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HomeMy WebLinkAbout09-2045IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 0 ? _ 0 413, cN l ? el n? e , eft_ CIVIL ACTION - MEDICAL PROFESSIONAL LIABILITY ACTION DAVID C. PHELPS, as Administrator of the CHRISTOPHER J. WITT, M.D. the ESTATE OF LAURA A. PHELPS, deceased, 890 Poplar Church Road and DAVID C. PHELPS, Individually Suite 300 and in his own right, Camp Hill, PA 17011 5102 Staplehurst Lane Woodstock, GA 30189 EAR, NOSE AND THROAT FACIAL PLASTIC SURGERY GROUP, P.C., a/k/a EAR, NOSE AND THROAT SURGERY GROUP, P.C. 890 Poplar Church Road Suite 300 Camp Hill, PA 17011 Plaintiffs Defendants versus PRAECIPE FOR WRIT OF SUMMONS TO THE PROTHONOTARY OF SAID COURT: Please issue a writ of summons in the above-captioned action. X Writ of Summons shall be issued and forwarded to ( ) Attorney and (X) Sheriff ( ) Defendant Duane S. Barrick, Esquire Navitsky, Olson & Wisneski LLP 2040 Linglestown Road, Suite 303 z Harrisburg, PA 17110 Signa of Attorney (717) 541-9205 I.D. No. 77400 Dated: 411 A t T- O N ? A F c t N 0 LN 3 fir C \J H n T r IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. Q 9- o 0 g r C F ,,, l ?uA- CIVIL ACTION - MEDICAL PROFESSIONAL LIABILITY ACTION DAVID C. PHELPS, as Administrator of the the ESTATE OF LAURA A. PHELPS, deceased, and DAVID C. PHELPS, Individually and in his own right, 5102 Staplehurst Lane Woodstock, GA 30189 CHRISTOPHER J. WITT, M.D. 890 Poplar Church Road Suite 300 Camp Hill, PA 17011 EAR, NOSE AND THROAT FACIAL PLASTIC SURGERY GROUP, P.C., a/k/a EAR, NOSE AND THROAT SURGERY GROUP, P.C. 890 Poplar Church Road Suite 300 Camp Hill, PA 17011 Plaintiffs Defendants WRIT OF SUMMONS TO THE ABOVE NAMED DEFENDANT: YOU ARE NOTIFIED THAT THE ABOVE-NAMED PLAINTIFF HAS COMMENCED AN ACTION AGAINST YOU. Prothonotary Dated: L? J / a o 9 by?c-a D uty S R Thomas Kline Sheri Ronny R Anderson Chief Deputy s Office of Cumberland County ?a?yvltr 4f ?u,r,6rr,??? j x OFFICE OF $4ERIFF Edward L Schorpp Solicitor Jody S Smith Civil Process Sergeant SHERIFF'S RETURN OF SERVICE 04/06/2009 03:45 PM - Dennis Fry, De uty Sheriff, who being duly sworn according to law, states that on April 6, 2005 at 1545 hours, he served a rue copy of the within Writ of Summons upon the within named defendant, to wit: Eas, Nose and Thoart Facial Plastic Surgery Group by making known unto Colette Brown, Office Administrator, at 890 Popla Church Road, Suite 300, Camp Hill, Cumberland County, Pennsylvania, 17011 its contents and at t le same time handing to her personally the said true and correct copy of the same. 04/06/2009 03:45 PM - Dennis Fry, De, at 1545 hours, he served a wit: Christopher J. Will, M. Church Road, Suite 300, C same time handing to her r SHERIFF COST: $57.92 April 07, 2009 y Sheriff, who being duly sworn according to law, states that on April 6, 2005 ie copy of the within Writ of Summons upon the within named defendant, to by making known unto Colette Brown, Office Administrator, at 890 Poplar ip Hill, Cumberland County, Pennsylvania, 17011 its contents and at the sonally the said true and correct copy of the same. SO ANSWERS, R THOMAS KLINE, SHERIFF Dep y Sheri Docket No. 2009-2045 David Phelps v Christopher Witt RLED-OFFICE OF THE MOT!- ONOTARY 2009 APR - 9 AM 9: 5 2 PEiNINSYLVANA FOULKROD ELLIS Professional Corporation 2010 Market Street Camp Hill, Pennsylvania 17011 Telephone: (717) 909-7006 Fax: (717) 909-6955 DAVID C. PHELPS, as Administrator Of the ESTATE OF LAURA A. PHELPS, Deceased, and DAVID C. PHELPS, Individually and in his own right, Plaintiffs v. CHRISTOPHER J. WITT, M.D. AND EAR, NOSE AND THROAT FACIAL PLASTIC SURGERY GROUP, P.C., a/k/a EAR, NOSE AND THROAT SURGERY GROUP, P.C., Defendants Attorneys for Defendants: Christopher J. Witt, M.D., and Ear, Nose and Throat Surgery Group, P.C. IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA : CIVIL ACTION - LAW NO.09-2045 : JURY TRIAL DEMANDED PRAECIPE FOR ENTRY OF APPEARANCE TO: PROTHONOTARY Kindly enter our appearance on behalf of Defendants, Christopher J. Witt, M.D. and Ear, Nose and Throat Surgery Group, P.C., in the above-captioned action. Respectfully submitted, Date: /-/- / q-- 0 / FOULKROD ELLIS By: Leigh Af1lis, Esquire Attorney 53229 Cindy Nsquire Attorney I.D. No. 83823 Y CERTIFICATE OF SERVICE I HEREBY CERTIFY that true and correct copies of the foregoing were served upon all counsel of record this 14th day of April, 2009, by depositing said copy in the United States Mail at Camp Hill, Pennsylvania, postage prepaid, first class delivery, and addressed as follows: Duane S. Barrick, Esquire Navitsky, Olson & Wisneski, LLP 2040 Linglestown Road, Suite 303 Harrisburg, PA 17110 (Counsel for Plaintiffs) FOULKROD ELLIS PROFESSIONAL CORPORATION ?. B y• Stacy L. Breon, Paralegal iF 7FH7 t 1'{ 1 1 A \ 1099 A?-?`? 16 Fi 2: ; DAVID C. PHELPS, as Administrator Of the ESTATE OF LAURA A. PHELPS, Deceased, and DAVID C. PHELPS, Individually and in his own right, Plaintiffs V. CHRISTOPHER J. WITT, M.D. AND EAR, NOSE AND THROAT FACIAL PLASTIC SURGERY GROUP, P.C., a/k/a EAR, NOSE AND THROAT SURGERY GROUP, P.C., IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA : CIVIL ACTION - LAW : NO.09-2045 Defendants : JURY TRIAL DEMANDED RULE TO THE PLAINTIFF: You are hereby ordered and directed to file your Complaint against Defendant in the above-captioned matter within twenty (20) days of service of this Rule against you or suffer judgment non pros. Date: ?C +,:1 /4' g t dw? Pro notary R 01 FOULKROD ELLIS Tno?eseionav Cortportattoll Andrew H. Foulkrod, Esquire Attorney I.D. #77394 Gerryanne Cauler, Esquire Attorney I.D. #90539 2010 Market Street Camp Hill, PA 17011 Phone: (717) 909-7006 Fax: (717) 909-6955 Attorneys for Defendants Christopher J. Witt, M.D. and Ear, Nose and Throat Surgery Group, P.C. ij,Av11J L. Prir•LPS, as Administrator of the ESTATE OF LAURA A. PHELPS, Deceased, and DAVID C. PHELPS, Individually and in his own right, Plaintiffs No. 09-2045 V. CHRISTOPHER J. WITT, M.D., AND EAR, NOSE AND THROAT FACIAL PLASTIC SURGERY GROUP, P.C., a/k/a EAR, NOSE AND THROAT SURGERY GROUP, P.C., Defendants COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW JURY TRIAL DEMANDED PRAECIPE FOR SUBSTITUTION OF COUNSEL TO THE PROTHONOTARY: Kindly substitute the appearance of Andrew H. Foulkrod, Esquire and Gerryanne Cauler, Esquire for the appearance of Leigh A.J. Ellis, Esquire and Cindy N. Ellis, Esquire on behalf of Defendants Christopher J. Witt, M.D. and Ear, Nose and Throat Surgery Group, P.C. in the above-captioned action. Date: vl Respectfully submitted, FOULKROD - LS Professional Cchrpor tion By: AndWw H. foulkrod, Esquire Court I.D. #77394 Gerryanne Cauler, Esquire Court I.D. #90539 f , 1*- CERTIFICATE OF SERVICE I HEREBY CERTIFY that true and correct copies of the foregoing were served upon all counsel of record this _4_L day of 2009, by depositing said copy in the United States Mail at Camp Hill, Pennsylvania, postage prepaid, first class delivery, and addressed as follows: Duane S. Barrick, Esquire Navitsky, Olson & Wisneski, LLP 2040 Linglestown Road, Suiate 303 Harrisburg, PA 17110 (Counsel for Plaintiff) FOULKROD ELLIS Professional Corporation Laurie C. Hollinger, Paraleg 2 ? a'? d? IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA DAVID C. PHELPS, as Administrator of the the ESTATE OF LAURA A. PHELPS, deceased, and DAVID C. PHELPS, Individually NO. 09-2045 Civil Term and in his own right, Plaintiff CIVIL ACTION MEDICAL PROFESSIONAL V. LIABILITY ACTION CHRISTOPHER J. WITT, M.D., and EAR, NOSE AND THROAT FACIAL PLASTIC SURGERY GROUP, P.C., a/k/a EAR, NOSE AND THROAT SURGERY GROUP, P.C., JURY TRIAL DEMANDED Defendants CERTIFICATE OF MERIT AS TO CHRISTOPHER J. WITT, M.D. I, Michael J. Navitsky, Esquire, certify that: B 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 the undersigned that there is a basis to conclude that the care, skill or knowledge exercised or exhibited by the other ORI SNDN7-"?l • 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; AND/OR ? expert testimony of an appropriate licensed professional is unnecessary for prosecution of the claim against this defendant. Respectfully submitted, NAV?TSKY, OLS?N & W NESKI LLP J. JN?vitsky, I.D. No. 5'03 U 2040 Linglestown Road, uite 303 Harrisburg, PA 17110 717/541-9205 Counsel for Plaintiff Date: A ?, p 2 orw CERTIFICATE OF SERVICE I, Lois E. Stauffer, an employee of the law firm of Navitsky, Olson & Wisneski LLP, do hereby certify that I am this 7th day of May, 2009 serving a true and correct copy of a Certificate of Merit as to Christopher J. Witt, M.D. upon all counsel of record via postage prepaid first class United States mail addressed as follows: Andrew Foulkrod, Esquire Gerryanne Cauler, Esquire Foulkrod Ellis 2010 Market Street Camp Hill, PA 17011 Counsel for Defendants Lois E. Stauffer FILED-Of- fCE OF THE mon-` NOTARY 2909MAY -8 PM 12: 37 t .i J ??? u?r,a l.r J' •t IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA DAVID C. PHELPS, as Administrator of the the ESTATE OF LAURA A. PHELPS, deceased, and DAVID C. PHELPS, Individually and in his own right, Plaintiff V. CHRISTOPHER J. WITT, M.D., and EAR, NOSE AND THROAT FACIAL PLASTIC SURGERY GROUP, P.C., a/k/a EAR, NOSE AND THROAT SURGERY GROUP, P.C., Defendants NO. 09-2045 Civil Term CIVIL ACTION MEDICAL PROFESSIONAL LIABILITY ACTION JURY TRIAL DEMANDED CERTIFICATE OF MERIT AS TO EAR_ NOSE AND THROAT FACIAL PLASTIC SURGERY GROUP, P.C., a/k/a EA_R NOSE AND THROAT SURGERY GROUP, P.C. I, Michael J. Navitsky, Esquire, certify that: 9/ 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 the undersigned that there is a basis to conclude that the care, skill or knowledge exercised or exhibited by the other i L r i 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; AND/OR ? expert testimony of an appropriate licensed professional is unnecessary for prosecution of the claim against this defendant. Respectfully submitted, NAVITSKY, OLSON WISNESKI LLP "Ji-?A Michael avitsky, quire I.D. No. 58803 2040 Linglestown Road, Suite 303 Harrisburg, PA 17110 717/541-9205 Counsel for Plaintiff Date: ??l^ r? 2 .t CERTIFICATE OF SERVICE I, Lois E. Stauffer, an employee of the law firm of Navitsky, Olson & Wisneski LLP, do hereby certify that I am this 7tn day of May, 2009 serving a true and correct copy of a Certificate of Merit as to Ear, Nose and Throat Facial Plastic Surgery Group, P.C., a/k/a Ear, Nose and Throat Surgery Group, P.C. upon all counsel of record via postage prepaid first class United States mail addressed as follows: Andrew Foulkrod, Esquire Gerryanne Cauler, Esquire Foulkrod Ellis 2010 Market Street Camp Hill, PA 17011 Counsel for Defendants Lois E. Stauffer FILED--&FFICE OF THE P,POTNO?,IOTARY 2009 MAY - 8 PM 12: 3 I N Ty IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA DAVID C. PHELPS, as Administrator of the the ESTATE OF LAURA A. PHELPS, deceased, and DAVID C. PHELPS, Individually NO. 09-2045 Civil Term and in his own right, Plaintiff CIVIL ACTION MEDICAL PROFESSIONAL V. : LIABILITY ACTION CHRISTOPHER J. WITT, M.D., and EAR, NOSE AND THROAT FACIAL PLASTIC SURGERY GROUP, P.C., a/k/a EAR, NOSE AND THROAT SURGERY GROUP, P.C., JURY TRIAL DEMANDED Defendants NOTICE YOU HAVE BEEN SUED IN COURT. If you wish to defend against the claims set forth in the following pages, you must take action within twenty (20) days after this Complaint and Notice are served, by entering a written appearance personally or by attorney and filing in writing with the Court your defenses or objections to the claims set forth against you. You are warned that if you fail to do so the case may proceed without you and a judgment may be entered against you by the Court without further notice for any money claimed in the Complaint or for any other claim or relief requested by the Plaintiff. You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. Cumberland County Bar Association 32 South Bedford Street Carlisle, PA 17013 1-800-990-9108 IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA DAVID C. PHELPS, as Administrator of the the ESTATE OF LAURA A. PHELPS, deceased, and DAVID C. PHELPS, Individually NO. 09-2045 Civil Term and in his own right, Plaintiff CIVIL ACTION : MEDICAL PROFESSIONAL V. LIABILITY ACTION CHRISTOPHER J. WITT, M.D., and EAR, NOSE AND THROAT FACIAL PLASTIC SURGERY GROUP, P.C., a/k/a EAR, NOSE AND THROAT SURGERY GROUP, P.C., JURY TRIAL DEMANDED Defendants AVISO USTED HA SIDO DEMANDADO EN LA CORTE. Si usted desea defenderse de las quejas expuestas en las paginas siguientes, debe tomar accion dentro de veinte (20) dias a partir de la fecha en que recibio la demanda y el aviso. Usted debe presentar comparecencia escrita en persona o por abogado y presentar en la Corte por escrito sus defensas o sus objeciones a las demandas en su contra. Se le avisa que si no se defiende, el caso puede proceder sin usted y la Corte puede decidir en su contra sin mas aviso o notificacion por cualquier dinero reclamado en la demanda o por cualquier otra queja o compensacion reclamados por el Demandante. USTED PUEDE PERDER DINERO, O PROPIEDADES U OTROS DERECHOS IMPORTANTES PARA USTED. LLEVE ESTA DEMANDA A UN ABOGADO INMEDIATAMENTE. SI USTED NO TIENE O NO CONOCE UN ABOGADO, VAYA O LLAME A LA OFICINA EN LA DIRECCION ESCRITA ABAJO PARA AVERIGUAR DONDE PUEDE OBTENER ASISTENCIA LEGAL. Cumberland County Bar Association 32 South Bedford Street Carlisle, PA 17013 1-800-990-9108 IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA DAVID C. PHELPS, as Administrator of the the ESTATE OF LAURA A. PHELPS, deceased, and DAVID C. PHELPS, Individually NO. 09-2045 Civil Term and in his own right, Plaintiff CIVIL ACTION MEDICAL PROFESSIONAL V. LIABILITY ACTION CHRISTOPHER J. WITT, M.D., and EAR, NOSE AND THROAT FACIAL PLASTIC SURGERY GROUP, P.C., a/k/a EAR, NOSE AND THROAT SURGERY GROUP, P.C., JURY TRIAL DEMANDED Defendants COMPLAINT 1. Plaintiff, David C. Phelps, son of Laura A. Phelps, Deceased, is an adult individual who resides in Woodstock, Georgia. 2. Plaintiff, David C. Phelps, is the Administrator of the Estate of Laura A. Phelps by virtue of Letters of Administration that were duly granted him by the Register of Wills of Cumberland County, Pennsylvania. 3. Defendant, Christopher J. Witt, M.D., was at all times relevant to this Complaint, a physician licensed to practice medicine in the Commonwealth of Pennsylvania. 4. At all times relevant to this Complaint, Dr. Witt held himself out to the public as an otolaryngologist. 5. Plaintiff is asserting a professional liability claim against Dr. Witt. 6. Defendant, Ear, Nose and Throat Facial Plastic Surgery Group, P.C., aka Ear, Nose and Throat Surgery Group, P.C. is a Pennsylvania Corporation and corporate medical institution which at all relevant times herein engaged in the business of providing medical services to the public in Cumberland County, Pennsylvania. 7. Plaintiff is asserting a professional liability claim against Defendant, Ear, Nose and Throat Facial Plastic Surgery Group, P.C., aka Ear, Nose and Throat Surgery Group, P.C. by virtue of the actions and/or inactions of Defendant Christopher I Witt, M.D., and all such health care providers, agents, apparent agents, servants and/or employees of Ear, Nose and Throat Facial Plastic Surgery Group, P.C., aka Ear, Nose and Throat Surgery Group, P.C., who were involved in the care of Mrs. Phelps during April and May of 2007. The claims asserted are both for vicarious and corporate liability. 8. Plaintiff cannot identify any other health care providers, agents, apparent agents, servants and/or employees of Defendant, Ear, Nose and Throat Facial Plastic Surgery Group, P.C., aka Ear, Nose and Throat Surgery Group, P.C., other than Dr. Witt because both Defendants represented to the Plaintiff that "After extensive searching of records, we are unable to locate her chart." 9. At all times relevant herein, Dr. Witt and all such other health care providers at Ear, Nose and Throat Facial Plastic Surgery Group, P.C., aka Ear, Nose and Throat Surgery Group, P.C. who had contact with or cared for Mrs. Phelps during April and May, 2007 were acting as agents, apparent agents, servants and/or employees of Defendant, Ear, Nose and Throat Facial Plastic Surgery Group, P.C., aka Ear, Nose and Throat Surgery Group, P.C., and were furthering its economic and financial interests. 10. Mrs. Phelps was first seen by Dr. Witt at the Defendant practice on April 9, 2007 for a complaint of ear pain. 11. Dr. Witt wrote to Mrs. Phelps' family physician regarding that visit and stated that Mrs. Phelps was a 74 year old woman with a reported six day history of terrible right otalgia (ear pain). 2 12. Dr. Witt noted on this visit of April 9, 2007 that Mrs. Phelps had some otorrhea (discharge from the ear) at the time. 13. Mrs. Phelps explained to Dr. Witt that she had been started on Cipro and Ciprodex ear drops by her family physician at Internists of Central Pennsylvania. 14. Mrs. Phelps reported to Dr. Witt that her ear continued to feel closed but her ear pain had improved and her hearing had returned to near normal. 15. Dr. Witt noted that Mrs. Phelps had developed a severe upper respiratory infection in March and that since that time she had nasal congestion, clear to purulent rhinorrhea (nasal discharge), epistaxis (hemorrhage from the nose), crusting, post nasal drip, and cough. 16. Dr. Witt noted that "Health history form was reviewed with new form today, including ROS, allergies, medications, and PMHx and PSHx." 17. Dr. Witt examined Mrs. Phelps' ears, nose and throat and his assessment was of acute otitis externa which was resolving with Ciprodex ear drops. 18. Dr. Witt advised Mrs. Phelps to continue with Ciprodex for another five days and to avoid water contamination. He also noted that she had serous otitis media which was clinically resolving. He prescribed Bacitracin ointment for her nose and a seven day course of Diflucan for her throat. 19. Dr. Witt's plan was to see Mrs. Phelps for follow-up in seven to ten days for a re-check. 20. However, Mrs. Phelps returned to Dr. Witt's office three days later on April 12, 2007 complaining of ear pain. 21. Dr. Witt dictated that she had been seen three days ago and was noted to have resolving otitis externa on the right as well as a scant serous effusion in the ear. 3 22. Dr. Witt further noted that Mrs. Phelps was being treated with Cipro and Ciprodex drops and that in the interim she had been diagnosed with strep, tonsillitis, and had her Cipro discontinued. 23. Dr. Witt noted that Mrs. Phelps had been started on Azithromycin by her family physician. 24. Dr. Witt noted that Mrs. Phelps reported that the night before her pain and hearing loss became precipitously worse. 25. Dr. Witt examined Mrs. Phelps and noted that her right EAC (external auditory canal) was normal but that her TM (tempanic membrane - eardrum) was intact and retracted with purulent effusion. 26. Dr. Witt's assessment was of acute otitis media for which he recommended a ten day course of Avelox in addition to her current regimen. 27. Dr. Witt's plan was to see Mrs. Phelps for follow-up in one week. 28. However, five days later on April 17, 2007, Mrs. Phelps returned to see Dr. Witt for a third time. On this visit Dr. Witt noted that Mrs. Phelps was seen five days ago. 29. Mrs. Phelps told Dr. Witt that after stopping Avelox, her right ear pain had progressed. She was restarted on Avelox and reported that her ear had improved. 30. Mrs. Phelps told Dr. Witt that three or four days ago, she developed serous otorrhea of the right ear and when this occurred, her otalgia resolved. She stated that she continued to have poor hearing in the right ear. 31. Dr. Witt examined Mrs. Phelps on April 17, 2007 and noted that her right EAC was normal but that her right TM was intact and thickened with apparent serous effusion. He further noted that her nasal turbinates were slightly edematous with moderate crusting. 4 32. Dr. Witt had an audiogram performed which demonstrated normal hearing in Mrs. Phelps' left ear but severe mixed loss in the right ear with a type-B tympanogram. 33. Dr. Witt's assessment of Mrs. Phelps on April 17, 2007 was of acute otitis media with perforation resolving. 34. Dr. Witt recommended Mrs. Phelps continue with Avelox and planned to observe for resolution of her inflammation and to then perform a myringotomy (surgical incision of the ear drum to allow drainage of fluid from the middle ear chamber). This was to be scheduled in five to seven days. 35. Mrs. Phelps returned to Dr. Witt for her fourth visit on April 24, 2007. 36. Dr. Witt dictated that Mrs. Phelps was struggling with an acute otitis media on the right side and that she had completed her antibiotics and reported that her otalgia had resolved but continued to have diminished hearing on the right side. 37. Dr. Witt examined Mrs. Phelps and found that her right EAC was normal but that her TM was intact and retracted with serous effusion and her turbinates remained edematous. 38. Dr. Witt's assessment was that of acute otitis media. He performed a right myringotomy and evacuated a small serous effusion. 39. Dr. Witt advised Mrs. Phelps to avoid water contamination and to restart taking nasal steroids. 40. Dr. Witt's plan was to see Mrs. Phelps in follow-up in two weeks for a re-check. 41. However, three days later, on May 7, 2007, Mrs. Phelps contacted Dr. Witt for a fifth time regarding her right ear problems. 5 42. On May 7, 2007 Dr. Witt reported that Mrs. Phelps had experienced a significant change in symptoms. She had called his office complaining of a fever and having temporal headaches and pretragal (area in front of ear) pain. 43. The contact with Dr. Witt on May 7, 2007 was by telephone. Dr. Witt did not see Mrs. Phelps on May 7, 2007. 44. Otolaryngologists know that fever, particularly when coupled with a history of ear infection, temporal headaches and ear pain are signs and symptoms of likely extension of an ear infection. 45. Nevertheless, Dr. Witt only called in a prescription for the oral antibiotic Biaxin for Mrs. Phelps on that day, May 7, 2007. 46. It was a clear deviation of the requisite standard of care for Dr. Witt not to have seen Mrs. Phelps on this day, May 7, 2007. 47. It was a clear deviation of the requisite standard of care for Dr. Witt not to have directed Mrs. Phelps to go to an emergency room for assessment, blood work, radiographic imaging and intravenous antibiotics. 48. The ominous escalation of Mrs. Phelps' symptoms on May 7, 2007 of fever, temporal headaches and pretragal pain mandated such action. 49. The following day, May 8, 2007, Mrs. Phelps had her sixth contact with Dr. Witt. 50. Dr. Witt dictated that Mrs. Phelps underwent a right myringotomy on April 24, 2007 and that Mrs. Phelps reported continued diminished hearing, although it had improved somewhat. 51. Dr. Witt noted that Mrs. Phelps had the new complaint of temporal headache and pretragal pain the day before and that she also reported the new complaint of a fever of 102. 