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Home My WebLink About09-0623 KIRK LOVE and SHIRLEY LOVE, HIS WIFE, Plaintiffs, V. KENNETH W. GRAF, M.D., SUSQUEHANNA SURGEONS, LTD., t/d/a/ SUSQUEHANNA SURGEONS, A DIVISION OF HERITAGE MEDICAL GROUP, LLP. Defendants &* . IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA MEDICAL MALPRACTICE No.: Pal -(0,3 CIVIL ACTION - LAW JURY TRIAL DEMANDED PRAECIPE FOR WRIT OF SUMMONS TO THE PROTHONOTARY: Please issue a writ of summons upon the above named defendants at the following address: Kenneth W. Graf, M. D. 532 North Front Street Wormleysburg, Pennsylvania 17043 Susquehanna Surgeons, Ltd. Medical Arts Bldg 890 Poplar Church Road, Suite 102 Camp Hill, PA 17011 Susquehanna Surgeons A Division of Heritage Medical Group, LLP 532 North Front Street Wormleysburg, Pennsylvania 17043 Date: ?6. G Zvo -/ Leslie-M. Fields, Esquire I. D. # 29411 COSTOPOULOS, FOSTER & FIELDS 831 Market Street / P. O. Box 222 Lemoyne, PA 17043 Phone: (717) 761-2121 Attorney for Plaintiffs Nj ZK\ -oil t ? - 4 4 co KIRK LOVE and SHIRLEY LOVE, HIS WIFE, Plaintiffs, V. KENNETH W. GRAF, M.D., SUSQUEHANNA SURGEONS, LTD., t/d/a/ SUSQUEHANNA SURGEONS, A DIVISION OF HERITAGE MEDICAL GROUP LLP. Defendants IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA MEDICAL MALPRACTICE v CIVIL ACTION - LAW JURY TRIAL DEMANDED WRIT OF SUMMONS TO THE ABOVE DEFENDANT(S): YOU ARE HEREBY NOTIFIED THAT THE ABOVE-NAMED PLAINTIFF(S) HAVE COMMENCED AN ACTION AGAINST YOU. Dated: ` .y„? ' afbl' C rt Long, rot onot Seal of the Court SHERIFF'S RETURN - REGULAR CASE NO: 2009-00623 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND LOVE KIRK ET AL VS GRAF KENNETH W MD ET AL KENNETH E GOSSERT , Sheriff or Deputy Sheriff of Cumberland County,Pennsylvania, who being duly sworn according to law, says, the within WRIT OF SUMMONS was served upon nv n V VW'KTKTPTU W M n the DEFENDANT , at 0016:25 HOURS, on the 10th day of February-, 2009 at 532 NORTH FRONT STREET WORMLEYSBURG, PA 17043 by handing to DEB SHEAFFER ADMINISTRATIVE ASSISTANT a true and attested copy of WRIT OF SUMMONS together with and at the same time directing Her attention to the contents thereof. Sheriff's Costs: Docketing Service Affidavit Surcharge Sworn and Subscibed to before me this of So Answers: 18.00 13.50 .00 10.00 R. Thomas Kline .00 41.50 02/11/2009 COSTOPOULOS, FOSTER By: day A. D. SHERIFF'S RETURN - REGULAR CASE NO: 2009-00623 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND LOVE KIRK ET AL VS GRAF KENNETH W MD ET AL KENNETH E GOSSERT Sheriff or Deputy Sheriff of Cumberland County,Pennsylvania, who being duly sworn according to law, says, the within WRIT OF SUMMONS was served upon SUSQUEHANNA SURGEONS LTD the DEFENDANT , at 0016:25 HOURS, on the 10th day of February-, 2009 at MEDICAL ARTS BLDG 890 POPLAR CHURCH ROAD STE 102 CAMP HILL, PA 17011 by handing to DEB SHEAFFER ADMINISTRATIVE ASSISTANT a true and attested copy of WRIT OF SUMMONS together with and at the same time directing Her attention to the contents thereof. Additional Comments SERVED AT 532 N FRONT STREET, WORMLEYSBURG. POPLAR CHURCH ROAD ADDRESS IS NO GOOD - BUSINESS IS NO LONGER LOCATED AT THAT ADDRESS Sheriff's Costs: So Answers: Docketing 6.00 Service .00 Affidavit .00 Surcharge 10.00 R. homas Kline .00 16.00 02/11/2009 COSTOPOLOUS FOSTER Sworn and Subscibed to before me this By: day of A. D. rv `. 3noo ?w SHERIFF'S RETURN - REGULAR CASE NO: 2009-00623 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND LOVE KIRK ET AL VS GRAF KENNETH W MD ET AL KENNETH E GOSSERT , Sheriff or Deputy Sheriff of Cumberland County,Pennsylvania, who being duly sworn according to law, says, the within WRIT OF SUMMONS was served upon SUSQUEHANNA SURGEONS DIV OF HERITAGE MEDICAL GROUP the DEFENDANT , at 0016:25 HOURS, on the 10th day of February-, 2009 at LLP 532 NORTH FRONT STREET WORMLEYSBURG, PA 17043 by handing to DEB SHEAFFER ADMINISTRATIVE ASSISTANT a true and attested copy of WRIT OF SUMMONS together with and at the same time directing Her attention to the contents thereof. Sheriff's Costs: Docketing Service Affidavit Surcharge Sworn and Subscibed to before me this of So Answers: 6.00 .00 .00 10.00 R. Thomas Kline .00 16.00 02/11/2009 COSTOPOULOS FOSTER day By: A. D. r j ' s r ? µ _ rte. KIRK LOVE and SHIRLEY LOVE, his wife, : IN THE COURT OF COMMON PLEAS Plaintiffs CUMBERLAND COUNTY, PENNSYLVANIA ?¢a3 V. NO. 0946;9 KENNETH W. GRAF, M.D., SUSQUEHANNA SURGEONS, LTD., t/d/a/ SUSQUEHANNA SURGEONS, A DIVISION OF HERITAGE MEDICAL GROUP, LLP. Defendants CIVIL ACTION - LAW MEDICAL MALPRACTICE JURY TRIAL DEMANDED ENTRY OF APPEARANCE Kindly enter the appearance of Stevens & Lee on behalf of Defendants Kenneth W. Graf, M.D. and Heritage Medical Group in the above-captioned action. Please serve all papers at 17 North Second Street, 16th Floor, Harrisburg, PA 17101. Notice by copy hereof is given to Plaintiff's counsel of record. Date: April 1, 2009 Respectfully submitted, STEVENS & LEE /I/,t II ( Dam/ _`l Michael D. Pipa, EsgtWe Attorney ID #53624 Karen E. Minehan, Esquire Attorney ID #78050 17 North Second Street, 16th Floor Harrisburg, PA 17101 Phone: (717) 234-1090 Fax: (717) 234-1099 SLl 913688v 1 /041199.00378 A • KIRK LOVE and SHIRLEY LOVE, his wife, Plaintiffs V. KENNETH W. GRAF, M.D., SUSQUEHANNA SURGEONS, LTD., t/d/a/ SUSQUEHANNA SURGEONS, A DIVISION OF HERITAGE MEDICAL GROUP, LLP. Defendants IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 09-1623 CIVIL ACTION - LAW MEDICAL MALPRACTICE JURY TRIAL DEMANDED CERTIFICATE OF SERVICE I, Michael D. Pipa, Esquire, certify that on this date, I served a certified true and correct copy of the foregoing Entry of Appearance upon the following counsel of record, by depositing the same in the United States mail, postage prepaid, addressed as follows: Leslie M. Fields, Esquire Costopoulos, Foster & Fields 831 Market Street P.O. Box 222 Lemoyne, PA 17043 Date: April 1, 2009 4t'4-?6 I Michael D. Pipa, Esquire SL I 913688v 1 /041199.00378 FILED-01-TICE CF, THE P90THnNOTARY 2009 APR _2 Pit 1: 02 , 'Wb KIRK LOVE and SHIRLEY LOVE, IN THE COURT OF COMMON PLEAS his wife, CUMBERLAND COUNTY, PENNSYLVANIA Plaintiffs MEDICAL MALPRACTICE V. No.: 09-1623 KENNETH W. GRAF, M.D., SUSQUEHANNA SURGEONS, LTD., t/d/a SUSQUEHANNA SURGEONS, A DIVISION OF HERITAGE MEDICAL GROUP, LLP : CIVIL ACTION - LAW Defendants : JURY TRIAL DEMANDED Certificate of Merit as to KENNETH W GRAF. M.D. Name of Defendant I, Leslie M Fields, Esquire , certify that: Attorney or Party [x ] an appropriate licensed professional has supplied a written statement to the undersigned that there is a basis to conclude that the care, skill or knowledge exercised or exhibited by this defendant in the treatment, practice or work that is the subject of the complaint, fell outside acceptable professional standards and that such conduct was a cause in bringing about the harm; AND/OR [ ] the claim that this defendant deviated from an acceptable professional standard is based solely on allegations that other licensed professionals for whom this defendant is responsible deviated from an acceptable professional standard and an appropriate licensed professional has supplied a written statement to he undersigned that there is a basis to conclude that the care, skill or knowledge exercised or exhibited by the other licensed professionals in the treatment, practice or work that is the subject of the complaint, fell outside acceptable professional standards and that such conduct was a cause in bringing about the harm; OR [ ] expert testimony of an appropriate licensed professional is unnecessary for prosecution of the claim against this defendant. f; Date: April 14 2009 Leslie . Fields, Esquire 831 Market Street Lemoyne, PA 17043 717-761-2121 CERTIFICATE OF SERVICE I, Leslie M. Fields, Esquire, hereby certify that on this 14ffi day of April 2009, a true and correct copy of the foregoing Certificate of Merit was served upon all counsel of record by: Hand Delivery X First Class Mail, Postage Pre-Paid Certified Mail, Return Receipt Requested Fax Transmission Overnight Mail at the following address(es) and/or number(s): Michael D. Pipa, Esquire STEVENS & LEE 17 North Second Street, 16t` Floor Harrisburg, PA 17101 Counsel for Defendants COSTOPOULOS, FOSTER & FIELDS Leslie . Fields, Esquire Fl! W? OR Ti-; = ;A RY 1.1 2009 APP' I ' PM 12: 4 6 GUPvl ` .. _F, r"'UNTY KIRK LOVE and SHIRLEY LOVE, his wife, Plaintiffs V. IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA : MEDICAL MALPRACTICE : No.: 09-1623 KENNETH W. GRAF, M.D., SUSQUEHANNA SURGEONS, LTD., t/d/a SUSQUEHANNA SURGEONS, A DIVISION OF HERITAGE MEDICAL GROUP, LLP : CIVIL ACTION - LAW Defendants :JURY TRIAL DEMANDED Certificate of Merit as to Susquehanna Surgeons, Ltd., t/d/a Susquehanna Surgeons, a Division of Heritage Medical Group, LLP Name of Defendant I, Leslie M. Fields, Esquire , certify that: Attorney or Party [ ] an appropriate licensed professional has supplied a written statement to the undersigned that there is a basis to conclude that the care, skill or knowledge exercised or exhibited by this defendant in the treatment, practice or work that is the subject of the complaint, fell outside acceptable professional standards and that such conduct was a cause in bringing about the harm; AND/OR [x ] the claim that this defendant deviated from an acceptable professional standard is based solely on allegations that other licensed professionals for whom this defendant is responsible deviated from an acceptable professional standard and an appropriate licensed professional has supplied a written statement to he undersigned that there is a basis to conclude that the care, skill or knowledge exercised or exhibited by the other licensed professionals in the treatment, practice or work that is the subject of the complaint, fell outside acceptable professional standards and that such conduct was a cause in bringing about the harm; OR [ ] expert testimony of an appropriate licensed professional is unnecessary for prosecution of the claim against this defendant. Date: April 14 2009 t Leslie M. Fields, Esquire 4 CERTIFICATE OF SERVICE I, Leslie M. Fields, Esquire, hereby certify that on this 14th day of April 2009, a true and correct copy of the foregoing Certificate of Merit was served upon all counsel of record by: Hand Delivery X First Class Mail, Postage Pre-Paid Certified Mail, Return Receipt Requested Fax Transmission Overnight Mail at the following address(es) and/or number(s): Michael D. Pipa, Esquire STEVENS & LEE 17 North Second Street, Wh Floor Harrisburg, PA 17101 Counsel for Defendants COSTOPOULOS, FOSTER & FIELDS Leslie . Fields, Esquire 2009 APP` 14 PM 12: 4 b r-?rr f(,,Pf ,kv KIRK LOVE and SHIRLEY LOVE, his wife, Plaintiffs V. IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA MEDICAL MALPRACTICE Ua ? No.: 09 1621--- KENNETH W. GRAF, M.D., SUSQUEHANNA SURGEONS, LTD., t/d/b/a : SUSQUEHANNA SURGEONS, A DIVISION : OF HERITAGE MEDICAL GROUP, LLP : CIVIL ACTION - LAW Defendants : JURY TRIAL DEMANDED NOTICE TO DEFEND YOU HAVE BEEN SUED IN COURT. If you wish to defend against the claims set forth in the following pages, you must take action within twenty (20) days after this Complaint and Notice are served, by entering a written appearance personally or by attorney and filing in writing with the Court your defenses or objections to the claims set forth against you. You are warned that if you fail to do so the case may proceed without you and a judgment may be entered against you by the Court without further notice for any money claimed in the Complaint or for any other claim or relief requested by the Plaintiff(s). You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW. THIS OFFICE CAN PROVIDE YOU WITH INFORMATION ABOUT HIRING A LAWYER. IF YOU CANNOT AFFORD TO HIRE A LAWYER, THIS OFFICE MAY BE ABLE TO PROVIDE YOU WITH INFORMATION ABOUT AGENCIES THAT MAY OFFER LEGAL SERVICES TO ELIGIBLE PERSONS AT A REDUCED FEE OR NO FEE: LAWYER REFERRAL SERVICE CUMBERLAND COUNTY BAR ASSOCIATION 32 SOUTH BEDFORD STREET, CARLISLE, PA 17013 PHONE: 717-249-3166 or 800-990-9108 KIRK LOVE and SHIRLEY LOVE, IN THE COURT OF COMMON PLEAS his wife, CUMBERLAND COUNTY, PENNSYLVANIA Plaintiffs MEDICAL MALPRACTICE V. : No.: 09-623 KENNETH W. GRAF, M.D., SUSQUEHANNA SURGEONS, LTD., t/d/b/a SUSQUEHANNA SURGEONS, A DIVISION OF HERITAGE MEDICAL GROUP, LLP : CIVIL ACTION - LAW Defendants : JURY TRIAL DEMANDED PLAINTIFFS' COMPLAINT AND NOW come the Plaintiffs, Kirk Love and Shirley Love, his wife, by and through their attorney, Leslie M. Fields, Esquire, COSTOPOULOS, FOSTER Sc FIELDS, and respectfully represent as follows in support of this Complaint: The Parties 1. Plaintiffs, Kirk Love and Shirley Love, his wife, are adult individuals residing at 76 Community Road, Newport, Perry County, Pennsylvania 17074. 2. Defendant, Kenneth W. Graf, M.D., is an adult individual and physician who, at the time of the occurrences alleged herein, was employed by and/or was the agent, ostensible agent, or apparent agent of Defendant, Susquehanna Surgeons, Ltd., t/d/b/a Susquehanna Surgeons, a division of Heritage Medical Group, LLP. Upon information and belief, Defendant, Kenneth W. Graf, M.D., purported to specialize in surgery. His principal place of business is at 532 North Front Street, Wormleysburg, Cumberland County, Pennsylvania 17043. 3. Defendant, Susquehanna Surgeons, Ltd., t/d/b/a Susquehanna Surgeons, a division of Heritage Medical Group, LLP, is, upon information and belief, a corporation which conducts -1- business on a substantial and continuous basis within the jurisdiction of the Court, including business at Holy Spirit Hospital, Camp Hill, Cumberland County, Pennsylvania, at the time of the occurrences alleged herein. Its primary place of business is at 532 North Front Street, Wormleysburg, Cumberland County, Pennsylvania 17043. Background Allegations 4. On or about February 16, 2007, Plaintiff, Kirk Love, presented to the emergency department of Holy Spirit Hospital with abdominal pain. Radiology studies showed "findings consistent with early or partial small bowel obstruction." He was admitted to the hospital. 5. The following day, on or about February 17, 2007, Defendant, Kenneth W. Graf, M.D., of Defendant, Susquehanna Surgeons, Ltd., performed surgery described as exploratory laparotomy, lysis of multiple adhesions, resection of portion of small bowel and resection of Meckel's diverticulum. His note states that he "did enter the bowel once in an area where it was extremely thin and attached to the anterior abdominal wall." According to his note, he was "able to see everything and divide the adhesions without injury to the bowel other than the single enterotomy. Multiple small serosal tears were sutured with silk and the area of small bowel which was thinned out and perforated was resected." 6. Defendant, Kenneth W. Graf, M.D., finalized his operative note with the following paragraph: "No other problems were noted. There was no more bleeding noted. The wound was then closed. I used a running suture of #1 PDS. I also placed twelve pieces of Seprafilin (large) into the abdomen to cover exposed viscera being careful to not put it over the anastomosis." 7. Over the next days, pain and abdominal distention were noted along with other signs and symptoms. -2- 8. On February 22, 2007, radiology reported the history of Plaintiff, Kirk Love, as abdominal distension/pain/recent surgery. The result is reported as "Mildly abnormal bowel gas pattern possibly representing postop ileus. Postop partial small bowel obstruction cannot be completely excluded. No pneumoperitoneum. Hypoventilatory chest examination. Minimal left basilar atelectasis and small left pleural effusion. Possible smallright pleural effusion." 9. On February 24, 2007, radiology reported his history as recent surgery for bowel obstruction and finds that "...Air is scattered through stomach, large and small bowel loops. There is definite colonic air. There is mild distention of several small bowel loops with a few air-fluid levels on the upright film." The conclusion stated: "1. Since prior film from 2/22/07 there has been continued passage of the contrast in the colon. There is now only a small amount of contrast in the rectum. 2. At the present time, the overall findings are most consistent with postoperative ileus." 10. Later on February 24, 2007, radiology reported his history of line placement and concluded "mild atelectasis left lung base." 11. On February 25, 2007, radiology noted abdomen pain and bibasilar atelectasis, right greater than left, and findings compatible with postoperative ileus that could be further correlated with CT if clinically indicated. 12. On February 27, 2007, the following was noted: Radiology examination:Upper GI and Small Bowel, Hx: Abdominal pain, evaluate for small bowel obstruction. Result is suggestive of high grade partial small bowel obstruction. 13. On February 28, 2007, the following was noted: Radiology, Hx:Small bowel obstruction. Evaluation of the progression of barium. Result reported as "diffuse contrast noted -3- within the cecum and rectum. The majority of contrast remains within the small bowel. Dilation of multiple jejunal loops persists. There is question of a narrowed loop of small bowel in the region of the terminal ileum. Query history of Crohn's disease." 14. On March 3, 2007, the following was noted: Radiology Examination: Abdomen two- view and chest 1 view. Indication: Small bowel obstruction. Conclusion is "Small bowel distention. Slight decrease since previous study 2/28/07 is consistent with partial small bowel obstruction. Some distal passage of barium contrast in the small bowel appears to be present since the previous study. Partial atelectasis or scarring in the lung bases bilaterally. Advise f/u to assure clearing of these densities." 15. On March 4, 2007, the following was noted: Radiology Examination: Abdominal obstructive series with one view chest, 4 views. Indication is abdominal distention. Result reported: PICC and NG tubes are unchanged. Bibasilar atelectasis remains in the chest. Decreased small bowel dilation with persistent residual barium. 16. On March 6, 2007, the following was noted: Radiology, History is recent nausea. History of previous small bowel obstruction. Result: Unremarkable gas pattern, with retained barium throughout the small bowel, essentially stable since 3/4/2007. Same day Radiology reports patchy bibasilar opacities, likely atelectasis. Followup chest radiographics may be considered to document resolution.. 17. On March 12, 2007, the following was noted: Radiology reports Acute abdominal series, 3 views, 4 images including chest 1 view. History of abdominal pain. Result is reported as "There has been interval worsening in the appearance of the bowel gas pattern. The appearance suggest small bowel obstruction. In addition, I question the presence of wall thickening involving -4- loop of jejunum." 18. On March 14, 2007 a CT examination with contrast was interpreted as follows: "While I do not have oral contrast for definition of small bowel, small bowel loops continue to show dilatation and contained fluid as does the stomach. This would indicate persisting small bowel obstruction." 19. On March 15, 2007, Defendant, Kenneth W. Graf, M.D., of Defendant, Susquehanna Surgeons, Ltd., assisted by Rolando Casal, M.D,.of Defendant, Susquehanna Surgeons, Ltd., performed another operation at Holy Spirit Hospital. The operative note described this as a re- exploration to relieve bowel obstruction and stated that "... three weeks ago, he underwent laparotomy and lysis of adhesions and small bowel resection for small bowel obstruction. At no time did he open up following that procedure, and he is now re-explored in anticipation of relieving his bowel obstruction. The condition, however, was inoperable at the time of the procedure." The note further indicated that the " abdomen was next attempted to be entered through the old midline incision extending around the incision superiorly for about 3 centimeters. We could not get an index finger into the abdominal cavity, and multiple attempts to find the free peritoneal cavity were unsuccessful. At this point, I had consulted my partner, Dr. Casal, for an intraoperative opinion. Between the two of us, multiple attempts again were tried to find a free peritoneal cavity, and there was none. The lateral incisions were made, and we still did not find a free space. We were not able to find loops of bowel, not were we able to separate them from any scar tissue. The abdomen could be considered only likened to concrete. After two enterotomies and the loss of 500 mL of blood, I felt the best interest in patient would be to stop the operation at this point, place a gastrostomy tube, and prepare him for repeat surgery after approximately six months of TPN." -5- 20. Four days later, on March 19, 2007, Rolando A. Casal, M.D. of Defendant, Susquehanna Surgeons, Ltd., noted in his operative report that "during the examination today, bile staining of the dressing was noted and it is evident that he has an enterocutaneous fistula resulting from likely breakdown of the enterotomies. During the procedure, Dr. Casal noticed that the "patient's viscera is densely adherent to the lateral abdominal wall on the right side where it appeared that the abdominal wall was sutured to available tissues". 21. The next day, on March 20, 2007, an operation was performed by Michael J. Page, M.D., of Defendant, Susquehanna Surgeons, Ltd. The operative report described that "...the patient then had exploration of the abdomen. He had an open fistula in the small bowel and the small bowel was opened throughout the abdomen. There was a considerable amount of granulation tissue...." 22. One day after that, on March 21, 2007, a Record of Operation written by Anastasius Peter, M.D., of Defendant, Susquehanna Surgeons, Ltd., described an abdominal wound exploration and washout. Under operative procedure, the report indicates that the "pt. was brought to the operating room and placed on the operating room table in the supine position. He underwent general endotracheal anesthesia. The dressing was removed and the wound edges were prepped with Betadine and draped in a sterile fashion. The abdominal wound was then washed out using saline irrigation. The vac dressing was then applied covering the bowel with adaptive over the exposed bowel. We then applied white foam followed by black foam and then applied to suction." 23. On March 22, 2007 at Holy Spirit Hospital, the Record of Operation showed that Defendant, Kenneth W. Graf, M.D., described a insertion of a single lumen Mediport catheter. 24. On March 23, 2007 at Holy Spirit Hospital, there was another operation performed by Michael J. Page, M.D., of Defendant, Susquehanna Surgeons, Ltd., described as Change of wound -6- VAC. This operative note indicates that "...There was a small amount of succus in the lower wound. The patient did have an obvious enterotomy (fistula). We did attempt to slow that down by putting two Vicryls in that." 25. On March 25, 2007 at Holy Spirit Hospital, another Record of Operation showed that Michael J. Page, M.D., of Defendant, Susquehanna Surgeons, Ltd., recording a preoperative diagnosis of "Fistula from previous exploratory laparotomy," performed another operation described as a "washout of abdominal wound with change of VAC . Procedure note stated that "...The patient had a fair amount of succus material in the lower part of his wound.. There appeared to be one small leak." 26. On March 26, 2007 at Holy Spirit Hospital, a Record of Operation showed that Joseph P. Esposito, M.D., of Defendant, Susquehanna Surgeons, Ltd., performed an operation described as "wound dressing with debridement of abdominal wall and placement of wound vacuum dressing..". The indication recorded is that of "56 y.o. male who had undergone a laparotomy and had multiple enterotomies performed by Dr. Graf. Unfortunately he developed a fistula in this region. Skin graft had recently been placed and he presents now for change of his wound VAC dressing system and examination of wound." He stated that "it appeared that the skin graft's take was 100% except where the fistula was present." 27. On March 28, 2007 at Holy Spirit Hospital, the Record of Operation showed that A. David Froehlich, M.D., of Defendant, Susquehanna Surgeons, Ltd., performed an operation described as "abdominal washout and reapplication of VAC dressing." The procedure note stated that "...the major findings were the small amount of drainage from the fistulous tract in the right lower quadrant. The upper 80% of the ventral hernia area was granulating tissue over the loops of -7- bowl with no evidence of any open space along the fascial cutaneous border..." 28. On March 30, 2007 at Holy Spirit Hospital, the Record of Operation of Rolando A. Casal, M.D. of Defendant, Susquehanna Surgeons, Ltd., listed the Pre/Post Op diagnosis as "Enterocutaneous fistula with opening granulating wound." The operation was abdominal wound wash out ad he noted the "visible enterocutaneous fistula." And he recorded that "to avoid drainage which is uncontrolled, I placed a loban. This should keep the drainage from going all over the place..." The plan was that Plaintiff, Kirk Love, be sent home in this condition. 