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HomeMy WebLinkAbout04-1235JOANN M. STITELER, : IN THE COURT OF COMMON PLEAS OF Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA V. : CIVIL ACTION - LAW MENDELSON FOER : No. ?y is ?5 CIVIL TERM HARRISON, DENTAL ASSOCIATES and DR. MICHAEL P. MENDELSON, : Defendants : JURY TRIAL DEMANDED NOTICE TO DEFEND AND CLAIM RIGHTS 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 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 judgement may be entered against you by the Court without further notice for any money claimed in the complaint or for any other claim or relief requested by the Plaintiff. You may loose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. Cumberland County Bar Association 32 South Bedford Street Carlisle, Pennsylvania 17013 (717) 249-3166 JOANN M. STITELER, Plaintiff V. MENDELSON FOER HARRISON, DENTAL ASSOCIATES and DR. MICHAEL P. MENDELSON, Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW No. CIVIL TERM JURY TRIAL DEMANDED COMPLAINT 1. Plaintiff, Joann M. Stiteler, (hereinafter referred to as "Plaintiff') is an adult individual currently residing at 3804 Lamp Post Lane, Camp Hill, Pennsylvania. 2. Defendant, Mendelson Foer Harrison, Dental Associates, (hereinafter referred to as "Defendant Dental Associates") is a licensed professional dental practice operating at 4824 East Trindle Road in Mechanicsburg, Cumberland County, Pennsylvania. Plaintiff is asserting a professional liability claim against this defendant. Plaintiff intends to file a certificate of merit within sixty days of this complaint. 3. Defendant, Dr. Michael P. Mendelson, (hereinafter referred to as "Defendant Mendelson') is an adult individual currently residing at 1013 Wansford Road in Mechanicsburg, Cumberland County, Pennsylvania. Defendant Mendelson is a licensed professional operating with Defendant Dental Associates. Plaintiff is asserting a professional liability claim against this defendant. Plaintiff intends to file a certificate of merit within sixty days of this complaint. 4. As a Pennsylvania licensed dental practice and dentist, Defendant Dental Associates and Defendant Mendelson, have an expected standard of practice to adhere to. 5. As members of the American Dental Association, the Pennsylvania Dental Association, and the Academy of General Dentistry, Defendant Dental Associates and Defendant Mendelson, have an expected standard of practice to adhere to. 6. Further, Defendant Dental Associates represents to its patients and prospective patients, to provide the highest level of dental care for its patients, utilizing state-of- the-art technologies and personalized service to each and every patient. 7. Further, Defendant Dental Associates represents to it's patients and prospective patients, a philosophy of giving the absolute best health care service to it's patients. 8. Further, Defendant Dental Associates office personnel inform prospective patients, that Defendant Dental Associates dentists do inform patients, in advance, of dental procedures that may cause harm and damage to patients, including possible significant and/or permanent nerve damage. 9. Plaintiff had, and continues to have, an ongoing need for general dental services. 10. Plaintiff applied to be a patient of Defendant Dental Associates in or around 1984. 11. Plaintiff applied to be a patient of Defendant Dental Associates because Plaintiff was in search of a dental practice that provided a very high standard of dental care, that utilized state-of-the-art technologies, and who would employ personalized service to Plaintiff and Plaintiff's family. 12. Defendant Dental Associates accepted Plaintiff as a patient in or around 1984. 13. Since being a patient of Defendant Dental Associates, Plaintiff has always relied on Defendant Dental Associates to provide a very high standard of dental care, to utilize state-of-the-art technologies, and employ personalized service to Plaintiff's dental needs; including the expectation of being informed in advance of any dental procedures that could cause significant and/or permanent damage or harm to the Plaintiff. 14. On March 25, 2002, Plaintiff was injured by Defendant Mendelson while performing dental procedures on Plaintiff, as described herein. 15. On the aforesaid date, Defendant Mendelson performed a series of procedures to eliminate a cavity from a tooth of Plaintiff; the tooth being located in the lower right section of Plaintiffs tooth structure. 16. In doing so, Defendant Mendelson employed a procedure to numb Plaintiffs lower right jaw area by injecting a needle to the area under the tooth having the above- mentioned cavity. 17. After the needle penetrated the skin and was placed in the aforesaid area, and as Defendant Mendelson pressed the needle apparatus downward injecting the numbing fluid, Plaintiff felt a severe pain causing her, as a re-action, to noticeably flinch. 18. As Defendant Mendelson observed Plaintiff flinching, Defendant Mendelson instructed the Plaintiff to stay calm and relax, further stating that he is almost done injecting the fluid. 19. As instructed by Defendant Mendelson, Plaintiff remained calm and tried to relax, but while doing so Plaintiffs severe pain continued until such time when Defendant Mendelson finished the procedure and extracted the needle from the Plaintiffs gum area. 20. From the time of the injection to the present, Plaintiff has incurred, and continues to incur, the following effects from this procedure: • Numbness of the lower right lip area, • Numbness of the lower right facial chin area, • An awkwardness and sensitivity when performing normal hygiene and cosmetic care to the lower right lip, chin and cheek area; to the degree Plaintiff consciencely avoids the injured area, • A more difficult time placing food and drinks into the mouth by way of the lower right portion of the lip area, by not being able to feel the sensation of the food or drink entering the mouth through the numbed lip area, • A high level of conscience-ness not to accidentally bite the numbed area of the lip in fear of causing further damage to the already injured lip area. • A high level of conscience-ness not to place hot foods or drinks on the lower right section of Plaintiffs lip area while entering Plaintiffs mouth, for fear of burning Plaintiff's lower lip area and not knowing it, due to the numbness, causing additional damage to the already injured area, • A slight dis-figuration of the lower right lip area. 21. From the time of the injection to October 22, 2002, Plaintiff initiated and continued a dialog with Defendant Mendelson informing Defendant Mendelson of the aforesaid effects of the needle injection procedure, as those effects were known to Plaintiff. 22. Based on the aforesaid information provided by Plaintiff, Defendant Mendelson responded: • Defendant Mendelson was not sure why it occurred, • Defendant Mendelson could have injected the needle close enough to a nerve, causing the numbness, Defendant Mendelson said he used a new type of numbing fluid which could be causing the problems, • Defendant Mendelson stated there is nothing he can do about it, it should improve and get better over time, that nerves do re-generate themselves, • Defendant Mendelson was sorry that it happened. 23. Plaintiffs condition has not improved. It has progressively gotten worse. 24. Since the occurrence, Plaintiff learned the specific needle injection procedure used by Defendant Mendelson can cause significant and/or permanent nerve damage, depending on the placement of the needle by the dentist. 25. At no time was Plaintiff informed, either orally or in writing, until after the occurrence, that the needle injection procedure used by Defendant Mendelson could cause significant and/or permanent damage, of functionality and appearance, to the lip, jaw and facial area of Plaintiff. 26. If Plaintiff would have known this in advance, Plaintiff would have requested from Defendant Mendelson the available options to the procedure, and based on those options would have selected the one of no, or less risk, of significant and/or permanent damage to the lip, jaw and facial area. 27. As a licensed dentist practicing in Pennsylvania, and as a member of the American Dental Association, and as a member of the Pennsylvania Dental Association, and as a member of the Academy of Dentistry; in union with representing to its patients of providing the highest level of dental care for it's patients, utilizing state-of-the-art technologies, personalized service to each and every patient, and a philosophy of giving the absolute best health care service; and joining statements made by Defendant Dental Associates office staff that Defendant Dental Associates dentists do inform patients, in advance, of dental procedures that may cause harm and damage to patients, including possible significant and permanent nerve damage, Defendant Dental Associates and Defendant Mendelson had a duty to inform Plaintiff, in advance, of the risks of the aforesaid dental procedure causing significant and/or permanent damage to the functionality and appearance to Plaintiffs lip, chin and cheek area. 28. When Defendant Mendelson did not inform Plaintiff of the risks of the aforesaid Defendant Dental Associates office staff that Defendant Dental Associates dentists do inform patients, in advance, of dental procedures that may cause harm and damage to patients, including possible significant and permanent nerve damage, Defendant Dental Associates and Defendant Mendelson had a duty to inform Plaintiff, in advance, of the risks of the aforesaid dental procedure causing significant and/or permanent damage to the functionality and appearance to Plaintiffs lip, chin and cheek area. 28. When Defendant Mendelson did not inform Plaintiff of the risks of the aforesaid procedure performed, and the significant and/or permanent damage it could cause, Defendant Mendelson transferred the responsibility of the aforesaid procedure outcome from the Plaintiff to Defendant Dental Associates and Defendant Mendelson. 29. When Plaintiff engaged Defendant Dental Associates as Plaintiff's dentist, Plaintiff relied on Defendant Dental Associates representations of providing the highest level of dental care for it's patients, utilizing state-of-the-art technologies and personalized service to each and every patient, including a philosophy of giving the absolute best health care service; to communicate to Plaintiff, in advance, of any dental procedure of known complications which could result in significant and/or permanent damage to Plaintiff's body, allowing the Plaintiff procedure-options of no, or less risk. Count I Plaintiff v. Defendant Dental Associates 30. Plaintiff, hereby incorporates paragraphs 1 through 29 of the foregoing Complaint in this paragraph as if set forth in their text. 31. From the time of the injection to the present, Plaintiff has incurred, and continues to incur, the following injuries and side-effects of the injuries from this procedure: Numbness of the lower right lip area, • Numbness of the lower right facial chin area, • An awkwardness and sensitivity when performing normal hygiene and cosmetic care to the lower right lip, chin and cheek area; to the degree Plaintiff consciencely avoids the injured area, • A more difficult time placing food and drinks into the mouth by way of the lower right portion of the lip area, by not being able to feel the sensation of the food or drink entering the mouth through the numbed lip area, • A high level of conscience-ness not to accidentally bite the numbed area of the lip in fear of causing further damage to the already injured lip area, • A high level of conscience-ness not to place hot foods or drinks in the lower right section of Plaintiff's lip area while entering Plaintiff's mouth, for fear of burning Plaintiff's lower lip area and not knowing it due to the numbness, causing additional damage to the already injured area, A slight dis-figuration of the lower right lip area, • A high level of stress and anxiety caused by the effects of the injury and the unknown future of whether the injury will continue to de-grade the functionality and appearance of Plaintiff's lip, chin and cheek area. 32. From the time of the injection until the present, the damage to the functionality and appearance of Plaintiff has worsened, and may continue to worsen and further damage the functionality and the appearance of Plaintiff's lip, chin and cheek areas. 33. Defendant Dental Associates mis-represented its level of dental care and level of personalized service to Plaintiff, or Defendant Dental Associates was negligent in not performing at the level of care and service it represented to Plaintiff, by not informing Plaintiff, in advance, of the complications which could result in significant and/or permanent damage to the lip, chin and cheek areas; and not allowing the Plaintiff to consider procedure-options of no, or less risk. 34. As a result of Defendant Dental Associates' mis-representation, or negligence, Plaintiff has sustained injuries causing significant harm and damage to the functionality and appearance to Plaintiffs lip, chin and cheek area; and has been under continued mental stress and anxiety over the current injuries, their side-effects, and the possible additional damage the procedure may cause over the remaining years of Plaintiff's life. WHEREFORE, Plaintiff demands judgement for damages against Defendant Dental Associates in an in excess of $25,000, exclusive of any interest and costs, and otherwise in an amount in excess of the amount requiring compulsory arbitration. Count II Plaintiff v. Defendant Mendelson 35. Plaintiff, hereby incorporates paragraphs I through 34 of the foregoing Complaint in this paragraph as if set forth in their text. 36. From the time of the injection to the present, Plaintiff has incurred, and continues to incur, the following injuries and side-effects of the injuries from this procedure: • Numbness of the lower right lip area, • Numbness of the lower right facial chin area, • An awkwardness and sensitivity when performing normal hygiene and cosmetic care to the lower right lip, chin and cheek area; to the degree Plaintiff consciencely avoids the injured area, • A more difficult time placing food and drinks into the mouth by way of the lower right portion of the lip area, by not being able to feel the sensation of the food or drink entering the mouth through the numbed lip area, • A high level of conscience-ness not to accidentally bite the numbed area of the lip in fear of causing further damage to the already injured lip area, • A high level of conscience-ness not to place hot foods or drinks in the lower right section of Plaintiff's lip area while entering Plaintiff's mouth, for fear of burning Plaintiff's lower lip area and not knowing it due to the numbness, causing additional damage to the already injured area, 0 A slight dis-figuration of the lower right lip area, • A high level of stress and anxiety on the effects of the injury and the unknown future of whether the injury will continue to de-grade the functionality and appearance of Plaintiff's lip, chin and cheek area. 37. From the time of the injection until the present, the damage to the functionality and appearance of Plaintiff has worsened, and may continue to worsen and further damage the functionality and the appearance of Plaintiff's lip, chin and cheek areas. 38. Defendant Mendelson mis-represented his level of dental care and level of personalized service to Plaintiff, or Defendant Mendelson was negligent in not performing at the level of care and service he represented to Plaintiff, by not informing the Plaintiff, in advance, of the complications which could result in significant and/or permanent damage to the lip, chin and cheek areas, and not allowing the Plaintiff procedure-options of no, or less risk. 39. As a result of Defendant Mendelson's mis-representation, or negligence, Plaintiff has sustained injuries causing significant harm and damage to the functionality and appearance to Plaintiffs lip, chin and cheek area; and has been under continued mental stress and anxiety over the current injuries, their side-effects, and the possible additional damage the procedure may cause over the remaining years of Plaintiff's life. WHEREFORE, Plaintiff demands judgement for damages against Defendant Dental Associates in an in excess of $25,000, exclusive of any interest and costs, and otherwise in an amount in excess of the amount requiring compulsory arbitration. Count III Plaintiff v. Defendant Dental Associates 40. Plaintiff, hereby incorporates paragraphs 1 through 39 of the foregoing Complaint in this paragraph as if set forth in their text. 41. From the time of the injection to the present, Plaintiff has incurred, and continues to incur, the following injuries and side-effects of the injuries from this procedure: a Numbness of the lower right lip area, • Numbness of the lower right facial chin area, • An awkwardness and sensitivity when performing normal hygiene and cosmetic care to the lower right lip, chin and cheek area; to the degree Plaintiff consciencely avoids the injured area, • A more difficult time placing food and drinks into the mouth by way of the lower right portion of the lip area, by not being able to feel the sensation of the food or drink entering the mouth through the numbed lip area, • A high level of conscience-ness not to accidentally bite the numbed area of the lip in fear of causing further damage to the already injured lip area, • A high level of conscience-ness not to place hot foods or drinks in the lower right section of Plaintiff's lip area while entering Plaintiff's mouth, for fear of burning Plaintiff's lower lip area and not knowing it due to the numbness, causing additional damage to the already injured area, • A slight dis-figuration of the lower right lip area, • A high level of stress and anxiety on the effects of the injury and the unknown future of whether the injury will continue to de-grade the functionality and appearance of Plaintiffs lip, chin and cheek area. 42. From the time of the injection until the present, the damage to the functionality and appearance of Plaintiff has worsened, and may continue to worsen and further damage the functionality and the appearance of Plaintiffs lip, chin and cheek areas. 43. Defendant Dental Associates was negligent in not aborting the needle injection procedure once Defendant Dental Associates became aware of the Plaintiffs severe pain by way of Plaintiffs flinching re-action. If the procedure would have been aborted, Defendant Dental Associates could have mitigated further damage to the injured area. 44. As a result of Defendant Dental Associates negligence, Plaintiff has sustained injuries causing significant harm and damage to the functionality and appearance to Plaintiffs lip, chin and cheek area; and has been under continued mental stress and anxiety over the current injuries, their side-effects, and the possible additional damage the procedure may cause over the remaining years of Plaintiffs life. WHEREFORE, Plaintiff demands judgement for damages against Defendant Dental Associates in an in excess of $25,000, exclusive of any interest and costs, and otherwise in an amount in excess of the amount requiring compulsory arbitration. Count IV Plaintiff v. Defendant Mendelson 45. Plaintiff, hereby incorporates paragraphs 1 through 44 of the foregoing Complaint in this paragraph as if set forth in their text. 46. From the time of the injection to the present, Plaintiff has incurred, and continues to incur, the following injuries and side-effects of the injuries from this procedure: • Numbness of the lower right lip area, • Numbness of the lower right facial chin area, • An awkwardness and sensitivity when performing normal hygiene and cosmetic care to the lower right lip, chin and cheek area, to the degree Plaintiff consciencely avoids the injured area, • A more difficult time placing food and drinks into the mouth by way of the lower right portion of the lip area, by not being able to feel the sensation of the food or drink entering the mouth through the numbed lip area, • A high level of conscience-ness not to accidentally bite the numbed area of the lip in fear of causing further damage to the already injured lip area, • A high level of conscience-ness not to place hot foods or drinks in the lower right section of Plaintiff's lip area while entering Plaintiff's mouth, for fear of burning Plaintiff's lower lip area and not knowing it due to the numbness, causing additional damage to the already injured area, • A slight dis-figuration of the lower right lip area, • A high level of stress and anxiety on the effects of the injury and the unknown future of whether the injury will continue to de-grade the functionality and appearance of Plaintiff's lip, chin and cheek area. 47. From the time of the injection until the present, the damage to the functionality and appearance of Plaintiff has worsened, and may continue to worsen and further damage the functionality and the appearance of Plaintiff's lip, chin and cheek areas. 