52. Dr. Witt dictated that due to Mrs. Phelps' report of pain and fever she was started on Biaxin the day before and that her ear pain and fever had resolved. 6 53. On examination, Dr. Witt noted that Mrs. Phelps' EAC was normal, but that there was a large clot on the visualized portion of her right TM suggesting an aerated middle ear. 54. Dr. Witt's assessment was of serous otitis media resolving. 55. He noted that Mrs. Phelps' complaints were now due to reduced vibration of the TM, due to clot, for which he recommended nightly use of mineral oil. 56. Dr. Witt's plan as of May 8, 2007 was to see Mrs. Phelps for follow-up in two weeks at which time he noted that this process should be resolved. 57. There was a deviation from the appropriate standard of medical care for Dr. Witt not to have ordered blood studies, imaging studies and N antibiotics for Mrs. Phelps as of May 8, 2007 because she continued to show signs and symptoms of prolonged right ear infection and suffered a significant change in her symptoms reflecting involvement of the mastoid. 58. Three days later on May 11, 2007, Mrs. Phelps had her 7th contact with Dr. Witt in a 5-week period. She apparently called Dr. Witt with complaints relative to her right ear because her CVS Pharmacy records reflect that Dr. Witt called in a prescription for Ciprodex eardrops to the right ear to be used for 10 days. 59. Dr. Witt again failed to order blood studies, radiographic studies or antibiotics as of May 11, 2007. 60. Within four days, on May 15, 2007, Mrs. Phelps was transported to Holy Spirit Hospital with evidence of reduced mental status and unstable vital signs. 61. In the emergency room of Holy Spirit Hospital, Mrs. Phelps was noted to have a fever of 101.6, and a history of having a right ear infection for weeks. 62. On exam, Mrs. Phelps' right tympanic membrane appeared to be perforated and her tympanic membrane and ear canal were erythematous with yellowish pus draining. Blood studies 7 were done that demonstrated the presence of severe infection. She was diagnosed with otitis external and otitis media and started immediately on N antibiotics. 63. A culture of Mrs. Phelps' right ear on May 15, 2007 and also blood cultures were ordered and performed. The blood culture came back positive for beta-streptococcus, group A as did the culture from her right ear. 64. A CT Scan performed on May 15, 2007 evidenced right sided mastoiditis (inflammation of the mastoid bone at the base of the skull), and there was a strong suggestion of temporal lobe abscess (adjacent to the focus of the mastoiditis). 65. Progressive vasomotor instability and cardiac arrhythmia ensued. 66. Mrs. Phelps died on May 16, 2007 despite intensive care unit support. Her death on May 16, 2007 was attributed to systemic sepsis secondary to mastoiditis. 67. Mrs. Phelps' outpatient treatment by Dr. Witt consisted of several courses of oral antibiotics supplemented by ear drops and a myringotomy procedure over the five week period beginning on April 9, 2007 and ending on May 11, 2007 and consisting of seven contacts over this five week period. 68. Over the course of this treatment period, Mrs. Phelps experienced fluctuating right ear pain and continued right ear problems. 69. On May 7, 2007, Mrs. Phelps' pain progressed to involve the temporal region above the ear and the pretragal region in front of the ear. 70. At the same time, Mrs. Phelps began experiencing elevated temperatures. 71. Despite progression of her symptoms and the onset of fever, her assessment as reflected in the available letters from Dr. Witt to Mrs. Phelps' family doctor document not ordering any blood studies, radiographic evaluations or IV antibiotics. 8 72. Dr. Witt failed to order any blood studies, radiographic evaluations of the temporal bone and mastoid, or N antibiotics for Mrs. Phelps at any time during her seven contacts with him over the five week period of treatment. 73. Mrs. Phelps was at risk for disseminated infection from the time of onset of her symptoms. 74. Her past medical history of significance included a dependence on Prednisone for arthritis control and diabetes, both of which present immunocompromising concerns for which Dr. Witt should have recognized and treated accordingly. 75. Her immunocompromised status was a factor in the development of mastoid infection that seeded the brain and blood leading to progressive sepsis and cardiovascular instability, which caused her death. 76. Throughout the five week treatment period by Dr. Witt, prior to her death, Mrs. Phelps showed clear, objective evidence of recalcitrant ear infection that was progressing. 77. For patients in an immune-compromised situation, blood and radiographic (simple CT or MRI) studies are absolutely essential in diagnosing and monitoring infections within the head and neck. 78. Patients such as Mrs. Phelps with immune-compromised systems are at great risk for infections seeding the brain, particularly if the infection does not immediately respond to oral and otopical antibiotics. 79. The failure of Dr. Witt to provide intravenous antibiotics - a measure that increases the concentration of antibiotic delivered to the site of an infection - represented a clear violation of the appropriate standard of medical care by an otolaryngologist for treatment of an infection that failed to respond to oral and otopical antibiotics. 80. Likewise, it was a clear deviation from the appropriate standard of medical care for Dr. Witt, 9 an otolaryngologist, to not order blood tests and radiographic studies which were absolutely essential in diagnosing and monitoring infections within the head and neck. 81. Mrs. Phelps' immune-compromised status placed her at significant risk for a serious infection. 82. Failure to respond to oral and otopical antibiotics in the first weeks after she was first treated should have prompted immediate diagnostic blood work, cultures and radiographic studies by Dr. Witt to assess the full extent of the infection. Having done so would have led to IV antibiotic therapy and may have prompted surgical drainage of the mastoid infection. 83. Had Dr. Witt instituted the above-noted interventions, Mrs. Phelps' life would have been saved. 84. Another clear deviation from the appropriate standard of medical care by Dr. Witt and his office staff was in not maintaining a secure and organized record of Mrs. Phelps' treatment. Failing to do so greatly increased the risk of harm, including death, and did, in fact, cause her death. 85. The absence of records raises the troubling possibility that Dr. Witt may not have reviewed prior records while he followed Mrs. Phelps during the course of her progressive infection, ultimately leading directly to her death. 86. The allegations of medical negligence which directly caused Mrs. Phelps' death are based entirely upon medical expert review and analysis by a board-certified otolaryngologist as evidenced in the Certificate of Merit in support of this Complaint. 87. At the time of her death on May 16, 2007, Mrs. Phelps was 74 years of age. She was widowed and survived by three adult children: David C. Phelps, who is the Plaintiff in this action by virtue of his appointment as the Administrator of his mother's Estate; a daughter, Leslee Yarlet; and another son, Jonathan Phelps, who passed away in January, 2009. 10 88. Mrs. Phelps experienced severe pain and suffering during the period of treatment by Dr. Witt which ultimately led to her death from cardio pulmonary collapse due to sepsis due to mastoiditis on May 16, 2007. 89. Mrs. Phelps' death could have easily been prevented with proper diagnosis and treatment of her infection as stated above. 90. Plaintiff, David C. Phelps, as Administrator of the Estate of Laura A. Phelps, deceased and David C. Phelps, Individually and in his own right, brings this action on behalf of the Estate of Laura A. Phelps under and by Virtue of Pennsylvania's Survival Act for all damages suffered by the Estate by reason of the death of Mrs. Phelps, including Mrs. Phelps' medical expenses, the pain and suffering Mrs. Phelps underwent prior to her death, and for all other damages properly recoverable under 42 Pa. C.S.A. §8302. 91. Plaintiff, David C. Phelps, as Administrator of the Estate of Laura A. Phelps, deceased and David C. Phelps, Individually and in his own right, brings this action for the Wrongful Death of Laura A. Phelps on behalf of all persons entitled to recover damages therefore, under and by virtue of Pennsylvania's Wrongful Death Act, 42 Pa. C.S.A. §8301. 92. Decedent, Laura A. Phelps, did not bring an action for her injuries during her lifetime. 93. As a result of the death of Laura A. Phelps, deceased, Plaintiff has incurred medical, funeral and burial and related expenses, as well as expenses for the administration of Mrs. Phelps' Estate, for all of which claim is made therefor. 94. Plaintiff, David C. Phelps, as Administrator of the Estate of Laura A. Phelps, deceased, and David C. Phelps, Individually and in his own right, hereby makes a claim for all such other damages 11 to which he and Mrs. Phelps' beneficiaries; namely, her children, David C. Phelps, Leslee Yarlet, and the Estate of Jonathan Phelps are entitled under and by virtue of Pennsylvania's Wrongful Death Act, 42 Pa. C.S.A. §8301. COUNTI DAVID C. PHELPS, AS ADMINISTRATOR OF THE ESTATE OF LAURA A. PHELPS, DECEASED, AND DAVID C. PHELPS, INDIVIDUALLY AND IN HIS OWN RIGHT V. CHRISTOPHER J. WITT, M.D. 95. Paragraphs 1 through 94 of this Complaint are incorporated herein by reference as if set forth at length. 96. Defendant, Christopher J. Witt, M.D., is liable to the Plaintiff for all the injuries and damages as alleged herein, which were directly and proximately caused by his negligence in: a) Failing to order blood tests; b) Failing to perform or order cultures; C) Failing to order radiographic tests (x-rays, CT or MRI); d) Failing to prescribe intravenous antibiotics; e) Failing to direct Mrs. Phelps to go to an emergency room for assessment; f) Failing to maintain a secure and organized record of Mrs. Phelps' treatment; g) Failing to review prior records while following the patient during the course of her progressive infection; h) Failing to recognize the medical significance of Mrs. Phelps' medical history and physical findings; i) Failing to recognize Mrs. Phelps' prior medical history of diabetes and chronic Prednisone use to control arthritis placed her at increased risk of infection; 12 J) Failing to recognize that Mrs. Phelps was immune-compromised by virtue of her past medical history; k) Failing to diagnose mastoiditis; r and diagnose infection beyond the outer and middle ear; 1) Failing to test fo m with the proper medical procedure for a differential ) Failing to comply diagnosis; rule out an infective process beyond the outer and middle ear; n) Failing to o) Failing to rule out mastoiditis; ro riate to properly test for, diagnose and treat Mrs. Phelps with app p p) Failing antibiotics for her infection; Mrs. Phelps for a complicated illness such as secondary q) Failing to evaluate infection, sepsis and mastoiditis; r) S) t) U) Misdiagnosing Mrs. Phelps' medical condition; Failing to diagnose and treat Mrs. Phelps' infection; Failing to properly exam, assess, monitor and evaluate Mrs. Phelps; F to order and obtain appropriate diagnostic tests and studies such as Failing blood test and cultures; V) W) Failing to order laboratory and imaging studies; infection such as mastoiditis in a differential diagnosis Failing to include an of Mrs. Phelps' medical condition; and process. Failing to recognize the signs and symptoms of infective X) Phel s proximate result of Dr. Wilt's negligence, as alleged herein, Ws. p 97. As a direct and 13 sustained injuries and damages resulting in her death as set forth in the paragraphs above, which are incorporated herein by reference as if set forth at length, and greatly increased the risk of harm to her, and claim is made therefor. WHEREFORE, Plaintiff, David C. Phelps, as Administrator of the Estate of Laura Phelps, deceased, and David C. Phelps, Individually and in his own right, demands judgment against Defendant Christopher J. Witt, M.D., for compensatory damages in an amount in excess of Fifty Thousand ($50,000.00) Dollars, exclusive of interests and costs, and in excess of any jurisdictional amount requiring compulsory arbitration, and for a trial by jury. COUNT II DAVID C. PHELPS, AS ADMINISTRATOR OF THE ESTATE OF LAURA A. PHELPS, DECEASED, AND DAVID C. PHELPS, INDIVIDUALLY AND IN HIS OWN RIGHT V. EAR NOSE AND THROAT FACIAL PLASTIC SURGERY GROUP, P.C., A/K/A EAR; NOSE AND THROAT SURGERY GROUP, P.C. 98. Paragraphs 1 through 94 of this Complaint and Count I of this Complaint are incorporated herein by reference as if set forth at length. 99. Defendant, Ear, Nose and Throat Facial Plastic Surgery Group, P.C., a/k/a Ear, Nose and Throat Surgery Group, P.C., is vicariously liable to the Plaintiff for all injuries and damages alleged herein, which were directly and proximately caused by the negligence of Dr. Witt as set forth in paragraph 96 of this Complaint, all of which allegations are incorporated herein by reference as if set forth as length. 100. Additionally, Plaintiff asserts a corporate negligence count against Defendant, Ear, Nose and Throat Facial Plastic Surgery Group, P.C., a/k/a Ear, Nose and Throat Surgery Group, P.C., based on the corporate group's failure to maintain a secure and organized record of Mrs. Phelps' 14 treatment. Failure to do so resulted in Dr. Witt following Mrs. Phelps during the course of her progressive infection, which ultimately led to directly to her death, without benefit of review of prior medical records during his course of treatment. 101. Defendant owed a non-delegable duty to Mrs. Phelps to ensure her safety and well being while a patient of the practice. 102. Defendant failed to uphold the proper standard of care owed to Mrs. Phelps under the Thompson v. Nason, 591 A.2d 703 (1991) Doctrine, its progeny and under Pennsylvania law by its failure to maintain a secure and organized medical record of Mrs. Phelps' treatment, thereby breaching its non-delegable duty to use reasonable care in the maintenance of safe and adequate facilities and equipment, to formulate, adopt, and enforce adequate rules and policies to ensure quality care for patients, to select and retain competent physicians and staff, and to have adequate rules and policies in place to oversee all persons who practice medicine within its walls as to patient care, patient safety and, in particular, with respect to the maintaining of a secure and organized medical record. 103. As a direct and proximate result of the vicarious negligence and corporate negligence of Defendant, Ear, Nose and Throat Facial Plastic Surgery Group, P.C., a/k/a Ear, Nose and Throat Surgery Group, P.C., as alleged herein, Mrs. Phelps sustained injuries and damages which directly resulted in her death and greatly increased her risk of harm as alleged herein, and claim is made therefore. WHEREFORE, Plaintiff, David C. Phelps, as Administrator of the Estate of Laura Phelps, deceased, and David C. Phelps, Individually and in his own right, demands judgment against Defendant, Ear, Nose and Throat Facial Plastic Surgery Group, P.C., a/k/a Ear, Nose and Throat 15 Surgery Group, P.C., for compensatory damages in an amount in excess of Fifty Thousand ($50,000.00) Dollars, exclusive of interests and costs, and in excess of any jurisdictional amount requiring compulsory arbitration, and for a trial by jury. CLAIM I - SURVIVAL ACTION DAVID C. PHELPS, AS ADMINISTRATOR OF THE ESTATE OF LAURA A. PHELPS, DECEASED, AND DAVID C. PHELPS, INDIVIDUALLY AND IN HIS OWN RIGHT V. CHRISTOPHER J. WITT, M.D. AND EAR NOSE AND THROAT FACIAL PLASTIC SURGERY GROUP, P.C., A/K/A EAR NOSE AND THROAT SURGERY GROUP, P.C. 104. Paragraph 1 through 94 and Counts I and H of this Complaint are incorporated herein by reference as if set forth at length. 105. Plaintiff, David. C. Phelps, brings this action on behalf of the Estate of Laura A. Phelps, deceased, by and through virtue of the Act of 1976, July 9, P.L. 586, No. 142, §2, 42 Pa.C.S.A. §8302. 106. Defendants are liable to the Estate of Laura A. Phelps for injuries and damages resulting in her death as set forth herein; 107. Defendants and/or their agents, apparent agents, servants, members, partners and/or employees are jointly and severally liable to the Estate of Laura A. Phelps for the injuries and damages as set forth herein. 108. Plaintiff, David C. Phelps, as Administrator of the Estate of Laura A. Phelps, deceased, claims on behalf of said Estate, all damages suffered by said Estate by reason of the death of Mrs. Phelps, including Mrs. Phelps' medical expenses, the pain and suffering Mrs. Phelps underwent prior to death, and for all other damages properly recoverable under 42 Pa. C.S.A. §8302. WHEREFORE, Plaintiff, David C. Phelps, as Administrator of the Estate of Laura Phelps, deceased, and David C. Phelps, Individually and in his own right, demands judgment against 16 Defendants Christopher J. Witt, M.D. and Ear, Nose and Throat Facial Plastic Surgery Group, P.C., a/k/a Ear, Nose and Throat Surgery Group, P.C. for compensatory damages in an amount in excess of Fifty Thousand ($50,000.00) Dollars, exclusive of interests and costs, and in excess of any jurisdictional amount requiring compulsory arbitration, and for a trial by jury. CLAIM II - WRONFUL DEATH ACTION DAVID C. PHELPS, AS ADMINISTRATOR OF THE ESTATE OF LAURA A. PHELPS, DECEASED, AND DAVID C. PHELPS, INDIVIDUALLY AND IN HIS OWN RIGHT V. CHRISTOPHER J. WITT, M.D. AND EAR NOSE AND THROAT FACIAL PLASTIC SURGERY GROUP, P.C., A/K/A EAR, NOSE AND THROAT SURGERY GROUP, P.C. 109. Paragraphs 1 through 94, Counts I and II and Claim I of this Complaint are incorporated herein by reference as if set forth at length. 110. Plaintiff, David C. Phelps, is the son of decedent, Laura A. Phelps, and is entitled to bring this Wrongful Death Claim pursuant to 42 Pa. C.S.A. §8301(b). Plaintiff, David C. Phelps, brings this action for the wrongful death of Laura A. Phelps, deceased, in his own right and is entitled to recover damages by and by virtue of the and by virtue of the Act of 1976, July 9, P.L. 586, No. 142, §2, 42 Pa. C.S.A. §8301. 111. Plaintiff, David C. Phelps, is the son of Laura A. Phelps, deceased and is the Administrator of the Estate of his mother, Laura A. Phelps. 112. Decedent, Laura A. Phelps, did not bring an action for her injuries during her lifetime. 113. Persons entitled by law to recover damages for such wrongful death and the relationship to Mrs. Phelps are her three adult children: David C. Phelps, Leslee Yarlet, and the Estate of Jonathan Phelps. 114. At the time of her death, Mrs. Phelps was 74 years of age. 17 115. As a direct and proximate result of the death of Mrs. Phelps, her children sustained considerable emotional trauma as well as pain and suffering, and claim is made therefor. 116. As a direct and proximate result of the death of Mrs. Phelps, her children suffered a pecuniary loss and have been, and in the future will continue to be, deprived of their mother's tutelage, companionship, contribution and services, support, and comfort, for all of which damages are claimed. 117. Plaintiff hereby makes claim for all other damages to which he and his siblings are entitled under and by Virtue of the Wrongful Death Act, 42 Pa. C.S.A. §8301. 118. As a result of the death of Mrs. Phelps, deceased, Plaintiff, David C. Phelps, has incurred funeral, burial, and related expenses, as well as expenses for the administration of Mrs. Phelps' Estate, for all of which claim is made therefor WHEREFORE, Plaintiff, David C. Phelps, as Administrator of the Estate of Laura Phelps, deceased, and David C. Phelps, Individually and in his own right, demands judgment against Defendants Christopher J. Witt, M.D. and Ear, Nose and Throat Facial Plastic Surgery Group, P.C., a/k/a Ear, Nose and Throat Surgery Group, P.C. for compensatory damages in an amount in excess of Fifty Thousand ($50,000.00) Dollars, exclusive of interests and costs, and in excess of any jurisdictional amount requiring compulsory arbitration, and for a trial by jury. Respectfully submitted, Date: r?V ?i NAVITSKY, OLSON &,WISNESKI LLP 18 Michael J. Nt vitsky, I.D. No. 58803 2040 Linglestown Road, Harrisburg, PA 17110 717/541-9205 Counsel for Plaintiff 303 VE A ICATION 1, David C. Phelps, as Administrator of the Estate of Laura A. Phelps, deceased, and David C. Phelps, Individually and in his own right, verify that the facts set forth in the foregoing Complaint are true and corroct to the best of my knowledge, information, and belief. I understand that this Verification is made subject to the provisions of 18 Pa. C.S.A. §4904, relating to unworn falsification to authorities. W1TNF.SS David C. Phelps, Administrator of the Estate of Laura A. Phelps, deceased and David C. Phelps, Individually and in his own right CERTIFICATE OF SERVICE I, Lois E. Stauffer, an employee of the law firm of Navitsky, Olson & Wisneski LLP, do hereby certify that I am this 7"' day of May, 2009 serving a true and correct copy of Plaintiff's Complaint upon all counsel of record via postage prepaid first class United States mail addressed as follows: Andrew Foulkrod, Esquire Gerryanne Cauler, Esquire Foulkrod Ellis 2010 Market Street Camp Hill, PA 17011 Counsel for Defendants Lois E. Stauffer dF THE Pr T"f,(),;n1QTA?Y 2fo9 ?' -S N112:37 1 FOULKROD ELLIS Professional Corporation 2010 Market Street Camp Hill, Pennsylvania 17011 Telephone: (717) 909-7006 Fax: (717) 909-6955 Attorneys for Defendants: Christopher J. Witt, M.D., and Ear, Nose and Throat Surgery Group, P.C. DAVID C. PHELPS, as Administrator Of the ESTATE OF LAURA A. PHELPS, Deceased, and DAVID C. PHELPS, Individually and in his own right, Plaintiffs V. CHRISTOPHER J. WITT, M.D. AND EAR, NOSE AND THROAT FACIAL PLASTIC SURGERY GROUP, P.C., a/k/a EAR, NOSE AND THROAT SURGERY GROUP, P.C., IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO.09-2045 JURY TRIAL DEMANDED Defendants PRELIMINARY OBJECTIONS OF DEFENDANTS, CHRISTOPHER J. WITT, M.D. AND EAR, NOSE AND THROAT FACIAL PLASTIC SURGERY GROUP, P.C. TO PLAINTIFF'S COMPLAINT AND NOW come Defendants, Christopher J. Witt, M.D. and Ear, Nose and Throat Facial Plastic Surgery Group, P.C. (hereinafter, "Moving Defendants"), by and through their counsel, Foulkrod Ellis, P.C. and aver as follows: 1. The within medical malpractice action was initiated with the filing of a Writ of Summons on April 6, 2009. 2. A Complaint and Certificates of Merit were filed on May 7, 2009. A true and correct copy of the Complaint is attached hereto as Exhibit A. 3. According to the Complaint, this case arises out of care and treatment provided by Defendants to Plaintiff-decedent for a right ear infection. 