEEN SUED IN COURT. If you wish to defend against the claims set forth in the following pages, you must take action within twenty (20) days after this Complaint and Notice are served, by entering a written appearance personally or by attorney and filing in writing with the Court your defenses or objections to the claims set forth against you. You are warned that if you fail to do so the case may proceed without you and a judgment may be entered against you by the Court without further notice for any money claimed in the Complaint or for any other claim or relief requested by the Plaintiff(s). You may lone money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW. THIS OFFICE CAN PROVIDE YOU WITH INFORMATION ABOUT HIRING A LAWYER. IF YOU CANNOT AFFORD TO HIRE A LAWYER, THIS OFFICE MAY BE ABLE TO PROVIDE YOU WITH INFORMATION ABOUT AGENCIES THAT MAY OFFER LEGAL SERVICES TO ELIGIBLE PERSONS AT A REDUCED FEE OR NO FEE. Cumberland County Bar Association 2 Liberty Avenue Carlisle, Pennsylvania 17013 Phone: (717) 249-316t5 ALBERTA M. ROGERS AND IN THE COURT OF COMMON PLEAS JAMES ROGERS, HUSBAND AND CUMBERLAND COUNTY, PENNSYLVANIA WIFE, Plaintiffs V. No. 04-946 J. BRET DELONE, M.D., AND CIVIL ACTION - LAW KUNKEL SURGICAL GROUP, Defendants JURY TRIAI, DEMANDED PLAINTIFFS' COMPLAINT.' AND NOW come the Plaintiffs, Alberta M. Rogers and James Rogers, husband and wife, by and through their attorney, Leslie M. Fields, Esquire, COSTOPOULOS, FOSTER & FIELDS, and respectfully represent as follows in support of this Complaint: Parties 1. Plaintiffs, Alberta M. Rogers and James Rogers, husband and wife, are adult individuals residing at R.D. 4, Box 4278, Duncannon, Perry County, Pennsylvania 17020. 2. Defendant, J. Bret Delone, M.D., is and at all times hereinafter referred to was, a physician duly licensed to practice his profession as provided by the laws of the Commonwealth of Pennsylvania and engaged in the practice of his profession with Defendant, Kunkel Surgical Group, with his main place of business located at 809 Poplar Church Road, Suite 210, Camp Hill, Cumberland County, Pennsylvania 17011. 3. Defendant, Kunkel Surgical Group,, is and at all times hereinafter was a corporation duly organized and licensed under the 1 laws of the Commonwealth of Pennsylvania and engaged in the business of operating a medical clinic with its main place of business located at 809 Poplar Church Road, Suite 219, Camp Hill, Cumberland County, Pennsylvania 17011. 4. At all relevant times herein, Defendant, J. Bret Delone, M.D., was an actual or ostensible agent, servant and/or employee of Defendant, Kunkel Surgical Group. General Allegations 5. At all relevant times herein, Plaintiff, Alberta M. Rogers, relied upon the professional judgment, ability and knowledge of Defendant, J. Bret Delone, M.D., who in turn was acting individually and as an actual or ostensible agent, servant and/or employee of Defendant, Kunkel Surgical Group. 6. In the spring and summer of 2000, Plaintiff, Alberta M. Rogers, was diagnosed with active peptic ulcer disease in the gastric antrum and was placed on a course of treatment of medications. 7. However, Plaintiff, Alberta M. Rogers, did not significantly improve with the medical therapy and, by the spring of 2002, her gastroenterologist referred her to Defendant, J. Bret Delone, M.D., at Defendant, Kunkel Surgical Group. 8. Defendant, J. Bret Delone, M.D., recommended to Plaintiff, Alberta M. Rogers, that she undergo surgery; and on May 30, 2002, he performed a vagotomy and antrectomy with Roux-en-Y 2 gastrojejunostomy at the Holy Spirit Hospital in Camp Hill, Cumberland County, Pennsylvania. 9. Despite assurances by Defendants that Plaintiff was doing well in her post-operative period, in the weeks subsequent to the surgery, Plaintiff, Alberta M. Rogers, experienced illness, severe problems in digesting foods and a loss of weight. Upon examination by her gastroenterologist, it was determined that she suffered from gastroparesis, had little or no spontaneous peristaltic activity, and had a large volume of retained food in the stomach. She was admitted to the hospital. 10. Plaintiff, Alberta M. Rogers, was then referred by her gastroenterologist to The Johns Hopkins Hospital in Baltimore, Maryland where, on January 28, 2003, surgeons, after determining that the gastroparesis was irreversible, performed a total gastrectomy (stomach removal) with an esophagojejunostomy and splenectomy (spleen removal) and created a "Hunt-Lawrence" pouch or artificial stomach. 11. As a result of these procedures, Plaintiff, Alberta M. Rogers, is on a life-long post-gastrectomy diet, is malnourished, suffers from extreme weight loss and fatigue:, has had to be fed and nourished through a feeding tube and :CV therapy, has been repeatedly hospitalized for sepsis and other infections, continues to have abnormal blood test results and infections, and experiences abdominal pain and discomfort, severe nausea, and related symptoms. 3 Count I: Plaintiff Alberta M Rogers v J. Bret Delone. M.D. 12. The allegations set forth in paragraphs 1 through 11 above are incorporated herein by reference as if fully set forth. 13. In treating Plaintiff, Alberta M. Rogers, the Defendant, J. Bret Delone, M.D., was required to exercise the reasonable and ordinary care, skill and ability exercised by other members of his profession in the same or similar circumstances. 14. Defendant, J. Bret Delone, M.D., failed to exercise the reasonable and ordinary care, skill and ability exercised by other members of his profession in the same or similar circumstances in that he: a) negligently performed the vagotomy, antrectomy, and/or Roux-en-Y gastrojejunostomy on Plaintiff, Alberta M. Rogers, in such a manner as to cause the gastropaxesis and/or delayed stomach emptying and necessitating the total gastrectomy and splenectomy; b) negligently performed the antrectomy on Plaintiff, Alberta M. Rogers, in such a manner as to remove more of the stomach than was necessary, thereby causing the gastroparesis and/or delayed stomach emptying and necessitating the total gastrectomy and splenectomy; C) negligently chose the method to be employed in treating plaintiff's condition and/or in performing the vagotomy, antrectomy, and/or Roux-en-Y gastrojejunostomy in such a manner as to cause the gastroparesis and/or delayed stomach emptying and necessitating the total gastrectomy and splenectomy; 4 d) failed to recognize that he had completely severed the vagus nerve and/or had removed more of the stomach than was necessary and to treat the gastroparesis and/or delayed stomach emptying properly and immediately; e) failed to recognize that the Roux-en-Y gastrojejunostomy was resulting in gastroparesis and/or delayed stomach emptying and to treat the gastroparesis and/or delayed stomach emptying properly and immediately; f) failed to properly perform, read, report, interpret and comprehend the reports, tests and procedures in connection with Plaintiff's surgery; g) failed to properly perform, read, report, interpret and comprehend the reports, tests and procedures in connection with Plaintiff's postoperative condition; h) failed to seek and obtain the advice and instruction of qualified specialists or their superiors in the field of gastroenterological surgery in connection with his treatment of Plaintiff Rogers; and i) failed to refer Plaintiff Rogers to the appropriate medical specialists in the field of gastroenterological surgery who would have properly performed the surgery without causing gastroparesis and/or delayed stomach emptying and necessitating the 'total gastrec- tomy and splenectomy. 15. The negligence, carelessness and/or recklessness of Defendant, J. Bret Delone, M.D., was a substantial factor in causing the gastroparesis and the loss of the entire stomach and spleen of Plaintiff, Alberta M. Rogers, and subsequent complications and pain. 16. As a direct and proximate result of the negligent, 5 careless and/or reckless treatment of Plaintiff, Alberta M. Rogers, by Defendant, J. Bret Delone, M.D., Plaintiff Rogers was caused gastroparesis and/or delayed stomach emptying and the loss of her entire stomach and spleen and subsequent complications and pain. 17. As a further direct and proximate result of the negligent, careless and/or reckless treatment by Defendant, J. Bret Delone, M.D., the Plaintiff, Alberta M. Rogers, has been obligated to receive and undergo medical attention and care and to incur medical expenses, and will be obligated to continue to receive and undergo additional medical attention and care and to incur such additional medical expenses for an indefinite time in the future. 18. As a further direct and proximate result of the negligent, careless and/or reckless treatment by Defendant, J. Bret Delone, M.D., the Plaintiff, Alberta M. Rogers, has suffered physical pain and suffering, mental anguish and humiliation and will continue to so suffer for an indefinite time in the future. 19. As a further direct and proximate result of the negligent, careless and/or reckless treatment by Defendant, J. Bret Delone, M.D., the Plaintiff, Alberta M. Rogers, has suffered a loss of life's pleasures and will continue to so suffer for an indefinite time in the future. WHEREFORE, Plaintiff, Alberta M. Rogers, demands judgment against Defendant, J. Bret Delone, M.D., in an amount in excess of the compulsory arbitration limits, plus costs and interest as 6 provided by law. Count II: Plaintiff Alberta M. Rogers v. Defendant Kunkel Surgical Group: Vicarious Liability 20. The allegations set forth in paragraphs 1 through 19 above are incorporated herein by reference. 21. At all relevant times herein, the actual or ostensible agents, servants and/or employees of Defendant, Kunkel Surgical Group, including but not limited to Defendant, J. Bret Delone, M.D., were acting within the scope of their employment and agency with Defendant, Kunkel Surgical Group, in rendering negligent, careless and/or reckless treatment to Plaintiff, Alberta M. Rogers. 22. Defendant, Kunkel Surgical Group, is vicariously liable for the negligence, carelessness and/or recklessness of its actual or ostensible agents, servants and/or employees, including but not limited to Defendant, J. Bret Delone, M.D., who negligently, carelessly and/or recklessly rendered medical treatment to Plaintiff, Alberta M. Rogers. 23. The negligence, carelessness and/or recklessness of the actual or ostensible agents, servants and/or employees of Defendant, Kunkel Surgical Group, including but not limited to Defendant, J. Bret Delone, M.D., which is imputed to Defendant, Kunkel Surgical Group, was a substantial factor in causing the gastroparesis and the loss of the stomach and spleen of the Plaintiff, Alberta M. Rogers, and subsequent complications and 7 pain. 24. As a direct and proximate result of the negligent, careless and/or reckless treatment of Plaintiff, Alberta M. Rogers, which is imputed to Defendant, Kunkel Surgical Group, the Plaintiff Rogers was caused gastroparesis and the loss of her stomach and spleen and subsequent complications and pain. 25. As a further direct and proximate result of the negligent, careless and/or reckless treatment of Plaintiff, Alberta M. Rogers, which is imputed to Defendant, Kunkel Surgical Group, the Plaintiff Rogers has suffered those injuries and damages set forth above, which averments are incorporated herein by reference. WHEREFORE, Plaintiff, Alberta M. Rogers, demands judgment against Defendant, Kunkel Surgical Group, in an amount in excess of the compulsory arbitration limits, plus costs and interest as provided by law. Count III: Plaintiff Alberta M. Rogers v. Defendant J. Bret Delone, M.D.: Medical Battery/Lack of Informed Consent 26. The allegations set forth in paragraphs 1 through 25 above are incorporated herein by reference. 27. Defendant, J. Bret Delone, M.D., prior to performing the above referenced surgical procedures on Plaintiff, Alberta M. Rogers, had the duty to obtain her informed consent. 28. Defendant, J. Bret Delone, M.D. advised Plaintiff, 8 Alberta M. Rogers, to undergo a vagotomy and antrectomy with Roux- en-Y gastrojejunostomy. 29. Defendant, J. Bret Delone, M.D. never advised Plaintiff, Alberta M. Rogers, of the alternatives to the procedures he recommended and performed. 30. Defendant, J. Bret Delone, M.D., never advised Plaintiff, Alberta M. Rogers, of the risks of the procedures she was to undergo, including that she could suffer gastroparesis and/or delayed stomach emptying and that she may have to undergo a total gastrectomy and splenectomy. 31. The performance by Defendant, J. Bret Delone, M.D., of the vagotomy and antrectomy with Roux-en-Y gastrojejunostomy on Plaintiff, Alberta M. Rogers, was without her informed consent and constituted a battery on her person. 32. As a direct and proximate result of the battery committed on the person of Plaintiff, Alberta M. Rogers, by the Defendant, J. Bret Delone, M.D., the Plaintiff Rogers was caused gastroparesis and/or delayed stomach emptying and the loss of her entire stomach and spleen and subsequent complications and pain. 33. As a further direct and proximate result of the battery committed on the person of Plaintiff, Alberta M. Rogers, by the Defendant, J. Bret Delone, M.D., the Plaintiff Rogers has suffered those injuries and damages set forth above, which averments are incorporated herein by reference. 9 Plaintiff, Alberta M. Rogers, demands judgment against Defendant, J. Bret Delone, M.D., in an amount in excess of the compulsory arbitration limits, plus costs and interest as provided by law. Count IV: Plaintiff James Rogers v. Defendants: Loss of Consortium 34. The allegations set forth in paragraphs 1 through 33 above are incorporated herein by reference as if fully set forth. 35. At all relevant times herein, Plaintiff, James Rogers, and Plaintiff, Alberta M. Rogers, were lawfully and continuously married. 36. As a direct and proximate result of the medical battery, lack of informed consent, negligence, carelessness and/or recklessness of Defendant, J. Bret Delone, M.D., and of Defendant, Kunkel Surgery Group, as described in more detail above, the Plaintiff, James Rogers, has suffered a loss of consortium, society and companionship of his wife, the Plaintiff, Alberta M. Rogers. , Plaintiff, James Rogers, demands judgment against Defendant, J. Bret Delone, M.D., and Defendant, Kunkel Surgery Group, in an amount in excess of the compulsory arbitration limits, plus costs and interest as provided by law. 10 RESPECTFULLY SUBMITTED: i Leslie M. Fields, Esquire I.D. o. 29411 COSTOPOULOS, FOSTER & FIELDS 831 Market Street/P.O. Box 222 Lemoyne, Pennsylvania 17043 Phone: (717) 761-2121 ATTORNEY FOR PLAINTIFFS DATED: 4e? ZOUy 11 ALBERTA M. ROGERS AND JAMES ROGERS, HUSBAND AND WIFE, Plaintiffs V. J. BRET DELONE, M.D., AND KUNKEL SURGICAL GROUP, Defendants IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA No. 04-946 CIVIL ACTION - LAW JURY TRIAL DEMANDED Certificate of Merit as to J. Bret Delone. M.D. Name of Defendant I, Leslie M. Fields, Esa. certify that: Attorney or Party [X] 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 [ ] the claim that this defendant deviated from an acceptable professional standard is based solely on allegations that other licensed professionals for whom this defendant is responsible deviated from an acceptable professional standard and an appropriate licensed professional has supplied a written statement to he undersigned that there is a basis to conclude that the care, skill or knowledge exercised or exhibited by the other licensed professionals in the treatment, practice or work that is the subject of the complaint, fell outside acceptable professional standards and that such conduct was a cause in bringing about the harm; OR [ ] expert testimony of an appropriate licensed professional is unnecessary for prosecution of the claim against this defendant. . Date: ? 4. ?d tif. ?(Attom5or Party) ALBERTA M.ROGERSAND JAMES ROGERS, HUSBAND AND WIFE, Plaintiffs V. J. BRET DELONE, M.D., AND KUNKEL SURGICAL GROUP, Defendants IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA No. 04-946 CIVIL ACTION - LAW JURY TRIAL DEMANDED Certificate of Merit as to Kunkel Surgical Group Name of Defendant I, Leslie M. Fields. Esq. certify that: Attorney or Party [ ] 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 [X ] the claim that this defendant deviated from an acceptable professional standard is based solely on allegations that other licensed professionals for whom this defendant is responsible deviated from an acceptable professional standard and an appropriate licensed professional has supplied a written statement to he undersigned that there is a basis to conclude that the care, skill or knowledge exercised or exhibited by the other licensed professionals in the treatment, practice or work that is the subject of the complaint, fell outside acceptable professional standards and that such conduct was a cause in bringing about the harm; OR [ ] expert testimony of an appropriate licensed professional is unnecessary for prosecution of the claim against this defendant. Date: 41e 4ytto or Party) I, Plaintiff, Alberta M. Rogers, do hereby verify that the statements made in the foregoing document are true and correct to the best of my information and belief. I understand that false statements made herein are subject to the penalties at 18 Pa.C.S.A. 4904 relating to unsworn falsification to authorities. BY: ? \u- Alberta M. Roge DATED: '6\5\bA I, Plaintiff, James Rogers, do hereby verify that the statements made in the foregoing document are true and correct to the best of my information and belief. I understand that false statements made herein are subject to the penalties at 18 Pa.C.S.A. 4904 relating to unsworn falsification to authorities. BY: I? J mes Rogers DATED: S-S-O q CERTIFICATE OF SERVICE I, Leslie M. Fields, Esquire, hereby certify that on this 7`n day of May 2004, a true and correct copy of the foregoing Plaintiffs' Complaint was served upon all counsel of record by: Hand Delivery X First Class Mail, Postage Pre-Paid Certified Mail, Return Receipt Requested Fax Transmission Overnight Mail at the following address(es) and/or number(s): Evan Black, Esquire I.D. 17884 THOMAS, THOMAS & HAFER, LLP 305 North Front Street P.O. Box 999 Harrisburg, PA 17108 Counsel for Defendants I Bret Delone and Kunkel Surgical Group COSTOPOULOS, FOSTER & FIELDS Leslie M. Fields, Esquire v" ? N c? [^ c? x- "I ?' T _- ? fTl c` v __ m -JO C" i C-? - _r? • ? C7 ' CJ ,. -511 -? - U -4 THOMAS, THOMAS & HAFER LLP 305 North Front Street P.O. Box 999 Harrisburg, PA 17108 Commonwealth of Pennsylvania. County of Cumberland Alberta Rogers and James Rogers Husband and Wife Plaintiffs V. J. Bret Delone, M.D., and Kunkel Surgical Group Defendants EVAN BLACK, ESQ. Attorney I.D. 17884 STEPHANIE L. HERSPERGER, ESQ. Attorney I.D. 78735 (717)441-7051 Attorneys for Defendants J. Bret Delone, M.D. and Kunkel Surgical Group No. 04-0946 CIVIL ACTION - LAW JURY TRIAL DEMANDED NOTICE TO PLEAD TO: Alberta and James Roger, c/o Leslie M. Fields, Esq. 831 Market Street P.O. Box 222 Lemoyne, PA 17043 YOU ARE HEREBY NOTIFIED TO FILE A WRITTEN RESPONSE TO THE ENCLOSED PRELIMINARY OBJECTIONS TO PLAINTIFFS' COMPLAINT WITHIN TWENTY (20) DAYS OF SERVICE HEREOF OR A JUDGMENT OF NON PROS MAY BE ENTERED AGAINST YOU. Respectfully submitted, Thomas, Thomas & Hafer, LLP I?? By _Z?l ?