48. Defendant Mendelson was negligent in not aborting the needle injection procedure once Defendant Mendelson became aware of the Plaintiff's severe pain by way of Plaintiff's flinching re-action. If the procedure would have been aborted, Defendant Mendelson could have mitigated further damage to the injured area. 49. As a result of Defendant negligence, Plaintiff has sustained injuries causing significant harm and damage to the functionality and appearance to Plaintiff's lip, chin and cheek area; and has been under continued mental stress and anxiety over the current injuries and their side-effects, and the possible additional damage the procedure may cause over the remaining years of Plaintiff's life. WHEREFORE, Plaintiff demands judgement for damages against Defendant Dental Associates in an in excess of $25,000, exclusive of any interest and costs, and otherwise in an amount in excess of the amount requiring compulsory arbitration. Respectfully Submitted, roann M. Stiteler, Plaintiff 3804 Lamp Post Lane Camp Hill, PA 17011 VERIFICATION I verify that the statements made in the foregoing document are true and correct. We understand that false statements herein are made subject to the penalties of 18 Pa.C.S. Section 4904, relating to unworn falsifications to authorities. DATE: ? tea _?J"y P Joann M. Stiteler r-? _? ?? ? ?? ?. ? ? ?? ,? C `1 `? .,? SHERIFF'S RETURN - REGULAR CASE NO: 2004-01235 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND STITELER JOANN M VS MENDELSON FOER HARRISON DENTAL CPL. MICHAEL BARRICK , Sheriff or Deputy Sheriff of Cumberland County,Pennsylvania, who being duly sworn according to law, says, the within COMPLAINT & NOTICE was served upon MENDELSON FOER HARRISON DENTAL ASSOCIATES the DEFENDANT , at 1614:00 HOURS, on the 6th day of April 2004 at 4824 EAST TRINDLE ROAD MECHANICSBURG, PA 17055 DR MICHAEL P MENDELSON by handing to a true and attested copy of COMPLAINT & NOTICE together with and at the same time directing His attention to the contents thereof. Sheriff's Costs: Docketing 18.00 Service 8.28 Affidavit .00 Surcharge 10.00 .00 36.28 Sworn and Subscribed to before me this /Z day of 2 rh `/ A.D. 000U 99. , 1Prothonotary So Answers: R. Thomas Kline 04/07/2004 JOANN STITELER _ By: y ShL-'riff SHERIFF'S RETURN - REGULAR CASE NO: 2004-01235 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND STITELER JOANN M VS MENDELSON FOER HARRISON DENTAL CPL. MICHAEL BARRICK , Sheriff or Deputy Sheriff of Cumberland County,Pennsylvania, who being duly sworn according to law, says, the within COMPLAINT & NOTICE was served upon MENDELSON MICHAEL P DR the DEFENDANT , at 1614:00 HOURS, on the 6th day of April 2004 at 1013 WANSFORD ROAD MECHANICSBURG, PA 17055 by handing to DR MICHAEL P MENDELSON a true and attested copy of COMPLAINT & NOTICE together with and at the same time directing His attention to the contents thereof. Sheriff's Costs: Docketing Service Affidavit Surcharge 6.00 .00 .00 10.00 .00 16.00 So Answers: fi R. Thomas Kline 04/07/20C JOANN STITELER Sworn and Subscribed to before By: me this L r11- day of 0 ?Ut7Y A.D. tary' 'Ptoonory oth JOANN M. STITELER and IN THE COURT 01, COMMON PLEAS OF R. DEAN STITELER, CUMBERLAND COUNTY, PENNSYLVANIA Plaintiffs CIVIL ACTION - LAW V. NO. 04-1235 CIVIL TERM MENDELSON FOER HARRISON, : DENTAL ASSOCIATES and MICHAEL P. MENDELSON, DDS, : Defendants : JURY TRIAL DEMANDED MOTION FOR LEAVE TO AMEND CAPTION TO THE HONORABLE COMES NOW Joann M. Stiteler, Plaintiff in the above-captioned action, and makes this motion for leave to amend the caption of the above-docketed civil action proceeding, stating in support herein as follows: Plaintiff is filing this proceeding pro se and as such, is continually researching the Rules of Civil Procedure, local and state, to ensure that all documents are filed according to state and local laws. 2. Plaintiff wishes to amend her caption, as corrected in the caption of this motion, in the above-docketed civil proceeding to include her husband, R. Dean Stiteler, as allowed under Pa. R.C.P. 2228(a), which states that " if an injury. is inflicted upon the person of a husband or a wife, and causes of action therefore accrue to both, they shall be enforced in one action brought by the husband and the wife". Pa. R.C.P. 2228(a). 3. Plaintiff also wishes to amend the name of the Defendants, and change "Dr. Michael P. Mendelson" to "Michael P. Mendelson, DDS". WHEREFORE, Plaintiff hereby requests this Honorable Court to amend the caption in her above-docketed civil proceeding to include the name of her husband R. Dean Stiteler, according to Pa. R.C.P. 2228(a) requiring mandatory joinder in a case where an injury, not resulting in death, is inflicted upon the person of a husband or a wife, and causes of action therefore accrue to both, and they shall be enforced in one action brought by the husband and the wife. Further, the Plaintiff requests this Honorable Court to amend the name of the Defendant "Dr. Michael P. Mendelson" to "Michael P. Mendelson, DDS". P Post Lane amp L Camp ]Hill, PA 17011 Date: , O4 (717) 763-14/566 R. Dean Stiteler, Plaintiff 3804 Lamp Post Lane Camp :Hill, PA 17011 Date: (717) 763-1456 Respectfully submitted, J ann ]vi. Stiteler, Plaintiff JOANN M. STITELER and : IN THE COURT OF COMMON PLEAS OF R. DEAN STITELER, : CUMBERLAND COUNTY, PENNSYLVANIA Plaintiffs CIVIL ACTION - LAW V. NO. 04-1235 CIVIL TERM MENDELSON FOER HARRISON, : DENTAL ASSOCIATES and MICHAEL P. MENDELSON, DDS, : Defendants : JURY TRIAL DEMANDED VERIFICATION We, Joann M. Stiteler and R. Dean Stiteler, verify that the statements made in the attached Amendment are true and correct to the best of our knowledge. We understand that any false statement made herein are subject to penalty. t M. Stiteler '-Q? ?` cm R. Dean Stiteler Date: 11? JOANN M. STITELER and : IN THE COURT OF COMMON PLEAS OF R. DEAN STITELER, : CUMBERLAND COUNTY, PENNSYLVANIA Plaintiffs V. : CIVIL ACTION - LAW MENDELSON FOER :No. 04-1235 CIVIL TERM HARRISON, DENTAL ASSOCIATES and MICHAEL P. MENDELSON, DDS Defendants : JURY TRIAL DEMANDED NOTICE TO DEFEND AND CLAIM RIGHTS 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 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 judgement may be entered against you by the Court without further notice for any money claimed in the complaint or for any other claim or relief requested by the Plaintiff. You may loose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. Cumberland County Bar Association 32 South Bedford Street Carlisle, Pennsylvania 17013 (717) 249-3166 JOANN M. STITELER and : IN THE COURT OF COMMON PLEAS OF R. DEAN STITELER, : CUMBERLAND COUNTY, PENNSYLVANIA Plaintiffs V. : CIVIL ACTION - LAW MENDELSON FOER :No. 04-1235 CIVIL TERM HARRISON, DENTAL ASSOCIATES and MICHAEL P. MENDELSON, DDS Defendants : JURY TRIAL DEMANDED PLAINTIFFS' FIRST AMENDED COMPLAINT I. Plaintiff, Joann M. Stiteler, (hereinafter referred to as "Plaintiff") is an adult individual currently residing at 3804 Lamp Post Lane, Cupp Hill, Pennsylvania. 2. Plaintiff, R. Dean Stiteler, (hereinafter referred to as "Plaintiff-Husband") is an adult individual currently residing at 3804 Lamp Post Lane, Camp Hill, Pennsylvania, and is the husband of Plaintiff. 3. Defendant, Mendelson Foer Harrison, Dental Associates, (hereinafter referred to as "Defendant Dental Associates") is a professional dental practice operating at 4824 East Trindle Road in Mechanicsburg, Cumberland County, Pennsylvania. Plaintiffs are asserting a professional liability claim against this defendant. Plaintiffs intend to file a certificate of merit within sixty days of this complaint. 4. Defendant, Michael P. Mendelson, DDS (hereinafter referred to as "Defendant Mendelson") is an adult individual whose last known address is 1013 Wansford Road in Mechanicsburg, Cumberland County, Pennsylvania. Defendant Mendelson is a licensed professional dentist operating with Defendant Dental Associates. Plaintiffs are asserting a professional liability claim against this defendant. Plaintiffs intend to file a certificate of merit within sixty days of this complaint. 5. As a Pennsylvania licensed dental practice and dentist, Defendant Dental Associates and Defendant Mendelson, have an expected standard of practice to adhere to. 6. As a member of the American Dental Association, the Pennsylvania Dental Association, and the Academy of General Dentistry, ]Defendant Mendelson has an expected standard of practice to adhere to. 7. Further, Defendant Dental Associates advertises and represents to its patients and prospective patients, to provide the highest level of dental care for its patients, utilizing state-of-the-art technologies and personalized service to each and every patient. 8. Further, Defendant Dental Associates advertises and represents to it's patients and prospective patients, a philosophy of giving the absolute best health care service to it's patients. 9. Further, Defendant Dental Associates office personnel inform prospective patients, that Defendant Dental Associates dentists do inform patients, in advance, of dental procedures that may cause harm and damage to patients, including possible significant and/or permanent nerve damage. 10. Plaintiff had, and continues to have, an ongoing need for general dental services. 11. Plaintiff applied to be a patient of Defendant Dental Associates in or around 1984. 12. Plaintiff applied to be a patient of Defendant Dental Associates because Plaintiff was in search of a dental practice that provided a very high ;standard of dental care, that utilized state-of-the-art technologies, and who would employ personalized service to Plaintiff and Plaintiff's family. 13. Defendant Dental Associates accepted Plaintiff as a patient in or around 1984. 2 14. Since being a patient of Defendant Dental Associates, Plaintiff has always relied on Defendant Dental Associates to provide a very high standard of dental care, to utilize state-of-the-art technologies, and employ personalized service to Plaintiff's dental needs; including the expectation of being informed. in advance of any dental procedures that could cause significant and/or permanent damage or harm to the Plaintiff. 15. On March 25, 2002, Plaintiff was injured by Defendant Mendelson while performing dental procedures on Plaintiff, as described herein. 16. On the aforesaid date, Defendant Mendelson performed a series of tooth restoration dental procedures to eliminate tooth decay and restore a tooth of Plaintiff. The tooth being located in the lower right section of Plaintiff's tooth structure. 17. In doing so, Defendant Mendelson employed a procedure to numb Plaintiffs lower right jaw area by injecting a needle with anesthesia to the gum area under the tooth having the above-mentioned cavity. 18. After the needle penetrated the skin and was placed in the aforesaid area, and as Defendant Mendelson pressed the needle apparatus downward injecting the anesthesia, Plaintiff felt a severe pain causing her, as a reaction, to noticeably flinch. 19. As Defendant Mendelson observed Plaintiff flinching, Defendant Mendelson instructed the Plaintiff to stay calm and relax, further stating that he is almost done injecting the anesthesia. 20. As instructed by Defendant Mendelson, Plaintiff remained calm and tried to relax, but while doing so Plaintiff's severe pain continued until such time when Defendant 3 Mendelson finished the procedure and extracted the needle from the Plaintiffs gum area. 21. From the time of the injection to the present, Plaintiff has incurred, and continues to incur, the following effects from this procedure: • Numbness of the lower right lip area, • Numbness of the lower right facial chin area, • An awkwardness and sensitivity when performing normal hygiene and cosmetic care to the lower right lip, chin and cheek area; to the degree Plaintiff consciencely avoids the injured area, • A more difficult time placing food and drinks into the mouth by way of the lower right portion of the lip area, by not being able to feel the sensation of the food or drink entering the mouth through the numbed lip area, • A high level of conscience-ness not to accidentally biite the numbed area of the lip in fear of causing further damage to the already injured lip area. • A high level of conscience-ness not to place hot foods or drinks on the lower right section of Plaintiff's lip area while entering Plaintiff's mouth, for fear of burning Plaintiff's lower lip area and not knowing it, due; to the numbness, causing additional damage to the already injured area, • A slight and inconsistently visible dis-figuration of the lower right lip area, • A very annoying sensation in the lower right lip, chin and cheek area when those areas are exposed to cold weather conditions. 4 22. From the time of the injection to October 22, 2002, Plaintiff initiated and continued a dialog with Defendant Mendelson informing Defendant Mendelson of the aforesaid effects of the needle injection procedure, as those effects were known to Plaintiff. 23. Based on the information provided by Plaintiff, Defendant Mendelson responded: • Defendant Mendelson was not sure why it occurred, • Defendant Mendelson could have injected the needle close to a nerve, causing the numbness, • Defendant Mendelson said he used a new type of anesthesia which could be causing the problems, • Defendant Mendelson stated there is nothing he can do about it, it should improve and get better over time, that nerves do re-generate themselves, • Defendant Mendelson was song that it happened, and doesn't know what else to you (Plaintiff). 24. Plaintiff's condition has not improved. It has progressively gotten worse. 25. Since the occurrence, Plaintiff learned the specific needle injection procedure used by Defendant Mendelson can cause significant and/or permanent nerve damage, depending on the placement of the needle by the dentist. 26. At no time was Plaintiff informed, either orally or in writing, until after the occurrence, that the needle injection procedure used by Defendant Mendelson could cause significant and/or permanent damage, of functionality and appearance, to the lip, jaw and facial area of Plaintiff. 27. If Plaintiff would have known this in advance, Plaintiff would have requested from Defendant Mendelson the available options to the procedure, and based on those 5 options would have selected the one of no, or less, risk of significant and/or permanent damage to the lip, jaw and facial area. 28. As a licensed dentist practicing in Pennsylvania, and as a member of the American Dental Association, and as a member of the Pennsylvania Dental Association, and as a member of the Academy of Dentistry; in union with advertising and representing to its patients of providing the highest level of dental care for it's patients, utilizing state-of-the-art technologies, personalized service to each and every patient, and a philosophy of giving the absolute best health care service; and joining statements made by Defendant Dental Associates office staff that Defendant Dental Associates dentists do inform patients, in advance, of dental procedures that may cause harm and damage to patients, including possible significant and permanent nerve damage; Defendant Dental Associates and Defendant Mendelson had a duty to inform Plaintiff, in advance, of the risks of the aforesaid dental procedure causing significant and/or permanent damage to the functionality and appearance to Plaintiffs lip, chin and cheek area. 29. When Plaintiff engaged Defendant Dental Associates as Plaintiffs dentist, Plaintiff relied on Defendant Dental Associates advertising and representations of providing the highest level of dental care for it's patients, utilizing state-of-the-art technologies and personalized service to each and every patient, including a philosophy of giving the absolute best health care service; to communicate to Plaintiff, in advance, of any dental procedure which could result in significant and/or permanent damage to Plaintiffs body, allowing the Plaintiff procedure-options of no, or less risk. 6 30. When Defendant Mendelson did not inform Plaintiff of the risks of the aforesaid procedures performed, and the significant and/or permanent damage they could cause, allowing Plaintiff an opportunity to choose less risky options, Defendant Mendelson transferred the responsibility of the aforesaid procedures outcome from the Plaintiff to Defendant Dental Associates and Defendant Mendelson. 31. On October 30, 2003, Plaintiff decided to terminate dental services with Defendant Dental Associates when during a dental check up and teeth cleaning of that day with Defendant Mendelson, Defendant Mendelson never even inquired upon Plaintiff the status of the Plaintiff s aforesaid injury. CountI Plaintiff v. Defendant Dental Associates Negligence 32. Plaintiff, hereby incorporates paragraphs 1 through 31 of the foregoing Complaint in this paragraph as if set forth in their text. 33. From the time of the injection to the present, Plaintiff has incurred, and continues to incur, the following injuries and side-effects of the injuries from this procedure: • Numbness of the lower right lip area, • Numbness of the lower right facial chin area, • An awkwardness and sensitivity when performing normal hygiene and cosmetic care to the lower right lip, chin and cheek area; to the degree Plaintiff consciencely avoids the injured area, • A more difficult time placing food and drinks into Cie mouth by way of the lower right portion of the lip area, by not being able to feel the sensation of the food or drink entering the mouth through the numbed lip area, • A high level of conscience-ness not to accidentally bite the numbed area of the lip in fear of causing further damage to the already injured lip area, • A high level of conscience-ness not to place hot foods or drinks in the lower right section of Plaintiff's lip area while entering Plaintiff's mouth, for fear of burning Plaintiff's lower lip area and not knowing it due to the numbness, causing additional damage to the already injured area, • A slight and inconsistently visible dis-figuration of the lower right lip area, • A very annoying sensation in the lower right lip, chin and cheek area when those areas are exposed to cold weather conditions, • A high level of stress and anxiety on the effects of the injury and the unknown future of whether the injury will continue to de-grade the functionality and appearance of Plaintiff's lip, chin and cheek area. 34. From the time of the injection until the present, the damage to the functionality and appearance of Plaintiff has worsened, and may continue to worsen and further damage the functionality and the appearance of Plaintiff's lip, chin and cheek areas. 35. Defendant Dental Associates had a duty to perform to the expected standards of a professional dental office employing licensed dentists. 36. Defendant Dental Associates was negligent in not aborting, or temporarily halting the needle injection procedure once Defendant Dental Associates became aware of the Plaintiffs severe pain by way of Plaintiff's flinching re-action, and assessing the 8 Plaintiff's acknowledged concern. If the procedure would have been aborted or temporarily halted, and the Plaintiff's acknowledged concern properly assessed, Defendant Dental Associates could have mitigated further damage to the injured area. 37. If Plaintiff was properly informed of the risk of nerve damage of this needle injection procedure, Plaintiff would have selected a less risky alternative. 38. As a result of Defendant Dental Associates negligence, :Plaintiff has sustained injuries causing significant harm and damage to the functionality and appearance to Plaintiffs lip, chin and cheek area; and has been under continued mental stress and anxiety over the current injuries, their side-effects, and the possible additional damage the procedure may cause over the remaining years of Plaintiff's life. WHEREFORE, Plaintiff demands judgement for damages against Defendant Dental Associates in an amount in excess of $25,000, exclusive of any interest and costs, and otherwise in an amount in excess of the amount requiring compulsory arbitration. Count 11 Plaintiff v. Defendant Mendelson Negligence 39. Plaintiff, hereby incorporates paragraphs 1 through 38 of the foregoing Complaint in this paragraph as if set forth in their text. 40. From the time of the injection to the present, Plaintiff has incurred, and continues to incur, the following injuries and side-effects of the injuries from this procedure: • Numbness of the lower right lip area, • Numbness of the lower right facial chin area, 9 • An awkwardness and sensitivity when performing normal hygiene and cosmetic care to the lower right lip, chin and cheek area, to the degree Plaintiff consciencely avoids the injured area, • A more difficult time placing food and drinks into the mouth by way of the lower right portion of the lip area, by not being able to feel the sensation of the food or drink entering the mouth through the numbed lip area, • A high level of conscience-ness not to accidentally bite the numbed area of the lip in fear of causing further damage to the already injured lip area, • A high level of conscience-ness not to place hot foods or drinks in the lower right section of Plaintiffs lip area while entering plaintiffs mouth, for fear of burning Plaintiffs lower lip area and not knowing it due to the numbness, causing additional damage to the already injured area, • A slight and inconsistently visible dis-figuration of the lower right lip area, • A very annoying sensation in the lower right lip, chin and cheek area when those areas are exposed to cold weather conditions, • A high level of stress and anxiety on the effects of the injury and the unknown future of whether the injury will continue to de-grade the functionality and appearance of Plaintiffs lip, chin and cheek area. 41. From the time of the injection until the present, the damage to the functionality and appearance of Plaintiff has worsened, and may continue to worsen and further damage the functionality and the appearance of Plaintiffs lip, chin and cheek areas. 42. Defendant Mendelson had a duty to perform to the expected standards of a licensed dentist. 10 43. Defendant Mendelson was negligent in not aborting, or temporarily halting the needle injection procedure once Defendant Mendelson became aware of the Plaintiff's severe pain by way of Plaintiff's flinching re-action, and assessing the Plaintiff's acknowledged concern. If the procedure would have been aborted or temporarily halted, and the Plaintiffs acknowledged concern properly assessed, Defendant Mendelson could have mitigated further damage to the injured area. 44. If Plaintiff was properly informed of the risk of nerve damage of this needle injection procedure, Plaintiff would have selected a less risky alternative. 45. As a result of Defendant Mendelson negligence, Plaintiff has sustained injuries causing significant harm and damage to the functionality and appearance to Plaintiffs lip, chin and cheek area; and has been under continued rnental stress and anxiety over the current injuries and their side-effects, and the possible additional damage the procedure may cause over the remaining years of Plaintiff's life. WHEREFORE, Plaintiff demands judgement for damages against Defendant Mendelson in an amount in excess of $25,000, exclusive of any interest and costs, and otherwise in an amount in excess of the amount requiring compulsory arbitration. Count III Plaintiff v. Defendant Dental Associates Battery 46. Plaintiff, hereby incorporates paragraphs 1 through 45 of the foregoing Complaint in this paragraph as if set forth in their text. 47. From the time of the injection to the present, Plaintiff has incurred, and continues to incur, the following injuries and side-effects of the injuries from this procedure: 0 Numbness of the lower right lip area, • Numbness of the lower right facial chin area, • An awkwardness and sensitivity when performing normal hygiene and cosmetic care to the lower right lip, chin and cheek area; to the degree Plaintiff consciencely avoids the injured area, • A more difficult time placing food and drinks into the mouth by way of the lower right portion of the lip area, by not being able to feel the sensation of the food or drink entering the mouth through the numbed lip area, • A high level of conscience-ness not to accidentally bite the numbed area of the lip in fear of causing further damage to the already injured lip area, • A high level of conscience-ness not to place hot foods or drinks in the lower right section of Plaintiff's lip area while entering plaintiff's mouth, for fear of burning Plaintiffs lower lip area and not knowing it due to the numbness, causing additional damage to the already injured area, • A slight and inconsistently visible dis-figuration of the lower right lip area, • A very annoying sensation in the lower right lip, chin and cheek area when those areas are exposed to cold weather conditions, • A high level of stress and anxiety caused by the effects of the injury and the unknown future of whether the injury will continue to de-grade the functionality and appearance of Plaintiffs lip, chin and cheek area. 48. From the time of the injection until the present, the damage to the functionality and appearance of Plaintiff has worsened, and may continue to worsen and further damage the functionality and the appearance of Plaintiffs lip, chin and cheek areas. 