4. It is alleged by the Plaintiff that Plaintiff-decedent, Laura Phelps, suffered an overwhelming infection and death due to improper treatment of Ms. Phelps' ear infection. 5. Moving Defendants now file Preliminary Objections in the nature of 1) Demurrer relating to Plaintiff's corporate negligence claim against Ear, Nose and Throat Facial Plastic Surgery, P.C.; 2) Motion to Strike allegations of agency against unknown Defendants according to Alumni Association v. Sullivan, 535 A.2d 1092 (Pa. Super. 1987); 3) Motion to Strike ambiguous and "boiler plate" claims under Connor v. Allegheny General Hospital, 461 A.2d 600 (Pa. 1983); and 4) Motion to Strike inappropriate claims under the Wrongful Death Act, 42 Pa. C.S.A. PRELIMINARY OBJECTION IN THE NATURE OF A DEMURRER RELATING TO PLAINTIFF'S CORPORATE NEGLIGENCE CLAIM AGAINST EAR, NOSE, AND THROAT FACIAL PLASTIC SURGERY, P.C. 6. Count II of Plaintiff's Complaint asserts a corporate negligence claim against Ear, Nose and Throat Facial Plastic Surgery, P.C. 7. Ear, Nose and Throat Facial Plastic Surgery, P.C. is a physician's practice dedicated solely to providing ear, nose and throat care. 8. Pennsylvania law does not recognize a direct corporate negligence claim against a physician practice. 9. The Superior Court has explicitly refused to extend the theory of corporate negligence to physician practice groups in Sutherland v. Monongahela Valley Hospital, 856 A.2d 55 (Pa. Super 2004). 10. The rationale behind a corporate negligence claim relates to the perception that "the corporate hospital of today has assumed the role of comprehensive health center with responsibility for arranging and coordinating the total health care of its patients." Id. 2 11. As a result, a corporate hospital can be held liable for its failures relating to the duties: (1) a duty to use reasonable care in the maintenance of safe and adequate facilities and equipment; (2) a duty to select and retain only competent physicians; (3) a duty to oversee all persons who practice medicine within its walls as to patient care; and (4) a duty to formulate, adopt and enforce adequate rules and policies to ensure quality care for the patients. Thompson v. Nason Hospital, 591 A.2d 707 (Pa. 1991). 12. Count II of Plaintiff's Complaint echoes these duties applicable only to a corporate hospital or health system and improperly attempts to impart these duties onto Moving Defendant, a physician practice. 13. Defendant practice was in no way assuming the role of a "comprehensive health center with responsibility for arranging and coordinating the total health care of its patient." 14. In fact, the care at issue was in the role of specialty physician and not even that of a primary care provider. 15. Accordingly, it is improper for Plaintiff to assert anything other than a vicarious liability claim for the acts of its agents against Ear, Nose and Throat Facial Plastic Surgery, P.C. WHEREFORE, Moving Defendants respectfully request that this Honorable Court dismiss Plaintiff's claim for direct corporate negligence against Defendant, Ear, Nose and Throat Facial Plastic Surgery, P.C. from Plaintiff's Complaint with prejudice. PRELIMINARY OBJECTION IN THE NATURE OF A MOTION TO STRIKE 16. Paragraphs 8 and 9 of Plaintiff's Complaint assert that "Plaintiff cannot identify any other health care providers, agents, apparent agents, servants and/or employees of Defendant Ear, Nose and Throat Facial Plastic Surgery, P.C. other than Dr. Witt because both Defendants represented to the Plaintiff that "After extensive searching of records, we are unable to locate her chart". 17. However, Defendants have now produced said chart to the Plaintiff and all care givers should now be obvious to the Plaintiff. 18. Pursuant to Pennsylvania law, plaintiffs are required to specifically identify any agents, servants, and/or employees of the defendant upon whose actions the alleged liability is based. Alumni Association v. Sullivan, 535 A.2d 1092 (Pa. Super. 1987). 19. Plaintiff now has the opportunity to appropriately determine agents of the Defendants that Plaintiff believes should be included in this Complaint. If they are unable to identify individuals by name, they can identify the specific acts or at least dates of involvement of said alleged agents. 20. Plaintiff s lack of specificity as to identification of agents and their specific involvement in Plaintiff decedent's care, is violative of Pa. R.C.P. 1019(a). 21. Plaintiffs lack of specificity regarding agency, deprives Defendants of their ability to comply with Pa. R.C.P. 1029(e)(1) relating to specific denials relating to agency averments. WHEREFORE, Defendants respectfully request that Plaintiff specifically identify individuals upon whom his negligence claims rest or be precluded from pursuing claims against any individual other that those specifically named and identified within the Complaint. 4 PRELIMINARY OBJECTION IN THE NATURE OF A MOTION TO STRIKE 22. The following paragraphs of Plaintiff's Complaint are objectionable in that they contain nothing more than "boiler plate" and "catch all" allegations of negligence that are not specific to this action and could be pled against any health care provider in any malpractice action: 47, 57, 59, 71, 72, 82, 96(a-c), 96(m), 96(u) and 96(v) 23. Pursuant to Pa. R.C.P. 1019(a), "the material facts on which a cause of action or defense is based shall be stated in concise and summary form. 24. The above-cited paragraphs are so general that they could relate to any care provided to Plaintiff-decedent by Defendants during the entire course of Plaintiff-decedent's treatment with the office over any timeframe. 25. These allegations of negligence as they now read afford Plaintiff the opportunity to introduce new theories of recovery at any time prior to the commencement of trial and after the expiration of the statute of limitations in violation of Connor v. Allegheny General Hospital, 461 A.2d 600 (Pa. 1983). 26. Moving Defendants are prejudiced by these allegations, because a defense to these vague and conclusory allegations cannot be prepared. 27. Pursuant to Pa. R.C.P. 1028, this Court is empowered to strike from Plaintiff's Complaint any allegations that fail to conform to law or rule of court. WHEREFORE, Moving Defendants respectfully request that paragraphs 47, 57, 59, 71, 72, 82, 96(a-c), 96(m), 96(u) and 96(v) be stricken from Plaintiff's Complaint with prejudice. 5 PRELIMINARY OBJECTION IN THE NATURE OF A MOTION TO STRIKE 28. Claim II of Plaintiff's Complaint makes claims for damages that are not permissible under the Wrongful Death Act 42 Pa. C.S.A. §8301. 29. Paragraph 116 in Plaintiff's Complaint claims, "her children suffered pecuniary loss and have been, and in the future will continue to be, deprived of their mother's tutelage, companionship, contribution and services, support and comfort, for all of which damages are claimed." 30. Damages recoverable for wrongful death are measured by the pecuniary loss occasioned to the survivors through the deprivation of the part of the earnings of the deceased which they would have received from her had she lived, plus such special damages as are allowed by statute. Baumgart v. Keene Bldg. Products Cori. 430 Pa.Super. 162, 167, 633 A.2d 1189, 1191 (1993). 31. One seeking to procure share of wrongful death proceeds must prove family relationship and pecuniary loss before he may be included in the distributional schedule. Manning v. Ca_pelli, 270 Pa.Super. 207, 212, 411 A.2d 252, 255 (1979). 32. Plaintiff-decedent at the time of her death was 74 years old. See ¶114 of Exhibit A. 33. Plaintiff does not offer any evidence in his Complaint that Plaintiff-decedent was providing financial support to her adult children. 34. Without said evidence Plaintiff-decedent's adult children would be precluded from claiming pecuniary losses related to financial support from Plaintiff-decedent. 6 35. Furthermore, pecuniary loss from the death of a parent, such that would entitle child to recover intestate portion of the proceeds of a wrongful death action brought in the parent's name, can be established by the existence of gifts and services from the decedent to the adult child if those gifts or services are rendered with sufficient frequency that it is reasonably certain that they would have continued had the parent not died. In re Estate of Wolfe, 915 A.2d 1197, 1200, (Pa. Super. 2006). 36. Moving Defendants request that requests for pecuniary losses in ¶116 not associated with funeral, administrative, medical or nursing expenses be stricken with prejudice. 37. At the time of her death, Plaintiff-decedent had three living children. However, unfortunately Plaintiff-decedent's son Jonathan passed away on January 10, 2009. 38. The Wrongful Death Act, 42 Pa. C.S. A. § 8301 allows for recovery by a spouse, children or parents of a decedent. The Act makes no mention of an Estate making a claim for recovery. 39. Therefore, Moving Defendants' request that the claim for losses for the Estate of Jonathan Phelps be stricken from Plaintiff's Complaint. 40. It is also noted that a claim for said Estate is included under Claim I of Plaintiff's Complaint Survival Action, 42 Pa. C.S. A. § 8302. 41. Similarly, the Survival Action statute makes no allowances for claims by Estates. 7 WHEREFORE, Defendants respectfully request that this Honorable Court strike Plaintiff s claims for pecuniary losses from ¶ 116 of his Complaint and all claims on behalf of the Estate of Jonathan Phelps with prejudice. Respectfully submitted, FOULKROD ELLIS Date: 5-? Z-1 By: ? Andrew (h. Foulkrod, Esquire Attorney I.D. #77394 Gerryanne Cauler, Esquire Attorney I.D. 490539 2010 Market Street Camp Hill, PA 17011 (717) 909-7006 8 , ? lk 6->?06 IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA DAVID C. PHELPS, as Administrator of the the ESTATE OF LAURA A. PHELPS, deceased, and DAVID C. PHELPS, Individually NO. 09-2045 Civil Term and in his own right, Plaintiff CIVIL ACTION MEDICAL PROFESSIONAL V. LIABILITY ACTION CHRISTOPHER J. WITT, M.D., and EAR, NOSE AND THROAT FACIAL PLASTIC SURGERY GROUP, P.C., a/k/a EAR, NOSE AND THROAT SURGERY GROUP, P.C., JURY TRIAL DEMANDED Defendants NOTICE YOU HAVE BEEN SUED IN COURT. If you wish to defend against the claims set forth in the following pages, you must take action within twenty (20) days after this Complaint and Notice are served, by entering a written appearance personally or by attorney and filing in writing with the Court your defenses or objections to the claims set forth against you. You are warned that if you fail to do so the case may proceed without you and a judgment may be entered against you by the Court without further notice for any money claimed in the Complaint or for any other claim or relief requested by the Plaintiff. You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. Cumberland County Bar Association 32 South Bedford Street Carlisle, PA 17013 1-800-990-9108 IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA. DAVID C. PHELPS, as Administrator of the the ESTATE OF LAURA A. PHELPS, deceased, and DAVID C. PHELPS, Individually NO. 09-2045 Civil Term and in his own right, Plaintiff CIVIL ACTION MEDICAL PROFESSIONAL V. LIABILITY ACTION CHRISTOPHER J. WITT, M.D., and EAR, NOSE AND THROAT FACIAL PLASTIC SURGERY GROUP, P.C., a/k/a EAR, NOSE AND THROAT SURGERY GROUP, P.C., JURY TRIAL DEMANDED Defendants AVISO USTED HA SIDO DEMANDADO EN LA CORTE. Si usted desea defenderse de las quejas expuestas on las paginas siguientes, debe tomar acci6n dentro de veinte (20) dias a partir de la fecha en que recibid la demanda y el aviso. Usted debe presentar comparecencia escrita en persona o por abogado y presentar en la Corte por escrito sus defensas o sus objeciones a las demandas en su contra. Se le avisa que si no se defiende, el caso puede proceder sin usted y la Corte puede decidir on su contra sin mas aviso o notificaci6n por cualquier dinero reclamado on la demanda o por cualquier otra queja o compensacian reclamados por el Demandante. USTED PUEDE PERDER DINERO, 0 PROPIEDADES U OTROS DERECHOS WPORTANTES PARA USTED. LLEVE ESTA DEMANDA A UN ABOGADO INMEDIATAMENTE. SI USTED NO TIENE O NO CONOCE UN ABOGADO, VAYA O LLAME A LA OFICINA EN LA DIRECCION ESCRITA ABAJO PARA. AVERIGUAR DONDE PUEDE OBTENER ASISTENCIA LEGAL. Cumberland County Bar Association 32 South Bedford Street Carlisle, PA 17013 1-800-990-9108 IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA DAVID C. PHELPS, as Administrator of the the ESTATE OF LAURA A. PHELPS, deceased, and DAVID C. PHELPS, Individually NO. 09-2045 Civil Term and in his own right, Plaintiff V. CHRISTOPHER J. WITT, M.D., and EAR, NOSE AND THROAT FACIAL PLASTIC SURGERY GROUP, P.C., a/k/a EAR, NOSE AND THROAT SURGERY GROUP, P.C., Defendants CIVIL ACTION MEDICAL PROFESSIONAL LIABILITY ACTION JURY TRIAL DEMANDED COMPLAINT 1. Plaintiff, David C. Phelps, son of Laura A. Phelps, Deceased, is an adult individual who resides in Woodstock, Georgia. 2. Plaintiff, David C. Phelps, is the Administrator of the Estate of Laura A. Phelps by virtue of Letters of Administration that were duly granted him by the Register of Wills of Cumberland County, Pennsylvania. 3. Defendant, Christopher J. Witt, M.D., was at all times relevant to this Complaint, a physician licensed to practice medicine in the Commonwealth of Pennsylvania. 4. At all times relevant to this Complaint, Dr. Witt held himself out to the public as an otolaryngologist. 5. Plaintiff is asserting a professional liability claim against Dr. Witt. 6. Defendant, Ear, Nose and Throat Facial Plastic Surgery Group, P.C., aka Ear, Nose and Throat Surgery Group, P.C. is a Pennsylvania Corporation and corporate medical institution which at all relevant times herein engaged in the business of providing medical services to the public in Cumberland County, Pennsylvania. 7. Plaintiff is asserting a professional liability claim against Defendant, Ear, Nose and Throat Facial Plastic Surgery Group, P.C., aka Ear, Nose and Throat Surgery Group, P.C. by virtue of the actions and/or inactions of Defendant Christopher I Witt, M.D., and all such health care providers, agents, apparent agents, servants and/or employees of Ear, Nose and Throat Facial Plastic Surgery Group, P,C., aka Ear, Nose and Throat Surgery Group, P.C., who were involved in the care of Mrs. Phelps during April and May of 2007. The claims asserted are both for vicarious and corporate liability. 8. Plaintiff cannot identify any other health care providers, agents, apparent agents, servants and/or employees of Defendant, Ear, Nose and Throat Facial Plastic Surgery Group, P.C., aka Ear, Nose and Throat Surgery Group, P.C., other than Dr. Witt because both Defendants represented to the Plaintiff that "After extensive searching of records, we are unable to locate her chart." 9. At all times relevant herein, Dr. Witt and all such other health care providers at Ear, Nose and Throat Facial Plastic Surgery Group, P.C., aka Ear, Nose and Throat Surgery Group, P.C. who had contact with or cared for Mrs. Phelps during April and May, 2007 were acting as agents, apparent agents, servants and/or employees of Defendant, Ear, Nose and Throat Facial Plastic Surgery Group, P.C., aka Ear, Nose and Throat Surgery Group, P.C., and were furthering its economic and financial interests. 10. Mrs. Phelps was first seen by Dr. Witt at the Defendant practice on April 9, 2007 for a complaint of ear pain. 11. Dr. Witt wrote to Mrs. Phelps' family physician regarding that visit and stated that Mrs. Phelps was a 74 year old woman with a reported six day history of terrible right otalgia (ear pain). 2 12. Dr. Witt noted on this visit of April 9, 2007 that Mrs. Phelps had some otorrhea (discharge from the ear) at the time. 13. Mrs. Phelps explained to Dr. Witt that she had been started on Cipro and Ciprodex ear drops by her family physician at Internists of Central Pennsylvania. 14. Mrs. Phelps reported to Dr. Witt that her ear continued to feel closed but her ear pain had improved and her hearing had returned to near normal. 15. Dr. Witt noted that Mrs. Phelps had developed a severe upper respiratory infection in March and that since that time she had nasal congestion, clear to purulent rhinorrhea (nasal discharge), epistaxis (hemorrhage from the nose), crusting, post nasal drip, and cough. 16. Dr. Witt noted that "Health history form was reviewed with new form today, including ROS, allergies, medications, and PMHx and PSHx." 17. Dr. Witt examined Mrs. Phelps' ears, nose and throat and his assessment was of acute otitis extema which was resolving with Ciprodex ear drops. 18. Dr. Witt advised Mrs. Phelps to continue with Ciprodex for another five days and to avoid water contamination. He also noted that she had serous otitis media which was clinically resolving. He prescribed Bacitracin ointment for her nose and a seven day course of Diflucan for her throat. 19. Dr. Witt's plan was to see Mrs. Phelps for follow-up in seven to ten days for a re-check. 20. However, Mrs. Phelps returned to Dr. Wilt's office three days later on April 12, 2007 complaining of ear pain. 21. Dr. Witt dictated that she had been seen three days ago and was noted to have resolving otitis externs on the right as well as a scant serous effusion in the ear. 3 22. Dr. Witt further noted that Mrs. Phelps was being treated with Cipro and Ciprodex drops and that in the interim she had been diagnosed with strep, tonsillitis, and had her Cipro discontinued. 23. Dr. Witt noted that Mrs. Phelps had been started on Azithromycin by her family physician. 24. Dr. Witt noted that Mrs. Phelps reported that the night before her pain and hearing loss became precipitously worse. 25. Dr. Witt examined Mrs. Phelps and noted that her right EAC (external auditory canal) was normal but that her TM (tempanic membrane - eardrum) was intact and retracted with purulent effusion. 26. Dr. Witt's assessment was of acute otitis media for which he recommended a ten day course of Avelox in addition to her current regimen. 27. Dr. Witt's plan was to see Mrs. Phelps for follow-up in one week. 28. However, five days later on April 17, 2007, Mrs. Phelps returned to see Dr. Witt for a third time. On this visit Dr. Witt noted that Mrs. Phelps was seen five days ago. 29. Mrs. Phelps told Dr. Witt that after stopping Avelox, her right ear pain had progressed. She was restarted on Avelox and reported that her ear had improved. 30. Mrs. Phelps told Dr. Witt that three or four days ago, she developed serous otorrhea of the right ear and when this occurred, her otalgia resolved. She stated that she continued to have poor hearing in the right ear. 31. Dr. Witt examined Mrs. Phelps on April 17, 2007 and noted that her right EAC was normal but that her right TM was intact and thickened with apparent serous effusion. He further noted that her nasal turbinates were slightly edematous with moderate crusting. 4 32. Dr. Witt had an audiogram performed which demonstrated normal hearing in Mrs. Phelps' left ear but severe mixed loss in the right ear with a type-B tympanogram. 33. Dr. Witt's assessment of Mrs. Phelps on April 17, 2007 was of acute otitis media with perforation resolving. 34. Dr. Witt recommended Mrs. Phelps continue with Avelox and planned to observe for resolution of her inflammation and to then perform a myringotomy (surgical incision of the ear drum to allow drainage of fluid from the middle ear chamber). This was to be scheduled in five to seven days. 35. Mrs. Phelps returned to Dr. Witt for her fourth visit on April 24, 2007. 36. Dr. Witt dictated that Mrs. Phelps was struggling with an acute otitis media on the right side and that she had completed her antibiotics and reported that her otalgia had resolved but continued to have diminished hearing on the right side. 37. Dr. Witt examined Mrs. Phelps and found that her right EAC was normal but that her TM was intact and retracted with serous effusion and her turbinates remained edematous. 38. Dr. Witt's assessment was that of acute otitis media. He performed a right myringotomy and evacuated a small serous effusion. 39. Dr. Witt advised Mrs. Phelps to avoid water contamination and to restart taking nasal steroids. 40. Dr. Witt's plan was to see Mss. Phelps in follow-up in two weeks for a re-check. 41. However, three days later, on May 7, 2007, Mrs. Phelps contacted Dr. Witt for a fifth time regarding her right ear problems. 5 42. On May 7, 2007 Dr. Witt reported that Mrs. Phelps had experienced a significant change in symptoms. She had called his office complaining of a fever and having temporal headaches and pretragal (area in front of ear) pain. 43. The contact with Dr. Witt on May 7, 2007 was by telephone. Dr. Witt did not see Mrs. Phelps on May 7, 2007. 44. Otolaryngologists know that fever, particularly when coupled with a history of ear infection, temporal headaches and ear pain are signs and symptoms of likely extension of an ear infection. 45. Nevertheless, Dr. Witt only called in a prescription for the oral antibiotic Biaxin for Mrs. Phelps on that day, May 7, 2007. 46. It was a clear deviation of the requisite standard of care for Dr. Witt not to have seen Mrs. Phelps on this day, May 7, 2007. 47. It was a clear deviation of the requisite standard of care for Dr. Witt not to have directed Mrs. Phelps to go to an emergency room for assessment, blood work, radiographic imaging and intravenous antibiotics. 48. The ominous escalation of Mrs. Phelps' symptoms on May 7, 2007 of fever, temporal headaches and pretragal pain mandated such action. 49. The following day, May 8, 2007, Mrs. Phelps had her sixth contact with Dr. Witt. 50. Dr. Witt dictated that Mrs. Phelps underwent a right myringotomy on April 24, 2007 and that Mrs. Phelps reported continued diminished hearing, although it had improved somewhat. 51. Dr. Witt noted that Mrs. Phelps had the new complaint of temporal headache and pretragal pain the day before and that she also reported the new complaint of a fever of 102. 52. Dr. Witt dictated that due to Mrs. Phelps' report of pain and fever she was started on Biaxin the day before and that her ear pain and fever had resolved. 6 53. On examination, Dr. Witt noted that Mrs. Phelps' EAC was normal, but that there was a large clot on the visualized portion of her right TM suggesting an aerated middle ear. 54. Dr. Witt's assessment was of serous otitis media resolving. 55. He noted that Mrs. Phelps' complaints were now due to reduced vibration of the TM, due to clot, for which he recommended nightly use of mineral oil. 56. Dr. Witt's plan as of May 8, 2007 was to see Mrs. Phelps for follow-up in two weeks at which time he noted that this process should be resolved. 57. There was a deviation from the appropriate standard of medical care for Dr. Witt not to have ordered blood studies, imaging studies and N antibiotics for Mrs. Phelps as of May 8, 2007 because she continued to show signs and symptoms of prolonged right ear infection and suffered a significant change in her symptoms reflecting involvement of the mastoid. 