29. On March 30, 2007 Plaintiff, Kirk Love, was discharged from Holy Spirit Hospital. The discharge summary by Rolando A. Casal, M.D., of Susquehanna Surgeons, Ltd., indicated a final diagnosis of small bowel obstruction secondary to adhesions, Admitting Diag. same. Secondary: Small bowel fistula. Under the section for hospital course & treatment, Dr. Casal stated that the patient was "admitted on 2/17/07 because of chronic partial small bowel obstruction. After long term conservative medical measures and w/o any relief he underwent an exploratory laparotomy. The pt. sustained intraoperadve small bowel injury and because of the extensive adhesions which will be extremely difficult to perform and anticipated to produce more bowel injury the operation was terminated. The pt had a decompressing gastrostomy and jejunostomy. He was then managed conservatively. The pt sustained enterocutaneous fistula. The pt was managed at the ICU, dressing were placed. Despite major setbacks, the pt was able to be transferred to Select long term acute care facility where he was continued on PPN and dressing changes . 30. After being discharged on March 30, 2007, Plaintiff, Kirk Love, was readmitted on April 13, 2007. The admission paperwork indicated that "On 04.17.2007 at Holy Spirit Hospital, CT Pelvis w/contrast. Impression: 1. Pulmonary embolus within the left lobe pulmonary artery. 2. -8- Injection of the fistula of the anterior abdominal wall shows opacification of what probably reflects distal jejunal and ilial bowel loops. 3. Postoperative changes of the abdomen with adhesion of multiple small bowel loops to the anterior abdominal wall. No evidence for obstruction. 4. Small nodular density right middle lobe for which full CT of the chest is recommended on a nonemergent basis." These critical test results were discussed and reviewed with Dr. Graf immediately following the examination on 4/17/2007. 31. It was determined to send Plaintiff, Kirk Love, to the care of Select Specialty and a discharge summary was written by Defendant, Kenneth W. Graf, M.D., as follows: "Final Diagnosis: Intracutaneous fistula with a very complicated abdominal wound, full thickness loss of abdominal wall, central portion. Secondary: Pulmonary embolus and aceticosis or pigeon handler's disease with chronic obstructive pulmonary disease. Summary: pt was admitted due to worsening of his abdominal wall and a pulmonary embolus found in the left pulmonary artery... pt. will require long term care of this wound as well as TPN and treatment of his pulmonary embolus." 32. On March 5, 2007 Select Specialty dietary and wound care consultations were obtained. 33. On March 5, 2007 at Holy Spirit Hospital, the operative report of Defendant, Kenneth W. Graf, M.D, and Asst. Serene Shereef, M.D., showed a Preop &Prostop. Diag. Of "56 yo male with inoperable abdominal disease due to adhesive bowel disease. Has an open wound and an enterocutaneous fistula in the right side of the wound.." The operation was described as "Grafting and reconstruction of the abdominal wall using AlloDerm, a 6x12, and stated that "...the open abdominal wound measured 15 x 4 and 15 x 6 centimeters, surrounding a maturing GI cutaneous fistula. The area was irrigated until clear. The fistula was then controlled. I could feel both the afferent and efferent aspects of the fistula and a Mallinckrodt catheter #20 was placed within the -9- opening of the bowel and secured. I used some tissue glue ...and alloderm graft was then brought into the field...." 34. On June 6, 2007 the Select Speciality Hospital discharge summary listing 4.20.2007 as the admission date, dictated by Howard Cohen, M.D., stated that the " patient is a 55 year old Caucasian gentleman, who was transferred to select Speciality Hospital from Holy Spirit Hospital, following small bowel obstruction. The pt. was unable to be definitively repaired .... He had developed a fistula from the small bowel to the abdominal wall. He was transferred to Select Specialty Hospital for continuation of antibiotic treatment, continued treatment of the complication of pulmonary embolization, and continued wound care. The patient did generally well, however, we were unable to adequately deal with his drainage. He did have skin grafting with Apligraf, which did breakdown secondary to the leakage, without success. The attending surgeon, Dr. Kenneth Graf eventually felt that enough time had passed that a surgical team could be utilized to definitively close the fistula, and repair the small bowel. The patient is thus transferred to Johns Hopkins Hospital for this to occur." The condition at discharge is noted as "(o)ther than the difficulty with containing the fistula drainage, the patient's final examination was unremarkable, and there were no other continuing issues. He stated that "Dr. Graf is having doctor-to-doctor consultation with Johns Hopkins Hospital, and also with insurance company, to assure transfer and coverage." 35. On June 6, 2007 the Holy Spirit Hospital Discharge Summary (ADM Date: 4.17.2007) by Defendant, Kenneth W. Graf, M.D., stated that the patient "began to leak large amounts of perhaps a liter a day through fistula making it again a high out output fistula and difficult to control. This has resolved again since placing him back on only clear liquids. He shows no evidence of distal obstruction. A large amount of output. His abdomen is soft, nontender. Under Final Diagnosis, -10- he stated that this is "a 56 y.o. white male. Kirk was a pt, had inoperable bowel obstruction due to adhesive bowel disease. On the reoperation following his original surgery which was done for internal hernia with obstructive closed loop obstruction and necrotic bowel. Peristalsis and bowel activity never resumed after the original surgery. Incidentally the adhesions were from a perforated appendix approximately 15 years ago which was also complicated by reoperation for bowel obstruction but for 15 years Kirk Love has been doing fine up until the time when he was readmitted. He has psittacosis from pigeon handling forcing him to give up his carrier pigeon hobby. He was readmitted on the 13' day of April 2007 because of infection and necrosis fo the skin and subcutaneous tissue of the lower portion of his wound. He had a fairly large wound with an enterocutaneous fistula in the lower right aspect of this wound. I felt we could probably control this at home, however the complexity of the wound prevented this from being satisfactorily accomplished. He was readmitted because of severe pain dehydration. At the time of this admission he was also found to have suffered a pulmonary embolus while bedfast at home. He was stabilized and transferred to Select Med on the fifth floor was done. He, because of the area of the fistula vac dressing was overwhelmed and enteric fluids and succus continue to bath the very delicate granulation tissue. We attempted numerous appliances. The vac originally worked to decrease by half the size of the abdominal wall defect however, this particular improvement has stopped. We are able to improve slowly but every time he improves a bit a new problem occurs and we lose some ground. I spoke with the John's Hopkins Medical Center and I believe I have exhausted my armament of possibilities of care .... His echocardiogram done following his readmission was normal Left ventricle systolic function. No evidence of mitral regurgitation, no evidence of stenosis or insufficiency of the aortic valve. His venous duplex shows no evidence of -11- venous thrombosis of either lower extremities, no evidence of his CT scan done on admission April 17, 2007 showed consistent with focal pulmonary embolus of the left lower lobe pulmonary artery. Some contrast in the non-dilated colon normal abdominal aorta." Under Conclusion, he noted the " Pulmonary embolus within the left lower lobe pulmonary artery. Injection of the fistula shows opacification of distant jejunum and ilial bowel loops. Postoperative change of the abdomen with adhesions and multiple bowel loops of the anterior abdominal wall. No evidence of obstruction. Small nodular density of the right middle lobe through which a CT scan is recommended. The pt was stabilized, he was then transferred to Select Medical and LTAC long term acute care facility. He has been here on the service of Dr. Howard Cohen who admitted him in transfer and has taken excellent care of Mr. Love. He was originally on total parenteral nutrition. He does have an indwelling Mediport and his wound care has been surgical nightmare. He feels well and with the exception of the drainage which excoriates and burns the skin and soft tissue around the fistula. " 36. On June 8, 2007, from Select Speciality Hospital, under wound care designation, Cathleen Markley, RN, BS, CWOCN, noted that "Pt. Presents with a midline abdominal wound with entero-cutaneous fistula in the right border. Numerous attempts at fistula drainage management have been attempted. At present pt has a Nu-Hope molded appliance with a rigid diamond shape convex pouch. (A custom molded pouch- sample only) The pouch has been successful when the pt. is supine and even when he is walking. It has failed with sitting on the side of the bed due to its rigidity. We have added wall suction placed inside the pouch after a leak. The difficulty is the wound bed on the left side of the fistula site. We had been successful in managing the drainage with a variety of systems. With a regular diet the wall suction wafer/dome system that had been working, allowing wound closure, failed due to clogging with food particles.... Initially Mr. -12- Love has had success with the KCI wound vac with the chronic fistula protocol. We have also used many pouch/wafer combos to wall suction. A dome suction device dropped the fistula output for several days allowing wound improvement. With the increased diet the wound again deteriorated and increased the pouch failure has continued. Mr. Love has been decreased to a clear liquid diet and wall suction has aided in pouch management. The peri-wound areas is treated with stoma powder and skin prep. The wound bed has prisma under the foam wafer with paste border to fistula." 37. Plaintiff, Kirk Love, was transferred to Johns Hopkins Hospital in Baltimore, Maryland on June 9, 2007 with diagnoses of pulmonary embolism, chronic anticoagulation, enterocutaneous fistula, and chronic TPN need. A well-functioning wound management system was put in place for the first time in many months. 38. Plaintiff, Kirk Love, was discharged to his home on June 16, 2007 to wait a number of months with the new wound care program "to mature the soft tissue and allow the inflammatory process to decrease." 39. On October 5, 2007, Plaintiff, Kirk Love, was operated on by Kurtis Campbell M.D., and Anthony Tufaro, M.D., at Johns Hopkins Hospital. Dr. Tufaro's operative report indicated a "severely devastated abdominal cavity and abdominal wall with a small bowel fistula and also the unique finding of multiple prolene sutures going through the bowel wall and tacking the bowel up to the patient's peritoneal wall. Apparently, the bowel was caught up in th Prolene sutures used for closure. Also, severe adhesions throughout the abdominal cavity causing adhesions from small bowel to small bowel, small bowel to skin and subcutaneous fat and fascia, making this a very difficult operation. Also found was a small enterocutaneous fistula draining in the surgical portion -13- of the abdomen with excoriated skin and large open wound." 40. At the time of the October 5, 2007 procedure, Dr. Campbell encountered "extensive adhesions to the parietal peritoneum and as well multiple loops incarcerated and adherent into the hernia sac." According to his note, "extensive amount of effort was required to lengthen the incision in the peritoneal cavity and navigate through the peritoneal cavity and identify the anatomy of the small bowel ...The adhesions were quite dense and more notably there were several loops of small bowel which were entrapped with polypropylene suture; the bowel was adherent to the abdominal wall and sewn to the abdominal wall with polypropylene suture in several locations." According to Dr. Campbell, these sutures "appeared to be sutures utilized in closure of his abdominal wall incision previously" and "was in relative close proximity to the enterocutaneous fistula." COUNT I Plaintiff Kirk Love v. Defendant Kenneth W. Graf M.D. 41. The preceding paragraphs are incorporated herein by reference as though fully set forth. 42. Defendant, Kenneth W. Graf, M.D., failed to provide reasonable care, caused injury, and/or increased the risk of harm to Plaintiff, Kirk Love, as follows: a) Failing properly to examine, evaluate, and treat Kirk Love from February 16, 2007 to June 7, 2007; b) Failing to recognize Kirk Love's symptoms and properly treat same; c) Failing to recognize the severity of Kirk Love's conditions; d) Failing to order appropriate tests to determine the source/cause of Kirk Love's conditions; e) Failing to consider/make a differential diagnosis and/or failing to order tests or -14- take appropriate actions to confirm or rule out a differential diagnosis; f Ignoring Kirk Love's condition and/or failing to find/attempt to find a source/cause of the condition; g) Sewing the bowel to the abdominal wall with polypropylene suture in several locations; h) Failing to refer Kirk Love to a surgeon or other expert or failing to inform him to be seen by a more qualified physician; i) Although Kirk Love had concerns about the care provided to him, the Defendants held out expertise intended to induce him to believe that adequate and proper care was provided when, in fact, it was not. j) Failing to treat his condition; and k) Being dismissive of information and symptomatology.. 43. As a direct and proximate result of the conduct as set forth above, the Plaintiff, Kirk Love, suffered as follows: a) prolonged and chronic pain and suffering and emotional distress, mental anguish and humiliation; b) scarring, disfigurement and embarrassment; c) the need for continuing medical treatment, care and attention, and medical expenses; d) a loss of earnings and a loss of earnings capacity; e) a loss of life's pleasures; and f) such other damages as properly allowed by Pennsylvania law, including but not -15- limited to incidental costs as a result of his wife having to lose work in order to care for him. WHEREFORE, Plaintiff, Kirk Love, demands that judgment be entered against Defendant, Kenneth W. Graf, M.D., for an amount in excess of the limits of arbitration exclusive of interest and costs of prosecution. COUNT II Plaintiff Kirk Love v. Defendant Susquehanna Surgeons, Ltd. 44. The preceding paragraphs are incorporated herein as though fully set forth. 45. Defendant, Kenneth W. Graf, M.D., was an employee, agent or servant of Defendant, Susquehanna Surgeons, Ltd., at the time of the occurrences alleged herein. 46. At all relevant times hereto, Defendant, Kenneth W. Graf, M.D., was acting within the scope of his employment with Defendant, Susquehanna Surgeons, Ltd. 47. Defendant, Susquehanna Surgeons, Ltd., is vicariously liable for the acts or omissions of Defendant, Kenneth W. Graf, M.D., as though Defendant, Susquehanna Surgeons, Ltd., performed the acts or omissions itself. 48. As a direct and proximate result of the conduct as set forth above, the Plaintiff, Kirk Love, has suffered as follows: a) prolonged and chronic pain and suffering and emotional distress, mental anguish and humiliation; b) scarring, disfigurement and embarrassment; c) the need for continuing medical treatment, care and attention, and medical expenses; -16- d) a loss of earnings and a loss of earnings capacity; e) a loss of life's pleasures; and f ) such other damages as a properly allowed by Pennsylvania law. WHEREFORE, Plaintiff, Kirk Love, demands that judgment be entered against Defendant, Susquehanna Surgeons, Ltd., for an amount in excess of the limits of arbitration exclusive of interest and costs of prosecution. COUNT III Plaintiff Shirley Love v. Defendants 49. The preceding paragraphs are incorporated herein as though fully set forth. 50. At all relevant times herein, Plaintiff, Shirley Love, and Plaintiff, Kirk Love, were lawfully and continuously married. 51. As a direct and proximate result of the conduct by the Defendants, Kenneth W. Graf, M.D., and Susquehanna Surgeons, Ltd., as set forth above, the Plaintiff, Shirley Love, has suffered a loss of society, companionship and consortium of her husband, Plaintiff, Kirk Love. WHEREFORE, Plaintiff, Shirley Love, demands that judgment be entered against Defendants, Kenneth W. Graf, M.D., and Susquehanna Surgeons, Ltd., jointly and severally, for an amount in excess of the limits of arbitration exclusive of interest and costs of prosecution. Respectfully submitted: DATED: / a, 0 47 - Leslie M. Fields, Esquire I.D. No. 29411 COSTOPOULOS, FOSTER & FIELDS 831 Market Street/P.O. Box 222 Lemoyne, Pennsylvania 17043 Phone: 717.761.2121 Fax: 717.761.4031 Web: www.Costopoulos.com ATTORNEY FOR PLAINTIFFS -17- VERIFICATION I, Plaintiff, Kirk Love, do hereby verify that the statements made in the foregoing document are true and correct to the best of my information and belief. I understand that false statements made herein are subject to the penalties at 18 Pa.C.S.A. 4904 relating to unsworn falsification to authorities. By: K? A), Kirk Love DATED: June )4 , 2009. VERIFICATION I, Plaintiff, Shirley Love, do hereby verify that the statements made in the foregoing document are true and correct to the best of my information and belief. I understand that false statements made herein are subject to the penalties at 18 Pa.C.S.A. 4904 relating to unsworn falsification to authorities. By. .'21 LI - Shirley Love DATED: June r??. , 2009. CERTIFICATE OF SERVICE I, Leslie M. Fields, Esquire, hereby certify that on this 2nd day of July 2009, a true and correct copy of the foregoing Plaintiffs Complaint was served upon all counsel of record by: Hand Delivery X First Class Mail, Postage Pre-Paid Certified Mail, Return Receipt Requested Fax Transmission Overnight Mail at the following address(es) and/or number(s): Michael D. Pipa, Esquire STEVENS & LEE 17 North Second Street, 16`x' Floor Harrisburg, PA 17101 Counsellor Defendants COSTOPOULOS, FOSTER & FIELDS eslie M. Fields, Esquire PLED . . ft Michael D. Pipa Attorney I.D. No. 53624 Karen E. Minehan Attorney I.D. No. 78050 Stevens & Lee, P.C. 17 North Second Street, 16th Floor Harrisburg, Pennsylvania 17101 (717) 255-7384 KIRK LOVE and SHIRLY LOVE, his wife, CUMBERLAND COUNTY, PENNSYLVANIA Plaintiffs, vs. CIVIL ACTION-LAW KENNETH W. GRAF, M.D., SUSQUEHANNA MEDICAL MALPRACTICE SURGEONS, LTC., t/d/a/ SUSQUEHANNA SURGEONS, A DIVISION OF HERITAGE MEDICAL No. 09-623 GROUP, LLP, Defendants. PRAECIPE FOR LISTING CASE FOR ARGUMENT TO THE PROTHONOTARY OF CUMBERLAND COUNTY: (Kindly list the within matter for the next Argument Court) 1. State matter to be argued (i.e., plaintiff s motion for new trial, defendant's demurrer to complaint, etc.): Defendants' Preliminary Objections to Plaintiffs' Complaint. 2. Identify all counsel who will argue cases: (a) for plaintiffs: Leslie M. Fields, Esq. Costopoulos, Foster & Fields, 831 Market Street, P.O. Box 222, (Name and Address) Lemoyne, PA 17043 (b) for defendants: Michael D. Pipa, Esq./Karen E. Minehan, Esq., Stevens & Lee, 17 North Second Street, 16th Floor, (Name and Address) Harrisburg, PA 17101 3. I will notify all parties in writing within two days that this case has been listed for argument. 4. Argument Court Date: September 9, 2009 Signature Karen E. Minehan Print your name Date: August 4, 2009 Defendants Attorney for INSTRUCTIONS: 1. Two copies of all briefs must be filed with the COURT ADMINISTRATOR (not the Prothonotary) before argument. 2. The moving party shall file and serve their brief 12 days prior to argument. 3. The responding party shall file their brief 5 days prior to argument. 4. If argument is continued new briefs must be filed with the COURT ADMINISTRATOR (not the Prothonotary) after the case is relisted. SL! 939378 1 .. KIRK LOVE and SHIRLEY LOVE, his wife, IN THE COURT OF COMMON PLEAS Plaintiffs CUMBERLAND COI:INTY, PENNSYLVANIA v. KENNETH W. GRAF, M.D., SUSQUEHANNA SURGEONS, LTD., t/d/a/ SUSQUEHANNASURGEONS,A DIVISION OF HERITAGE MEDICAL GROUP, LLP. Defendants N0.09-623 CIVIL ACTION - LA.W MEDICAL MALPRACTICE JURY TRIAL DEMANDED CERTIFICATE OF SERVICE I, Karen E. Minehan, Esquire, certify that on this date, I sen-ed a certified true and correct copy of the foregoing Praecipe to List for Argument upon the following counsel of record, by depositing the same in the United States mail, postage prepaid, addressed as follows: Leslie M. Fields, Esquire Costopoulos, Foster & Fields 831 Market Street P.O. BOX 222 Lemoyne, PA 17043 Date: August 4, 2009 ~~~~ Karen E. Mine an, Esquire S L 193 83 24v 1 /041199.003 78 ~~ILfwiw- ~~~ :C 2~C~ t~~'~ -7 Pi ~ 2~ ~ r~t~.r ~~;~ ~~~ ; ~. ~~ r _ ~ _ _ . , .~.~+. KIRK LOVE and SHIRLEY LOVE, : IN THE COURT OF COMMON PLEAS OF his wife, CUMBERLAND COUNTY, PENNSYLVANIA Plaintiffs CIVIL ACTION -LAW vs. NO. 09-623 CIVIL KENNETH W. GRAF,M.D., SUSQUEHANNA SURGEONS, LTD., t/d/b/a SUSQUEHANNA SURGEONS, A DIVISION OF HERITAGE MEDICAL GROUP, LLP, Defendants JURY TRIAL DEMANDED IN RE: PRELIMINARY OBJECTIONS OF DEFENDANTS TO PLAINTIFFS' COMPLAINT BEFORE HESS OLER AND GUIDO, J.J. ORDER AND NOW, this ~ 3 } day of October, 2009, the preliminary objections of the defendants, Kenneth W. Graf, M.D., and Susquehanna Surgeons, Ltd., t/d/b/a Susquehanna Surgeons, are OVERRULED, the Court noting that any expert retained by the plaintiffs will not be permitted to testify outside the fair scope of his report. BY THE COURT, . /.~ /~ Kevin ~i. Hess, J. /Leslie M. Fields, Esquire For the Plaintiffs hael D. Pipa, Esquire aren E. Minehan, Esquire For the Defendants ;rlm lo~~u l vq ~~~ f-~ ~LL..,~I-~-.:, 2~C9 Gi; i ~ ~ ~~ s ~~: ~ ~~ Cv -.~ ,~~r~t COSTOPOULOS, FOSTER & FIELDS By: Leslie M. Fields, Esquire I.D. No. 29411 Attorneys for Plaintiffs 831 Market Street Lemoyne, PA 17043-0222 Tel.: (717) 761-2121 Fax: (717) 761-4031 KIRK LOVE and SHIRLEY LOVE, IN THE COURT OF COMMON PLEAS his wife, :CUMBERLAND COUNTY, PENNSYLVANIA Plaintiffs MEDICAL MALPRACTICE v. : No.:09-623 KENNETH W. GRAF, M.D., SUSQUEHANNA SURGEONS, LTD., : t/d/b/a SUSQUEHANNA SURGEONS, A DNISION OF HERITAGE MEDICAL GROUP, LLP, : CNIL ACTION -LAW Defendants :JURY TRIAL DEMANDED PLAINTIFFS' REPLY TO NEW MATTER OF DEFENDANTS KENNETH W. GRAF, M.D. AND HERITAGE MEDICAL GROUP, LLP 52. No answer required. 53. Denied. 54. Denied. 55. Denied. 56. Denied. 57. Denied. 58. Denied. 59. Denied. 60. Denied. 61. Denied. 62. Denied. 63. Denied. 64. Denied. 65. Denied. 66. Denied. 67. Denied. 68. Denied. WHEREFORE, Plaintiffs respectfully request that judgment be entered in their favor RESPECTFULLY SUBMITTED: rr" _~._____._. eslie M. fields, Esquire I. D. No. 2411 COSTOPOULOS, FOSTER & FIELDS 831 Market Street/P.O. Box 222 Lemoyne, Pennsylvania 17043 Phone: 717.761.2121 Fax: 717.761.4031 Web: Costopoulos.com ATTORNEY FOR PLAINTIFF Dated: November 24, 2009 VERIFICATION I, Plaintiff, Kirk W. Love, do hereby verify that the statements made in the foregoing document are true and correct to the best of my information and belief. I understand that false statements made herein are subject to the penalties at 18 Pa.C.S.A. 4904 relating to unsworn falsification to authorities. ~~v~, G~1'`- ~70~`'`t' KIRK W. LOVE DATED: ~ I ^y~ ^~ VERIFICATION I, Plaintiff, Shirley Love, do hereby verify that the statements made in the foregoing document are true and correct to the best of my information and belief. I understand that false statements made herein are subject to the penalties at 18 Pa.C.S.A. 4904 relating to unsworn falsification to authorities. SHIRLEY VE DATED: / ~ CERTIFICATE OF SERVICE I, Leslie M. Fields, Esquire, hereby certify that on this 24th day of November 2009, a true and correct copy of the foregoing document was served upon all counsel of record by: Hand Delivery X First Class Mail, Postage Pre-Paid Certified Mail, Return Receipt Requested Fax Transmission Overnight Mail at the following address(es) and/or number(s): Michael D. Pipa, Esquire STEVENS & LEE 17 North Second Street, 16`h Floor Harrisburg, PA 17101 Counsel for Defendants COSTOPOULOS, FOSTER & FIELDS . __. ... Leslie M. Fields, Esquire IL'. - ~~ 2~C~9 fi~~'d ti ~ ~~~ i v~Vl _ .. ,,, l~ MAR 0 3 2010 KIRK LOVE and SHIRLEY LOVE, his wife, 1N THE COURT OF COMMON PLEAS Plaintiffs CUMBERLAND COUNTY, PENNSYLVANIA v. KENNETH W. GRAF, M.D., : SUSQUEHANNA SURGEONS, LTD., t/d/a/ SUSQUEHANNA SURGEONS, A DIVISION OF HERITAGE MEDICAL GROUP, LLP, Defendants NO.09-623 CIVIL ACTION -LAW MEDICAL MALPRACTICE JURY TRIAL DEMANDED ORDER AND NOW, this y~ day of caret , 2010, it is hereby ORDERED and DECREED that the Motion to Stay the Proceedings of Defendants Kenneth W. Graf, M.D., Susquehanna Surgeons, Ltd., t/d/a/ Susquehanna Surgeons, a division of Heritage Medical Group, LLP, is hereby GRANTED until thirty (30) days after Dr. Graf returns from his overseas military deployment. R le 236 Notice: ./Michael D. Pipa, Esquire ~slie M. Fields, Esquire t ~S" ~ t l4cl.