12 49. The procedure employed by Defendant Dental Associates of continuing the injection of anesthesia, in lieu of Plaintiffs acknowledgement that something was wrong, and not immediately aborting or temporarily halting the injection procedure, and investigating the nature of the Plaintiff's acknowledgment, was an unconsented touching, which is against the laws of Pennsylvania. 50. Defendant Dental Associates was responsible for making sure proper informed consent was obtained. 51. If Plaintiff was properly informed of the risk of nerve damage of this needle injection procedure, Plaintiff would have selected a less risky alternative. 52. The unconsented touching of Defendant Dental Associates resulted in the Plaintiff sustaining injuries causing significant harm and damage to the functionality and appearance to Plaintiff's lip, chin and cheek area; and being under continued mental stress and anxiety over the current injuries, their side-effects, with the possible additional damage the procedure may cause over the remaining years of Plaintiffs life. WHEREFORE, Plaintiff demands judgement for damages against Defendant Dental Associates in an amount in excess of $25,000, exclusive of any interest and costs, and otherwise in an amount in excess of the amount requiring compulsory arbitration. Count IV Plaintiff v. Defendant Mendelson Battery 53. Plaintiff, hereby incorporates paragraphs 1 through 52 of the foregoing Complaint in this paragraph as if set forth in their text. 13 54. From the time of the injection to the present, Plaintiff has incurred, and continues to incur, the following injuries and side-effects of the injuries from this procedure: • Numbness of the lower right lip area, • Numbness of the lower right facial chin area, • An awkwardness and sensitivity when performing normal hygiene and cosmetic care to the lower right lip, chin and cheek area; to the degree Plaintiff consciencely avoids the injured area, • A more difficult time placing food and drinks into the mouth by way of the lower right portion of the lip area, by not being able to feel the sensation of the food or drink entering the mouth through the numbed lip area, • A high level of conscience-ness not to accidentally bite the numbed area of the lip in fear of causing further damage to the already injured lip area, • A high level of conscience-ness not to place hot foods or drinks in the lower right section of Plaintiff's lip area while entering plaintiff's mouth, for fear of burning Plaintiff's lower lip area and not knowing it due to the numbness, causing additional damage to the already injured area, • A slight and inconsistently visible dis-figuration of the lower right lip area, • A very annoying sensation in the lower right lip, chin and cheek area when those areas are exposed to cold weather conditions, • A high level of stress and anxiety on the effects of the injury and the unknown future of whether the injury will continue to de-grade the functionality and appearance of Plaintiffs lip, chin and cheek area. 14 55. From the time of the injection until the present, the damage to the functionality and appearance of Plaintiff has worsened, and may continue to worsen and further damage the functionality and the appearance of Plaintiff's lip, chin and cheek areas. 56. The procedure employed by Defendant Mendelson of continuing the injection of anesthesia, in lieu of Plaintiffs acknowledgement that something was wrong, and not immediately aborting or temporarily halting the injection procedure, and investigating the nature of the Plaintiff's acknowledgment, was an unconsented touching, which is against the laws of Pennsylvania. 57. Defendant Mendelson was responsible for making sure proper informed consent was obtained. 58. If Plaintiff was properly informed of the risk of nerve damage of this needle injection procedure, Plaintiff would have selected a less risky alternative. 59. The unconsented touching of Defendant Mendelson resulted in the Plaintiff sustaining injuries causing significant harm and damage to the functionality and appearance to Plaintiffs lip, chin and cheek area; and being under continued mental stress and anxiety over the current injuries, their side-effects, with the possible additional damage the procedure may cause over the remaining years of Plaintiff s life. WHEREFORE, Plaintiff demands judgement for damages against Defendant Mendelson in an amount in excess of $25,000, exclusive of any interest and costs, and otherwise in an amount in excess of the amount requiring compulsory arbitration. Count V Plaintiff v. Defendant Dental Associates Lack of Informed Consent 15 60. Plaintiff, hereby incorporates paragraphs 1 through 59 of the foregoing Complaint in this paragraph as if set forth in their text. 61. From the time of the injection to the present, Plaintiff has incurred, and continues to incur, the following injuries and side-effects of the injuries from this procedure: • Numbness of the lower right lip area, • Numbness of the lower right facial chin area, • An awkwardness and sensitivity when performing normal hygiene and cosmetic care to the lower right lip, chin and cheek area; to the degree Plaintiff consciencely avoids the injured area, • A more difficult time placing food and drinks into the mouth by way of the lower right portion of the lip area, by not being able to feel the sensation of the food or drink entering the mouth through the numbed lip area, • A high level of conscience-ness not to accidentally bite the numbed area of the lip in fear of causing further damage to the already injured lip area, • A high level of conscience-ness not to place hot foods or drinks in the lower right section of Plaintiff's lip area while entering Plaintiff's mouth, for fear of burning Plaintiff's lower lip area and not knowing it due to the numbness, causing additional damage to the already injured area, • A slight and inconsistently visible dis-figuration of the lower right lip area, • A very annoying sensation in the lower right lip, chin and cheek area when those areas are exposed to cold weather conditions, 16 • A high level of stress and anxiety caused by the effects of the injury and the unknown future of whether the injury will continue to de-grade the functionality and appearance of Plaintiffs lip, chin and cheek area. 62. From the time of the injection until the present, the damage to the functionality and appearance of Plaintiff has worsened, and may continue to worsen and further damage the functionality and the appearance of Plaintiff's lip, chin and cheek areas. 63. The tooth restoration procedures, of which the associated anesthesia procedure is part, performed on Plaintiff by Defendant Dental Associates, are procedures which Pennsylvania law state that Defendant Dental Associates had a duty to make sure that proper informed consent was obtained from Plaintiff. 64. If Plaintiff was properly informed of the risk of nerve damage of this needle injection procedure, Plaintiff would have selected a less risky alternative. 65. Defendant Dental Associates did not provide proper informed consent; resulting in the Plaintiff sustaining injuries causing significant harm and damage to the functionality and appearance to Plaintiffs lip, chin and cheek area; and being under continued mental stress and anxiety over the current injuries, their side-effects, with the possible additional damage the procedure may cause over the remaining years of Plaintiff's life. WHEREFORE, Plaintiff demands judgement for damages against Defendant Dental Associates in an amount in excess of $25,000, exclusive of any interest and costs, and otherwise in an amount in excess of the amount requiring compulsory arbitration. 17 Count VI Plaintiff v. Defendant Mendelson Lack of Informed Consent 66. Plaintiff, hereby incorporates paragraphs 1 through 65 of the foregoing Complaint in this paragraph as if set forth in their text. 67. From the time of the injection to the present, Plaintiff has incurred, and continues to incur, the following injuries and side-effects of the injuries from this procedure: • Numbness of the lower right lip area, • Numbness of the lower right facial chin area, • An awkwardness and sensitivity when performing normal hygiene and cosmetic care to the lower right lip, chin and cheek area; to the degree Plaintiff consciencely avoids the injured area, • A more difficult time placing food and drinks into the mouth by way of the lower right portion of the lip area, by not being able to feell the sensation of the food or drink entering the mouth through the numbed lip area, • A high level of conscience-ness not to accidentally bite the numbed area of the lip in fear of causing further damage to the already injured lip area, • A high level of conscience-ness not to place hot foods or drinks in the lower right section of Plaintiff's lip area while entering Plaintiffs mouth, for fear of burning Plaintiffs lower lip area and not knowing it due to the numbness, causing additional damage to the already injured area, • A slight and inconsistently visible dis-figuration of the, lower right lip area, 18 • A very annoying sensation in the lower right lip, chin and cheek area when those areas are exposed to cold weather conditions • A high level of stress and anxiety on the effects of the injury and the unknown future of whether the injury will continue to de-grade the functionality and appearance of Plaintiffs lip, chin and cheek area. 68. From the time of the injection until the present, the damage to the functionality and appearance of Plaintiff has worsened, and may continue to worsen and further damage the functionality and the appearance of Plaintiff s lip, chin and cheek areas. 69. The tooth restoration procedures, of which the associated anesthesia procedure is part, performed on Plaintiff by Defendant Mendelson, are procedures which Pennsylvania law state that Defendant Mendelson had a duty to make sure that proper informed consent was obtained from Plaintiff. 70. If Plaintiff was properly informed of the risk of nerve damage of this needle injection procedure, Plaintiff would have selected a less risky alternative. 71. Defendant Mendelson did not provide proper informed consent; resulting in the Plaintiff sustaining injuries causing significant harm and damage to the functionality and appearance to Plaintiffs lip, chin and cheek area; being under continued mental stress and anxiety over the current injuries, their side-effects, with the possible additional damage the procedure may cause over the remaining years of Plaintiffs life. WHEREFORE, Plaintiff demands judgement for damages against Defendant Mendelson in an amount in excess of $25,000, exclusive of any interest: and costs, and otherwise in an amount in excess of the amount requiring compulsory arbitration. 19 Count VII Plaintiff v. Defendant Dental Associates False, Misleading and Deceptive Advertising -Misrepresentation 72. Plaintiff, hereby incorporates paragraphs 1 through 71 of the foregoing Complaint in this paragraph as if set forth in their text. 73. From the time of the injection to the present, Plaintiff has incurred, and continues to incur, the following injuries and side-effects of the injuries from this procedure: • Numbness of the lower right lip area, • Numbness of the lower right facial chin area, • An awkwardness and sensitivity when performing normal hygiene and cosmetic care to the lower right lip, chin and cheek area; to the degree Plaintiff consciencely avoids the injured area, • A more difficult time placing food and drinks into the mouth by way of the lower right portion of the lip area, by not being able to feel the sensation of the food or drink entering the mouth through the numbed lip area, • A high level of conscience-ness not to accidentally bite the numbed area of the lip in fear of causing further damage to the already injured lip area, • A high level of conscience-ness not to place hot foods or drinks in the lower right section of Plaintiff's lip area while entering Plaintiff's mouth, for fear of burning Plaintiff's lower lip area and not knowing it due to the numbness, causing additional damage to the already injured area, • A slight and inconsistently visible dis-figuration of the lower right lip area, 20 • A very annoying sensation in the lower right lip, chin and cheek area when those areas are exposed to cold weather conditions, • A high level of stress and anxiety caused by the effects of the injury and the unknown future of whether the injury will continue to de-grade the functionality and appearance of Plaintiffs lip, chin and cheek area. 74. From the time of the injection until the present, the damage to the functionality and appearance of Plaintiff has worsened, and may continue to worsen and further damage the functionality and the appearance of Plaintiffs lip, chin and cheek areas. 75. Defendant Dental Associates advertises and represents to its patients and prospective patients, to provide the highest level of dental care for its patients, utilizing state-of- the-art technologies and personalized service to each and every patient. 76. Defendant Dental Associates advertises and represents to it's patients and prospective patients, a philosophy of giving the absolute best health care service to it's patients. 77. Plaintiff relied on the aforesaid advertising and representations of Defendant Dental Associates to provide the highest level of dental care, to utilize state-of-the-art technologies and employ personalized service, to give the absolute best health care service to Plaintiff, including informing Plaintiff of all significant and material risks of procedures in advance of each procedure used on Plaintiff and Plaintiff family members. 78. Defendant Dental Associates did not inform Plaintiff of the possible significant and/or permanent nerve damage of the needle injection procedure associated with Plaintiffs tooth restoration, in advance or otherwise. 21 79. Plaintiff was not informed of the nerve damage risk untiil Plaintiff initiated an inquiry with Defendant Dental Associates regarding Plaintiff's injury. 80. Pennsylvania Law requires Defendant Dental Associates not to advertise in a false, misleading or deceptive manner. 81. Defendant Dental Associates advertised and represented their level of dental care and level of personalized service to Plaintiff in a false, misleading and deceptive manner, by advertising and representing their services in the aforesaid manner; and then not informing the Plaintiff, in advance, of the complications which could result in significant and/or permanent damage to the lip, chin and. cheek areas. 82. If Plaintiff was properly informed of the risk of nerve damage of this needle injection procedure, Plaintiff would have selected a less risky alternative. 83. As a result of Defendant Dental Associates' false, misleading and deceptive advertising and representations, Plaintiff has sustained injuries causing significant harm and damage to the functionality and appearance to Plaintiff's lip, chin and cheek area; and has been under continued mental stress and anxiety over the current injuries, their side-effects, and the possible additional damage the procedure may cause over the remaining years of Plaintiff's life. WHEREFORE, Plaintiff demands judgement for damages against Defendant Dental Associates in an amount in excess of $25,000, exclusive of any interest and costs, and otherwise in an amount in excess of the amount requiring compulsory arbitration. Count VIII Plaintiff v. Defendant Mendelson False, Misleading and Deceptive Advertising - Misrepresentation 22 84. Plaintiff, hereby incorporates paragraphs 1 through 83 of the foregoing Complaint in this paragraph as if set forth in their text. 85. From the time of the injection to the present, Plaintiff has incurred, and continues to incur, the following injuries and side-effects of the injuries from this procedure: • Numbness of the lower right lip area, • Numbness of the lower right facial chin area, • An awkwardness and sensitivity when performing normal hygiene and cosmetic care to the lower right lip, chin and cheek area; to the degree Plaintiff consciencely avoids the injured area, • A more difficult time placing food and drinks into the mouth by way of the lower right portion of the lip area, by not being able to feel the sensation of the food or drink entering the mouth through the numbed lip area, • A high level of conscience-ness not to accidentally bite the numbed area of the lip in fear of causing further damage to the already injured lip area, • A high level of conscience-ness not to place hot foods or drinks in the lower right section of Plaintiffs lip area while entering Plaintiff's mouth, for fear of burning Plaintiff's lower lip area and not knowing it due to the numbness, causing additional damage to the already injured area, • A slight and inconsistently visible dis-figuration of the lower right lip area, • A very annoying sensation in the lower right lip, chin and cheek area when those areas are exposed to cold weather conditions, 23 • A high level of stress and anxiety on the effects of the injury and the unknown future of whether the injury will continue to de-grade the functionality and appearance of Plaintiffs lip, chin and cheek area. 86. From the time of the injection until the present, the damage to the functionality and appearance of Plaintiff has worsened, and may continue to worsen and further damage the functionality and the appearance of Plaintiff's lip, chin and cheek areas. 87. Defendant Dental Mendelson advertises and represents to his patients and prospective patients, to provide the highest level of dental care for its patients, utilizing state-of- the-art technologies and personalized service to each and every patient. 88. Defendant Mendelson advertises and represents to his patients and prospective patients, a philosophy of giving the absolute best health care service to it's patients. 89. Plaintiff relied on the aforesaid advertising and representations of Defendant Mendelson to provide the highest level of dental care, to utilize state-of-the-art technologies and employ personalized service, to give the absolute best health care service to Plaintiff, including informing Plaintiff of all significant and material risks of procedures in advance of each procedure used on Plaintiff and Plaintiff family members. 90. Defendant Mendelson did not inform Plaintiff of the possible significant and/or permanent nerve damage of the needle injection procedure associated with Plaintiff's tooth restoration, in advance or otherwise. 91. Plaintiff was not informed of the nerve damage risk until Plaintiff initiated an inquiry with Defendant Mendelson regarding Plaintiff's injury. 24 92. Pennsylvania Law requires Defendant Mendelson not to advertise in a false, misleading or deceptive manner. 93. Defendant Mendelson advertised and represented his level of dental care and level of personalized service to Plaintiff in a false, misleading and deceptive manner, by advertising and representing his services in the aforesaid manner; and then not informing the Plaintiff, in advance, of the complications which could result in significant and/or permanent damage to the lip, chin and cheek areas. 94. If Plaintiff was properly informed of the risk of nerve damage during this needle injection procedure, Plaintiff would have selected a less risky alternative. 95. As a result of Defendant Mendelson's false, misleading and deceptive advertising and representations, Plaintiff has sustained injuries causing significant harm and damage to the functionality and appearance to Plaintiff's lip, chin and cheek area; and has been under continued mental stress and anxiety over the current injuries, their side- effects, and the possible additional damage the procedure may cause over the remaining years of Plaintiff's life. WHEREFORE, Plaintiff demands judgement for damages against Defendant Mendelson in an amount in excess of $25,000, exclusive of any interest and costs, and otherwise in an amount in excess of the amount requiring compulsory arbitration. Count IX Plaintiff -Husband v. Defendant Dental. Associates Loss of Consortium 96. Plaintiff-Husband, hereby incorporates paragraphs 1 through 95 of the foregoing Complaint in this paragraph as if set forth in their text. 25 97. As a result of the injuries sustained by his wife, Plaintiff-Husband has been deprived of the society and companionship of his wife, Joann M. Stiteler, and has thereby suffered a loss of consortium. WHEREFORE, Plaintiff-Husband demands judgement for damages against Defendant Dental Associates in an amount in excess of $25,000, exclusive of any interest and costs, and otherwise in an amount in excess of the amount requiring compulsory arbitration. Count X Plaintiff-Husband v. Defendant Mendelson Loss of Consortium 98. Plaintiff=Husband, hereby incorporates paragraphs 1 through 97 of the foregoing Complaint in this paragraph as if set forth in their text. 99. As a result of the injuries sustained by his wife, Plaintiff-Husband has been deprived of the society and companionship of his wife, Joann M. Stiteler, and has thereby suffered a loss of consortium WHEREFORE, Plaintiff-Husband demands judgement for damages against Defendant Dental Associates in an amount in excess of $25,000, exclusive of any interest and costs, and otherwise in an amount in excess of the amount requiring compulsory arbitration. 26 Respectfully Submitted, c .Joann A Stiteler, Plaintiff :3804 Lamp Post Lane Camp Hill, PEA 17011 u R. Dean Stiteler, Plaintiff 3804 Lamp Post Lane Camp Hill, PA 17011 27 VERIFICATION The undersigned, Joann M. Stiteler and R. Dean Stiteler, hereby verify that the statements made in the foregoing document are true and correct. We understand that false statements herein are made subject to the penalties of 18 Pa.C.S. Section 4904, relating to unswom falsifications to authorities. DATE: ?! v ?T- ? Joann M. Stitel.er ?r DATE: R. Dean Stiteler 28 +"` o C+ o ?.., .c -n !