/J? Evan Black, Esq. Stephanie L. Hersperger, Esq Date: May 26, 2004 THOMAS, THOMAS & HAFER, LLP 305 North Front Street P.O. Box 999 Harrisburg, PA 17108 EVAN BLACK, ESQ. Attorney I.D. 17884 STEPHANIE L. HERSPERGER, ESQ. Attorney I.D. 78735 (717) 441-7051 Attorneys for Defendants 1. Bret Delone, M.D. and Kunkel Surgical Group Commonwealth of Pennsylvania County of Cumberland Alberta Rogers and James Rogers Husband and Wife Plaintiffs V. J. Bret Delone, M.D., and Kunkel Surgical Group Defendants No. 04-0946 CIVIL ACTION - LAW JURY TRIAL DEMANDED (hereinafter "Moving Defendants"), by and through their counsel, Thomas, Thomas & Hafer, LLP, and file the following Preliminary Objections to Plaintiffs' Complaint: Plaintiffs, Alberta Rogers and James Rogers, filed. their Complaint in this medical malpractice case on or about May 7, 2004. A true and correct copy of Plaintiffs' Complaint is attached hereto and marked as Exhibit "A". 2. Plaintiffs served a Certificate of Merit along with their Complaint. 3. In Plaintiffs' Complaint, they allege that the Defendant, Dr. Delone, was negligent in performing a vagotomy, antrectomy and/or Roux-en--Y gastrojejunostomy on Plaintiff, Mrs. Rogers, and that same caused her to suffer from ga.stroparesis and/or delayed stomach emptying and necessitating a total gastrectomy and splenectomy. See Exhibit "A". AND NOW, come the Defendants, J. Bret Delone, M.D. and Kunkel Surgical Group 4. Plaintiffs assert that Defendant, Kunkel Surgical Group, is vicariously liable for the alleged negligence of Dr. Delone. See Exhibit "A". 5. Plaintiffs also make a separate claim against Dr. Delone for failure to obtain Mrs. Roger's informed consent to the surgical procedures at issue. See Exhibit "A". 6. Pennsylvania Rule of Civil Procedure ("Rule") 1028(a)(2) provides that a party may file preliminary objections when a pleading fails "to conform to law or rule of court." See Pa. R.C.P. 1028(a)(2). 7. In addition, Rule 1028(a)(3) allows a party to preliminarily object to a pleading due to "insufficient specificity in a pleading." See Pa. R.C.P. 1028(a)(3). 8. Furthermore, Rule 1028(a)(4) permits a party to preliminarily object to the "legal insufficiency of a pleading." See Pa. R.C.P. 1028(a)(4). 9. Accordingly, Defendants now file the following Preliminary Objections to Plaintiffs' Complaint: (1) Preliminary Objection in the Nature of'a Demurrer/Motion to Strike Plaintiffs' Claims of "recklessness" from Paragraphs 15-19, 21-25 and 36 of Plaintiffs' Complaint, Pursuant to Pa. R.C.P. 1028(a)(2)(3)(4); (2) Preliminary Objection in the Nature of a Motion to Strike Allegations of Agency Contained in Paragraphs 21-23 of Plaintiffs' Complaint, Pursuant to Pa. R.C.P. 1029(a) and 1028(a)(2)(3), or in the Alternative, Motion for a More Specific Pleading Pursuant to Pa. R.C.P. 1028(a)(3), for Failure to Specifically Plead an Agency Relationship; (3) Preliminary Objection in the Nature of a Motion to Strike Subparagraphs 14(f) and 14(g) of Plaintiffs' Complaint, Pursuant to Pa. R.C.P. 1019(a) and 1028(a)(3); and (4) Preliminary Objection in the Nature of a Demurrer/Motion to Strike Plaintiffs' Claim for Lack of Informed Consent in Count III of Plaintiffs' Complaint. A. Preliminary Obiection in the Nature of a Demurrer/Motion to Strike Plaintiffs' Claims of "recklessness" from Paragraphs 15-19.21-25 and 36. Pursuant to Pa. R.C.P. 1028(a)(2)(3)(4). 10. Paragraphs 1 through 9 are incorporated by reference as though set forth at length herein. 11. Plaintiffs in their Complaint baldly allege that Defendant, Dr. Delone, was reckless in his care and treatment of Plaintiff, Mrs. Rogers. See paras. 15-19, 21-25 and 36 of Exhibit "A". 12. Despite the use of such language, however, Plaintiffs are not seeking to recover punitive damages from Moving Defendants. See Exhibit "A". 13. Pennsylvania common law recognizes no degrees of negligence. See Flurer v. Pocono Med. Ctr., 15 D.&C.4th 645 (C.P. Monroe 1992) (citing Ferrick Excavating v. Senger Trucking Co., 506 Pa. 181, 484 A.2d 744 (1984). 14. Given the fact that Plaintiffs are not seeking punitive damages, any assertions that Moving Defendant was "reckless or acted with "recklessness" are therefore impertinent, unnecessary and immaterial to the issues before this Court. See _Debo v. Buckley, 484 D.&CAth 331 (C.P. Snyder 1999) (wherein the court struck all references to "recklessness," "reckless conduct" and/or "recklessly" in plaintiff s corn plaint); Flurer, 15 D.&CAth at 670 (citing Berkebile v. Nationwide Ins. Co., 6 D.&C.3d 243 (1977) (wherein the court struck all references to the defendant's recklessness). 15. Furthermore, and just as importantly, there are no facts set forth in Plaintiffs' Complaint that support the allegation that Dr. Delone's care and treatment was reckless or that he acted with recklessness. See Exhibit "A". 16. Recklessness has been defined as that type of conduct in which the wrongdoer has "knowledge or reason to know of facts creating a high risk of serious harm to another, and that he make[s] a deliberate choice to act or fails to act in an unreasonable manner in conscious disregard of, or indifference to, that risk." Diggs, Administratrix of Turner v. Susquehanna Center and Rehabilitation, et al., 116 Dauph. 485, 491 (Clark, J., 1996). 17. The facts plead within the Complaint of improper treatment of Plaintiff, Mrs. Rogers, do not rise to the level of "recklessness". 18. Plaintiffs allege in their Complaint that Moving Defendant, Dr. Delone, was negligent for performing Mrs. Roger's surgery; was negligent in. performing the surgery; was negligent in that he failed to recognize and treat an injury that occurred at the time of the surgery; was negligent for not obtaining advise from appropriate specialists; was negligent for failing to properly read, report, interpret and comprehend reports, tests and procedures; and was negligent for failing to refer Plaintiff to appropriate medical specialists. See Count I of Exhibit "A". 19. Even if the above-referenced factual allegations are accepted as true, these factual allegations support no more than a claim for ordinary negligence. 20. Plaintiffs have failed to plead any facts which would support the allegation that Moving Defendant, Dr. Delone, was "reckless", and thus, said allegations should be stricken from Plaintiffs' Complaint. WHEREFORE, Moving Defendants respectfully request that this Court enter an Order striking the language "reckless" and "recklessness" from Paragraphs 15-19, 21-25 and 36 of Plaintiffs' Complaint, with prejudice. B. Preliminary Obiection in the Nature of a Motion to Strike the Allegations of Agency Contained in Paragraphs 21-23 of Plaintiffs' Complaint. Pursuant to Pa. R.C.P. 1029(a) and 1028(a)(2)(3), or in the Alternative. Motion for a More Specific Pleading Pursuant to Pa. &C .P. 1028(a)(3), for Failure to Specifically Plead an Agency Relationship 21. Paragraphs 1 through 20 are incorporated by reference as though set forth at length herein. 22. In Paragraphs 21-23 of Plaintiffs' Complaint, Plaintiffs allege that Moving Defendant, Kunkel Surgical Group, was acting through its actual or ostensible agents, servants and/or employees. See paras. 21-23 of Exhibit "A". 23. Specifically, Plaintiffs allege the following: 21. At all times relevant herein, the actual or ostensible agents, servants and/or employees of Defendant, Kunkel Surgical Group, including but not limited to Defendant, J. Bret Delone, M.D., were acting within the scope of their employment and agency with Defendant, Kunkel Surgical Group, in rendering negligent, careless and/or reckless treatment to Plaintiff, Alberta M. Rogers. 22. Defendant, Kunkel Surgical Group, is vicariously liable for the negligence, carelessness and/or recklessness of its actual or ostensible agents, servants and/or employees, including but not limited to Defendant, J. Bret Delone, M.D., who negligently, carelessly and/or recklessly rendered medical treatment to Plaintiff, Alberta M. Rogers. 23. The negligence, carelessness and/or recklessness of the actual or ostensible agents, servants and/or employees of Defendant, Kunkel Surgical Group, including but not limited to, Defendant, J. Bret Delone, M.D., which is imputed to Defendant, Kunkel Surgical Group, was a substantial factor in causing the gastroparesis and the loss of the stomach and spleen of the Plaintiff, Alberta M. Rogers, and subsequent complications and pain (emphasis added). See paras. 21-23 of Exhibit "A". 24. However, with the exception of Plaintiffs' allegation that Defendant, Dr. Delone, was an agent, servant or employee of Moving Defendant, Kunkel Surgical Group, nowhere in Plaintiffs' Complaint do they identify the employees, servants or agents of Moving Defendant or set forth the alleged agents' authority and how the acts of those agents fall within the scope of that authority. See Exhibit "A". 25. It has been held that a complaint should not only give the defendant notice of what the plaintiffs claim is and the grounds upon which it rests, but also must formulate the issue by summarizing those facts essential to support the claim. Baker v. Rangos, 229 Pa. Super. 333, 324 A.2d 498 (1974). 26. Pennsylvania courts interpreting Rule 1019(a) have required specificity in pleadings so that the issues of the case are clearly defined and the opposing party is apprised of what the pleading party intends to establish at trial. See e.g. Larsen v. General Hosp of Monroe Cty., 259 Pa. Super. 150, 393 A.2d 761 (1981), reversed on other ounds, 494 Pa. 244, 431 A.2d 240 (1981); Baker v. Rangos, 229 Pa. Super. 333, 324 A.2d 498 (1974). 27. The need to specifically plead an agency relationship is well established. See Alumni Ass'n v. Sullivan, 369 Pa. Super. 596, 535 A.2d 1095 (1987) and Willinger v. Mercy Catholic Med. Ctr. of Southeastern PA , 241 Pa. Super. 456, 362 A.2d 280 (1976), aff d, 482 Pa. 441, 393 A.2d 1188 (1978); see also Colbert v. Notamacola, 119 Dauphin 75 (1999) (wherein this court held that averments of agency relationships that do not identify the individuals alleged to be within an agency relationship are insufficiently specific and must be stricken). 28. Furthermore, pursuant to Rules 1029(b) and (e), averments in a personal injury action relating to the "identity of [a] person by whom a material act was committed" or to the "agency or employment of such person " must be specifically denied because a general denial of such averments constitutes an admission. See Pa. R.C.P. 1029(b) and (e). 29. Therefore, pursuant to Rule 1029(b) and (e), a defendant has the burden of objecting to allegations of an agency relationship when a plaintiff fails to adequately identify purported agents in a complaint. See Pa. R.C.P. 1029(b) and (e). 30. If no preliminary objection is made, the defendant runs the risk of later being held vicariously liable for the negligent acts of a person who is not the defendant's employer or agent. 31. At the very least, a plaintiff must allege facts which: a) identify the agent by name or appropriate description; and b) set forth the agent's authority and how the acts of that agent fall within the scope of that authority. Alumni Association v. Sullivan, 369 Pa. Super. 596, 535 A.2d 1095 (1987); Mau v. Roth, 114 Dauph. 297 (1994). 32. In order to comply with Pa. R.C.P. 1029(b) and (e), Moving Defendant, Kunkel Surgical Group, must know the identity of those individuals who are alleged to be its agents, servants and employees in order to know whether to admit or specifically deny such allegations. Willinger v. Mercy Catholic Medical Center of Southeastern Pennsylvania, 241 Pa. Super. 456, 362 A.2d 280 (1976), affirmed, 482 Pa. 441, 393 A.2d 1188 (1978). If the allegations set forth above are allowed to remain, Moving Defendant, Kunkel Surgical Group, would not be able to specifically deny agency, and therefore, agency would be deemed to be admitted. 33. With the exception of Dr. Delone, Plaintiffs have failed to sufficiently identify Moving Defendant's alleged employees, servants and/or agents so that Moving Defendant can properly admit or deny their agency. WHEREFORE, Moving Defendant, Kunkel Surgical Group, respectfully requests this Honorable Court enter an Order striking the allegations of agency as set forth in Paragraphs 21- 23 of the Complaint, or in the alternative, direct that Plaintiffs file a more specific Complaint addressing the identity and acts or omissions of the unnamed individuals referenced within Paragraphs 21-23 of the Complaint. C. Preliminary Objection in the Nature of a Motion to Strike Subparagraphs 14(f) and 14(g). Pursuant to Pa. R.C.P. 1019(a) and 1028(a)(3). 34. Paragraphs 1 through 33 are incorporated by reference as though set forth at length herein. 35. In Paragraph 14 of Plaintiffs' Complaint, Plaintiffs assert various allegations of negligence against Moving Defendant, Dr. Delone. Although most of the allegations are sufficient enough to inform Moving Defendant, Dr. Delone, of the alleged negligence against him, the following allegations are overly broad: (f) failed to properly perform, read, report, interpret and comprehend the reports, tests and procedures in connection with Plaintiff s surgery; (g) failed to properly perform, read, report, interpret and comprehend the reports, tests and procedures in connection with Plaintiff s postoperative condition; See subparas. 14(f) and 14(g) of Exhibit "A". 36. Subparagraphs 14(f) and 14(g) of Plaintiffs' Complaint violate the Pennsylvania Rules of Civil Procedure and supporting case law because said subparagraphs are little more than boilerplate allegations of negligence which could be pled against any defendant in any medical malpractice action. 37. Subparagraphs 14(f) and 14(g) constitute mere "notice pleading" which the Pennsylvania legislature has clearly rejected in adopting a requirement of "fact pleading" in Rules 1019(a) and 1028(a)(3). See Pa. R.C.P. 1019(a) and 1028(a)(3); see also Sevin v. Kelshaw, 417 Pa. Super. 1, 611 A.2d 1232 (1992). 38. The Pennsylvania Supreme Court emphasized the paramount importance of specificity in a complaint in Connor v. Allegheny General Hosp„ 501 Pa. 306, 461 A.2d 600 (1983). 39. Indeed, a complaint must (1) notify the defendant of what plaintiff's claim is and the grounds upon which it rests, and (2) formulate the issue by summarizing those facts essential to support the claim. See Baker v. Rangos, 229 Pa. Super. 333, 324 A.2d 498 (1974). 40. As the Pennsylvania Superior Court explained in Estate of Swift v. Northeastern Hoso. of Phila., 456 Pa. Super. 330, 690 A.2d 719 (1997), "while it is not necessary that the complaint identify the specific legal theory of the underlying claim, it must apprise the defendant of the claim being asserted and summarize the essential facts to support the claim." 41. The overly broad, vague, insufficiently specific, boilerplate allegations of negligence contained in Subparagraphs 14(f) and 14(g) are insufficient in that they fail to adequately apprise Moving Defendant, Dr. Delone, of the tortious conduct that Plaintiffs assert. 42. Courts of Common Pleas throughout this Commonwealth have repeatedly stricken averments of negligence of the sort contained in Subparagraphs 14(f) and 14(g) of Plaintiffs' Complaint. See e.g. Rubeck v. Milroth, 53 Pa. D. &C.4th 548 (C.P.P. Franklin County 2001); Sola v. Chao, 49 Pa. D. &C.4th 444 (C.P.P. Montour Co. 2000); Boyd v. Somerset Hosn., 24 Pa. D. &C.4th 564 (C.P.P. Somerset County 1993); Flurer v. Pocono Med. Ctr., 15 Pa. D. &C.4th 645 (C.P.P. Monroe Co. 1992); Star• v. Myers, 109 Dauphin 147 (1988); Dibble v. Penn State Geisinger Clinic, 42 Pa. D. &C.4th 225 (C.C.P. Lackawanna Co. 1999); Fasula v. Hijazi, 44 Pa. D. &C.4th 553 (C.C.P. Lackawanna Co. 1999); and Lichty v. Kucharczuk, 5 Pa. D. &C.4th 120 (C.C.P. Northhampton Co. 1989). 43. Even when read in conjunction with Plaintiffs' Complaint as a whole, Subparagraphs 14(f) and 14(g) do not give Moving Defendant, Dr. Delone, sufficient notice to allow him to prepare an adequate defense to these allegations because Plaintiffs fail to even mention or refer to any tests, reports or procedures, other than the surgeries, in their Complaint. See Exhibit "A". 44. If the overly broad, boilerplate allegations of negligence identified above are permitted to remain in Plaintiffs' Complaint, this would permit the Plaintiffs to later set forth new theories of negligence not originally pled, thereby prejudicing Moving Defendant, Dr. Delone, from preparing a defense. 45. In addition, the allegations of negligence identified above are further prejudicial to Moving Defendant, Dr. Delone, insofar as these allegations may result in a waiver of various defenses and objections pursuant to Pa. R.C.P. 1032. WHEREFORE, Moving Defendants respectfully request this Honorable Court enter an Order striking Subparagraphs 14(f) and 14(g) from Plaintiffs' Complaint, or, in the alternative, direct Plaintiffs to file a more specific Complaint with respect to those allegations of negligence. D. Preliminary Objection in the Nature of a Demurrer/Motion to Strike Plaintiffs' Claim for Lack of Informed Consent in Count III of Plaintiffs' Complaint. 46. Paragraphs 1 through 45 are incorporated by reference as though set forth at length herein. 47. In Count III of Plaintiffs' Complaint, Plaintiffs attempt to set forth a claim for lack of informed consent against Moving Defendant, Dr. Delone. See Count III of Exhibit "A". 48. In Pennsylvania, § 504 of The Medical Availability and Reduction of Error (Mcare) Act 13 of 2002, sets forth the elements of a cause of action for informed consent. 49. Section 504 of the Mcare Act, in part, provides that consent is considered informed if the patient has been given a description of a procedure set forth in subsection (a) and the risks and alternatives that a reasonably prudent patient would require to make an informed decision as to that procedure. See § 504(b) of the Mcare Act. 50. Moreover, a physician is only liable for failing to obtain informed consent if the patient proves that receiving such information would have been a substantial factor in the patient's decision whether to undergo the procedure. See § 504(d)(1) of the Mcare Act. 51. Obviously, at this stage in the pleadings, Plaintif ; do not have to prove the allegations set forth in their Complaint; however, Plaintiffs still must adequately plead any causes of action set forth in the Complaint. 