~ 3~~e f ~v r~ ~, ~, -.~. ~-t- ~::. ~:, ~~ti ~~ ~a 0 4 s~ t ~. x r ~+ SL1 978079v1 /041199.00378 KIRK LOVE and SHIRLEY LOVE, his wife, Plaintiffs v. IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA N0.09-623 KENNETH W. GRAF, M.D., CIVIL ACTION -LAW SUSQUEHANNA SURGEONS, LTD., t/d/a/ MEDICAL MALPRACTICE SUSQUEHANNA SURGEONS, A DIVISION OF HERITAGE MEDICAL GROUP, LLP, Defendants JURY TRIAL DEMANDED ORDER AND NOW, this ~ day of September, 2010, it is hereby ORDERED and DECREED that the Stay the Proceedings that was entered on March 4, 2010 is lifted. BY THE COURT: v~'~~236 Notice: l.chael D. Pipa, Esquire /I-e~lie M. Fields, Esquire ~p'~t ES M,7 ~ ~'7 g ~~ 'r""~'I to ~~ ~ "~ ` ~ =, ~r_: w ~: ~i ~: ~ -v G ~ °.`~; y Vie' ~=' '`' 08/31/]0/SL1 ]019811v1/041199.00378 I Stevens & Lee, P.C. Michael D. Pipa, Esquire - I.D. Number 53624 Shaun J. Mumford, Esquire - I.D. Number 84176 17 North Second Street, 16th Floor Harrisburg, PA 17101 (717) 255-7376 Attorneys for Defendants FLED-O I" ICE 'T TIC F ? IC CTARY "UMBER'"AND COUNTY FENNS-1 I-VA ?tA KIRK LOVE and SHIRLEY LOVE, his wife, IN THE COURT OF COMMON PLEAS Plaintiffs CUMBERLAND COUNTY, PENNSYLVANIA V. KENNETH W. GRAF, M.D., SUSQUEHANNA SURGEONS, LTD., t/d/a/ SUSQUEHANNA SURGEONS, A DIVISION OF HERITAGE MEDICAL GROUP, LLP. Defendants NO. 09-623 CIVIL ACTION - LAW MEDICAL MALPRACTICE JURY TRIAL DEMANDED CERTIFICATE PREREQUISITE TO SERVICE OF A SUBPOENA PURSUANT TO RULE 4009.22 As a prerequisite to service of a subpoena for documents and things pursuant to Rule 4009.22, Defendant certifies that: 1. a notice of intent to serve the subpoena with a copy of the subpoena attached thereto was mailed or delivered to each party at least twenty (20) days prior to the date on which the subpoena was sought to be served, 2. a copy of the notice of intent, including the proposed subpoena, is attached to this certificate, 3. no objections to the subpoena have been received, and 4. the subpoena which will be served is identical to the subpoena which is attached to the notice of intent to serve the subpoena. SLl 1024405v 1 /041199.00378 STEVENS & LEE Date: September 22, 2010 By: 1 r `d c?n?a_. 0 . \-'.?' Michael D. Pipa, Esquire Attorney ID# 53624 17 North 2"a Street, 16th Floor Harrisburg, PA 17101 (717) 255-7376 Attorneys for Defendants SLl 1024405v 1 /041199.00378 KIRK LOVE and SHIRLEY LOVE, his wife, IN THE COURT OF COMMON PLEAS Plaintiffs CUMBERLAND COUNTY, PENNSYLVANIA V. : NO. 09-623 KENNETH W. GRAF, M.D., : CIVIL ACTION - LAW SUSQUEHANNA SURGEONS, LTD., t/d/a/ MEDICAL MALPRACTICE SUSQUEHANNA SURGEONS, A DIVISION OF HERITAGE MEDICAL GROUP, LLP. Defendants : JURY TRIAL DEMANDED SUBPOENA TO PRODUCE DOCUMENTS OR THINGS FOR DISCOVERY PURSUANT TO RULE 4009.22 TO: Norfolk Southern Corporation c/o Corporation Service Company 2704 Commerce Drive Harrisburg, PA 17110 Within twenty (20) days after service of this subpoena, you are ordered by the court to produce to STEVENS & LEE, 17 North Second Street,16th Floor, Harrisburg, PA 17101,-ATTN: Pamela L. Boger, Paralegal, the following documents or things: Your complete file concerning Kirk Love, (DOB: 1/14/1951, SSN: xxx-xx-5878) including, but not limited to, all employment applications, benefits, wage information, evaluations, promotions, job duties, worker's compensation and disability claims, and everything else you maintain concerning this employee. You may deliver or mail legible copies of the documents or produced things requested by this subpoena, together with the Certificate of Compliance, to the party making this request at the address listed above. You have the right to seek in advance the reasonable cost of preparing the copies pr producing the things sought. If you fail to produce the documents or things requires by this subpoena within twenty (20) days after its service, the party serving this subpoena may seek a court order compelling you to comply with it. This subpoena was issued at the request of the following person: Michael D. Pipa, Esquire, Stevens & Lee, 17 N. 2nd Street, 16th Floor, Harrisburg, PA, 17108-1670, Court ID # 53624. Attorneys for Defendants. Date: ?Cc ? 25. 07-01v Seal of the Court - BY THE COURT: By: (Pr thonotary) SLl 1002818v 1 /041199.00378 STEVENS & LEE LAWYERS & CONSULTANTS 17 North Second Street 16th Floor Harrisburg, PA 17101 (717) 234-1090 Fax (717) 234-1099 www.stevenslee.com Direct Dial: (717) 255-7368 Email: plb@stevenslee.com Direct Fax: (610) 371-7751 June 4, 2010 Leslie M. Fields, Esquire Costopoulos, Foster & Fields 831 Market Street PO Box 222 Lemoyne, PA 17043 Re: Kirk Love v. Graf, M.D., et al Dear Ms. Fields: Enclosed is Defendants' Notice of Intent to Service of Subpoena for employment records from Norfolk Southern Corporation. Norfolk Southern will not release records without a subpoena, even in the presence of an authorization. Please see the subpoena for the documents being sought. If you have no objections to the issuance of the subpoena, please let us know as soon as possible, in writing, if you are willing to waive the twenty (20) notice period so that we may immediately serve the subpoena. We will provide you with copies of any records we receive in response at your request. Sincerely, + Pamela L. Bolger Paralegal PLB:plb Enclosures Philadelphia • Reading • Valley Forge • Lehigh Valley • Harrisburg . Lancaster • Scranton Williamsport • Wilkes-Barre • Princeton • Cherry Hill New York Wilmm8ton A PROFESSIONAL CORPORATION SLl 1002812v 1 /041199.00378 Stevens & Lee, P.C. Michael D. Pipa, Esquire - I.D. Number 53624 Shaun J. Mumford, Esquire - I.D. Number 84176 17 North Second Street, 16th Floor Harrisburg, PA 17101 (717) 255-7376 Attorneys for Defendants KIRK LOVE and SHIRLEY LOVE, his wife, Plaintiffs V. KENNETH W. GRAF, M.D., SUSQUEHANNA SURGEONS, LTD., t/d/a/ SUSQUEHANNA SURGEONS, A DIVISION OF HERITAGE MEDICAL GROUP, LLP. Defendants IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA : NO. 09-623 CIVIL ACTION - LAW MEDICAL MALPRACTICE : JURY TRIAL DEMANDED NOTICE OF INTENT TO SERVE SUBPOENAS TO PRODUCE DOCUMENTS AND THINGS FOR DISCOVERY PURSUANT TO RULE 4009.21 Defendants intend to serve a subpoena identical to the one that is attached to this Notice. You have twenty (20) days from the date listed below in which to file of record and serve upon the undersigned any objection to the subpoena. If no objection is made, the subpoena may be served. STEVENS & LEE Date: i 1 c- _ By Michael D. Pipa, Esquire Attorney I.D. No. 53624 17 North Second Street, 16th Floor Harrisburg, PA 17101 (717) 255-7376 Attorneys for Defendants S L 1 1002 810v 1 /041199.003 78 CERTIFICATE OF SERVICE I, PAMELA L. BOGER, PARALEGAL AND EMPLOYEE OF STEVENS & LEE, P.C., HEREBY CERTIFY that a copy of the foregoing document was served by first class mail, postage prepaid, on the 0 day of June, 2010, upon the following: Leslie M. Fields, Esquire Costopoulos, Foster & Fields 831 Market Street PO Box 222 Lemoyne, PA 17043 SLl 1002810v1/041199.00378 CERTIFICATE OF SERVICE I, Pamela L. Boger, Paralegal, hereby certify that a true and correct copy of the foregoing Certificate Prerequisite to Service of Subpoenas was served upon the following counsel of record, by depositing the same in the United States mail, postage pre-paid, on September 22, 2010, addressed as follows: Leslie M. Fields, Esquire Costopoulos, Foster & Fields 831 Market Street PO Box 222 Lemoyne, PA 17043 Counsel for Plaintiffs SL] 1024405vl/041199.00378 i STEVENS & LEE, P.C. Michael D. Pipa, Esquire I.D. No. 53624 Karen E. Minehan, Esquire I.D. No. 78050 17 North Second Street, 16th Floor Harrisburg, PA 17101 Phone: (717) 255-7376 Fax: (610) 371-7743 KIRK LOVE and SHIRLEY LOVE, his wife, v. Plaintiffs rte ^ ^r t' Pik 1 <<. r1 r,..: n ry ,_ cur .? kV tt Ci??»„; art ..?r. IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 09-623 CIVIL ACTION - LAW MEDICAL MALPRACTICE KENNETH W. GRAF, M.D., SUSQUEHANNA SURGEONS, LTD., t/d/a/ SUSQUEHANNA SURGEONS, JURY TRIAL DEMANDED A DIVISION OF HERITAGE MEDICAL GROUP, LLP, Defendants MOTION TO COMPEL PLAINTIFFS TO PRODUCE SPECIFIC, VERIFIED RESPONSES TO DEFENDANTS KENNETH W. GRAF, M.D. AND SUSQUEHANNA SURGEONS, LTD., T/DB/A SUSQUEHANNA SURGEONS, A DIVISION OF HERITAGE MEDICAL GROUP, LLP'S INTERROGATORIES, REQUEST FOR PRODUCTION OF DOCUMENTS AND CONTENTION INTERROGATORIES AND NOW come Defendants Kenneth W. Graf, M.D. and Susquehanna Surgeons, Ltd., t/d/b/a Susquehanna Surgeons, a Division of Heritage Medical Group, LLP, through counsel, and respectfully file the present Motion to Compel Plaintiffs to Produce Specific Responses to Defendants' Interrogatories, Requests for Production of Documents, and Contention Interrogatories within thirty (30) days of this Court's Order: 1. Plaintiffs commenced this professional liability action by Writ of Summons that was issued on February 6, 2009, over eighteen (18) months ago. SLl 1027489v]/041199.00378 2 2. Plaintiffs filed Certificates of Merit with the Court on April 14, 2009 before filing their Complaint with the Court on July 6, 2009. 3. Plaintiffs' Complaint sets forth a detailed recitation of Plaintiffs' version of the relevant medical facts. Plaintiffs medical averments start on February 16, 2007, when Plaintiff Kirk Love presented to the Holy Spirit Hospital Emergency Department with abdominal pain, include Dr. Graf's surgical exploratory laparotomy, lysis of multiple adhesions, resection of portion of small bowel and resection of Meckel's diverticulum on February 17, 2007, include Plaintiff's post-operative recovery at Holy Spirit/Select Specialty from February 17 to June 9, 2007 and include some of the Plaintiff's follow-up care at JHU from June 9, 2007 until around October 5, 2007. A copy of Plaintiffs' Complaint is attached hereto as Exhibit "A"; see Plaintiffs' Complaint, at ¶T4-40. 4. Plaintiffs' factual allegations show that a number of radiological tests were ordered and performed within this timeframe. See Plaintiffs' Complaint, at 18-18. 5. Plaintiffs' factual allegations aver that Plaintiff underwent several additional surgeries by Dr. Graf and others after the first surgery on February 17, 2007. See Plaintiffs' Complaint, at 1¶19, 20, 21, 22, 23, 24, 25, 26, 27, and 28. 6. Plaintiff's diagnoses, as set forth in his discharge summaries, are alleged to include small bowel fistula, pulmonary embolus, adhesion of multiple bowel loops, aceticosis or pigeon handler's disease with chronic obstructive pulmonary disease, among others. See Plaintiffs' Complaint, at ¶¶29-31. 7. Plaintiff Kirk Love set forth a claim of medical negligence against Dr. Graf and Susquehanna Surgeons, Ltd. in Counts I and II and Plaintiff Shirley Love alleged loss of S L 11027489v 1 /041199.003 78 consortium in Count III of the Complaint. Plaintiffs seek compensatory damages arising out of said care and treatment. 8. Regarding the allegations of liability, Paragraphs 42 of Plaintiffs' Complaint alleges as follows: 42. Defendant, Kenneth W. Graf, M.D. failed to provide reasonable care, caused injury and/or increased the risk of harm to Plaintiff, Kirk Love, as follows: a) Failing to properly examine, evaluate and treat Kirk Love from February 16, 2007 to June 7, 2007; b) Failing to recognize Kirk Love's symptoms and properly treat same; c) Failing to recognize the severity of Kirk Love's conditions; d) Failing to order appropriate tests to determine the source/cause of Kirk Love's conditions; e) Failing to consider/make a differential diagnosis and/or failing to order tests or take appropriate actions to confirm or rule out a differential diagnosis; f) Ignoring Kirk Love's condition and/or failing to find/attempt to find a source/cause of the condition; g) Sewing the bowel to the abdominal wall with polypropylene suture in several locations; h) Failing to refer Kirk Love to a surgeon or other expert or failing to inform him to be seen by a more qualified physician; i) Although Kirk Love had concerns about the care provided to him, the Defendants held out expertise intended to induce him to believe that adequate and proper care was being provided when, in fact, it was not; j) Failing to treat his condition; and k) Being dismissive of information and symptomatology. See Plaintiffs' Complaint, at 142. 4 S L 1 1027489v I /041199.003 78 9. Plaintiffs' factual and legal averments cover an eight (8) month period of care and include several different surgeries, a myriad of radiological tests and contemplate Plaintiff's multiple diagnoses and changing medical condition. Plaintiffs' factual and legal averments do not target or specify any particular timeframe, care or action (with the exception of paragraph 42(g)). 10. Defendants filed Preliminary Objections to the allegations set forth in paragraph 42 (a-e) and (h-k) of Plaintiffs' Complaint based upon insufficient specificity. Pa.R.Civ.P. 1028(a)(3). 11. By Court Order dated October 13,2009, this Honorable Court overruled Defendants' Preliminary Objections. 12. Defendants filed their Answer and New Matter on November 5, 2009. 13. Meanwhile, the parties exchanged written discovery requests. 14. On September 21, 2009, Defendants served Plaintiffs with Interrogatories and Requests for Production of Documents. 15. After Defendants' Preliminary Objections were overruled, Defendants served Plaintiffs with Contention Interrogatories on November 4, 2009 to seek to clarify Plaintiffs' allegations of liability. 16. On November 21, 2009, Plaintiffs produced objections and responses to Defendants' Interrogatories and Requests for Production of Documents. A copy of Defendants' Interrogatories and Requests for Production of Documents and Plaintiffs' Responses is attached hereto as Exhibit "B". (Defendant did not attach a copy of Plaintiffs' Social Security Statement dated January 29, 2009 or their tax returns from 2003-2008 because they are not directly relevant to this Motion to Compel and for personal privacy reasons). SLl 1027489v 1 /041199.00378 17. On or about November 12, 2009, Plaintiffs produced objections to Defendants' Contention Interrogatories. A copy of Defendants' Contention Interrogatories and Plaintiffs' Objections is attached hereto as Exhibit "B". 18. On February 8, 2010, Defendants requested that Plaintiffs produce supplemental Responses to Interrogatories 015, 16, 18, 19, 22-23, 25-27 and 37-39 and Requests for Production of Documents ## 2, 3 and 15, that they supplement Plaintiffs' Responses regarding certain previously provided photographs, that they provide substantive responses to Defendants' Contention Interrogatories and that they identify the home health nurse who provided care to Plaintiff after October 29, 2007. A copy of Defendants' Letter dated February 8, 2010 is attached as Exhibit "C". 19. On March 4, 2010, with Plaintiffs' concurrence, a stay was entered to accommodate Dr. Graf's overseas military deployment. The stay was lifted by Court Order on September 8, 2010 after Dr. Graf returned from his deployment. 20. On September 7, 2010, Defendants sent a follow up letter to Plaintiffs' counsel to again request that they supplement their discovery Responses as requested on February 8, 2010. A copy of Defendants' Letter dated September 7, 2010 is attached as Exhibit "C". 21. On October 4, 2010, Plaintiffs' counsel sent a letter purportedly supplementing certain of Plaintiffs' discovery responses. A copy of Plaintiffs' Letter dated October 4, 2010 is attached as Exhibit "C". 22. Plaintiffs' counsel's letter is not a formal response, is not verified by her clients, and fails to provide substantive responses to many of the contested discovery requests. See Pa.R.Civ.P. 4006(a)(1) ("Answers to interrogatories shall be in writing and verified...") 6 SLl 1027489vl /041199.00378 23. Plaintiffs have an obligation to review and verify the supplemental responses offered for them by their counsel. 24. Defendants respectfully request that this Honorable Court compel Plaintiffs to produce verified Responses to these Interrogatory requests in accordance with Pa.R. 4006(a)(1). 25. Plaintiffs also fail to substantively respond to Defendants' Interrogatories concerning their alleged non-economic damages, other than to refer generally to their Complaint. See Response to Interrogatory at Exhibit "C" at ¶¶21, 38-39. 26. The non-economic damage allegations in Plaintiffs' Complaint at paragraph 43 are insufficient to specifically appraise Defendants of Plaintiffs' claims. 27. There, Plaintiffs' aver that Mr. Love suffered: (a) prolonged and chronic pain and suffering and emotional distress, mental anguish and humiliation; ? Neither Plaintiffs' Complaint nor their Responses to discovery state the duration or location of the alleged pain and suffering and does not state whether Plaintiff received any mental health treatment related to the emotional distress and mental anguish. (e) a loss of life's pleasures; ? Neither Plaintiffs' Complaint nor their Responses to discovery identify the nature of the pleasures that were allegedly lost to this Plaintiff, why they were lost or for how long, etc. (f) such other damages as properly allowed by Pennsylvania law, including but not limited to incidental costs as a result of his wife having to lose work in order to care for him. ? Neither Plaintiffs' Complaint nor their Responses to discovery document the alleged incidental damages or even identify the Plaintiff-wife's employer so that Defendants 7 SLl 1027489v 1 /041199.00378 could subpoenas the records. See Plaintiffs' Responses to Interrogatories 124 (no supporting documentation attached). 28. Likewise, the non-economic consortium claim in Plaintiffs' Complaint at paragraph 51 is insufficient to specifically appraise Defendants of Plaintiffs' claims. See Plaintiffs' Complaint at ¶¶50-51; Plaintiffs' Responses to Defendants' Interrogatories at ¶¶38-39. 29. In response to Defendants' request for discovery of Plaintiffs' alleged special economic damages, Plaintiffs responded in November of 2009 that the health insurer and disability insurer records were requested and "will be provided." See Responses to Interrogatories at 120, 22-27 attached hereto as Exhibit "B". 30. Despite the fact that the case was commenced approximately twenty (20) months ago and despite that almost a year has passed since Plaintiffs first answered this discovery, Plaintiffs have not produced any health or disability insurance records in discovery. Moreover, Plaintiffs have not stated (or even estimated) which alleged medical or disability insurance payments they claim are related to Dr. Graf s care and their liability claims. Plaintiffs have not produced any lien letters that allegedly document their special economic damages. 31. Because of the complicated workings of MCARE Act 13 section 508 concerning payments by collateral sources (such as private health or disability insurance) and given the relevant burden of proof, Plaintiffs' vague assurance in November of 2009 that these insurance records "will be provided" is inadequate. See 40 P.S. §1303.508. 32. These Responses must be supplemented to specifically apprise Defendants of their alleged special damages claims to allow Defendants to defend against a potentially sizable claim of economic damages given Plaintiff's several and long hospitalizations. 8 SLl 1027489vl /041199.00378 33. Plaintiffs' suggestion in counsel's letter dated October 4, 2010 that the "documents from Mr. Love's employer, etc. [] should answer some of [Defendants'] other concerns" is inadequate to respond to Defendants' request for special damages discovery. 34. The outstanding authorizations include Plaintiff's employer, Norfolk Southern Railway Company, Plaintiff's primary care physician, Duncannon Family Health Center, and Plaintiff's home nurse, Visiting Nurse Association. 35. Plaintiffs have an obligation to identify when they claim that Plaintiff was unable to return to work as a result of the allegedly negligent care and how he was allegedly adversely impacted at work. The fact that Defendants have requested Plaintiff-husband's work, and other records in discovery does not obviate that requirement. 36. Last, but not least, Plaintiffs fail to provide any substantive responses to Defendants' Contention Interrogatories, which were served to clarify the timeframe and the scope and the nature of the criticized care. 37. These Contention Interrogatories must be substantively answered before Defendant is compelled to appear for his deposition or before the Defendant-corporation is required to produce its alleged agents at discovery depositions. The issue is ripe for consideration because Plaintiffs have requested that Defendant produce Dr. Rolando Casal, who assisted Dr. Graf in his surgical care of Plaintiff, for his discovery deposition. To ensure that Defendants are able to properly prepare Dr. Graf and Dr. Casal for their respective discovery depositions, Plaintiffs must identify the criticized care and the timeframe of the criticized care (e.g. pre-operative, intra-operative, post-operative) in discovery. See Plaintiffs' Complaint and discovery Responses attached hereto. Plaintiffs' vague objections are inadequate given that Plaintiffs retained a Certificate of Merit expert who has apparently provided Plaintiffs with a 9 SLl 1027489v 1 /041199.00378 written letter of merit indicating that Dr. Graf breached the standard of care and that this breach caused Plaintiff harm. Defendants are not asking that Plaintiffs produce the reports of its Certificate of Merit expert(s) or the report(s) of any experts whom they do not intend to call at trial. Rather, Defendants request that Plaintiffs identity the scope of the criticized care so that they are not improperly ambushed at the discovery depositions. 38. Pa. R. Civ. P. 4006(a)(2) and 4009.12 require that written interrogatories and requests for production of documents directed to a party shall be answered, in writing, verified and/or objected to within thirty (30) days from the date of service. See Pa.R.Civ.P. 4006(a)(2) and 4009.12. 39. Plaintiffs have not provided Defendants with sufficient justification for their failure to produce substantive and verified answers to the discovery requests described above. 40. Without substantive answers to these Interrogatories, Request for Production of Documents, and Contention Interrogatories, Defendants are unable to prepare a defense, fully evaluate this claim, or otherwise conduct additional discovery. 41. Concurrence of Plaintiffs' counsel was sought and denied as set forth in Plaintiffs' letter dated October 4, 2010. See Cumb. R. Civ. P. 208.3(a)(9). WHEREFORE, Defendants Kenneth W. Graf, M.D. and Susquehanna Surgeons, Ltd., t/d/b/a Susquehanna Surgeons, a Division of Heritage Medical Group, LLP respectfully request that their Motion to Compel be granted and that Plaintiffs be compelled to produce specific, substantive, and verified answers to Defendants Interrogatories T¶15, 16, 18, 19-27, and 37-39, to Defendants' Request for Production of Documents ¶12, 3, 13, 15, and to Defendants' Contention Interrogatories. Defendants also respectfully request that Plaintiffs be 10 SL1 1027489v 1 /041199.00378 precluded from taking the discovery deposition of Dr. Graf or the Defendant-corporation's alleged agents until substantive, verified answers are provided in discovery. Respectfully submitted, STEVENS & LEE Date: October 12, 2010 ?gw ?, Michael D. Pipa, Esquire I.D. No. 53624 Karen E. Minehan, Esquire I.D. No. 78050 17 North Second Street, 16th Floor Harrisburg, PA 17101 Phone: (717) 255-7376 Fax: (610) 371-7743 Counsel for Defendants Kenneth W. Graf, M.D. and Susquehanna Surgeons, Ltd., t/d/b/a Susquehanna Surgeons, a Division of Heritage Medical Group, LLP 11 SL1 1027489v 1 /041199.00378 ????,? KIRK LOVE and SHIRLEY LOVE, : IN THE COURT OF COMMON PLEAS his wife, CUMBERLAND COUNTY, PENNSYLVANIA Plaintiffs MEDICAL MALPRACTICE v. : No.: 09-J623 KENNETH W. GRAF, M.D., SUSQUEHANNA SURGEONS, LTD., t/d/b/a : SUSQUEHANNA SURGEONS, A DIVISION : OF HERITAGE MEDICAL GROUP, LLP : CIVIL ACTION - LAW Defendants : JURY TRIAL DEMANDED NOTICE TO DEFEND YOU HAVE BEEN SUED IN COURT. If you wish to defend against the claims set forth in the following pages, you must take action within twenty (20) days after this Complaint and Notice are served, by entering a written appearance personally or by attorney and filing in writing with the Court your defenses or objections to the claims set forth against you. You are warned that if you fail to do so the case may proceed without you and a judgment may be entered against you by the Court without further notice for any money claimed in the Complaint or for any other claim or relief requested by the Plaintiff(s). You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW. THIS OFFICE CAN PROVIDE YOU WITH INFORMATION ABOUT HIRING A LAWYER. IF YOU CANNOT AFFORD TO HIRE A LAWYER, THIS OFFICE MAY BE ABLE TO PROVIDE YOU WITH INFORMATION ABOUT AGENCIES THAT MAY OFFER LEGAL SERVICES TO ELIGIBLE PERSONS AT A REDUCED FEE OR NO FEE: LAWYER REFERRAL SERVICE CUMBERLAND COUNTY BAR ASSOCIATION 32 SOUTH BEDFORD STREET, CARLISLE, PA 17013 PHONE: 717-249-3166 or 800-990-9108 KIRK LOVE and SHIRLEY LOVE, IN THE COURT OF COMMON PLEAS Iris wife, CUMBERLAND COUNTY, PENNSYLVANIA Plaintiffs MEDICAL MALPRACTICE V. No.: 09-623 KENNETH W. GRAF, M.D., SUSQUEHANNA SURGEONS, LTD., t/d/b/a SUSQUEHANNA SURGEONS, A DIVISION OF HERITAGE MEDICAL GROUP, LLP : CIVIL ACTION - LAW Defendants : JURY TRIAL DEMANDED PLAINTIFFS' COMPLAINT AND NOW come the Plaintiffs, Kirk Love and Shirley Love, his wife, by and through their attorney, Leslie M. Fields, Esquire, COSTOPOULOS, FOSTER & FIELDS, and respectfully represent as follows in support of this Complaint: The Parties 1. Plaintiffs, Kirk Love and Shirley Love, his wife, are adult individuals residing at 76 Community Road, Newport, Perry County, Pennsylvania 17074. 