58. Three days later on May 11, 2007, Mrs. Phelps had her 7 b contact with Dr. Witt in a 5-week period. She apparently called Dr. Witt with complaints relative to her right ear because her CVS Pharmacy records reflect that Dr. Witt called in a prescription for Ciprodex eardrops to the right ear to be used for 10 days. 59. Dr. Witt again failed to order blood studies, radiographic studies or antibiotics as of May 11, 2007. 60. Within four days, on May 15, 2007, Mrs. Phelps was transported to Holy Spirit Hospital with evidence of reduced mental status and unstable vital signs. 61. In the emergency room of Holy Spirit Hospital, Mrs. Phelps was noted to have a fever of 101.6, and a history of having a right ear infection for weeks. 62. On exam, Mrs. Phelps' right tympanic membrane appeared to be perforated and her tympanic membrane and ear canal were erythematous with yellowish pus draining. Blood studies 7 were done that demonstrated the presence of severe infection. She was diagnosed with otitis external and otitis media and started immediately on N antibiotics. 63. A culture of Mrs. Phelps' right ear on May 15, 2007 and also blood cultures were ordered and performed. The blood culture came back positive for beta streptococcus, group A as did the culture from her right ear. 64. A CT Scan performed on May 15, 2007 evidenced right sided mastoiditis (inflammation of the mastoid bone at the base of the skull), and there was a strong suggestion of temporal lobe abscess (adjacent to the focus of the mastoiditis). 65. Progressive vasomotor instability and cardiac arrhythmia ensued. 66. Mrs. Phelps died on May 16, 2007 despite intensive care unit support. Her death on May 16, 2007 was attributed to systemic sepsis secondary to mastoiditis. 67. Mrs. Phelps' outpatient treatment by Dr. Witt consisted of several courses of oral antibiotics supplemented by ear drops and a myringotomy procedure over the five week period beginning on April 9, 2007 and ending on May 11, 2007 and consisting of seven contacts over this five week period. 68. Over the course of this treatment period, Mrs. Phelps experienced fluctuating right ear pain and continued right ear problems. 69. On May 7, 2007, Mrs. Phelps' pain progressed to involve the temporal region above the ear and the pretragal region in front of the ear. 70. At the same time, Mrs. Phelps began experiencing elevated temperatures. 71. Despite progression of her symptoms and the onset of fever, her assessment as reflected in the available letters from Dr. Witt to Mrs. Phelps' family doctor document not ordering any blood studies, radiographic evaluations or N antibiotics. 72. Dr. Witt failed to order any blood studies, radiographic evaluations of the temporal bone and mastoid, or N antibiotics for Mrs. Phelps at any time during her seven contacts with him over the five week period of treatment. 73. Mrs. Phelps was at risk for disseminated infection from the time of onset of her symptoms. 74. Her past medical history of significance included a dependence on Prednisone for arthritis control and diabetes, both of which present immunocompromising concerns for which Dr. Witt should have recognized and treated accordingly. 75. Her immunocompromised status was a factor in the development of mastoid infection that seeded the brain and blood leading to progressive sepsis and cardiovascular instability, which caused her death. 76. Throughout the five week treatment period by Dr. Witt, prior to her death, Mrs. Phelps showed clear, objective evidence of recalcitrant ear infection that was progressing. 77. For patients in an immune-compromised situation, blood and radiographic {simple CT or NW studies are absolutely essential in diagnosing and monitoring infections within the head and neck. 78, Patients such as Mrs. Phelps with immune-compromised systems are at great risk for infections seeding the brain, particularly if the infection does not immediately respond to oral and otopical antibiotics. 79. The failure of Dr. Witt to provide intravenous antibiotics - a measure that increases the concentration of antibiotic delivered to the site of an infection - represented a clear violation of the appropriate standard of medical care by an otolaryngologist for treatment of an infection that failed to respond to oral and otopical antibiotics. 80. Likewise, it was a clear deviation from the appropriate standard of medical care for Dr. Witt, 9 an otolaryngologist, to not order blood tests and radiographic studies which were absolutely essential in diagnosing and monitoring infections within the head and neck. 81. Mrs. Phelps' immune-compromised status placed her at significant risk for a serious infection. 82. Failure to respond to oral and otopical antibiotics in the first weeks after she was first treated should have prompted immediate diagnostic blood work, cultures and radiographic studies by Dr. Witt to assess the full extent of the infection. Having done so would have led to IV antibiotic therapy and may have prompted surgical drainage of the mastoid infection. 83. Had Dr. Witt instituted the above-noted interventions, Mrs. Phelps' life would have been saved. 84. Another clear deviation from the appropriate standard of medical care by Dr. Witt and his office staff was in not maintaining a secure and organized record of Mrs. Phelps' treatment. Failing to do so greatly increased the risk of harm, including death, and did, in fact, cause her death. 85. The absence of records raises the troubling possibility that Dr. Witt may not have reviewed prior records while he followed Mrs. Phelps during the course of her progressive infection, ultimately leading directly to her death. 86. The allegations of medical negligence which directly caused Mrs. Phelps' death are based entirely upon medical expert review and analysis by a board-certified otolaryngologist as evidenced in the Certificate of Merit in support of this Complaint. 87. At the time of her death on May 16, 2007, Mrs. Phelps was 74 years of age. She was widowed and survived by three adult children: David C. Phelps, who is the Plaintiff in this action by virtue of his appointment as the Administrator of his mother's Estate; a daughter, Leslee Yarlet; and another son, Jonathan Phelps, who passed away in January, 2009. 10 88. Mrs. Phelps experienced severe pain and suffering during the period of treatment by Dr. Witt which ultimately led to her death from cardio pulmonary collapse due to sepsis due to mastoiditis on May 16, 2007. 89. Mrs. Phelps' death could have easily been prevented with proper diagnosis and treatment of her infection as stated above. 90. Plaintiff, David C. Phelps, as Administrator of the Estate of Laura A. Phelps, deceased and David C. Phelps, Individually and in his own right, brings this action on behalf of the Estate of Laura A. Phelps under and by Virtue of Pennsylvania's Survival Act for all damages suffered by the Estate by reason of the death of Mrs. Phelps, including Mrs. Phelps' medical expenses, the pain and suffering Mrs. Phelps underwent prior to her death, and for all other damages properly recoverable under 42 Pa. C.S.A. §8302. 91. Plaintiff, David C. Phelps, as Administrator of the Estate of Laura A. Phelps, deceased and David C. Phelps, Individually and in his own right, brings this action for the Wrongful Death of Laura A. Phelps on behalf of all persons entitled to recover damages therefore, under and by virtue of Pennsylvania's Wrongful Death Act, 42 Pa. C.S.A. §8301. 92. Decedent, Laura A. Phelps, did not bring an action for her injuries during her lifetime. 93. As a result of the death of Laura A. Phelps, deceased, Plaintiff has incurred medical, funeral and burial and related expenses, as well as expenses for the administration of Mrs. Phelps' Estate, for all of which claim is made therefor. 94. Plaintiff, David C. Phelps, as Administrator of the Estate of Laura A. Phelps, deceased, and David C. Phelps, Individually and in his own right, hereby makes a claim for all such other damages 11 to which he and Mrs. Phelps' beneficiaries; namely, her children, David C. Phelps, Leslee Yarlet, and the Estate of Jonathan Phelps are entitled under and by virtue of Pennsylvania's Wrongful Death Act, 42 Pa. C.S.A. §8301. COUNTI DAVID C. PHELPS, AS ADMINISTRATOR OF THE ESTATE OF LAURA A. PHELPS, DECEASED, AND DAVID C. PHELPS, INDIVIDUALLY AND IN HIS OWN RIGHT V. CHRISTOPHER I WITT, M.D. 95. Paragraphs 1 through 94 of this Complaint are incorporated herein by reference as if set forth at length. 96. Defendant, Christopher I Witt, M.D., is liable to the Plaintiff for all the injuries and damages as alleged herein, which were directly and proximately caused by his negligence in: a) Failing to order blood tests; b) Failing to perform or order cultures; c) Failing to order radiographic tests (x-rays, CT or MRI); d) Failing to prescribe intravenous antibiotics; e) Failing to direct Mrs. Phelps to go to an emergency room for assessment; f) Failing to maintain a secure and organized record of Mrs. Phelps' treatment; g) Failing to review prior records while following the patient during the course of her progressive infection; h) Failing to recognize the medical significance of Mrs. Phelps' medical history and physical findings; i) Failing to recognize Mrs. Phelps' prior medical history of diabetes and chronic Prednisone use to control arthritis placed her at increased risk of infection; 12 j) Failing to recognize that Mrs. Phelps was immune-compromised by virtue of her past medical history, k) Failing to diagnose mastoiditis; i) Failing to test for and diagnose infection beyond the outer and middle ear; m) Failing to comply with the proper medical procedure for a differential diagnosis; n) Failing to rule out an infective process beyond the outer and middle ear; o) Failing to rule out mastoiditis; p) Failing to properly test for, diagnose and treat Mrs. Phelps with appropriate antibiotics for her infection; q) Failing to evaluate Mrs. Phelps for a complicated illness such as secondary infection, sepsis and mastoiditis; r) Misdiagnosing Mrs. Phelps' medical condition; S) Failing to diagnose and treat Mrs. Phelps' infection; t) Failing to properly exam, assess, monitor and evaluate Mrs. Phelps; u) Failing to order and obtain appropriate diagnostic tests and studies such as blood test and cultures; v) Failing to order laboratory and imaging studies; w) Failing to include an infection such as mastoiditis in a differential diagnosis of Mrs. Phelps' medical condition; and x) Failing to recognize the signs and symptoms of infective process. 97. As a direct and proximate result of Dr. Wilt's negligence, as alleged herein, Mrs. Phelps 13 sustained injuries and damages resulting in her death as set forth in the paragraphs above, which are incorporated herein by reference as if set forth at length, and greatly increased the risk of harm to her, and claim is made therefor. WHEREFORE, Plaintiff, David C. Phelps, as Administrator of the Estate of Laura Phelps, deceased, and David C. Phelps, Individually and in his own right, demands judgment against Defendant Christopher J. Witt, M.D., for compensatory damages in an amount in excess of Fifty Thousand ($50,000.00) Dollars, exclusive of interests and costs, and in excess of any jurisdictional amount requiring compulsory arbitration, and for a trial by jury. COUNT H DAVID C. PHELPS, AS ADMINISTRATOR OF THE ESTATE OF LAURA A. PHELPS, DECEASED, AND DAVID C. PHELPS, INDIVIDUALLY AND IN HIS OWN RIGHT V. EAR NOSE AND THROAT FACIAL PLASTIC SURGERY GROUP, P.C., A/K/A EAR, NOSE AND THROAT SURGERY GROUP, P.C. 98. Paragraphs 1 through 94 of this Complaint and Count I of this Complaint are incorporated herein by reference as if set forth at length. 99. Defendant, Ear, Nose and Throat Facial Plastic Surgery Group, P.C., a/k/a Ear, Nose and Throat Surgery Group, P.C., is vicariously liable to the Plaintiff for all injuries and damages alleged herein, which were directly and proximately caused by the negligence of Dr. Witt as set forth in paragraph 96 of this Complaint, all of which allegations are incorporated herein by reference as if set forth as length. 100. Additionally, Plaintiff asserts a corporate negligence count against Defendant, Ear, Nose and Throat Facial Plastic Surgery Group, P.C., a/k/a Ear, Nose and Throat Surgery Croup, P.C., based on the corporate group's failure to maintain a secure and organized record of Mrs. Phelps' 14 treatment. Failure to do so resulted in Dr. Witt following Mrs. Phelps during the course of her progressive infection, which ultimately led to directly to her death, without benefit of review of prior medical records during his course of treatment. 101. Defendant owed a non-delegable duty to Mrs. Phelps to ensure her safety and well being while a patient of the practice. 102. Defendant failed to uphold the proper standard of care owed to Mrs. Phelps under the Thompson v. Nason, 591 A.2d 703 (1991) Doctrine, its progeny and under Pennsylvania law by its failure to maintain a secure and organized medical record of Mrs. Phelps' treatment, thereby breaching its non-delegable duty to use reasonable care in the maintenance of safe and adequate facilities and equipment, to formulate, adopt, and enforce adequate rules and policies to ensure quality care for patients, to select and retain competent physicians and staff, and to have adequate rules and policies in place to oversee all persons who practice medicine within its walls as to patient care, patient safety and, in particular, with respect to the maintaining of a secure and organized medical record. 103. As a direct and proximate result of the vicarious negligence and corporate negligence of Defendant, Ear, Nose and Throat Facial Plastic Surgery Group, P.C., a/k/a Ear, Nose and Throat Surgery Group, P.C., as alleged herein, Mrs. Phelps sustained injuries and damages which directly resulted in her death and greatly increased her risk of harm as alleged herein, and claim is made therefore. WHEREFORE, Plaintiff, David C. Phelps, as Administrator of the Estate of Laura Phelps, deceased, and David C. Phelps, Individually and in his own right, demands judgment against Defendant, Ear, Nose and Throat Facial Plastic Surgery Group, P.C., a/k/a Ear, Nose and Throat 15 Surgery Group, P.C., for compensatory damages in an amount in excess of Fifty Thousand ($50,000.00) Dollars, exclusive of interests and costs, and in excess of any jurisdictional amount requiring compulsory arbitration, and for a trial by jury. CLAIM I - SURVIVAL ACTION DAVID C. PHELPS, AS ADMINISTRATOR OF THE ESTATE OF LAURA A. PHELPS, DECEASED, AND DAVID C. PHELPS, INDIVIDUALLY AND IN HIS OWN RIGHT V. CHRISTOPHER J. WITT, M.D. AND EAR NOSE AND THROAT FACIAL PLASTIC SURGERY GROUP, P.C., A/K/A EAR, NOSE AND THROAT SURGERY GROUP, P.C. 104. Paragraph 1 through 94 and Counts I and 11 of this Complaint are incorporated herein by reference as if set forth at length. 105. Plaintiff, David. C. Phelps, brings this action on behalf of the Estate of Laura A. Phelps, deceased, by and through virtue of the Act of 1976, July 9, P.L. 586, No. 142, §2, 42 Pa.C.S.A. §8302. 106. Defendants are liable to the Estate of Laura A. Phelps for injuries and damages resulting in her death as set forth herein; 107. Defendants and/or their agents, apparent agents, servants, members, partners and/or employees are jointly and severally liable to the Estate of Laura A. Phelps for the injuries and damages as set forth herein. 108. Plaintiff, David C. Phelps, as Administrator of the Estate of Laura A. Phelps, deceased, claims on behalf of said Estate, all damages suffered by said Estate by reason of the death of Mrs. Phelps, including Mrs. Phelps' medical expenses, the pain and suffering Mrs. Phelps underwent prior to death, and for all other damages properly recoverable under 42 Pa. C.S.A. §8302. WHEREFORE, Plaintiff, David C. Phelps, as Administrator of the Estate of Laura Phelps, deceased, and David C. Phelps, Individually and in his own right, demands judgment against 16 Defendants Christopher J. Witt, M.D. and Ear, Nose and Throat Facial Plastic Surgery Group, P.C., a4da Ear, Nose and Throat Surgery Group, P.C. for compensatory damages in an amount in excess of Fifty Thousand ($50,000.00) Dollars, exclusive of interests and costs, and in excess of any jurisdictional amount requiring compulsory arbitration, and for a trial by jury. CLAIM H - WRONFUL DEATH ACTION DAVID C. PHELPS, AS ADMINISTRATOR OF THE ESTATE OF LAURA A. PHELPS, DECEASED, AND DAVID C. PHELPS, INDIVIDUALLY AND IN HIS OWN RIGHT V. CHRISTOPHER J. WffT, M.D. AND EAR NOSE AND THROAT FACIAL PLASTIC SURGERY GROUP, P.C., A/K/A EAR NOSE AND THROAT SURGERY GROUP, P.C. 109. Paragraphs 1 through 94, Counts I and II and Claim I of this Complaint are incorporated herein by reference as if set forth at length. 110. Plaintiff, David C. Phelps, is the son of decedent, Laura A. Phelps, and is entitled to bring this Wrongful Death Claim pursuant to 42 Pa. C.S.A. §8301(b). Plaintiff, David C. Phelps, brings this action for the wrongful death of Laura A. Phelps, deceased, in his own right and is entitled to recover damages by and by virtue of the and by virtue of the Act of 1976, July 9, P.L. 586, No. 142, §2,42 Pa. C.S.A. §8301. 111. Plaintiff, David C. Phelps, is the son of Laura A. Phelps, deceased and is the Administrator of the Estate of his mother, Laura A. Phelps. 112. Decedent, Laura A. Phelps, did not bring an action for her injuries during her lifetime. 113. Persons entitled by law to recover damages for such wrongful death and the relationship to Mrs. Phelps are her three adult children: David C. Phelps, Lesiee Yarlet, and the Estate of Jonathan Phelps. 114. At the time of her death, Mrs. Phelps was 74 years of age. 17 115. As a direct and proximate result of the death of Mn. Phelps, her children sustained considerable emotional trauma as well as pain and suffering, and claim is made therefor. 116. As a direct and proximate result of the death of Mrs. Phelps, her children suffered a pecuniary loss and have been, and in the future will continue to be, deprived of their mother's tutelage, companionship, contribution and services, support, and comfort, for all of which damages are claimed. 117. Plaintiff hereby makes claim for all other damages to which he and his siblings are entitled under and by Virtue of the Wrongful Death Act, 42 Pa. C.S.A. §8301. 118. As a result of the death of Mrs. Phelps, deceased, Plaintiff, David C. Phelps, has incurred funeral, burial, and related expenses, as well as expenses for the administration of Mrs. Phelps' Estate, for all of which claim is made therefor WHEREFORE, Plaintiff, David C. Phelps, as Administrator of the Estate of Laura Phelps, deceased, and David C. Phelps, Individually and in his own right, demands judgment against Defendants Christopher J. Witt, M.D. and Ear, Nose and Throat Facial Plastic Surgery Group, P.C., a/k/a Ear, Nose and Throat Surgery Group, P.C. for compensatory damages in an amount in excess of Fifty Thousand ($50,000.00) Dollars, exclusive of interests and costs, and in excess of any jurisdictional amount requiring compulsory arbitration, and for a trial by jury. Date: A 0UV 0,1 't Respectfully submitted, 18 NAVITSKY, OLSON & WISNESKI LLP n Michael J. itsky, Eiq, tuite re I.D. No. 58803 2040 Linglestown Road, 303 Harrisburg, PA 17110 717/541-9205 Counsel for Plaintiff L VERUFLCATION 1, David C. Phelps, as Administrntor of the Estate of lAura A. Phelps, deceased, and David C. Phelps, Individually and in his own right, verify that the facts set forth in the Foregoing Complaint are true and correct to the best of my knowledge, information, and belief. I understand that this Verification is made subject to the provisions of 18 Pa. C.S.A. §4944, relating to unsworn falsification to authorities. WTTNF,SS David C. Phelps, Administrator of the Estate of Laura A. Phelps, deceased and David C. Phelps, Individually and in hb awa right CERTIFICATE OF SERVICE I, Lois E. Stauffer, an employee of the law firm of Navitsky, Olson & Wisnesld LLP, do hereby certify that I am this 7`" day of May, 2009 serving a true and correct copy of Plaintiff's Complaint upon all counsel of record via postage prepaid first class United States mail addressed as follows: Andrew Foulkrod, Esquire Gerryanne Cauler, Esquire Foulkrod Ellis 2010 Market Street Camp Hill, PA 17011 Counsel for Defendants Lois E. Stauffer L/V e CERTIFICATE OF SERVICE I HEREBY CERTIFY that true and correct copies of the foregoing were served upon all counsel of record this day of , 2009, by depositing said copy in the United States Mail at Camp Hill, Pennsylvania, postage prepaid, first class delivery, and addressed as follows: Duane S. Barrick, Esquire Navitsky, Olson & Wisneski, LLP 2040 Linglestown Road, Suiate 303 Harrisburg, PA 17110 (Counsel for Plaintiff} FOULKROD ELLIS Professional Corporation 1N Crystal L. Nemetz, Secretary ? a r H - SYN. : r TP is J ?"r1'Y r.; ,, E L a PRAECIPE FOR LISTING CASE FOR ARGUMENT (Must be typewritten and submitted in duplicate) TO THE PROTHONOTARY OF CUMBERLAND COUNTY: Please list the within matter for the next Argument Court. ----------------------------------------------------------------- CAPTION OF CASE (entire caption must be stated in full) David C. Phelps, as Administrator of the Estate of Laura A. Phelps, Deceased, and David C. Phelps, individually and in his own right, Plaintiffs VS. Christopher J. Witt, M.D. and Ear, Nose and Throat Facial Plastic Surgery Group, P.C., a/k/a Ear, Nose and Throat Surgery Group, P.C., Defendants No. 09-2045 Civil 1. 2. 3. 19 State matter to be argued (i.e., plaintiff's motion for new trial, defendant's demurrer to complaint, etc.): Preliminary Objections of Defendants, Christopher J. Witt, M.D. and Ear, Nose and Throat Facial Plastic Surgery Group, P.C. to Plaintiff's Complaint Identify counsel who will argue case: (a) for plaintiff: Duane S. Barrick, Esquire Address: Navitsky, Olsen & Wisneski, LLP 2040 Linglestown Road, Suite 303 Harrisburg, PA 17110 (b) for defendant: Gerryanne Cauler, Esquire Address: Foulkrod Ellis 2010 Market Street Camp Hill, PA 17011 I will notify all parties in writing within two days that this case has been listed for argument. 