52. In Count III of Plaintiffs' Complaint, they fail to allege that Moving Defendant, Dr. Delone, did not advise Plaintiff of the risks and alternatives that a reasonably prudent patient would require to make an informed decision as to whether to undergo the vagotomy and antrectomy with Roux-en-Y gastrojejunostomy. See Count III of Exhibit "A". 53. Plaintiffs also failed to allege that such information pertaining to the risks and alternatives to these procedures would have been a substantial factor in Mrs. Roger's decision whether to undergo the procedures at issue, specifically, the vagotomy and antrectomy with Roux-en-Y gastrojejunostomy. See Count III of Exhibit "A". 54. Since Plaintiffs have failed to plead a prima facie case of informed consent pursuant to the Mcare Act, Plaintiffs' claim for lack of informed consent should be dismissed, or in the alternative, Plaintiffs should be ordered to amend their Complaint to set forth a valid cause of action for informed consent. WHEREFORE, Moving Defendants respectfully request. this Honorable Court enter an Order dismissing Count III of Plaintiffs' Complaint, or, in the alternative, direct Plaintiffs to file an amended Complaint to set forth a valid cause of action for informed consent according to the Mcare Act. Respectfully Submitted, THOMAS, THOMAS & HAFER, LLP Evan Bla6k, Esq. Stephanie L. Hersperger, Esq. Attorneys for Defendants J. Bret Delone, M. D. and Kunkel Surgical Group Date: May 26, 2004 J i A, ii, ),Jd 31-91 ?O ALBERTA M. ROGERS AND JAMES ROGERS, HUSBAND AND WIFE, Plaintiffs V. IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA No. 04-946 J. BRET DELONE, M.D., AND CIVIL ACTION - LAW' n KUNKEL SURGICAL GROUP, Defendants JURY TRIAL DEMANDED n NOTICE TO DEFEND c) YOU HAVE BEEN SUED IN COURT. If you wish to defend against 4" 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(s). You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW. THIS OFFICE CAN PROVIDE YOU WITH INFORMATION ABOUT HIRING A LAWYER. IF YOU CANNOT AFFORD TO HIRE A LAWYER,. THIS OFFICE MAY BE ABLE TO PROVIDE YOU WITH INFORMATION ABOUT AGENCIES THAT MAY OFFER LEGAL SERVICES TO ELIGIBLE PERSONS AT A REDUCED FEE OR NO FEE. Cumberland County Bar Association 2 Liberty Avenue Carlisle, Pennsylvania 17013 Phone: (717) 249-3166 ALBERTA M. ROGERS AND IN THE COURT OF COMMON PLEAS JAMES ROGERS, HUSBAND AND CUMBERLAND COUNTY, PENNSYLVANIA WIFE, Plaintiffs V. No. 04-946 J. BRET DELONE, M.D., AND CIVIL ACTION - LAW KUNKEL SURGICAL GROUP, Defendants JURY TRIAL DEMANDED PLAINTIFFS' COMPLAINT AND NOW come the Plaintiffs, Alberta M. Rogers and James Rogers, husband and wife, by and through their attorney, Leslie M. Fields, Esquire, COSTOPOULOS, FOSTER & ]FIELDS, and respectfully represent as follows in support of this Complaint: Parties 1. Plaintiffs, Alberta M. Rogers and James Rogers, husband and wife, are adult individuals residing at R.D. 4, Box 4278, Duncannon, Perry County, Pennsylvania 17020. 2. Defendant, J. Bret Delone, M.D., is and at all times hereinafter referred to was, a physician duly licensed to practice his profession as provided by the laws of the Commonwealth of Pennsylvania and engaged in the practice: of his profession with Defendant, Kunkel Surgical Group, with his main place of business located at 809 Poplar Church Road, Suite 2.10, Camp Hill, Cumberland County, Pennsylvania 17011. 3. Defendant, Kunkel Surgical Group, is and at all times hereinafter was a corporation duly organized and licensed under the 1 laws of the Commonwealth of Pennsylvania and engaged in the business of operating a medical clinic with its main place of business located at 809 Poplar Church Road, Suite 219, Camp Hill, Cumberland County, Pennsylvania 17011. 4. At all relevant times herein, Defendant, J. Bret Delone, M.D., was an actual or ostensible agent, servant and/or employee of Defendant, Kunkel Surgical Group. General Allegations 5. At all relevant times herein, Plaintiff, Alberta M. Rogers, relied upon the professional judgment, ability and knowledge of Defendant, J. Bret Delone, M.D., who in turn was acting individually and as an actual or ostensible agent, servant and/or employee of Defendant, Kunkel Surgical Group. 6. In the spring and summer of 2000, Plaintiff, Alberta M. Rogers, was diagnosed with active peptic ulcer disease in the gastric antrum and was placed on a course of treatment of medications. 7. However, Plaintiff, Alberta M. Rogers, did not significantly improve with the medical therapy and, by the spring of 2002, her gastroenterologist referred her to Defendant, J. Bret Delone, M.D., at Defendant, Kunkel Surgical Group. 8. Defendant, J. Bret Delone, M.D., recommended to Plaintiff, Alberta M. Rogers, that she undergo surgery; and on May 30, 2002, he performed a vagotomy and antrectomy with Roux-en-Y 2 gastrojejunostomy at the Holy Spirit Hospital in Camp Hill, Cumberland County, Pennsylvania. 9. Despite assurances by Defendants that Plaintiff was doing well in her post-operative period, in the weeks subsequent to the surgery, Plaintiff, Alberta M. Rogers, experienced illness, severe problems in digesting foods and a loss of weight. Upon examination by her gastroenterologist, it was determined that she suffered from gastroparesis, had little or no spontaneous peristaltic activity, and had a large volume of retained food in the stomach. She was admitted to the hospital. 10. Plaintiff, Alberta M. Rogers, was then referred by her gastroenterologist to The Johns Hopkins Hospital in Baltimore, Maryland where, on January 28, 2003, surgeons, after determining that the gastroparesis was irreversible, performed a total gastrectomy (stomach removal) with an esophagojejunostomy and splenectomy (spleen removal) and created a "Hunt-Lawrence" pouch or artificial stomach. - 11. As a result of these procedures, Plaintiff, Alberta M. Rogers, is on a life-long post -gastrectomy diet, is malnourished, suffers from extreme weight loss and faticlue, has had to be fed and nourished through a feeding tube and IV therapy, has been repeatedly hospitalized for sepsis and other infections, continues to have abnormal blood test results and infections, and experiences abdominal pain and discomfort, severe nausea, and related symptoms. 3 Count I: Plaintiff Alberta M Rogers v J. Bret Delone. M.D 12. The allegations set forth in paragraphs 1 through 11 above are incorporated herein by reference as if fully set forth. 13. In treating Plaintiff, Alberta 114. Rogers, the Defendant, J. Bret Delone, M.D., was required to exercise the reasonable and ordinary care, skill and ability exercised by other members of his profession in the same or similar circumstances. 14. Defendant, J. Bret Delone, M.D., failed to exercise the reasonable and ordinary care, skill and ability exercised by other members of his profession in the same or similar circumstances in that he: a) negligently performed the vagotomy, antrectomy, and/or Roux-en-Y gastrojejunostomy on Plaintiff, Alberta M. Rogers, in such a manner as to cause the gastroparesis and/or delayed stomach emptying and necessitating the total gastrectomy and splenectomy; b) negligently performed the antrectomy on Plaintiff, Alberta M. Rogers, in such a manner as to remove more of the stomach than was necessary, thereby causing the gastroparesis and/or delayed stomach emptying and necessitating the total gastrectomy and splenectomy; C) negligently chose the method to be employed in treating plaintiff's condition and/or in performing the vagotomy, antrectomy, and/or Roux-en-Y gastrojejunostomy in such a manner as to cause the gastroparesis and/or delayed stomach emptying and necessitating the total gastrectomy and splenectomy; 4 d) failed to recognize that he had completely severed the vagus nerve and/or had removed more of the stomach than was necessary and to treat the gastroparesis and/or delayed stomach emptying properly and immediately; e) failed to recognize that the Roux-en-Y gastrojejunostomy was resulting in gastroparesis and/or delayed stomach emptying and to treat the gastroparesis and/or delayed stomach emptying properly and immediately; f) failed to properly perform, read, report, interpret and comprehend the reports, tests and procedures in connection with Plaintiff's surgery; g) failed to properly perform, read, report, interpret and comprehend the reports, tests and procedures in connection with Plaintiff's postoperative condition; h) failed to seek and obtain the advice and instruction of qualified specialists or their superiors in the field of gastroenterological surgery in connection with his treatment of Plaintiff Rogers; and i) failed to refer Plaintiff Rogers to the appropriate medical specialist: in the field of gastroenterological surgery who would have properly performed the surgery without causing gastroparesis and/or delayed stomach emptying and necessitating the total gastrec- tomy and splenectomy. 15. The negligence, carelessness and/or recklessness of Defendant, J. Bret Delone, M.D., was a substantial factor in causing the gastroparesis and the loss of the entire stomach and spleen of Plaintiff, Alberta M. Rogers, and subsequent complications and pain. 16. As a direct and proximate result of the negligent, 5 careless and/or reckless treatment of Plaintiff, Alberta M. Rogers, by Defendant, J. Bret Delone, M.D., Plaintiff Rogers was caused gastroparesis and/or delayed stomach emptying and the loss of her entire stomach and spleen and subsequent complications and pain. 17. As a further direct and proximate result of the negligent, careless and/or reckless treatment by Defendant, J. Bret Delone, M.D., the Plaintiff, Alberta M. Rogers, has been obligated to receive and undergo medical attention and care and to incur medical expenses, and will be obligated to continue to receive and undergo additional medical attention and care and to incur such additional medical expenses for an indefinite time in the future. 18. As a further direct and proximate result of the negligent, careless and/or reckless treatment by Defendant; J. Bret Delone, M.D., the Plaintiff, Alberta M. Rogers, has suffered physical pain and suffering, mental anguish and humiliation and will continue to so suffer for an indefinite time in the future. 19. As a further direct and proximate result of the negligent, careless and/or reckless treatment by Defendant, J. Bret Delone, M.D., the Plaintiff, Alberta M. Rogers, has suffered a loss of life's pleasures and will continue to so suffer for an indefinite time in the future. WHEREFORE, Plaintiff, Alberta M. Rogers, demands judgment against Defendant, J. Bret Delone, M.D., in an amount in excess of the compulsory arbitration limits, plus costs and interest as 6 provided by law. Count II: Plaintiff Alberta M. Rogers v. Defendant Kunkel Surgical Group: Vicarious Liability 20. The allegations set forth in paragraphs 1 through 19 above are incorporated herein by reference. 21. At all relevant times herein, the actual or ostensible agents, servants and/or employees of Defendant, Kunkel Surgical Group, including but not limited to Defendant, J. Bret Delone, M.D., were acting within the scope of their employment and agency with Defendant, Kunkel Surgical Group, in rendering negligent, careless and/or reckless treatment to Plaintiff, Alberta M. Rogers. 22. Defendant, Kunkel Surgical Group, is vicariously liable for the negligence, carelessness and/or recklessness of its actual or ostensible agents, servants and/or employees, including but not limited to Defendant, J. Bret Delone, M.D., who negligently, carelessly and/or recklessly rendered medical treatment to Plaintiff, Alberta M. Rogers. 23. The negligence, carelessness and/or recklessness of the actual or ostensible agents, servants and/or employees of Defendant, Kunkel Surgical Group, including but not limited to Defendant, J. Bret Delone, M.D., which is imputed to Defendant, Kunkel Surgical Group, was a substantial factor in causing the gastroparesis and the loss of the stomach and spleen of the Plaintiff, Alberta M. Rogers, and subsequent complications and 7 pain. 24. As a direct and proximate result of the negligent, careless and/or reckless treatment of Plaintiff, Alberta M. Rogers, which is imputed to Defendant, Kunkel Surgical Group, the Plaintiff Rogers was caused gastroparesis and the loss of her stomach and spleen and subsequent complications and pain. 25. As a further direct and proximate result of the negligent, careless and/or reckless treatment of Plaintiff, Alberta M. Rogers, which is imputed to Defendant., Kunkel Surgical Group, the Plaintiff Rogers has suffered those injuries and damages set forth above, which averments are incorporated herein by reference. WHEREFORE, Plaintiff, Alberta M. Rogers, demands judgment against Defendant, Kunkel Surgical Group, in an amount in excess of the compulsory arbitration limits, plus costs and interest as provided by law. Count III: Plaintiff Alberta M Roaex-s v. Defendant J Bret Delone, M.D.: Medical Battery/Lack of Informed Consent 26. The allegations set forth in paragraphs 1 through 25 above are incorporated herein by reference. 27. Defendant, J. Bret Delone, M.D.,, prior to performing the above referenced surgical procedures on Plaintiff, Alberta M. Rogers, had the duty to obtain her informed consent. 28. Defendant, J. Bret Delone, ]K.D. advised Plaintiff, 8 Alberta M. Rogers, to undergo a vagotomy and antrectomy with Roux- en-Y gastrojejunostomy. 29. Defendant, J. Bret Delone, M.D. never advised Plaintiff, Alberta M. Rogers, of the alternatives to the procedures he recommended and performed. 30. Defendant, J. Bret Delone, M.D., never advised Plaintiff, Alberta M. Rogers, of the risks of the procedures she was to undergo, including that she could suffer gastroparesis and/or delayed stomach emptying and that she may have to undergo a total gastrectomy and splenectomy. 31. The performance by Defendant, J. Bret Delone, M.D., of the vagotomy and antrectomy with Roux-en-Y gastrojejunostomy on Plaintiff, Alberta M. Rogers, was without her informed consent and constituted a battery on her person. 32. As a direct and proximate result of the battery committed on the person of Plaintiff, Alberta M. Rogers, by the Defendant, J. Bret Delone, M.D., the Plaintiff Rogers was caused gastroparesis and/or delayed stomach emptying and the loss of her entire stomach and spleen and subsequent complications and pain. 33. As a further direct and proximate result of the battery committed on the person of Plaintiff, Alberta M. Rogers, by the Defendant, J. Bret Delone, M.D., the Plaintiff Rogers has suffered those injuries and damages set forth above, which averments are incorporated herein by reference. 9 WHEREFORE, Plaintiff, Alberta M. Rogers, demands judgment against Defendant, J. Bret Delone, M.D., in an amount in excess of the compulsory arbitration limits, plus, costs and interest as provided by law. Count IV: Plaintiff James Rogers v Defendants: Loss of Consortium 34. The allegations set forth in paragraphs 1 through 33 above are incorporated herein by reference as if fully set forth. 35. At all relevant times herein, Plaintiff, James Rogers, and Plaintiff, Alberta M. Rogers, were lawfully and continuously married. 36. As a direct and proximate result. of the medical battery, lack of informed consent, negligence, carelessness and/or recklessness of Defendant, J. Bret Delone,, M.D., and of Defendant, Kunkel Surgery Group, as described in more detail above, the Plaintiff, James Rogers, has suffered a loss of consortium, society and companionship of his wife, the Plaintiff, Alberta M. Rogers. WHEREFORE, Plaintiff, James Rogers, demands judgment against Defendant, J. Bret Delone, M.D., and Defendant, Kunkel Surgery Group, in an amount in excess of the compulsory arbitration limits, plus costs and interest as provided by law. 10 RESPECTFULLY SUBMITTED: i - _ S Leslie M. Fields, Esquire I.D. Jo. 29411 COSTOPOULOS, FOSTER & FIELDS 831 Market Street/P.O. Box 222 Lemoyne, Pennsylvania 17043 Phone: (717) 761-2121 ATTORNEY FOR PLAINTIFFS DATED: 41-d L? Lolly 11 ALBERTA M. ROGERS AND JAMES ROGERS, HUSBAND AND WIFE, Plaintiffs V. J. BRET DELONE, M.D., AND KUNKEL SURGICAL GROUP, Defendants IN THE COURT OF COMMON PLEAS CUMBERLAT41D COUNTY, PENNSYLVANIA No. 04-946 CIVIL ACTION - LAW JURY TRIAL DEMANDED Certificate of Merit as to _ J. Bret Delone. M.D. Name of Defendant I, Leslie M. Fields. Esq. certify that: Attorney or Party [X ] 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 [ J the claim that this defendant deviated from an acceptable professional standard is based solely on allegations that other licensed professionals for whom this defendant is responsible deviated from an acceptable professional standard and an appropriate licensed professional has supplied a written statement to he undersigned that there is a basis to conclude that the care, skill or knowledge exercised or exhibited by the other licensed professionals in the treatment, practice or work that is the subject of the complaint, fell outside acceptable professional standards and that such conduct was a cause in bringing about the harm; OR [ ] expert testimony of an appropriate licensed professional is unnecessary for prosecution of the claim against this defendant. Date: G Z °? / v (Attome?y or Party) ALBERTA M.ROGERS AND JAMES ROGERS, HUSBAND AND WIFE, IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA Plaintiffs V. J. BRET DELONE, M.D., AND KUNKEL SURGICAL GROUP, Defendants No. 04-946 CIVIL ACTION - LAW JURY TRIAL DEMANDED Certificate of Merit as to Kunkel Surgical Group Name of Defendant I, Leslie M. Fields Esq. , certify that: Attorney or Party [ ] 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 [X ] the claim that this defendant deviated from an acceptable professional standard is based solely on allegations that other licensed professionals for whom this defendant is responsible deviated from an acceptable professional standard and an appropriate licensed professional has supplied a written statement to he undersigned that there is a basis to conclude that the care, skill or knowledge exercised or exhibited by the other licensed professionals in the treatment, practice or work that is the subject of the complaint, fell outside acceptable professional standards and that such conduct was a cause in bringing about the harm; OR [ ] expert testimony of an appropriate licensed professional is unnecessary for prosecution of the claim against this defendant. Date:_ , ?r tto y or Party) VERIFICATION I, Plaintiff, Alberta M. Rogers, do hereby verify-that the statements made in the foregoing document are true and correct to the best of my information and belief. I understand that false statements made herein are subject to the penalties at 18 Pa.C.S.A. 4904 relating to unsworn falsification to authorities. BY : ?9 Q?aa? A Alberta M. Roge DATED: S\5\b? VERIFICATION I, Plaintiff, James Rogers, do hereby verify that the statements made in the foregoing document are true and correct to the best of my information and belief. I understand that false statements made herein are subject to the penalties at 18 Pa.C.S.A. 4904 relating to unsworn falsification to authorities. BY: / J mes Rogers `J DATED: S-S-Oq CERTIFICATE OF SERVICE I, Leslie M. Fields, Esquire, hereby certify that on this 7" day of May 2004, a true and correct copy of the foregoing Plaintiffs, Complaint was served upon all counsel of record by: Hand Delivery X First Class Mail, Postage Pre-Paid Certified Mail, Return Receipt Requested Fax Transmission Overnight Mail at the following address(es) and/or number(s): Evan Black, Esquire I.D. 17884 THOMAS, THOMAS & HAFER, LLP 305 North Front Street P.O. Box 999 Harrisburg, PA 17108 Counsel for Defendants I Bret Delone and Kunkel Surgical Croup COSTOPOULOS, 170STER & FIELDS Leslie M. Fields, Esquire CERTIFICATE OF SERVICE I, Ashleigh E. Anglemeyer, an employee of the law offices of Thomas, Thomas & Hafer, LLP, do hereby certify that I served a true and correct copy of PRELIMINARY OBJECTIONS TO PLAINTIFFS' COMPLAINT upon the following persons via United States mail, first class, postage prepaid, as follows: Leslie M. Fields, Esq. 831 Market Street P.O. Box 222 Lemoyne, PA 17043 Attorneys for Plaintiffs ?i Date: May 26, 2004 Ashleigh k. Angleme ca 0 a 'Il T rn iJ T .. 