` ? -, .? ..,_.. - m -?j ?i ca J O -1 ?: ? ;2.;f?7 Cpl -" G. --; GREGORY E. CASSEAATIS, ESQUIRE 4999 Louise Drive, Suite 103 Mechanicsburg, PA 17055 717-791-0400 Attorney I.D. # 49619 JOANN M. STITELER and R. DEAN STITELER, ATTORNEY FOR DEFENDANTS IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA Plaintiffs V. MENDELSON, FOER HARRISON, DENTAL ASSOCIATES and DR. MICHAEL P. MENDELSON, NO. 04-1235 CIVIL ACTION - LAW Defendants ORDER AND NOW, this day of 2004, upon consideration of the Preliminary Objections of Defendants, Dr. Michael Mendelson and Mendelson, Foer & Harrison Dental Associates to Plaintiffs' Complaint, it is hereby ORDERED that said Preliminary Objections are SUSTAINED and: (1) Count I of Plaintiffs' Complaint Sounding in "Informed Consent" is dismissed; and, (2) Count 11 of Plaintiffs' Complaint Sounding in "Informed Consent" is dismissed. BY THE COURT J. GREGORY E. CASSIMATIS, ESQUIRE 4999 Louise Drive, Suite 103 Mechanicsburg, PA 17055 717-791-0400 Attorney I.D. # 49619 ATTORNEY FOR DEFENDANTS JOANN M. STITELER, Plaintiff V. MENDELSON, FOER HARRISON, DENTAL ASSOCIATES and DR. MICHAEL P. MENDELSON, Defendants IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 04-1235 CIVIL ACTION - LAW DEFENDANT'S PRELIMINARY OBJECTION TO PLAINTIFF'S COMPLAINT AND NOW, come the Defendants, by and through their counsel, Gregory E. Cassimatis, Esquire and preliminarily object to Plaintiff's Complaint based upon the following: 1. DEMURRER TO COUNT I OF PLAINTIFF'S COMPLAINT SOUNDING IN "INFORMED CONSENT" This matter was instituted by a Complaint which was filed on March 24, 2004 and was served on the moving Defendants on April 6, 2004. A true and correct copy of Plaintiff's Complaint is attached hereto and marked Exhibit "A". 2. Plaintiff indicates that she has been a patient of Defendant, Mendelson, Foer & Harrison Dental Associates since around 1984. Set, Paragraph 12 of Plaintiff s Complaint. 3. Plaintiff s Complaint includes four Counts, two each sounding in negligence and two each sounding in lack of informed consent against each of the two Defendants. 4. On March 25, 2002, Plaintiff alleges to have been injured by Defendant, Michael P. Mendelson, D.D.S. while performing dental procedures on the Plaintiff. See Paragraph 14 of Plaintiff's Complaint. 5. On March 25, 2002, Defendant, Mendelson performed a series of procedures to eliminate a cavity from a tooth located in the lower right hand quadrant of Plaintiff s mouth. See Paragraph 15 of Plaintiffs Complaint. 6. Defendant, Mendelson injected a needle into the Plaintiff s lower right jaw area in order to inject numbing fluid in the area having the above-referenced cavity. See Paragraph 16 of Plaintiffs Complaint. After the needle penetrated the skin and as Defendant, Mendelson pressed the needle apparatus downward injecting the numbing fluid, Plaintiff alleges to have felt a severe pain causing her to noticeably flinch. See Paragraph 17 of Plaintiff s Complaint. 8. Plaintiff alleges various injuries from the time of the injection to the present including numbness of the lower right lip area and lower right: chin area. See Paragraph 20 of Plaintiff s Complaint. 9. Plaintiff alleges that at no time was she informed, either orally or in writing, that the needle injection procedure could cause significant and/or permanent damage of functionality and appearance to the lip, jaw and facial area. See Paragraph 25 of Plaintiff s Complaint. 10. Plaintiff alleges that if she would have known of the issues referred to in Paragraph 9 above, she would have requested procedure options and would have selected one of no, or less risk, of significant and/or permanent damage to the lip, jaw or facial area. See Paragraph 26 of Plaintiffs Complaint. 11. Plaintiff alleges that Defendant, Mendelson, Foer &. Harrison Dental Associates misrepresented its level of dental care and was negligent, inter alia, by not informing Plaintiff, in advance, of the complications which could result in significant and/or permanent damage to the lip, chin or facial areas and not allowing Plaintiff to consider procedure options of no, or less risk. See Paragraph 33 of Plaintiff s Complaint. 12. Plaintiff alleges that as a result of Defendant, Dental Associates' misrepresentation, she has sustained significant harm and damage to the functionality and appearance of her lip, chin and cheek areas. See Paragraph 34 of ]Plaintiff s Complaint. 13. Pennsylvania law requires a physician of any type, including a dentist, to obtain a patient's informed consent before performing a surgical procedure. Morgan v. McPhail, 550 Pa. 202, 704 A. 2d 617 (1997). 14. Informed consent is not required in cases involving non-surgical procedures. Morgan at 619. 15. The injection in question was a method of administration of medication and was not a surgical or operative procedure requiring informed consent. 16. Count I of Plaintiff's Complaint is legally insufficient in that it fails to sufficiently set forth a valid claim for lack of informed consent against Defendant, Dental Associates. WHEREFORE, Defendants respectfully request that this Honorable Court dismiss Count I of Plaintiff s Complaint. II. DEMURRER TO COUNT II OF PLAINTIFF'S COMPLAINT SOUNDING IN "INFORMED CONSENT" 17. Paragraphs 1 through 16 are incorporated herein by reference. 18. Plaintiff alleges that Defendant, Dr. Michael P. Mendelson misrepresented his level of dental care and was negligent, inter alia, by not informing Plaintiff, in advance, of the complications which could result in significant and or permanent damage to the lip, chin or facial areas and not allowing Plaintiff to consider procedure options of no, or less risk. See Paragraph 38 of Plaintiff's Complaint. 19. Plaintiff alleges that as a result of Defendant, Dr. Michael P. Mendelson's misrepresentation, she has sustained significant harm and damage to the functionality and appearance of her lip, chin and cheek areas. See Paragraph 39 of Plaintiff's Complaint. 20. Pennsylvania law requires a physician of any type, including a dentist to obtain a patient's informed consent before performing a surgical procedure. Morgan v. McPhail, 550 Pa. 202, 704 A. 2d 617 (1997). 21. Informed consent is not required in cases involving non-surgical procedures. Morgan at 619. 22. The injection in question was a method of administration of medication and was not a surgical or operative procedure requiring informed consent. 23. Count 11 of Plaintiff's Complaint is legally insufficient in that it fails to sufficiently set forth a valid claim for lack of informed consent against Defendant, Dr. Michael P. Mendelson. WHEREFORE, Defendants respectfully request that this Honorable Court dismiss Count 11 of Plaintiff's Complaint. Date: V- Z 2- 6 N By:? U E. Cassimatis Atttbmey for Defendants 04/07/2004 WED 15:35 PAZ 7171 X972 JOANN M. STiTELER, Plaintiff V. WIs.Y°0IN"1 INS CiX-P EI. CINC-, C-.'-73°S 2300_' IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW MENDELSON FOER : No.f - Ja 3 S CIVIL TERM aARR.ISON, DENTAL ASSOCIATES and DR MICHAEL P. MENDELSON, Defendants : IURY TRIAL DEMANDED NOTICE TO I1EFEND AND IM RIGHTS YOU HAVE BEEN SUED IN COURT. If you wish to diefend against the claims set forth in the following pages, you must take action within twenty (20) days alien this complaint and notice are served, by entering a written appearance .personally or by attorney 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 judgement may be entered against you by the Court without further notice for any money claimed in the complaint or for any other claim or relief requested by the Plaintiff. You may loose 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 LP_WYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE: THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LECTAL HELP. Cumberland County Bar Association 32 South Bedford Street T-1 a a: ^:... i : ?:aat Carlisle, Pennsylvania (717) 249.3166 *me9 f: S;.c _ ... .. F,. 04/07/2004 WED 15:86 FA4 717. J97 e JOANN M. STITELER, Plaintiff V. MENDELSON FOFR HARRISON, DENTAL ASSOCIATES and DR. MICHAEL P.1V B NDELSON, Defendants WAYPOI1 1NS MAT & ..> Clxcl :'-k. -_XF zocs IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUN'T'Y, PBNNS"YLVANLA : CIVIL ACTION - LAW No. CIVIL. TERM JUICY TRIAL DEMANDED COMPLAIN 1. Plaintiff, Joatm M. Stiteler, (hereinafter refcned to as "Plaintiff') is an adult individual currently residing at 3804 Lamp Post Lane, Camp Hill, Pennsylvania. 2. Defendant, Mendelson Foer Harrison, Dental Associates, (hereinafter referred to as "Defendant Dental Assoeiates'? is a licensed professional dental practice operating at 4824 But Trindle Road in Mechanicsburg, Cumberland County, Pennsylvania, Plaintiff is asserting a prgfwsional liability claiaei against this defendant. Plaintiff intends to file a certificate of merit within sixty days of ibis complaint. 3. Defendant, Dr. Michael P. Mendelson, (hereinafter reforred to as "Defendant Mendelson'l is an adult individual currently residing at 1013 Wansford Road in. Mechanicsburg, Cumberland County, Pennsylvania, Defendant Mendelson is a. licensed professional operating : with Defendnntt Dental .Associates. Plaintiff is asserting a professional liability claim against this defendant. Plaintiff intends to $1c a certificate of merit within sixty days of this complaint 4. As a Pennsylvania licensed dental practice and deeltist, Defendant Dental Associates and Defendant Mendelson, have an expected standard of practice to adhere to. oa/n7/20n4 WED .15:36 PAZ 7LT. Js72 WAYFCIN7 INS CAS'iF fin. Clr= CL,Z_Irs X1004 5. As members of the American Dental Association, the Pennsylvania Dental Association, and the Academy of General Dentistry, Defendant Dental Associates and Defendant Mcadelson, have an expected standard of practice to adhere to. 6. Further, Defendant Dental Associates represents i:o its patients and prospective patients, to provide the highest level of dental care for its patients, utilizing state-of the-art technologies and personalized service to each and every patient. 7. Further Defendant Dental Associates represents to it's patients and prospective patients, a philosophy of giving Ihe absolute best health care service to it's patients. 8. Further, Defendant Dental Associates office personnel inform prospective patients, that Defendant Dental Associates dentists do inform, patients, in advance, of dental procedures that may cause harm and damage to patients, including possible significant and/orper,msnentnerve damage. 9. Plaintiff, had, and continues to have, an ongoing need for general dental services. 10. Plaintiff applied to be a patient ofDefendant Dental Associates in or around 1954. 11. Plaintiff applied to be a patiezrt of Defendant Dental. Associates because Plaintiff was m search of a dental practice that-provided a very high standard of dental care, that utilized state-of-the-art technologies, and who would employ personalized service to Plaintiff and Plaintiff s family. 12. Defendant Dental Associates accepted Plaintiff as a patient in or around 1984. 13. Since being a patient of Defendant Dental Associades, Plaintiff has always relied on Defendant Dental Associates to provide a very high standard of dental care, to utilize state-of-the-art technologies, and employ, person2lized service to Plaintiff's dental needs; including the expectation of being informed in advance of any dental 04/07/2004 WED 15:36 Fil 717; AM W/sYFO?NT IATS CAII?Er Ei_ C.HCi C?+?'-?C 'C1006 procedures that could cause significant an&CT permanent damage or harm to the Plaintiff. 14, On March 25, 2002, Plaintiff was', izajnred by Defendant Mendelson while performing dental procedures on Plaintiff, as described herein. 15. On the aforesaid data, Defendant Mendelson performed a series of procedures to eliminate a cavity from a tooth of Plaintiff; the tooth being located in the lower sight section of Plaintiff s tooth structure. 16_ In doing so, Defendant Mendelson employed a procedure to numb Plaintiffs lower right jaw area by injecting a needle to the area under the tooth having the above- ,. mentioned cavity. 17. After the needle penetrated the slin and was placed in the aforesaid area, and as Defendant Mendelson pressed the needle apparatus downward injecting the numbing fluid, Plaintiff felt a severe pain causing her, as a re-action, to noticeably flinch. 19. As Defendant Mendelson observed Plaintiff flinebing, Defendant Mendelson instructed the Plaintiff to stay calm and relax, further stating that he is almost done injecting the fluid. 19. As instructed by Defendant Mendelson, Plaintiff remained calm and tried to relax, but .whsle doing so Plaintiff's severe pain continued until such time when Defendant Mendelson finished the procedure and extracted Uze needle from the Plaintiffs Burn area. 20. From the time of the injection to the present, Plaintiff has incntred, and cominues to incur, the following effects from this procedure; Numbness of the lower right lip area, WV/2004 WED 15:36 FAS 7177--J972 WAYPOINT INS CADS? HI y. *?? CINCI Ci.i:L345 t©606 • Numbness of The lower right ,facial chin area, • An awkwardness and sensitivity when performing normal hygiene and cosmetic care to the lower right lip, chin and cheek area; to the degree Plaintiff conscienoely avoids the injured area, • A more difficult time placing food and drinks into the mouth by way of the lower right portion of the lip area, by not being able to feel the sensation of the food or drink entering the mouth through the numbed lip area, • A high level of conscience•ness not to accidentally bite the numbed area of tlae lip in fear of causing further damage to the already injutrod lip area. • A high level of eonscieuca Hess not to place hot foods or drink; on the lower right section of Plaintiffs lip area.while entering Pla'intiff's mouth, for fear of bunting Plaintiffs lower lip area and not lmowin$ it, due to the numbness, causing additional damage to the already injured area, • A slight dis-figuration of the lower right lip area 21. From the time of the injection to October 22, 2002, Plaintiff initiated and continued a, dialog with Defendant Mendelson informing Defendant Mendelson of the aforesaid k effects of the needle injection procedure, as those effects were known to Plaintiff. 22, Based on the aforesaid information provided by Plaintiff, Defendant Mendelson responded: • Defendant Mendelson was not sure why it oo=ed, • Defendant Mendelson oould have injected tht; needle close enough to a nerve, - causing the numbness, 04/07/2004 WEB 15;86 FAX 717. .0872 W4YPOINI INS CJ tKP 8i. +'-> CINCI ';.=,Zrs Defendant Mendelson said he used a new type of nimabing fluid which could be causing the problems, ; • Defendant Mendelson-stated there is nothing be am do about it, it should improve and get better over time, that nerves do TO-generate themselves, • Defendant Mendelson,was sorry that it happened. 23. Plaintiff's condition has not imPmved. It has progreasuvely gotten worse. 24. Since the occurrence, Plaintiff leaned the specific needle injection procedure used by Defendant Mendelson can cause sipifieant and/or permanent nerve damage, depending on the placement of the needle by the demist. 25. At no time was Plaintiff infoimeed, either orally or in writing, until after the occurrence, that the neodie injection procedure used by Defendant Mendelson could cause significant and/or permanent damage, of functionality and appearance, to the: lip, jaw and facial area of Plaintiff 26. If Plaintiff would have known this is advance, Plaintiff would have requested from Defendant Mendelson the available options to the procedure, and based on those options would have selected the one of no, of less risk, of significant and/or permanent damage to the lip, jaw and facial area. 27. As a licensed dentist ptacticing:ia Pennsylvania, and as a member of the American Dental Association, and as a member of the Pennsylvania Dental Association, and as a member of the Academy of DpntistM in union with representing to its patients of providing the highest level of dental care for, it's patients, utilizing state-ot-the-art technologies, personalized service to each and every patient, and a philosophy of giving the absolwx best health care service, and joining statements made by 1QOG7 ,, d; sTh,bi owl 04/07/2DD4 WED 1n:37 FA% 7177..0972 WAYPO1Nr SR'S QUIP 111,.._.- ..-,w CS\?I ;"LEs.E3?S Cu.100& Defendant Dental Associates oii-ioo staff that Defeodant Dental Associates dentists do inform patients, iu advance, of dental procedures that may cause harm and damag® to patients. including possible significant and permanemt nerve damage, Defendant Dental Associates and Defendant Mendelson had a duty to inform Plaintiff, in advance, of the risks of the aforesaid dental procure causing significant and/or permanent damage to the'. funcdoAelity and appemace to Plaintiff's lip, chin and cheek area. 28. When Defendant Mendelson did not inform Plaintiff of the risks of the aforesaid procedure performed, and: the significant andlor permanent damage it could cause, Defendant Mendelson transferred the responsibility of the aforesaid procedure outcome from the Plaintiff to Defendant Dental Associates and Defendsm Mendelson. 29. When Plaintiff engaged Defendant Dental Associates as Plaintiff's dentist, Plaintiff relied on Dcfendant Dental Associates representation of providing the highest level of dental care for it's patients, utilizing state-of-tho- art technologies and personalized service to Barb and every patient; including a philosophy of giving the absolute best healtb care service; to eomm=iaate to Plaintiff in advance, of any dental procedure, of known Complications which could result in significant au&cr permanent damage to Plaintiff's body, allowing the Ptgintiffprocedure-options of no, or less risk. 04/07/2004 WED 15:27 FAY, 717,.._0972 WAYPDINT INS CAMP Hl__, +*-? CINCI C11AI:19S Count I PLtmtiff v. Defendant Dental Associates 30. Plaintiily hereby incorporates paragraphs 1 through 29 of the foregoing Complaint in this paragraph as if set forth in their text. 31. From the time of the injection to;the present, Plaintiff has incurred, and continues to incur, the following injuries and side. effects of the injarias from this procedure; • Numbness of the lower right lip area, • Numbness of the lower right facial chin area, • An awkwardness and sensitivity when performing normal hygiene and cosmetic care to the lower right lip, chic and cheek. area; to the degree Plaintiff conscieneely avoids the injured area, • A more ditfnenlt time placing food and drinks into the mouth by way of the lower right portion of the lip, area, by not being able to feel the sensation of the food or dank entering the month throfigll the numbed lip area, • A high level of consclence-ness not to accidentally bite the numbed area of the lip in fear of causing fartlier damage to the already injured lip area, A high level of conscience-mess not to place hoi foods or drinks in the lower right: section of Plaintiff s lip area while entering PlaintiTs mouth, for fear of burning; Plaintiff's lower lip area and not knowing it be to the numbness, causing additional damage to the already injured area, moos + A slight dis-figuratioa•ofthe l'o'wer right lip area, 04/07/2004 WED 15:37 Ft?X 7177, X872 WAYPOIN: INS CAIP HIS ?- CINCI =dLYXS X1010 • A high level of sirrss and anxiety caused by the effects of the injury and the unknown future of whether the injury will continue to de-grade the functionality and appearance of Plaintiff a 11p, chin and cheek area. 32. From the time of the injection until the present, the damage to the functionality and appearance of Plaintiff bes worsened, and may continue to worsen and further damage the functionality and the appearance of Plain f ft lip, chin and cheek areas. 33. Defendant Dental Associates mis-represented its level of dental care and level of personali2ed service to Plaintiff, or Defendant Dental Associates was negligent in not perfonniug at the level of ewe and service it represented to Plaintiff', by not informing plaintiff; in advance of the complications which could result in signifrcattt and/or permanent damage to the lip, chin and cheek areas; and not allowing the Plaintiff to oonesiderproeedure-options of no"Or less risk. f 34. As a result of Defendant Dental Associates' mis-representation, or negligence, Plaintiff has sustained injuries; causing significant harm. and damaae to the fuacticna'lity and appearance to.PlaintiTs lip, ohv1 and cheek area; and bas been under continued mental stress and ansdety over the =rent injuries, their side-effects, and the possible additional dama? the procedure may cause over the remaining years of Plaintiff's life. WgMUTORE, Plaintiff demands 'judgement for damages against Defendant Dental Associates in an in excess of'$25,000, exclusive of any interest and ousts, and otherwise. in an amount in eaoess of the amouni,requiring esompulsory arbitration. o4/07/2004 WED 15:28 FAb 7177, .972 WAYPOINT INS CA.HP HIS .++ CINC£ CL I:ys a oil COUntII Plaintiff v: Defendant Mendelson 35. Plaintiff, hereby incorporates paragraphs 1 through 34 of the foregoing Complaint in this paragraph as if set forth in thoir text. 36. From the time of the injection to! the present, Plaintiff' has incurred, and continues to incur, the following injuries and side-effects of the injuries from this procedure. o Numbness of the lower right lip area, • Numbness of the lowei right facial chin area, • An awkwardness and 'sensirivity when performing normal hygielle and cosmetic care to the lower right lip, chin and cheek area; to the degree Plaintiff conseiencely avoids the injured area, • A more difficult time placing food and drinks into the mouth by way of the lower right portion of the lip area, by not being able to feel the sensation of the food or drink entering the mouth through the numbed lip area, • A hie,1,el of coascieneerness not to accidentally bite the numbed area of the lip in fear of causing further damage to the already iiujured lip area, A high level of conscieence-ness not to place hot, foods or drinks in the lower right section of Plaintiffs Lip area while entMing Pleintiff's mouth, for fear of biiming plaintiffs lower lip ;area and not knowing it due to the nu 9MOSS, causing additional damage to 4be already injured area, A slight dis-'ff guratiori of thelower right lip area, 04/07/2004 WED 10:36 FAY 7177-Ja72 WkYPOIN'T INS CAMP HI..... _,, CINCI CS.HII4S 2012 + A high level of stress and anxiety on the effects of the injury and the unknown ftture of whether tile. injury will continue to de-grade the functionality and appearance of Plaintiff's lip, chin and cheek area. 37. Flom the time of the injection until the present, the damage to the fmctionality and appearance of Plaintiff has worsened, and may continue to worsen and further damage the functionality and the appearance of Plaintiff's lip, chin and cheek areas- 38. Defendant Mendelson ?rds-represented his level of dental care and level of personalized service to P.laintif ' or Defendant Mendelson was no in not performing at the level of care and service he represented to Plaintiff, by not in£ortni g the plaintiff, in advance, of the complications which could result in significant and/or permanent damage to the lip, c]rin and cheek areas, and not allowing the Plaintiff procedure options of no, or less risk. 39. As a result of Defendant Mendelson7s mis-representation, or negligence, Plaintiff has sustained injuries causing significant harm and damage to the fisnctionglity and appearance to Plainti ffs lip, chin and cheek area,; and has been under continued mental stress and anxiety over the ciurent injuries, their side-effects, and'the possible additional darnabro the procedure may cause over the remw=g years of plaintiffs life. WIiERBPORE, Plaintiff demands judgoment for damages against Defendant Dental Associates in an in excess of $25,066, exclusive of any interest and costs, and otherwise in an amount in excess of the amount mjuiring compulsory arbitration. 