2. Defendant, Kenneth W. Graf, M.D., is an adult individual and physician who, at the time of the occurrences alleged herein, was employed by and/or was the agent, ostensible agent, or apparent agent of Defendant, Susquehanna Surgeons, Ltd., t/d/b/a Susquehanna Surgeons, a division of Heritage Medical Group, LLP. Upon information and belief, Defendant, Kenneth W. Graf, M.D., purported to specialize in surgery. His principal place of business is at 532 North Front Street, Wormleysburg, Cumberland County, Pennsylvania 17043. 3. Defendant, Susquehanna Surgeons, Ltd., t/d/b/a Susquehanna Surgeons, a division of Heritage Medical Group, LLP, is, upon information and belief, a corporation which conducts -1- business on a substantial and continuous basis within the jurisdiction of the Court, including business at Holy Spirit Hospital, Camp Hill, Cumberland County, Pennsylvania, at the time of the occurrences alleged herein. Its primary place of business is at 532 North Front Street, Wormleysburg, Cumberland County, Pennsylvania 17043. Background Allegations 4. On or about February 16, 2007, Plaintiff, Kirk Love, presented to the emergency department of Holy Spirit Hospital with abdominal pain. Radiology studies showed "findings consistent with early or partial small bowel obstruction." He was admitted to the hospital. 5. The following day, on or about February 17, 2007, Defendant, Kenneth W. Graf, M.D., of Defendant, Susquehanna Surgeons, Ltd., performed surgery described as exploratory laparotomy, lysis of multiple adhesions, resection of portion of small bowel and resection of Meckel's diverticulum. His note states that he "did enter the bowel once in an area where it was extremely thin and attached to the anterior abdominal wall." According to his note, he was "able to see everything and divide the adhesions without injury to the bowel other than the single enterotomy. Multiple small serosal tears were sutured with silk and the area of small bowel which was thinned out and perforated was resected." 6. Defendant, Kenneth W. Graf, M.D., finalized his operative note with the following paragraph: "No other problems were noted. There was no more bleeding noted. The wound was then closed. I used a running suture of #1 PDS. I also placed twelve pieces of Seprafilm (large) into the abdomen to cover exposed viscera being careful to not put it over the anastomosis. " 7. Over the next days, pain and abdominal distention were noted along with other signs and symptoms. -2- t 8. On February 22, 2007, radiology reported the history of Plaintiff, Kirk Love, as abdominal distension/pain/recent surgery. The result is reported as "Mildly abnormal bowel gas pattern possibly representing postop ileus. Postop partial small bowel obstruction cannot be completely excluded. No pneumoperitoneum. Hypoventilatory chest examination. Minimal left basilar atelectasis and small left pleural effusion. Possible small right pleural effusion." 9. On February 24, 2007, radiology reported his history as recent surgery for bowel obstruction and finds that "...Air is scattered through stomach, large and small bowel loops. There is definite colonic air. There is mild distention of several small bowel loops with a few air-fluid levels on the upright film.." The conclusion stated: "1. Since prior film from 2/22/07 there has been continued passage of the contrast in the colon. There is now only a small amount of contrast in the rectum. 2. At the present time, the overall findings are most consistent with postoperative ileus." 10. Later on February 24, 2007, radiology reported his history of line placement and concluded "mild atelectasis left lung base." 11. On February 25, 2007, radiology noted abdomen pain and bibasilar atelectasis, tight greater than left, and findings compatible with postoperative ileus that could be further correlated with CT if clinically indicated. 12. On February, 27, 2007, the following was noted: Radiology examination:Upper GI and Small Bowel, Hx: Abdominal pain, evaluate for small bowel obstruction. Result is suggestive of high grade partial small bowel obstruction. 13. On February 28, 2007, the following was noted: Radiology, Hx:Sm&U bowel obstruction. Evaluation of the progression of barium. Result reported as "diffuse contrast noted -3- within the cecum and rectum. The majority of contrast remains within the small bowel Dilation of multiple jejunal loops persists. There is question of a narrowed loop of small bowel in the region of the terminal ileum. Query history of Crohn's disease." 14. On March 3, 2007, the following was noted: Radiology Examination: Abdomen two- view and chest 1 view. Indication: Small bowel obstruction. Conclusion is "Small bowel distention. Slight decrease since previous study 2/28/07 is consistent with partial small bowel obstruction. Some distal passage of barium contrast in the small bowel appears to be present since the previous study. Partial atelectasis or scarring in the lung bases bilaterally. Advise f/u to assure clearing of these densities." 15. On March 4, 2007, the following was noted: Radiology Examination: Abdominal obstructive series with one view chest, 4 views. Indication is abdominal distention. Result reported: PICC and NG tubes are unchanged. Bibasilar atelectasis remains in the chest Decreased small bowel dilation with persistent residual barium 16. On March 6, 2007, the following was noted: Radiology, History is recent nausea. History of previous small bowel obstruction. Result: Unremarkable gas pattern, with retained barium throughout the small bowel, essentially stable since 3/4/2007. Same day Radiology reports patchy bibasilar opacities, likely atelectasis. Followup chest radiographics may be considered to document resolution.. 17. On March 12, 2007, the following was noted: Radiology reports Acute abdominal series, 3 views, 4 images including chest 1 view. History of abdominal pain. Result is reported as "There has been interval worsening in the appearance of the bowel gas pattern. The appearance suggest small bowel obstruction. In addition, I question the presence of wall thickening involving -4- loop of jejunum." 18. On March 14, 2007 a CT examination with contrast was interpreted as follows: "While I do not have oral contrast for definition of small bowel, small bowel loops continue to show dilatation and contained fluid as does the stomach. This would indicate persisting small bowel obstruction." 19. On March 15, 2007, Defendant, Kenneth W. Graf, M.D., of Defendant, Susquehanna Surgeons, Ltd., assisted by Rolando Casal, M.D,.of Defendant, Susquehanna Surgeons, Ltd., performed another operation at Holy Spirit Hospital. The operative note described this as a. re- exploration to relieve bowel obstruction and stated that "... three weeks ago, he underwent laparotomy and lysis of adhesions and small bowel resection for small bowel obstruction. At no time did he open up following that procedure, and he is now re-explored in anticipation of relieving his bowel obstruction. The condition, however, was inoperable at the time of the procedure." The note further indicated that the " abdomen was next attempted to be entered through the old midline incision extending around the incision superiorly for about 3 centimeters. We could not get an index finger into the abdominal cavity, and multiple attempts to find the free peritoneal cavity were unsuccessful. At this point, I had consulted my partner, Dr. Casal, for an intraoperative opinion. Between the two of us, multiple attempts again were tried to find a free peritoneal cavity, and there was none. The lateral incisions were made, and we still did not find a free space. We were not able to find loops of bowel, nor were we able to separate them from any scar tissue. The abdomen could be considered only likened to concrete. After two entexotomies and the loss of 500 mL of blood, I felt the best interest in patient would be to stop the operation at this point, place a gastrostomy tube, and prepare him for repeat surgery after approximately six months of TPN." -5- 20. Four days later, on March 19, 2007, Rolando A. Casal, M.D. of Defendant, Susquehanna Surgeons, Ltd., noted in his operative report that "during the examination today, bile stainer of the dressing was noted and it is evident that he has an enterocutaneous fistula resulting from likely breakdown of the enterotomies. During the procedure, Dr. Casal noticed that the "patient's viscera is densely adherent to the lateral abdominal wall on the right side where it appeared that the abdominal wall was sutured to available tissues". 21. The next day, on March 20, 2007, an operation was performed by Michael J. Page, M.D., of Defendant, Susquehanna Surgeons, Ltd. The operative report described that "...the patient then had exploration of the abdomen. He had an open fistula in the small bowel and the small bowel was opened throughout the abdomen. There was a considerable amount of granulation tissue...." 22. One day after that, on March 21, 2007, a Record of Operation written by Anastasius Peter, M.D., of Defendant, Susquehanna Surgeons, Ltd., described an abdominal wound exploration and washout. Under operative procedure, the report indicates that the "pt. was brought to the operating room and placed on the operating room table in the supine position. He underwent general endotracheal anesthesia. The dressing was removed and the wound edges were prepped with Betadine and draped in a sterile fashion. The abdominal wound was then washed out using saline irrigation. The vac dressing was then applied covering the bowel with adaptive over the exposed bowel. We then applied white foam followed by black foam and then applied to suction." 23. On March 22, 2007 at Holy Spirit Hospital, the Record of Operation showed that Defendant, Kenneth W. Graf, M.D., described a insertion of a single lumen Mediport catheter. 24. On March 23, 2007 at Holy Spirit Hospital, there was another operation performed by Michael.j. Page, M.D., of Defendant, Susquehanna Surgeons, Ltd., described as Change of wound -6- VAC. This operative note indicates that "...There was a small amount of succus in the lower wound. The patient did have an obvious enterotomy (fistula). We did attempt to slow that down by putting two Vicryls in that" 25. On March 25, 2007 at Holy Spirit Hospital, another Record of Operation showed that Michael J. Page, M.D., of Defendant, Susquehanna Surgeons, Ltd., recording a preoperative diagnosis of "Fistula from previous exploratory laparotomy," performed another operation described as a "washout of abdominal wound with change of VAC . Procedure note stated that "...The patient had a fair amount of succus material in the lower part of his wound.. There appeared to be one small leak." 26. On March 26, 2007 at Holy Spirit Hospital, a Record of Operation showed that Joseph P. Esposito, M.D., of Defendant, Susquehanna Surgeons, Ltd., performed an operation described as "wound dressing with debridement of abdominal wall and placement of wound vacuum dressing..". The indication recorded is that of "56 y.o. male who had undergone a laparotomy and had multiple enterotomies performed by Dr. Graf. Unfortunately he developed a fistula in this region. Skin graft had recently been placed and he presents now for change of his wound VAC dressing system and examination of wound." He stated that "it appeared that the skin graft's take was 100% except where the fistula was present" 27. On March 28, 2007 at Holy Spirit Hospital, the Record of Operation showed that A. David Froehlich, M.D., of Defendant, Susquehanna Surgeons, Ltd., performed an operation described as "abdominal washout and reapplication of VAC dressing." The procedure note stated that "...the major findings were the small amount of drainage from the fistulous tract in the right lower quadrant The upper 80% of the ventral hernia area was granulating tissue over the loops of -7- bowl with no evidence of any open space along the fascial cutaneous border..." 28. On March 30, 2007 at Holy Spirit Hospital, the Record of Operation of Rolando A. Casal, M.D. of Defendant, Susquehanna Surgeons, Ltd., listed the Pre/Post Op diagnosis as `Snterocutaneous fistula with opening granulating wound." The operation was abdominal wound wash out ad he noted the "visible enterocutaneous fistula." And he recorded that "to avoid drainage which is uncontrolled, I placed a loban. This should keep the drainage from going all over the place..." The plan was that Plaintiff, Kirk Love, be sent home in this condition. 29. On March 30, 2007 Plaintiff, Kirk Love, was discharged from Holy Spirit Hospital. The discharge summary by Rolando A. Casal, M.D., of Susquehanna Surgeons, Ltd, indicated a final diagnosis of small bowel obstruction secondary to adhesions, Admitting Diag. same. Secondary: Small bowel fistula. Under the section for hospital course & treatment, Dr. Casal stated that the patient was "admitted on 2/17/07 because of chronic partial small bowel obstruction. After long term conservative medical measures and w/o any relief he underwent an exploratory laparotomy. The pt. sustained intraoperative small bowel injury and because of the extensive adhesions which will be extremely difficult to perform and anticipated to produce more bowel injury the operation was terminated. The pt had a decompressing gastrostomy and jejunostomy. He was then managed conservatively. The pt sustained enterocutaneous fistula. The pt was managed at the ICU, dressing were placed. Despite major setbacks, the pt was able to be transferred to Select long term acute care facility where he was continued on PPN and dressing changes. 30. After being discharged on March 30, 2007, Plaintiff, Kirk Love, was readmitted on April 13, 2007. The admission paperwork indicated that "On 04.17.2007 at Holy Spirit Hospital, CT Pelvis w/contrast. Impression: I. Pulmonary embolus within the left lobe pulmonary artery. 2. -8- Injection of the fistula of the anterior abdominal wall shows opacification of what probably reflects distal jejunal and ilial bowel loops. 3. Postoperative changes of the abdomen with adhesion of multiple small bowel loops to the anterior abdominal wall. No evidence for obstruction. 4. Small nodular density right middle lobe for which full CT of the chest is recommended on a nonemergent basis." These critical test results were discussed and reviewed with Dr. Graf immediately following the examination on 4/17/2007. 31. It was determined to send PlaintifC Kirk Love, to the care of Select Specialty and a discharge summary was written by Defendant, Kenneth W. Graf, M.D., as follows: "Final Diagnosis: Intracutaneous fistula with a very complicated abdominal wound, full thickness loss of abdominal wall, central portion. Secondary: Pulmonary embolus and aceticosis or pigeon handler's disease with chronic obstructive pulmonary disease. Summary: pt was admitted due to worsening of his abdominal wall and a pulmonary embolus found in the left pulmonary artery... pt. will require long term care of this wound as well as TPN and treatment of his pulmonary embolus." 32. On March 5, 2007 Select Specialty dietary and wound care consultations were obtained. 33. On March 5, 2007 at Holy Spirit Hospital, the operative report of Defendant, Kenneth W. Graf, M.D, and Asst. Serene Shereef, M.D., showed a Preop &Prostop. Diag. Of "56 yo male with inoperable abdominal disease due to adhesive bowel disease. Has an open wound and an enterocutaneous fistula in the right side of the wound.." The operation was described as "Grafting and reconstruction of the abdominal wall using AlloDerm, a 6x12, and stated that "...the open abdominal wound measured 15 x 4 and 15 x 6 centimeters, surrounding a maturing GI cutaneous fistula. The area was irrigated until clear. The fistula was then controlled. I could feel both the afferent and efferent aspects of the fistula and a Mallinckrodt catheter #20 was placed within the -9- opening of the bowel and secured. I used some tissue glue-and alloderm graft was then brought into the field...." 34. On June 6, 2007 the Select Speciality Hospital discharge summary listing 4.20.2007 as the admission date, dictated by Howard Cohen, M.D., stated that the " patient is a 55 year old Caucasian gentleman, who was transferred to select Speciality Hospital from Holy Spirit Hospital, following small bowel obstruction. The pt. was unable to be definitively repaired .... He had developed a fistula from the small bowel to the abdominal wall. He was transferred to Select Specialty Hospital for continuation of antibiotic treatment, continued treatment of the complication of pulmonary embolization, and continued wound care. The patient did generally well, however, we were unable to adequately deal with his drainage. He did have skin grafting with Apligraf, which did breakdown secondary to the leakage, without success. The attending surgeon, Dr. Kenneth Graf eventually felt that enough time had passed that a surgical team could be utilized to definitively close the fistula, and repair the small bowel. The patient is thus transferred to Johns Hopkins Hospital for this to occur." The condition at discharge is noted as "(o)ther than the difficulty with containing the fistula drainage, the patient's final examination was unremarkable, and there were no other continuing issues. He stated that "Dr. Graf is having doctor-to-doctor consultation with Johns Hopkins Hospital, and also with insurance company, to assure transfer and coverage." 35. On June 6, 2007 the Holy Spirit Hospital Discharge Summary (ADM Date: 4.17.2007) by Defendant, Kenneth W. Graf, M.D., stated that the patient "began to leak large amounts of perhaps a liter a day through fistula making it again a high out output fistula and difficult to control. This has resolved again since placing him back on only clear liquids. He shows no evidence of distal obstruction. A large amount of output His abdomen is soft, nontender. Under Final Diagnosis, -10- he stated that this is "a 56 y.o. white male. Kirk was a pt, had inoperable bowel obstruction due to adhesive bowel disease. On the reoperation following his original surgery which was done for internal hernia with obstructive closed loop obstruction and necrotic bowel Peristalsis and bowel activity never resumed after the original surgery. Incidentally the adhesions were from a perforated appendix approximately 15 years ago which was also complicated by reoperation for bowel obstruction but for 15 years Kirk Love has been doing fine up until the time when he was readmitted. He has psittacosis from pigeon handling forcing him to give up his carrier pigeon hobby. He was readmitted on the 13'b day of April 2007 because of infection and necrosis fo the skin and subcutaneous tissue of the lower portion of his wound. He had a fairly large wound with an enterocutaneous fistula in the lower right aspect of this wound. I felt we could probably control this at home, however the complexity of the wound prevented this from being satisfactorily accomplished. He was readmitted because of severe pain dehydration. At the time of this admission he was also found to have suffered a pulmonary embolus while bedfast at home. He was stabilized and transferred to Select Med on the fifth floor was done. He, because of the area of the fistula vac dressing was overwhelmed and enteric fluids and succus continue to bath the very delicate granulation tissue. We attempted numerous appliances. The vac originally worked to decrease by half the size of the abdominal wall defect however, this particular improvement has stopped. We are able to improve slowly but every time he improves a bit a new problem occurs and we lose some ground. I spoke with the John's Hopkins Medical Center and I believe I have exhausted my armament of possibilities of care .... His echocardiogram done following his readmission was normal Left ventricle systolic function. No evidence of mitral regurgitation, no evidence of stenosis or insufficiency of the aortic valve. His venous duplex shows no evidence of -11- venous thrombosis of either lower extremities, no evidence of his CT scan done on admission April 17, 2007 showed consistent with focal pulmonary embolus of the left lower lobe pulmonary artery. Some contrast in the non-dilated colon normal abdominal aorta." Under Conclusion, he noted the " Pulmonary embolus within the left lower lobe pulmonary artery. Injection of the fistula shows opacifica.tion of distant jejunum and ilial bowel loops. Postoperative change of the abdomen with adhesions and multiple bowel loops of the anterior abdominal wall. No evidence of obstruction. Small nodular density of the right middle lobe through which a CT scan is recommended. The pt was stabilized, he was then transferred to Select Medical and LTAC long term acute care facility. He has been here on the service of Dr. Howard Cohen who admitted him in transfer and has taken excellent care of Mr. Love. He was originally on total parenteral nutrition. He does have an indwelling Mediport and his wound care has been surgical nightmare. He feels well and with the exception of the drainage which excoriates and burns the skin and soft tissue around the fistula. " 36. On June 8, 2007, from Select Speciality Hospital, under wound care designation, Cathleen Markley, RN, BS, CWOCN, noted that "Pt. Presents with a midline abdominal wound with entero-cutaneous fistula in the right border. Numerous attempts at fistula drainage management have been attempted. At present pt has a Nu-Hope molded appliance with a rigid diamond shape convex pouch. (A custom molded pouch- sample only) The pouch has been successful when the pt is supine and even when he is walking. It has failed with sitting on the side of the bed due to its rigidity. We have added wall suction placed inside the pouch after a leak. The difficulty is the wound bed on the left side of the fistula site. We had been successful in managing the drainage with a variety of systems. With a regular diet the wall suction wafer/dome system that had been working, allowing wound closure, failed due to clogging with food particles.... Initially Mr. -12- Love has had success with the KCI wound vac with the chronic fistula protocol. We have also used many pouch/wafer combos to wall suction. A dome suction device dropped the fistula output for several days allowing wound improvement With the increased diet the wound again deteriorated and increased the pouch failure has continued. Mr. Love has been decreased to a clear liquid diet and wall suction has aided in pouch management The peri-wound areas is treated with stoma powder and skin prep. The wound bed has prisma under the foam wafer with paste border to fistula." 37. Plaintiff, Kirk Love, was transferred to Johns Hopkins Hospital in Baltimore, Maryland on June 9, 2007 with diagnoses of pulmonary embolism, chronic anticoagulation, enterocutaneous fistula, and chronic TPN need. A well-functioning wound management system was put in place for the first time in many months. 38. Plaintiff, Kirk Love, was discharged to his home on June 16, 2007 to wait a number of months with the new wound care program "to mature the soft tissue and allow the inflammatory process to decrease." 39. On October 5, 2007, Plaintiff, Kirk Love, was operated on by Kurtis Campbell M.D., and Anthony Tufaro, M.D., at Johns Hopkins Hospital. Dr. Tufaro's operative report indicated a "severely devastated abdominal cavity and abdominal wall with a small bowel fistula and also the unique finding of multiple prolene sutures going through the bowel wall and tacking the bowel up to the patient's peritoneal wall. Apparently, the bowel was caught up in th Prolene sutures used for closure. Also, severe adhesions throughout the abdominal cavity causing adhesions from small bowel to small bowel, small bowel to skin and subcutaneous fat and fascia, making this a very difficult operation. Also found was a small enterocataneous fistula draining in the surgical portion -13- of the abdomen with excoriated skin and large open wound." 40. At the time of the October 5, 2007 procedure, Dr. Campbell encountered "extensive adhesions to the parietal peritoneum and as well multiple loops incarcerated and adherent into the hernia sac." According to his note, "extensive amount of effort was required to lengthen the incision in the peritoneal cavity and navigate through the peritoneal cavity and identify the anatomy of the small bowel ...The adhesions were quite dense and more notably there were several loops of small bowel which were entrapped with polypropylene suture; the bowel was adherent to the abdominal wall and sewn to the abdominal wall with polypropylene suture in several locations." According to Dr. Campbell, these sutures "appeared to be sutures utilized in closure of his abdominal wall incision previously" and "was in relative close proximity to the enterocutaneous fistula." COUNTI Plaintiff Kirk Love v Defendant Kenneth W. Graf, M.D. 41. The preceding paragraphs are incorporated herein by reference as though fully set forth. 