4 THOMAS, THOMAS B HAFER, LLP 305 North Front Street P.O. Box 999 Harrisburg, PA 17108 EVAN BLACK, ESQ. Attorney I. D. 17884 (717) 441-7051 Attorney for Defendants J. Bret Delone, M.D. and Kunkel Surgical Group Commonwealth of Pennsylvania County of Cumberland Alberta Rogers and James Rogers Husband and Wife Plaintiff V. J. Bret Delone, M.D., and Kunkel Surgical Group Defendant No. 04-0946 CIVIL ACTION - LAW JURY TRIAL DEMANDED CERTIFICATE PREREQUISITE TO SERVICE OF A SUBPOENA PURSUANT TO RULE 4009.22 As a prerequisite of a subpoena for documents and things pursuant to Rule 4009.22, Defendant certifies that: (1) a Notice of Intent to serve the Subpoenas with a copy of the Subpoenas attached thereto was mailed to each party on May 20, 2004; (2) a copy of the Notice of Intent, including the proposed Subpoenas, is attached to this certificate; (3) opposing counsel waived the twenty (20)-day notice period by telephone dated May 24, 2004; and (4) the Subpoenas which will be served are identical to the Subpoenas which are attached to the Notice of Intent to serve the Subpoenas. THOMAS, THOMAS & HAFER, LLP Date: 5 zl Icy _? Evan Black, Esq. Attorney for Defendants J Bret Delone, MD. & Kunkel Surgical Group THOMAS, THOMAS & HAFER, LLP 305 North Front Street P.O. Box 999 Harrisburg, PA 17108 EVAN BLACK, ESQ. Attorney I.D. 17884 (717)441-7051 Attorney for Defendants J. Bret Delone, M.D. and Kunkel Surgical Group Commonwealth of Pennsylvarda County of Cumberland Alberta Rogers and James Rogers Husband and Wife Plaintiff V. J. Bret Delone, M.D., and Kunkel Surgical Group Defendant No. 04-0946 CIVIL ACTION - LAW JURY TRIAL DEMANDED NOTICE OF INTENT TO SERVE SUBPOENAS TO PRODUCE DOCUMENTS AND THINGS FOR DISCOVERY PURSUANT TO RULE 4009.2.1 TO: Plaintiff and Counsel for Parties of Record Defendants J. Bret Delone, M.D. & Kunkel Surgical Group intend to serve the Subpoenas identical to the ones 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 objections to the subpoenas. If no objection is made, the Subpoenas lnay be served. THOMAS, THOMAS & HAFER, LLP Date: , 20 . D Evan l?laelc, Esq. Commonwealth of Pennsylvania County of Cumberland Alberta Rogers and James Rogers Husband and Wife Plaintiff V. J. Bret Delone, M.D., and Kunkel Surgical Group Defendant No. 04-0946 CIVIL ACTION - LAW JURY TRIAL DEMANDED SUBPOENA TO PRODUCE DOCUMENTS OR THINGS FOR DISCOVERY PURSUANT TO RULE 4009.22 TO: Jackson Gastroenterology 423 N. 21" Street, Suite 100 Camp Hill, PA 17011 Within twenty (20) days after service of this subpoena, you Eire ordered by the court to produce the following documents or things: Complete copies of any and all medical records prior to 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: Evan Black, Esquire ADDRESS: P.O. Box 999, Harrisburg, PA 17108-0999 TELEPHONE: (717) 441-7053 SUPREME COURT ID#: 17884 ATTORNEY FOR: Defendant J. Bret Delone, M.D. & Kunkel Surgical Group BY THE COURT: DATE: Seal of the Court Prothonotary/Clerk, Civil Division Deputy CERTIFICATE OF SERVICE I, Miriam L. Hogan, an employee of the law offices of Thomas, Thomas & Hafer, LLP, do hereby certify that I served a true and correct copy of the foregoing document upon the following persons via United States mail, first class, postage prepaid, as follows: Leslie M. Fields, Esq. 831 Market Street P.O. Box 222 Lemoyne, PA 17043 Date: S 11-2. a-/04 hl N "? _ f 4 o? v\j Miriam L. Hogan CERTIFICATE OF SERVICE; I, Miriam L. Hogan, an employee of the law offices of Thomas, Thomas & Hafer, LLP, do hereby certify that I served a true and correct copy of the foregoing document upon the following persons via United States mail, first class, postage prepaid, as follows: Leslie M. Fields, Esq. 831 Market Street P.O. Box 222 Lemoyne, PA 17043 Date: S/22 /04 L•-g Miriam L. Hogan l- Cj -r r r `, T T .. . J - n !' ? Ull Q THOMAS, THOMAS a HAFER, LLP 305 North Front Street P.O. Box 999 Harrisburg, PA 17108 EVAN BLACK, ESQ. Attorney I.D. 17884 (717) 441-7051 Attorney for Defendants J. Bret Delone, M.D. and Kunkel Surgical Group Commonwealth of Pennsylvania County of Cumberland Alberta Rogers and James Rogers Husband and Wife Plaintiff V. J. Bret Delone, M.D., and Kunkel Surgical Group Defendant No. 04-0946 CIVIL ACTION - LAW JURY TRIAL DEMANDED CERTIFICATE PREREQUISITE TO SERVICE OF A SUBPOENA PURSUANT TO RULE 4009.22 As a prerequisite of a subpoena for documents and things pursuant to Rule 4009.22, Defendant certifies that: (1) a Notice of Intent to serve the Subpoenas with a copy of the Subpoenas attached thereto was mailed to each party on June 4, 2004; (2) a copy of the Notice of Intent, including the proposed Subpoenas, is attached to this certificate; (3) opposing counsel waived the twenty (20)-day notice period by telephone dated June 7, 2004; and (4) the Subpoenas which will be served are identical to the Subpoenas which are attached to the Notice of Intent to serve the Subpoenas. / THOMAS, THOMAS & HAFER, LLP Date: - Evan Black, Esq. Attorney for Defendants J. Bret Delone, M.D. & Kunkel Surgical Group THOMAS, THOMAS & HAFER, LLP 305 North Front Street P.O. Box 999 Harrisburg, PA 17108 EVAN BLACK, ESQ. Attorney I.D. 17884 (717) 441-7051 Attorney for Defendants J. Bret Delone, M.D. and Kunkel Surgical Group Commonwealth of Pennsylvania County of Cumberland Alberta Rogers and James Rogers Husband and Wife Plaintiff V. J. Bret Delone, M.D., and Kunkel Surgical Group Defendant No. 04-0946 CPvrIL ACTION - LAW J-UEtY TRIAL DEMANDED NOTICE OF INTENT TO SERVE SUBPOENAS TO PRODUCE DOCUMENTS AND THINGS FOR DISCOVERY PURSUANT TO RULE 4009.2.1 TO: Plaintiff and Counsel for Parties of Record Defendants J. Bret Delone, M.D. & Kunkel Surgical Group intend to serve the Subpoenas identical to the ones 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 objections to the subpoenas. If no objection is made, the Subpoenas may be served. THOMAS, THOMAS & HAFER, LLP Date: o ?' Evan Black, Esq. Commonwealth of Pennsylvania County of Cumberland Alberta Rogers and James Rogers Husband and Wife Plaintiff V. J. Bret Delone, M.D., and Kunkel Surgical Group Defendant Evan Black, Esquire P.O. Box 999, Harrisburg, PA 17108-0999 (717) 441-7053 17884 SUBPOENA TO PRODUCE DOCUMENTS OR THINGS FOR DISCOVERY PURSUANT TO RULE 4009.22 TO: Roger B. Gustavson, M.D. 890 Poplar Church Road, #508 Camp Hill, PA 17011 Within twenty (20) days after service of this subpoena, you are ordered by the court to produce the following documents or things: Complete copies of any and all medical records, 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: ADDRESS: TELEPHONE: SUPREME COURT ID#: ATTORNEY FOR: DATE: Defendant J. Bret Delone, M.D. & Kunkel Surgical Group No. 04-0946 CIVIL ACTION - LAW JURY TRIAL DEMANDED BY THE COURT: Seal of the Court Prothonotary/Clerk, Civil Division Deputy Commonwealth of Pennsylvania County of Cumberland Alberta Rogers and James Rogers Husband and Wife Plaintiff V. J. Bret Delone, M.D., and Kunkel Surgical Group Defendant No. 04-0946 CIVIL ACTION - LAW JURY TRIAL DEMANDED SUBPOENA TO PRODUCE DOCUMENTS OR THINGS FOR DISCOVERY PURSUANT TO RULE 4009.22 TO: Grandview Surgery & Laser Center at Camp Hill 205 Grandview Avenue Camp Hill, PA 17011 Within twenty (20) days after service of this subpoena, you are ordered by the court to produce the following documents or things: Complete copies of any and all medical records, 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: Evan Black, Esquire ADDRESS: P.O. Box 999, Harrisburg, PA 17108-0999 TELEPHONE: (717) 441-7053 SUPREME COURT ID#: 17884 ATTORNEY FOR: Defendant J. Bret Delone, M.D. & Kunkel Surgical Group BY THE COURT DATE: Seal of the Court Prothonotary/Clerk, Civil Division Deputy Commonwealth of Pennsylvania County of Cumberland Alberta Rogers and James Rogers Husband and Wife Plaintiff V. J. Bret Delone, M.D., and Kunkel Surgical Group Defendant No. 04-0946 CIVIL ACTION - LAW JURY TRIAL DEMANDED SUBPOENA TO PRODUCE DOCUMENTS OR THINGS FOR DISCOVERY PURSUANT TO RULE 4009.22 TO: Apria Healthcare 405 St. Johns Church Road Mechanicsburg, PA 17050 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: Evan Black, Esquire ADDRESS: P.O. Box 999, Harrisburg, PA 17108-0999 TELEPHONE: (717) 441-7053 SUPREME COURT ID#: 17884 ATTORNEY FOR: Defendant J. Bret Delone, M.D. & Kunkel Surgical Group BY THE COURT: DATE: Seal of the Court Prothonol:ary/Clerk, Civil Division Deputy Within twenty (20) days after service of this subpoena, you are ordered by the court to produce the following documents or things: Complete copies of any and all medical records or other CERTIFICATE OF SERVICE I, Miriam L. Hogan, an employee of the law offices of Thomas, Thomas & Hafer, LLP, do hereby certify that I served a true and correct copy of the foregoing document upon the following persons via United States mail, first class, postage prepaid, as follows: Leslie M. Fields, Esq. 831 Market Street P.O. Box 222 Lemoyne, PA 17043 Date: 6/ / 04 ? U t; c , - .L . 14 , c Miriam L. Hogan CERTIFICATE OF SERVICE I, Miriam L. Hogan, an employee of the law offices of Thomas, Thomas & Hafer, LLP, do hereby certify that I served a true and correct copy of the foregoing document upon the following persons via United States mail, first class, postage prepaid, as follows: Leslie M. Fields, Esq. 831 Market Street P.O. Box 222 Lemoyne, PA 17043 Date: B'/ g /04?? Miriam L. Hogan r-> ;'l : -e C? ?o '1"1 y .-1 i??Y' ? i f:? --' -.. _ rl ii ? _` .._) 1 THOMAS, THOMAS a HAFER, LLP 305 North Front Street P.O. Box 999 Harrisburg, PA 17108 EVAN BLACK, ESQ. Attorney I.D. 17884 (717) 441.7051 Attorney for Defendants J. Bret Detone, M.D. and Kunkel Surgicat Group Commonwealth of Pennsylvania County of Cumberland Alberta Rogers and James Rogers Husband and Wife Plaintiff V. J. Bret Delone, M.D., and Kunkel Surgical Group Defendant No. 04-0946 CIVIL ACTION - LAW JURY TRIAL DEMANDED CERTIFICATE PREREQUISITE TO SERVICE OF A SUBPOENA PURSUANT TO RULE 4009.22 As a prerequisite of a subpoena for documents and things pursuant to Rule 4009.22, Defendant certifies that: (1) a Notice of Intent to serve the Subpoenas with a copy of the Subpoenas attached thereto was mailed to each party on June 22, 2004; (2) a copy of the Notice of Intent, including the proposed Subpoenas, is attached to this certificate; (3) opposing counsel waived the twenty (20)-day notice period by telephone dated June 23, 2004; and (4) the Subpoenas which will be served are identical to the Subpoenas which are attached to the Notice of Intent to serve the Subpoenas. THOMAS, GAS & AAFER, LLP Date: / j VO Evan Black, Esq. Attorney for Defendants J. Bret Delone, M.D. & Kunkel Surgical Group THOMAS, THOMAS & HAFER, LLI ATTORNEYS AT LAW 305 North Front Street, P.O. Box 999, Harrisburg, PA 17108 Phone: (717) 237-7100 Fax: (717) 237-7105 -"Y1 www.tthlawxom Miriam L. Hogan, Paralegal (717) 237-7111 mhogan@tthlaw.com June 22, 2004 Leslie M. Fields, Esq. 831 Market Street P.O. Box 222 Lemoyne, PA 17043 Re: Ro¢ers v. Delone TT&H File No. 355-40647 Dear Attorney Fields: Enclosed please find a Notice of Intent to Serve Subpoenas for additional records from the following providers: Hematology and Medical Oncology, Susquehanna Surgeons, Susquehanna Internal Medicine Associates, Magnetic Imaging Center and updates from Holy Spirit Hospital. Kindly inform our office if you are willing to waive the twenty day (20) notice period. If you have any questions, please do not hesitate to contact me. Thank you. Sincerely yours, THOMAS, THOMAS & HAFER, LLP v Miriam L. Hogan MLH/Enclo sures: 287577v.7 Lehigh Valley Office: 3400 Bath Pike, Suite 302, Bethlehem, PA 18017 • Phone: (610) 868-1675 • Fax: (610) 868-1702 THOMAS, THOMAS S HAFER, LLP 305 North Front Street P.o. Box 999 Harrisburg, PA 17108 EVAN BLACK, ESQ. Attorney I.D. 17884 (717)441-7051 Attorney for Defendants J. Bret Delone, M.D. and Kunkel Surgical Group Commonwealth of Pennsylvania County of Cumberland Alberta Rogers and James Rogers Husband and Wife Plaintiff V. J. Bret Delone, M.D., and Kunkel Surgical Group Defendant No. 04-0946 C]VIL ACTION - LAW JURY TRIAL DEMANDED NOTICE OF INTENT TO SERVE SUBPOENAS TO PRODUCE DOCUMENTS AND THINGS FOR DISCOVERY PURSUANT TO RULE 4009.21 TO: Plaintiff and Counsel for Parties of Record Defendants J. Bret Delone, M.D. & Kunkel Surl; cal Group intend to serve the Subpoenas identical to the ones 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 objections to the subpoenas. If no objection is made, the Subpoenas may be served. THOMAS, THOMAS & HAFER, LLP Date: Evan Black, Esq. Commonwealth of Pennsylvania County of Cumberland Alberta Rogers and James Rogers Husband and Wife Plaintiff V. J. Bret Delone, M.D., and Kunkel Surgical Group Defendant No. 04-0946 CIVIL ACTION - LAW JURY TRIAL DEMANDED SUBPOENA TO PRODUCE DOCUMENTS OR THINGS FOR DISCOVERY PURSUANT TO RULE 4009.22 TO: Holy Spirit Hospital Harrisburg, PA 17101 Within twenty (20) days after service of this subpoena, you are ordered by the court to produce the following documents or things: Copies of all Abstracts Prior to June 2002, a coma/ete 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: Evan Black, Esquire ADDRESS: P.O. Box 999, Harrisburg, PA 17108-0999 TELEPHONE: (717) 441-7053 SUPREME COURT ID#: 17884 ATTORNEY FOR: Defendant J. Bret Delone, M.D. & Kunkel Surgical Group BY THE COURT: DATE: Seal of the Court Prothonotary/Clerk, Civil Division Deputy Commonwealth of Pennsylvania Cumberland Alberta Rogers and James Rogers County of Husband and Wife Plaintiff V. No. 04-0946 CIVIL ACTION - LAW J. Bret Delone, M.D., and Kunkel Surgical Group JURY TRIAL DEMANDED Defendant SUBPOENA TO PRODUCE DOCUMENTS OR THINGS FOR DISCOVERY PURSUANT TO RULE 4009.22 TO: Magnetic Imaging Center 4665 E. Trindle Road Mechanicsburg, PA 17050-3640 Within twenty (20) days after service of this subpoena, you are ordered by the court to produce the following documents or things: Complete copies of anv and an mad!,-, .e ., 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: Evan Black, Esquire ADDRESS: P.O. Box 999, Harrisburg, PA 17108-0999 TELEPHONE: (717) 441-7053 SUPREME COURT ID#: 17884 ATTORNEY FOR: Defendant J. Bret Delone, M.D. & Kunkel Surgical Group BY THE COURT: DATE: Seal of the Court Prothonotary/Clerk, Civil Division Deputy Commonwealth of Pennsylvania County of Cumberland Alberta Rogers and James Rogers Husband and Wife Plaintiff V. No. 04-0946 CIVIL ACTION - LAW J. Bret Delone, M.D., and Kunkel Surgical Group JURY TRIAL DEMANDED Defendant SUBPOENA TO PRODUCE DOCUMENTS OR THINGS FOR DISCOVERY PURSUANT TO RULE 4009.22 TO: Susquehanna Surgeons 840 Sir Thomas Court Harrisburg, PA 17109-4839 Within twenty (20) days after service of this .subpoena, the following documents or things: Complete cop Harrisburg, PA 17108-0999. are ordered by the court to produce 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: Evan Black, Esquire ADDRESS: P.O. Box 999, Harrisburg, PA '17108-0999 TELEPHONE: (717) 441-7053 SUPREME COURT ID#: 17884 ATTORNEY FOR: Defendant J. Bret Delone, M.D. & Kunkel Surgical Group BY THE COURT DATE: Seal of the Court Prothonotary/Clerk, Civil Division Deputy Commonwealth of Pennsylvania County of Cumberland Alberta Rogers and James Rogers Husband and Wife Plaintiff V. No. 04-0946 CIVIL ACTION - LAW J. Bret Delone, M.D., and Kunkel Surgical Group JURY TRIAL DEMANDED Defendant SUBPOENA TO PRODUCE DOCUMENTS OR THINGS FOR DISCOVERY PURSUANT TO RULE 4009.22 TO: Susquehanna Internal Medicine Associates 890 Poplar Church Road, Ste. 508 Camp Hill, PA 17011-2200 Within twenty (20) days after service of this subpoena, you are ordered by the court to produce the following documents or things: Complete copies of any and all medical records, 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: ADDRESS: TELEPHONE: SUPREME COURT ID#: ATTORNEY FOR: Evan Black, Esquire P.O. Box 999, Harrisburg, PA 17108-0999 (717) 441-7053 17884 Defendant J. Bret Delone, M.D. & Kunkel Surgical Group BY THE COURT: DATE: Seal of the Court Prothonotary/Clerk, Civil Division Deputy Commonwealth of Pennsylvania County of Cumberland Alberta Rogers and James Rogers Husband and Wife Plaintiff V. No. 04-0946 CIVIL ACTION - LAW J. Bret Delone, M.D., and Kunkel Surgical Group JURY TRIAL DEMANDED Defendant SUBPOENA TO PRODUCE DOCUMENTS OR THINGS FOR DISCOVERY PURSUANT TO RULE 4009.22 TO: Hematology & Medical Oncology Trindle Road Camp Hill, PA 17011 Within twenty (20) days after service of this subpoena, the following documents or things: Complete cop 2669: DOB: 619/1937 at: T I Harrisburg. PA 17108-0999. are ordered by the court to produce 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: Evan Black, Esquire ADDRESS: P.O. Box 999, Harrisburg, PA 17108-0999 TELEPHONE: (717) 441-7053 SUPREME COURT ID#: 17884 ATTORNEY FOR: Defendant J. Bret Delone, M.D. & Kunkel Surgical Group BY THE COURT DATE: Seal of the Court Prothonotary/Clerk, Civil Division Deputy CERTIFICATE OF SERVICE I, Miriam L. Hogan, an employee of the law offices of Thomas, Thomas & Hafer, LLP, do hereby certify that I served a true and correct copy of the foregoing document upon the following persons via United States mail, first class, postage prepaid, as follows: Leslie M. Fields, Esq. 831 Market Street P.O. Box 222 Lemoyne, PA 17043 Date: 6/? /04 Miriam L. Hogan CERTIFICATE OF SERVICE I, Miriam L. Hogan, an employee of the law offices of Thomas, Thomas & Hafer, LLP, do hereby certify that I served a true and correct copy of the foregoing document upon the following persons via United States mail, first class, postage prepaid, as follows: Leslie M. Fields, Esq. 831 Market Street P.O. Box 222 Lemoyne, PA 17043 Date: 6/ 104 ?"