04/07/ZOD4 WED 1°5:38 FAX 7I77 X872 WAYPOINF INS CAA? HIS CINC CLF XXG poi's Count III )Plaintiff V. Defendant Dental Associates 40. Plaintiff, hcreby incorporates paragraphs 1 through 39 of the foregoing Complaint in this paragraph as if set forth in their tact. 41. From the time of the injection to;the present, Plaintiff'has incurred, and continues to incur, the following injuries and silo-effects oftha injuries from this proeedure: • Numbness of the lower. right lip area, • Ntnnbness of the lower right facial chin area, • An awkwardness and sensitivity when performing no=al hygiene and cosmetic care to the lower right lip, chin and cheek area; to the degree Plaintiff consciencely avoids the ii ju and area, • A more difficult time plaeing1ooel and drinks into the mouth by way of the lower right portion of the lip,area, by not being able to feel the sensation of the food or drink entering the mouth through the numbed lip area, • A high level of consaieuco-ness not to acoidentatly bite the numbed area of the lip iu fear of causing farther damage to the alreadyvsjured lip area, • A high level of conscience-ness not to platy hot foods or drinks in the lower right section of Plaintiffs lip area while entering PldntifPs mouth, for fear of burning Plaintiff's lower lip area and not knowing it due to the numbness, causing additional damage to the already injured area, • A slight dis-figuration of the Iower right lip area, 04/07/2004 WED 15:38 FA: 717' J972 WAYPOIA"I INS CAMP 81.. ++-r CINC1 CL TXS X1014 • A high level of stxess''snd anxiety on the effects of the injmy and the imlaae!wn future of whether the: injury will continue to dc-grade the functionality and appearance of PlaintiT s lip, clan and cheek area. 42. From the time of the ini4on until the present, the damage to the functionality and appearance of Plaintiff tins worsened, and may continue to worsen and further damage the functionality and the appearance of Plaintiff's lip, chin and cheek areas. 43. Defendant Dental Assooiates was negligent in not aborting the needle injection. procedure once Defendant. Dental Associates became aware of the Plaintiff s severe pain by way of Plaimtif€;s flinching re-action, if the procedure would have been aborted, Defendant Dental Associates could have mitigated further damage to the injured area 44. As a result of Defendant Dental Associates neglige=e, Plaintiff has sustained injuries causing significant harm and damage to the ftmctiona ity and appearance to Plaintiff's lip, chin and cheek area; and has been under continued mental stress and anxiety over the current injuries, their side etteats, and the possible additional damage the procedure may cause over the remaining years ofPlah3fiTs life. WHEREFORE, Plaintiff deu?imds judgement for damages against Defendant Dental Associates iu au in excess of $25,000; exclusive of any interest and costs, and othenvise in an amount in excess of the i mouat requiring compulsory arbittation. 04/07/2004 WED 16:30 Fla! %177• .97E WAYPOIN INS CAMP HIL_ Defendant Mendelson '? CINCI CLAIMS Q016 45. Pleinbt hereby incorporates patagxVbs i through 44 of the foregoing Complaint in this paragraph as if set forth in their text 46. From the time of the injection toy. he present, Plaintiff'has incurred, and eondxtuea to incur, the following injuries and side-effects of the injuries from this procedure: • Numbness of the lower right lip area, • Numbness of the lower right facial chin area, • An awkwardness and :sensitivity when perfonaing normal hygiene and cosmetic care to the lower right lip, chin and cheek area, to the degree Plairotiff consciencely avoids the injured area, • A more difficult time plaeing:food and drinks into the moutb by way of the lower right portion of the lip!area, by not being able to feel the senserion of the food or drink entering the mouih. through the numbed lip area, • A high level of conscienee-ne , ss not to acoidentally bite the numbed area of the lip i, in fear of causing further damage to the already injured lip area, • A high level of conscilince-ness not to place hot foods or drinks in the lower right u section of Plaintiffs lip area while entering Plaintiffs mouth, for fear of burning Plaintiff's lower lip area and not knowing it duo to the numbness, causing additional damage to tlxe already injured area, • A slight dis-figtltationjbfthe lower right lip area, 04/07/2004 WED 15:56 FAb 717. 3972 WAYPOINT INS CAMP H1. CINCI CLkZXS 0016 • A high level of ghcss:mid anxiaty on the effects of the iujtuy and the unknown future of whether the injury'. will continue to de-grade the functionality and appearance of plainsif!'s.lip, chin and cheek area. 47. prom the time of the iWedtion until the present, the damage to the functionality and appearance of Plaintiff has worsened, and may continue to worsen and fu2ther damage the functionality and the appearance of Plaintiffs lip, chin and cheek areas. 48. Defendant Mendelson was negligent in not aborting the needle injection procedure once Defendant Mendelson became aware of the Plaird fls severe pain by way of Plaintiff's flinching re-action. if the procedure would have been aborted, Defendant Mendelson could have rniiigated further damage to the injured area. 49. As a result of Defendant negligence, Plaintiff has sustained injuries causing significant harm and damage toi the fimetionality acid appearance to Plaintiff's lip, chin and cheek area, and ha been trader continued rnmrtal stress and anxiety over the current injuries and their side-effects, and the possible additional damage the procedure may cause over the remaining years of Plaintiff's life. wHEREFORE, Plaintiff demands "judgement for damages against Defendant Dental Associates in an in excess of-S25,000, exclusive of any interest and coats, and otherwise in an amount in excess of the:amotmf requuing•compulsory arbitration. RespectfilllySubmittped??, ?"__? oaan M. Stiteler, Plaintiff 3804 Lamp Post Lane Camp Hill, PA 17011 04/07/2004 WED 16;3S FAY 717'. J972 W&YFoINT INS CARP M 44, CINCI CL ZMS 2017 VF.RMCATTON I verify that the statements made m the foregoing docament ate true and correct. 'GVe understand that false statements hesain arc made subjcct xo the penalties of 18 Ea C.S. Seodon 4904, relating to unsvaom falsifications to authorities. 3oann Iv1, Stiteler CERTIFICATE OF SERVICE AND NOW, this ZZ=day of 2004, I, Gregory E. Cassimatis, Esquire, Attorney for Defendants hereby certify that I served a copy of the within Defendant's Preliminary Objection to Plaintiff's Complaint on this date by depositing; same in the United States mail, postage prepaid, in Mechanicsburg, Pennsylvania, addressed to: Joann Stiteler 3804 Lamp Post Lane Camp Hill, PA 17011 By: Gregory Cassimatis, Esquire 4999 Louise Drive, Suite 103 Mechanicsburg, PA 17055 (717) 791-0400 Attorney I.D. 4 49619 s fV ca ?? 21 N PRAECIPE FOR LISTING CASE FOR ARGUMENT (Must be typewritten and submitted in duplicate) TO THE PROTHONOTARY OF CUMBERLAND COUNTY: Please list the within matter for the next Argument Court. CAPTION OF CASE (entire caption must be stated in full) Joann M. Stiteler (Plaintiff) V5. Mendelson, Foer, Harrison Dental Associates and Dr. Michael P. Mendelson (Defendant) No. 04-1235 Civil $S 2004 1. State matter to be argued (i.e., plaintiff's motion for new trial, defendant's demurrer to complaint, etc.): Defendants' Preliminary Objections to Plaintiff's Complaint. 2. Identify counsel who will argue case: (a) for plaintiff: Pro se Address: 3804 Lamp Post Lane Camp Hill, PA 17011 (b) for defendant: Gregory E. Cassimatis, Esq. Address: 4999 Louise Dr., Suite 103 Mechanicsburg, PA 170.55 3. I will notify all parties in writing within bnn days that this case has been listed for argument. 4. Argument Court Date: June 9, 2004 Dated: ? 2 Z-till Attornor Defendants CERTIFICATE OF SERVICE AND NOW, this Z Z I day of , 2004, I, Gregory E. Cassimatis, Esquire, Attorney for Defendants hereby certify that I served a copy of the within Praecipe for Argument on this date by depositing same in the United States mail, postage prepaid, in Mechanicsburg, Pennsylvania, addressed to: Joann Stiteler 3804 Lamp Post Lane Camp Hill, PA 17011 By: Grego . Cassimatis, Esquire 4999 Louise Drive, Suite 103 Mechanicsburg, PA 17055 (717) 791-0400 Attorney I.D. # 49619 -v w lit) Z N -< rt GREGORY E. CASSIMATIS, ESQUIRE, 4999 Louise Drive, Suite 103 Mechanicsburg, PA 17055 717-791-0400 Attorney I.D. # 49619 ATTORNEY FOR DEFENDANTS JOANN M. STITELER and R. DEAN STITELER, IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA Plaintiffs V. MENDELSON, FOER HARRISON, DENTAL ASSOCIATES and DR. MICHAEL P. NO. 04-1235 CIVIL ACTION - LAW MENDELSON, Defendants DEFENDANT'S RESPONSE TO PLAINTIFFS' MOTION FOR LEAVE TO AMEND CAPTION AND NOW, come the Defendants, by and through their counsel, Gregory E. Cassimatis, Esquire and file this Response to Plaintiffs' Motion for Leave to Amend Caption and state as follows: Admitted in part and denied in part. It is admitted that the Plaintiff is filing this pleading pro se. It is denied that this filing is correctly referred to as a Motion for Leave to Amend Caption. Denied. Although couched in terms of amending her caption, Plaintiff is really attempting to add a new cause of action for loss of consortium on behalf of her husband, R. Dean Stiteler, after the expiration of the applicable statute of limitations. As a claim for loss of consortium is a separate, albeit derivative cause of action of the injured Plaintiff, said action must be filed within the original statute of limitations. Defendant, Dr. Michael P. Mendelson has no objection to changing the caption to reflect his identity as Michael P. Mendelson, D.D.S. WHEREFORE, Defendants hereby request that this Honorable Court deny Plaintiffs' "Motion for Leave to Amend Caption", other than correcting the identity of Dr. Mendelson, due to the expiration of the applicable statute of limitations. NEW MATTER 4. The Defendants incorporate their answers to Paragraphs 1-3 above as if fully set forth at length. Plaintiff s Motion to Amend Caption was filed on April 19, 2004 and is attached hereto, made a part hereof and marked Exhibit "A". 6. Plaintiffs original Complaint included two Counts sounding in negligence and two Counts sounding in lack of informed consent against both Defendant, Dental Associates and Defendant, Mendelson. Plaintiff s proposed Amended Complaint includes two Counts for "false, misleading and deceptive advertising - misrepresentation" against both Defendant, Dental Associates and Defendant, Mendelson along with two similar Counts for loss of consortium against both Defendants. 8. Paragraph 21 of Plaintiff s proposed Amended Complaint sets forth that from the time of the injection on March 25, 2002, through the present, Plaintiff has incurred various alleged injuries. 9. All of the proposed additional Counts set forth in Defendants' New Matter are beyond the applicable statute of limitations and, for that reason, Plaintiffs' Motion for an Amended Complaint couched in terms of a "Motion for Leave to Amend Caption" should be denied. WHEREFORE, Defendants hereby respectfully request this Honorable Court to deny Plaintiffs' Motion for Leave to Amend Caption and strike Plaintiffs' Amended Complaint, with the exception of clarifying the identity of Defendant, Mendelson as Michael P. Mendelson, D.D.S. Respectfully Submitted, Date: ' 'Z Z o y By: l GrvgWy E. Cassimatis Attorney for Defendants JOANN M. STITELER and R. DEAN STITELER, Plaintiffs V. MENDELSON FOER HARRISON, : DENTAL ASSOCIATES and MICHAEL P. MENDELSON, DDS, : Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 04-1235 CIVIL TERM JURY TRIAL DEMANDED MOTION FOR LEAVE TO AMEND CAPTION TO THE HONORABLE COMES NOW Joann M. Stiteler, Plaintiff in the above-captioned action, and makes this motion for leave to amend the caption of the above-docketed civil action proceeding, stating in support herein as follows: Plaintiff is filing this proceeding pro se and as such, is continually researching the Rules of Civil Procedure, local and state, to ensure that all documents are filed according to state and local laws. 2. Plaintiff wishes to amend her caption, as corrected in the caption of this motion, in the above-docketed civil proceeding to include her husband, R. Dean Stiteler, as allowed under Pa. R.C.P. 2228(a), which states that " if an injury. is inflicted upon the person of a husband or a wife, and causes of action therefore accrue to both, they shall be enforced in one action brought by the husband and the wife". Pa. R.C.P. 2228(a). Plaintiff also wishes to amend the name of the Defendants, and change "Dr. Michael P. Mendelson" to "Michael P. Mendelson, :DDS". WHEREFORE, Plaintiff hereby requests this Honorable Court to amend the caption in her above-docketed civil proceeding to include the name of her husband R. Dean Stiteler, according to Pa. R.C.P. 2228(a) requiring mandatory joinder in a case where an injury, not resulting in death, is inflicted upon the person of a husband or a wife, and causes of action therefore accrue to both, and they shall be enforced in one action brought by the husband and the wife. Further, the Plaintiff requests this Honorable Court to amend the name of the Defendant "Dr. Michael 11. Mendelson" to "Michael P. Mendelson, DDS". Date: q, 14- o4 Date: to col Respectfully submitted, J anu M. Stiteler, Plaintiff 804 Lamp Post Lane Camp Hill, PA 17011 (717) 763-1456 R. Dean Stiteler, Plaintiff 3804 Lamp Post Lane Camp Hill, PA 17011 (717) 763-1456 JOANN M. STITELER and IN THE COURT OF COMMON PLEAS OF R. DEAN STITELER, CUMBERLAND COUNTY, PENNSYLVANIA Plaintiffs CIVIL ACTION -LAW V. NO. 04-1235 CIVIL TERM MENDELSON FOER HARRISON, : DENTAL ASSOCIATES and MICHAEL P. MENDELSON, DDS, : Defendants : JURY TRIAL DEMANDED VERIFICATION We, Joann M. Stiteler and R. Dean Stiteler, verify that the statements made in the attached Amendment are true and correct to the best of our knowledge. We understand that any false statement made herein are subject to penalty. i M. Stiteler Wok' R. Dean Stiteler Date: JOANN M. STITELER and : IN THE COURT OF COMMON PLEAS OF R. DEAN STITELER, : CUMBERLAND COUNTY, PENNSYLVANIA Plaintiffs V. : CIVIL ACTION - LAW MENDELSON FOER :No. 04-1235 CIVIL TERM HARRISON, DENTAL ASSOCIATES and MICHAEL P. MENDELSON, DDS Defendants : JURY TRIAL DEMANDED NOTICE TO DEFEND AND CLAIM RIGHTS 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 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 judgement may be entered against you by the Court without further notice for any money claimed in the complaint or for any other claim or relief requested by the Plaintiff. You ou. may loose money or property or other rights important to, YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. Cumberland County Bar Association 32 South Bedford Street Carlisle, Pennsylvania 17013,. (717) 249-3166 :'? q/fly; S• ?" JOANN M. STITELER and : IN THE COURT OF COMMON PLEAS OF R. DEAN STITELER, : CUMBERLAND COUNTY, PENNSYLVANIA Plaintiffs V. : CIVIL ACTION - :LAW MENDELSON FOER : No. 04-1235 CIVIL TERM HARRISON, DENTAL ASSOCIATES and MICHAEL P. MENDELSON, DDS Defendants : JURY TRIAL DEMANDED PLAINTIFFS' FIRST AMENDED COMPLAINT 1. Plaintiff, Joann M. Stiteler, (hereinafter referred to as "Plaintiff") is an adult individual currently residing at 3804 Lamp Post Lane, Camp Hill, Pennsylvania. 2. Plaintiff, R. Dean Stiteler, (hereinafter referred to as "Plaintiff-Husband") is an adult individual currently residing at 3804 Lamp Post Lane, Camp Hill, Pennsylvania, and is the husband of Plaintiff. 3. Defendant, Mendelson Foer Harrison, Dental Associates, (hereinafter referred to as "Defendant Dental Associates") is a professional dental practice operating at 4824 East Trindle Road in Mechanicsburg, Cumberland County, Pennsylvania. Plaintiffs are asserting a professional liability claim against this defendant. Plaintiffs intend to file a certificate of merit within sixty days of this complaint. 4. Defendant, Michael P. Mendelson, DDS (hereinafter referred to as "Defendant Mendelson") is an adult individual whose last known address is 1013 Wansford Road in Mechanicsburg, Cumberland County, Pennsylvania. Defendant Mendelson is a licensed professional dentist operating with Defendant Dental Associates. Plaintiffs are asserting a professional liability claim against this defendant. Plaintiffs intend to file a certificate of merit within sixty days of this complaint. 5. As a Pennsylvania licensed dental practice and dentist, Defendant Dental Associates and Defendant Mendelson, have an expected standard of practice to adhere to. 6. As a member of the American Dental Association, the Pennsylvania Dental Association, and the Academy of General Dentistry., Defendant Mendelson has an expected standard of practice to adhere to. 7. Further, Defendant Dental Associates advertises and represents to its patients and prospective patients, to provide the highest level of dental care for its patients, utilizing state-of-the-art technologies and personalized service to each and every patient. 8. Further, Defendant Dental Associates advertises and represents to it's patients and prospective patients, a philosophy of giving the absolute best health care service to it's patients. 9. Further, Defendant Dental Associates office personnel inform prospective patients, that Defendant Dental Associates dentists do informs patients, in advance, of dental procedures that may cause harm and damage to patients, including possible significant and/or permanent nerve damage. 10. Plaintiff had, and continues to have, an ongoing need for general dental services. 11. Plaintiff applied to be a patient of Defendant Dental Associates in or around 1984. 12. Plaintiff applied to be a patient of Defendant Dental Associates because Plaintiff was in search of a dental practice that provided a very high standard of dental care, that utilized state-of-the-art technologies, and who would employ personalized service to Plaintiff and Plaintiff's family. 13. Defendant Dental Associates accepted Plaintiff as a patient in or around 1984. 2 14. Since being a patient of Defendant Dental Associates, Plaintiff has always relied on Defendant Dental Associates to provide a very high standard of dental care, to utilize state-of-the-art technologies, and employ personalized service to Plaintiff's dental needs; including the expectation of being informed in advance of any dental procedures that could cause significant and/or permanent damage or harm to the Plaintiff. 15. On March 25, 2002, Plaintiff was injured by Defendant Mendelson while performing dental procedures on Plaintiff, as described herein. 16. On the aforesaid date, Defendant Mendelson performed a series of tooth restoration dental procedures to eliminate tooth decay and restore a tooth of Plaintiff. The tooth being located in the lower right section of Plaintiff's tooth structure. 17. In doing so, Defendant Mendelson employed a procedure to numb Plaintiffs lower right jaw area by injecting a needle with anesthesia to the gum area under the tooth having the above-mentioned cavity. 18. After the needle penetrated the skin and was placed in the aforesaid area, and as Defendant Mendelson pressed the needle apparatus downward injecting the anesthesia, Plaintiff felt a severe pain causing her, as a re-action, to noticeably flinch. 19. As Defendant Mendelson observed Plaintiff flinching, Defendant Mendelson instructed the Plaintiff to stay calm and relax, further stating that he is almost done injecting the anesthesia. 20. As instructed by Defendant Mendelson, Plaintiff remained calm and tried to relax, but while doing so Plaintiff's severe pain continued until such time when Defendant 3 Mendelson finished the procedure and extracted the needle from the Plaintiff's gum area. 21. From the time of the injection to the present, Plaintiff has incurred, and continues to incur, the following effects from this procedure: • Numbness of the lower right lip area, • Numbness of the lower right facial chin area, • An awkwardness and sensitivity when performing normal hygiene and cosmetic care to the lower right lip, chin and cheek area; to the degree Plaintiff consciencely avoids the injured area, • A more difficult time placing food and drinks into the mouth by way of the lower right portion of the lip area, by not being able to feel the sensation of the food or drink entering the mouth through the numbed lip area, • A high level of conscience-ness not to accidentally bite the numbed area of the lip in fear of causing further damage to the already injured lip area. • A high level of conscience-ness not to place hot foods or drinks on the lower right section of Plaintiff's lip area while entering Plaintiff s mouth, for fear of burning Plaintiff's lower lip area and not knowing it, due to the numbness, causing additional damage to the already injured area, • A slight and inconsistently visible dis-figuration of the lower right lip area, • A very annoying sensation in the lower right lip„ chin and cheek area when those areas are exposed to cold weather conditions. 4 22. From the time of the injection to October 22, 2002, Plaintiff initiated and continued a dialog with Defendant Mendelson informing Defendant Mendelson of the aforesaid effects of the needle injection procedure, as those effects were known to Plaintiff. 23. Based on the information provided by Plaintiff, Defendant Mendelson responded: • Defendant Mendelson was not sure why it occurred, • Defendant Mendelson could have injected the needle close to a nerve, causing the numbness, • Defendant Mendelson said he used a new type of anesthesia which could be causing the problems, • Defendant Mendelson stated there is nothing he caul do about it, it should improve and get better over time, that nerves do re-generate themselves, • Defendant Mendelson was sorry that it happened., and doesn't know what else to you (Plaintiff). 24. Plaintiff's condition has not improved. It has progressively gotten worse. 25. Since the occurrence, Plaintiff learned the specific needle injection procedure used by Defendant Mendelson can cause significant and/or permanent nerve damage, depending on the placement of the needle by the dentist. 26. At no time was Plaintiff informed, either orally or in writing, until after the occurrence, that the needle injection procedure used by Defendant Mendelson could cause significant and/or permanent damage, of functionality and appearance, to the lip, jaw and facial area of Plaintiff. 