42. Defendant, Kenneth W. Graf, M.D., failed to provide reasonable care, caused injury, and/or increased the risk of harm to Plaintiff, Kirk Love, as follows: a) Failing properly to examine, evaluate, and treat Kirk Love from February 16, 2007 to June 7, 2007; b) Failing to recognize Kirk Love's symptoms and properly treat same; c) Failing to recognize the severity of Kirk Love's conditions; d) Failing to order appropriate tests to determine the source/cause of Kirk Love's conditions; e) Failing to consider/make a differential diagnosis and/or failing to order tests or -14- take appropriate actions to confirm or rule out a differential diagnosis; f) Ignoring Kirk Love's condition and/or failing to find/attempt to find a source/cause of the condition; g) Sewing the bowel to the abdominal wall with polypropylene suture in several locations; h) Failing to refer Kirk Love to a surgeon or other expert or failing to inform him to be seen by a more qualified physician; i) Although Kirk Love had concerns about the care provided to him, the Defendants held out expertise intended to induce him to believe that adequate and proper care was provided when, in fact, it was not. j) Failing to treat his condition; and k) Being dismissive of information and symptomatology.. 43. As a direct and proximate result of the conduct as set forth above, the Plaintiff, Kirk Love, suffered as follows: a) prolonged and chronic pain and suffering and emotional distress, mental anguish and humiliation; b) scarring, disfigurement and embarrassment; c) the need for continuing medical treatment, care and attention, and medical expenses; d) a loss of earnings and a loss of earnings capacity; e) a loss of life's pleasures; and f) such other damages as properly allowed by Pennsylvania law, including but not -15- limited to incidental costs as a result of his wife having to lose work in order to care for him. WHEREFORE, Plaintiff, Kirk Love, demands that judgment be entered against Defendant, Kenneth W. Graf, M.D., for an amount in excess of the limits of arbitration exclusive of interest and costs of prosecution. COUNT II Plaintiff Kirk Love v Defendant Susquehanna Surgeons. Ltd. 44. The preceding paragraphs are incorporated herein as though fully set forth. 45. Defendant, Kenneth W. Graf, M.D., was an employee, agent or servant of Defendant, Susquehanna Surgeons, Ltd., at the time of the occurrences alleged herein. 46. At all relevant times hereto, Defendant, Kenneth W. Graf, M.D., was acting within the scope of his employment with Defendant, Susquehanna Surgeons, Ltd. 47. Defendant, Susquehanna Surgeons, Ltd., is vicariously liable for the acts or omissions of Defendant, Kenneth W. Graf, M.D., as though Defendant, Susquehanna Surgeons, Ltd., performed the acts or omissions itself. 4$. As a direct and proximate result of the conduct as set forth above, the Plaintiff, Kirk Love, has suffered as follows: a) prolonged and chronic pain and suffering and emotional distress, mental anguish and humiliation; b) scarring, disfigurement and embarrassment; c) the need for continuing medical treatment, care and attention, and medical expenses; -16- d) a loss of earnings and a loss of earnings capacity; e) a loss of life's pleasures; and f ) such other damages as a properly allowed by Pennsylvania law. WHEREFORE, Plaintiff, Kirk Love, demands that judgment be entered against Defendant, Susquehanna Surgeons, Ltd., for an amount in excess of the limits of arbitration exclusive of interest and costs of prosecution. COUNT III Plaintiff Shirley Love v. Defendants 49. The preceding paragraphs are incorporated herein as though fully set forth. 50. At all relevant times herein, Plaintiff, Shirley Love, and Plaintiff, Kirk Love, were lawfully and continuously married. 51. As a direct and proximate result of the conduct by the Defendants, Kenneth W. Graf, M.D., and Susquehanna Surgeons, Ltd., as set forth above, the Plaintiff, Shirley Love, has suffered a loss of society, companionship and consortium of her husband, Plaintiff, Kirk Love. WHEREFORE, Plaintiff, Shirley Love, demands that judgment be entered against Defendants, Kenneth W. Graf, M.D., and Susquehanna Surgeons, Ltd., jointly and severally, for an amount in excess of the limits of arbitration exclusive of interest and costs of prosecution. Respectfully submitted: DATED: / 0 Leslie M. Fields, Esquire I.D. No. 29411 COSTOPOULOS, FOSTER & FIELDS 831 Market Street/P.O. Box 222 Lemoyne, Pennsylvania 17043 Phone: 717.761.2121 Fax: 717.761.4031 Web: www.Costopoulos.com ATTORNEY FOR PLAINTIFFS -17- VERIFICATION I, Plaintiff, Kirk Love, do hereby verify that the statements made in the foregoing document are true and correct to the best of my information and belief. I understand that false statements made herein are subject to the penalties at 18 Pa.C.S.A. 4904 relating to unsworn falsification to authorities. By: ? ?k A), -Alz Kirk Love DATED: June ; , 2009. VERIFICATION I, Plaintiff, Shirley Love, do hereby verify that the statements made in the foregoing document are true and correct to the best of my information and belief. I understand that false statements made herein are subject to the penalties at 18 Pa.C.S.A. 4904 relating to unswom falsification to authorities. By: '2" Shirley Love DATED: June__ _ _, 2009. CERTIFICATE OF SERVICE 1, Leslie M. Fields, Esquire, hereby certify that on this 2 day of X2009, a true and correct copy of the foregoing Plaintiffs Complaint was served upon all counsel of record by: Hand Delivery X First Class Mail, Postage Pre-Paid Certified Mail, Return Receipt Requested Fax Transmission Overnight Mail at the following address(es) and/or number(s): Michael D. Pipa, Esquire STEVENS & LEE 17 North Second Street, 16th Floor Harrisburg, PA 17101 Co ures el for Defen da n is COSTOPOULOS, FOSTER & FIELDS ???e M. Fields, Esquire 17 COSTOPOULOS, FOSTER & FIELDS By: Leslie M. Fields, Esquire I.D. No. 29411 831 Market Street Lemoyne, PA 17043-0222 Tel.: (717) 761-2121 Fax: (717) 761-4031 Attorneys for Plaintiffs KIRK LOVE and SHIRLEY LOVE, his wife, Plaintiffs IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA : MEDICAL MALPRACTICE V. KENNETH W. GRAF, M.D., SUSQUEHANNA SURGEONS, LTD., t/d/b/a SUSQUEHANNA SURGEONS, A DIVISION OF HERITAGE MEDICAL GROUP, LLP, Defendants : No.: 09-623 CIVIL ACTION - LAW JURY TRIAL DEMANDED PLAINTIFFS' RESPONSES TO DEFENDANTS' FIRST SET OF INTERROGATORIES BACKGROUND 1. With respect to Plaintiff Kirk Love, please state the place and date of birth, all members of immediate family, and where applicable, current place of residence. Answer Kirk W. Love Shirley L. Love Shawn W. Love Alycia L. McClucas Jacquelyn S. Bucher Harrisburg, PA Harrisburg, PA Harrisburg, PA Camp Hill, PA Harrisburg, PA 01/14/1951 Newport, PA 04/02/1950 Newport, PA 07/16/1971 Nottingham, PA 04/24/1976 Newport, PA 06/12/1979 New Bloomfield, PA 2. Please state the educational history of Plaintiff Kirk Love, identifying institutions of learning, dates of attendance and all degrees, honors and awards. Answer: Graduated High School - Susquenita High School, 1968 Graduated Municipal Police Training - Act 120 - State Police Academy, 1978 3. Please state in detail the employment history of Plaintiff, including the identity of all employers for the last (10) years, stating the duration of each employment, employment capacity and duties, and monthly salary or wages earned. Answer Norfolk Southern Rail Road Corporation - June 1999 to Present Railroad Policeman - Protection of Railroad and employees 1999 509*122.00 2000 41,733.85 2001 43,707.35 2002 44,920.51 2003 44,083.44 2004 47,326.18 2005 49,886.14 2006 50,233.44 2007 33,316.44 2008 43,761.29 4. Please state whether either Plaintiff has ever filed any other lawsuits seeking recovery for any type of personal injury, and if so, state the court, term and number of the case, the underlying facts, whether either Plaintiff has given a deposition, and the present status of the litigation. Answer: EXPERTS Not applicable. 5. Pursuant to Pa.R.C.P. No. 4003.5, please identify each witness Plaintiffs expect to call as an expert at trial, and state the qualifications of each such expert. Answer: Undetermined at present; will supply when determined to the extent required by the Pennsylvania Rules of Civil Procedure. 6. Pursuant to Pa.R.C.P. No. 4003.5, for each expert identified, please state the subject matter to which he or she is to testify, the substance of facts and opinions to which he or she is to testify and the basis for each opinion. Answer: Undetermined at present; will supply when determined to the extent required by the Pennsylvania Rules of Civil Procedure. 7. Identify sufficiently for a request for production, all texts, journals, documents, reports, photographs, diagrams, statistics or other material which each expert identified in the previous interrogatory consulted or relied upon in forming his/her opinion or in preparing their testimony. (In lieu of answering Interrogatories numbers 5 through 7, Plaintiffs may serve a signed report from each expert) Answer: Objection. To the extent this interrogatory seeks information that exceeds to scope of permissible discovery, it is objected to. Without waiving this objection, information regarding expert testimony is undetermined at present and will be supplemented when determined to the extent required by the Pennsylvania Rules of Civil Procedure. 8. Please set forth the number of times each expert identified by Plaintiffs has previously evaluated and/or testified in a medical negligence case. Answer: Objection. To the extent this interrogatory seeks information that exceeds to scope of permissible discovery, it is objected to. 9. For each expert identified by Plaintiffs, please set forth the amount of annual income said expert(s) have earned the past 10 years from review and/or testimony in medical negligence claims. Answer: Objection. To the extent this interrogatory seeks information that exceeds the scope of permissible discovery, it is objected to. 10. Please set forth the number of medical negligence cases that the experts identified in answer to interrogatory number 5 have reviewed for the law firm of COSTOPOULOS, FOSTER & FIELDS in the last 10 years, and the number of times the expert testified by way of provision of a written report, giving a deposition or trial testimony. Answer: Objection. To the extent this interrogatory seeks information that exceeds to scope of permissible discovery, it is objected to. 11. Please set for the amount of income received by each expert identified above from payments made by COSTOPOULOS, FOSTER & FIELDS and/or its clients in the past 10 years. Answer: Objection. To the extent this interrogatory seeks information that exceeds to scope of permissible discovery, it is objected to. 12. Identify all documents which your expert(s) intend(s) to use at trial, including but not limited to any authoritative text or journal to be used at trial. Answer: Objection. To the extent this interrogatory seeks information that exceeds to scope of permissible discovery, it is objected to. Without waiving this objection, information regarding expert testimony is undetermined at present and will be supplemented when determined to the extent required by the Pennsylvania Rules of Civil Procedure. WITNESSES 13. Please identify all persons known to Plaintiffs, other than their counsel, who have any knowledge of or information as to the facts pertaining to the subject of this litigation or the acts of negligence averred. Answer: Plaintiffs, defendants and all medical personnel who were involved in the treatment and care of plaintiff. 14. Please identify all witnesses other than experts already identified, whom Plaintiffs intend to call at trial, and state the facts to which each such witness will testify. Answer: Objection. To the extent this interrogatory seeks information that exceeds to scope of permissible discovery, it is objected to. Without waiving this objection, information regarding potential trial testimony is undetermined at present and will be supplemented when determined to the extent required by the Pennsylvania Rules of Civil Procedure. 15. If Plaintiffs or anyone on their behalf obtained statements, reports, memoranda or testimony in any form, from any person regarding or relating to this litigation, please state the identity of each person making each such statement or report, in whose presence it was made, the date and place, number of pages, whether it was signed and who presently has custody if it. Answer: Objection. Plaintiff objects to this interrogatory to the extent that: 1. It is overly broad, unduly burdensome and not reasonably calculated to lead to the discovery of admissible evidence; 2. It seeks the discovery of information not permitted by the Pennsylvania Rules of Civil Procedure; and 3. It seeks discovery of information or materials which (a) are protected by the attorney client privilege; (b) are the work product of the plaintiffs attorney; (c) would require the disclosure of the mental impressions of plaintiff's attorney; (d) would require the disclosure of conclusions, opinions, memoranda, notes, summaries, legal research, or legal theories of plaintiff's attorney; or (e) would require the disclosure of the mental impressions, conclusions or opinions respecting the value or merit of plaintiffs claim, or respecting strategy or tactics. Plaintiff further objects to the defendant's interrogatories to the extent that discovery is continuing and that the investigation and discovery of facts and evidence, and the analysis of same, is not complete. Accordingly, plaintiffs responses to interrogatories are based on information presently available. 16. If Plaintiff or anyone on their behalf knows of any photographs, motion pictures, drawings or other descriptive documents in any way relating to the subject of this litigation, please state the nature, subject matter, date made or taken, identify of person making or taking same, and who has custody of it. Answer: See answer to 15. 17. Do Plaintiffs intend to use any book, magazine or other writing at the trial of this matter, and if so, please describe in writing in detail as to author, publisher and copyright date, and state the identify of each present custodian of said writing. Answer: See answer to 15. 18. Please identify sufficiently for a request for production, all writings, notes, records or other documents and the nature of any communications between Plaintiffs and any insurance carrier or attorney, not otherwise privileged, which relate to the subject matter of this litigation. Answer: See answer to 15. 19. Please identify sufficiently for a request for production, the conclusion and findings of al investigations made by Plaintiffs, or by anyone on their behalf, into the subject matter of this litigation. Answer DAMAGES See answer to 15. 20. Identify all payments made to Plaintiffs from any insurance policy(ies) as a result of the incident, and for each policy identified, please state all medical and wage loss payments made under such policy(ies), the date(s) of payment(s) and the payees. Answer: See insurance files from health insurer and disability carrier which have been requested by Plaintiffs, copies of which will be provided when Plaintiffs receive the documents. 21. With regard to any non-economic detriment for which Plaintiffs claims they entitled to received compensation, describe with particularity each separate and specific detriment for which compensation is sought. Answer: See complaint. 22. For all medical bills claimed to have been incurred that are related to the alleged negligence of Defendants, please provide the name and address of the health care provider, the date(s) and locations of service, a description of the service, and the amount of the bill for each service. Answer: See answer to 21. 23. To the extent that Plaintiff Kirk Love is asserting a wage loss claim, please state the employer's name and address, the last date of work, and the amount of compensation lost. Answer: See answer to #2 and #21. 24. If you allege that you are entitled to damages for any medical expenses arising out of the care and treatment rendered by Defendants, please identify by name and address, each health care provider, including hospitals where said treatment was received, the dates of treatment, together with the total amount of charges. Answer: See answer to #21. Below are some of the incidental expenses incurred: Out-of-Pocket Expenses: 2007 Legal fees when R.R. terminated his job 480.00 Prescriptions 1260.00 Doctor and Hospital 1595.00 Medical Supplies for Apria and KCI 1032.91 Two parking passes for Johns Hopkins 80.00 Food Expense while visiting both hospitals 440.00 Lodging two night at Johns Hopkins 99.75 Mileage for local doctors appointments and 1026 miles prescriptions pick-up Mileage to and from Johns Hopkins for 2040 miles doctors appointments and visitation Mileage to and from Holy Spirit Hospital 4560 miles for visitation Shirley Love Lost Wages approximately 1800.00 - 2000.00 Kirk Love R.R. made us pay back $3192.04 because they said we were overpaid 2008 Payment on doctor bills and medical supplies 1031.53 2009 Final payment on medical supplies from 2007 166.87 25. Did any form of medical insurance (including Medicare or Medicaid) pay any portion of Plaintiff's medical expenses being claimed? If so: a) please state the name of the insurer, the address and policy numbers of the medical insurance which paid any portion of said medical expenses. b) please indicate the total amount of medical expenses for each provider that was paid by any insurance carrier. Answer: Yes. See answer to #21. 26. Were any Plaintiff's medical expenses "written of', forgiven or otherwise not owed by reason of a contract or agreement between the medical care provider and medical insurer, or as a compromise of a bill between the medical care provider and Plaintiff, or for any other reason? If so, please identify the amount of such medical expenses that were "written off', forgiven, or otherwise not owed. Answer: See answer to #21. Also, we were told that when they did the skin graft our insurance company would not pay it, and that Mr. Love's employer paid for it. We have no idea how much that was, but presumably, this should be included in the insurance documents requested. 27. Are any of the medical expenses being claimed personally owed, and therefore, not paid by insurance, or otherwise "written off'? If so, please identify the health care provider(s) and the amount of the medical expenses personally owed by Plaintiff or her representatives. Please attach copies of any documentation reflecting the amounts of which Plaintiff was or are personally responsible. Answer: See answer to #24. TREATMENT TO PLAINTIFF KIRK LOVE BY DEFENDANTS 28. State the circumstances which led Plaintiff to become a patient of each Defendant issuing these interrogatories. Please be specific as to each Defendant being referenced. Answer: See complaint. Plaintiff went to the emergency department. 29. For each occasion each Defendant and/or any servant, agent or employee of each Defendant, attended, examined, treated, or rendered any other medical service, please state the date(s), place, type of and reason for the service, describe any permanent disability or residual effect suffered by Plaintiff as a result of it, and identify each individual who provided said care or treatment. Answer: See complaint and medical records. 30. State if Plaintiff, or anyone on his behalf, gave any Defendant, or any agent, servant or employee of any Defendant, information concerning his medical history, and if so, state the date, place, a description of the history given, what, if any, information was withheld or otherwise not mentioned, and please identify the individual(s) who was/were given the information. Answer: See medical records. 31. State if any Defendant, or any agent, servant or employee of any Defendant, gave Plaintiff, or anyone on his behalf, any information as to his condition, stating the date, a description of the information given, to whom said information was given and any witnesses to the conversation(s). Answer: See medical records. 32. State if prior to treating Plaintiff, did any Defendant, or any agent servant or employee of any Defendant, explain to Plaintiff or anyone on his behalf, the treatment they proposed to give him, stating the date, a description of the explanation given, who gave the explanation, and the identify of any witnesses to the conversation. Answer: See medical records. 33. State whether Plaintiff or anybody on his behalf, understood the information referenced in Interrogatory number 32, and if not, what action they or anyone on his behalf took in order to understand what was explained. Answer: See medical records. 34. State each fact known to Plaintiff or anyone on his behalf, which she intends to prove to establish that each Defendant was negligent and, therefore, liable for the alleged injuries and damages. Answer: See answer to 15. 35. Identify specifically each record or document, including individual pages from hospital charts, doctors' and nurses' notes, bedside entries, tests results, lab reports, x-ray reports and all other notes or writings which support Plaintiffs' allegations of negligence and basis of liability. Answer: See answer to 15. 36. Please identify by full name and address, each physician with whom Plaintiff treated or consulted within the 10 years. Answer All physicians whose names are reflected in the records of Susquehanna Surgeons, Heritage Medical Group, 532 North Front Street, Wormleysburg, PA 17043 All physicians whose names are reflected in the records of Holy Spirit Hospital, 503 North Front Street, Camp Hill, Pa 17011 All physicians whose names are reflected in the records of Select Specialty Care, 503 North Front Street, Fifth Floor, Camp Hill, PA 17011 All physicians whose names are reflected in the records of Johns Hopkins Hospital, 600 North Wolfe Street, Baltimore, MD 21287 Kurtis Campbell, M.D., Annapolis Surgical Oncology Associates, 600 Ridgely Avenue, Suite 222, Annapolis, MD 21401 Moffit Heart & Vascular, 4250 Crums Mill Road, Suite 101, Harrisburg, PA 17110 Dr. George P. Org, 850 Walnut Bottom Road, Carlisle, PA 17110 Dr. Philip Carey, 360 Alexander Spring Road, Carlisle, PA 17013 Dr. Patrick Bolden, 51 Business Campus Way, Duncannon, PA 17020 Dr. Kendra Davis, 506 South State Road, Marysville, PA 17053 37. Please identify any/all letters, written narratives, diaries and/or summaries of any kind, not privileged, prepared fully or in part by Plaintiff or by anyone on his behalf, which include references to the events and allegations that are the subject of this law suit. Answer: See answer to 15. LOSS OF CONSORTIUM INTERROGATORIES OF SHIRLEY LOVE 38. In what way do you claim that you have lost the society, companionship, assistance and consortium of your spouse? Answer: See complaint and answer to 15. 