`- 1-. 41° Miriam L. Hogan c-' ? n co s T ;- .? '1. -?. ? ? ?? ` J`•? 1 J ? i ? ? ' ^l r? ?. 1 '? -J - THOMAS, THOMAS & HAFER, LLP 305 North Front Street P.O. Box 999 Harrisburg, PA 17108 EVAN BLACK, ESQ. Attorney I.D. 17884 STEPHANIE L. HERSPERGER, ESQ. Attorney I.D. 78735 (717) 441-7051 Attorneys for Defendants J. Bret Delone, M.D. and Kunkel Surgical Group Commonwealth of Pennsylvania County of Cumberland Alberta Rogers and James Rogers Husband and Wife Plaintiffs V. No. 04-0946 CIVIL ACTION - LAW J. Bret Delone, M.D., and Kunkel Surgical, TRIAL DEMANDED Group ' Defendants TO: Prothonotary of Cumberland County Please list this matter for the next Argument Court. PRAEC WE TO LIST CASE FOR ARGUMENT 1. Matter to be argued: Preliminary Objections of Defendants J. Bret DeLone., M.D. and Kunkel Surgical Group to Plaintiffs' Complaint 2. Identify counsel who will argue case: (a) For Plaintiff: Leslie M. Fields, Esq. 831 Market Street P.O. Box 222 Lemoyne, PA 17043 For Defendants: Stephanie L. Hersperger THOMAS, THOMAS & HAFER, LLP P.O. Box 999 Harrisburg, PA 17108-0999 3. I will notify all parties in writing within two days that this case has been listed for argument. 4. Argument Court Date: Date: July 21, 2004 Attorney r Defendants {-i N c? ._, r-. -? -ij C,.. _y i- ? :'j T :\1 ? ? - ' > i' J ?_? ? i` -t (J}? THOMAS, THOMAS a HAFER, LLP 305 North Front Street P.O. Box 999 Harrisburg, PA 17108 EVAN BLACK, ESQ. Attorney I.D. 17884 (717) 441-7051 Attorney for Defendants J. Bret Delone, M.D. and Kunket Surgical Group Commonwealth of Pennsylvania County of Cumberland Alberta Rogers and James Rogers Husband and Wife Plaintiff V. J. Bret Delone, M.D., and Kunkel Surgical Group Defendant No. 04-0946 CIVIL ACTION - LAW JURY TRIAL DEMANDED CERTIFICATE PREREQUISITE TO SERVICE OF A SUBPOENA PURSUANT TO RULE 4009.22 As a prerequisite of a subpoena for documents and things pursuant to Rule 4009.22, Defendant certifies that: (1) a Notice of Intent to serve the Subpoenas with a copy of the Subpoenas attached thereto was mailed to each party on September 23, 2003; (2) a copy of the Notice of Intent, including the proposed Subpoenas, is attached to this certificate; and (3) the Subpoenas which will be served are identical to the Subpoenas which are attached to the Notice of Intent to serve the Subpoenas. THOMAS, THOMAS & HAFER, LLP 1 Date: (< l s o ?I Evan lack, Esq. Attorney for Defendants J. Bret Delone, M.D. & Kunkel Surgical Group THOMAS, THOMAS & HAFER. LLP ATTORNEYS AT LAW 305 North Front Street, P.O. Box 999, Harrisburg, PA 17108 Phone: (717) 237-7100 Fax: (717) 237-7105 1?1 www.tthlaw.com Miriam L. Hogan, Paralegal (717) 237-7111 mhogan@tthlaw.com Leslie M. Fields, Esq. 831 Market Street P.O. Box 222 Lemoyne, PA 17043 Re: Rogers v. Delone TT&H File No. 355-40647 Dear Attorney Fields: September 23, 2004 Enclosed please find a Notice of Intent to Serve a Subpoena for updated records from Holy Spirit Hospital. Kindly inform our office if you are willing to waive the twenty day (20) notice period. If you have any questions, please do not hesitate to contact me. Thank you. Sincerely yours, MLH/Enclosures: 287577x.14 THOMAS, THOMAS & HAFER, LLP Miriam L. Hogan Lehigh Valley Office: 3400 Bath Pike, Suite 302, Bethlehem, PA 18017 • Phone: (610) 868-1675 • Fax: (610) 868-1702 THOMAS, THOMAS & HAFER LLP 305 North Front Street P.O. Box 999 Harrisburg, PA 17108 EVAN BLACK, ESQ. Attorney I.D. 17884 (717) 441-7051 Attorney for Defendants 1. Bret Delone, M.D. and Kunkel Surgical Group Commonwealth of Pennsylvania County of Cumberland Alberta Rogers and James Rogers Husband and Wife Plaintiff V. J. Bret Delone, M.D., and Kunkel Surgical Group Defendant No. 04-0946 CIVIL ACTION - LAW JT.RY TRIAL DEMANDED NOTICE OF INTENT TO SERVE SUBPOENAS TO PRODUCE DOCUMENTS AND THINGS FOR DISCOVERY PURSUANT TO RULE 4009.21 TO: Plaintiff and Counsel for Parties of Record Defendants J. Bret Delone, M.D. & Kunkel Surgical Group intend to serve the Subpoenas identical to the ones 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 objections to the subpoenas. If no objection is made, the Subpoenas may be served. THOMAS, THOMAS & HAFER, LLP Date: q A110,.i Evan Black, Esq. Commonwealth of Pennsylvania County of Cumberland Alberta Rogers and James Rogers Husband and Wife Plaintiff V. No. 04-0946 CIVIL ACTION - LAW J. Bret Delone, M.D., and Kunkel Surgical Group JURY TRIAL DEMANDED Defendant SUBPOENA TO PRODUCE DOCUMENTS OR THINGS FOR DISCOVERY PURSUANT TO RULE 4009.22 TO: Holy Spirit Hospital Harrisburg, PA 17101 Within twenty (20) days after service of this subpoena, you are ordered by the court to produce the following documents or things: a complete copy of the admission bated 513!104 ana Thomas. 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 parry 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: Evan Black, Esquire ADDRESS: P.O. Box 999, Harrisburg, PA 17108-0999 TELEPHONE: (717) 441-7053 SUPREME COURT ID#: 17884 ATTORNEY FOR: Defendant J. Bret Delone, M.D. &. Kunkel Surgical Group BY THE COURT DATE: Seal of the Court Prothonotary/Clerk, Civil Division Deputy CERTIFICATE OF SERVICE I, Miriam L. Hogan, an employee of the law offices of Thomas, Thomas & Hafer, LLP, do hereby certify that I served a true and correct copy of the foregoing document upon the following persons via United States mail, first class, postage prepaid, as follows: Leslie M. Fields, Esq. 831 Market Street P.O. Box 222 Lemoyne, PA 17043 Date: 9/ate /04 tiA,4!d-kLr Z. 9?'jc?-- Miriam L. Hogan U CERTIFICATE OF SERVICE I, Miriam L. Hogan, an employee of the law offices of Thomas, Thomas & Hafer, LLP, do hereby certify that I served a true and correct copy of the foregoing document upon the following persons via United States mail, first class, postage prepaid, as follows: Leslie M. Fields, Esq. 831 Market Street P.O. Box 222 Lemoyne, PA 17043 Date: 10/ (S /04 Y 1 Miriam L .'Hogan ALBERTA M. ROGERS and JAMES ROGERS, Husband and Wife V. 3. BRET DELONE, M.D., and KUNKEL SURGICAL GROUP IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 2004-0946 CIVIL TERM ORDER OF COURT AND NOW, this 19T" day of OCTOBER, 2004, alter reviewing the briefs filed by the parties, and having heard argument thereon, it is hereby ordered and directed as follows: punitiv Defendant's Preaintiff having ary Objections agreed rethat it queting will thnot be at the '?allegations of a damages, recklessness" be stricken, is DENIED. 2.) Defendant's Preliminary Objection in the nature of a demurrer citing Plaintiff's failure to plead the precise technical requirements of a lack of informed consent claim is GRANTED. Plaintiff is given twenty (20) days to amend its pleading accordingly. 3.) The remainder of Defendant's Preliminary Objections vl'eslie M. Fields, Esquire 831 Market Street P.O. Box 222 Lemoyne, Pa. 17043 y 'van Black, Esquire Stephanie L. Hersperger, Esquire 305 North Front Street P.O. Box 999 Harrisburg, Pa. 17108 Edward E. Guido, J. io zo a? 11'4}j 4 y.. ALBERTA M. ROGERS AND IN THE COURT OF COMMON PLEAS JAMES ROGERS, HUSBAND AND CUMBERLAND COUNTY, PENNSYLVANIA WIFE, Plaintiffs V. No. 2004-946 CIVIL TERM J. BRET DELONE, M.D., AND CIVIL ACTION - LAW KUNKEL SURGICAL GROUP, Defendants JURY TRIAL DEMANDED NOTICE TO DEFEND YOU HAVE BEEN SUED IN COURT. If you wish to defend against the claims set forth in the following pages, you must take action within twenty (20) days after this Complaint and Notice are served, by entering a written appearance personally or by attorney and filing in writing with the Court your defenses or objections to the claims set forth against you. You are warned that if you fail to do so the case may proceed without you and a judgment may be entered against you by the Court without further notice for any money claimed in the Complaint or for any other claim or relief requested by the Plaintiff(s). You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW. THIS OFFICE CAN PROVIDE YOU WITH INFORMATION ABOUT HIRING A LAWYER. IF YOU CANNOT AFFORD TO HIRE A LAWYER, THIS OFFICE MAY BE ABLE TO PROVIDE YOU WITH INFORMATION ABOUT AGENCIES THAT MAY OFFER LEGAL SERVICES TO ELIGIBLE PERSONS AT A REDUCED FEE OR NO FEE. Cumberland County Bar Association 35 South Bedford Street Carlisle, Pennsylvania 17013 Phone: (717) 249-3166 ALBERTA M. ROGERS AND IN THE COURT OF COMMON PLEAS JAMES ROGERS, HUSBAND AND CUMBERLAND COUNTY, PENNSYLVANIA WIFE, Plaintiffs V. No. 2004-946 CIVIL TERM J. BRET DELONE, M.D., AND CIVIL ACTION - LAW KUNKEL SURGICAL GROUP, Defendants JURY TRIAL DEMANDED PLAINTIFFS' AMENDED COMPLAINT AND NOW come the Plaintiffs, Alberta M. Rogers and James Rogers, husband and wife, by and through their attorney, Leslie M. Fields, Esquire, COSTOPOULOS, FOSTER & FIELDS, and respectfully represent as follows in support of this Amended Complaint: Parties 1. Plaintiffs, Alberta M. Rogers and James Rogers, husband and wife, are adult individuals residing at R.D. 4, Box 4278, Duncannon, Perry County, Pennsylvania 17020. 2. Defendant, J. Bret Delone, M.D., is and at all times hereinafter referred to was, a physician duly licensed to practice his profession as provided by the laws of the Commonwealth of Pennsylvania and engaged in the practice of his profession with Defendant, Kunkel Surgical Group, with his main place of business located at 809 Poplar Church Road, Suite 210, Camp Hill, Cumberland County, Pennsylvania 17011. 3. Defendant, Kunkel Surgical Group, is and at all times hereinafter was a corporation duly organized and licensed under the 1 laws of the Commonwealth of Pennsylvania and engaged in the business of operating a medical clinic with its main place of business located at 809 Poplar Church Road, Suite 219, Camp Hill, Cumberland County, Pennsylvania 17011. 4. At all relevant times herein, Defendant, J. Bret Delone, M.D., was an actual or ostensible agent, servant and/or employee of Defendant, Kunkel Surgical Group. General Alleqations 5. At all relevant times herein, Plaintiff, Alberta M. Rogers, relied upon the professional judgment, ability and knowledge of Defendant, J. Bret Delone, M.D., who in turn was acting individually and as an actual or ostensible agent, servant and/or employee of Defendant, Kunkel Surgical Group. 6. In the spring and summer of 2000, Plaintiff, Alberta M. Rogers, who was suffering from extreme abdominal pain and discomfort, was diagnosed with active peptic ulcer disease in the gastric antrum and was placed on a course of treatment of medications. 7. However, Plaintiff, Alberta M. Rogers, did not respond to the medical therapy and, by the spring of 2002, her gastroenterologist referred her to Defendant, J. Bret Delone, M.D., at Defendant, Kunkel Surgical Group. 8. Defendant, J. Bret Delone, M.D., recommended to Plaintiff, Alberta M. Rogers, that she undergo a partial gastrectomy (stomach 2 removal), vagotomy and antrectomy; she agreed; and the surgery was performed by him on May 30, 2002 at the Holy Spirit Hospital in Camp Hill, Cumberland County, Pennsylvania. 9. In the months subsequent to the surgery, however, Plaintiff, Alberta M. Rogers, continued to experience severe problems in digesting foods and a loss of weight and, upon examination, it was discovered that she suffered from gastroparesis (stomach paralysis) with a large volume of retained food in the stomach causing infection. 10. Plaintiff, Alberta M. Rogers, was then referred by her gastroenterologist to The Johns Hopkins Hospital in Baltimore, Maryland where, on January 28, 2003, surgeons, after determining that the gastroparesis was irreversible, performed a total gastrectomy (stomach removal) with an esophagojejunostomy and splenectomy (spleen removal) and created a "Hunt-Lawrence" pouch or artificial stomach. 11. As a result of these procedures, Plaintiff, Alberta M. Rogers, is on a life-long post-gastrectomy diet, has had to be fed and nourished through a feeding tube and IV therapy, continues to lose weight, has been repeatedly hospitalized for sepsis from PICC line infections, and experiences post-operative abdominal pain and discomfort, severe nausea, vomiting and related symptoms. Count I: Plaintiff Alberta M. Rogers v. J. Bret Delone, M.D. 12. The allegations set forth in paragraphs 1 through 11 3 above are incorporated herein by reference as if fully set forth. 13. In treating Plaintiff, Alberta M. Rogers, the Defendant, J. Bret Delone, M.D., was required to exercise the reasonable and ordinary care, skill and ability exercised by other members of his profession in the same or similar circumstances. 14. Defendant, J. Bret Delone, M.D., failed to exercise the reasonable and ordinary care, skill and ability exercised by other members of his profession in the same or similar circumstances in that he: a) negligently performed the partial gastrectomy on Plaintiff, Alberta M. Rogers, in such a manner as to completely sever the Vagus nerve, thereby causing the gastroparesis to her stomach and necessitating the total gastrectomy and splenectomy; b) negligently performed the partial gastrectomy on Plaintiff, Alberta M. Rogers, in such a manner as to remove more of the stomach than was necessary, thereby causing the gastroparesis to her stomach and necessitating the total gastrectomy and splenectomy; C) failed to recognize that he had completely severed the Vagus nerve and had removed more of the stomach than was necessary and to treat the gastroparesis properly and immediately; d) failed to properly perform, read, report, interpret and comprehend the reports, tests and procedures in connection with Plaintiff's partial gastrectomy; e) failed to seek and obtain the advice and instruction of qualified specialists or their superiors in the field of gastroenterological surgery in connection with his treatment of Plaintiff Rogers; and 4 f) failed to refer Plaintiff Rogers to the appropriate medical specialists in the field of gastroenterological surgery who would have properly performed the partial gastrectomy without causing gastroparesis and necessitating the total gastrectomy and splenectomy. 15. The negligence, carelessness and/or recklessness of Defendant, J. Bret Delone, M.D., was a substantial factor in causing the gastroparesis and the loss of the entire stomach and spleen of Plaintiff, Alberta M. Rogers, and subsequent complications and pain. 16. As a direct and proximate result of the negligent, careless and/or reckless treatment of Plaintiff, Alberta M. Rogers, by Defendant, J. Bret Delone, M.D., Plaintiff Rogers was caused gastroparesis and the loss of her entire stomach and spleen and subsequent complications and pain. 17. As a further direct and proximate result of the negligent, careless and/or reckless treatment by Defendant, J. Bret Delone, M.D., the Plaintiff, Alberta M. Rogers, has been obligated to receive and undergo medical attention and care and to incur medical expenses, and will be obligated to continue to receive and undergo additional medical attention and care and to incur such additional medical expenses for an indefinite time in the future. 18. As a further direct and proximate result of the negligent, careless and/or reckless treatment by Defendant, J. Bret Delone, M.D., the Plaintiff, Alberta M. Rogers, has suffered 5 physical pain and suffering, mental anguish and humiliation and will continue to so suffer for an indefinite time in the future. 19. As a further direct and proximate result of the negligent, careless and/or reckless treatment by Defendant, J. Bret Delone, M. D. , the Plaintiff, Alberta M. Rogers, has suffered a loss of life's pleasures and will continue to so suffer for an indefinite time in the future. WHEREFORE, Plaintiff, Alberta M. Rogers, demands judgment against Defendant, J. Bret Delone, M.D., in an amount in excess of the compulsory arbitration limits, plus costs and interest as provided by law. Count II: Plaintiff Alberta M. Rogers v. Defendant Kunkel Surgical Group: Vicarious Liability 20. The allegations set forth in paragraphs 1 through 19 above are incorporated herein by reference. 21. At all relevant times herein, the actual or ostensible agents, servants and/or employees of Defendant, Kunkel Surgical Group, including but not limited to Defendant, J. Bret Delone, M.D., were acting within the scope of their employment and agency with Defendant, Kunkel Surgical Group, in rendering negligent, careless and/or reckless treatment to Plaintiff, Alberta M. Rogers. 22. Defendant, Kunkel Surgical Group, is vicariously liable for the negligence, carelessness and/or recklessness of its actual or ostensible agents, servants and/or employees, including but not 6 limited to Defendant, J. Bret Delone, M.D., who negligently, carelessly and/or recklessly rendered medical treatment to Plaintiff, Alberta M. Rogers. 23. The negligence, carelessness and/or recklessness of the actual or ostensible agents, servants and/or employees of Defendant, Kunkel Surgical Group, including but not limited to Defendant, J. Bret Delone, M.D., which is imputed to Defendant, Kunkel Surgical Group, was a substantial factor in causing the gastroparesis and the loss of the stomach and spleen of the Plaintiff, Alberta M. Rogers, and subsequent complications and pain. 24. As a direct and proximate result of the negligent, careless and/or reckless treatment of Plaintiff, Alberta M. Rogers, which is imputed to Defendant, Kunkel Surgical Group, the Plaintiff Rogers was caused gastroparesis and the loss of her stomach and spleen and subsequent complications and pain. 25. As a further direct and proximate result of the negligent, careless and/or reckless treatment of Plaintiff, Alberta M. Rogers, which is imputed to Defendant, Kunkel Surgical Group, the Plaintiff Rogers has suffered those injuries and damages set forth in paragraphs 17 through 19 above, which averments are incorporated herein by reference. WHEREFORE, Plaintiff, Alberta M. Rogers, demands judgment against Defendant, Kunkel Surgical Group, in an amount in excess of 7 the compulsory arbitration limits, provided by law. Count III: Plaintiff Alberta M. Surgical Group: Neqliqence plus costs and interest as Rogers V. Defendant Kunkel 26. The allegations set forth in paragraphs 1 through 25 above are incorporated herein by reference. 27. At all relevant times herein, Defendant, J. Bret Delone, M.D., was an actual or ostensible agent, servant and/or employee of Defendant, Kunkel Surgical Group, in rendering medical treatment to Plaintiff, Alberta M. Rogers. 28. Defendant, Kunkel Surgical Group, a medical clinical institution providing physicians, staff and facilities for medical treatment, including surgery, invited the public, including Plaintiff, Alberta M. Rogers, to use its facilities at a remuneration to be charged. 