4 Argument Court Date: Dated: 5/27/09 Gerryann Cauler, Esquire Attorney for Defendants Christopher J. Witt, M.D. and Ear, Nose and Throat Surgery Group, P.C. CERTIFICATE OF SERVICE I HEREBY CERTIFY that true and correct copies of the foregoing were served upon all counsel of record this day of , 2009, by depositing said copy in the United States Mail at Camp Hill, Pennsylvania, postage prepaid, first class delivery, and addressed as follows: Duane S. Barrick, Esquire Navitsky, Olson & Wisneski, LLP 2040 Linglestown Road, Suiate 303 Harrisburg, PA 17110 (Counsel for Plaintiff FOULKROD ELLIS Professional Corporation J Crystal L. Nemetz, Secretary' r C'pjAL IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA DAVID C. PHELPS, as Administrator of the the ESTATE OF LAURA A. PHELPS, deceased, and DAVID C. PHELPS, Individually NO. 09-2045 Civil Term and in his own right, Plaintiff CIVIL ACTION MEDICAL PROFESSIONAL V. LIABILITY ACTION CHRISTOPHER J. WITT, M.D., and : EAR, NOSE AND THROAT FACIAL PLASTIC SURGERY GROUP, P.C., a/k/a EAR, NOSE AND THROAT SURGERY GROUP, P.C., JURY TRIAL DEMANDED Defendants PLAINTIFFS' RESPONSE TO THE PRELIMINARY OBJECTIONS OF DEFENDANTS CHRISTOPHER J. WITT, M.D. and EAR, NOSE AND THROAT FACIAL PLASTIC SURGERY GROUP, P.C. TO PLAINTIFFS' COMPLAINT AND NOW, come the Plaintiffs, David C. Phelps, as Administrator of the Estate of Laura A. Phelps, Deceased, and David C. Phelps, Individually and in his own right, by and through their attorneys, Navitsky, Olson & Wisneski LLP, to hereby file a Response to the Preliminary Objections of Defendants Christopher J. Witt, M.D. and Ear, Nose & Throat Facial Plastic Surgery Group, P.C. to Plaintiffs' Complaint as follows: 1. It is admitted that the Writ of Summons was filed on April 1, 2009. 2. It is admitted that the Complaint and the requisite Certificates of Merit were filed on May 8, 2009. 3. Admitted. By way of further response, Plaintiffs' Complaint speaks for itself. Plaintiffs allege that Defendant Witt negligently treated Laura Phelps' right ear infection, which allowed it to progress to mastoiditis, sepsis, and cause her death. 4. Admitted. By way of further response, please see Plaintiffs' response to paragraph 3 above. 5. Admitted in part. Denied in part. It is admitted that Defendants have filed Preliminary Objections. However, it is denied that there is any basis for the filing of such Preliminary Objections. The averments contained in this paragraph are conclusions of law which require no response. If such a response is deemed to be required, said averments are denied. Plaintiffs' Complaint does not contain any legal or pleading insufficiencies to warrant the filing of Preliminary Objections. PRELIMINARY OBJECTION IN THE NATURE OF A DEMURRER RELATING TO PLAINTIFFS' CORPORATE NEGLIGENCE CLAIM AGAINST EAR, NOSE, AND THROAT FACIAL PLASTIC SURGERY, P.C. 6. Admitted. By way of further response, Plaintiffs' Complaint speaks for itself. 7-15. These averments are conclusions of law that require no response. If a response is deemed to be required, said averments are denied. By way of further response, Plaintiffs' Complaint and the cases cited by Defendants speak for themselves. By way of further response, subsequent to the filing of Plaintiffs' Complaint, which contained a Corporate Negligence Claim premised on Defendants' failure to possess and retain a medical chart on Plaintiff's decedent, Laura Phelps [based on correspondence Plaintiffs' counsel received pre-litigation from Defendants' office staff that no records existed] Defendant's medical chart has since been discovered and produced to Plaintiffs' counsel. Therefore, Plaintiffs' claim of Corporate Negligence is withdrawn by Plaintiffs. Thus, the only claim of Plaintiffs against Defendant corporation is one of vicarious liability for the actions or inactions of Defendant Christopher J. Witt, M.D. and other agents of Defendant corporation. WHEREFORE, since Plaintiffs have withdrawn their Corporate Negligence Claim against Defendant Ear, Nose, and Throat Facial Plastic Surgery, P.C., Defendants' instant Preliminary Objection is denied as moot. PRELIMINARY OBJECTION IN THE NATURE OF A MOTION TO STRIKE 16. Admitted. By way of further response, Plaintiffs' Complaint speaks for itself. 17. Admitted in part and denied in part. It is admitted that defense counsel produced Defendants' chart pertaining to Laura Phelps on May 28, 2009. However, it is denied that "all caregivers should now be obvious to the Plaintiffs." Due to the handwriting in the produced medial chart, as demonstrated by the attached Exhibit "A" which contains the handwritten medical chart entries memorializing Laura Phelps' visits and contacts with Defendants' office, Plaintiffs are unable to decipher the initials and/or signatures of Defendants' staff and thus, are unable to identify Defendants' agents. It will only be by progression through discovery, for example, Defendants' answers to discovery and/or depositions, that the identities of Defendants' agents will be determined. By way of further response, Plaintiffs' Complaint, the Pennsylvania Rules of Civil Procedure, and the case cited by Defendants speak for themselves. 18-21. These averments are conclusions of law to which no response is required. If any response is deemed to be required, said averments are denied. By way of further response as one can see in the medical records attached hereto as Exhibit A, Plaintiffs are presently unable to identify the scribes for the initials and signatures in Laura Phelps' chart from Defendants' office. However, pursuant to Plaintiffs' Complaint and Defendants' medical chart, both of which are in Defendants' possession, the only agents of Defendants who are relevant are those who had contact with Laura Phelps on April 9, 2007, April 12, 2007, April 17, 2007, April 24, 2007, April 30, 2007, May 7, 2007, May 8, 2007, May 9, 2007, and May 11, 2007. Surely, Defendants have superior knowledge of the identity of their agents who worked on these particular dates and had contact with Laura Phelps and they possess greater ability to decipher their agents' own handwritten notes than does the family of decedent Laura Phelps. WHEREFORE, Plaintiffs respectfully request this Honorable Court to deny Defendants' instant Preliminary Objection. PRELIMINARY OBJECTION IN THE NATURE OF A MOTION TO STRIKE 22-27. These averments are conclusions of law to which no response is necessary. If a response is deemed necessary, said averments are denied. By way of further response, Plaintiffs' Complaint, the Pennsylvania Rules of Civil Procedure and the case cited by Defendants speak for themselves. Plaintiffs have not made generalized or boilerplate Conner-type allegations. Defendants have chosen to read the objected-to paragraphs and subparagraphs in isolation. The factual averments in Plaintiffs' Complaint are specific, material, and, when viewed in context with the rest of Plaintiffs' 18 page pleading, are certainly sufficient to permit Defendants to prepare a response. In fact, since all the paragraphs and subparagraphs called into question either are specific allegations of negligence or relate back to specific allegations of negligence in Plaintiffs' 18 page Complaint, there is no basis by which Plaintiffs could possible expand their theories of liability. WHEREFORE, Plaintiffs respectfully request this Honorable Court to deny Defendants' instant Preliminary Objection. PRELIMINARY OBJECTION IN THE NATURE OF A MOTION TO STRIKE 28-41. These averments are conclusions of law to which no response is required. If a response is deemed to be necessary, said averments are denied. By way of further response, Pennsylvania's Wrongful Death and Survival Acts speak for themselves, as do the cases cited by Defendants. Plaintiffs have met the pleading requirements at this stage of litigation. Plaintiffs' family has alleged that they have suffered pecuniary loss and have been deprived of their mother's tutelage, companionship, contribution and services, support and comfort because of her passing. It will be by progression through discovery that Plaintiffs can explain the nature of such pecuniary loss and such deprivation of their mother's tutelage, companionship, contribution and services, support and comfort. It will only be after the relevant depositions have been taken and discovery completed that there will be enough information for this Honorable Court or for a jury to make a decision as to whether Laura Phelps' children have suffered a pecuniary loss due to their mother's passing. Please see In re Estate of Wolfe, 915 A.2d 1197 (Pa. Super. 2006) and Ga dY os v_. Domabyl, 152 A. 549 (Pa. 1930). Furthermore, pursuant to the Wrongful Death Act, the action exists for the benefit of the children of the deceased, which would include Jonathan Phelps, and in his absence the damages recovered shall be distributed to his beneficiaries in the proportion he would have taken the personal estate of the decedent in the case of intestacy. Additionally, recovery under the Survival Act is to be paid to decedent's heirs. In this case, Laura Phelps' heirs include the estate of her son Jonathan Phelps. WHEREFORE, Plaintiffs respectfully request this Honorable Court to deny Defendants' instant Preliminary Objection and further rule Defendants to answer Plaintiffs' Complaint without further delay within twenty (20) days. Respectfully submitted, NAVITSKY, OLSON & WISNESKI LLP L Duane S. Barrick, Esquire I.D. 77400 Michael J. Navitsky, Esquire I.D. No. 58803 2040 Linglestown Road, Suite 303 Harrisburg, PA 17110 717/541-9205 Date: &/j/oq Counsel for Plaintiffs CERTIFICATE OF SERVICE I, Jessie K. Walsh, an employee of the law firm of Navitsky, Olson & Wisneski LLP, do hereby certify that I am this 16c" day of June, 2009 serving a true and correct copy of a Plaintiffs' Response to Defendants' Preliminary Objections to the Complaint upon all counsel of record via postage prepaid first class United States mail addressed as follows: Andrew Foulkrod, Esquire Gerryanne Cauler, Esquire Foulkrod Ellis 2010 Market Street Camp Hill, PA 17011 Counsel for Defendants Jessie K. Walsh ??e?T ? r. 11, 2GU9 8:59AM E. N. T FPS ?r . NANSE 1. L ?,n y ln_? PCP! t' ? ? . Y f cYY1 rr^,r?e n swtitLS?1 N4.84au, L' U .8, '7- no nAQ., . q-6) CC' [ • 's! Atb h r [time Ile, - Apr. 1 i. '1UUy 8.`?9AM....._,...t, N. I FPS.,_,......... ,..._..?-._.....__....._?...... NAME D.O.B. 7' Ck' F r I --it No. SbV AP Patient Name cal r+ n h [? , DOB Z. f xa ?? Ih 1?cr +?. ` M? '&elrob. is ^ 4 w ..» CON" No. s4so r? ? ZUUy 8.58AM E. N. I hf 5 - - - ... .. A U r . 1 1. __....._...... ._ _..._.._. _......,..._.....__._.._..._?._..._._...._. _....__..W ..-._._..__._._._ Patient Nama? DOB Messages J it / C l I-2 ,4 ?Aak & AM r -,6. lswJ, alit A15 of aZ m4/ i A&. ad OF THE 2VC9 .'?'e 16 A i I I: 37 FEt~ u ~ . IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA DAVID C. PHELPS, as Administrator of the the ESTATE OF LAURA A. PHELPS, deceased, and DAVID C. PHELPS, Individually NO. 09-2045 Civil Term and in his own right, : Plaintiff CIVIL ACTION MEDICAL PROFESSIONAL V. LIABILITY ACTION CHRISTOPHER J. WITT, M.D., and EAR, NOSE AND THROAT FACIAL PLASTIC SURGERY GROUP, P.C., a/k/a EAR, NOSE AND THROAT SURGERY GROUP, P.C., JURY TRIAL DEMANDED Defendants ORDER OF COURT AND NOW, upon consideration of Plaintiff s Motion Requesting The Court to Schedule a Case Management Conference and to Issue a Scheduling Order pursuant to Pa.R.C.P. 1042.41, it is hereby Ordered that a Case Management Conference will be held in this matter on the ~~ .iay of 2010, at ~~eo o'clock a>~pm. The Conference will take place before The Honorable ,~ ~n y~~~-d-J ~ and counsel for all parties shall attend. U', t ~ S r-'L.$ t ~.~1,, I A.~~,.f ~ .~~~ ~ J . rt.£~ (.~~-C~ ~lQ/~~ ~~ N Q ["r'i .3^ W ~p ...3 0 i..J '77 --1 ~~ ~~ ~.. ~ h ~4~ 6 :., ~ ~~ BY THE COURT: DAVID C. PHELPS, as Administrator of the ESTATE OF LAURA A. PHELPS,: deceased, and DAVID C. PHELPS, Individually and in his own right, Plaintiff v CHRISTOPHER J. WITT, M.D.,: and EAR, NOSE AND THROAT FACIAL PLASTIC SURGERY GROUP, P.C., aka EAR, NOSE: AND THROAT SURGERY GROUP, . P.C., Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 09-2045 CIVIL TERM JURY TRIAL DEMANDED IN RE: CASE MANAGEMENT CONFERENCE ORDER OF COURT t'~ ~ ;:.~ ;= ~,_ -- c -rti ---5 '~? ~~: r-: y -~ .~ ~:._ c, tv ~, ; ~ c~ ~~ ~ ~ `~ c~ AND NOW, this 24th day of February, 2010, upon consideration of Plaintiffs' Motion Requesting the Scheduling of a Case Management Conference, and following a conference in chambers, in which Plaintiffs were represented by Joseph M. Melillo, Esquire, and Defendants were represented by Andrew H. Foulkrod, Esquire, and pursuant to the agreement of counsel, it is ordered and directed as follows: 1. Discovery in this case shall be complete as of August 15, 2010; 2. Plaintiffs' expert report(s) shall be furnished to Defendants' counsel on or before August 15, 2010; 3. Defendants' expert report(s) shall be furnished to Plaintiffs' counsel on or before October 1, 2010; 4. Plaintiffs' rebuttal expert report(s) shall be furnished to Defendants' counsel on or before November 1, 2010; 5. Counsel are attached for the second civil trial term in 2011 in Cumberland County for trial in this case; 6. Counsel have indicated that trial in this case will take place no later than the second trial term of 2011, but may be tried earlier depending upon their respective schedules; and 7. Counsel are directed to list this case for trial at the appropriate time. By the Court, J.~Wesley er, J ., J. Joseph M. Melillo, Esquire 2040 Linglestown Road Suite 303 Harrisburg, PA 17110 For Plaintiffs ndrew H. Foulkrod, Esquire 2010 Market Street Camp Hill, PA 17011 For Defendants Court Administrator :mae ('~ I -, LSO t ~~S' /'~'t.~t 11~.~.., a,~~s f ~o FOULKROD ELLIS Professional Corporation 4000 Market Street Camp Hill, Pennsylvania 17011 Telephone: (717) 909-7006 Fax: (717)909-6955 DAVID C. PHELPS, as Administrator Of the ESTATE OF LAURA A. PHELPS, Deceased, and DAVID C. PHELPS, Individually and in his own right, Plaintiffs v. CHRISTOPHER J. WITT, M.D. AND EAR, NOSE AND THROAT FACIAL PLASTIC SURGERY GROUP, P.C., a/k/a EAR, NOSE AND THROAT SURGERY GROUP, P.C., Attorneys for Defendants: Christopher J. Witt, M.D., and Ear, Nose and Throat Surgery Group, P.C. 1N THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA n -~ .. l v ~ ~, ~--+ CIVIL ACTION -LAW ~~''~`' ~;' -; _< rt,r_ _ \' _ _ i.7 N0.09-2045 = --~~ _. . -- ~ . .. -; =~' ~a .r Defendants :JURY TRIAL DEMANDED PRAECIPE FOR CHANGE OF ADDRESS TO THE PROTHONOTARY: Please be advised that the address of the undersigned counsel has changed to the following: Foulkrod Ellis P.C. 4000 Market Street Camp Hill, PA 17011 (717) 909-7006 FAX: (717)909-6955 Respectfully submitted, FOULK LIS Date: ~ 0 By: .. Andrew H. Foulk od, Esquire Attorney I.D. #77394 Darlene K. King, Esquire Attorney I.D. #75898 CERTIFICATE OF SER~IICE I HEREBY CERTIFY that true and correct copies of the foregoing were served upon all ~'~- counsel of record this ~ ~ day of _~.'~_ , 2010, by depositing said copy in the United States Mail at Camp Hill, Pennsylvania, postage prepaid, first class delivery, and addressed as follows: Duane S. Barrick, Esquire Navitsky, Olson & Wisneski, LLP 2040 Linglestown Road, Suite 303 Harrisburg, PA 171.10 (Counsel for Plaintiff} FOULKROD ELLIS Professional Corporation C.-~ ~ J~ ~ Crystal L~Nemetz, Secreta T3aviil C. P)$+r:#ps Ac)ministrator of ti$~ Est»tf: off Laura A. )'6elpY,1)ecease~l, artd I)HVid t:. Pl$el)$s, Xndividualty, autl in B:is t)~n Right, f'Plairtti~i (I)<;rn~~ndantej, ~J :i. C't$ri~#sapher J. 'Ehrtt,l~1~ ~ I',xr, _N$1sc Sc Throat ikaeial Plastic Surge' Grnaip, P't' ar'k%a Es~r, :Nose as$d 'Tlxr~sat Surgery t~roap, P+t;., EI?t,f~n~lix~f) ~I.Jerrtar:~ir~ifjj, Vv.U.~~1~7~3d10t, ~w ~y~ y ~ r~ -c+ } ',__ yj ~ ~~~ CEitl'J~;k,`,IC'~~.TE PRERE~}UYSiTE Tn SERi~It±E OF A S€3BPUENA Y'URS>[1.~NT TO RULE 4009.2 ~~ .4.s a prerc;cluiste to scrvive of'a s:~l~paena tizx d~~c:~ments and things pursuant to Rule 4{}09.22, 1'~ndrer~v F{. F'v$~3k$-c~d, Fscl ,attorney Vic,. I~etc:r$ci,~r:t, certifes that: ~ 11 ~ notic: af' intent tc~ s~;xve the s$$t~pcena with a copy of the subpoena ached theret~~ leas mailed ar (~3Ley~{r~Ive(}{re~3 tc., eact$ paxty at least; tvs enty days pxiax to the elate on vtrhich the subpoen~H is sought to be lVi. i44J-~ (2) a ce~py of file notice: ~i' int~t, ir~cilxtix.rig the pxc~posed subpoena, $s att~$ched t~! th$s certaficate, (3;3 no €~bection to the s3ab~+;~ct$~$ #$as been rece3~red, and (~) tl~e si~hpoena ~-vhich will be served is it3cs.t;tical to t3te -$~.bpaena which is attached to the notice of intent tc~ serve the s$~t~pz~~:.r:ai. :: .: Usited~ ~ . • : : , .....°----------i--~. - -------' ,y ~,kg .~^~ ~ yx$4 t 4 S k'k r n., ';~'f`° _ .W ---------- :51„C1d$'C~;' ~~. F~?ulltrod, );Std. (~$~: 7194} Foulkrc>tl isliis 4(1(3t! iti4arl;;et St. €:;an~p Hill; ]PA 17013. ~'i3~?ne: ~7#?}909-70Ub Fay:: i717j 9#)9-695 Alts rr~~y~ ~r ~E f~MC~ant<si, ChrisErgheH' .~. 'Gifitt, T`SL} & Far, Nose & Throat Facial Plastic S$ir~;ery Gro$~p, PC, a~'k/a, Far Nose and Throat S$$rgery timup5 Pt: . W.4. # 187853 1:taEa-i~ ~:, I'lhel~s .~d3ninistra#c,r cxf t6Ea Estate t~~' 11aF~ra A. Phelps, ~3ecaa,~d, xEnci David C'. Phelps, 1:ndiviElual~y, and is 1<fiis Ct~xx 1Light, V'~. ~Ct~ristdpltcr ~. Witt, Ml] & )F gar, Nase c~. 1'lxras# i+`acial Elastic Sur~*~r~v GrE;~Ep, :t't;, a.~kla, Ear, Nose ~xtxtl Tlxresat SxXr~crr~ Gr-u~Ep, :k'i'~<, (1?f~~n~%~rrti :laeniceru~arlt?f. Case IVc~.: Q'9-2056 N(3T~C'I; i~;~` )l~ lEN'1' 'T+~ ~, Ft~'E el ~'G]BPC3EN~'~ Tdl 1'Tt~3UXTCE Dt)t~i"I41~,N'~'S !?~.il~€),'1" ~~NGS Ff3I~ DI~SC;CI ~~' Y~U1L'4[JA.P~TT 'I'C? X2iJ'LE 4€149.21 •'~ririr:,tti~ I:~I. t'nSa.lit,od. I•~s~., A.tnr3xGy i`crr lleferEda~t, iF3teaxds t+7 serve a sEib~E~4F~a iE~en#ic~El tQ tixe ane t=xat is atEizc:E3c:d tE? :his ra+?Eice. You have tw~.Fl.y i24~ dsxys f"rrnx the date listed t?elE)~v XFx which tip file tJ~'r~,i:t?rC{ i{.Elc~ Sci'~'~ iE~102'i lli[ E3rtr;~f'.rs1~'llt'CI a33 f;~1~C:i:t:Et3r1 ~:U t~'Ee sub~t~?eYEa. ~f CIU t,1b3~cti4ri is ?F]~dC`, €he sub~i?cna :nab' tac s;cF~cd. I`~: I~tEEEi~~ :~;. L'arrirlr, Esi{. ~t~avi;u~.~, ~?is;~r~ ~ ~~'~srEes~:a, i_:l.;i' yt)4tZ LIFI4~;li;S~IIL`lSi RE~„ Stt;.:{~):4 1-1~.rris~+E~: ~. ~f4 I , l 1 fj -, ~'~~ ~~ ~~ ..~______~___ s b .~lndret~ try F~fE~tl~'c-~;~,stl. (SI3:~1: ?'739=~•) 1~E;ulkrrd Irllis ~{It3ii ~'~~.airket St. C;xrrap dill, NA 1701 I I'ht~E}e: ~'1I J) 909-7006 :~Prc7rrtcy~~ for 1?e_~errdant./,s,), C;I1CiSE~plx~r ~. ~~5'~itt, ~~ tSL ERr, NA~~ & T~ICt3~t IrExcial Plastic Surgery ~iroup,l'C, a~'lv`xx, liar ~N~se a~xd '1'hruat SE~rger,~ col~loNwF.ALTH of PErlrlsvLVA><rIA COUNTY OF CUMBERLAND David C. Phelps, Administrator of the Estate of Laura A. Phelps, Deceased, and David C. Phelps, . Individually, and in His Own Right, File No. 09-2056 Plaintiff(s), . vs. Christopher J. Wits, MD & Ear, Nose & Throat, ; Facial Plastic Surgery Group, PC, a.k.a. . Ear, Nose and Throat Surgery Group, P.C. , Defendant(s}, SUBPOENA TO PRODUCE DOCCMENTS OR THINGS FOR DI5COVERY PURSUANT TO RULE 4009.22 TO: Custodian of Records Dr. ]ahn Barton, 104 Erford Rd. Camp Hii2, PA 17011 (Dame of Person or Entity) Within twenty (20) days after service of this subpoena, you are ordered by the coeut w produce the following documents or things: Medical Records; Sec, "Attachment A." at SECOND IMAGE NATIONAL, 2720 Rivcr Road, Ste. 26LL, Des Plaines, IL 60018 (Address) You may deliver or mail legib1c copies of the doctuments or produce things requested by this subpoena, together with the certificate of cotr~liance, to the party tnakiwig this request at the address listed above. You have the right to seek in advance the reasonable cost of preparing the copies or producing the things sought. If you fail to produce the documents or thugs required by this subpoena within twenty (20} days after its service, the party serving this subpoena Wray seek a cotut order compelling you to comply with it. THIS SUBPOENA WAS ISSUED AT THE REQUEST OF THE FOLLOWL~IG PERSON: F;A~,tg; Andrew H. Foulkrod ^- ADDRESS: Foulkrod Ellis T_ 4000 Market St., Camp HiI~PA 17011 _ ,__^ TELEPHOIrE: (717) 909-7006 ~ _~ SUPREME COLRT ID # ATTORNEY FOR: pe~ett1..-_- _- __-- BY THE COURT: Prothonotary, Civil Division 'Seal ofthe Court ~~~~~~ Dcpu3~-r~~~G~J W.O.# 187853-001 ' 8acond Imaq~, Inc. W.O. * 1i7a63-001 ATTACHMENT A RECORDS FOR: Laura A. PhtfPa D.O.B.: 7130!193? SSN: XXX-XX~063 AKA: CompNts medkal r+scords from first dab of troatment to the prosent, Including but not limited to any records/documeMs that may be storod digitally andlor electronically: documents, medical roporb, doctors entries, nurse's notes, progross roporb, caMfoiopy roporb, radiology roporb, x-ray reports. MRI roports, CT reports. rrrysiogram roports, lab roporb, monitor strips, physical therapy rocords, case history, emsryency records, diagnosis, prognosb, condkion, and admit and discharge rocords. All smalls bstvMeen physkians and the paWnt rogardMg physical complaints, symptoms, and treatment, including'securo messages'. COMMONWEALTH OF PENNSYLVANIA COUNTY OF CUMBERLAND David C. Phelps, Administrator of the Estate of Laura A. Phelps, Deceased, and David C. Phelps, Individually, and in His Own Right, Plaintiff(s), vs. Christopher J. Witt, MD & Ear, Nose & Throat, Facial Plastic Surgery Group, PC, a.k.a. Ear, Nose and Throat Surgery Group, P.C. Defendant(s). File No. 09-2056 SUBPOENA TO PRODUCE DOCUMENTS OR THII~`GS ~'OR DISCOVERY PURSUANT TO RULE 4009.12 TO: Custodian of Records, Premiere Eye Care Group, 1524 Cedar Cliff Dr., Came Hill, PA 17011 (Name of Person or Etmty) Within twenty (20) days after service of this subpoena, you are ordered by the court to produce the following documents or thugs: Medical Records; See, "Attachment A." at SECOND IMAGE NATIONAL, 2720 River Road, Ste. 2bLL, Des Plaines, IL b0018 (Address) You may deliver or mail legible copies of the documents or produce things requested by this subpoena, together with the certificate of compliance, to the party tTSalcinQ this request at the address listed above. You have the right w seek in advance the ressoaable cost of preparing the copies or producing the things sought. If you fail to produce the documents or things required by this subpoena within twenty (20) days after its service, the parry serving this subpoena may seek a court order compelling you to comply with it. THLS SUBPOENA WAS ISSUED AT THE REQUEST OF THE FOLLOWLVG PERSON: NAME: Andrew H. Foulkrod _ ADDRESS: Foulkrod Ellis _~ 4000 Market St., Came HiItzPA 1701_,1 __ _~ TELEPHONE: (717}909-7006 - , ~-- SUPREME COLRT ID # _.~ ATTORNEY FOR:.pefendantjs) .... .___ BY THE COURT: Prothonotary, Civil Division Date: (P/e~~9//U -_'f / De u ~ 'Seal of the Court p ~' W.O.# 187853-002 • Sncand Irrrs~, Inc. W.O.61a7E1i3-002 ATTACHMENT A RECORDS FOR: Lsura A. PhNps D.O.B.: 7gOM9s2 S$N: JO(X-XX-6063 AKA: Compkb n»dicai rocoMs from flret data of treabrrent tD the present, including but not Hmited to arty reconisidocumsnts that may be stored diglblly and/or electrorrlcaay: documents, medkaf reports, doctors entries, puree's notes, progress reports, caMiology reports, radiology reports, x-ray report, MRI roports, CT reports, myelogram roports,lab sports, monitor strips, Physical therapy records, case hktory, emergency records, dlagnosk, prognosk, condition, and sdmit and dischae+ge records. Ali emaik between physkkns and the patknt rogarding physical complalrrts, symptom:, and treatment, Includtng'secure rrressages'. To Include any and all record: from Or. Geoffrey Brent W.4. #~ 1.878:3-filj2 Il~swic! C~'. p'helps Ad~ninistratar ~~f the: Estate ai Case ATQ.: ~Jx}-~OSti Laursi A. Phelps, Dec~rsed, aYUd and Il;xvid C. Phelps, Indivixlually, sand in His +Clvwr- Right, (Plairttr,~J ~D~rnarYrluretQj, vs. Chri.3t3>pls+er J. Witt, ~iD & Far, Nom: & Throsxt F'a+eial 1?Iststic Surgery Gru~up, FC, alk/a, Ear, Na~+:: and Throat Sxargeu^y~ Group, PC:., !T_3~~fan~ant} FIJ~rnanc~id<~~. CE•IE2TIFIC':~'I'IF ~'I~L17~ t~i;~IT1N;'l'U SER~v'Tf~E 4:lF ~. SU.EJkPOi+:N~i P~~R~+YeB.';''~TT' 7`(:} i~ELE 40419.2 .