39. Indicate the amount of damages claimed as a result of the loss of consortium and the method by which you computed or determined this amount? Answer: See complaint and answer to 15. Dated: November 10, 2009 COSTOPOULOS, FOSTER & FIELDS CB y: ,GC eslie MM) Fields, Esquire I.D. No.: 29411 831 Market Street/P.O. Box 222 Lemoyne, PA 17043 Tel.: (717) 761-2121 Attorney for Plaintiffs CERTIFICATE OF SERVICE I, Leslie M. Fields, Esquire, hereby certify that on this 10th day of November 2009, a true and correct copy of the foregoing document was served upon all counsel of record by: Hand Delivery X First Class Mail, Postage Pre-Paid Certified Mail, Return Receipt Requested Fax Transmission Overnight Mail at the following address(es) and/or number(s): Michael D. Pipa, Esquire STEVENS & LEE 17 North Second Street, 16'' Floor Harrisburg, PA 17101 Counsel for Defendants COSTOPOULOS, FOSTER & FIELDS eslie M. fields, Esquire COSTOPOULOS, FOSTER & FIELDS By: Leslie M. Fields, Esquire I.D. No. 29411 831 Market Street Lemoyne, PA 17043-0222 Tel.: (717) 761-2121 Fax: (717) 761-4031 KIRK LOVE and SHIRLEY LOVE, his wife, Plaintiffs V. Attorneys for Plaintiffs IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA : MEDICAL MALPRACTICE No.: 09-623 KENNETH W. GRAF, M.D., SUSQUEHANNA SURGEONS, LTD., t/d/b/a SUSQUEHANNA SURGEONS, A DIVISION OF HERITAGE MEDICAL GROUP, LLP, Defendants CIVIL ACTION - LAW JURY TRIAL DEMANDED PLAINTIFFS' RESPONSES TO DEFENDANTS CONTENTION INTERROGATORIES Plaintiff objects to and has ignored the "Definitions" and "Instructions" preceding the defendant's interrogatories to the extent that they go beyond the Pennsylvania Rules of Civil Procedure. Plaintiff objects to definitions contained in defendants' interrogatories to the extent that they are overly broad, vague and inconsistent with the normal usage and meaning of the words defined therein. Plaintiff further objects to the definitions and instructions section of said interrogatories on the grounds that such instructions constitute an unreasonable expansion of a party's obligation to respond to discovery under the Pennsylvania Rules of Civil Procedure. The general objections asserted above shall be deemed applicable to and continuing with respect to each interrogatory being responded to herein. The general objections asserted above are incorporated into each and every response set forth herein. Such objections are not waived, nor in any way limited, by any response to any specific interrogatory or request. Plaintiff reserves the right to amend, supplement, or alter is response to each interrogatory herein at any time hereafter INTERROGATORIES 1. Please state with specificity, by reference to specific medical records where appropriate, when and how Plaintiffs allege that Dr. Kenneth Graf failed to properly "examine, evaluate and treat Kirk Love during the period from February 16, 2007 to June 7, 2007." See Plaintiffs' Compliant, at ¶42(a). Defendant request that Plaintiffs do not cite generally or specifically to Plaintiffs' Complaint or generally to Plaintiffs' medical records in response hereto. ANSWER: Objection. This case is in the early stages of discovery. This response will be supplemented as appropriate information may be developed during discovery, to the extent required by rule of court. Plaintiff also objects to defendant's interrogatory to the extent that: 1. It is overly broad, unduly burdensome and not reasonably calculated to lead to the discovery of admissible evidence; 2. It seeks the discovery of information not permitted by the Pennsylvania Rules of Civil Procedure; and 3. it seeks discovery of information or materials which (a) are protected by the attorney client privilege; (b) are the work product of the plaintiffs attorney; (c) would require the disclosure of the mental impressions of plaintiffs attorney; (d) would require the disclosure of conclusions, opinions, memoranda, notes, summaries, legal research, or legal theories of plaintiffs attorney; or (e) would require the disclosure of the mental impressions, conclusions or opinions respecting the value or merit of plaintiffs claim, or respecting strategy or tactics. Plaintiff further objects to the defendant's interrogatory to the extent that discovery is continuing and that the investigation and discovery of facts and evidence, and the analysis of same, is not complete. 2. Please state with specificity, by reference to specific medical records where appropriate, what "symptoms" Plaintiffs allege that Dr. Graf failed to recognize and properly treat and when he allegedly failed to treat them. See Plaintiffs' Complaint, at ¶42(b). Defendants request that Plaintiffs do not cite generally or specifically to Plaintiffs' Complaint or generally to Plaintiffs' medical records in response hereto. ANSWER: Objection. This case is in the early stages of discovery. This response will be supplemented as appropriate infonnation may be developed during discovery, to the extent required by rule of court. Plaintiff also objects to defendant's interrogatory to the extent that: 1. It is overly broad, unduly burdensome and not reasonably calculated to lead to the discovery of admissible evidence; 2. It seeks the discovery of information not permitted by the Pennsylvania Rules of Civil Procedure; and 3. it seeks discovery of information or materials which (a) are protected by the attorney client privilege; (b) are the work product of the plaintiffs attorney; (c) would require the disclosure of the mental impressions of plaintiffs attorney; (d) would require the disclosure of conclusions, opinions, memoranda, notes, summaries, legal research, or legal theories of plaintiffs attorney; or (e) would require the disclosure of the mental impressions, conclusions or opinions respecting the value or merit of plaintiffs claim, or respecting strategy or tactics. Plaintiff further objects to the defendant's interrogatory to the extent that discovery is continuing and that the investigation and discovery of facts and evidence, and the analysis of same, is not complete. 3. Please state with specificity, by reference to specific medical records where appropriate, what "conditions" Plaintiffs allege that Dr. Graf failed to recognize and properly treat and when Plaintiffs allege that Dr. Graf failed to treat them. See Plaintiffs' Complaint, at ¶42( c). Defendants request that Plaintiffs do not cite generally or specifically to Plaintiffs' Complaint or generally to Plaintiffs' medical records in response hereto. ANSWER: Objection. This case is in the early stages of discovery. This response will be supplemented as appropriate information may be developed during discovery, to the extent required by rule of court. Plaintiff also objects to defendant's interrogatory to the extent that: 1. It is overly broad, unduly burdensome and not reasonably calculated to lead to the discovery of admissible evidence; 2. It seeks the discovery of information not permitted by the Pennsylvania Rules of Civil Procedure; and 3. it seeks discovery of information or materials which (a) are protected by the attorney client privilege; (b) are the work product of the plaintiffs attorney; (c) would require the disclosure of the mental impressions of plaintiffs attorney; (d) would require the disclosure of conclusions, opinions, memoranda, notes, summaries, legal research, or legal theories of plaintiffs attorney; or (e) would require the disclosure of the mental impressions, conclusions or opinions respecting the value or merit of plaintiffs claim, or respecting strategy or tactics. Plaintiff further objects to the defendant's interrogatory to the extent that discovery is continuing and that the investigation and discovery of facts and evidence, and the analysis of same, is not complete. 4. a) Please state with specificity, by reference to specific medical records where appropriate, what tests Plaintiff allege that Dr. Graf failed to order and when Plaintiffs alleged that they should have been ordered. See Plaintiffs' Complaint, at 142(d). Defendants request that Plaintiffs' medical records in response hereto. b) Please also identify what "conditions" were contemplated by Plaintiffs in Plaintiffs' Complaint, at 142(d). Defendants request that Plaintiffs do not cite generally or specifically to Plaintiffs' Complaint or generally to Plaintiffs' medical records in response hereto. ANSWER: Objection. This case is in the early stages of discovery. This response will be supplemented as appropriate information may be developed during discovery, to the extent required by rule of court. Plaintiff also objects to defendant's interrogatory to the extent that: 1. It is overly broad, unduly burdensome and not reasonably calculated to lead to the discovery of admissible evidence; 2. It seeks the discovery of information not permitted by the Pennsylvania Rules of Civil Procedure; and 3. it seeks discovery of information or materials which (a) are protected by the attorney client privilege; (b) are the work product of the plaintiffs attorney; (c) would require the disclosure of the mental impressions of plaintiffs attorney; (d) would require the disclosure of conclusions, opinions, memoranda, notes, summaries, legal research, or legal theories of plaintiffs attorney; or (e) would require the disclosure of the mental impressions, conclusions or opinions respecting the value or merit of plaintiffs claim, or respecting strategy or tactics. Plaintiff further objects to the defendant's interrogatory to the extent that discovery is continuing and that the investigation and discovery of facts and evidence, and the analysis of same, is not complete. 5. Please state with specificity, by reference to specific medical records where appropriate, a) what Plaintiff believes that Dr. Graf failed to consider and when he failed to do so as alleged by Plaintiffs in Plaintiffs' Complaint, at ¶42(e) where Plaintiffs allege that Dr. Graf "fail[ed] to consider/make differential diagnosis"; b) what tests Plaintiff allege that Dr. Graf should have ordered and when and why said tests should have been ordered as alleged by Plaintiffs in Plaintiffs' Complaint, at ¶42(e); C) what actions Plaintiffs believe that Dr. Graf should have taken and when he should have taken them as alleged by Plaintiffs' Complaint, at ¶42(e) where Plaintiffs allege that Dr. Graf "failed to take appropriate actions to confirm or rule out a differential diagnosis"? See Plaintiffs' Complaint, at 142(e). Defendants request that Plaintiffs do not cite generally or specifically to Plaintiffs' Complaint or generally to Plaintiffs' medical records in response hereto. ANSWER: Objection. This case is in the early stages of discovery. This response will be supplemented as appropriate information may be developed during discovery, to the extent required by rule of court. Plaintiff also objects to defendant's interrogatory to the extent that: 1. It is overly broad, unduly burdensome and not reasonably calculated to lead to the discovery of admissible evidence; 2. It seeks the discovery of information not permitted by the Pennsylvania Rules of Civil Procedure; and 3. it seeks discovery of information or materials which (a) are protected by the attorney client privilege; (b) are the work product of the plaintiffs attorney; (c) would require the disclosure of the mental impressions of plaintiffs attorney; (d) would require the disclosure of conclusions, opinions, memoranda, notes, summaries, legal research, or legal theories of plaintiffs attorney; or (e) would require the disclosure of the mental impressions, conclusions or opinions respecting the value or merit of plaintiffs claim, or respecting strategy or tactics. Plaintiff further objects to the defendant's interrogatory to the extent that discovery is continuing and that the investigation and discovery of facts and evidence, and the analysis of same, is not complete. 6. Please state with specificity, by reference to specific medical records where appropriate, when Plaintiffs alleged that Dr. Graf ignored Kirk Love's condition and what condition(s) that Plaintiffs allege was ignored. See Plaintiffs' Complaint, at 142(f). Defendants request that Plaintiffs do not cite generally or specifically to Plaintiffs' Complaint or generally to Plaintiffs' medical records in response hereto. ANSWER: Objection. This case is in the early stages of discovery. This response will be supplemented as appropriate information may be developed during discovery, to the extent required by rule of court. Plaintiff also objects to defendant's interrogatory to the extent that: 1. It is overly broad, unduly burdensome and not reasonably calculated to lead to the discovery of admissible evidence; 2. It seeks the discovery of information not permitted by the Pennsylvania Rules of Civil Procedure; and 3. it seeks discovery of information or materials which (a) are protected by the attorney client privilege; (b) are the work product of the plaintiffs attorney; (c) would require the disclosure of the mental impressions of plaintiffs attorney; (d) would require the disclosure of conclusions, opinions, memoranda, notes, summaries, legal research, or legal theories of plaintiffs attorney; or (e) would require the disclosure of the mental impressions, conclusions or opinions respecting the value or merit of plaintiffs claim, or respecting strategy or tactics. Plaintiff further objects to the defendant's interrogatory to the extent that discovery is continuing and that the investigation and discovery of facts and evidence, and the analysis of same, is not complete. 7. a) Please state with specificity, by reference to specific medical records where appropriate, when Plaintiffs allege that Dr. Graf should have referred Plaintiff Kirk Love to another surgeon or physician. See Plaintiffs' Complaint, at ¶42(h). Defendants request that Plaintiffs do not cite generally or specifically to Plaintiffs' Complaint or generally to Plaintiffs' medical records in response hereto. b) Please also identify the type of specialists to whom Plaintiff allege that Dr. Graf should have referred Mr. Love. See Plaintiffs' Complaint, at 142(h). Defendants request that Plaintiffs do not cite generally or specifically to Plaintiffs' Complaint or generally to Plaintiffs' medical records in response hereto. ANSWER: Objection. This case is in the early stages of discovery. This response will be supplemented as appropriate information may be developed during discovery, to the extent required by rule of court. Plaintiff also objects to defendant's interrogatory to the extent that: 1. It is overly broad, unduly burdensome and not reasonably calculated to lead to the discovery of admissible evidence; 2. It seeks the discovery of information not permitted by the Pennsylvania Rules of Civil Procedure; and 3. it seeks discovery of information or materials which (a) are protected by the attorney client privilege; (b) are the work product of the plaintiffs attorney; (c) would require the disclosure of the mental impressions of plaintiffs attorney; (d) would require the disclosure of conclusions, opinions, memoranda, notes, summaries, legal research, or legal theories of plaintiffs attorney; or (e) would require the disclosure of the mental impressions, conclusions or opinions respecting the value or merit of plaintiffs claim, or respecting strategy or tactics. Plaintiff further objects to the defendant's interrogatory to the extent that discovery is continuing and that the investigation and discovery of facts and evidence, and the analysis of same, is not complete. 8. Please state with specificity, by reference to specific medical records where appropriate, when and in what manner (verbally, in writing, electronically, etc.) that Plaintiffs allege that Defendants held out expertise intended to induce Plaintiff Kirk Love to believe that adequate and proper care was being provided and what care Plaintiffs alleged was improperly provided. See Plaintiffs' Complaint, at 142(1). Defendants request that Plaintiffs do not cite generally or specifically to Plaintiffs' Complaint or generally to Plaintiffs' medical records in response hereto. ANSWER: Objection. This case is in the early stages of discovery. This response will be supplemented as appropriate information may be developed during discovery, to the extent required by rule of court. Plaintiff also objects to defendant's interrogatory to the extent that: 1. It is overly broad, unduly burdensome and not reasonably calculated to lead to the discovery of admissible evidence; 2. It seeks the discovery of information not permitted by the Pennsylvania Rules of Civil Procedure; and 3. it seeks discovery of information or materials which (a) are protected by the attorney client privilege; (b) are the work product of the plaintiffs attorney; (c) would require the disclosure of the mental impressions of plaintiffs attorney; (d) would require the disclosure of conclusions, opinions, memoranda, notes, summaries, legal research, or legal theories of plaintiffs attorney; or (e) would require the disclosure of the mental impressions, conclusions or opinions respecting the value or merit of plaintiffs claim, or respecting strategy or tactics. Plaintiff further objects to the defendant's interrogatory to the extent that discovery is continuing and that the investigation and discovery of facts and evidence, and the analysis of same, is not complete. 9. Please state with specificity, by reference to specific medical records where appropriate, when and how Plaintiffs allege that Dr. Graf failed to treat Plaintiff's condition and what condition contemplated by Plaintiffs' Complaint, at ¶420). Defendants request that Plaintiffs do not cite generally or specifically to Plaintiffs' Complaint or generally to Plaintiffs' medical records in response hereto. ANSWER: Objection. This case is in the early stages of discovery. This response will be supplemented as appropriate information may be developed during discovery, to the extent required by rule of court. Plaintiff also objects to defendant's interrogatory to the extent that: 1. It is overly broad, unduly burdensome and not reasonably calculated to lead to the discovery of admissible evidence; 2. It seeks the discovery of information not permitted by the Pennsylvania Rules of Civil Procedure; and 3. it seeks discovery of information or materials which (a) are protected by the attorney client privilege; (b) are the work product of the plaintiffs attorney; (c) would require the disclosure of the mental impressions of plaintiffs attorney; (d) would require the disclosure of conclusions, opinions, memoranda, notes, summaries, legal research, or legal theories of plaintiffs attorney; or (e) would require the disclosure of the mental impressions, conclusions or opinions respecting the value or merit of plaintiffs claim, or respecting strategy or tactics. Plaintiff further objects to the defendant's interrogatory to the extent that discovery is continuing and that the investigation and discovery of facts and evidence, and the analysis of same, is not complete. 10. Please state with specificity, by reference to specific medical records where appropriate, when and in what manner (verbally, in writing, electronically, etc.), Plaintiffs allege that Dr. Graf was "dismissive of information and symptomatology", and what information and symptomatology was allegedly dismissed See Plaintiffs' Complaint, at ¶42(k). Defendants request that Plaintiffs do not cite generally or specifically to Plaintiffs' Complaint or generally to Plaintiffs' medical records in response hereto. ANSWER: Objection. This case is in the early stages of discovery. This response will be supplemented as appropriate information may be developed during discovery, to the extent required by rule of court. Plaintiff also objects to defendant's interrogatory to the extent that: 1. It is overly broad, unduly burdensome and not reasonably calculated to lead to the discovery of admissible evidence; 2. It seeks the discovery of information not permitted by the Pennsylvania Rules of Civil Procedure; and 3. it seeks discovery of information or materials which (a) are protected by the attorney client privilege; (b) are the work product of the plaintiffs attorney; (c) would require the disclosure of the mental impressions of plaintiffs attorney; (d) would require the disclosure of conclusions, opinions, memoranda, notes, summaries, legal research, or legal theories of plaintiffs attorney; or (e) would require the disclosure of the mental impressions, conclusions or opinions respecting the value or merit of plaintiffs claim, or respecting strategy or tactics. Plaintiff further objects to the defendant's interrogatory to the extent that discovery is continuing and that the investigation and discovery of facts and evidence, and the analysis of same, is not complete. Dated: d 2?` 1,2 COSTOPOULOS, FOSTER & FIELDS Leslie M. ields, Esquire I.D. No.: 29411 831 Market Street/P.O. Box 222 Lemoyne, PA 17043 Tel.: (717) 761-2121 Attorney for Plaintiffs CERTIFICATE OF SERVICE I, Leslie M. Fields, Esquire, hereby certify that on this 12th day of November 2009, a true and correct copy of the foregoing document was served upon all counsel of record by: Hand Delivery X First Class Mail, Postage Pre-Paid Certified Mail, Return Receipt Requested Fax Transmission Overnight Mail at the following address(es) and/or number(s): Michael D. Pipa, Esquire STEVENS & LEE 17 North Second Street, 16`h Floor Harrisburg, PA 17101 Counsel for Defendants COSTOPOULOS, FOSTER & FIELDS - - - "' _ Leslie . Fields, Esquire COSTOPOULOS, FOSTER & FIELDS By: Leslie M. Fields, Esquire I.D. No. 29411 831 Market Street Lemoyne, PA 17043-0222 Tel.: (717) 761-2121 Fax: (717) 761-4031 KIRK LOVE and SHIRLEY LOVE, his wife, Plaintiffs V. KENNETH W. GRAF, M.D., SUSQUEHANNA SURGEONS, LTD., t/d/b/a SUSQUEHANNA SURGEONS, A DIVISION OF HERITAGE MEDICAL GROUP, LLP, Defendants Attorneys for Plaintiffs IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA : MEDICAL MALPRACTICE : No.: 09-623 CIVIL ACTION - LAW JURY TRIAL DEMANDED PLAINTIFFS' RESPONSE TO DEFENDANTS REQUEST FOR PRODUCTION OF DOCUMENTS DATED SEPTEMBER 21, 2009 1. All photographs concerning the incident in the above-referenced matter. Response: See attached disk that contains photographs of Mr. Love. 2. All investigations, reports, test results, drawings, summaries or records of the incident involving the above-referenced case and the events surrounding it. Response: Objection. To the extent this request covers information which is privileged or beyond the scope of what is required by the PA Rules of Civil Procedure, it is objected to. Materials as required by the PA Rules have already been, or are being produced in the form of the medical records and the complaint. 3. All statements of witnesses. Response: n/a 4. All statements of any person who will be called as a witness at trial. Response: The identity of trial witnesses has not yet been determined. Information as required by the PA Rules of Civil Procedure will be provided, when determined. 5. All statements of any party, their agent or employees concerning the incident and events surrounding it. Response: n/a 6. All written or recorded evidence of the conduct and/or conversation between either Plaintiff and any agent, servant or employee of Defendant which is relevant to this lawsuit. Response: See medical records. 7. A current curriculum vitae for each expert who will testify at trial on behalf of Plaintiff. Response: The identity of trial witnesses has not yet been determined. Information as required by the PA Rules of Civil Procedure will be provided, when determined. 8. All documents prepared by each expert identified together with all correspondence between expert and either Plaintiff, their agents, attorneys or anyone acting on her behalf. Response: Objection. To the extent this interrogatory seeks information that exceeds to scope of permissible discovery, it is objected to. Without waiving this objection, information regarding expert testimony is undetermined at present and will be supplemented when determined to the extent required by the Pennsylvania Rules of Civil Procedure. 9. All documents or other demonstrative evidence which will be introduced or used at trial. Response: Undetermined at present. Information, to the extent required by the PA Rules of Civil Procedure, will be supplemented when determined. 10. All medical records of Plaintiff Kirk Love, other than those already provided, of which counsel is in possession. Response: n/a. Medical records have already been provided. 11. All medical bills which are claimed to have been incurred as a result of the alleged negligence of Defendants. Response: The insurance file has been requested and will be provided when received. In addition, please see Plaintiffs' answers to interrogatories. 12. All documents recording benefits paid due to the incident in the above-referenced matter. Response: See response to # 11. 13. All documents referred to by Plaintiffs in their answers to Defendants' "Damage" Interrogatories. Response: See response to #11. 14. All documents verifying alleged lost wages in possession of Plaintiff, his agents, employees, attorneys and insurance carriers due to the incident in the above- referenced matter, including income tax returns for the past 6 years. Response: See response to #11, answers to interrogatories, and tax returns. 15. Copies of any and all written narratives or summaries including diaries or journals, letters of any kind, not privileged, prepared fully or partly by Plaintiffs or by anyone on their behalf, which refer to or describe the events and allegations which are subject of this law suit. Response: Objection. To the extent this request covers information which is privileged or beyond the scope of what is required by the PA Rules of Civil Procedure, it is objected to. Materials as required by the PA Rules have already been, or are being produced in the form of the medical records and the complaint. 