29. Defendant, Kunkel Surgical Group, acting through its actual or ostensible agents, servants, and/or employees, including but not limited to Defendant, J. Bret Delone, M.D., undertook to render medical treatment to Plaintiff, Alberta M. Rogers, and it then and there became and was the duty of Defendant, Kunkel Surgical Group, to exercise all reasonable care to see that she received and obtained proper medical treatment, care and attention. 30. Defendant, Kunkel Surgical Group, by and through its actual or ostensible agent, servant and/or employee, Defendant, J. 8 Bret Delone, M.D., rendered negligent, careless and/or reckless treatment to Plaintiff, Alberta M. Rogers, in that it: a) failed to review and supervise the treatment rendered by its physicians, nurses, technicians and other staff members, and particularly but not exclusively by Defendant, J. Bret Delone, M.D.; b) failed to meet its duty to investigate and ascertain the qualifications, capability and experience of its physicians, nurses, technicians and other staff members, including Defendant, J. Bret Delone, M.D.; C) failed to require its physicians, nurses, technicians and other staff members, including Defendant, J. Bret Delone, M.D., to report to the clinic and its medical staff all the developments in the condition of Plaintiff, Alberta M. Rogers; d) failed to require direct, prompt and continuing supervision of the condition of Plaintiff, Alberta M. Rogers, and the treatment rendered her; e) failed to meet its duty under the medical clinic standard of care by not maintaining reasonable procedures for the treatment and monitoring of the condition of its patients, including Plaintiff, Alberta M. Rogers; and f) failed to direct and require its physicians, nurses, technicians and other staff members, including but not limited to Defendant, J. Bret Delone, M.D., to meet the reasonable standard of care required of them in treating, reporting and monitoring the conditions of its patients, including Plaintiff, Alberta M. Rogers. 31. The negligence, carelessness and/or recklessness of Defendant, Kunkel Surgical Group, by and through its actual or 9 ostensible agents, servants and/or employees, including but not limited to Defendant, J. Bret Delone, M.D., was a substantial factor in causing the gastroparesis and the loss of the stomach and spleen of the Plaintiff, Alberta M. Rogers, and subsequent complications and pain. 32. As a direct and proximate result of the negligent, careless and/or reckless treatment of Plaintiff, Alberta M. Rogers, by and through the actual or ostensible agents, servants and/or employees of Defendant, Kunkel Surgical Group, including but not limited to Defendant, J. Bret Delone, M.D, the Plaintiff Rogers was caused gastroparesis and the loss of her stomach and spleen of and subsequent complications and pain. 33. As a further direct and proximate result of the negligent, careless and/or reckless treatment of Plaintiff, Alberta M. Rogers, which is imputed to Defendant, Kunkel Surgical Group, the Plaintiff Rogers has suffered those injuries and damages set forth in paragraphs 17 through 19 above, which averments are incorporated herein by reference. WHEREFORE, Plaintiff, Alberta M. Rogers, demands judgment against Defendant, Kunkel Surgical Group, in an amount in excess of the compulsory arbitration limits, plus costs and interest as provided by law. 10 Count IV: Plaintiff Alberta M. Rogers v. Defendant J. Bret Delone, M.D.: Medical Batterv/Lack of Informed Consent 34. The allegations set forth in paragraphs 1 through 33 above are incorporated herein by reference. 35. Defendant, J. Bret Delone, M.D., prior to performing the partial gastrectomy on Plaintiff, Alberta M. Rogers, had the duty to obtain her informed consent. 36. Defendant, J. Bret Delone, M.D. advised Plaintiff, Alberta M. Rogers, to undergo a partial gastrectomy. 37. Defendant, J. Bret Delone, M.D., however, never advised Plaintiff, Alberta M. Rogers, that she could suffer gastroparesis and that she may have to undergo a total gastrectomy and splenectomy. 38. Defendant, J. Bret Delone, M.D., did not advise Plaintiff, Alberta M. Rogers, of the risks and alternatives that a reasonably prudent patient would require to make an informed decision as to whether to undergo the vagotomy and antrectomy with Roux-en-Y gastrojejunostomy. 39. Such information pertaining to the risks and alternatives to these surgical procedures would have been a substantial factor in the decision of Plaintiff, Alberta M. Rogers, whether to undergo the vagotomy and antrectomy with Roux-en-Y gastrojejunostomy. 40. The performance by Defendant, J. Bret Delone, M.D., of the surgical procedures on Plaintiff, Alberta M. Rogers, was 11 without her informed consent and constituted a battery on her person. 41. As a direct and proximate result of the battery committed on the person of Plaintiff, Alberta M. Rogers, by the Defendant, J. Bret Delone, M.D., the Plaintiff Rogers was caused gastroparesis and the loss of her entire stomach and spleen and subsequent complications and pain. 42. As a further direct and proximate result of the battery committed on the person of Plaintiff, Alberta M. Rogers, by the Defendant, J. Bret Delone, M.D., the Plaintiff Rogers has suffered those injuries and damages set forth in paragraphs 17 through 19 above, which averments are incorporated herein by reference. WHEREFORE, Plaintiff, Alberta M. Rogers, demands judgment against Defendant, J. Bret Delone, M.D., in an amount in excess of the compulsory arbitration limits, plus costs and interest as provided by law. Count V: Plaintiff James Rogers v. Defendants: Loss of Consortium 43. The allegations set forth in paragraphs 1 through 42 above are incorporated herein by reference as if fully set forth. 44. At all relevant times herein, Plaintiff, James Rogers, and Plaintiff, Alberta M. Rogers, were lawfully and continuously married. 45. As a direct and proximate result of the medical battery, lack of informed consent, negligence, carelessness and/or 12 recklessness of Defendant, J. Bret Delone, M.D., and the negligence, carelessness and/or recklessness of Defendant, Kunkel Surgery Group, jointly and severally, as described in more detail above, the Plaintiff, James Rogers, has suffered a loss of consortium, society and companionship of his wife, the Plaintiff, Alberta M. Rogers. WHEREFORE, Plaintiff, James Rogers, demands judgment against Defendant, J. Bret Delone, M.D., and Defendant, Kunkel Surgery Group, jointly and severally, in an amount in excess of the compulsory arbitration limits, plus costs and interest as provided by law. RESPECTFULLY SUBMITTED: es1i M. Fields, Esquire I.D. o. 29411 COSTOPOULOS, FOSTER & FIELDS 831 Market Street/P.O. Box 222 Lemoyne, Pennsylvania 17043 Phone: (717) 761-2121 ATTORNEY FOR PLAINTIFFS //,v (l?? &y-- DATED: G.,-t6bcr 2004. 13 VERIFICATION I, Plaintiff, Alberta M. Rogers, do hereby verify that the statements made in the foregoing document are true and correct to the best of my information and belief. I understand that false statements made herein are subject to the penalties at 18 Pa. C . S . A. 4904 relating to unsworn falsification to authorities. BY: a , AM- . "N-?) Alberta M. Rogers DATED: October 1XVk , 2004. 14 VERIFICATION I, Plaintiff, James Rogers, do hereby verify that the statements made in the foregoing document are true and correct to the best of my information and belief. I understand that false statements made herein are subject to the penalties at 18 Pa.C.S.A. 4904 relating to unsworn falsification to authorities. BY: Jamc:, ogers DATED: October V , 2004. 15 CERTIFICATE OF SERVICE I, Leslie M. Fields, Esquire, hereby certify that on this 5' day of November , 2004, a true and correct copy of the foregoing Plaintiffs, Amended Complaint was served upon all counsel of record by: Hand Delivery X First Class Mail, Postage Pre-Paid Certified Mail, Return Receipt Requested Fax Transmission Overnight Mail at the following address(es) and/or number(s): Evan Black, Esquire I.D. 17884 THOMAS, THOMAS & HAFER, LLP 305 North Front Street P.O. Box 999 Harrisburg, PA 17108 Counsel for Defendants] Bret Delone and Kunkel Surgical Group COSTOP ULOS, FOSTER & FIELDS eslie M. Fields, Esquire -Ta ALBERTA M. ROGERS AND IN THE COURT OF COMMON PLEAS JAMES ROGERS, HUSBAND AND CUMBERLAND COUNTY, PENNSYLVANIA WIFE, Plaintiffs V. No. 04-946 J. BRET DELONE, M.D., AND CIVIL ACTION - LAW KUNKEL SURGICAL GROUP, Defendants JURY TRIAL DEMANDED NOTICE TO DEFEND YOU HAVE BEEN SUED IN COURT. If you wish to defend against the claims set forth in the following pages, you must take action within twenty (20) days after this Complaint and Notice are served, by entering a written appearance personally or by attorney and filing in writing with the Court your defenses or objections to the claims set forth against you. You are warned that if you fail to do so the case may proceed without you and a judgment may be entered against you by the Court without further notice for any money claimed in the Complaint or for any other claim or relief requested by the Plaintiff(s). You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW. THIS OFFICE CAN PROVIDE YOU WITH INFORMATION ABOUT HIRING A LAWYER. IF YOU CANNOT AFFORD TO HIRE A LAWYER, THIS OFFICE MAY BE ABLE TO PROVIDE YOU WITH INFORMATION ABOUT AGENCIES THAT MAY OFFER LEGAL SERVICES TO ELIGIBLE PERSONS AT A REDUCED FEE OR NO FEE. Cumberland County Bar Association 2 Liberty Avenue Carlisle, Pennsylvania 17013 Phone: (717) 249-3166 ALBERTA M. ROGERS AND IN THE COURT OF COMMON PLEAS JAMES ROGERS, HUSBAND AND CUMBERLAND COUNTY, PENNSYLVANIA WIFE, Plaintiffs V. No. 04-946 J. BRET DELONE, M.D., AND CIVIL ACTION - LAW KUNKEL SURGICAL GROUP, Defendants JURY TRIAL DEMANDED PLAINTIFFS'SECOND AMENDED COMPLAINT AND NOW come the Plaintiffs, Alberta M. Rogers and James Rogers, husband and wife, by and through their attorney, Leslie M. Fields, Esquire, COSTOPOULOS, FOSTER & FIELDS, and respectfully represent as follows in support of this Complaint: Parties 1. Plaintiffs, Alberta M. Rogers and James Rogers, husband and wife, are adult individuals residing at R.D. 4, Box 4278, Duncannon, Perry County, Pennsylvania 17020. 2. Defendant, J. Bret Delone, M.D., is and at all times hereinafter referred to was, a physician duly licensed to practice his profession as provided by the laws of the Commonwealth of Pennsylvania and engaged in the practice of his profession with Defendant, Kunkel Surgical Group, with his main place of business located at 809 Poplar Church Road, Suite 210, Camp Hill, Cumberland County, Pennsylvania 17011. 3. Defendant, Kunkel Surgical Group, is and at all times hereinafter was a corporation duly organized and licensed under the 1 laws of the Commonwealth of Pennsylvania and engaged in the business of operating a medical clinic with its main place of business located at 809 Poplar Church Road, Suite 219, Camp Hill, Cumberland County, Pennsylvania 17011. 4. At all relevant times herein, Defendant, J. Bret Delone, M.D., was an actual or ostensible agent, servant and/or employee of Defendant, Kunkel Surgical Group. General Alleqations 5. At all relevant times herein, Plaintiff, Alberta M. Rogers, relied upon the professional judgment, ability and knowledge of Defendant, J. Bret Delone, M.D., who in turn was acting individually and as an actual or ostensible agent, servant and/or employee of Defendant, Kunkel Surgical Group. 6. In the spring and summer of 2000, Plaintiff, Alberta M. Rogers, was diagnosed with active peptic ulcer disease in the gastric antrum and was placed on a course of treatment of medications. 7. However, Plaintiff, Alberta M. Rogers, did not significantly improve with the medical therapy and, by the spring of 2002, her gastroenterologist referred her to Defendant, J. Bret Delone, M.D., at Defendant, Kunkel Surgical Group. 8. Defendant, J. Bret Delone, M.D., recommended to Plaintiff, Alberta M. Rogers, that she undergo surgery; and on May 30, 2002, he performed a vagotomy and antrectomy with Roux-en-Y 2 gastrojejunostomy at the Holy Spirit Hospital in Camp Hill, Cumberland County, Pennsylvania. 9. Despite assurances by Defendants that Plaintiff was doing well in her post-operative period, in the weeks subsequent to the surgery, Plaintiff, Alberta M. Rogers, experienced illness, severe problems in digesting foods and a loss of weight. Upon examination by her gastroenterologist, it was determined that she suffered from gastroparesis, had little or no spontaneous peristaltic activity, and had a large volume of retained food in the stomach. She was admitted to the hospital. 10. Plaintiff, Alberta M. Rogers, was then referred by her gastroenterologist to The Johns Hopkins Hospital in Baltimore, Maryland where, on January 28, 2003, surgeons, after determining that the gastroparesis was irreversible, performed a total gastrectomy (stomach removal) with an esophagojejunostomy and splenectomy (spleen removal) and created a "Hunt -Lawrence "-pouch or artificial stomach. 11. As a result of these procedures, Plaintiff, Alberta M. Rogers, is on a life-long post-gastrectomy diet, is malnourished, suffers from extreme weight loss and fatigue, has had to be fed and nourished through a feeding tube and IV therapy, has been repeatedly hospitalized for sepsis and other infections, continues to have abnormal blood test results and infections, and experiences abdominal pain and discomfort, severe nausea, and related symptoms. 3 Count I: Plaintiff Alberta M. Rogers v. J. Bret Delone, M.D. 12. The allegations set forth in paragraphs 1 through 11 above are incorporated herein by reference as if fully set forth. 13. In treating Plaintiff, Alberta M. Rogers, the Defendant, J. Bret Delone, M.D., was required to exercise the reasonable and ordinary care, skill and ability exercised by other members of his profession in the same or similar circumstances. 14. Defendant, J. Bret Delone, M.D., failed to exercise the reasonable and ordinary care, skill and ability exercised by other members of his profession in the same or similar circumstances in that he: a) negligently performed the vagotomy, antrectomy, and/or Roux-en-Y gastrojejunostomy on Plaintiff, Alberta M. Rogers, in such a manner as to cause the gastroparesis and/or delayed stomach emptying and necessitating the total gastrectomy and splenectomy; b) negligently performed the antrectomy on Plaintiff, Alberta M. Rogers, in such a manner as to remove more of the stomach than was necessary, thereby causing the gastroparesis and/or delayed stomach emptying and necessitating the total gastrectomy and splenectomy; c) negligently chose the method to be employed in treating plaintiff's condition and/or in performing the vagotomy, antrectomy, and/or Roux-en-Y gastrojejunostomy in such a manner as to cause the gastroparesis and/or delayed stomach emptying and necessitating the total gastrectomy and splenectomy; 4 d) failed to recognize that he had completely severed the vagus nerve and/or had removed more of the stomach than was necessary and to treat the gastroparesis and/or delayed stomach emptying properly and immediately; e) failed to recognize that the Roux-en-Y gastrojejunostomy was resulting in gastroparesis and/or delayed stomach emptying and to treat the gastroparesis and/or delayed stomach emptying properly and immediately; f) failed to properly perform, read, report, interpret and comprehend the reports, tests and procedures in connection with Plaintiff's surgery; g) failed to properly perform, read, report, interpret and comprehend the reports, tests and procedures in connection with Plaintiff's postoperative condition; h) failed to seek and obtain the advice and instruction of qualified specialists or their superiors in the field of gastroenterological surgery in connection with his treatment of Plaintiff Rogers; and i) failed to refer Plaintiff Rogers to the appropriate medical specialists in the field of gastroenterological surgery who would have properly performed the surgery without causing gastroparesis and/or delayed stomach emptying and necessitating the total gastrec- tomy and splenectomy. 15. The negligence, carelessness and/or recklessness of Defendant, J. Bret Delone, M.D., was a substantial factor in causing the gastroparesis and the loss of the entire stomach and spleen of Plaintiff, Alberta M. Rogers, and subsequent complications and pain. 16. As a direct and proximate result of the negligent, 5 careless and/or reckless treatment of Plaintiff, Alberta M. Rogers, by Defendant, J. Bret Delone, M.D., Plaintiff Rogers was caused gastroparesis and/or delayed stomach emptying and the loss of her entire stomach and spleen and subsequent complications and pain. 17. As a further direct and proximate result of the negligent, careless and/or reckless treatment by Defendant, J. Bret Delone, M.D., the Plaintiff, Alberta M. Rogers, has been obligated to receive and undergo medical attention and care and to incur medical expenses, and will be obligated to continue to receive and undergo additional medical attention and care and to incur such additional medical expenses for an indefinite time in the future. 18. As a further direct and proximate result of the negligent, careless and/or reckless treatment by Defendant, J. Bret Delone, M.D., the Plaintiff, Alberta M. Rogers, has suffered physical pain and suffering, mental anguish and humiliation and will continue to so suffer for an indefinite time in the future. 19. As a further direct and proximate result of the negligent, careless and/or reckless treatment by Defendant, J. Bret Delone, M.D., the Plaintiff, Alberta M. Rogers, has suffered a loss of life's pleasures and will continue to so suffer for an indefinite time in the future. WHEREFORE, Plaintiff, Alberta M. Rogers, demands judgment against Defendant, J. Bret Delone, M.D., in an amount in excess of the compulsory arbitration limits, plus costs and interest as 6 provided by law. Count II: Plaintiff Alberta M. Rogers v. Defendant Kunkel Surgical Group: Vicarious Liabilitv 20. The allegations set forth in paragraphs 1 through 19 above are incorporated herein by reference. 21. At all relevant times herein, the actual or ostensible agents, servants and/or employees of Defendant, Kunkel Surgical Group, including but not limited to Defendant, J. Bret Delone, M.D., were acting within the scope of their employment and agency with Defendant, Kunkel Surgical Group, in rendering negligent, careless and/or reckless treatment to Plaintiff, Alberta M. Rogers. 22. Defendant, Kunkel Surgical Group, is vicariously liable for the negligence, carelessness and/or recklessness of its actual or ostensible agents, servants and/or employees, including but not limited to Defendant, J. Bret Delone, M.D., who negligently, carelessly and/or recklessly rendered medical treatment to Plaintiff, Alberta M. Rogers. 