~-s ~; pr~;re~uisit,, to sere if,e c3:f a sabpaena t~s° sic,r.YxrrerEts anti f~is~Y~,s i~EarsE~ane xo Mule ~30i3~7 2', .'~nclr~;w• .i€, li~ou€1•;rc~d, l.sq., atEiri'.tix;w' •f~~r ve9~enciuE)t, certi:fEes that: {:; ;~. E)<~iace c)f interEt gU sen:: t1'Et; stYhpc~nE V~ith a Cc~P~ trt the sxEh}~oesxa attaclied $~E:,CErtO 1v3.S El'iEElle~ Ur d;:l;vcr~4~l t:; ~.,~;~.c~i) }~:x;t~y at lea: d ~~cr.,tti~ ~tx3-c prior t,, the date i~tt iahiclt Lire sxibptk~Y;~ Fs soaght t~7 be {),;s a :;~;r ~% of the )~oti4c: =.>ftYt4ent, inctx:din'~ the Ezr;>lY{~st;d 'sul~t.+oet~a, Ys attaehe~ to this cestifctYte, {3:1:r:,, ;,t),gW:,ton t~> tt)e sui?l~o4r::). l);~,~ LNen rs;c~eivetl, avid {~~ ~~ 511j1?Cl@)Y$ ~@J?)Ef:l1 will h~ :4:.r~%t.C{ ss Eu::•Ett)C81 t;, t}-e sxshpt?ena tvl~iCtY 1S atta~;hed t~ the rioti~:e ~~f' ir3te;:Et tU S~.rSrY.' the; Si3:?i70#~SEa. t} s .,; ,. • ;~. • . c . fs ~iitZ(l: ~ ~ `~ • _............ - --------'s-- ~~zESirew Fi. i~oulfcxad, Escl. {>3arNc,.: 77394} Ft)uill~-cYd l:;llis CxrtY~E 1:isll, I'A l7i?11 ~~EOrEk~: {~~ ,'~ 91)9-'74(i~i Fa;{: {71 ?'~ 10=3$95 ~ttrar:try}or ~eferecf~z'nt(sj, C:hrist+~pher 3. VJiit, MQ 8c Es~r, Nose. & Throat E$cial ]Plastic fJLtr~CYV ~`Tr47i8~t, FC, atkla, Ear AIose and 3`hroat Surger~~ Grt~ulY, P~'._ Page 1 ;~f 1 ~_;~„ coMMONWEALTH of P1rNNSVLVA>`rIA COUNTY OF CUMBERLAND David C. Phelps, Administrator of the Estate of Laura A. Phelps, Deceased, and David C. Phelps, , Individually, and in His Own Right, File No. 09-2056 _ Plaintiff(s), vs. Christopher J. Witt, MD & Ear, Nose & Throat, ; Facial Plastic Surgery Group, PC, a.k.a. . Ear, Nose and Throat Surgery Group, P.C. , Defendant(s). SUBPOENA TO PRODUCE DOCL;MENTS OR THINGS F'OR DISCOVERY PURSUANT TO RULE 4009.22 Custodian of Records, Orthopedic Institute of Pennsylvania, 'I'Q; 3399 Trindle Rd., Camp Hill, PA 17011 (I<atne of Person or Entity) Within twenty {20) days after service of this subpoena, you are ordered by the court to produce the following documents or things: Medical Records; See, "Attachment A." at SECOND IMAGE NATIONAL, 2720 River Road, Ste. 26LL, Des Plaines, IL COOS 8 (Address) You msy deliver or mail kgibie copies of the documents or produce things requestcd by this subpoena, together with the certificate of corr~liance, to the party making this request at the address listed above. You have the right to seek in advance the reasonable cost of preparing the copies or producing the things sought. If you fail to produce the documents or things required by this subpoena within twenty (20) days after its service, the party serving this subpoena may seek a court order compelling you to cotrtply with it. THLS SUBPOENA WAS ISSUEll AT THE REQUEST OF THE FOLLOWLVG PERSON: r;A~; Andrew N. Foulkrod ADDRESS: Foulkrod Ellis _.____ 4000 Market St„ Camp HiII~PA 1701.1 _ ___ TELEPHOIrE: 717 909-7U06 .___ SUPREME COliRT [D # _ ATTORNEY FOR: l~c~'eRdant{si ... __ _~ BY THE COURT: G Prothonotary, avil Divrsron r Date:_~,~~~~_ 'Seal of the Court ~[/~2~~ Deputy W.O.# 187853-003 Second Image, Mc. W.O. p 1s7a6s-003 ATTACHMENT A RECORDS FOR: Laura A. Phelps D.O.B.: 7130/1932 SSN: XXX XX-6063 AKA: CompNte medical records from Hrst data of treatment to the presets, Inchiding but not Ilmitd to any recordsJdocuments that may be storod digkaly andlor Nectronically: document, medkal reports, doctors entries, nurse's notes, progress reports. cardbbgy reports. radiology reports, x-ray reports, MRI reports, CT report, myebgram report, lab report, monitor strips. physical therapy records, case hMtory, emergency records, diagnosis, prognosis, condition, and admk and discharge records. All emaNs between physkians and the patisrrt rogarding physical complaints, symptoms, snd trsatrrwnt, Including'secure messsges'. To Include any and all recoMs from AKA Orthopedic Institute of PA, OIP Physical Therapy. snd Dr. Stephen W. Daily. '4]V.Q. # 18"7853-d}l13 David ~„ Phelps ?-.d~~:,irz%strtatttr ui'the Estate of 1:,33aEra A.1'helps, ~3ereased, axnd l~avitl t:'. E'helps, Individaally, and iiz His (ltivn Right, (•pifdfl'ftj~J {],~]f'tJ;{1PtiI'fiTiif?.1, t~5. Christophs:r J. Witt, .I~TD 8r Ear, I`~tzse ~ `I hroat Fvcia! Plastic Sur~exy f.~rt-4uEg, YC, >i/k,`a, F;a4r, N~sae a~4El 'l~~h~•u~~l 4sr~~~ry C;rtlup, P~.~., ~ ~f ~~L'~'lf.~C7Yt~,% (j)t-llFii'i1t7Eiidt?.1. . 1 Gasp No.: 09-2056 ..~_..e__ YURS[.7.~'lNT TC) RUI:E 4i~fl4.ZZ As a I)rert;c~azisiEC, to st:4-vc~: of 41 s:zi:rpoena rt]r dtx:timer4t~ ar~cl ttzin~s pursu4i;t]t tt) fiule 4t)04.~.Z. s :~r4dfeoy ~i. I^t]]ill:rt)+1, ~~sc,., 43tt.+>rt4cy~ f~~t L~efercan#, Ger#ifEestl]at: f ; ~ a i;f1E4Ci ()f il]~C4Yt tG ,t,rvr. thtr sf]hp~e4?a with a G~~pY E)f tb.e subp(?ena attached thc;z'eto wa~c En~eil~d t1r tfvlit~+°r€d dig :.:~::~1 FT:tC~;r at ~eilst t~.uc;nty d~nys prier E(z tizc. date t?tE rv~i~;h ihK subpc~,,na i;4 sou~tit to ~e serti~etl, (:~} a c:(;Fx}% (zfttie. nc:~it;e. ()('i:•s~teEtt., i~]i;ludit]~; thy; pr()tr()setl ctibpcl~r]a, is a#tachetj t<) this eerEl~cate, ~3) nt? c?bjectic~?:a to the a4z;a~+tze•E~;z. tz~4s beet4 re~ea~~etl, ar4tF (*~) rl7G a~l?i1;)L't]a •x~h:ic;h ~~~ili hr: srr~cd is ide4]tiiai t(] t.i]~ sulzp(>ec]a ~~sFiich is ;~ttaclYed 1+? the no#ice of iilCf:4'4t tt'i SGt'`r;; tl]±r Sliktpf]G743]., > g#~ '` CC 'S•f 7i:~ f E ;~ :~:ndre:w:Fi, l~clull~•od.l*sq. fBarN(].: ">739~~ Fattl~rt,:i Ellis ~f}ilC :~~t~irk:et St. t'artai] i~lill, F'r~ 1 ^Ol l ~~hCtE]4: ('T1.7..a ~~~-'7008 Fay.: ('1.'T} ~~)9~8955 :5~1.'i1J'lZi?),'~t1Y ?)Qf8i'lfitt7T2i`(,Sj, C:`I.4ri;;,:apher :€. i'Vit#, h41'3 ~~. Fn~r, ~Pdnse &- TFEE•c~at Facial Plastic S(ir~ery C~raup, PEw, a,~'Is,%a, par N-,se and 'I'h~•t]at ,Su.r,~ cr}r rage i t1f 'I ~:.:~,~~ COMMONWEALTH OF PENNSYLVA ~tL4 COUNTY OF CUMBERLAND David C. Phelps, Administrator of the Estate of Lawa A. Phclps, Deceased, and David C. Phelps, , Individually, and in His Own Right, File No._09-2056 Plaintifl>: s), vs. Christopher J. Witt, MD & Ear, Nose & Throat, Facial Plastic Surgery Group, PC, a.k.a. Ear, Nose and Throat Surgery Group, P.C. Defendants}. SUBPOENA TO PRODUCE DOCLII~NTS OR THINGS FOR DISCOVERY PURSUANT TO RULE 4009.22 TO: Custodian of Records, Partners in Women's Health, 1 Lemoyne Sg Lemovae PA 17043 (Dame of Persoa or Entity) Within twenty (20} days after service of this subpoena, you are ordered by the court to produce the following documents or things: Medical Records; See, "Attachment A." at SECOND IMAGE NATIONAL, 2720 River Road, Ste. 26LL, Des Plaines, IL 60018 (Address) You may deliver or mail kgble copics of the documents or produce things requested by this subpoena, together with the certificate of compliance, to the patty making this request at the address listed above. You have the right to seek in advance the reasotnble cost of preparing the copies or producing the things sought. If you fai! to produce the documents or things required by this subpoeffi within twenty (20) days after its service, the party serving this subpoena may seek a court order compelling you to con~ly with it. THIS SUBPOENA WAS ISSUED AT THE REQUEST' OF THE FOLLOWNG PERSON: NAME: Andrew H. Foulkrad _ ADDRESS: Foulkrod Ellis ~_ 4000 Market St. Camp HiIILPA 17031 .___ TELEPHONE: (717) 909-7006 ~^_ SUPREME COURT ID # ~.~ ATTORNEY FOR: j~efen nt(~)..____._.____ __- Date: _--14~~1~ Seal of tht Court BY THE COURT: Prothonotary, evil Division ~~~~~~ ~' Depu W.O.# 187853-004 second ~., inc. w.o. a ~area3-0o4 ATTACHMENT A RECORDS FOR: Lsura A. W~silpe D.O.B.: 7/30!1!32 SSN: XXX-XX-6063 AKA: Complete nredkal records from first dab of trsatrnsnt to the present, including but not limited to arry recoMs/documenb that may be storod digitally andlor electronkally: documents, medkai reports, doctors entrks, puree`s notes, progress sports, cardiobgy reports, radiology reports, x-ray reports, MW repot, CT reports, myelogram report, lab report, monitor str~s, physical therapy records, sass history, emergency records, dlagnosb, Prognosis, condition, and admit and discharge records. All smalls between physicians and the patient regarding physkai complaints, symptoms, and treatment, including'secure messages'. To include any end sil records from Or. Rose Eskin. '~.~. # 187Sfi3-t#1#4 lriavid C'. Phe#Ps, :~c#xnixPistP•atcar of E1Pe F.statr of Case No.: U9-2f15fs ]Gears A. Fhel~ss, Deceased, and ]}avic# +C. Fhe#ps, Iadividual#y, and iu H:is Chvvn 1"til;ht, ~Plaintiftj t~'?cfrf,PndrxntE j, vs. C:hristaghcr ,]<, Witt, }1![T~ ~Sr. Ear, i"~c"use & 'Threat Faeia# F#astic Surgexy C~reup, PC, a/kfa, Ear,l~Ttise aPPd Threat SPPrgery (yreup, P~'., (L>efi?n~n'uru, (~}emar~aaar~t?). C~I~"L Il~'ICA'I'F Pl`tERFgi ~TSTF;(; '><'+CJ SFY2'VICE 4F A SUl3FC)El'~A :4s a pa'ea•cqui.sitr. !:v set•vire of a sa_Ebpaena ftir dc~caxments and things put-suant to Rule ~Gt39.~2, Aa~da•eu~ H. FcFaPlkresEi, T;st{., atta,ney for i~efcndatzt, t:ertifes that: 1 } a notice E~i' intent to ::arvt; thy, saal~paena with a cagy of the subpoena attachc~i therett~ was mailer or ~Eeaivere~ to each t?art~: at leaet twetat;~~ days prier to the date on which the subpoena is sought tU be sea~vezi. (2} M G~~I;y caf the nt~tice of Pntent, including the pr~:~pas~:d subpc~na, is attached to this certificate, (?} no ota~ecti,7n to tlhe stal:~po~;na: h~;s __~ received, and (`l} ttae :axlspcaaraaa wl:ir:ia w iii he served is icleastis:al t« the subpoena which is at#avhed to ttae native at intent to serve the; subp,~craaf. r. Andrew H. Fau~lc~•p~ s :~(}3arlvs~.. 7':34} FaPalkrad Ellis 4tl~E~ Market St. Camp Hill; PA }.7111 1 Plaane: {",17) 9(3i-7t1U6 I~ ax: (71 ?} 909-t9S5 flttorney ft~r De~eredant(s1, ChristapFaer J. Witt,1VID c~ Ear., Nose & Threat Facial Plastic Saargen~ Group, PC, ar#c.%a, Ear Nose and Throz~l. Surgery t~roup,l'C. Page; 1 c•#' 1 ~~a COMMONWEALTH OF PENNSYLVAI~rIA COUNTY OE CUMBERLAND David C. Phelps, Administrator of the Estate of Laura A. Phelps, Deceased, and David C. Phelps, Individually, and in His Own Right, File No. 09-2056 Plaintiff(s), VS. Christopher J. Witt, MD & Ear, Nose & Throat, ; Facial Plastic Surgery Gmup, PC, a.k.a. Ear, Nose and Throat Surgery Group, P.C. , Defendant(s). SUBPOENA TO PRODUCE DOCi:MENTS OR THINGS FOR DISCOVERY PURSUANT TO RULE 4009.22 Custodian of Records, Becky M. Fox, DMD, Fox Dental, Ltd., TO: _ 819 Market St ,Lemoyne, PA 17043 (I~'arne of Person or Entity) Within twenty (20) days after service of this subpoena, you are ordered by the court to producx the following documents or things: Medical Records, Dental Records; See, "Attachment A." at SECOND IMAGE NATIONAL, 2720 River Road, Ste. 26LL, Des Plaines, IL 60018 (Address) You may. deliver or aril legtble copies of the documents or produce things requested by this subpoena, together with the certificate of carrrpliance, to the party araking this request at the address listed above. You have the rigbt to seek in advance the reasonable cost of preparing the copies or producing the things sought. If you fail to produce the documents or things required by this subpoem within twenry (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 FOLLOWLVG PERSON: NA,~; Andrew H. Foulkrod ADDRESS: Foulkrod F,Ilis _____ 4000 Market St., Camu Hill, PA 1701.1_ TELEPHONE: (717} 909-7006 SUPREME COI;RT ID # ATTORNEY FOR:.p~ndanus~ Date: ~(j~ Seal of BY THE COURT: it / ~~~/ /J. ~~.,0~ othonotary, Crvil Division W.O.# 187853-005 Second Mnage, inc. W.O. f 1S7S63-006 ATTACHMENT A RECORDS FOR: Laura A. Phelps D.O.B.: T130/188~ SSN: XXX-XX-6063 AKA: Compleb derrtsl records from Aret dab of treatment to the present, including but not Ihnibd to any recordsldocumenb that may be stored digitally andlor electronkally: derrtal rscordslreports, adblogy reports, notes. correspondence, prescription slips, bleplwne messages. diagnostk report, and ibmb~d statement of the blfAng charges. A11 emaNs between physicians and the patient regarding physical complaint, symptoms. and treatment, including 'secure messages'. W.f3. # 187853-tIUS i3uvitl C, PIE~~Ips, Arlministratt~r of tl~e Estate of Cass 1'ro.: U~-2US6 Laura A. l:'lEtel~ss, Deceased, Etnrl lla~vid C. Phelps, I.II~LIF'Yidnally, and i.n i:~:es Cl~vvn Ri~Ltt, (7'I<rznt~j',f (t~ernunc~r..nr€), ~s- Christopher J. Fitt, MT! R l~'ar. Nose & Throat Facial Plastic: 4ur}~ery +Grflup, PC, a/l+Ja, l~Jar, i~tuse tEnd 'I'hrotet ~urgcry [Yrc~up, .PC., i~e,~enG~ir~;=tt; (~1~.-er~:uru~'rrr~'r,~. C>E,~.')'IFT~'.~.'E'I~, P)<t£I7E - T.3Iai'TF T+~t SF,.R'VICE OF ~. S~JBPOENA PT ~t~+li-?~1'I' Tt~_ R[TC,F ~3k7ii9.2y ~,:~ ~~ Izrsr4cisai:~itE; to serviE;s ofa suhPE?t:r~a for doc.t:msn~s a~Erl thirE~s pEZE,su;~t tr~'I;Iu1e ~#{Fi)9.2:, r~rEEircw .~#_ h'Er:Ellcrsscl, l.scf, sEExEZrn:,}~ for I~}eFC?.rEClart, csrEitiss that: { t j :~ :z~tECe of ErxtsrEE tE? sLrve EI1E; s~Ebpoe:Ea viEtl'i a cope c~# the subpoerxa attached t11CE1°.tE7 was mailed or deli~~:s•~.;d t« each l;ar~ty at l~;as# Lai~enty days prior tc~ tha da#.e ors which the subP~.-senEE is sougtst to be ssr~a eci. Z} a c.EZ~+y crf tl~c. nutic;e cxf' intent, inclE3c~in ;The isra~~~sed suhpocroa, is a[tacl't~ed to this ceztLF.ECats, :s3 :~o cl~jc;i:ti;~3; tc~ it~e, sE~l?pc;srE~:1.a.4 been re;reieecf, arsci !~#~ tl;e siEhl:c?ena ,which tiw°lf E?c; erv~d Es iciCi3ticat po the 5~t~}~~-rsna which ~s r;t#achsd to #hc Ezctiec; of ir~tcrrc tc> ;iert+~; the SE1i}DC~~ri~. n {. 1'; y ------_;~esic ...._. __.___. Anclri`v I-l. I'~ciEaEi:rad., Esq. (Rar No.: ?; ~yq4} D'rf;~iDuiEci lulls ~tDOU NDar~k~.t ~~.. ~'arnP Hill, P:'~ I7U11 Phone: i71'D ~3U9-?O~Ey F'ax: X717} q€19-CS-5 4 .~~torrfey. f<>r• .i3~f ;rt~~'ctrtdt`s,+, ~;hristo~l,c:r ~. ~'iEt, Il~13 ~ Ear, ]joss ~ 'F'hrnat facial Plastic; ~E1E~~;~k:ry ~.ir'+?EI}7, I'C., a~'k%a, IaE• I*Tasc ar-t3 Thn~at St~.r;~er~ Pab~. i of I ,,, :;,~ COMMONWEALTH OF PENNSYLVAT`IA COUNTY OF CUMBERLAND David C. Phelps, Administrator of the Estate of Laura A. Phelps, Deceased, and David C. Phelps, , Individually, and in His Own Right, File No. 09-2056 _ Plaintiff(s), V S. Christopher d. Witt, MD & Ear, Nose & Throat, Facial Plastic Surgery Group, PC, a.k.a. . Ear, Nose and lfiroat Surgery Group, P.C. , Defendant(s). SUBPOENA TO PRODUCE DOCUIVIENTS OR THIl~'GS FOR DISCOVERY PURSUANT TO RULE 4009.22 Custodian of Records, Zlotoff, Gilfert 8c Gold, P.C., TQ; 510$ E Trindle Rd Ste 100 Mechanicsbu PA 17050 (Name of Person or Entity) Within twenty (20) days after service of this subpoena, you are ordered by the court m produce the following documents or things: Medical Records: See, "Attachment A." at SECOND IMAGE NATIONAL, 2720 River Road, Ste. 26LL, Des Plaines, IL 60018 (Address) You may deliver or mail legible copies of the documents or product 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 m seek in advance the reasonable cost of preparing the copies or producing the things sought. If you fail to produce the documcnts or things required by this subpoena within twenty (20} days after its service, the party serving this subpoena may seek a court order cotr~elling you to comply with it. THLS SUBPOENA WAS ISSUED AT THE REQUEST OF THE FOLLOWL~TG PERSON: NAME; Andrew H. Foulkrod _- ADDRESS: Foulkrod Ellis __ 4000 Market St., Camp Hillt PA 17011 .~, TELEPHOI`E: (717) 909-7006 SUPREME COI:RT [D #~ ATTORNEY FOR:.j~efendant(~)._-- __- BY THE COURT: /1,l ~_~~Cl~ Prothonotary, Civil Division Date: ,~~~~,/ ~ 'Seal of the Court ~pu~' W.O.# 187853-006 s.cond unag., Lna w.o. ~ ~erssa-0os ATTACHMENT A RECORDS FOR: Laura A. Ph~tpa D.O.B.: 7/30He32 SSN: XXX-XX-606S AKA: Complete medkal roroMa from llrst dab of troatment to the prosent, Including but not Mmibod to any recordsldocuments that may be stored diglfllly andJor etsctronkapy: documents, nwdkal reports. doctors entries, nurse's notes, progress reports, cardiology reports, radiology reports. x-ray reports, MW reports, CT reportb, myelognun reports, lab reports, rnonlbor strips, physical therapy records, case history, emergency rocoMs, diagnosis, prognosis, condition, and admit and dbcharps records. All emalle between physklara :red the patient nganling physidl complaints, symptoms, and treatment, inciuding'secuw messages'. To include any and all records from Dr. John O. Gilfert, and 3600 Trindle Rd., Camp HIII, PA 17011. w.a. # ~s~a~s~-o~ :[~T3<vif~ C;, I'laelp~, As~mi3iYistrataT- c?# tiTS' Estate of i.ass Na.: v9~2t15ti Lanrfa A, Whelps, Ueer;a:es~i, arxd l~ssvid C. Phetps, Ie3l.tiividuaily, anti en ~liis O~'1Y night, ~~'lair3fi,~f} {1}e~cmdc~rate,~, vs. Christapher J. ~Vitt,14II} & Ear, lYu~+e & Th.rotst Faieial Plrastic Ss:sr~;e;>:y Ero3;ep, Pf:, al~kla, Ira3r, Dose a~3~ 'I'hrs>at sSnrgct~y GrsT3a~T, PC., C;)E<:tt'T11+1ft::~Tl, P'T~F}tF;U • ISl`i'F T~() ~FR~'ICE GAF A SX1BPt:~~l~t ~'iT~~.~•Eit'~l~`I' T"(3 ~i;LE ~Oti9 22 As ~. iTr:;rs;~~iT.i4itt; $~ S;,rYiCf,' tT# .µ :;3T1'?I7tT~:n]T. far 3t3cut3:efTts ,3ris~ things 13urs~f;3.rft to 13.U~e ~E1~)9:22,~ r'~1YiflY$'yii ('~.. }'Ut.iil.;;~-c;dA. E.srf., fTt'ttirtTx:~• f,~?r T34fesTd;3nt, certi~ses that: { Ij sTC?t:i;:~;: f;f .isTtrnt tCj $~3~%$ ~~~ ;iLT~SCDc~+t:k'li3 -cVith a CCoP.'' of tlTe SUlS~?acsT:3t att~ii:llef~ tlTei'etct VS'aS r't3.3•ilefl ar ds'livci•ed .t~} ..sciT haft, of fea~fit Cv~~efTt;~ days f)rtOr ttT the ilaEe atT ~vhicls tlTe sTZl:+is+ltiTr'! iS sauglYt t0 ~~ SG'Y!''L'~d, t.~; $ +:~U~~' of tf]e L1~3t3C~ ±;$ E32t~Yit., iCtE,Eti~iny EhC Fral:iased ST1~3~Oi;T'EiT, i8 attac;he(i tt~ tlt~s C~rt11'Es,atC, (.~~ fTC? C}iD3t:Ct1Cr3t En 1:#:c S13~f3~irf3s2'f3~5 17i't)rt ri.t;t.E4'~ e~, 3ni~ (4:i tiT.e sT:fFs~>efTa t~'hiclT Fvili I?e =,s~rsecl i~; iti~tlticiFf to the stTbiT<>ena `avhiLh is atta:,hed t0 tlTe sTar,ite of fTt~3'It tf3 4Y,YVN Q;~'t~ Sli~~3C?Gf3%1. t`~'_ .~ y ::",•i ATYdre~v H. Fcit~lkrod, E~. {Bar No.: 77394) F'aislkrad Eilis X000 Market St. ca3T,~ Hill, ~~, 17a~ ~ Ph~3~~: ~~~~~ ~0~-7006 pax:: ~~~ ;~~=.}n~-s~s~ Attvrneyfor .ir?s.~fendunt{s), Chris#c~plier J. Vfr'itt, MD ~ Ear, I~Iase & Throsst Facial Plastic Surgea~~ C;ro~ilx, JP(;, alltla, Ear Vase and Throfat Stugery Cirautt, PC;. P'a~e 1 fT~ 1 ,~,:,~ COMMONWEALTH OF PENNSYLVAA~IA COUNTY OF CUMBERLAND David C. Phelps, Administrator of the Estate of Laura A. Phelps, Deceased, and David C. Phelps, , Individually, and in His Own Right, File No. 09-2056 Plaintiff(s), vs. Christopher J. Witt, MD & Ear, Nose & Throat, Facial Plastic Surgery Group, PC, a.k.a. . Ear, Nose and Throat Surgery Group, P.C. , Defendant(s). SUBPOENA TO PRODUCE DOCI;MENTS OR THINGS FOR DISCOVERY PURSUANT TO RULE 4009.22 Custodian of Records, Jackson Siegelbaum Gastroenterology TO: 423 N 21st St Ste 100, Camp Hilt PA 17011 (Dame of Person or Entity} Within twenty (20} days after service of this subpoena, you are ordered by the court to produce the following documents or things: Medical Records; See, "Attachment A." at SECOND IMAGE NATIONAL, 2720 River Road, Ste. 26LL, Des Plaines, [L 60018 (Addre~} You may deliver or mail legibk copies of the documents or produce things requested by this subpocaa, together with the certificate of compliuue, to the parry trtaking this request at the address listed above. You have the right to seek is advance the reasonable cost of prepsring the copies or producing the things sought. If you fail to produce the documenu or things required by this subpoeiffi within twenty (20} days after iu service, the party serving this subpoena may seek a court order compelling you to comply with it. 'THIS SUBPOENA WAS ISSUED A'T THE REQUEST OF THE FOLLOWLVG PERSON: N,~ig: Andrew H. Fouikrod ADDRESS: Fouikrod Ellis _f 4000 Market St., Camp Hills PA 17011 ~~ TELEPHONE: (717) 909-7006 ___ SUPREME COURT ID # __ ATTORNEY FOR: ,j~efendantlsl__.___- ~- BY THE COURT: r ~ ~.!/~ Prothonotary, lull Division Date: LU/~dl/G 1~ " "' 7' 'Seal of the Court ~~~` W.O.# 187853-007 Second Nnape, inc. W.O. # 1d7a63-007 ATTACHN~ENT A RECORDS FOR: laun A. PhNps D.O.B.: 7/30/1#32 SSN: XXX XX~063 AKA: CompNb medkai records from Anrt dab of treatment to the present, Including but not limksd to any roco-dsJdocuments that may be stored digkaliir andlor electronkaNy: documsr~ts, medical raporb, doao>+: entries, nurse's notes, progra~s roports, csrdloloSlY reports, radiology reports, x-ray reports, MRi sports, CT reports. myelogram sports. lab report, monitor stMps, physical therapy records, case history, errnrgenry records, dlagnosb, prognosis, cardition, and admk and dlsChange records. Ali smalls bstwsen physkians and the patient regarding physics! complaints, symptoms, and treatrneM, including 'secure messages`. ~T.fj. # 48783-(1l17 Da~rid C'. P'ltklps, AdnE~inistrator ©~€ the Est~iis c1f Laura A. ~'hclps, Deceased, a:t~cl llr~vid t~. Phelps, I~dia~idua113•, ar~d In Avis Chun .Iti ;ht, E'Pl~.trstt`i~;1 (I~t~nfan~~r~nt~l, v:>. C~l3ri5tapher ;l, 'Vitt, I~TD ~ EaEr, ruse ~; '1'11rz:alp Facial 1'la.~tic Surgery Group, PC:, a./kJa, ~',aF,.'4ose a>rt~~'I'@rox~t!~urrery Group, PC., (lJe;f=z~i~arrt; ~U~~rnandiids~;). 8,~;;€?It'I'i~'I;:C~'TE PitFR~_C}LrISI'~E: Tt) 4F~tVICE~7F ~ ~L-~iPt~ENA PTT~~Cr~~t•1` 1 t) it[iL:~,44Q~.22 Case id©,: Ct9-2456 ,~:~ a;~reregixisite t~? s£rvice Ufa s~E€1pc~eFla #i1r c1~?cuEl~eExts and li~Ein~s ptErsuant t<! RcFle ~#U4F~ Z :~.xEilr4s~- 1~, ~'E;tE~ICrac€, ~:zq., atic?rr1C`j~ f<!r 1~3t;fenclant, :erti~iestkEat: (~ j ii Y`.t1tiCC: (>P~ €fltcrtE tit S~:'~L'• .h t+ $iltt3~'10<.f3i1, t~'Et1t a i:i?j3~1 i?~ ih£ Si117~1ttena ;3ttf1G17L'CI ther>tc! er'hg rriaFled n.C de~FY!'3'!;d ~~-~ c;ac.11 €1w.tfi; S~ €east t~~~erty da.3':~ pritl: to the date oat u~hicY1 the s~ut~pcxEla is sclugltt to be 5~Ti'ed, i:;t.} a <~o~}~ Erf till'. Flc;tiE;:.~ o#~ intent, irl~;iuditFt; dIe }~raix-~sed sullpaetEa, is ~E~tached to ti11S oertiticate, f3} 3Ji? c?l~~z;cticlE: to the sEl}'!;)~'~F1;9 has E:leen r£c:t:ivF;.~i, af:al ;w) tl,~. ~~Ehll;>s~tla ~'~~ltat;i~ `~,•it1 he :~er~.ecl is id~:Elti~~ai t~ E17c su€s€zoena 4vllitik~ is attached to tl1.e tlGiice nf' tflteElt ttt 5~.:rVt'. t~E4 S131?~3~l~rIFE. ', ~ , . . ~~` .'~-cireyr lY. ~i~EilkrlJCi, F~. (I:taF•]~o.: '77:394} F;?E3.~€4=~~~i j;~~1S ~:'hnEp IIi11.'1}Fe 17411 P~lilrtY.; (717} 949-"44b Fax: E. ? € } 949-t1~355 :4it!trrrey ~,r llc;fendant(s,.i, Cl~ristoph~;; J. Witt, ~,4ll ~ Ear, ;~ts.~se & Throat Faciat Pla.~tiz Sur~erv Gruug,l'C;, a~'I<1a, Far Nvse alxd Throat Surer}' ~1Ct:sE3~i, .