16. Copy of Plaintiff's most recently received statement from Social Security Administration. Response: See attached Social Security Statement of Shirley Love. As Kirk Love is a railroad employee, he does not receive social security statements. COSTOPOULOS, FOSTER & FIELDS Dated: _ By - Leslie M ./Fields, Esquire I.D. No.: 29411 831 Market Street/P.O. Box 222 Lemoyne, PA 17043 Tel.: (717) 761-2121 Attorney for Plaintiffs VERIFICATION I, Plaintiff, Kirk W. Love, do hereby verify that the statements made in the foregoing document are true and correct to the best of my information and belief. I understand that false statements made herein are subject to the penalties at 18 Pa.C.S.A. 4904 relating to unworn falsification to authorities. KIRK W. LOVE DATED: I / -)-/ -J VERIFICATION I, Plaintiff, Shirley Love, do hereby verify that the statements made in the foregoing document are true and correct to the best of my information and belief. I understand that false statements made herein are subject to the penalties at 18 Pa.C.S.A. 4904 relating to unworn falsification to authorities. SHIRLEY VE DATED: CERTIFICATE OF SERVICE I, Leslie M. Fields, Esquire, hereby certify that on this 7th day of December 2009, a true and correct copy of the foregoing document was served upon all counsel of record by: Hand Delivery X First Class Mail, Postage Pre-Paid Certified Mail, Return Receipt Requested Fax Transmission Overnight Mail at the following address(es) and/or number(s): Michael D. Pipa, Esquire STEVENS & LEE 17 North Second Street, 16"` Floor Harrisburg, PA 17101 Counsel for Defendants COSTOPOULOS, FOSTER & FIELDS Leslie M. Fields, Esquire G ??x STEVENS & LEE LAWYERS & CONSULTANTS 17 North Second Street 16th Floor Harrisburg, PA 17101 (717) 234-1090 Fax (717) 234-1099 www.stevenslee.com Direct Dial: (717) 255-7384 Email: kem@stevenslee.com Direct Fax: (610) 371-7744 February 8, 2010 VIA FACSIMILE (717) 761-4031 Leslie M. Fields, Esquire Costopoulos, Foster & Fields 831 Market Street P.O. Box 222 Lemoyne, PA 17043 Re: Love v. Graf, M.D., et al. Dear Attorney Fields: I am writing in follow up to the Plaintiffs' Responses to Defendant's Interrogatories, Request for Production and Contention Interrogatories and to request that Plaintiffs produce supplemental Responses so that we can properly evaluate the Plaintiffs' allegations and damages claims. Plaintiffs object to Defendants Interrogatory 415, 16, 18, 19 and 37 without either identifying whether any responsive documents exist and either producing them or listing them in a privileges log per Rule 4009.12(b). See Plaintiffs' Responses to RPD 42, 3, 15 (similar requests and same objection). Would you kindly either produce any responsive documents, indicate through verified discovery answers that no such documents exist or identify the responsive documents that Plaintiffs claim to be privileged via a privileges log, as appropriate? To the extent you require clarification, the relevant Interrogatories were intended to request, inter alia, "statements" as defined by the Pa.R.Civ.P. 4003.4. In the Complaint, Plaintiff Dirk Love seeks compensation for the following non-economic damages: 43(a) prolonged and chronic pain and suffering and emotional distress, mental anguish and humiliation; (b) scarring, disfigurement and embarrassment; (c) a loss of life's pleasures; ...(f) such other damages as properly allowed by Philadelphia • Reading • Valley Forge • Lehigh Valley • Harrisburg • Lancaster • Scranton Williamsport . Wilkes-Barre • Princeton • Cherry Hill • New York • Wilmington A PROFESSIONAL CORPORATION 10/06/ 10/SL 1 974627v1/041199,00378 I . STEVENS & LEE LAWYERS & CONSULTANTS Leslie M. Fields, Esquire February 8, 2010 Page 2 Pennsylvania law, including but not limited to incidental costs as a result of his wife having to lose work in order to care for him. See Plaintiffs' Complaint at ¶43. In response to Defendants' request for discovery of Plaintiff's alleged non-economic damages, Plaintiff refers to the Complaint, but does not provide any additional clarification or documentation. Plaintiff also objects to Defendants' discovery of the alleged loss of consortium damages by reference to the boilerplate objections set forth in Plaintiffs' Response to Interrogatory 15. See Plaintiff's Response to Interrogatory #38-39. Would you kindly supplement Plaintiffs' discovery responses to specify the non-economic damages claimed by Mr. and Mrs. Love, with particularity? (i.e. the duration of the alleged damages, such as the chronic pain and the alleged loss of life's pleasures, the manner that Mr. Love has suffered a loss of life's pleasures, and the manner that Mrs. Love has allegedly suffered loss of consortium). Kindly also identify and clarify what "other damages" are contemplated by Plaintiff in paragraph 43 (f). What is the legal support for the claim of Mr. Love for his wife's lost income? Where did Mrs. Love work? How much did she earn? Why did she stop working? When did she stop working? Kindly provide documentation in support of this claim. We also request that Plaintiff supplement Defendants' discovery of the alleged loss of consortium damages by stating in what way Plaintiff Shirley Love lost the society, companionship, assistance and consortium of Mr. Love. In response to Defendants' request for discovery of Plaintiffs' alleged economic damages, Plaintiffs indicate that the health insurer and disability insurer's insurance files have been requested and will be provided. Kindly supplement this response, particularly pertaining to any asserted liens, at your earliest convenience. In the meantime, would you kindly supplement Plaintiffs' Response to Interrogatories #22, 23, 25, 26, 27 and identify the name and address of the Plaintiffs' insurers so that we can decide whether to request any documentation directly from these entities? Would you also provide any and all documentation supporting Plaintiffs' summary of alleged medical damages that is set forth in response to Interrogatory 24 (legal fees, prescriptions, doctor and hospital, medical supplies, parking passes, food expense, lodging) and clarify the manner by which mileage was calculated by reference to specific dates and the start and end of the trip traveled? See RPD #13. If Plaintiffs intend to seek the $1031.53 that they reimbursed to Plaintiff's employer as alleged damages, then kindly provide the supporting documentation. 10/06/ 10/SL 1974627v]/041199.00378 STEVENS & LEE LAWYERS & CONSULTANTS Leslie M. Fields, Esquire February 8, 2010 Page 3 Regarding the Plaintiffs' Responses to Defendants' Request for Production of Documents, would you indicate when the photographs were taken that were provided on the enclosed disk? Kindly also supplement Plaintiffs' Responses to Defendants' Contention Interrogatories to provide Defendants with substantive identification of the liability issues in this case. Plaintiffs' objections are insufficient given that Plaintiff retained a Certificate of Merit expert who has apparently provided Plaintiffs with a written letter of merit indicating that Dr. Graf breached the standard of care etc. Please appreciate that we did not preliminarily object or serve a contention interrogatory as to paragraph 42(g) (suture to bowel) as we agree that that action is, specifically, alleged in the Complaint. If Plaintiff is unable to decipher any of Dr. Graf's specific medical notations, which would allow them to properly answer these key interrogatories, then we will endeavor to do so. Plaintiff s discharge documents from JHH indicate that he was discharged on CPN and "a home health nurse was consulted." Please identify the home health service that cared to Plaintiff after October 29, 2007 so that these records can be obtained. By accompanying letter, we requested that you concur in Defendants' Motion to Stay the Proceedings until thirty (30) days after Dr. Graf returns from his overseas military deployment pursuant to the Servicemember's Civil Relief Act. We do not oppose Plaintiffs clarifying and supplementing their answers to discovery during the prospective stay period. Thank you in advance for your cooperation. Very truly yours, STEVENS & LEE Karen E. Minehan KEM:elbr 10/06/10/SL 1 974627v 1/041199.00378 1 VIA FACSIMILE (717) 761-4031 Direct Dial: (717) 255-7384 Email: kem@stevenslee.com Direct Fax: (610) 371-7744 September 7, 2010 Leslie M. Fields, Esquire Costopoulos, Foster & Fields 831 Market Street P.O. Box 222 Lemoyne, PA 17043 Re: Love v. Graf, M.D., et al. Dear Attorney Fields: On February 8, 2010, we requested that Plaintiffs kindly supplement their responses to our interrogatories, request for production of documents, and contention interrogatories and indicated that we did not oppose Plaintiffs doing so during the intervening stay period. See letter dated February 8, 2010 enclosed. Kindly provide us with supplemental responses to the requested discovery within the next thirty (30) days so that we can move this case forward in discovery. Once Plaintiffs have supplemented this outstanding discovery, then we will be able to respond to your request to depose Dr. Rolando Casal. Dr. Casal was employed by Susquehanna Surgeons, whom we represent in this case, at the relevant time. We thus intend to prepare and represent Dr. Casa] at any deposition in this case. Please do not hesitate to contact me or Mike Pipa if you have any questions or concerns. Thank you for your courtesies and cooperation. Very truly yours, STEVENS & LEE KEM/elbr Enclosure STEVENS & LEE LAWYERS & CONSULTANTS 17 North Second Street 16th Floor Harrisburg, PA 17101 (717) 234-1090 Fax (717) 234-1099 www.stevenslee.com Karen E. Minehan Philadelphia • Reading • Valley Forge • Lehigh Valley • Harrisburg . Lancaster . Scranton Williamsport Wilkes-Barre • Princeton • Cherry Hill New York • Wilmington A PROFESSIONAL CORPORATION SL I 1019827v 1/041199.00378 . COSTOPOULOS, FOSTER & FIELDS ATTORNEYS AND COUNSELORS AT LAW 831 MARKET STREET P.O. BOY 222 WILLIAM C. COSTOPOULOS LEMOYNE, PENNSYLVANIA 17043-0222 DAVID J. FOSTER LESLIE M. FIELDS GEORGE H. MATANGOS HEIDI F. EAKIN October 4, 2010 Karen E. Minehan, Esquire STEVENS & LEE 17 North Second Street, 16`h Floor Harrisburg, PA 17101 Re: hirlc Love and Shirley Love v. Kenneth W. Graf, M.D., Susquehanna Surgeons, Ltd., t/d/b/a Susquehanna Surgeons, A Division of Heritage Medical Group, LLP C.C.P. Cumberland County No.: 09-623 Dear Ms. Minehan: Pursuant tp, our most recent. conversation, I am writing to address concerns raised by you in your letter of February.8, 20,10, which was received at about the time of your client leaving the country and about the time you requested and receiveda stay in this matter. Your stated concerns were, inter alia, about our objections to Interrogatories 415;16,18,19, and 37. The reasons for those objections should be evident, but I will clarify: • #15 on it's face appears to request expert reports whether or not the expert is being called at trial. This, as you know, is beyond the scope of the rules and therefore, it was objected to. It could also be read to cover memoranda of counsel which are protected and not discoverable. With those caveats, I can tell you that there are no statements as defined by the PA Rules of Civil Procedure, and no testimony. • #16 on it's face regarding "other descriptive documents" also appears to request expert reports whether or not the expert is being called at trial.. This, as you know, is beyond the scope of the rules and therefore, it was objected to. It could also be read to cover memoranda of counsel which are protected and not discoverable. With those caveats, I can tell you that there are no motion pictures, although there are photographs already produced as well as some photographs, drawings, and descriptions of the open abdomen of the plaintiff that are contained in the medical records from Holy Spirit, Select Medical, and Johns Hopkins, all of which you have in your possession. You will notice that the photographs from Select Medical, which were taken in conjunction with Dr. Graf's treatment of the plaintiff while he was hospitalized at that facility, axe quite similar to those taken by the Plaintiff, and were taken in approximately the same time frame; that is, after the original surgery by Dr. Graf, when Mr. Love's bowel was, TELEPHONE (717) 761-2121 FAX (717) 761- 4031 VWW.COSTOPOULOS.COD7 srEVEn?s $ ACE Karen E. Minehan, Esquire October 4, 2010 Page 2 presumably mistakenly, sutured to his abdominal wall, and before his "devastated abdomen" was closed and repaired at Johns Hopkins. -#18 We know of no documents which are responsive to this interrogatory. • #19 Again, on it's face this interrogatory appears to request expert reports whether or not. the expert is being called at trial. This, as you know, is beyond the scope of the rules and therefore, it was objected to. It could also be read to cover investigation by counsel which is protected and not discoverable. • 437 We know of no such materials which are not privileged. In the time period between your letter and the present, you have asked for and received a number of signed authorizations to obtain documents from Mr. Love's employer, etc., which should answer some of your other concerns. If you have any questions or wish to discuss this claim, please do not hesitate to contact me. Very truly yours, Leslie' M. Fields LMFJj me CERTIFICATE OF SERVICE I, Karen E. Minehan, Esquire, certify that on this date, I served a certified true and correct copy of the foregoing document upon the following counsel of record, by depositing the same in the United States mail, postage prepaid, addressed as follows: Leslie M. Fields, Esquire Costopoulos, Foster & Fields 831 Market Street P.O. Box 222 Lemoyne, PA 17043 Date: October 12, 2010 Kare E. Minehan, Esquire SLl 1027489v]/041199.00378 KIRK LOVE and SHIRLEY LOVE, his wife, Plaintiffs vs. KENNETH W. GRAF,M.D., SUSQUEHANNA SURGEONS, LTD., t/d/b/a SUSQUEHANNA SURGEONS, A DIVISION OF HERITAGE MEDICAL GROUP, LLP, Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION -LAW N0.09-623 CIVIL JURY TRIAL DEMANDED IN RE: MOTION TO COMPEL OF DEFENDANTS ORDER AND NOW, this z ~ ` day of October, 2010, argument on the defendants' motion to compel production of documents and contention interrogatories is set for Friday, December 3, 2010, at 11:30 a.m. in Courtroom Number 4, Cumberland County Courthouse, Carlisle, PA. BY THE COURT, Leslie M. Fields, Esquire For the Plaintiffs ichael D. Pipa, Esquire Karen E. Minehan, Esquire For the Defendants :rlm 1.=4 t E.S /Y1c7.1 !~ 01!/!~ /'~ Kevin .Hess, J. t. ~ '~ ~ ~~ ~~ ~ ~ a --{ ~ r` ~~ ~ ~~ ~ ~~ ~~ o - r- a -- n~ . o~ =~ -r, c 7 KIRK LOVE and SHIRLEY LOVE, his wife,: Plaintiffs V KENNETH W. GRAF, M.D., SUSQUEHANNA SURGEONS, LTD., t/b/a SUSQUEHANNA: SURGEONS, A DIVISION OF HERITAGE MEDICAL GROUP, LLP, Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 2009-0623 JURY TRIAL DEMANDED r - -u r goo r- --+o - :? C) -q z ci rn IN RE: MOTION TO COMPEL ORDER OF COURT AND NOW, this 3rd day of December, 2010, this matter having been called for hearing on a motion to compel, it is ordered as follows: If the defense does not already have outstanding subpoenas for the information regarding the health insurance coverage and the disability insurance coverage, the plaintiff will, at the option of the defense, either supply authorizations and names and addresses of those carriers, or the plaintiffs will subpoena that information directly. The motion of the defendant to compel with regard to the allegation of lost wages on the part of plaintiff, Shirley Love, is granted. The plaintiff is directed to respond to the interrogatory with respect to Ms. Love's lost wages. The balance of the motion to compel is denied for the reasons as stated in open court this date. By the Court, evi i . Hess, P.J. K NO. 2009-0623 .,,?eslie M. Fields, Esquire For Plaintiff Xaren E. Minehan, Esquire For Defendant :bg , I?T F-s 11yx4.tL£ L M-12 / r v Stevens & Lee, P.C. Michael D. 13ipa, Esquire - I.D. Number 53624 Karen E. Minehan, Esquire - I.D. Number 78050 17 North Second Street, 16th Floor Harrisburg, PA 17101 (717) 255-7376 Attorneys for Defendants KIRK LOVE and SHIRLEY LOVE, his wife, Plaintiffs, IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 09-623 V. CIVIL ACTION - LAW KENNETH W. GRAF, M.D., MEDICAL MALPRACTICE SUSQUEHANNA SURGEONS, LTD., t/d/a/ SUSQUEHANNA SURGEONS, A DIVISION OF HERITAGE MEDICAL GROUP, LLP, JURY TRIAL DEMANDED Defendants. STIPULATION AND NOW, all parties, by and through their counsel, hereby stipulate and agree to the following: 1. Plaintiffs consent to allow Defendants to file the attached Amended Answer and New Matter pursuant to Pa.R.Civ.P. i033. 2. Defendants agree to deem Plaintiff s Reply to Defendants' original New Matter as their Reply to the Amended Answer and New Matter so that Plaintiffs need not refile a Reply in response to the Amended Answer. Date: '2012 ?° --? By: )C(I i ?? - ?? Michael D, ipa, Esquire Attorney I.D. Number 53624 Karen E. Minehan, Esquire Attorney I.D. Number 78050 17 North Second Street, 16`h Floor Harrisburg, PA 17101 STEVENS & LEE 01/31/201: SLI 1126623v1 0,31199.00378 (717) 255-7384 (61.0) 371-7744 (facsimile) Attorneys_for Defendants Date:-,-- , 2012 Leslie M. ields, Esquire Costopoulos, Foster & Fields 831 Market Street PO Box 222 Lemoyne, PA 17043 Attorney for Plaintiffs 2 0 1130/2012 SLi 1126623v 1041199,00378 Michael D. Pipa, Esquire Attorney I.D. #53624 Karen E. Minehan, Esquire Attorney I.D. #78050 17 North Second Street, l6th Floor Harrisburg, P.A 17101 mdp@stevenslee.com kem@stevenslee.com (717) 255-7376 (610) 371-7743 (Facsimile) K IRK LOVE and SHIRLEY LOVE, his wife, Plaintiffs V. KENNETH W. GRAF, M.D., SUSQUEHANNA SURGEONS, LTD., t/d/a/ SUSQUEHANNA SURGEONS, A DIVISION OF HERITAGE MEDICAL GROUP, I.LP. Defendants IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 09-623 CIVIL ACTION - LAW MEDICAL MALPRACTICE JURY TRIAL DEMANDED NOTICE TO PLEAD To: Plaintiffs Kirk and Shirley Love c/o Leslie M. Fields, Esquire Costopoulos, Foster & Fields 831 Market Street P.O. Box 222 Lemoyne, PA 17043-0222 You are hereby notified to file a written response to the enclosed new matter within twenty (20) days from service hereof or a judgment may be entered against you. Respectfully submitted, 1 ST VENS & LEE Date: I 2012 Michael D. Pipa, Esquire Karen E. Minehan, Esquire Counsel.for Defendants SL 1 112413 ,v 1 041199.003 78 KIRK LOVE and SHIRLEY LOVE, his wife, IN THE COURT OF COMMON PLEAS Plaintiffs CUMBERLAND COUNTY, PENNSYLVANIA V. NO. 09-623 KENNETH W. GRAF, M.D., SUSQUEHANNA SURGEONS, LTD., t/d/a/ CIVIL ACTION - LAW SUSQUEHANNA SURGEONS, A MEDICAL MALPRACTICE DIVISION OF HERITAGE MEDICAL GROUP, LLP. Defendants JURY TRIAL DEMANDED AMENDED ANSWER AND NEW MATTER OF DEFENDANTS KENNETH W. GRAF, M.D. AND HERITAGE MEDICAL GROUP, LLP TO PLAINTIFFS' COMPLAINT AND NOW, come Defendants Kenneth W. Graf, M.D. and Heritage Medical Group, LL,P t/d/b/a Susquehanna Surgeons, a Division of Heritage Medical Group, by and through their attorneys, and in response to Plaintiffs' Complaint state as follows: I. Admitted upon information and belief. 2. Admitted and denied. It is admitted that Defendant Kenneth W. Graf, M.D. is an adult individual and physician who was an agent of Heritage Medical Group, LLP t/d/b/a Susquehanna Surgeons, a Division of Heritage Medical Group, at the time of the relevant care to Plaintiff in 2'.007 as set forth in the relevant medical records. Dr. Graf specializes in general surgery and maintained a principal place of business at 532 North Front Street, Wormleysburg, Cumberland County, PA 17043 at the time of the relevant care to Plaintiff in 2007. 3. Denied. Heritage Medical Group, LLP t/d/b/a Susquehanna Surgeons, a Division of Heritage Medical Group is a registered Pennsylvania limited liability company, which operated a place of business at 532 North Front Street, Wormleysburg, Cumberland County, PA 17043 at the time of the relevant care to Plaintiff in 2007. To the extent that a response is SL I 112413-,vi 041199.00378 required, Dr. Graf had medical privileges at Holy Spirit Hospital at the time of the relevant care to Plaintiff in 2007. It is denied that the correct legal name of the legal entity is Susquehanna Surgeon, Ltd., t/d/b/a Susquehanna Surgeons, a division of Heritage Medical Group, LLP. 4-40. Denied pursuant to Rule 1029(e). By way of further answer, the allegations of these paragraphs appear to relate to the facts of medical treatment and care, which have been recorded in the appropriate and associated medical records. Those medical records are incorporated herein by reference. To the extent that Plaintiffs' allegations are inconsistent with or in conflict in any way with the contents of the records, the allegations are denied and strict proof thereof is demanded at the time of trial. Other allegations involve medical concepts that constitute medical expert opinions, which are not the proper subject of pleading and no response is required. To the extent any response is required, such allegations are denied pursuant to Rule 1029(e). After reasonable investigation Answering Defendants lack sufficient knowledge and information to form the belief as to the truth of certain of these averments pertaining to care rendered by other providers, strict proof thereof being demanded at trial. By way of further response, it is denied that Answering, Defendants were negligent or that any act or omission of Answering Defendants caused or contributed to the Plaintiff's alleged damages. COUNTI Plaintiff Kirk Love v. Defendant Kenneth W. Graf, M.D. 41. Paragraphs 1 through 40 are incorporated herein by reference. 42. (a-k). Denied. The allegations of this paragraph constitute conclusions of law to which no response is required. To the extent a response is deemed required, the allegations are denied pursuant to Rule 1029. By way of further response, it is denied that Answering Defendants were negligent or that any act or omission of Answering Defendants caused or contributed to the Plaintiff's alleged damages. SL I 112413-vi 041199.00378 43. (a-f). Denied. The allegations of this paragraph constitute conclusions of law to which no response is required. To the extent a response is deemed required, the allegations are denied pursuant to Rule 1029. By way of further response, it is denied that Answering Defendants were negligent or that any act or omission of Answering Defendants caused or contributed to the Plaintiff's alleged damages. VGHEREFORE, Answering Defendants respectfully request that this Honorable Court enter judgment in their favor, and against Plaintiffs, with prejudice, together with such other relief as is deemed just. COUNT II Plaintiff Kirk Love v. Defendant Susquehanna Surgeon, Ltd. 44. Paragraphs 1 through 43 are incorporated herein by reference. 45. Admitted and denied. It is admitted that Defendant Kenneth W. Graf, M.D. was the agent of Defendant Heritage Medical Group, LLP t/d/b/a Susquehanna Surgeons, a Division of Heritage :Medical Group with regard to the 2007 medical care and treatment rendered to Plaintiff Kirk Love as set forth in the relevant medical records. Any other averments are denied pursuant to Rule 1029(e). 46. Admitted and denied. It is admitted that Defendant Kenneth W. Graf, M.D. was the agent of Defendant Heritage Medical Group, LLP t/d/b/a Susquehanna Surgeons, a Division of Heritage :'.Medical Group with regard to the 2007 medical care and treatment rendered to Plaintiff Kirk Love as set forth in the relevant medical records. 47. Denied. The allegations of this paragraph constitute conclusions of law to which no response is required. To the extent a response is deemed required, the allegations are denied pursuant to Rule 1029. By way of further response, it is denied that Answering Defendants were SL 1 112413 w 1 041199.00378 negligent or that any act or omission of Answering Defendants caused or contributed to the Plaintiffs alleged damages. 48. (a-f). Denied. The allegations of this paragraph constitute conclusions of law to which no response is required. To the extent a response is deemed required, the allegations are denied pursuant to Rule 1029. By way of further response, it is denied that Answering Defendants were negligent or that any act or omission of Answering Defendants caused or contributed to the Plaintiff s alleged damages. 'XTIEREFORE, Answering :Defendants respectfully request that this Honorable Court enter judgment in their favor, and against Plaintiffs, with prejudice, together with such other relief as is deemed just. COUNT III Plaintiff Shirley Love v. Defendants 49. Paragraphs 1 through 48 are incorporated herein by reference. 50. Admitted and denied. After reasonable investigation Answering Defendants lack sufficient knowledge and information to form the belief as to the truth of certain of these averments at this time, as Plaintiffs fail to define what they mean by "at all relevant times herein", strict proof thereof being demanded at trial. 51. Denied. The allegations of this paragraph constitute conclusions of law to which no response is required. To the extent a response is deemed required, the allegations are denied pursuant to Rule 1029. By way of f r-ther response, it is denied that Answering Defendants were negligent or that any act or omission of Answering Defendants caused or contributed to the Plaintiff's alleged damages. SL I 1 12413.;v l 041199.00378 WHEREFORE, Answering Defendants respectfully request that this Honorable Court enter judgment in their favor, and against Plaintiffs, with prejudice, together with such other relief as is deemed just. NEW MATTER 52. The preceding paragraphs are all incorporated herein by reference. 53. The Plaintiffs have failed to state a cause of action upon which relief may be granted as against Answering Defendants. 54. Answering Defendants were not negligent. 55. Any acts or omissions of Answering Defendants alleged to constitute negligence were not substantial causes or factors of the subject incident and/or did not result in the injuries and/or losses alleged by Plaintiffs. 56. The incidents and/or damages described in Plaintiffs' Complaint may have been caused or contributed to by Plaintiffs. 57. If Plaintiffs sustained the injuries alleged, proof of which is specifically demanded, said injuries may have been the result of the negligent or careless acts and/or omissions of persons and/or entities over which Defendants exercised no control or right of control. 