27. If Plaintiff would have known this in advance, Plaintiff would have requested from Defendant Mendelson the available options to the procedure, and based on those 5 options would have selected the one of no, or less, risk of significant and/or permanent damage to the lip, jaw and facial area. 28. As a licensed dentist practicing in Pennsylvania, and as a member of the American Dental Association, and as a member of the Pennsylvania Dental Association, and as a member of the Academy of Dentistry; in union with advertising and representing to its patients of providing the highest level of dental care for it's patients, utilizing state-of-the-art technologies, personalized service to each and every patient, and a philosophy of giving the absolute best health care service; and joining statements made by Defendant Dental Associates office staff that Defendant Dental Associates dentists do inform patients, in advance, of dental procedures that may cause harm and damage to patients, including possible significant and permanent nerve damage; Defendant Dental Associates and Defendant Mendelson had a duty to inform Plaintiff, in advance, of the risks of the aforesaid dental procedure causing significant and/or permanent damage to the functionality and appearance to Plaintiffs lip, chin and cheek area. 29. When Plaintiff engaged Defendant Dental Associates as Plaintiffs dentist, Plaintiff relied on Defendant Dental Associates advertising and representations of providing the highest level of dental care for it's patients, utilizing state-of-the-art technologies and personalized service to each and every patient, including a philosophy of giving the absolute best health care service; to communicate to Plaintiff, in advance, of any dental procedure which could result in significant and/or permanent damage to Plaintiff's body, allowing the Plaintiff procedure-options of no, or less risk. 6 30. When Defendant Mendelson did not inform Plaintiff of the risks of the aforesaid procedures performed, and the significant and/or permanent damage they could cause, allowing Plaintiff an opportunity to choose less risky options, Defendant Mendelson transferred the responsibility of the aforesaid procedures outcome from the Plaintiff to Defendant Dental Associates and Defendant Mendelson. 31. On October 30, 2003, Plaintiff decided to terminate dental services with Defendant Dental Associates when during a dental check up and teeth cleaning of that day with Defendant Mendelson, Defendant Mendelson never even inquired upon Plaintiff the status of the Plaintiff's aforesaid injury. CountI Plaintiff v. Defendant Dental Associates Negligence 32. Plaintiff, hereby incorporates paragraphs 1 through 31 of the foregoing Complaint in this paragraph as if set forth in their text. 33. From the time of the injection to the present, Plaintiff has incurred, and continues to incur, the following injuries and side-effects of the injuries from this procedure: • Numbness of the lower right lip area, • Numbness of the lower right facial chin area, • An awkwardness and sensitivity when performing normal hygiene and cosmetic care to the lower right lip, chin and cheek area; to the degree Plaintiff consciencely avoids the injured area, 7 • A more difficult time placing food and drinks into the mouth by way of the lower right portion of the lip area, by not being able to feel the sensation of the food or drink entering the mouth through the numbed lip area, • A high level of conscience-ness not to accidentally bite the numbed area of the lip in fear of causing further damage to the already injured lip area, • A high level of conscience-ness not to place hot foods or drinks in the lower right section of Plaintiff's lip area while entering Plaintiff s mouth, for fear of burning Plaintiffs lower lip area and not knowing it due to the numbness, causing additional damage to the already injured area, • A slight and inconsistently visible dis-figuration of the lower right lip area, • A very annoying sensation in the lower right lip, chin and cheek area when those areas are exposed to cold weather conditions, • A high level of stress and anxiety on the effects of the injury and the unknown future of whether the injury will continue to de-grade the functionality and appearance of Plaintiffs lip, chin and cheek area. 34. From the time of the injection until the present, the damage to the functionality and appearance of Plaintiff has worsened, and may continue to worsen and further damage the functionality and the appearance of Plaintiff s lip, chin and cheek areas. 35. Defendant Dental Associates had a duty to perform to the expected standards of a professional dental office employing licensed dentists. 36. Defendant Dental Associates was negligent in not aborting, or temporarily halting the needle injection procedure once Defendant Dental Associates became aware of the Plaintiffs severe pain by way of Plaintiffs flinching re-action, and assessing the 8 Plaintiffs acknowledged concern. If the procedure would have been aborted or temporarily halted, and the Plaintiffs acknowledged concern properly assessed, Defendant Dental Associates could have mitigated further damage to the injured area. 37. If Plaintiff was properly informed of the risk of nerve damage of this needle injection procedure, Plaintiff would have selected a less risky alternative. 38. As a result of Defendant Dental Associates negligence:, Plaintiff has sustained injuries causing significant harm and damage to the functionality and appearance to Plaintiff s lip, chin and cheek area; and has been under continued mental stress and anxiety over the current injuries, their side-effects, and the possible additional damage the procedure may cause over the remaining years of Plaintiffs life. WHEREFORE, Plaintiff demands judgement for damages against Defendant Dental Associates in an amount in excess of $25,000, exclusive of any interest and costs, and otherwise in an amount in excess of the amount requiring compulsory arbitration. Count II Plaintiff v. Defendant Mendelson Negligence 39. Plaintiff, hereby incorporates paragraphs 1 through 38 of the foregoing Complaint in this paragraph as if set forth in their text. 40. From the time of the injection to the present, Plaintiff has incurred, and continues to incur, the following injuries and side-effects of the injuries from this procedure: • Numbness of the lower right lip area, • Numbness of the lower right facial chin area, 9 • An awkwardness and sensitivity when performing, normal hygiene and cosmetic care to the lower right lip, chin and cheek area, to the degree Plaintiff consciencely avoids the injured area, • A more difficult time placing food and drinks into the mouth by way of the lower right portion of the lip area, by not being able to feel the sensation of the food or drink entering the mouth through the numbed lip area, • A high level of conscience-ness not to accidentally bite the numbed area of the lip in fear of causing further damage to the already injured lip area, • A high level of conscience-ness not to place hot foods or drinks in the lower right section of Plaintiff's lip area while entering Plaintiff's mouth, for fear of burning Plaintiff's lower lip area and not knowing it due to the numbness, causing additional damage to the already injured area, • A slight and inconsistently visible dis-figuration of the lower right lip area, • A very annoying sensation in the lower right lip, chin and cheek area when those areas are exposed to cold weather conditions, • A high level of stress and anxiety on the effects of the injury and the unknown future of whether the injury will continue to de-grade the functionality and appearance of Plaintiff's lip, chin and cheek area. 41. From the time of the injection until the present, the damage to the functionality and appearance of Plaintiff has worsened, and may continue to worsen and further damage the functionality and the appearance of Plaintiff's lip, chin and cheek areas. 42. Defendant Mendelson had a duty to perform to the expected standards of a licensed dentist. 10 43. Defendant Mendelson was negligent in not aborting, or temporarily halting the needle injection procedure once Defendant Mendelson became aware of the Plaintiffs severe pain by way of Plaintiff's flinching re-action, and assessing the Plaintiffs acknowledged concern. If the procedure would have been aborted or temporarily halted, and the Plaintiffs acknowledged concern properly assessed, Defendant Mendelson could have mitigated further damage to the injured area. 44. If Plaintiff was properly informed of the risk of nerve damage of this needle injection procedure, Plaintiff would have selected a less risky alternative. 45. As a result of Defendant Mendelson negligence, Plaintiff has sustained injuries causing significant harm and damage to the functionality and appearance to Plaintiffs lip, chin and cheek area; and has been under continued mental stress and anxiety over the current injuries and their side-effects, and the possible additional damage the procedure may cause over the remaining years of Plaintiff s life. WHEREFORE, Plaintiff demands judgement for damages against Defendant Mendelson in an amount in excess of $25,000, exclusive of any interest and costs, and otherwise in an amount in excess of the amount requiring compulsory arbitration. Count III Plaintiff v. Defendant Dental Associates Battery 46. Plaintiff, hereby incorporates paragraphs 1 through 45 of the foregoing Complaint in this paragraph as if set forth in their text. 47. From the time of the injection to the present, Plaintiff has incurred, and continues to incur, the following injuries and side-effects of the injuries from this procedure: • Numbness of the lower right lip area, 11 S Numbness of the lower right facial chin area, • An awkwardness and sensitivity when performing normal hygiene and cosmetic care to the lower right lip, chin and cheek area; to the degree Plaintiff consciencely avoids the injured area, • A more difficult time placing food and drinks into the mouth by way of the lower right portion of the lip area, by not being able to feel the sensation of the food or drink entering the mouth through the numbed lip area, • A high level of conscience-ness not to accidentally bite the numbed area of the lip in fear of causing further damage to the already injured lip area, • A high level of conscience-ness not to place hot foods or drinks in the lower right section of Plaintiffs lip area while entering Plaintiffs mouth, for fear of burning Plaintiffs lower lip area and not knowing it due to the numbness, causing additional damage to the already injured area, • A slight and inconsistently visible dis-figuration of the lower right lip area, • A very annoying sensation in the lower right lip, chin and cheek area when those areas are exposed to cold weather conditions, • A high level of stress and anxiety caused by the effects of the injury and the unknown future of whether the injury will continue to de-grade the functionality and appearance of Plaintiffs lip, chin and cheek area. 48. From the time of the injection until the present, the damage to the functionality and appearance of Plaintiff has worsened, and may continue to worsen and further damage the functionality and the appearance of Plaintiffs lip, chin and cheek areas. 12 49. The procedure employed by Defendant Dental Associates of continuing the injection of anesthesia, in lieu of Plaintiff's acknowledgement that something was wrong, and not immediately aborting or temporarily halting the injection procedure, and investigating the nature of the Plaintiffs acknowledgment, was an unconsented touching, which is against the laws of Pennsylvania. 50. Defendant Dental Associates was responsible for making sure proper informed consent was obtained. 51. If Plaintiff was properly informed of the risk of nerve damage of this needle injection procedure, Plaintiff would have selected a less risky alternative. 52. The unconsented touching of Defendant Dental Associates resulted in the Plaintiff sustaining injuries causing significant harm and damage to the functionality and appearance to Plaintiffs lip, chin and cheek area; and being under continued mental stress and anxiety over the current injuries, their side-effects, with the possible additional damage the procedure may cause over the remaining years of Plaintiffs life. WHEREFORE, Plaintiff demands judgement for damages against Defendant Dental Associates in an amount in excess of $25,000, exclusive of any interest and costs, and otherwise in an amount in excess of the amount requirin€, compulsory arbitration. Count IV Plaintiff v. Defendant Mendelson Battery 53. Plaintiff, hereby incorporates paragraphs 1 through 52 of the foregoing Complaint in this paragraph as if set forth in their text. 13 54. From the time of the injection to the present, Plaintiff has incurred, and continues to incur, the following injuries and side-effects of the injuries from this procedure: • Numbness of the lower right lip area, • Numbness of the lower right facial chin area, • An awkwardness and sensitivity when performing; normal hygiene and cosmetic care to the lower right lip, chin and cheek area; to the degree Plaintiff consciencely avoids the injured area, • A more difficult time placing food and drinks into the mouth by way of the lower right portion of the lip area, by not being able to feel the sensation of the food or drink entering the mouth through the numbed lip area, • A high level of conscience-ness not to accidentally bite the numbed area of the lip in fear of causing further damage to the already injured lip area, • A high level of conscience-ness not to place hot foods or drinks in the lower right section of Plaintiff's lip area while entering Plaintiff's mouth, for fear of burning Plaintiff's lower lip area and not knowing it due to the numbness, causing additional damage to the already injured area, • A slight and inconsistently visible dis-figuration of the lower right lip area, • A very annoying sensation in the lower right lip, chin and cheek area when those areas are exposed to cold weather conditions, • A high level of stress and anxiety on the effects of the injury and the unknown future of whether the injury will continue to de-grade the functionality and appearance of Plaintiff's lip, chin and cheek area,. 14 55. From the time of the injection until the present, the damage to the functionality and appearance of Plaintiff has worsened, and may continue to worsen and further damage the functionality and the appearance of Plaintiff s lip, chin and cheek areas. 56. The procedure employed by Defendant Mendelson of continuing the injection of anesthesia, in lieu of Plaintiff's acknowledgement that something was wrong, and not immediately aborting or temporarily halting the injection procedure, and investigating the nature of the Plaintiff's acknowledgment, was an unconsented touching, which is against the laws of Pennsylvania. 57. Defendant Mendelson was responsible for making sure proper informed consent was obtained. 58. If Plaintiff was properly informed of the risk of nerve: damage of this needle injection procedure, Plaintiff would have selected a less risky alternative. 59. The unconsented touching of Defendant Mendelson resulted in the Plaintiff sustaining injuries causing significant harm and damage to the functionality and appearance to Plaintiffs lip, chin and cheek area; and being under continued mental stress and anxiety over the current injuries, their side-effects, with the possible additional damage the procedure may cause over the remaining years of Plaintiff's life. WHEREFORE, Plaintiff demands judgement for damages against Defendant Mendelson in an amount in excess of $25,000, exclusive of any interest and costs, and otherwise in an amount in excess of the amount requiring compulsory arbitration. Count V Plaintiff v. Defendant Dental Associates Lack of Informed Consent 15 60. Plaintiff, hereby incorporates paragraphs 1 through 59 of the foregoing Complaint in this paragraph as if set forth in their text. 61. From the time of the injection to the present, Plaintiff has incurred, and continues to incur, the following injuries and side-effects of the injuries from this procedure: • Numbness of the lower right lip area, • Numbness of the lower right facial chin area, • An awkwardness and sensitivity when performing normal hygiene and cosmetic care to the lower right lip, chin and cheek area; to the degree Plaintiff consciencely avoids the injured area, • A more difficult time placing food and drinks into the mouth by way of the lower right portion of the lip area, by not being able to feel the sensation of the food or drink entering the mouth through the numbed lip area, • A high level of conscience-ness not to accidentally bite the numbed area of the lip in fear of causing further damage to the already injured lip area, • A high level of conscience-ness not to place hot foods or drinks in the lower right section of Plaintiff's lip area while entering Plaintiff's mouth, for fear of burning Plaintiff's lower lip area and not knowing it due to the numbness, causing additional damage to the already injured area, • A slight and inconsistently visible dis-figuration of the lower right lip area, • A very annoying sensation in the lower right lip, chin and cheek area when those areas are exposed to cold weather conditions, 16 A high level of stress and anxiety caused by the effects of the injury and the unknown future of whether the injury will continue to de-grade the functionality and appearance of Plaintiff's lip, chin and cheek area. 62. From the time of the injection until the present, the damage to the functionality and appearance of Plaintiff has worsened, and may continue to worsen and further damage the functionality and the appearance of Plaintiff's lip, chin and cheek areas. 63. The tooth restoration procedures, of which the associated anesthesia procedure is part, performed on Plaintiff by Defendant Dental Associates, are procedures which Pennsylvania law state that Defendant Dental Associates had a duty to make sure that proper informed consent was obtained from Plaintiff. 64. If Plaintiff was properly informed of the risk of nerve damage of this needle injection procedure, Plaintiff would have selected a less risky altemative. 65. Defendant Dental Associates did not provide proper informed consent; resulting in the Plaintiff sustaining injuries causing significant harm and damage to the functionality and appearance to Plaintiff's lip, chin and cheek area; and being under continued mental stress and anxiety over the current injuries, their side-effects, with the possible additional damage the procedure may cause over the remaining years of Plaintiff s life. WHEREFORE, Plaintiff demands judgement for damages against Defendant Dental Associates in an amount in excess of $25,000, exclusive of any interest and costs, and otherwise in an amount in excess of the amount requiring compulsory arbitration. 17 Count VI Plaintiff v. Defendant Mendelson Lack of Informed Consent 66. Plaintiff, hereby incorporates paragraphs 1 through 65 of the foregoing Complaint in this paragraph as if set forth in their text. 67. From the time of the injection to the present, Plaintiff has incurred, and continues to incur, the following injuries and side-effects of the injuries from this procedure: • Numbness of the lower right lip area, • Numbness of the lower right facial chin area, • An awkwardness and sensitivity when performing normal hygiene and cosmetic care to the lower right lip, chin and cheek area; to the degree Plaintiff consciencely avoids the injured area, • A more difficult time placing food and drinks into the mouth by way of the lower right portion of the lip area, by not being able to feel the sensation of the food or drink entering the mouth through the numbed lip area, • A high level of conscience-ness not to accidentally bite the numbed area of the lip in fear of causing further damage to the already injured lip area, • A high level of conscience-ness not to place hot foods or drinks in the lower right section of Plaintiff's lip area while entering Plaintiff's mouth, for fear of burning Plaintiff's lower lip area and not knowing it due to the numbness, causing additional damage to the already injured area, • A slight and inconsistently visible dis-figuration of the lower right lip area, 18 A very annoying sensation in the lower right lip, chin and cheek area when those areas are exposed to cold weather conditions • A high level of stress and anxiety on the effects of the injury and the unknown future of whether the injury will continue to de-grade the functionality and appearance of Plaintiff's lip, chin and cheek area. 68. From the time of the injection until the present, the damage to the functionality and appearance of Plaintiff has worsened, and may continue to worsen and further damage the functionality and the appearance of Plaintiff's lip, chin and cheek areas. 69. The tooth restoration procedures, of which the associated anesthesia procedure is part, performed on Plaintiff by Defendant Mendelson, are procedures which Pennsylvania law state that Defendant Mendelson had a duty to make sure that proper informed consent was obtained from Plaintiff. 70. If Plaintiff was properly informed of the risk of nerve: damage of this needle injection procedure, Plaintiff would have selected a less risky alternative. 71. Defendant Mendelson did not provide proper informed consent; resulting in the Plaintiff sustaining injuries causing significant harm and damage to the functionality and appearance to Plaintiff's lip, chin and cheek area; being under continued mental stress and anxiety over the current injuries, their side-effects, with the possible additional damage the procedure may cause over the remaining years of Plaintiff's life. WHEREFORE, Plaintiff demands judgement for damages against Defendant Mendelson in an amount in excess of $25,000, exclusive of any interest and costs, and otherwise in an amount in excess of the amount requiring compulsory arbitration. 