€?Zr~. COMMONWEALTH OF PENNSYLVAI~`IA COUNTY OF CUMBERLAND David C. Phelps, Administrator of the Estate of Laura A. Phelps, Deceased, and David C. Phelps, Individually, and in His Own Right, PlaintiiT(s), vs. Christopher 7. Witt, MD & Ear, Nose & Throat, Facial Plastic Surgery Group, PC, a.k.a. Ear, Nose and Throat Surgery Group, P.C. Defendant(s). File No. 09.2056 _ SUBPOENA TO PRODUCE DOCtiMENTS OR THII~'GS FOR DISCOVERY PURSUANT TO RULE 4009.22 Custodian of Records, Pennsylvania Neurological Associates, Ltd. TO: 110 Lowther St., Lemo e, PA 17043 (Name of Fetson or Entity) Within twenty (20) days after servicc of this subpoena, you aze ordered by the court to produce the following documents or things: Medical Records; See, "Attachment A." at SECOND IMAGE NATIONAL, 2720 River Road, Ste. 26LL, Des Plaines, IL 60018 (Address) You may deliver or [nail kgible copies of the docttrnents or produce things requested by this subpoena, together with the certificate of compliance, to the patty tmkiug this request at the address listed above. You have the right to seek in advance the reasonable cost of preparing the copies or producing the things sought. If you fail to produce the documents or things required by this subpoena within twenty (20} days after its service, the party serving this subpoeru tray seek a coral order compelling you to comply with it. THIS SUBPOENA WAS ISSUED AT THE REQUEST OF THE FOLLOWL~TG PERSON: NAME: Andrew H. Foulkrvd - ADDRESS: Foulkrod Ellis ^_ 4000 Market St., Camp Hill, PA 170I 1 ____ TELEPHOKE: (717) 909-7006 ~ -- ~ ~ --- SUPREME CUL'RT ID # ___ ATTORNEY FOR: ~f~.~jS).--._._~ _~~ Date: ~_~~.~~~/l1 'Seal of the Court BY THE COURT: ~~ ~ ~ Prothorrotary, Civil Division W.O.# 187853-OOR s.cond anag., inc. w.o. ~ ~a~s~-oaa ~ ,, _ ~ RECORDS FOR: Laura A. Phdpa O.O.B.: 7l30M93Z SSN: XXX-XX~Obz Al(A: Complete medkal records from first dab of troatmsM to the present, Includlrr~ but not Ilmibed to arry recordsldocuments that may be storod dl~kally andlor stectronkally: documents, medipi reports, doctor's enMes, nurse's notes, progress report, cardbbgy reports, radiobgy sports, x-ray reports, MRI reports, CT reports, myelo~ram roports, lab reports, nronibor strips. physical therapy rocoMs, case history, enrer~ency records. dla~nosis, pr~nosis, conditlon, and admk and dhchar'ge records. AN smalls between physklans and the patNnt r+agardlrr~ physical complaMt, symptoms, and treatrrrent, includlnq 'securo rrressa~es'. To include arty and all records from Dr. Lisna I. Lana. 1A%.tlr. # 187853~~8 David ~;. Phelps, ~•~dnninistratar of the F,stute of Laura ~.. Phelps, I)ecease~f, and David ~;. Phelps, Isnciiyidually, aiul in His ~v+•n Right, (!'l~inriffj ~ Jemand~sr:t~ ~, vs. ChristcEpl:.er .I. R'itt, >~iD & F:s-r, Nose 3i `I'hraat Facial Plastic surgery Group, PC, a%kia, Far, Nose assail Throat Summery Group, PC:., (F3efi'r~~t7~rtrllj {Tjernar~dndo;. ~C;)~~li?.TIFIC'A'1'F PRFR~: 3LSI'I'3~ 'I" ~~`FR.'4'TCE f?F A fi~ITEIPt3F A PIR~~iUAN'1<' •I'fJ RL~F X009.22 vase Na.: 0`3-20Sb Asa 17r~ereq?iisitc, to ;~ee•vice of'a sul7p4etia for drxttrr-ents and things pursuar-t t4 l;ule ~O4)9.22. t~r-dr' H. t;c3s~6k:rtxi:, ?~sci., attorr:ey fc~r Dc;funda.s7t, cstti#iesthat: ([ } a rxotict tzf i:ntert tt7 serve the subpoena with :~ copy 4f the subpoena attaLhed tl~.eret4 was mailed 4r deiivers;d tv eaoE3 party at: least twenty days prior t:~ the date an whic~- the subpoena is s~~ug)at W be scrveL, i2} a capy of rise r-t~tt.i; oi' intt;nt, inc:tt.-dir-t~ the proposed subpoena, i$ attached to this certificate, (3} nc: (317)~ctiCln to the ct-bpventi liaS been r~.eirred, and (•~} ti.t sutrpoert-~ whicF- ~ ill b~ serv4.d is icierrti4al tci' the subpoena which is attached t4 ths; t]4tice Uf intent *.o serve the' subpoena-. `: s- Dated: •~ 1 - s, ~~; AtsdYC~v N. i'aiil{szod, Fs'~. (~~ir :~(~.: i7;3~3~3} >^(7t-lkror~ Ellis ~~t3~t{i lti'larket St. t~;arnp t ii l 1, P.~1, i 7011 ~l'l~cs-se.: ~'%t f} =)ftE3-"Ut3f~ F~a7;.: {71 i} tit3R..~jt}5~ _~ttt:rr'yrd?y` j0~' f)EfG'YIG~!7rrtrS%; C'hristophc:r :€. Witt.lti3D & 'l +ar, Nose ,~ Titr~,-sat Facial Plgstic~ SuYgex~• Ur4up, PC., a-'k%a, FaY Nase Ind Th-•cat Strrgcry ;.iY4~117, ~}~~. Pale 1 C;#'~ ~ ~x,c:cvv COMMONWEALTH OF PENNSYLVAI\`iA COUNTY OF CUMBERLAND David C. Phelps, Administrator of the Estate of Laura A. Phelps, Deceased, and David C. Phelps, Individually, and in His Own Right, Filc No. 09-2056 Plaintiftls), vs. Christopher J. Witt, MD & Ear, Nose & Throat, Facial Plastic Surgery Group, PC, a.k.a. Ear, Nose and Throat Surgery Group, P.C. Defendant(s). SUBPOENA TO PRODUCE DOCUMENTS OR THINGS FOR DISCOVERY PURSUANT TO RULE 4009.22 TO: Custodian of Records, Internists of Central PA 108 Lowther St. Lemoyne, PA 17043 (Dame of Person or Etttiry) Within twenty (20) days after service of this subpoena, you arc ordered by the court to produce the following docutuenu or things: Medical Records; See, "Attachment A." at SECOND IMAGE NATIONAL, 2720 River Road, Ste. 26LL, Des Plaines, IL 60018 (Address) You tray deliver or tnai] legibk copies of the documents or produce things requcstod by this subpoena, together with the certificate of compliance, to the patty tnakiag this request at the address listed above. You have the right to seek in advance the reasonable cost of preparing the copies ar producing the things sought. if you fail to produce the documents or things required by this subpoem within twenty (20) days after iu service, the party serving this subpoena may seek a court order cott~elling you to comply with it. THIS SUBPOENA WAS ISSUED AT THE REQUEST OF THE FOLLOWLVG PERSON: NAB; Andrew H. Foulkrod _ ADDRESS: Foulkrod Ellis 4000 Market St., Camp Hill, PA 17011 __... TELI:PHOI~E: X717) 909-7006 ~~ SUPREME COt;RT ID #_ ~_ ATTORNEY FOR:. Defendant(_s)._,___ .._.,_ Data. (!/~~~,~(~ 'Seal of the Court. BY THE COURT: Prothonotary, Civil Diviston ~rt~ -~~~G~% DePury W.O.# 187853-009 BaCOlld M~apa, Inc. W.O. a 1S7a63.OOfF ATTACHMENT A RECORO$ FOR: Laura A. PhNps D.4.t3.: 7/30/192 3SN: XXX-XX~06~ AKA: CompNb msdkal recoMs from Srst dab of treatme~ m the present, Including but not limited to any records/document that may be stored digitaly and/or eiectronlcally: documents. medical reports, doctors enMe:, nurse's nobs, prognne reports, cardblogy sports, radblogy reports, x-ray report, MRI report, CT report, myebgrem report. let sport, monitor strips physical therapy records, case hkWry, emergency records, diagnosk, prognosk, condltbn, and admit and dkcharge records. All emsik between physkkns and the patkr>t regarding physical complaint, symptoms, and treatrrMnt, including 'secure rrressagss'. To include any end all records from Lk. Patrick Ratnasamy. W.p. # 187853-#I~S1 ldavid C. Phelps, Administrator of the Estate of Laura A. Phelps, Deceased, and David. C. i'helps, individually, and in His Own night, (Plaznt~) (Dcyin~•rru,~irrzte.}, vs. Christapher.i. Witt, NTl) 3r Ear, rose & Throat Facia! Pla`s#ic Surgery Group, PC, a/k/a, Ear, Nose and Thrc>at Surgery txroup, PC., (Defanr~ant~ (.Uemar~dtr:~'u). £`ER.TIIE l[t ~4T'E PR.ERF~ U~_SI"I'E 'Ft7-_ SF.R'YIC'E OF A SUI3POEN ~. P'i.'RSU!~L~"it"i`p ItLtLE 4UiE9.22 Case Na.: 09-~Q56 As a prerequisite tc3 servi:.e esf a s~:hpncr~a far do~;urt3ents and t.Fiings parsttar}t to Rule 4(19.2 s Andrew= H. ~tst~ll~rc~d, F;sq, attarney far I7~eferadart, certii~es than ~ 3 } a noface of ixptc pit to serve the subpaena tivith. a copy of'the subpaer~a attached thereta was mailed ar deliver~;d to each part,}+ $E I~;ast Twenty d8y~ Isr3ttC E.Q ~:}~~; da#e rsn whtctl the Subpoena t3 5au~lt to he servzd, {2} a ~npy ai' the ni>ti~c4 of intcx~t; ar~c,Ais+~ir~~ the pralSaed sEabpGena, as attaehccl tc~ this eertiticate, l3) na al~jccti,7r, tc the :s~:I~pa4r3a ipas l~e-xn received, and `=~) t110 .'iE3~17K9~rt~~. Which ~'3l1 tre Serves! is Identical to the se~bpaena Vvhieh i5 3ttaeh~,d tc! the notlcc of iE~teExt t;~ se.rve the suhpnena. z j r ,s h~f . ~t((~ {f vrt } ::.' . j 4'. r., ~ •. ..: . } ~.. .': . '~ . ~ 4. .~ .:~`~, ~ paled: . , . Andte~u' i•i. F,-~uikr~d, Fsti. (Bar No.: ??:394) Fc~u!krc~d Illi.; 4Etaf~ Market St. Camp £~ill, PA 17E}11. Plane: (" ] '1~ 9(3~-?OOf Fax: (?i?) ~9-ti955 ~3ttarrxeu~Ur• .lie, fendcxrtt%s;?, Christopher .i. 'VVitE, MD ~ Ear, Nose & Throat Facial Plastic Surgery ti.rtrup, PC;, allu'a, Ear Nase and. 7'hraat Surgery Ciraisp, Pl,. •r.., ~:~ COMMONWEALTH OF PENNSYLVAJ~rIA COUNTY OF CUMBERLAND David C. Phelps, Administrator of the Estate of Laura A. Phelps, Deceased, and David C. Phelps, Individually, and in His Own Right, Plaintiff(s), vs. Christopher J. Witt, MD & Ear, Nose & Throat, Facial Plastic Surgery Group, PC, a.k.a. Ear, Nose and Throat Surgery Group, P.C. Defendant(s). File No. 09-2056 SUBPOENA TO PRODUCE DOCCMENTS OR THINGS FOR DISCOVERY PURSUANT TO RULE 4009.22 TO: Custodian of Records, Dr. Robert Sanford, 1845 Center St., Camv Hill, PA 17011 (Tanx of Person or Entity) Within twenty (20) days afar service of this subpoena, you are ordered by the court to produce the following documenu or things: Medical Records; See, "Attachment A." at SECOND IMAGE NATIONAL, 2720 River Road, Ste. 26LL, Des Plaines, [L 60018 {Address) You may deliver or mail legbk copies of the docutncnts or pmducc things requested by this subpoena, together with the certificate of co~liance, to the patty tt~akirtg this request at the address listed above. Yau have the right to seek in advance the reasonable oust of prep:ring the copies or producing the things sought. If you fail to produce the documents or things required by this subpoena within twenty (20) days after its service, the party serving this subpoew tray seek a court order eorttpelling you to cotttply with it. THIS SUBPOENA WAS ISSUED AT THE REQUEST OF THE FOLLOWL~TG PERSON: NA,~; Andrew H. Foulkrod ADDRESS: Foulkrod Ellis 4000 Market St., Camv Hils PA 17011 ~_ TELEPHONE: (717) 909-7006 - - ~---~ SUPREME COURT ID # ATTORNEY FOR:.~~fendant(s). ___ ____ __ Date:_ (~/ova?/~D Seal of the Court BY THE COURT: ~~ .~~~~~ Prothonotary, Civii Division ,-. / /7~~~ ~" Depu / W.O.# 187853-010 Second 6nape, bye. W.O. * 187863-010 ATTACHMENT A RECOItOS FOR: Lauer A. PhNpa D.O.B.: 7130!1!32 SSN: XXX XX~063 AKA: Complsb msdkai roconis f-om flrot dab of t»atrnent to the prosent, including but not limited tb any rocordNdocumenb that may bs storod digltaNy and/or elsctr~onkally: documents, msdkal roports, doctor's entries, none's notes, progro~ reports, cardiology roporb, radiology roports, x-ray roporb, MRI rsporte, CT roports, myslogram reports, iab roports, monitor strips, physkai therapy rocords, case history, emergency recoMs, diagnosis, prognosis. condklon, and admit and discharye rocoMs. Ail smalls bstvwsn physkians and the patient rogarding physkal complaints, symptoms, and troatment, including 'secure messages'. Da~~id C. Phelps, Ad~ninistratnr of the E9tate of Laura A.. Phelps, Deceased, and David C, Phelps, Individually, xncl in liis Chun Right, (it'laintiff} ~Dcmrn~dante), vs. Christopher J. Witt, MD & Ear, Nose & Throat Facial Plastic Surgery, Group, FG, alkla, Ear, l~tose and 't'hroat Surgery Group, PC,, (De'f'endant; (1)e~nandrrdrf1. C:l{~R'I'IF.T~'~,~'~k:-PRI+'RE~iJ1J1SITl~ Tt) SFF~~'IG`E Ulu` ~. ;;U131~4?F~'-~ .~1s a ~?t•~retiAtri&tiL t(? S41 Yrcu c±f a cub~4?entr fir dt?~E1rTtCYit:S aEICI E#lit1~S pEtrsuarlt to R.u~~. 4Qt1~,?z ;'4n+~re4~' tl, ~~c~iilkr~~ct, l;c~., att~~rrt~~' fcil' 1_)tit;,ndaEti:, CertifEes ti3.at: t; i } a rt~:;ie.c. +?t' :merit to set•7,°~ he aabl'>;>c:rz, ~n~itJt a copy t?f tizi: suhpoc;raa alttiched t#tereti~ ~i'1,S n3,~iled ur cdetivc;rru ~xr e~t:;iy ~ttrcy ;i: If:35t iWs;E1L'ti (i3~4`fi ~+rit~r zc the drite nn tv#tich the stEhpoena is s~?ugi-xt to #~~: s4'rvec~, !z) 3 cc?~~' ~?f th;, n~?t.icc of :itt:3~i, i9~C~lft~it3~ t~1C ~3T0~7LlSi;d Sli~3~J<1>~p~H, is :rtlachgd to this cc;rti~icate, i°5} nu uhecticn t~ tiS:; ccth~crena h;3. #?ee.n re~c~eivecf, and ~) fire sttht;o~na u~#ric#~ v~'t€ FfG ser~s~Gd is idintic.al t~ the suhpaet3;~ whic:E~ E~ attauhec~ ttT t#tc. tt.c~tic;r of intent Eo s:?r~'e the :~iEtZt~c?.,na. i `;~ ,, ... . .. :~ qq ,. :'~rtcire}v 1-I. I~ctrtkrud, sq. ~T~;rx I'do.: 7394) 4~30t3'~iari:rt S:. Ca.r;~p }~iil, PA 17U# 1 Fax: x::717} 949-69SS l#ft~1'!3(f~~wlim .~C!JCI1Cfi7T~f1,~~, i:.hristepher .l, Witt, IvID 8z Ear, ;Vase & 'I'hraat Facial Plastic Surgery Csr~?up. PC, a/kia, lF;ar Nose ;~.nd 't'hroat SEar,~ery Grotcp, E'C. Page l rrf i - ~•~:~ COMMONWEALTH OF PENNSYLVAA'IA COUNTY OF CUMBERLAND David C. Phelps, Administrator of the Estate of Laura A. Phelps, Deceased, and David C. Phelps, , Individually, and in His Own Right, File No. 09-2056 PiainNftls}, vs. Christopher J. Witt, MD & Ear, Nose & Throat, Facial Plastic Surgery Group, PC, a.k.a. Ear, Nose and ThroatSurgery Group, P.C. Defendant(s). SUBPOENA TO PRODUCE DOCtiMENTS OR THINGS FOR DISCOVERY PURSUANT TO RULE 4009.ZZ Custodian of Records, Orthopaedic Surgeons of Central Pennsylvania, TO: 550 N, 12th St., Lemoyne, PA 17043 ame of Person or Entity) Within twenty (20} days after service of this subpoena, you an ordered by the court to produce the following documents or things: Medical Records; See, "Attachment A." at SECOND IMAGE NATIONAL, 2720 River Road, Ste. 26LL, Des Plaines, IL 60018 --- (Address) You may deliver or mail kgibk copies of the documents or produce things requested by this subpoena, together with the certificate of compliance, to the parry making this request at the address listed above. You have the right to seek in advance the reasonable cost of preparing the copies or producing the things sought. If you fail to produce the documents or things required by this subpoena within twenty (20) days after its service, the party serving this subpoena may seek a court order compelling you to comply with it. THIS SUBPOENA WAS ISSUED AT THE REQUEST OF THE FOLLOWLVG PERSON: NAME; Andrew H. Foulkrod ADDRESS; Foulkrod Ellis _ __ 4000 Market St., Camp Hi11~PA 1701E _. ~_ TELEPHONE: {717) 909-7006 StJPRBME COI;RT ID #_ _ ATTORNEY FOR: _Pe~etldeuSl~1~--_-.~ ~- Date: 'Seri ofthe Coun BY THE COURT: ,~/ 11~~~~3~~~-~ Prothonotary, Civil ivisron W.O.# 187853-O1 l SaCOnd r (nC. w.O. ~'16T663-0'H ATT~CH~ENT A RECORD8 FOR: Laura A. PhNps D.O.B.: 7130/1632 SSN: l00(•XX-6069 AKA: CompNb medkal records horn first dab of treatment to the present, includirp but not Nmited to arty records/docurrarrts that may be stored dipkally and/or electronically: documents, medkal reports, doctor's entries, nurse's notes, protiress reports, cardiolotiy report, radblogy report, x-ray reportt, MRI reports, CT report, myelopram reports, tab reports, monitor stops, physical therapy records, case hktory, emer+tiency records, diaQnosk, proQnosk, condition, and admit and discharge rocoMs. All smack between physklans and the patierN rogaMing physkal complaint, symptoms, and treatment, Including'securomeesages'. To Include any and aH records from Dr. Robert Mauror, Dr. John S. Rychak, and 98 November Dr., Camp Hlil, PA 17011. David C. Phelps, Administrator of the .Estate of Case Na.: 09_Zi155 Laura A. Phelps, i)eceased, and David {:;..Phelps, Isdividuaily, and in liis Ov~-r~ Kight, t~'iaintifl} (I3c-rnnnd~rnts.), vs. Christopher J'. '4Yitt, Iti~? & Far, Nase & Thrn~xt Facial Plastic Sut^gery Group, PC, a!kla, F.xr, Nase and Throat Surgery Group, PC., ~~e~f ~r~clrrrr;; ~ IJe~nanrla~loj. C'lEl2')f'1F'ICA.TE P1it.:li;It)Et: U)(4Z1'Ii; TO SER'V'IC'`E tl~F A S PC>EENA, k'~CiRSU~7T Tf) R1:'LE dQ(19.2Z .~-s a~ lsr~:retl.zisite to service of a sul3paer~a ~c~r documents and things pursuatxt to Rule ~QQ9. ~. ~'~ricl~tsv i I. F'.~ulkrod, l/s:;., attort).ey f~.7r I_fei~endsnt, certifres #hat: { 1) 3 rtt~tiee cif intent to serve the sut~pc~ezta wvith a cc±p;y~ cif the sul_+poena attached theretn was tnaileti or del ivc;rwd to ea~:h party t:t least twent}f days p7icr to the date cn which the subpoena is sought to he served, (:?) a cc~p of'tl:e notice ~-s#' ir~ter!t, irEC.ludink the l,r~~lzased subpoena, is attached tt~ this certificate, ~3) ncF ut,Iect3iFs: ec~ 1:he sunpc~ena lzas l~v~t;n received, and (~:3 the :;ubpcena is4~i3iG~i will E?c served is ide.~ttical to !:&Et St~hpoena tivhiCh is attached to the nOttee OE' intca~t tc~ serve. -he subpo<na. K'~ s, ~ :} .,: , ''# 4 I:3s:ted: 'i '~i ~ ~ ~~ .. ~ ,, . ,. . •s.: s A~~drerv I~T. I~oul.f~ad, I~<Sq. (I3ar No.: 7?394) lr7iiikr~~d :Cllis ~[lC3q'~f;arket 5t. t/atnp Hill, PA I7QI I Phone: t:?l?) ~3~9-?OOG Fay: f?1?) 9(x±3-6955 .~ttt,rney far 1)~~:ndant("s;, C:h~•istopltrr l~. V1itt, MD & Tar, Nose & Throat Facial Plastic Svr~.ery Group; PC', a/lc/a, Tar Nose atad T'tzrs~at Sur~e~y lirC~up, E'C. l'ag~; ! c?f' 1 ;so, m COMMONWEALTH OF PENNSVLVAhTI.A COUNTY OF CUMBERLAND David C. Phelps, Administrator of the Estate of Laura A. Phelps, Deceased, and David C. Phelps, . Individually, and in His Own Right, , Plaintiffs), . vs. Christopher J. Witt, MD & Ear, Nose & Throat, ' Facial Plastic Surgery Group, i'C, a.k.a. Ear, Nose and Throat Surgery Group, P.C. , Defendant(s). File No. 09-2056 SUBPOENA TO PRODliCE DOCtiMENTS OR THINGS FOR DISCOVERY PURSUANT TO RULE 4009.22 Custodian of Records, Moffitt Heart & Vascular Group, 1'O: 1000 N. Front St., Wormleysburg, PA 17043 (Dame of Person or F,ntity) Within twenty (20) days after service of this subpoena, you arc ordered by the court to produce the following documenu or things: Medical Records; Sce, "Attachment A." at SECOND IMAGE NATIONAL, 2720 River Road, Ste. 26LL, Des Plaines, lL 60018 (Address) You may deliver or mail legible copies of the documents or produce things requested by this subpoena, together with the certificate of compliance, to the patty makigg this request at the address lisped above. You have the right to seek in adva~e the trasonabie cost of preparing the copies or producing the things sought. If you fail to product the documents or things required by this subpoena within twenty (20) days after its service, the patty serving this subpoena tray sak a court order compelling you to comply with it. TT3LS SUBPOENA WAS ISSUED AT THE REQUEST OF 'THE FOLLOWL~IG PERSON: NEE: Andrew H. Foulkmd _ ADDRESS: Foulkrod Ellis - 4000 Market St., Camp Hill, PA 17011 TELEPHONE: (717j 909-7006 SUPREME CUi; RT ID #_ _ ATTORNEY FOR: peen ntls~.. _. _ _~- Date:_ 'Seal of the Court BY~Tr~HE COURT: ~/ ~~---:ao~~ Prothonotary, Civil Division ~7 W.O.# 187853-012 Second Mrwge, inc. W.O. i 11i7067-01~ ATTACHMENT A RECORDS FOR: Laura A. Phelps D.O.B.: 7/70H872 SSN: XXX XX~80li7 AKA: Complete medical ncoMs from first date of trea6rtnnt b the present, including but not Ilmlbed to any recoMs/documsnb that may be stored digRally andlor electronically: documents, msdkal reports, doctors entries, nurse's nobs. progress reports. cardblogy report, radiology reports, x{ay report. MRI reports, CT report, myebgram reports, lab sports, monkor strips, physics) tMrapy rocords, case hfstiory, smeegency records. diagnosis. prognosis, condition, and admit and discharge records. AU smelt betwwn physkians anti the patient regarding physical complaints, symptoms, and treabnent, including 'secure messages'. O'i.~. if ll4j•l~J~l~ David C. Phelps, Ad~nimistratar (xftlte Et:tate of Lsura r~. Phelps, Dec:t'ased, and David C. Phelps, Individaaliy, and in l:iis Uwn Right, (P~t;rrdti,~} (f?emarul~nd~), V3. t;lxrist(~pher J. 'Vitt, MD & Ear, Nrsse .~i 'I'ltrtsat ]facia! P'lastie Surgery (;,reap, PC.', al!(/~E,1/ar, Nnse at~d Throat Surgery tYroap, PC., tT.1(;f~nclt~rrt) (I.7err~~rnc~(ud€?j. -- -----...._._.....-- l C:>i±:l~`T11~ IC'.~ ~:lE !'1~.~:R.~~Qi1TSl:'I'E 'I'£) SERVICE OF A SCTRPC)~iA I'L!It4[JANT T® RU~;F. 4(1g9.2M Ci&5G NCl.: 09°L05b As a preree~uisiea to servi€:e 4fa sunp(xetxa for dvGUnxents and things pursuant t:ty Rule 4Ur79.22. Andre~~ l-l. T'€xE~ikr€=d, Esp., ~ttt~.>rtxe~,' €xffl€;f~.n(iant, €;ertifes #hat: 1 1 ~ ea n~>tice of inteaxt to s(:rve Eh(; subpoena u~ii.h a E~apy of the subpaena uttache~f th~tcx vas mailed ar (ieliv~;:ed to G'iEi:tl party at (eaet tv:+enty days pxiax to the date on wFEich the subpoena is sought t(z be (2 i a i:(~py (xf tl;e ttoti€:c (,t' intent, in:,luding t:he proposed subpoena, is attached to this certificate, (3~ rxo €xhjecti(~n to the s(tl~ixctens3 has bs?ert receiv(.~i, arEd (~} ~ixw suExpa€;F3rx :~IxicEx ~+ill be sexticd is i€lrntic;3f to the subpte3xa arixich is attached to the naCice of i[llelxt to Set ~e the Subl».~(;rx~E. l ; '~ n . f ~i3.tCi~: ~ ~ ~ v __.._...... s ti An~ire~s~ I~: l~«Exlltri3d; Exi. (Bar Pdo,: 7'?3°3~j l'c-~utlSxOtl F,liis C.artnp Hill. P.'# t 7Etl l Phryne: (71 ?} 349-7110ti .4rdCYney,fnr ,~a~lfrrac~G~nt(s,1, (:`hrstt~pher .T, Fitt, i~iU ~~: Ear, Ntise ~ Thmat i~;3Gia.1 Plastic Surgery f~ro~Ep, PC;, a/lJa, F,ar ~~{>se aratl Tt~rrat Surger3' ~irCftlr+, PC'. ~2~.~'e ' Cr~~ l .x_ecae~ COMMONWEALTH OF PENNSYLVAATIA COUNTY OF CUMBERLAND David C. Phelps, Administrator of the Estate of Laura A. Phelps, Deceased, and David C. Phelps, , individually, and in His Own Right, File No. 09-2056 Plaintiff(s), vs. Christopher J. Witt, MD & Ear, Nose & Throat, Facial Plastic Surgery Group, PC, a.k.a. Ear, Nose and Throat Surgery Group, P.C. Defendant(s). SUBPOENA TO PRODUCE DOCGMENTS OR TH.D`'GS FOR DISCOVERY PURSUANT TO RULE 4009.22 Custodian of Records, Kunkle Surgical Group, TO: 890 Poplar Church Rd., Ste. 210, Medical Arts Bldg., Camp Hill, PA 17011 (1~'atne of Person or Entity) Within twenty (20} days after service of this subpoena, you are ordered by the court to produce the following documents or Things: Medical Records; See, "Attachment A." at SECOND IMAGE NATIONAL, 2720 Rivcr Road, Ste. 26LL, Des Plaines, IL 60018 (Address) You may deliver or mail legible copies of the documents or produce things requested by this subpoena, together with the certificate of compliance, to the patty making this request at the address listed above. You have the right to seek in advance the reasomble cost of preparing the copies or producing the things sought. If you fail to produce the documents or things required by this subpoena within twenty (20} days after its service, tht party serving this subpoena may seek a court order compelling you to comply with it. THLS SUBPOENA WAS ISSUED AT THE REQUEST Ofi THE FOLLOWLVG PERSON: NAb(E: Andrew H, Foulkrtxi ADDRESS: Foulkrod Ellis 4000 Market St., Camp Bill, PA 17011 TELEPHONE: (717} 909-7006 ^ - --~- SUPREME COURT ID #_ __ ATTORNEY FOR: _pgfgn~a t(~) -_--___-~ ,- Date:_ ~0%r3~/G 'Sea] of the Court BY THE COUR~T~:~,/ ~~ ~ ~~ ~~ II ~~K(.~ ~_ ~L~~ ww Prothonotary, Civil Division ~~~~/ `~~~~-~J ~ pcpu~ry~J' 7 W-O.# 187853-013 s.eo~d hnag., Inc. w.o. ~ ~sraaa-ova ATTACHMENT A RECORDS FOR: Laura A. Phelps D.O.B.: 7/~Wt>fs2 a8N: XXX-XX~Q068 AKA: CompNb medkal »cords from flret dab of beabrwnt to the prosent, Including but not limited to any reconis/documer~ts that may be atorod digiblly and/or electronically: documents, rrwdkai reports, doctor's entries, puree's nobs, progress reporb, cardbiogy reports, radiology reports, x-rey reports, MW reports, CT roporb, myebgram report, iab reports, monitor strips, Physical therepy records, case history, emergency reconis, diagnosis, prognosis, condition, and admk and discharge records. AN emaib bstvwsn physkians and the paWnt regarding physical complaints, symptoms, and tr+e:brlsnt, inciuding'seCUro messages'. To include any and all records from Or. Salvatore Parascandoia. David t;. Phelps, Administrator of the Estate of Laura A. Phelps, Dtx:eased, and David C. iPhelp:~, Individually, and in His ~vn Righ#, {.