58. Any negligent acts or omissions proven by Plaintiffs, of other individuals and/or entities, may have constituted intervening and/or superseding causes of the damages and/or injuries alleged to have been sustained by Plaintiffs. 59. The incident, injuries and/or damages sustained by the Plaintiffs, if any, were not proximately caused by Defendants. 60. Plaintiffs' claims may, be barred by the doctrine of the assumption of risk. 61. Plaintiffs' claims may be barred by the doctrine of comparative negligence. SL1 112413M 041199.00378 62. Plaintiffs' claims may be barred or reduced by the provisions of the Pennsylvania Comparative Negligence Act, 42 Pa. C.S.A. § 7201 et seq., the relevant portions of which are incorporated herein by reference as though same or more fully set forth at length herein. 63. At all times material hereto, Defendants provided care and treatment in accordance with the applicable standards of care at the time and place of treatment. 64. Plaintiffs may have failed to mitigate any damages allegedly sustained. 65. Plaintiffs' claim and/or request for damages is barred or limited and/or precluded by the doctrines of res judicata and/or collateral estoppel. 66. Plaintiffs' claim and/or request for damages is barred or limited by the provisions of the Medical Care and Reduction of Error Act, 40 P.S. § 1301 et seq., also known as Act 13. 67. Plaintiffs' claims may be barred by the applicable statute of limitations. 68. To the extent that the evidence reveals that Defendants, or any person for whom he was or may be vicariously liable, elected a treatment modality that is recognized as proper, but that may differ from another appropriate treatment modality, then the "two schools of thought" defense is hereby raised. WHEREFORE, Answering Defendants respectfully requests that this Honorable Court enter judgment in their favor, and against Plaintiffs, with prejudice, together with such other relief as is deemed just. SL 1 112413 > v 1 041199.003 78 Respectfully submitted, Date: f 2012 STEVENS & LEE rQ--? ? Mi ael D. Pipa, Esquire 17 North Second Street, 16th Floor Harrisburg, PA 17101 mdp@stevenslee.com kem@stevenslee.com (717) 255 7376 (610) 371-7743 (Facsimile) Counsel for Defendants Attorney I.D. #53624 Karen E. Minehan, Esquire Attorney I.D. #78050 SL I 1 12413:,v 1041199.00378 VERIFICATION (Love) I, Kenneth W. Graf, M.D., depose and state that the facts set forth in the foregoing Answer and New Matter, are true and correct to the best of my knowledge, information and belief. This Verification is made subject to the penalties of 18 Pa. C.S.A. § 4904, relating to unsworn falsification to authorities. Dater fiWV' p?D??? SL1 1124133v' 041199.00378 VERIFICATION (Love) 1, Joseph A. Cincotta, M.D., Representative of Susquehanna Surgeons, t/d/b/a Susquehanna Surgeons, Division of Heritage Medical Group, being duly affirmed according to law, depose and say that the facts set forth in the foregoing Amended Answer with New Matter, is true and correct to the best of my knowledge, information and belief. This Verification is made subject to the penalties of 18 Pa. C.S.A. § 4904, relating to unsworn falsification to authorities. Date: r1; Joseph A. Cincotta, M.D. Representative of Susquehanna Surgeons, t/d/b/a Susquehanna Surgeons, Division of Heritage Medical Group SL 11124133v l 041199.00378 K IRK LOVE and SHIRLEY LOVE, his wife, IN THE COURT OF COMMON PLEAS Plaintiffs CUMBERLAND COUNTY, PENNSYLVANIA V. NO. 09-623 KENNETH W. GRAF, M.D., SUSQUEHANNA SURGEONS, LTD., t/d/al CIVIL ACTION - LAW SUSQUEHANNA SURGEONS, A MEDICAL MALPRACTICE DIVISION OF HERITAGE MEDICAL GROUP, LLP. Defendants JURY TRIAL DEMANDED CERTIFICATE OF SERVICE I, Karen E. Minehan, Esquire, certify that on this date, I served a certified true and correct copy of the foregoing Amended Answer and New Matter upon the following counsel of record, by depositing the same in the United States mail, postage prepaid, addressed as follows: Leslie M. Fields, Esquire Costopoulos, Foster & Fields 831 Market Street P.O. Box 222 Lemoyne, PA 17043 Date: J , 2012 K en E. Mine an, Esquire SL I 1 124133 v l 041199.00378 CERTIFICATE OF SERVICE I, Karen E. Minehan, Esquire, hereby certify that on this date, a true and correct copy of the foregoing Stipulation was served upon the following counsel of record, by depositing the same in the United States mail, postage prepaid, addressed as follows: Leslie M. Fields, Esquire Costopoulos, Foster & Fields 831 Market Street PO Box 222 Lemoyne, PA 17043 Date: 52012 vruw Ka . Mine an 01/31/2012 SL1 1126623vl 041199.00378 Michael D. I'ipa, Esquire Attorney I.D. #53624 Karen E. Minehan, Esquire Attorney I.D. 478050 17 North Second Street, 16th Floor Harrisburg, PA 17101 mdp@stevenslee.com kem@stevenslee.com (717) 255-7376 (610) 371-7743 (Facsimile) 2 Fr K IRK LOVE and SHIRLEY LOVE, his wife, IN THE COURT OF COMMON PLEAS Plaintiffs CUMBERLAND COUNTY. PENNSYLVANIA V. : NO. 09-623 KENNETH W. GRAF, M.D., SUSQUEHANNA SURGEONS, LTD., t/d/a/ CIVIL ACTION - LAW SUSQUEHANNA SURGEONS, A MEDICAL MALPRACTICE DIVISION OF HERITAGE MEDICAL GROUP, LLP. Defendants : JURY TRIAL DEMANDED NOTICE TO PLEAD To: Plaintiffs Kirk and Shirley Love Co Leslie M. Fields, Esquire Costopoulos, Foster & Fields 831 Market Street P.O. Box 222 Lemoyne, PA 17043-0222 You are hereby notified to file a written response to the enclosed new matter within twenty (20) days from service hereof or a judgment may be entered against you. Respectfully submitted, Date: I1 2012 ST 'VENS & LIE Michael D. Pipa, Esquire Karen E. Minehan, Esquire Counsel for Defendants S1,1 11241. 3 ?1 041199.00378 KIRK LOVE and SHIRLEY LOVE, his wife, IN THE COURT OF COMMON PLEAS Plaintiffs CUMBERLAND COUNTY. PENNSYLVANIA V. NO. 09-623 KENNETH W. GRAF, M.D., SUSQUEHANNA SURGEONS, :LTD., t/d/a/ CIVIL ACTION - LAW SUSQUEHANNA SURGEONS, A MEDICAL MALPRACTICE DIVISION OF HERITAGE MEDICAL GROUP. LLP. Defendants : JURY "TRIAL DEMANDED AMENDED ANSWER AND NEW MATTER OF DEFENDANTS KENNETH W. GRAF, M.D. AND HERITAGE MEDICAL GROUP, LLP TO PLAINTIFFS' COMPLAINT AND NOW, come Defendants Kenneth W. Graf, M.D. and Heritage Medical Group, LI_P t/d/b/a Susquehanna Surgeons, a Division of Heritage Medical Group, by and through their attorneys, and in response to Plaintiffs' Complaint state as follows: Admitted upon information and belief. 2. Admitted and denied. It is admitted that Defendant Kenneth W. Graf, M.D. is an adult individual and physician who was an agent of Heritage Medical Group, LLP t/d/b/a Susquehanna Surgeons, a Division of Heritage Medical Group, at the time of the relevant care to Plaintiff in 2007 as set forth in the relevant medical records. Dr. Graf specializes in general surgery and maintained a principal place of business at 532 North Front Street, Wormleysburg, Cumberland County, PA 17043 at the time of the relevant care to Plaintiff in 2007. 3 Denied. Heritage Medical Group, LLP t/d/b/a Susquehanna Surgeons, a Division of Heritage Medical Group is a registered Pennsylvania limited liability company, which operated a place of business at 532 North Front Street. Wormleysburg, Cumberland County, PA 17043 at the time of the relevant care to Plaintiff in 2007. .To the extent that a response is SL1 11241 60 041199.00378 required. Dr. Graf had medical privileges at Holy Spirit Hospital at the time of the relevant care to Plaintiff in 2007. It is denied that the correct legal name of the legal entity is Susquehanna Surgeon, Ltd., t/d/b/a Susquehanna Surgeons, a division of Heritage Medical Group, LLP. 4-40. Denied pursuant to Rule 1029(e). By way of further answer, the allegations of these paragraphs appear to relate to the facts of medical treatment and care, which have been recorded in the appropriate and associated medical records. "those medical records are incorporated herein by reference. To the extent that Plaintiffs' allegations are inconsistent with or in conflict in any way with the contents of the records, the allegations are denied and strict proof thereof is demanded at the time of trial. Other allegations involve medical concepts that constitute medical expert opinions, which are not the proper subject of pleading and no response is required. To the extent any response is required, such allegations are denied pursuant to Rule 1029(e). After reasonable investigation Answering Defendants lack sufficient knowledge and information to form the belief as to the truth of certain of these averments pertaining to care rendered by other providers, strict proof thereof being demanded at trial. By way of further response, it is denied that Answering Defendants were negligent or that any act or omission of Answering Defendants caused or contributed to the Plaintiff's alleged damages. COUNTI Plaintiff Kirk Love v. Defendant Kenneth W. Graf, M.D. 41. Paragraphs 1 through 40 are incorporated herein by reference. 42. (a-k). Denied. The allegations of this paragraph constitute conclusions of law to which no response is required. To the extent a response is deemed required, the allegations are denied pursuant to Rule 1029. By way of further response, it is denied that Answering Defendants were negligent or that any act or omission of Answering Defendants caused or contributed to the Plaintiff's alleged damages. SL I 11241',30 041 199.00378 43, (a-f). Denied. The allegations of this paragraph constitute conclusions of law to which no response is required. To the extent a response is defamed required, the allegations are denied pursuant to Rule 1029. By way of further response, it is denied that Answering Defendants were negligent or that any act or omission of Answering Defendants caused or contributed to the Plaintiff's alleged damages. WHEREFORE, Answering Defendants respectfully request that this Honorable Court enter judgment in their favor, and against Plaintiffs, with prejudice, together with such other relief as is deemed just. COUNT 11 Plaintiff Kirk Love v. Defendant Susquehanna Surgeon, Ltd. 44. Paragraphs 1 through 43 are incorporated herein by reference. 45. Admitted and denied. It is admitted that Defendant Kenneth W. Graf, M.D. was the agent of Defendant Heritage Medical Group, LLP t/d/b/a Susquehanna Surgeons, a Division of Heritage Medical Group with regard to the 2007 medical care and treatment rendered to Plaintiff Kirk Love as set forth in the relevant medical records. Any other averments are denied pursuant to Rule 1029(e). 46. Admitted and denied. It is admitted that Defendant Kenneth W. Graf, M.D. was the agent of Defendant Heritage Medical Group, LLP t/d/b/a Susquehanna Surgeons, a Division of Heritage Medical Group with regard to the 2007 medical care and treatment rendered to Plaintiff Kirk I,ove as set forth in the relevant medical records. 47, Denied. The allegations of this paragraph constitute conclusions of law to which no response is required. To the extent a response is deemed required, the allegations are denied pursuant to Rule 1029. By way of further response, it is denied that Answering Defendants were SLI 112413 ;v1 041199.00378 negligent or that any act or omission of Answering Defendants caused or contributed to the Plaintiff s alleged damages. 48. (a-f). Denied. The allegations of this paragraph constitute conclusions of law to which no response is required. To the extent a response is deemed required, the allegations are denied pursuant to Rule 1029. By way of further response, it is denied that Answering Defendants were negligent or that any act or omission of Answering Defendants caused or contributed to the Plaintiff's alleged damages. W`lll RE1=0RE, Answering Defendants respectfully request that this Honorable Court enter judgment in their favor, and against Plaintiffs, with prejudice, together with such other relief as is deemed just. COUNT III Plaintiff Shirley Love v. Defendants 49. Paragraphs 1 through 48 are incorporated herein by reference. 50. Admitted and denied. After reasonable investigation Answering Defendants lack sufficient knowledge and information to form the belief as to the truth of certain of these averments at this time, as Plaintiffs fail to define what they mean by "at all relevant times herein", strict proof thereof being demanded at trial. 51. Denied. The allegations of this paragraph constitute conclusions of law to which no response is required. To the extent a response is deemed required, the allegations are denied pursuant to Rule 1029. By way of further response, it is denied that Answering Defendants were negligent or that any act or omission of Answering Defendants caused or contributed to the Plaintiff s alleged damages. SL 1 112411 ; v] 041199.00378 WHEREFORE, Answering Defendants respectfully request that this Honorable Court enter judgment in their favor, and against Plaintiffs, with prejudice, together with such other relief as is deemed just. NEW MATTER 52. The preceding paragraphs are all incorporated herein by reference. 5:}. The Plaintiffs have failed to state a cause of action upon which relief may be granted as against Answering Defendants. 54. Answering Defendants were not negligent. 55. Any acts or omissions of Answering Defendants alleged to constitute negligence were not substantial causes or factors of the subject incident and/or did not result in the injuries and/or losses alleged by Plaintiffs. 56. The incidents and/or damages described in Plaintiffs' Complaint may have been caused or contributed to by Plaintiffs. 57. If Plaintiffs sustained the injuries alleged, proof of which is specifically demanded, said injuries may have been the result of the negligent or careless acts and/or omissions of persons and/or entities over which Defendants exercised no control or right of control. 58. Any negligent acts or omissions proven by Plaintiffs, of other individuals and/or entities, may have constituted intervening and/or superseding causes of the damages and/or injuries alleged to have been sustained by Plaintiffs. 59 The incident, injuries and/or damages sustained by the Plaintiffs. if any, were not proximately caused by Defendants. 60. Plaintiffs' claims may be barred by the doctrine of the assumption of risk. 61. Plaintiffs' claims may be barred by the doctrine of comparative negligence. SL 1112413 3 v l 041199.00378 62. Plaintiffs' claims may be barred or reduced by the provisions of the Pennsylvania Comparative Negligence Act, 42 Pa. C.S.A. § 7201 et seq., the relevant portions of which are incorporated herein by reference as though same or more fully set forth at length herein. 63. At all times material hereto, Defendants provided care and treatment in accordance with the applicable standards of care at the time and place of treatment. 64. Plaintiffs may have failed to mitigate any damages allegedly sustained. 6S. Plaintiffs' claim and/or request for damages is barred or limited and/or precluded by the doctrines of res judicata and/or collateral estoppel. 60. Plaintiffs' claim and/or request for damages is barred or limited by the provisions of the Medical Care and Reduction of Error Act, 40 P.S. § 1301 et seg., also known as Act 13. 67. Plaintiffs' claims may be barred by the applicable statute of limitations. 68. To the extent that the evidence reveals that Defendants, or any person for whom he was or may be vicariously liable, elected a treatment modality that is recognized as proper, but that may differ from another appropriate treatment modality, then the "two schools of thought" defense is hereby raised. WI IEREFORE, Answering Defendants respectfully requests that this Honorable Court enter judgment in their favor, and against Plaintiffs, with prejudice, together with such other relief as is deemed just. SI.I 1 12413_ ? 1 041199,00378 Respectfully submitted, Date: ! 2012 STEVENS & LEE Mi ael D. Pipa, Esquire Attorney I.D. #53624 Karen E. Minehan, Esquire Attorney I.D. #78050 17 North Second Street, 16th Floor Harrisburg, PA 17101 mdp(cstevenslee.com kem ,steven slee.com (717) 255 7376 (610) 371-7743 (Facsimile) Counsel for Defendants S1.1 112413 ; a 1 041199.00378 VERIFICATION (Love) I, Kenneth W. Graf, M.D., depose and state that the facts set forth in the foregoing Answer and New Matter, are true and correct to the best of my knowledge, information and belief. This Verification is made subject to the penalties of 18 Pa. C.S.A. § 4904, relating to unsworn falsification to authorities. Date: ? ? /??U U SL1 1124133v l 041199.00378 VERIFICATION (Love) I, Joseph A. Cincotta, M.D., Representative of Susquehanna Surgeons, t/d/b/a Susquehanna Surgeons, Division of Heritage Medical Group, being duly affirmed according to law, depose and say that the facts set forth in the foregoing Amended Answer with New Matter, is true and correct to the best of my knowledge, information and belief. This Verification is made subject to the penalties of 18 Pa. C.S.A. § 4904, relating to unsworn falsification to authorities. Date: c? ?1 Jo?leph A. Cincotta, M.D. Representative of Susquehanna Surgeons, t/d/b/a Susquehanna Surgeons, Division of Heritage Medical Group SL I 1124133 v 1 041199.00378 K IRK LOVE and SHIRLEY LOVE, his wife, IN THE COURT OF COMMON PLEAS Plaintiffs CUMBERLAND COUNTY, PENNSYLVANIA V. NO. 09-623 KENNETH W. GRAF, M.D., SUSQUEHANNA SURGEONS, LTD., t/d/a/ CIVIL ACTION - LAW SUSQUEHANNA SURGEONS, A MEDICAL MALPRACTICE DIVISION OF HERITAGE MEDICAL GROUP, LLP. Defendants JURY TRIAL DEMANDED CERTIFICATE OF SERVICE I, Karen E. Minehan.. Esquire, certify that on this date, I served a certified true and correct copy of the foregoing Amended Answer and New Matter upon the following counsel of record, by depositing the same in the United States mail, postage prepaid, addressed as follows: Leslie M. Fields, Esquire Costopoulos, Foster & Fields 831 Market Street P.O. Box 222 Lemoyne, PA 17043 Date: , 2012 K ren E. Mine an, Esquire S1,1 112413 ;e 1 041199.00378 Stevens ~ Lee, P.C. Michael D. Pipa, Esquire - LD. Number 53624 , _ - ~ ~ ~ ; 17 North Second Street, S. 6th Floor Harrisburg, PA 17101 _ . . ~. l: 4 (717)255-7376 '..~ - ~i~~, Attorneys fc~r Defendants ~- ~ ~ ~ " ~%~ r ~~ KIRK LC-VE and SHIRLEY LOVE, his wife, Plaintiffs v. IN T'HE COURT OF COMMON PLEAS CUMBERLAND COUNTY. PENNSYLVANIA NO. 09-623 KENNETH W. GRAF, M.D., CIVIL ACTION -- LAW SUSQUEHANNA SURGEONS, LTD., t/dla/ MEDICAL MALPRACTICE SUSQUEHANNA SURGEONS, A DIVISION OF HERITAGE MEDICAL GROUF, LLP. Defendants NR'Y TRIAL DEMANDED CERTIFICATE PREREQUISITE TO SERVICE OF A SUBPOENA PURSUANT TO RULE 4009.22 As a prerequisite to service of a subpoena for documents and things pursuant to Rule 4009.22, Defendant certifies that: 1. a notice of intent to serve the subpoena with a copy of the subpoena attached thereto was mailed or delivered to each party at least twenty (20) days prior to the date on which the subpoena was sought to be served, 2. a copy of the notice of intent, including the proposed subpoena, is attached to this certificate, 3. no objections to the subpoena have been received, and 4. the subpoena which will be served is identical to the subpoena which is attached to the notice of intent to serve the subpoena. SL 1 12006221 041199.00378 STEVENS & LEE ;~_'~ Date: November 5, 2012 gy; 1°~ _t~, 4~ ;:,,_. t ~g') ~' ,,, , Michael D. Pipa, Esquire Attorney ID# 53624 17 North 2°d Street, 16~' Floor Harrisburg, PA 17101 (717) 255-7376 Attorneys for Defendants SLI 1200622vi 041199.003'78 ' STEVENS ~ LEE LAWYERS & CONSULTANTS 17 North Second Street 16th Floor Harrisburg, PA 17101 (717) 234-1090 wwwstevenslee.com Direct Dial: (717) 2'.55-7368 Email: plbC~?stevenslee.com Direct Fax: (67.0) 371-7751 October 3, 201'1_ David Foster, Esquire Leslie M. Fields, Esquire Costopou.los, Foster & Fields 831 Market Street PO Box ~ 22 Lemoyne. PA 17043 Re: Kirk Love v. Graf, M.D., et al Dear Counsel: Enclosed is Defendants' Notice of Intent to Service of Subpoena for radiology studies from Holy Spirit Hospital. Please see the subpoena for the documents being sought, If you have no objections to the issuance of the subpoena, please let us knov~- as soon as possible, in writing, if you are willing to waive the twenty (20) notice period so that we may immediately serve the subpoena. We will provide you with copies of any records we receive in response at your request. Sincerely, STE;VENS & LEE .~ e-~ Pamela L. Boger Paralegal PLB/elm Enclosures Philadelphia Reading • VaIley Forge Lehigh Valley Harrisburg Lancaster Scranton '6Vilkes-Barre Princeton Cherry Hill • New York • jh'ilmington A PROFESSIONAL CORPORATION SL 1 1194864v 1 041199.003 78 Stevens 8~ Lee, P.C. Michael D. Pipa, Esquire - LD. Number 53624 Shaun J. Mumford, Esquire - I.D. Number 84176 17 North Second Street, 16th Floor Harrisburg, P.A 17101 (717) 255-7376 Attorneys for Defendants KIRK LOVE and SHLRLEY LOVE, his wife, IN THE COURT OF COMMON PLEAS Plaintiffs CUMBERLAND COUNTY, PENNSYLVANIA v. KENNETH W. GRAF, M.D., SUSQUEIIANNA SURGEONS, LTD., t/dla/ SUSQUEI-IANNA SURGEONS, A L)IVISION OF HERITAGE MEDICAL GROUP, LLP. Defendants NO. 09-623 CIVIL ACTION -LAW MEDICAL MALPRACTICE JURY TRIAL DEMANDED NOTICE OF INTENT TO SERVE SUBPOENAS TO PRODUCE DOCUMENTS AND THINGS FOR _ DISCOVERY PURSUANT TO RULE 4009.21 Defendants intend to serve a subpoena identical to the one that. is attached to this Notice. Yau have twenty (20) days from the date listed below in which to file of record and. serve upon the undersigned any objection to the subpoena. If no objection is made, the subpoena may be served. Date: C c -~z ~:~ •~- ~ ~ c ~ '~ ~ ~, ~: STEVENS & LEE - By ~~~,~c~~LC~~. ~~ . 1 -~~:-r. ______ Michael D. Pipa, Esquire Attorney I.D. No. 53624 17 North Second Street, 16th Floor Harrisburg, PA 1710 ]. (717)255-7376 Attorneys for Defendants SL 1 1002810v1 /041199.00378 KIRK LOVE and SHIRLEY LOVE, his wife, Plaintiffs v. IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENIvTSY"LVANIA NO.09-623 KENNETH W. GRAF, M.D., SUSQUEHANNA SiJRGEONS, LT:D., t/d/a/ SUSQUEHANNA SiJRGEONS, A DIVISION OF HERITAGE MEDICAL GROUP, LLP. Defendants CIVIL ACTION -- LAW MEDICAL MALPRACTICE JURY TRIAL DEMANDED SUBPOENA TO PRODUCE DOCUMENTS OR THINGS FOR DISCOVERY PURSUANT TO RULE 4009.22 TO: Medical Records Holy Spirit Hospital 503 N 21st Street Camp Hill, PA 17011 Within twenty (20) days after service of this subpoena, you are ordered by the court to produce to STEVENS & LEE, 17 North Second Street, 16th Floor, Harrisburg, PA 17101, A'CTN: Pamela L. Boger, Paralegal, the fallowing documents or things: Any and all radiology studies performed between February 1, 2007 and November 30, 2007, concerning Kirk Love, (DOB: 1/14/1951, SSN: x~-u-5878,~preferably on a CD. You may deliver or Mail legible copies of the documents or produced things requested by this subpoena, together with the Certificate of Compliance, to the party making this request at the address listed above. 'You have the right to seek in advance the reasonable cost of preparing the copies and producing the things sought. If you fail to produce the documents or things requires by this subpoena within twenty (211) days after its service, the party serving this subpoena may seek a court order compelling you to comply with it. This subpoena was issued at the request of the following person: Michael D. Pipa. Esquire, Stevens & Lee, 17 N. 2nd Street, 16th Floor, Harrisburg, PA 17101, Court -~ # 53624. Attorneys. for ~,efend~:nts.~ ~~ BY 'T COURT: Date: ~, By: (Prothono ) Sea~-ofth~ Court_ '~~~ ~'~U~ sLl 1002818 1/041199.00378 CERTIFICATE OF SERVICE I, PAMELA L. BOGER, PARALEGAL .AND EMPLOYEE OF STEVENS & LEE, P.C., HEREBY CERTIFY that a copy of the foregoing document was served ~y first class mail, postage prepaid., on the 3rd day of October, 2012, upon the following: Leslie M. Fields, Esquire Costopoulos, Foster & Fields 831 Market Street PO Box 222 Lemoyne, PA 17043 SLI 1002810v1!041199.00378 CERTIFICATE OF SERVICE I, PAMELA L. BOGER, PARALEGAL and EMPLOYEE OF STEVENS & LEE, '.C., hereby certify that a true and correct copy of the foregoing Certificate Prerequisite to Service cif Subpoena was served upon the following counsel of record, by depositing the same in the United States mail, postage pre-paid, on November 5, 2012, addressed as follows: Leslie M. Fields, Esquire Costopoulos, Foster & Fields 831 Market Street PO Box 222 Lemoyne, PA 17043 Counsel for Plaintiffs ~.~ _~ ~ , SL 1 1200622v 1 041199.003'78 COSTOPOULOS, FOSTER & FIELDS ; Cat 04'0 IWO By: Leslie M. Fields, Esquire I.D. No. 29411 831 Market Street :ii3141:110E:11 1- ND C;U T ( Lemoyne, PA 17043-0222 `f t�� Tel.: (717) 761-2121 Fax: (717) 761-4031 Attorney for Plaintiffs KIRK LOVE and SHIRLEY LOVE, : IN THE COURT OF COMMON PLEAS his wife, : CUMBERLAND COUNTY, PENNSYLVANIA Plaintiffs : MEDICAL MALPRACTICE v. : No.: 09-623 KENNETH W. GRAF, M.D., SUSQUEHANNA SURGEONS, LTD., . t/d/b/a SUSQUEHANNA SURGEONS, . A DIVISION OF HERITAGE MEDICAL : GROUP, LLP, : CIVIL ACTION - LAW Defendants : JURY TRIAL DEMANDED PRAECIPE TO SETTLE, DISCONTINUE AND END TO THE PROTHONOTARY: Please mark the above-captioned action settled and discontinued. RESPECTFULLY SUBMITTED, �� r " Leslie ►. . Fields, Esquire I.D. No.: 29411 COSTOPOULOS, FOSTER & FIELDS 831 Market Street, P.O. Box 222 Lemoyne, PA 17043-0222 Phone: (717) 761-2121 -Attorney for Plaintiff Date: -S"2. /G 2.0 I.� -1-