23. The negligence, carelessness and/or recklessness of the actual or ostensible agents, servants and/or employees of Defendant, Kunkel Surgical Group, including but not limited to Defendant, J. Bret Delone, M.D., which is imputed to Defendant, Kunkel Surgical Group, was a substantial factor in causing the gastroparesis and the loss of the stomach and spleen of the Plaintiff, Alberta M. Rogers, and subsequent complications and 7 pain. 24. As a direct and proximate result of the negligent, careless and/or reckless treatment of Plaintiff, Alberta M. Rogers, which is imputed to Defendant, Kunkel Surgical Group, the Plaintiff Rogers was caused gastroparesis and the loss of her stomach and spleen and subsequent complications and pain. 25. As a further direct and proximate result of the negligent, careless and/or reckless treatment of Plaintiff, Alberta M. Rogers, which is imputed to Defendant, Kunkel Surgical Group, the Plaintiff Rogers has suffered those injuries and damages set forth above, which averments are incorporated herein by reference. WHEREFORE, Plaintiff, Alberta M. Rogers, demands judgment against Defendant, Kunkel Surgical Group, in an amount in excess of the compulsory arbitration limits, plus costs and interest as provided by law. Count III: Plaintiff Alberta M. Rogers v. Defendant J. Bret Delone, M.D.: Medical Battery/Lack of Informed Consent 26. The allegations set forth in paragraphs 1 through 25 above are incorporated herein by reference. 27. Defendant, J. Bret Delone, M.D., prior to performing the above referenced surgical procedures on Plaintiff, Alberta M. Rogers, had the duty to obtain her informed consent. 28. Defendant, J. Bret Delone, M.D. advised Plaintiff, 8 Alberta M. Rogers, to undergo an antrectomy, without describing either the vagotomy or the Roux-en-Y gastrojejunostomy. 29. Defendant, J. Bret Delone, M.D. never advised Plaintiff, Alberta M. Rogers, of the alternatives to the procedures he recommended and performed. 30. Defendant, J. Bret Delone, M.D., never advised Plaintiff, Alberta M. Rogers, of the risks of the procedures she was to undergo, including that she could suffer gastroparesis and/or delayed stomach emptying and that she may have to undergo a total gastrectomy and splenectomy. 31. Defendant, J. Bret Delone, M.D. did not advise Plaintiff, Alberta M. Rogers, of the information concerning risks and alternatives that a reasonably prudent patient would require to make an informed decision as to whether to undergo the vagomony and antrectomy with Roux-en-Y gastrojejunostomy. 32. Such information pertaining to the risks and alternatives to these surgical procedures would have been a substantial factor in the decision as to whether to undergo the vagotomy and antrectomy with Roux-en-Y gastrojejunostomy. 33. The performance by Defendant, J. Bret Delone, M.D., of the vagotomy and antrectomy with Roux-en-Y gastrojejunostomy on Plaintiff, Alberta M. Rogers, was without her informed consent and constituted a battery on her person. 34. As a direct and proximate result of the battery committed 9 on the person of Plaintiff, Alberta M. Rogers, by the Defendant, J. Bret Delone, M.D., the Plaintiff Rogers was caused gastroparesis and/or delayed stomach emptying and the loss of her entire stomach and spleen and subsequent complications and pain. 35. As a further direct and proximate result of the battery committed on the person of Plaintiff, Alberta M. Rogers, by the Defendant, J. Bret Delone, M.D., the Plaintiff Rogers has suffered those injuries and damages set forth above, which averments are incorporated herein by reference. WHEREFORE, Plaintiff, Alberta M. Rogers, demands judgment against Defendant, J. Bret Delone, M.D., in an amount in excess of the compulsory arbitration limits, plus costs and interest as provided by law. Count IV: Plaintiff James Rogers v. Defendants: Loss of Consortium 36. The allegations set forth in paragraphs 1 through 35 above are incorporated herein by reference as if fully set forth. 37. At all relevant times herein, Plaintiff, James Rogers, and Plaintiff, Alberta M. Rogers, were lawfully and continuously married. 38. As a direct and proximate result of the medical battery, lack of informed consent, negligence, carelessness and/or recklessness of Defendant, J. Bret Delone, M.D., and of Defendant, Kunkel Surgery Group, as described in more detail above, the 10 Plaintiff, James Rogers, has suffered a loss of consortium, society and companionship of his wife, the Plaintiff, Alberta M. Rogers. WHEREFORE, Plaintiff, James Rogers, demands judgment against Defendant, J. Bret Delone, M.D., and Defendant, Kunkel Surgery Group, in an amount in excess of the compulsory arbitration limits, plus costs and interest as provided by law. RESPECTFULLY SUBMITTED: Lesli M. Fields, Esquire I.D. o. 29411 COSTOPOULOS, FOSTER & FIELDS 831 Market Street/P.O. Box 222 Lemoyne, Pennsylvania 17043 Phone: (717) 761-2121 ATTORNEY FOR PLAINTIFFS DATED : //-/,o e 11 VERIFICATION I, Plaintiff, Alberta M. Rogers, do hereby verify-that the statements made in the foregoing document are true and correct to the best of my information and belief. I understand that false statements made herein are subject to the penalties at 18 Pa.C.S.A. 4904 relating to unsworn falsification to authorities. BY: C1.99.s??.?M.? ?.? Alberta M. Roge4s DATED: I\- 10-0` VERIFICATION I, Plaintiff, James Rogers, do hereby verify that the statements made in the foregoing document are true and correct to the best of my information and belief. I understand that false statements made herein are subject to the penalties at 18 Pa.C.S.A. 4904 relating to unsworn falsification to authorities. BY • ? J mes Rogers DATED : J\ 16 16 `t' CERTIFICATE OF SERVICE I, Leslie M. Fields, Esquire, hereby certify that on this 10`h day of November,_ 2004, a true and correct copy of the foregoing Plaintiffs' Second Amended Complaint was served upon all counsel of record by: Hand Delivery X First Class Mail, Postage Pre-Paid Certified Mail, Return Receipt Requested Fax Transmission Overnight Mail at the following address(es) and/or number(s): Evan Black, Esquire 1. D. 17884 THOMAS, THOMAS & HAFER, LLP 305 North Front Street P.O. Box 999 Harrisburg, PA 17108 Counsel for Defendants] Bret Delone and Kunkel Surgical Group COSTOPOULOS, FOSTER & FIELDS C,--- z Leslie . Fields, Esquir ?? ? r ?._? rte) _ t?II ? ???? ' '.__.F C:'7 ?? x.1,7 ?? ? ?? ?- r" _..y ?;. - ?". ? ?, .? r ? ,t .?.1. THOMAS, THOMAS & HAFER, LLP EVAN BLACK, ESQ. Attorney I.D. 17884 STEPHANIE L. HERSPERGER, ESQ. Attorney I.D. 78735 305 North Front Street P.O. Box 999 Harrisburg, PA 17108 (717) 441-7051 Attorneys for Defendants J. Bret Delone, M.D. and Kunkel Surgical Group ALBERTA ROGERS and JAMES ROGERS IN THE COURT OF COMMON PLEAS OF HUSBAND AND WIFE CUMBERLAND COUNTY, PENNSYLVANIA PLAINTIFFS V. : NO. 04-0946 J. BRET DELONE, M.D., AND KUNKEL CIVIL ACTION --LAW SURGICAL GROUP MEDICAL PROFESSIONAL LIABILITY ACTION DEFENDANTS JURY TRIAL DEMANDED NOTICE TO PLEAD TO: Alberta and James Rogers c/o Leslie M. Fields, Esq. 831 Market Street P.O. Box 222 Lemoyne, PA 17043 YOU ARE HEREBY NOTIFIED TO FILE A WRITTEN RESPONSE TO THE ENCLOSED ANSWER WITH NEW MATTER WITHIN TWENTY (20) DAYS OF SERVICE HEREOF OR A JUDGMENT OF NON PROS MAY BE ENTERED AGAINST YOU. Respectfully submitted, Thomas, Thomas & Hafer, LLP By Evan Black, Esq. Stephanie L. Hersperger, Esq Date: December 13, 2004 THOMAS, THOMAS & HAFER, LLP EVAN BLACK, ESQ. Attorney I.D. 17884 STEPHANIE L. HERSPERGER, ESQ. Attorney I.D. 78735 305 North Front Street P.O. Box 999 Harrisburg, PA 17108 (717) 441-7051 Attorneys for Defendants J. Bret Delone, M.D. and Kunkel Surgical Group ALBERTA ROGERS and JAMES ROGERS IN THE COURT OF COMMON PLEAS OF HUSBAND AND WIFE CUMBERLAND COUNTY, PENNSYLVANIA V. PLAINTIFFS NO. 04-0946 J. BRET DELONE, M.D., AND KUNKEL SURGICAL GROUP DEFENDANTS CIVIL ACTION -- LAW MEDICAL PROFESSIONAL LIABILITY ACTION JURY TRIAL DEMANDED ANSWER WITH NEW MATTER OF DEFENDANTS, J. BRET DELONE, M.D, AND TNKEL SURGICAL GROUP, 'TO PLAINTIFFS' SECOND'AMENDED COMPLAINT AND NOW, come the Defendants, J. Bret Delone, M.D. and Kunkel Surgical Group (hereinafter "Answering Defendants"), by and through their counsel, Thomas, Thomas & Hafer, LLP, to respond to Plaintiffs' Second Amended Complaint, and in support of same, aver as follows: 1. Denied. After reasonable investigation, Answering Defendants are without knowledge or information sufficient to form a belief as to the truth of the allegations contained in this paragraph of Plaintiffs' Second Amended Complaint and the same are deemed denied and strict proof demanded at the time of trial. 2. Admitted. 3. Admitted. 4. Admitted. General Allegations 5. Denied. To the extent that the allegations contained in this paragraph are conclusions of law as opposed to statements of fact, no response is required. To the extent an answer is deemed necessary, Answering Defendants admit only that Defendant, J. Bret Delone, M.D., was acting individually and as an actual agent and employee of Defendant, Kunkel Surgical Group, at all times material hereto. The remaining allegations contained in this paragraph of Plaintiffs' Second Amended Complaint are denied and strict proof is demanded at trial. 6.40. Denied. The allegations contained in these paragraphs of Plaintiffs' Second Amended Complaint are denied generally pursuant to and in accordance with Pa. R.C.P. 1029(e) and proof thereof is demanded at the time of trial. Moreover, Answering Defendants aver that they at all times acted appropriately and in a fashion commensurate with the standard of health care applicable under similar circumstances and that they were in no way negligent, or otherwise caused or contributed to cause or increased the risk of any injury or damage to Plaintiffs. 11. Denied. After reasonable investigation, Answering Defendants are without knowledge or information sufficient to form a belief as to the truth of the averments of damages/injuries contained in this paragraph of Plaintiffs' Second Amended Complaint and/or same are denied generally pursuant to and in accordance with Pa. R.C.P. 1029(e). Thus, strict proof of same is demanded at the time of trial. Count I: Plaintiff Alberta M. Rogers v. J. Bret Delone, M.D. 12. Answering Defendants hereby incorporate their responses to Paragraphs 1 through 11 of this Answer as if fully set forth herein. 13. Denied. The allegations contained in this paragraph are conclusions of law as opposed to statements of fact, and therefore, no response is required. To the extent an answer is deemed necessary, Answering Defendant, Dr. Delone, avers that he at all times acted appropriately and in a fashion commensurate with the standard of health care applicable under similar circumstances and that he was in no way negligent, or otherwise caused or contributed to cause or increased the risk of any injury or damage to Plaintiffs. 14. Denied. The allegations contained in this paragraph and subparagraphs (a) through (i) are conclusions of law as opposed to statements of fact, and therefore, no response is required. To the extent an answer is deemed necessary, Answering Defendant, Dr. Delone, avers that he at all times acted appropriately and in a fashion commensurate with the standard of health care applicable under similar circumstances and that he was in no way negligent, or otherwise caused or contributed to cause or increased the risk of any injury or damage to Plaintiffs. The remaining allegations contained in this paragraph and subparagraphs (a) through (i) of Plaintiffs' Second Amended Complaint also are denied pursuant to Pa. R.C.P. 1029(e) and proof thereof is demanded at the time of trial. 15.-19. Denied. The allegations contained in these paragraphs are conclusions of law as opposed to statements of fact, and therefore, no response is required. To the extent an answer is deemed necessary, after reasonable investigation, Answering Defendant, Dr. DeLone, is without knowledge or information sufficient to form a belief as to the truth of the averments of damages/injuries contained in these paragraphs of Plaintiffs' Second Amended Complaint, and therefore, strict proof of same is demanded at the time of trial. By way of further answer, Answering Defendant, Dr. Delone, avers that he at all times acted appropriately and in a fashion commensurate with the standard of health care applicable under similar circumstances and that he was in no way negligent, or otherwise caused or contributed to cause or increased the risk of any injury or damage to Plaintiffs. The remaining allegations contained in these paragraphs of Plaintiffs' Second Amended Complaint are denied pursuant to Pa. R.C.P. 1029(e) and proof thereof is demanded at the time of trial. WHEREFORE, Answering Defendants demand judgment in their favor and against Plaintiffs without cost to them. Count II: Plaintiff Alberta M. Rogers v. Defendant ]Kunkel Surgical Group: Vicarious Liability 20. Answering Defendants hereby incorporate their responses to Paragraphs 1 through 19 of this Answer as if fully set forth herein. 21.-22. To the extent that the allegations contained in these paragraphs are conclusions of law as opposed to statements of fact, no response is required. To the extent an answer is deemed necessary, it is admitted only that Defendant, J. Bret Delone, M.D., was an agent and/or servant of Defendant, Kunkel Surgical Group, at all times relevant hereto. Insomuch as the "actual or ostensible agents, servants an/or employees" in these paragraphs are not identified in Plaintiffs' Second Amended Complaint, Answering Defendant, Kunkel Surgical Group, is unable to admit or deny these allegations of agency, and thus same are denied and strict proof thereof is demanded at the time of trial. Moreover, Answering Defendant, Kunkel Surgical Group, avers that its agents, servants and/or employees, including Dr. Delone, at all times acted appropriately and in a fashion commensurate with the standard of health care applicable under similar circumstances and that its agents, servants and/or employees, including Dr. Delone, were in no way negligent, or otherwise caused or contributed to cause or increased the risk of any injury or damage to Plaintiffs. The remaining allegations contained in these paragraphs of Plaintiffs' Second Amended Complaint are denied pursuant to Pa. R.C.P. 1029(e) and proof thereof is demanded at the time of trial. 21-25. To the extent that the allegations contained in these paragraphs are conclusions of law as opposed to statements of fact, no response is required. To the extent an answer is deemed necessary, it is admitted only that Defendant, J. Bret Delone, M.D., was an agent and/or servant of Defendant, Kunkel Surgical Group, at all times relevant hereto. Insomuch as the "actual or ostensible agents, servants an/or employees" in these paragraphs are not identified in Plaintiffs' Second Amended Complaint, Answering Defendant, Kunkel Surgical Group, is unable to admit or deny these allegations of agency, and thus same are denied and strict proof thereof is demanded at the time of trial. Moreover, Answering Defendant, Kunkel Surgical Group, avers that its agents, servants and/or employees, including Dr. Delone, at all times acted appropriately and in a fashion commensurate with the standard of health care applicable under similar circumstances and that its agents, servants and/or employees, including Dr. Delone, were in no way negligent, or otherwise caused or contributed to cause or increased the risk of any injury or damage to Plaintiffs. By way of further answer, after reasonable investigation, Answering Defendant, Kunkel Surgical Group, is without knowledge or information sufficient to form a belief as to the truth of the averments of damages/injuries contained in these paragraphs of Plaintiffs' Second Amended Complaint, and therefore, said allegations are denied and strict proof is demanded at the time of trial.. The remaining allegations contained in these paragraphs of Plaintiffs' Second Amended Complaint are denied pursuant to Pa. R.C.P. 1029(e) and proof thereof is demanded at the time of trial. WHEREFORE, Answering Defendants demand judgment in their favor and against Plaintiffs without cost to them. Count III: Plaintiff Alberta M. Rogers v. Defendant J. Bret Delone. M.D.: Medical Battery/Lack of Informed Consent 26. Answering Defendants hereby incorporate their responses to Paragraphs 1 through 25 of this Answer as if fully set forth herein. 27.-33. Denied. The allegations contained in these paragraphs are conclusions of law as opposed to statements of fact, and therefore, no response is required. To the extent an answer is deemed necessary, it is specifically denied that Answering Defendant, Dr. Delone, failed to obtain the informed consent of Plaintiff, Alberta Rogers. To the contrary, Plaintiff, Alberta Rogers, gave a full and complete and legal informed consent pursuant to the claims made in the Second Amended Complaint. Answering Defendant, Dr. Delone, further avers that he described and discussed those risks, alternatives and risks of alternatives which a reasonable person would deem material in making a decision whether to undergo the surgery at issue. Moreover, Answering Defendant, Dr. Delone, avers that he at all times acted appropriately and in a fashion commensurate with the standard of health care applicable under similar circumstances and that he was in no way negligent, or otherwise caused or contributed to cause any injury or damage to Plaintiff. The remaining allegations contained in these paragraphs of Plaintiffs' Second Amended Complaint are denied pursuant to Pa. R.C.P. 1029(e) and proof thereof is demanded at the time of trial. 34.-35. Denied. The allegations contained in these paragraphs are conclusions of law as opposed to statements of fact, and therefore, no response is required. To the extent an answer is deemed necessary, after reasonable investigation, Answering Defendant, Dr. DeLone, is without knowledge or information sufficient to form a belief as to the truth of the averments of damages/injuries contained in these paragraphs of Plaintiffs' Second Amended Complaint, and thus, said allegations are denied and strict proof is demanded at the time of trial. Moreover, it is specifically denied that Answering Defendant, Dr. Delone, failed to obtain the informed consent of Plaintiff, Alberta Rogers. To the contrary, Plaintiff, Alberta Rogers, gave a full and complete and legal informed consent pursuant to the claims made in the Second Amended Complaint. Answering Defendant, Dr. Delone, further avers that he described and discussed those risks, alternatives and risks of alternatives which a reasonable person would deem material in making a decision whether to undergo the surgery at issue. Moreover, Answering Defendant, Dr. Delone, avers that he at all times acted appropriately and in a fashion commensurate with the standard of health care applicable under similar circumstances and that lie was in no way negligent, or otherwise caused or contributed to cause any injury or damage to Plaintiff. The remaining allegations contained in these paragraphs of Plaintiffs' Second Amended Complaint are denied pursuant to Pa. R.C.P. 1029(e) and proof thereof is demanded at the time of trial. WHEREFORE, Answering Defendants demand judgment in their favor and against Plaintiffs without cost to them. Count IV: Plaintiff James Rogers v. Defendants: Loss of Consortium Claim 36. Answering Defendants hereby incorporate their responses to Paragraphs 1 through 35 of this Answer as if fully set forth herein. 