19 Count VII Plaintiff v. Defendant Dental Associates False, Misleading and Deceptive Advertising - Misrepresentation 72. Plaintiff, hereby incorporates paragraphs 1 through 71 of the foregoing Complaint in this paragraph as if set forth in their text. 73. From the time of the injection to the present, Plaintiff has incurred, and continues to incur, the following injuries and side-effects of the injuries from this procedure: • Numbness of the lower right lip area, • Numbness of the lower right facial chin area, • An awkwardness and sensitivity when performing normal hygiene and cosmetic care to the lower right lip, chin and cheek area; to the degree Plaintiff consciencely avoids the injured area, A more difficult time placing food and drinks into the mouth by way of the lower right portion of the lip area, by not being able to feel the sensation of the food or drink entering the mouth through the numbed lip area, • A high level of conscience-ness not to accidentally bite the numbed area of the lip in fear of causing further damage to the already injured lip area, • A high level of conscience-ness not to place hot foods or drinks in the lower right section of Plaintiff's lip area while entering Plaintiff's mouth, for fear of burning Plaintiff's lower lip area and not knowing it due to the numbness, causing additional damage to the already injured area, • A slight and inconsistently visible dis-figuration of the lower right lip area, 20 • A very annoying sensation in the lower right lip, chin and cheek area when those areas are exposed to cold weather conditions, • A high level of stress and anxiety caused by the effects of the injury and the unknown future of whether the injury will continue to de-grade the functionality and appearance of Plaintiff's lip, chin and cheek area. 74. From the time of the injection until the present, the damage to the functionality and appearance of Plaintiff has worsened, and may continue to worsen and further damage the functionality and the appearance of Plaintiffs lip, chin and cheek areas. 75. Defendant Dental Associates advertises and represents to its patients and prospective patients, to provide the highest level of dental care for its patients, utilizing state-of- the-art technologies and personalized service to each and every patient. 76. Defendant Dental Associates advertises and represents to it's patients and prospective patients, a philosophy of giving the absolute best health care service to it's patients. 77. Plaintiff relied on the aforesaid advertising and representations of Defendant Dental Associates to provide the highest level of dental care, to utilize state-of-the-art technologies and employ personalized service, to give the absolute best health care service to Plaintiff, including informing Plaintiff of all significant and material risks of procedures in advance of each procedure used on Plaintiff and Plaintiff family members. 78. Defendant Dental Associates did not inform Plaintiff of the possible significant and/or permanent nerve damage of the needle injection procedure associated with Plaintiff's tooth restoration, in advance or otherwise. 21 79. Plaintiff was not informed of the nerve damage risk until Plaintiff initiated an inquiry with Defendant Dental Associates regarding Plaintiff s injury. 80. Pennsylvania Law requires Defendant Dental Associates not to advertise in a false, misleading or deceptive manner. 81. Defendant Dental Associates advertised and represented their level of dental care and level of personalized service to Plaintiff in a false, misleading and deceptive manner, by advertising and representing their services in the aforesaid manner; and then not informing the Plaintiff, in advance, of the complications which could result in significant and/or permanent damage to the lip, chin and cheek areas. 82. If Plaintiff was properly informed of the risk of nerve damage of this needle injection procedure, Plaintiff would have selected a less risky alternative. 83. As a result of Defendant Dental Associates' false, misleading and deceptive advertising and representations, Plaintiff has sustained injuries causing significant harm and damage to the functionality and appearance to Plaintiffs lip, chin and cheek area; and has been under continued mental stress and anxiety over the current injuries, their side-effects, and the possible additional damage the procedure may cause over the remaining years of Plaintiff s life. WHEREFORE, Plaintiff demands judgement for damages against Defendant Dental Associates in an amount in excess of $25,000, exclusive of any interest and costs, and otherwise in an amount in excess of the amount requiring compulsory arbitration. Count VIII Plaintiff v. Defendant Mendelson False, Misleading and Deceptive Advertising - Misrepresentation 22 84. Plaintiff, hereby incorporates paragraphs I through 83 of the foregoing Complaint in this paragraph as if set forth in their text. 85. From the time of the injection to the present, Plaintiff has incurred, and continues to incur, the following injuries and side-effects of the injuries from this procedure: • Numbness of the lower right lip area, • Numbness of the lower right facial chin area, • An awkwardness and sensitivity when performing normal hygiene and cosmetic care to the lower right lip, chin and cheek area; to the degree Plaintiff consciencely avoids the injured area, • A more difficult time placing food and drinks into the mouth by way of the lower right portion of the lip area, by not being able to feel the sensation of the food or drink entering the mouth through the numbed lip area, • A high level of conscience-ness not to accidentally bite the numbed area of the lip in fear of causing further damage to the already injured lip area, • A high level of conscience-ness not to place hot foods or drinks in the lower right section of Plaintiff's lip area while entering Plaintiff's mouth, for fear of burning Plaintiff's lower lip area and not knowing it due to the numbness, causing additional damage to the already injured area, • A slight and inconsistently visible dis-figuration of the lower right lip area, A very annoying sensation in the lower right lip, chin and cheek area when those areas are exposed to cold weather conditions, 23 • A high level of stress and anxiety on the effects of the injury and the unknown future of whether the injury will continue to do grade the functionality and appearance of Plaintiff s lip, chin and cheek area. 86. From the time of the injection until the present, the dunnage to the functionality and appearance of Plaintiff has worsened, and may continue to worsen and further damage the functionality and the appearance of Plaintiff s lip, chin and cheek areas. 87. Defendant Dental Mendelson advertises and represents to his patients and prospective patients, to provide the highest level of dental care for its patients, utilizing state-of- the-art technologies and personalized service to each and every patient. 88. Defendant Mendelson advertises and represents to his patients and prospective patients, a philosophy of giving the absolute best health care service to it's patients. 89. Plaintiff relied on the aforesaid advertising and representations of Defendant Mendelson to provide the highest level of dental care, to utilize state-of-the-art technologies and employ personalized service, to give the absolute best health care service to Plaintiff, including informing Plaintiff of all significant and material risks of procedures in advance of each procedure used on Plaintiff and Plaintiff family members. 90. Defendant Mendelson did not inform Plaintiff of the possible significant and/or permanent nerve damage of the needle injection procedure associated with Plaintiffs tooth restoration, in advance or otherwise. 91. Plaintiff was not informed of the nerve damage risk until Plaintiff initiated an inquiry with Defendant Mendelson regarding Plaintiffs injury. 24 92. Pennsylvania Law requires Defendant Mendelson not to advertise in a false, misleading or deceptive manner. 93. Defendant Mendelson advertised and represented his level of dental care and level of personalized service to Plaintiff in a false, misleading and deceptive manner, by advertising and representing his services in the aforesaid manner; and then not informing the Plaintiff, in advance, of the complications which could result in significant and/or permanent damage to the lip, chin and cheek areas. 94. If Plaintiff was properly informed of the risk of nerve damage during this needle injection procedure, Plaintiff would have selected a less risky alternative. 95. As a result of Defendant Mendelson's false, misleading and deceptive advertising and representations, Plaintiff has sustained injuries causing significant harm and damage to the functionality and appearance to Plaintiff's lip, chin and cheek area; and has been under continued mental stress and anxiety over the current injuries, their side- effects, and the possible additional damage the procedure may cause over the remaining years of Plaintiff s life. WHEREFORE, Plaintiff demands judgement for damages against Defendant Mendelson in an amount in excess of $25,000, exclusive of any interest and costs, and otherwise in an amount in excess of the amount requiring compulsory arbitration. Count IX Plaintiff -Husband v. Defendant Dental Associates Loss of Consortium 96. Plaintiff-Husband, hereby incorporates paragraphs 1 through 95 of the foregoing Complaint in this paragraph as if set forth in their text. 25 97. As a result of the injuries sustained by his wife, Plaintiff-Husband has been deprived of the society and companionship of his wife, Joann. M. Stiteler, and has thereby suffered a loss of consortium. WHEREFORE, Plaintiff-Husband demands judgement for damages against Defendant Dental Associates in an amount in excess of $25,000, exclusive of any interest and costs, and otherwise in an amount in excess of the amount requiring compulsory arbitration. Count X Plaintiff-Husband v. Defendant Mendelson Loss of Consortium 98. Plaintiff-Husband, hereby incorporates paragraphs 1 through 97 of the foregoing Complaint in this paragraph as if set forth in their text. 99. As a result of the injuries sustained by his wife, Plaintiff-Husband has been deprived of the society and companionship of his wife, Joann M. Stiteler, and has thereby suffered a loss of consortium WHEREFORE, Plaintiff-Husband demands judgement for damages against Defendant Dental Associates in an amount in excess of $25,000, exclusive of any interest and costs, and otherwise in an amount in excess of the amount requiring compulsory arbitration. 26 Respectfully Submitted, Joann M. Stiteler, Plaintiff 3804 Lamp Post Lane Camp Hill, PA 17011 R. Dean Stiteler, Plaintiff 3804 Lamp Post Lane Camp Hill, PA 17011 27 VERIFICATION The undersigned, Joann M. Stiteler and R. Dean Stiteler, hereby verify that the statements made in the foregoing document are true and correct. We understand that false statements herein are made subject to the penalties of 18 Pa.C.S. Section 4904, relating to unswom falsifications to authorities. DATE: i' ?I v I (377 2 U pl ?"L _ Joann M. Stiteler ????????'9 DATE: R. Dean Stiiteler 28 CERTIFICATE OF SERVICE AND NOW, this 2? day of p , 2004, I, Gregory E. Cassimatis, Esquire, Attorney for Defendants hereby certify that I served a copy of the within Defendant's Response to Plaintiffs' Motion for Leave to Amend Caption on this date by depositing same in the United States mail, postage prepaid, in Mechanicsburg, Pennsylvania, addressed to: Joann Stiteler 3804 Lamp Post Lane Camp Hill, PA 17011 By: Grego Cassimatis, Esquire 4999 Louise Drive, Suite 103 Mechanicsburg, PA 17055 (717) 791-0400 Attorney I.D. # 49619 a i5 fC' ? ? ? ?? ? .e ? .. C N i.J ? ? l-7 ? {,') ? N N q ?! PRAECIPE FOR LISTING CASE FOR ARGUMENT (Must be typewritten and submitted in duplicate) TO THE PROTHONOTARY OF CUMBERLAND COUNTY: Please list the within matter for the next Argument Court' CAPTION OF CASE (entire caption must be stated in full) Joann M. Stiteler ( plaintiff ) V5. Mendelson, Foer, Harrison Dental Associates and Dr. Michael P. Mendelson (Defendant) JR 2004 No. 04-1235 Civil i_ State matter to be argued (i.e., Plaintiff's motion for new trial, defendant's demurrer to complaint, etc.): Plaintiff's Motion to Amend Caption 2. Identify counsel who will argue case: Ca) for Plaintiff: Pro se ( 3804 Lamp Post Lane Address' Camp Hill, PA 17011 (b) for defendant: Gregory E. Cassimat:is, Esq. Address: 4999 Louise Dr., Suite 103 Mechanicsburg, PA 17055 3. I will notify all parties in writing within two days that this case has been listed for argument. 4. Argument Court Date: June 9, 2004 Dated: V'-2 Z?() 7 A .or Defedan CERTIFICATE OF SERVICE AND NOW, this & day of _4,,Z , 2004, I, Gregory E. Cassimatis, Esquire, Attorney for Defendants hereby certify that I served a copy of the within Praecipe for Argument on this date by depositing same in the United States mail, postage prepaid, in Mechanicsburg, Pennsylvania, addressed to: Joann Stiteler 3804 Lamp Post Lane Camp Hill, PA 17011 By: Gregory a<;simatis, Esquire 4999 Louise Drive, Suite 103 Mechanicsburg, PA 17055 (717) 791-0400 Attorney I.D. # 49619 pla a w N fV O? JOANN M. STITELER and IN THE COURT OF COMMON PLEAS OF R. DEAN STITELER, CUMBERLAND COUNTY, PENNSYLVANIA Plaintiffs CIVIL ACTION - LAW Vs. 04-1235 CIVIL MENDELSON FOER HARRISON, DENTAL ASSOCIATES and MICHAEL P. MENDELSON, DDS, : Defendants : JURY TRIAL DEMANDED IN RE: PLAINTIFFS' MOTION FOR LEAVE TO AMEND CAPTION ORDER AND NOW, this day of April, 2004, a rule is issued on the defendants to show cause why the relief requested in the within motion ought not to be granted. This rule returnable twenty (20) days after service. BY THE COURT, oa ?- SZ .6 WV 6Z 88V h00Z A d!o30f:L4Q-slu ?0 SHERIFF'S RETURN - REGULAR CASE NO: 2004-01235 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND STITELER JOANN M VS MENDELSON FOER HARRISON DENTAL SHANNON SHERTZER Sheriff or Deputy Sheriff of Cumberland County,Pennsylvania, who being duly sworn according to law, says, the within COMPLAINT & NOTICE was served upon MENDELSON FOER HARRISON DENTAL ASSOCIATES the DEFENDANT , at 1610:00 HOURS, on the 21st day of April 2004 at 4824 EAST TRINDLE ROAD MECHANICSBURG, PA 17055 by handing to MICHAEL MENDELSON ADULT IN CHARGE a true and attested copy of COMPLAINT & NOTICE together with and at the same time directing His attention to the contents thereof. Sheriff's Costs: Docketing 18.00 Service 6.90 Affidavit .00 Surcharge 10.00 .00 34.90 Sworn and Subscribed to before me this day of ???on...P .?Ufl `t A.D. 0L Q YYt?eOm< A rothonotary ' So Answers: R. Thomas Kline 04/22/2004 JOANN STITELER By: Deputy SHERIFF'S RETURN - REGULAR CASE NO: 2004-01235 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND STITELER JOANN M VS MENDELSON FOER HARRISON DENTAL SHANNON SHERTZER , Sheriff or Deputy Sheriff of Cumberland County,Pennsylvania, who being duly sworn according to law, says, the within COMPLAINT & NOTICE was served upon MENDELSON MICHAEL P DDS the DEFENDANT , at 1610:00 HOURS, on the 21st day of April , 2004 at 1013 WANSFORD ROAD MECHANICSBURG, PA 17055 by handing to MICHAEL MENDELSON a true and attested copy of COMPLAINT & NOTICE together with and at the same time directing His 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 .2S =_ day of 6)a?q ,2 11D? A.D. no a? ,( I1,.,!' So Answers: R. Thomas Kline 04/22/2004 JOANN STITELER By: q=y?Sh ff JOANN M. STITELER : IN THE COURT OF COMMON PLEAS OF Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA V. : CIVIL ACTION -LAW MENDELSON FOER :No. 04-1235 CIVIL TERM HARRISON, DENTAL ASSOICATES and MICHAEL P. MENDELSON DDS, : Defendants : JURY TRIAL DEMANDED CERTIFICATE OF MERIT AS TO MENDELSON FOER HARRISON, DENTAL ASSOCIATES Plaintiff Complaint does assert a professional liability claim against Defendant Mendelson Foer Harrison, Dental Associates. Count 3 (paragraph 43) of the original Complaint filed March 24, 2004 asserts "Defendant Dental Associates was negligent in not aborting the needle injection procedure once Defendant: Dental Associates became aware of the Plaintiffs severe pain by way of Plaintiff s flinching re-action. If the procedure would have been aborted, Defendant Dental Associates could have mitigated further damage to the injured area." Plaintiff asserts Defendant was negligent when deviating from an acceptable professional standard in not aborting, or otherwise halting, the needle injection and properly assessing the Plaintiff s pain. Such conduct was a cause in bringing about the harm. In adhere to P.R.C.P. 1042.3, I, Plaintiff Joann M. Stiteler, certify that expert testimony of an appropriate licensed professional is unnecessary for prosecution of Count 3 against defendant Mendelson Foer Harrison, Dental Associates. Date: ? a aOO4 By: o ghn M. Stiteler, Plaintiff CERTIFICATE OF SERVICE sk, AND NOW, this cA I day of 2004, I, Joann M. Stiteler, Plaintiff, hereby certify that I serv ed a copy of the withi ertificate of Merit on this date by depositing same in the United States mail, postage prepaid, in Mechanicsburg, Pennsylvania, addressed to: <?q-f qx? -E. Cam- v>1?T5 M-T-OyNvy tr LtW s-4 tv 3 ti-?gS t.a„bf Af (M?Y ha- By: iann M. Stiteler, Plaintiff 804 Lamp Post Lane Camp Hill, PA 17011 (717) 763-1456 `v co C7 _ r TI IIT ^? 'Crm r -? N v •< JOANN M. STITELER Plaintiff V. MENDELSON FOER HARRISON, DENTAL ASSOICATES and MICHAEL P. MENDELSON DDS, : Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW No. 04-1235 CIVIL TERM JURY TRIAL DEMANDED CERTIFICATE OF MERIT AS TO MICHAEL P. MENDELSON, DDS Plaintiff Complaint does assert a professional liability claim against Defendant Michael P. Mendelson, DDS. Count 4 (paragraph 48) of the original Complaint filed March 24, 2004 asserts "Defendant Mendelson was negligent in not aborting the needle injection procedure once Defendant Mendelson became aware of the Plaintiff s severe pain by way of Plaintiffs flinching re-action. If the procedure would have been aborted, Defendant Mendelson could have mitigated further damage to the injured area." Plaintiff asserts Defendant was negligent when deviating from an acceptable professional standard in not aborting, or otherwise halting, the needle injection and properly assessing the Plaintiff s pain. Such conduct was a cause in bringing about the harm. In adhere to P.R.C.P. 1042.3, 1, Plaintiff Joann M. Stiteler, certify that expert testimony of an appropriate licensed professional is unnecessary for prosecution of Count 4 against defendant Mendelson. Date: oo By: 0 n M. Stite er, Plaintiff CERTIFICATE OF SERVICE AND NOW, this a2l-4 day of2L6c ,,i 12004, I, Joann M. Stiteler, Plaintiff, hereby certify that I served a copy of the with- idCe tificate of Merit on this date by depositing same in the United States mail, postage prepaid, in Mechanicsburg, Pennsylvania, addressed to: Rt6t.j< h* L.Kw Std t4 3 - "Ovi Or. 1-WS? J 'Ann M. Stiteler, Plaintiff 3804 Lamp Post Lane Camp Hill, PA 17011 (71:7) 763-1456 ??? r ?- N F_: - W?.? GJ?' 1% i- 1_ -__ "'1 Q [. -- r 1 G ?'? N LLI ? ;s- - r, ::- .,. U s N U JOANN M. STITELER, PLAINTIFF V. MENDELSON, FOER, HARRISON DENTAL ASSOCIATES AND DR. MICHAEL P. MENDELSON, DEFENDANTS IN THE COURT OF COMMON PLEAS OF CUMBERLAND, COUNTY, PENNSYLVANIA 04-1235 CIVIL TERM IN RE: PRELIMINARY OBJECTIONS OF (DEFENDANTS TO PLAINTIFF'S COMPLAINT BEFORE BAYLEY, J. ORDER OF COURT AND NOW, this day of June, 2004, IT IS ORDERED: (1) Defendants' demurrer to plaintiffs causes of action for lack of informed consent, IS GRANTED. The causes of action for lack of informed consent, ARE DISMISSED. (2) The motion of plaintiff to amend the caption of her complaint to change the name of defendant "Dr. Michael P. Mendelson," to "Michael P. Mendelson, DDS," IS GRANTED. The caption is so amended. (3) The motion of plaintiff to amend the caption of her complaint to add a new party, her husband Dean Stiteler, IS DENIED. By e Cou Y Edgar B. B ley, J. w C J ttL _ !L Q (..t rya "? CJ 04-1235 CIVIL TERM Joann M. Stiteler, Pro se 3804 Lamppost Lane Camp Hill, PA 17011 Gregory E. Cassimatis, Esquire 4999 Louise Drive Suite 103 Mechanicsburg, PA 17055 For Defendants 6_.O,6Y sal JOANN M. STITELER, PLAINTIFF V. MENDELSON, FOER, HARRISON DENTAL ASSOCIATES AND DR. MICHAEL P. MENDELSON, DEFENDANTS IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA 04-1235 CIVIL TERM IN RE: PRELIMINARY OBJECTIONS OF DEFENDANTS TO PLAINTIFF'S COMPLAINT BEFORE BAYLEY, J. OPINION AND ORDER OF COURT Bayley, J., June 30, 2004:-- On March 24, 2004, plaintiff Joann M. Stiteler, filed a complaint against defendants, Mendelson, Foer, Harrison Dental Associates and Dr. Michael P. Mendelson. Plaintiff pleads causes of action for negligence and lack of informed consent involving a dental procedure performed on her by Michael P. Mendelson on March 25, 2002. Plaintiff avers inter alia: 15. On the aforesaid date, Defendant Mendelson performed a series of tooth restoration dental procedures to eliminate tooth decay and restore a tooth of Plaintiff. The tooth being located in the lower right section of Plaintiffs tooth structure. 16. In doing so, Defendant Mendelson employed a procedure to numb Plaintiffs [sic] lower right jaw area by injecting a needle with anesthesia to the gum area under the tooth having the above- mentioned cavity. 17. After the needle penetrated the skin andl was placed in the aforesaid area, and as Defendant Mendelson pressed the needle apparatus downward injecting the anesthesia, Plaintiff felt a severe pain causing her, 04-1235 CIVIL TERM as a re-action [sic], to noticeably flinch. 18. As Defendant Mendelson observed Plaintiff flinching, Defendant Mendelson instructed the Plaintiff to stay calm and relax, further stating that he is almost done injecting the anesthesia. 19. As instructed by Defendant Mendelson, Plaintiff remained calm and tried to relax, but while doing so Plaintiffs severe pain continued until such time when Defendant Mendelson finished the procedure and extracted the needle from the Plaintiffs gum area. 20. From the time of the injection to the present, Plaintiff has incurred, and continues to incur, the following effects from this procedure: • Numbness of the lower right lip area, • Numbness of the lower right facial chin area, • An awkwardness and sensitivity when performing normal hygiene and cosmetic care to the lower right lip, chin and cheek area; to the degree Plaintiff consciencely [sic] avoids the injured area, • A more difficult time placing food and drinks into the mouth by way of the lower right portion of the lip area, by not being able to feel the sensation of the food or drink entering the mouth through the numbed lip area, • A high level of conscience-ness [sic] not to accidentally bite the numbed area of the lip in fear of causing further damage to the already injured lip area, • A high level of conscience-ness [sic] not to place hot foods or drinks on the lower right section of Plaintiffs lip area while entering Plaintiffs mouth, for fear of burning Plaintiffs lower lip area and not knowing it, due to the numbness, causing additional damage to the already injured area, • A slight dis-figuration [sic] of the lower right lip area. (Emphasis added.) On April 19, 2004, plaintiff filed a motion to amend the caption of her complaint to change the name of defendant, "Dr. Michael P. Mendelson" to Michael P. Mendelson, DDS, and to add her husband Dean Stiteler as a party for the purpose of pursuing consortium. Also on April 19, 2004, plaintiff filed a first amended complaint. On April 23, 2004, defendants filed preliminary objections to plaintiffs original complaint -2- 04-1235 CIVIL TERM in the form of a demurrer to the causes of action for lack of informed consent. On April 27, 2004, a rule was entered directing defendants to show cause why the motion to amend the caption should not be granted. The first amended complaint was not filed with the consent of defendants or leave of court pursuant to Rule 1033. It was filed four days before defendants filed their preliminary objections to the original complaint; therefore, it was not filed as of course pursuant to Rule 1028(c)(1). Accordingly, the first amended complaint is a nullity. Presently before us are defendant's preliminary objections to the original complaint, and plaintiffs motion Ito amend the caption of the complaint. The issues were briefed and argued on June 9, 2004. 