37. 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 this paragraph of Plaintiffs' Second Amended Complaint and the same are deemed denied and strict proof demanded at the time of trial. 38. Denied. The allegations contained in this paragraph are conclusions of law as opposed to statements of fact, and therefore, no response is required. To the extent an answer is deemed necessary, after reasonable investigation, Answering Defendants are without knowledge or information sufficient to form a belief as to the truth of the averments of damages/injuries contained in this paragraph of Plaintiffs' Second Amended Complaint, and thus, strict proof is demanded at the time of trial. By way of further answer, Answering Defendants aver that Dr. DeLone at all times acted appropriately and in a fashion commensurate with the standard of health care applicable under similar circumstances and that ]le was in no way negligent, or otherwise caused or contributed to cause or increased the risk of any injury or damage to Plaintiffs. Answering Defendants further aver that Defendant, Dr. Delone, properly obtained Plaintiff's informed consent and did not commit a battery on the person of Alberta Rogers. The remaining allegations contained in this paragraph of Plaintiffs' Second Amended Complaint are denied pursuant to Pa. R.C.P. 1029(e) and proof thereof is demanded at the time of trial. WHEREFORE, Answering Defendants demand judgment in their favor and against Plaintiffs without cost to them. NEW MATTER By way of further response to the allegations contained in Plaintiffs' Second Amended Complaint, Answering Defendants hereby raise the following New Matter in accordance with Pennsylvania Rule of Civil Procedure 1030: 39. The Answering Defendants incorporate by reference Paragraphs 1 through 38 above as though the same were set forth herein at length. 40. Plaintiffs fail to state a cause of action against Answering Defendants upon which relief can be granted. 41. Answering Defendants raise all affirmative defenses of the Healthcare Services Malpractice Act, 40 P.S. § 1301.101, et seq. 42. For the purposes of preserving the same, and subject to further discovery, all or some of Plaintiffs' claims are time-barred due to the expiration of the applicable Statute of Limitations. 43. For the purpose of preserving the same, and subject to discovery, all or some of Plaintiffs' claims may be barred pursuant to the affirmative defenses of release, offset, or accord and satisfaction. 44. At no time relevant hereto were Answering Defendants agents, servants, or employees acting on behalf of any other natural person, partnership, corporation, or other legal entity, except as may be specifically set forth in this Answer. 45. At no time relevant hereto was any natural person, partnership, corporation, or other legal entity acting or serving as an agent, servant, employee, or otherwise for or on behalf of Answering Defendants, except as specifically set forth in Answering Defendants' Answer to Plaintiffs' Second Amended Complaint. 46. Any additional allegation of negligence other than as specifically set forth in Plaintiffs' Second Amended Complaint based on Plaintiffs' allegation of negligence are or will be barred by the Statue of Limitations. 47. In the event that it is determined that Answering; Defendants were negligent with regard to any of the allegations contained in and with respect to Plaintiffs' Second Amended Complaint, said allegations being specifically denied, discovery may establish that said negligence was superseded by the intervening negligent acts of other persons, parties, and/or organizations other than Answering Defendants, and over whom said Answering Defendants had no control, right, or responsibility, and therefore Answering Defendants are not liable. 48. To the extent that the evidence may show that other persons, partnerships, corporations, or other legal entities caused or contributed to the injuries or the pre-existing condition of Plaintiffs, then the conduct of the Answering Defendants was not the legal cause of such conditions or injuries. 49. Any acts or omissions of Answering Defendants alleged to constitute negligence were not substantial factors contributing to the injuries and damages alleged in Plaintiffs' Second Amended Complaint. 50. If any injuries and damages, as alleged in Plaintiffs' Second Amended Complaint, were caused in whole or in part by persons or entities over whom Answering Defendants had no duty to supervise or control, then Answering Defendants are not liable, and Plaintiffs may not recover against them. 51. Plaintiffs' injuries and losses, if any, were not caused by the conduct or negligence of Answering Defendants, but rather were caused by pre-existing medical conditions and causes beyond the control of Answering Defendants, and therefore Plaintiffs may not recover against Answering Defendants. 52. The acts or omissions of others, and not Answering Defendants, may have constituted intervening and/or superseding causes of the injuries and/or damages alleged to have been sustained by Plaintiffs, and Answering Defendants cannot, pursuant to Pennsylvania law, be held liable for the alleged injuries to Plaintiffs. 53. The incident and/or damages described in Plaintiffs' Second Amended Complaint were caused or contributed to by Plaintiffs. 54. The Plaintiffs may have assumed the risk. 55. The Plaintiffs may have been contributorily negligent. 56. Answering Defendants are entitled to and assert all defenses available to them under the Fair Share Act, 42 Pa. C.S. §7102B. 57. Pennsylvania Rule of Civil Procedure 238 is unconstitutional on its face and as applied herein. 58. The Answering Defendants are entitled to and incorporate herein by reference the defenses contained in the Federal Health Care Quality Improvement Act, P.L. 99-660. 59. Plaintiffs' claims, the existence of which is specifically denied by the Answering Defendants, may be reduced and/or limited by any collateral source of compensation and/or benefit in accordance with the Pennsylvania Supreme Court decision in Moorhead v. Crozer Chester Medical Center. 60. At all times relevant hereto, the Answering Defendants acted within and followed the precepts of a school of thought followed by a considerable number of qualified and well respected specialists in his field, and, accordingly, their professional conduct was fully commensurate with the applicable standard of care. Evidence at trial may establish two or more schools of thought applicable to the issues presented in this case. 61. Plaintiff, Alberta Rogers, gave informed consent to all treatment provided by the Answering Defendant, Dr. Delone. 62. Plaintiff, Alberta Rogers, has failed to state a cause of action based on informed consent against Answering Defendant, Dr. Delone. 63. Plaintiffs' claims may be barred totally, or irk part, by the application of the Medical Care Availability and Reduction of Error (Mcare) Act. Act 13 of 2002. 64. Defendants assert all of the defenses and immunities afforded under the Medical Care Availability and Reduction of Error Act. Act 13 of 2002. WHEREFORE, Answering Defendants, J. Bret Delone, M.D. and Kunkel Surgical Group, demand judgment in their favor and against Plaintiffs without cost to them. Respectfully Submit ed, THOMAS, THOMAS & HAFER, LLP Attorneys for Defendants J. Bret Delone, M. I). and Kunkel Surgical Group Date: December 13, 2004 Stephanie L. Hersperger, Esq. Commonwealth of Pennsylvania County of Cumberland Alberta Rogers and James Rogers Husband and Wife Plaintiff V. J. Bret Delone, M.D., and Kunkel Surgical Group Defendant No. 04-0946 CIVIL ACTION - LAW JURY TRIAL DEMANDED VERIFICATION I, J. Bret Delone, M.D., hereby state and aver that the factual statements contained in the foregoing Answer with New Matter to Plaintiffs Second Amended Complaint are true and correct to the best of my knowledge, information and belief. This statement is made subject to the penalties of 18 Pa. C.S.A. § 4904 relating to unsworn falsifications to authorities, which provides that if I make knowingly false statements, I may be subject to criminal penalties. Date: ;4 J. Bret Delone, M.D. Commonwealth of Pennsylvania County of Cumberland Alberta Rogers and James Rogers Husband and Wife Plaintiff V. J. Bret Delone, M.D., and Kunkel Surgical Group Defendant VERIFICATION No. 04-0946 CIVIL ACTION - LAW JURY TRIAL DEMANDED Cam 1 I, .? ? ??? ' t' _ on behalf of Kunkel Surgical Group, hereby state and aver that the factual statements contained in the foregoing Answer with New Matter to Plaintiffs Second Amended Complaint are true and correct to the best of my knowledge, information and belief. This statement is made subject to the penalties of 18 Pa. C.S.A. § 4904 relating to unsworn falsifications to authorities, which provides that if I make knowingly false statements, I may be subject to criminal penalties. Date: ?/- J ,?. on behalf of Kunkel Surgic? Group CERTIFICATE OF SERVICE I, Ashleigh E. Anglemeyer, an employee of the law offices of Thomas, Thomas & Hafer, LLP, do hereby certify that I served a true and correct copy of ANSWER WITH NEW MATTER TO PLAINTIFFS' SECOND AMENDED COMPLAINT upon the following persons via United States mail, first class, postage prepaid, as follows: Leslie M. Fields, Esq. 831 Market Street P.O. Box 222 Lemoyne, PA 17043 Attorneys for Plaintiffs Date: December 13, 2004 ill : ) ' i t-?Ashleigh E. glemeyer r .., f' ji-? __? ,. i ? ? ? ,? _, _ i ` . C.J - ALBERTA M. ROGERS AND JAMES ROGERS, HUSBAND AND WIFE, Plaintiffs V. IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA No. 04-946 1. BRET DELONE, M.D., AND CIVIL ACTION .-LAW KUNKEL SURGICAL GROUP, Defendants : JURY TRIAL DEMANDED PLAINTIFF'S PRELIMINARY OBIE(:TIONS TO DEFENDANTS' NEW MATTER AND NOW come the Plaintiffs, Alberta M. Rogers and James Rogers, husband and wife, by and through their attorneys, COSTOPOULOS, FOSTER & FIELDS, and respectfully file the following preliminary objections: 1. The allegations contained in paragraphs 40 Through 64 of Defendants' New Matter allege, inter alia, affirmative defenses to the claims asserted by Plaintiffs in their Complaint, but the allegations contained in the New Matter, assert no factual basis for the defenses raised. 2. Pa. R. C. P. 1019(a) specifically requires that the Defendants plead the specific and material facts upon which their defenses are based. 3. The allegations contained in paragraphs 40 Through 64 of Defendants' New Matter are insufficiently specific. 4. The Plaintiffs' Second Amended Complaint was served on November 10, 2004 and Defendants' New Matter was served on December 13, 2004, which is outside the permitted time limits and therefore fails to conform to law and rule of court. WHEREFORE, Plaintiffs respectfully request that this Honorable Court issue an Order dismissing and striking Defendant's New Matter. RESPECTFULLY SUBMITTED: Leslie M ields, Esquire I.D. No. 29411 COSTOPOULOS, FOSTER & FIELDS 831 Market Street/P.O. Box 222 Lemoyne, Pennsylvania 17043 Phone: (717) 761-2121 ATTORNEY FOR PLAINTIFFS December 31, 2004 CERTIFICATE OF SERVICE I, Leslie M. Fields, Esquire, hereby certify that on this 31" day of December , 2004, a true and correct copy of the foregoing Plaintiffs' Preliminary Objections to Defendants New Matter was served upon all counsel of record by: Hand Delivery X First Class Mail, Postage Pre-Paid Certified Mail, Return Receipt Requested Fax Transmission Overnight Mail at the following address(es) and/or number(s): Evan Black, Esquire I.D. 17884 THOMAS, THOMAS & HAFER, LL.P 305 North Front Street P.O. Box 999 Harrisburg, PA 17108 Counsel for Defendants J Bret Delone and Kunkel Surgical Group COSTOPOULOS, FOSTER & FIELDS (J Leslie . Fields, Esquire r° -r i C_rl THOMAS, THOMAS & HAFER, LLP EVAN BLACK, ESQ. Attorney I.D. 17884 STEPHANIE L. HERSPERGER, ESQ. Attorney I.D. 78735 305 North Front Street P.O. Box 999 Harrisburg, PA 17108 (717) 441-7051 Attorneys for Defendants J. Bret Delone, M.D. and Kunkel Surgical Group ALBERTA ROGERS and JAMES ROGERS IN THE COURT OF COMMON PLEAS OF HUSBAND AND WIFE CUMBERLAND COUNTY, PENNSYLVANIA V. PLAINTIFFS NO. 04-0946 J. BRET DELONE, M.D., AND KUNKEL SURGICAL GROUP DEFENDANTS CIVIL ACTION -- LAW MEDICAL PROFESSIONAL LIABILITY ACTION JURY TRIAL DEMANDED RESPONSE OF DEFENDANTS, J. BRET DELONE, M.D. AND KUNKEL SURGICAL GROUP, TO PLAINTIFFS' PRELIIVIINARY OBJECTIONS TO DEFENDANTS' NEW MATTER AND NOW, come the Defendants, J. Bret Delone, M.D. and Kunkel Surgical Group (hereinafter "Responding Defendants"), by and through their counsel, Thomas, Thomas & Hafer, LLP, to respond to Plaintiffs' Preliminary Objections to Defendants' New Matter, to Plaintiffs' Second Amended Complaint, and in support of same, aver as follows: 1. Admitted in part and denied in part. It is admitted that certain of the paragraphs in Defendants' New Matter contain affirmative defenses. However, it is denied that all of the paragraphs contained in Defendants' New Matter set forth affirmative defenses. 2. This paragraph of Plaintiffs' Preliminary Objections contains a conclusion of law to which no response is required. To the extent an answer is deemed necessary, Plaintiffs' statement in this paragraph of their Preliminary Objections is incomplete, and therefore, is denied since Pa. R.C.P. 1019(a) and interpreting case law does not require a party to plead facts as to matters about which the objecting party has, or should have, as much or better knowledge than the pleader. 3. Denied as stated. To the extent that Responding Defendants are not in possession of the facts or knowledge necessary to plead more sufficient facts in support of the affirmative defenses set forth in their New Matter, and said facts are within the knowledge of Plaintiffs, then Responding Defendants' New Matter is sufficiently plead. By way of further answer, in response to Defendants' Preliminary Objections to Plaintiffs' Complaint based on vague and overly broad allegations of agency, Plaintiffs argued that the facts as to same were within the knowledge of Defendants, and thus, Plaintiffs shouldn't be required to plead them more specifically. For this very same reason, Plaintiffs' Preliminary Objections should be denied. By way of further answer, to the extent that any of the allegations in Responding Defendants' New Matter are not affirmative defenses, but instead, are evidentiary in nature, said allegations are subject to discovery, and a party is not required to plead them. Moreover, and importantly, there is absolutely no prejudice to Plaintiffs 4. Admitted in part and denied in part. It is admitted that Plaintiffs' Second Amended Complaint was filed on November 10, 2004, and Responding Defendants' Answer with New Matter was filed and served on or about December 13, 2004. However, it is denied that Responding Defendants' filing of its Answer with New Matter on or about December 13, 2004, fails to conform to the law and rules of court. Pennsylvania Court have consistently held that Pennsylvania Rule of Civil Procedure 1026 requiring the filing of responsive pleadings within twenty (20) days is not absolute. Moreover, Plaintiffs have not been prejudiced in any way by the fact that Defendants' Answer with New Matter was filed on December 13, 2004. 2 WHEREFORE, Responding Defendants, J. Bret Delone, M.D. and Kunkel Surgical Group, respectfully request that this Honorable Court deny Plaintiffs' Preliminary Objections to Defendants' New Matter and enter the attached proposed Order. Respectfully Submitted, THOMAS, THOMAS & HAFER, LLP Evan Bl ck, Esq. 001 0-?e Stephanie L. Hersperger, Esq. Attorneys for Defendants J. Bret Delone, M. D. and Kunkel Surgical Group Date: January 5, 2004 CERTIFICATE OF SERVICE I, Ashleigh E. Anglemeyer, an employee of the law offices of Thomas, Thomas & Hafer, LLP, do hereby certify that I served a true and correct copy of ',RESPONSE OF DEFENDANTS, J. BRET DELONE, M.D. AND KUNKEL SURGICAL GROUP, TO PLAINTIFFS' PRELIMINARY OBJECTIONS TO DEFENDANTS' NEW MATTER upon the following persons via United States mail, first class, postage prepaid, as follows: Leslie M. Fields, Esq. 831 Market Street P.O. Box 222 Lemoyne, PA 17043 Attorneys for Plaintiffs Date: January 5, 2005 f??Nul halob A Pr Ashleigh E. lemeyer 4 • . ?,. ' ? j ?I1 . - `_ C1? .--{ t..-? ?' `? ? _ ? '-' . (Jl ??(?? --' ?'..? z; t.,,? , ??. ? #11 ALBERTA M. ROGERS and JAMES ROGERS V. J. BRET DELONE, M.D., and KUNKEL SURGICAL GROUP IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 2004 - 0946 CIVIL TERM IN RE: PLAINTIFFS' PRELIMINARY OBJECTIONS TO DEFENDANTS' NEW MATTER BEFORE OLER, GUIDO, JJ. ORDER OF COURT AND NOW, this 22ND day of SEPTEMBER, 2005, after review of the briefs filed by the parties and having heard argument thereon, Plaintiffs' Preliminary Objections to Defendants' New Matter are GRANTED in part and DENIED in part. They are granted in connection with paragraphs 42 and 46 (statute of limitations), and 60 ("Two Schools of Thought"). Defendants are granted twenty (20) days to replead those paragraphs with the factual specificity required by Pa. Rule of Civil Procedure 1019 (a).' The remaining Preliminary Objections are DI /eslie Fields, Esquire t.Gerryanne Cauler, Esquire , rr ? v V? ' We found the reasoning of Judge Saylor in Mancini v. Yavorek, Northumberland County, No. 1414 Civil 2002 to be persuasive. We adopt Judge Saylor's reasoning as the basis for our disposition of the preliminary objections based upon lack of specificity. 1 l : V 1?!d 92 dS S?Ol 3 3,4130 1.`c1?1G?'JI? v,'J311? Curtis R. Long Prothonotary office of the i9rotbonotarp 11 Renee K. Simpson Cumberfalab Countp Deputy Prothonotary John E. Slike Solicitor 0Y - 9gim CIVIL TERM ORDER OF TERMINATION OF COURT CASES AND NOW THIS 29TH DAY OF OCTOBER 2008 AFTER MAILING NOTICE OF INTENTION TO PROCEED AND RECEIVING NO RESPONSE - THE ABOVE CASE IS HEREBY TERMINATED WITH PREJUDICE IN ACCORDANCE WITH PA RCP230.2 BY THE COURT, CURTIS R. LONG PROTHONOTARY One Courthouse Square - Carlisle, Pennsylvania 17013 - (717) 240-6195 - Fax (717) 240-6573