1. DEMURRER TO CAUSES OF ACTION FOR LACK OF INFORMED CONSENT Informed consent is required for surgical or operative procedures not non- surgical procedures. Gray v. Grunnagle, 423 Pa. 144 (11966). The rational for the requirement is that a surgical or operative procedure constitutes a technical assault or battery. Id. Plaintiffs averments in support of her causes of action for lack of informed consent are based on her dentist's injection of an anesthetic to numb the area where a cavity was filled. It is from the injection that she alleges she suffered harm. In Morgan v. McPhail, 704 A.2d 617 (Pa. 1997), a plaintiff fractured two ribs. A physician performed an intercostal nerve block in an effort to relieve: plaintiffs pain. An intercostal nerve block is a procedure whereby a local anesthetic is injected into the area around the ribs. Plaintiff incurred a right pneumothorax, a collapse of the lung, as a result of the nerve block. A second plaintiff treated by a physician for complaints of pain in her -3- 04-1235 CIVIL TERM right heel. The physician injected a long-acting steroid into the plaintiffs right superficial adventitious bursa. The plaintiff was later diagnosed with Achilles tendonitis. Her tendon ruptured and required surgical repair. The Supreme Court of Pennsylvania concluded that the injections in both cases were not surgical or operative procedures which require informed consent. The Court, noting that in Pennsylvania a physician must obtain informed consent from a patient before performing a surgical or operative procedure, stated: Neither the Pennsylvania legislature nor courts have defined surgical or operative procedure; however, "operate" is defined in Taber's Cyclopedic Medical Dictionary 1256 (16th ed.1989) as "[tjo perform an excision or incision, or to make a suture on the body or any of its organs to restore health." "Surgery" is defined in Black's Law Dictionary 1442 (6th ad. 1990) as "that branch of medical science which treats of mechanical or operative measures for healing diseases, deformities or injuries." "Operation" is defined as "an act or succession of acts performed upon the body of a patient, for his relief or restoration to normal conditions, by the use of surgical instruments as distinguished from therapeutic treatment by the administration of drugs or other remedial measures." Id. at 1092. The Court concluded: The procedures involved in the instant appeals do not fall within the definition of surgical or operative procedures because neither involved an excision or incision or the use of surgical instruments; rather, they involved the therapeutic administration of drugs. In fact, the procedures are more closely analogous to the introduction of medication through an intravenous needle or line because the instant procedures and the intravenous use of medication both involve the use of needles to inject medication rather than the use of surgical instruments. (Emphasis added.) The Court further stated that the procedures did not constitute "Performing surgery, including the related administration of anesthesia" for which the Legislature codified a -4- 04-1235 CIVIL TERM requirement to obtain informed consent under the Healthcare Services Malpractice Act.' Morgan controls the present case. Plaintiff received an injection of an anesthetic in preparation for filling a cavity. She does not aver that the filling of the cavity was a surgical or operative procedure.' Rather, she avers that the injection of the anesthetic, from which she suffered harm, required her informed consent. Since an injection of an anesthetic around the ribs is not a surgical or operative procedure as was determined in Morgan v. McPhail, supra, the injection of an anesthetic into the gum in preparation for filling a cavity is not a surgical or operative procedure. We will grant defendant's demurrer to plaintiffs causes of action for lack of informed consent. ' 40 P.S. § 1301.801 effective January 25, 1997. The same phrase is now contained in the Medical Care Availability and Reduction of Error (MCARE) Act at 40 P.S. § 1303.504. 2 Contrast Perkins v. Desipio, 736 A.2d 608 (1999), in which the Superior Court of Pennsylvania held that a root canal constitutes a surgical or operative procedure requiring informed consent. The Court concluded that a root canal is an invasive procedure involving the use of surgical instruments and the incision or excision upon the body of a patient to restore health as contemplated by the Supreme Court of Pennsylvania's definition of "surgery" or "operation" in Morgan v. McPhail, supra. The Court stated: We discern no difference between the removal of diseased nerve tissue in the root of a tooth and diseased cell growth in some other part of the body. Also contrast Sauro v. Shea, 257 Pa. Super. 87 (1978), in which the Superior Court of Pennsylvania concluded that informed consent was necessary where twenty- three teeth were extracted under general anesthesia. In Bulman v. Myers, 321 Pa. Super. 261 (1983), the Superior Court concluded that informed consent applied to the surgical extraction of impacted wisdom teeth. In both Sauro and Bulman there was no dispute that those procedures constituted surgery. -5- 04-1235 CIVIL TERM II. MOTION TO AMEND CAPTION OF COMPLAINT Defendants do not object to plaintiffs motion to amend the caption of her complaint to change the name of defendant, "Dr. Michael P. Mendelson," to "Michael P. Mendelson DDS." Defendants do object to adding a new party, plaintiffs husband Dean Stiteler, for purposes of pursuing a claim for consortium. Their objection is based on the two year statute of limitations having run on March 24, 2004.3 Pa. Rule of Civil Procedure 1033 provides: A party, either by filed consent of the adverse party or by leave of court, may at any time change the form of action, correct the name of a party or amend his pleading. The amended pleading may aver transactions or occurrences which have happened before or after the filing of the original pleading, even though they give rise to a new cause of action or defense. An amendment may be rnade to conform the pleading to the evidence offered or admitted. Amendments to pleadings are freely allowed under the Rules of Civil Procedure but are subject to the qualification that they may not introduce a new cause of action after the statute of limitations has run. Sanchez v. City of Philadelphia, 302 Pa. Super. 184 (1982). The limitation period for a spouse's claim for loss of consortium begins to run on the same date that the injured spouse's claim begins to run. Berardi v. Johns-Manville Corporation, 334 Pa. Super. 36 (1984). Although an amendment as to damages does not constitute a new cause of action and is permitted at any point in litigation, R.P. Clarke Personnel, Inc. v. Commonwealth National Bank, 384 Pa. 3 42 Pa.C.S. Section 5524. -6- 04-1235 CIVIL TERM Super. 524 (1989), a claim for loss of consortium is a separate and distinct cause of action. Darr Construction Company v. Workmen's Compensation Appeal Board, 715 A.2d 1075 (Pa. 1998); Anchorstar v. Mack Trucks, Inc., 533 Pa. 177 (1993). Plaintiff argues that the discovery rule should extend the two year statute of limitations. The discovery rule arises from the inability, despite the exercise of due diligence, to know of an injury or its cause. Pocono International Raceway v. Pocono Produce, 503 Pa. 80 (1983). Once a patient is aware or should reasonably have become aware that medical treatment has caused personal injury the statute of limitations begins to run. Ward v. Rice, 828 A.2d 1118 (Pa. Super. 2003). In Groover v. Riddle Memorial Hospital, 357 Pa. Super. 420 (1986), the plaintiff began to suffer pain and loss of control of her right leg from the time she received a very painful injection. She visited various doctors over the next several years but it was not until four years later that a physician determined that the pain in her right leg was a sciatic nerve injury linked to the injection. The Superior Court concluded that from the time the plaintiff received the injection she knew or reasonably should have known that she was injured, the operative cause of her injury, and the causative relationship between the injury and the operative conduct. Thus, her suit was time barred. In the case sub judice, plaintiff has pleaded in paragraph 20 of her complaint that "From the time of the injection to the present, [she] has incurred, and continues to incur. . ." seven specified types of harm and injuries. Based on this pleading we are satisfied that Groover is controlling. The statute of limitations began to run on March -7- 04-1235 CIVIL TERM 25, 2002, the day of the injury. Therefore, any cause of action for consortium by her husband is barred by the statute of limitations. For the foregoing reasons, the following order is entered. ORDER OF COURT AND NOW, this ID _ day of June, 2004, IT IS ORDERED: (1) Defendants' demurrer to plaintiffs causes of action for lack of informed consent, IS GRANTED. The causes of action for lack of unformed consent, ARE DISMISSED. (2) The motion of plaintiff to amend the caption of her complaint to change the name of defendant "Dr. Michael P. Mendelson," to "Michael P. Mendelson, DDS," IS GRANTED. The caption is so amended. (3) The motion of plaintiff to amend the caption of her complaint to add a new party, her husband Dean Stiteler, IS DENIED. _ By th ourt Edgar B. Bayley, J. Joann M. Stiteler, Pro se 3804 Lamppost Lane Camp Hill, PA 17011 Gregory E. Cassimatis, Esquire 4999 Louise Drive Suite 103 Mechanicsburg, PA 17055 For Defendants :sal -8- GREGORY E. CASSIMATIS, ESQUIRE 4999 Louise Drive, Suite 103 Mechanicsburg, PA 17055 717-791-0400 Attorney I.D. # 49619 JOANN M. STITELER, Plaintiff V. ATTORNEY FOR DEFENDANTS IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY. PENNSYLVANIA NO. 04-1235 MENDELSON, FOER HARRISON, DENTAL : CIVIL ACTION - LAW ASSOCIATES and MICHAEL P. MENDELSON,: D.D.S., Defendants DEFENDANTS' ANSWER WITH NEW MATTER TO PLAINTIFF'S COMPLAINT Admitted. 2. Admitted that Defendant, Mendelson, Foer Harrison, Dental Associates is a licensed professional dental practice operating at 4824 East Trindle Road, Mechanicsburg, Cumberland County, Pennsylvania. As to the balance of the allegations contained in Paragraph 2 of Plaintiffs' Complaint, Plaintiffs' Complaint speaks for itself. 3. Admitted with clarification. It is admitted that Michael P. Mendelson, D.D.S. is an adult individual currently residing at 1013 Wansford Road, Mechanicsburg, Cumberland County, Pennsylvania. As to the balance of the allegations contained in Paragraph 2 of Plaintiffs' Complaint, Plaintiffs' Complaint speaks for itself. 4. The allegations contained in Paragraph 4 of Plaintiffs' Complaint contain legal conclusions to which no responsive pleading is required.. The allegations contained in Paragraph 5 of Plaintiffs' Complaint contain legal conclusions to which no responsive pleading is required. 6. The allegations contained in Paragraph 6 of Plaintiffs' Complaint contain legal conclusions to which no responsive pleading is required. The allegations contained in Paragraph 7 of Plaintiffs' Complaint contain legal conclusions to which no responsive pleading is required. 8. The allegations contained in Paragraph 8 of Plaintiffs' Complaint contain legal conclusions to which no responsive pleading is required. 9. Admitted. 10. Denied. Upon information and belief, Plaintiff became a patient of the Defendant's in approximately October 1986. 11. Denied. After reasonable investigation the Defendants are without knowledge or information sufficient to form a belief as to the truth of the allegations contained in Paragraph 11 of Plaintiffs' Complaint and the same are deemed denied. 12. Denied. Upon information and belief, Plaintiff became a patient of the Defendant's in approximately October 1986. 13. Denied. After reasonable investigation the Defendants are without knowledge or information sufficient to form a belief as to the truth of the allegations contained in Paragraph 13 of Plaintiffs' Complaint and the same are deemed denied. 14. Denied. 15. Admitted. 16. Admitted in part and denied in part. It is admitted that Defendant, Mendelson employed a procedure to numb the lower right quadrant of Plaintiff's jaw in the area of tooth number 31. It is denied that Defendant, Mendelson injected a needle to the area under tooth number 31. On the contrary, Defendant, Mendelson placed an injection in Plaintiffs lower cheek area. 17. Denied. After reasonable investigation the Defendants are without knowledge or information sufficient to form a belief as to the truth of the allegations contained in Paragraph 17 of Plaintiffs' Complaint and the same are deemed denied. 18. Denied. After reasonable investigation the Defendants are without knowledge or information sufficient to form a belief as to the truth of the allegations contained in Paragraph 18 of Plaintiffs' Complaint and the same are deemed denied. 19. Denied. After reasonable investigation the Defendants are without knowledge or information sufficient to form a belief as to the truth of the allegations contained in Paragraph 19 of Plaintiffs' Complaint and the same are deemed denied. 20. Denied pursuant to Pa.R.C.P. 1029(e). 21. Denied as stated. It is admitted that the Plaintiff and Defendant, Mendelson spoke by telephone a couple of times and Plaintiff had a dental examination and prophylaxis. 22. Admitted in part and denied in part. The allegations of Paragraph 22 are denied to the extent that they are an attempt at an expert opinion or admission. It is admitted that conciliatory statements were made by Defendant, Mendelson to the Plaintiff with regard to the physical condition as expressed by Plaintiff. After reasonable investigation, Defendant, Mendelson does not recall verbatim said statements. 23. Denied pursuant to Pa.R.C.P. 1029(e). 24. Denied. The allegations contained in Paragraph 24 of Plaintiffs' Complaint contain legal conclusions to which no responsive pleading is required and the same are deemed denied. 25. Denied. The allegations contained in Paragraph 25 of Plaintiffs' Complaint contain legal conclusions to which no responsive pleading is required and the same are deemed denied. 26. Denied pursuant to Pa.R.C.P. 1029(e). 27. Denied. The allegations contained in Paragraph 27 of Plaintiffs' Complaint contain legal conclusions to which no responsive pleading is required and the same are deemed denied. 28. Denied. The allegations contained in Paragraph 28 of Plaintiffs' Complaint contain legal conclusions to which no responsive pleading is required and the same are deemed denied. 29. Denied. The allegations contained in Paragraph 29 of Plaintiffs' Complaint contain legal conclusions to which no responsive pleading is required and the same are deemed denied. COUNTI PLAINTIFF v. DEFENDANT, DENTAL ASSOCIATES 30. The Defendant incorporate by reference its answers to Paragraphs 1-29 above as if fully set forth at length. 31-34. Denied. By way of further answer, Count I, sounding in lack of informed consent has been dismissed pursuant to an Order of Court dated June 30, 2004. WHEREFORE, Defendant demands judgment in its favor and against the Plaintiff. COUNT II PLAINTIFF v. DEFENDANT, MENDELSON 35. The Defendant incorporates by reference its answers to Paragraphs 1-34 above as if fully set forth at length. 36-39. Denied. By way of further answer, Count 11, sounding in lack of informed consent has been dismissed pursuant to an Order of Court dated June: 30, 2004. WHEREFORE, Defendant demands judgment in its favor and against the Plaintiff. COUNT III PLAINTIFF v. DEFENDANT, DENTAL ASSOCIATES 40. The Defendant incorporate by reference their answers to Paragraphs 1-39 above as if fully set forth at length. 41. Denied pursuant to Pa.R.C.P. 1029(e). 42. Denied pursuant to Pa.R.C.P. 1029(e). 43. Denied. It is specifically and in equivocally denied that the Answering Defendant was negligent. To the extent that this Paragraph is an averment of proximate causation, it is a conclusion of law to which no responsive pleading is required and its deemed denied. To the contrary, at all times material hereto, the Answering ]Defendants render proper and appropriate care within the standard of care required for treatment of patients such as the Plaintiff. By way of further answer, to the extent that this Paragraph is an averment of Plaintiff's alleged damages, it is denied since after reasonable investigation the answering Defendant is without knowledge or information sufficient to form a belief as to the truth or falsity of said 44. Denied. It is specifically and in equivocally denied that the Answering Defendant was negligent. To the extent that this Paragraph is an averment of proximate causation, it is a conclusion of law to which no responsive pleading is required and its deemed denied. To the contrary, at all times material hereto, the Answering Defendants render proper and appropriate care within the standard of care required for treatment of patients such as the Plaintiff. By way of further answer, to the extent that this Paragraph is an averment of Plaintiff's alleged damages, it is denied since after reasonable investigation the answering Defendant is without knowledge or information sufficient to form a belief as to the truth or falsity of said averments and the same are deemed denied and strict proof thereof demanded. WHEREFORE, Defendant demands judgment in its favor and against the Plaintiff. COUNT IV PLAINTIFF v. DEFENDANT, MENDELSON 45. The Defendant incorporate by reference its answers to Paragraphs 1-44 above as if fully set forth at length. 46. Denied pursuant to Pa.R.C.P. 1029(e). 47. Denied pursuant to Pa.R.C.P. 1029(e). 48. Denied. It is specifically and in equivocally denied that the Answering Defendant was negligent. To the extent that this Paragraph is an averment of proximate causation, it is a conclusion of law to which no responsive pleading is required and its deemed denied. To the contrary, at all times material hereto, the Answering Defendants render proper and appropriate care within the standard of care required for treatment of patients such as the Plaintiff. By way of further answer, to the extent that this Paragraph is an averment of Plaintiff s alleged damages, it is denied since after reasonable investigation the answering Defendant is without knowledge or information sufficient to form a belief as to the truth or falsity of said 49. Denied. It is specifically and in equivocally denied that the Answering Defendant was negligent. To the extent that this Paragraph is an averment of proximate causation, it is a conclusion of law to which no responsive pleading is required and its deemed denied. To the contrary, at all times material hereto, the Answering Defendants render proper and appropriate care within the standard of care required for treatment of patients such as the Plaintiff. By way of further answer, to the extent that this Paragraph is an averment of Plaintiff s alleged damages, it is denied since after reasonable investigation the answering Defendant is without knowledge or information sufficient to form a belief as to the truth or falsity of said WHEREFORE, Defendant demands judgment in its favor and against the Plaintiff. NEW MATTER 50. The Defendants incorporate their answers to Paragraphs 1-49 above as if fully set forth at length. 51. Plaintiff has failed to state a claim upon which relief can be granted. 52. Plaintiffs claim is barred and/or limited by the applicable statute of limitations. 53. Plaintiff s claim is barred by the knowing consent to participate in dental care as recommended by the Answering Defendants. 54. Plaintiffs injuries, if any, were sustained as a result of natural or unknown causes and not as a result of any action or inaction on behalf of the Defendants. 55. At all times material hereto, the Defendants provided full, complete, proper, reasonable and adequate dental care and treatment in accordance with the applicable standard of care. 56. No conduct on the part of the Defendants was a substantial factor in causing or contributing to any harm which the Plaintiff may have suffered. 57. If the Plaintiff suffered any damage, the damages were caused by the conduct of others over whom the Defendants had no control or right of control. 58. Insofar as the Defendants, or any agent, servant or employee of the Defendants elected a treatment modality which is recognized as proper but may differ from another appropriate treatment modality, then said Defendants raise the "two schools of thought" defense. 59. To the extent they were required to do so, the Defendants took all reasonable and necessary steps to make a proper and appropriate diagnosis and to the extent it may be determined that that diagnosis was in error, the Defendants assert that the error in diagnosis was a reasonable and legally justifiable error. WHEREFORE, Defendants demands judgment in its favor and against the Plaintiff. Respectfully Submitted, Date: Z 3 -6 y By: Gre*eyy Cassimatis Atto r Defendants ,15IU4 10:42 FA% 7177910524 Harrisburg Legal VERIFICATION 2012 1, Michael P. Mendelson, D.D.S., a Defendant herein, verify that 1 am authorized to execute this Verification and verify that the facts set forth in the foregoing Defendants' Answer with New Matter to Plaintiff's 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. Season 49D4 relating to unworn falsification to authorities- Date: I o`4 Name: S Michael P. Mendelson, D.D.S. CERTIFICATE OF SERVICE AND NOW, this ,)If of_ 7TI /? , 2004, I, Gregory E. Cassimatis, Esquire, Attorney for Defendants hereby certify that I served a copy of the within Defendants' Answer with New Matter to Plaintiff's Complaint on this date by depositing same in the United States mail, postage prepaid, in Mechanicsburg, Pennsylvania, addressed to: Joann Stiteler 3804 Lamp Post Lane Camp Hill, PA 17011 7 By: Grego . C26simatis, Esquire 4999 Louise Drive, Suite 103 Mechanicsburg, PA 17055 (717) 791-0400 Attorney I.D. # 49619 c? r- n7?:d r>> ?_n < Co ?. Curtis R. Long Prothonotary Office of the i3rotbonotarp Cumberlanb Countp Renee K. Simpson Deputy Prothonotary John E. Slike Solicitor Q? L2 3 5 CIVIL TERM ORDER OF TERMINATION OF COURT CASES AND NOW THIS 5TH DAY OF NOVEMBER 2007 AFTER MAILING NOTICE OF INTENTION TO PROCEED AND RECEIVING NO RESPONSE - THE ABOVE CASE IS HEREBY TERMINATED WITH PREJUDICE IN ACCORDANCE WITH PA R C P 230.2. BY THE COURT, CURTIS R. LONG PROTHONOTARY One Courthouse Square • Carlisle, Pennsylvania 17013 • (717) 240-6195 • Fax (717) 240-6573