~'lairaii~ {.Uemanslantf), vs. Christopher J. Witt, >~ID cec Ear, Nose & Throat Facial Plastic. Surgery Group, PC, alkfa, Ear, lYose and Throat Surgery CYroup, I'i:., ~..3efendcrnt; (L3emaridailo). ~f:lA li7"!F`I~~,~~.'I'~~ PRk~Ei~U1SI'I`E T(7r SER~'IE;.E t31F' ~ SL1Bl'aEN~. P~TlItii7AN'I' 1'U R~:JLE 4i>~€19.22 ,~,~....._. Case 14c~.: Cf9-2~?S5 !~.s A preretl)~isitz t~~ ser~~ice. i?f'a. subpcs~r~a far c€~~c;E~.merts aE~d things pursE~aE3t to liuEe 4~3U9.22. ,~.E3~ir.:w H. ~'z?~:llCrud, Esq., atturrfe}~ fur [3k;fr ntlar3t, ~~ertifies that: (11 a xt:>ticc. ;~i' in~tcrti: tt~ ser~•e the suiy~pcse?~a ~~ir#: a ~;~~p~; ~-# tl~e subpoerEa aitac,}a~ecl thereto x+as mailed or deli~r~~rc;~ tc~ eat~h Hart: at. leEESt t~vc33t~~ d3ti•s 1?ris>r t;~ the; +:lat~ tin ~>hirh tl3e 3ukspc)~;r3a is ss?EEght t4 be S~E'Vk;Ci. {?3 a cr>p~~ ~~f the rsat~.e ~~# intea)t, incl`:E:iEB1l; the prvposad sEZbp~as?E~.a, is attacf3ed to dais cerfi#icat4, {~j nu u~ject::c~n tc~ the subpcaeE3a laiES 1•S~i:d) ra~w;tieci, aE3~~l {E) l~F£ t'i3}'~€3;3Y,3]8 bV1FfCh Will ~S~ ieEtied Y& 1ClE;ritiC:al tit the subpoena i~%]'E1Cl) ES :~ttathe+i Eo t1tC 31QtiC~ A~ i.3'ftC:[3t ~C' S~~rVi: fh;'. fiil~'3~i)~I3i3.. t . ~Z ..: ::. .. . ,,,: r }u ~'} ~~{ ArEdr~;r~w 1-l.:i;~~;u:lktod, Esq. {Tar Na.: 77394} r'c~~Elkxuci Flli:; 4i10(] 1titaE~ket St. Gacr3p Hill, ]?A 17(~l 1 Thane: (? 17~ g{l9-?Qi)~fi Fax.: {?'1i) ~0~-b95S Atlorr:ey foa~ D~l~errzicrrxr{s), Christopher J. ~r'itE, MD & Far,1`~lase .& ThrC>~t Facial Plastic lurkerv {:rroe~p> ~'C, alk,~a, Ear t1T.~se aE)d Thr©~~.t SEU~ery Csroa f), PC:. F'alt: "1 of ] :.x.~< COMMONWEALTH OF PENNSYLVAI~rIA COUNTY OF CUMBERLAND David C. Phelps, Administrator of the Estate of Laura A. Phelps, Deceased, and David C. Phelps, . Individually, and in His Own Right, File No. 09-2056 Plaintit~f{s), . vs. Christopher J. Witt, MD & Ear, Nose & Throat, Facial Plastic Surgery Group, PC, a.k.a. Ear, Nose and Throat Surgery Group, P.C. , Defendant(s). SUBPOENA TO PRODUCE DOCGMENTS OR THII`'GS FOR DISCOVERY PURSUANT TO RULE 4009.22 Custodian of Records, Kantor & Tkatch Associates, TO: 205 S. Front St., 6th Flr., Brady Medical. Arts Bldg, Iiarrisburg PA 17101 (Dame of Person or Entity) Within twenty (201 days after service of this subpoena, you are ordered by the court to produce the following documents or things: Medical Records; See, "Attachment A." at SECOND IMAGE NATIONAL, 2720 River Road, Ste. 26LL, Des Plaines,lL 60018 (Address) You may deliver or mail legtbk copies of the documents or produce things requested by this subpoena, together with the certihcau of compliance, to the party making this roquest at the address listed above. You have the right to seek in advance the t~easomble cost of preparing the copies or producing the things sought. If you fail to produce the documents or things required by this subpoena within twenty (20) days after its service, the party setvittg this subpoetu may seek a court order compelling you co comply with it. THLS SUBPOENA WAS ISSUED AT THE REQUEST OF THE FOLLOWLVG PERSON: T;A,-r(E; Andrew H. Foulkrod ADDRESS: Foulkrod Ellis ~_ 4000 Market St., Camp Hill. PA 1701 I __~_ TELEPHONE: (717) 909-7006 ~- __ _ ~~ SUPREME COL"RT ID ~ ATTORNEY FOR: ~elcn~ ..... _ Dau:^ ~~~v~~1G 'Seal of the Court BY TH£ COURT: /~ Prothonotary, Civil Division ----~~~~~ /' /'- D~putY J W.O.# 187853-014 Second Mega, Inc. W.O. # 1>l7ai3-014 RECORDS FOR: Laura A. PhNps D.O.B.: 7/30N932 SSN: XXX XX-ls063 AKA: Complete medical records from first dste of trsstrnent to the prosent, including but not Itmibd to any recoMsldocuments that may bs storod digltaly andlor slectronkaly: docunwnb, medkal roporb, doctors entries, nuroe's notes, progress ropor~, wrdblogy roports, radbbgy roports, x-ray roports, MR1 reports, CT report, myelogrom reports, tab roports, monitor strips, physical therapy rsco~ds, wee history, emergency rocords, diagnosis, prognosis, condttlon, and admit and discharye rocoNs. AN smalls between physicians and the patient regardl~ physlwl compiai~s, symptoms, and U+eatmsnt, including 'secoro messages'. To Include any and all records from Dr. Lba S. Tkatch, and Or. Robert J. Kantor. V4'.Cl. # 18')853-d1~ David C. Fhelps, Administrator otthe F;state of Laurst. A, I'hclps, Deceased, and I?c~vid C. Phelps, Iadir-id[tally, aritl in His Qwn Right, YS, Christopher J. Witt, MT1 & Isar, Nose .'~. `Throat Facial Elastic fiur8er~-Group, FC, a/iJa, Ear, Nose ago<i 't'hroat Surgery Group, PC., IL,Qferdant3 ;~ert~icruic~dtz,i, Cl~l~'IIF'1CA'1'E ERFREQTZSTTE'TO SER`'~CE fJF A SU7IPOENA P1.TRSL r~~T 'f U RULE 4iHl9.22 Case i~a.: Q9~2955 ~~s a prrrec;uisite. tc, service raf~a subp~iena zar dactzments and thirsgs Isarsuan# to R.ufe 40~9,?2. :~rtdre;w H, FE>ctliCrtxE,~~s~., attaa-ney for I)efc,ndactt, rectifies thst: (13 a 1Zt?tE+,4' 7~ ti~t~rst t~,~ se;~'e the strhpat~na v~ith a rl~py of the subpoena attached titeneta was n~aiied or c~ti'.°>;:~ tc euah I,art~~ :xt i~:ttst iiw•cnty days priax tc~ the date on wd~ich ihs subpoena is si~ttgrtt to be serYed., ~~} a. <~crpy t,f #Eze native oi' intent, in4iudirttY tt:r praposed su'bpaena, is attached. to this certificate, (~i} too o17R~ctian to tine sui3paecta has been receiv~;d, at~d {~} ihu sctl~p,x;ra which will be Served is identical #i~ t11C subpoena wilicit is attached. to the rtt~tice rtii' intt'.:f%t~.~ s~;rY., th<. subpoena. ..,, ,: Andredv I•I. Fc~tcikrod; ~sq, (Rar N+~.:". ", 3<14) i~aulkzcfci Ellis 4tit3U JVlarket'~t, Camp I1ill, FA 17{'tl l Pharte: ~7 i Tt 909-7C~~5 lax: (7 i 7) 9~9-6955 .4tlOYF:t'V,/C~r' .i~ju'tYLlt2r7f f ~ j, Christopher J. Witt, MTV & E'ar, l~'nsr: & Throat Facial i'lastic Snr~zary trraatap, PC; gll~:/s, far ;~fose and Throat Surgery ~iroup, PC'. COMMONWEALTH OF PENNSYLVAA'IA COUNTY OF C'IJMBERLAND David C. Phelps, Administrator of the Estate of Laura A. Phelps, Deceased, and David C. Phclps, . Individually, and in His Own Right, File No._ 09-2056 __ Plaintiff(s), , vs. Christopher J. Witt, MD & Ear, Nose & 'Throat, ' Facial Plastic Surgery Group, PC, a.k.a. , Ear, Nose and Throat Surgery Group, P.C. , Defendant(s)- SUBPOENA TO PRODUCE DOCtiMENTS OR THINGS FOR DISCOVERY PURSUANT TO RULE 4009.22 Custodian of Records, Quantum Imaging & Therapeutic Associates, [nc., TO: 405 St. Johns Rd., Camp Hill, PA 17011 _ (Name of Fersoa or Entity) Within twenty (20) days aftcr service of this subpoena, you are ordered by the court to produce the following documents or things: Medical Records; See, "Attachment A." at SECOND IMAGE NATTONAL, 2720 River Road, Ste. 26LL, Des Plaines, IL 60018 (Address) You may deliver or mail legible copies of the documents or produce things requested by this subpoena, together with the certificate of compliance, to the patty snaking this request at the address listed above. You have the right to seek in advance the resaonable cost of preparing the copies or producing the things nought. If you fail to produce the documents or things required by this subpoena within twenty (20) days after its service, the party serving this subpoena may seek a court order cotttpelling you to comply with it. THIS SUBPOENA WAS ISSUED AT THE REQUEST OF THE FOLLOWNG PERSON: NAME; Andrew H. Foulkrod _ ADDRESS: Foulkrod Ellis ,4000 Market St., Cam~i11 PA 1701 l _ T£LEPHOI~£: 5717) 909-7006 SUPREME CUL'RT ID # __ ATTORNEY FOR: Defen_il~gE[S1_-__~ _~ Date: ~1~~~//G 'Seal of the Coun BY THE COURT: 1s/ ~ ; J. ~f~i' Prothonotary, , Civli~l.Division ~GJ ~_~~/ Deputy W.O.# 187853-015 Sacond !maps, Mc. W.O. # 1a7e6s-016 ATTACHMENT A RECORD8 FOR: Laura A. Phaip~ D.O.B.: 713pH832 SSN: XXX-XX~063 AKA: CompNb medkai recoMa from first dab of treatrne~ to the present, including but not Iimibd to any records/documenb that may be stored diglbNy andlor slectronkally: documents, medka! reports, doctors entries, nurse's nobs, proproes reports, caMbbgy reports, radloiogy reports, x~ray report, MRI roporb, CT sports, myebgrom reports, Isb reports, monitor strips, physkai therapy records, case history. emerysncy records, diagnosis, prognosis, condition, and admit and dhtchargs records. Ali emaps between physkians and the patient r+sgardiny physical complaint, symptoms, and treatment, Including 'secure messages'. R%.T}. # 187853-i1 l~ David C'. Phelps, Administrator of the Estate of Laura A. Phelps, Deceased, and David C`. Phelps, Tndividoslly, and in His awn Right, ('f'c'uinti~) /.I~emrxndnntEj, vs. CbEristopher .T. Witt, h•~ & Eslr, Nose & ThEiroat Facial Plastic SEErgery ter+wp, Pc, a/k/a, Ear, Nose and 'fhroat Surgery tYroup, PC;., (L~efenduatt) (De~rtczrt~ai~ro i. E.';t~l~."i1F1Cr3TI? PRF~~: [ll.~;.l~X'I;'T'+C~ SER~ji~'E t)iF ~.'L°~]~cJEN~i i'ITFt.StT~;N'I"I'EU RULE ~t)139.22 Case Na.: ~9~~4~6 .~.s cd prere~Eaisite tai service, ut'~ :~E1i:}l>~~;~Y:1 E4lC ~ic~;;umer~ts and things pursxxxtnt to Rule ~IOC~`~ ~Z. ~'~ncireow l-f. E'd1EAll:rcxi, (':stl., Ei~ltE'tFk;4' fur T-~ef'e;~EdxErEt, ~~i'C3~tC'Stl-~at: (. t) I3 .E1i_rEl::e uf'rterit to sdrrvc tl?~ subEzc+~niE ti~•ith a cud}~ of'the Sul~l:+aena atYa.ched tlieri<tri was 3xEa.ile:cl rtr clc:l;vexecl td~ esi.r.h 13~~v ~u least 1~~e1Yi}~ lava ~ricr to tl3e claEe uE2 ti~f~EaCh C~i~ Silb~3L'~ria ES StZ1Et;}Yt EO %!£ ~tHr~~.4], {7.;z a c~~ry r~~ ltr~ Est;1i::° {>fi il;~£rli, inc:EtE+~ing the prui?~3sed Suhpo4xEa, is aEtat;hed to this G£rtii'Ei;E~ti, {~s l fiir ,>1~~":.ti~.~E1 E„ ~:11e suFipr;erl~t his €~ee1a 1~t,c.t;iE~c:FI, ~.nd (~i ;he SE~.bpuer~a ~~~1~6ci~ ~vitl t?e ser'~ed i<< iciexEl:ic;~1 fit) tFEC SU~ilJ0e1Y~. whtF;h 1S iBtEr'ICh~:(l t4 the EttFt.EGe of ixltc;E•,.~t to seY~e :he sFEb~u~:na. :::,; ' 'f?~E s z.,.... 1 S f ~.y~- ~ f ,~.cldrew T~. Fc~lal~crud, Esp. (Tixr N~.: 773t1~. j Foulkrucl This 4i?E1(i iVlarket 5t. CaEr;ip Flili, l'A l 7Lt 11 I'i~.unW: {7i''} 9ti4-700h Fay:: { % a 7~ X309-655 ~411~rn_[~~ for Z7efe>•~r~iarri{s,~, ~: iYr:i,~lclpher ;t. `~v'itt,14'ID ~ Ear, Nose ,~ Throat Facial Plastic S~xFrge:ry G:oup, P'C, a!k/a, F~~r Nose and Throat Surgery ~Jrd)lE~t, .1~~... 1'a;3L' ! ~~~ 1 a5:glar _a COMMONWEALTH OF PENNSYLVANIA, COUNTY OF CUMBERL David C. Phelps Admin. of Estate of Laura A. r Phelps, Dec'd and David C. Phelps, Individually w :k< CD and in his own right, PlaintiMs), CIVIL ACTION VS. ChristopherJ. Witt, MD & Ear, Nose & 'Throat Facial Plastic Surgery Group, PC a& -a Ear, Nose and 'Iliroat Surgery Group, P.C., Defendant(s). Case No.: 09-2056 i aoq(5 e rv ^w_CJ Andrew H. Foulkrod, Esquire, attorney for Defendant(s), intends to serve a subpoena identical to the one that is attached to this notice. You have twenty (20) days from the date listed below in which to file of record and serve upon the undersigned an objection. to the subpoena. If no objection is made, the subpoena may be served. To: Joseph M. Melillo, Esquire Jessie K. Walsh, Esquire Navitsky, Olson & Wisneski, LLP 2040 Linglestown Rd., Ste. 303, Harrisburg, PA 1.711.0 Attorney for Plaintiff(s) Date: 12/1012010 /S/ Andrew H. Foulkrod Andrew II. Foulkrod, Esquire (SBN: 77394) Foulkrod Ellis 4000 Market St. Camp Hill, PA 17011 Phone: (717) 909-7006 Fax: (717) 909-6955 Attorney for Defendant(s) Christopher J. Witt, MD & Ear, Nose & Throat Facial Plastic Surgery Group, PC a./k/a Ear, Nose and Throat Surgery Group, P.C. W.O. t 197858-001 Page 1 of 2 pa_ntl I HEREBY CERTIFY that on this 10th day of December____, 2010, a copy of the foregoing Notice of Intent to Serve a Subpoena to Produce Documents and Things for Discovery Pursuant to Rule 4009.21 was mailed to: Joseph M. Melillo, Esquire Jessie K. Walsh, Esquire Navitsky, Olson & Wisneski, LLP 2040 Linglestown, Rd., Ste. 303 Harrisburg, PA 17110 Attorney for Plaintiff (s) _ /$/ Andrew H. Foulkrod Andrew H. Foulkrod (SBN: 77394) Foulkrod Ellis 4000 Market St. Camp Hill, PA 17011 Phone: (717) 909-7006 Fax: (717) 909-6955 Attorney for Defendant(s), Christopher J. Witt, MD & Ear, Nose & Throat Facial Plastic Surgery Group, PC a/k/a Ear, Nose and Throat Surgery Group, P.C. Order# 197858-001 09-2056 Page 2 of 2 COMMONWEALTH OF PENNSYLVANIA, COUNTY OF CUMBERLAND David C. Phelps Admin. of Estate of Laura A. Phelps, Decd and David C. Phelps, individually and in his own right, VS. Plaintiff(s), Christopher J. Witt, MD & Ear, Nose & Throat Facial Plastic Surgery Group, PC a/k/a Ear, Nose and Throat Surgery Group, P.C., Defendant(s). CIVIL ACTION Case No.: 09-2056 'jq TO: Custodian of Records, Holy Spirit Hospital/Medical Records Department, 503 N. 21 st St., Camp Hill, PA 17011 Re: Laura A. Phelps DOB: 7/30/1932 SSN: XXX-XX-6053 Within twenty (20) days after service of this subpoena, you are ordered by the court to produce the following documents or things: Medical Records; See. "Attachment A." at Second Image National, 1805 Monument Ave, Ste 208, Richmond, VA 23220, Fax: (800) 6114555 You may deliver or mail legible copies of the documents or produce things requested by this subpoena, together with the certificate of compliance, to the party making this request at the address listed above. You have the right to seek in advance the reasonable cost of preparing the copies or producing the things sought. If you fail to produce the documents or things required by this subpoena within twenty (20) days after its service, the party serving this subpoena may seek a court order compelling you to comply with it. W.O. # 19785"1 ".0 a. Page 1 of 3 THIS Subpoena WAS ISSUED AT THE REQUEST OF THE FOLLOWING PERSON: Andrew H. Fouikrod, Esquire (SBN: 77394) Foulkrod Ellis 4000 Market St, Camp Hill, PA 17011 Phone: (717) 909-7006 Fax: (7I7) 909-6955 SUPREME COURT ID NO.: 77394 Attorney for Defendant(s), Christopher J. Witt, MD & Ear, Nose & Throat Facial Plastic Surgery Group, PC a/k/a Ear, Nose and Throat Surgery Group, P.C. ^C O Date: Seal of the Court BY U T: 1 tary/Clerk, Civil Division Deputy W.O. # 19985"1 Page 2 of 3 p.-*-d- AFFIDAVIT OF SERVICE State of County of Case Number 08-2056 Plaintiff: David C. Phelps Admin. of Estate of Laura A. Phelps, Decd and David C. Phelps, Individually and in his own right vs. Defendant: Christopher I Witt, MD 3 Ear, Nose & Throat Facial Plastic Surgery Group, PC &We Ear, Nose, and Throat Surgery Group, P.C. For: Second Image, Inc, Court Received by Pennsylvania Professional Process Svc. to be served on Jssie Walsh, Navits ,Olson b Wlsneskl, LLP, 2040 Linglestown Rd., Ste 503, Hanrisbu ass , PA 17110. being duly swum, depose and say that on the 1Q day of 2 service by delivering a true copy of the 15?.?•m., s Opposing Council Packet which includes Letter, Records Request Fonn, Notice of Intent to Serve a Subpoena, Subpoena Copies in accordance with state statutes in the manner marked below: INDIVIDUAL SERVICE: Served the within-named person. () SUBSTITUTE SERVICE: By servinv-___ as () NON-SERVICE: For the reason detailed in the Comments Below () OTHER COMMENTS: I certify that I have no interest in the above action, am of legal age and have proper authority in the jurisdiction in which this service was made. S bed nd Sworn to bef a on the Z day PROCESS SERVER # Of a affiant who is Appointed in accordance - p y known to me with State Statutes Pennsylvania Professional Process Svc. 48 w. High St. COWONWEALTH OF PENN-SYLVAN 'O. Box 1148 SOW If "" rllsle, PA 17013 M. M"16 ? **my Public ( 00) 863 2341 carow em, Cumbs(IOW Ccumy ur Job Serial Number. 2010000526 1A cc rgwnaon July 1 2012 MembQo4?i??x _ Prooas savers Toolbar V5.51 .s J In the matter of: David C. Phelps Admin. of Estate of Laura A. Phelps, Decd and David C. Phelps, Individually (Plaintiff) (Demandante) VS. Christopher J. Witt, MD & Ear, Nose & Throat Facial Plastic Surgery Group, PC a/k/a (Defendant) (Demandado) Return of Service Case No.: 09-2056 On the '3C r, L day of Yr. C/', served with the foregoing subpoena by (describe the method of service): Personally delivering a copy to: dCertified mail to: Person served (name) : Address where served: E2?Ustodian of Records ?oly Spirit Hospital/Medical 503 N. 21 st St. Camp Hill, PA 17011 I verify that the statements in this return of service are true and correct. I understand that false statements herein are made subject to the penalties of 18 Pa. C.S.A. § 4904 relating to unsworn falsification to authorities. a Da Signa re Name of Witness Name of Person Served Commonwealth of Pennsylvania County of Cumberland W.O. # 197858-001 COURT OF COMMON PLEAS 10-200 (Rev. 7/99) (Reverse) - P-dL- COMMONWEALTH OF PENNSYLVANIA, COUNTY OF CUMBERLAND David C. Phelps Admin. Of Estate of Laura A. Phelps, Dec'd and David C. Phelps, individually and in his own right, Plaintiff(s), VS. Christopher J. Witt, MD & Ear, Nose & Throat Facial Plastic Surgery Group, PC aWa Ear, Nose and Throat Surgery Group, P.C., Defendant(s). CIVIL ACTION Can No.: 09-2056 I 9$k< TO: Custodian of Records, Holy Spirit Hospital/Radiology Department, 503 N. 21 st St., Camp Hill, PA 17011 Re: Laura A. Phelps DOB: 7/30/1932 SSN: XXX-XX-6053 Within twenty (20) days after service of this subpoena, you are ordered by the court to produce the following documents or things: X-Rays / MRIs / CT scans; See. "Attachment A." at Second Image National, 1805 Monument Ave, Ste 208, Richmond, VA 23220, Fax: (800) 611-4555 You may deliver or mail legible copies of the documents or produce things requested by this subpoena, together with the certificate of compliance, to the party making this request at the address listed above. You have the right to seek in advance the reasonable cost of preparing the copies or producing the things sought. If you fail to produce the documents or things required by this subpoena within twenty (20) days after its service, the party serving this subpoena may seek a court order compelling you to comply with it. W.O. # 197859-002 P-Saa Page 1 of 3 THISSubpoena WAS ISSUED AT THE REQUEST OF THE FOLLOWING PERSON: Andrew H. FouUaod, Esquire (SBN: 77394) Foullrod Ellis 4000 Market St, Camp Hill, PA 17011 Phone: (717) 909-7006 Fax: (717) 909-6955 SUPREME COURT ID NO.: 77394 Atlomeyfor Defendant(s), Christopher J. Witt, MD & Ear, Nose & Throat Facial Plastic Surgery Group, PC a/k/a Ear, Nose and Throat Surgery Group, P.C. Date :-? Seal of the Court BY THE COURT: Prothonotary/Cler Civil Division Deputy W.O. # 197858-002 p PQ ea Page 2 of 3 AFFIDAVIT OF SERVICE State of County of Case Number. 09-211I6? Plaintiff. 2 David C. Phelps Admin. of Estate of Laura A. Phelps, Decd and David C. Phelps, Individually and in his own right vs. Defendant: Christopher J. Witt, MD & Ear, Nose a Throat Facial Plastic Surgery Group, PC aWa Ear, Nose, and Throat Surgery Group, P.C. For. Second Image, Inc. Court Received by Pennsylvania Professional Process Svc. to be served on Joseph M. Melillo, Navl , Olson 8 Wisneskl, LLP, 2040 Linglestown Rd., Ste 303 Harrisburg, PA 17110. I, being duty swoon, depose and say that on the day of kffEnnky 20 service by delivering a true copy of the Opposing Council Packet which InIcudes Letter, Records Request Form, Notice of Intent to Serve a Subpoena, Subpoena Copies in accordance with state statutes in the manner marked below: CORPORATE SERVICE: By serving,- as () SUBSTITUTE SERVICE: By Serving______ as () OTHER SERVICE as described below in the Comments by serving as () NON-SERVICE for the reason in the Comments Below COMMENTS: I certify that I have no interest in the above action, am of legal age and have proper authority in the jurisdiction in which this service was made. Swum to before on the ?'y PROCESS SERVER # f?, Y e ant who is Appointed in accordance yy'to with State Statutes v Pennsylvania Professional Process Svc. 48 W. High St. P.O. Box 1148 COMMONWEALTH OF PENNSYLVANIA Carlisle, PA 17013 NftrW seal (SM) 863-2341 M. Whole Guylon, NaWy Public Our Job Serial Number. 2010000527 ' camels sm. cumberwd GO= My Cormrua?lon 1,2012 MorntIer Inc. - Fl. S?n?s 70o16oot US.Si AMU- Commonwealth of Pennsylvania W.O. # 197858-002 III County of Cumberland In the matter of: David C. Phelps Admin. of Estate of Laura A. Phelps, Decd and David C. Phelps, Individually (Plaint{f (Demandante) VS. Christopher J. Witt, MD & Ear, Nose & Throat Facial Plastic Surgery Group, PC a/k/a (Defendant) (Demandado) Return of Service Case No.: 09-2056 I /11 On the 30A day of Yr. served with the foregoing subpoena by (describe the method of service): Personally delivering a copy to: Ei/certified mail to: Person served (name) : Address where served: F Custodian of Records EL?goly Spirit HospitaURadiology 503 N. 21st St. COURT OF COMMON PLEAS Camp Hill, PA 17011 I verify that the statements in this return of service are true and correct. I understand that false statements herein are made subject to the penalties of 18 Pa. C.S.A. § 4904 relating to unsworn falsification to authorities. Date Name of Witness Si ature ?l. Name of Person Served 10.200 (Rev. 7/99) (Reverse) vWl_ia CRj-r PRAECIPE FOR LISTING CASE FOR TRIAL (Must be typewritten and submitted in triplicate) TO THE PROTHONOTARY OF CUMBERLAND COUNTY Please list the following case: ?X for JURY trial at the next term of civil court. ? for trial without a jury. ---------------------------------------------- CAPTION OF CASE (entire caption must be stated in full) David C. Phelps, Administrator of the Estate of Laura A. Phelps, deceased, & David C. Phelps, Indivi (Plaintiff) VS. Christopher J. Witt, M.D., and Ear, Nose and Throat Facial Plas vs. (Defendant) tic Surgery Group, P.C. aka Ear, Nose and Throat Surgery Group, P.C. = ? -4 FC= -am O 1"-'Z C3 v --4 S CIO a ? r rt'^. ? ----------------- N C7N - D (check one) X? Civil Action - Law ? Appeal from arbitration 11 (other) The trial list will be called on April 5, 2011 and Trials commence on May 2, 2011 Pretrials will be held on April 20, 2011 (Briefs are due 5 days before pretrials No. 09-2045 Civil Indicate the attorney who will try case for the party who files this praecipe: Joseph M. Melillo, Esquire, Navitsky, Olson & Wisneski LLP Term Indicate trial counsel for other parties if known: Andrew H. Foulkrod, Esquire, Foulkrod Ellis This case is ready for trial. February 7, 2011 Date: Signed: QJIel ' Print Nam J 9eph M. Melillo Attorney for: Plaintiffs gaS.oo Yd atk? ev-t'?- ?"1P AI izw-a54%4P FILED-OFFICF C THE F ROTE ONOTAR, C'Jl ?E?d?SY}lVA'??AiTy FOULKROD ELLIS Professional Corporation 4000 Market Street Camp Hill, Pennsylvania 17011 Telephone: (717) 909-7006 Fax: (717) 909-6955 Attorneys for Defendants: Christopher J. Witt, M.D., and Ear, Nose and Throat Surgery Group, P.C. DAVID C. PHELPS, as Administrator Of the ESTATE OF LAURA A. PHELPS, Deceased, and DAVID C. PHELPS, Individually and in his own right, Plaintiffs V. CHRISTOPHER J. WITT, M.D. AND EAR, NOSE AND THROAT FACIAL PLASTIC SURGERY GROUP, P.C., a/k/a EAR, NOSE AND THROAT SURGERY GROUP, P.C., IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO.09-2045 Defendants : JURY TRIAL DEMANDED OBJECTION TO CIVIL TRIAL LISTING AND NOW come Defendants, Christopher J. Witt, M.D. and Ear, Nose and Throat Surgery Group, P.C. ("Defendants"), by and through their counsel, Foulkrod Ellis, PC, and file this Objection to Civil Trial Listing as follows: 1. This medical malpractice action was initiated by Writ of Summons filed on April 1, 2009. 2. The Complaint was filed on or about May 8, 2009. 3. At the request of Plaintiff's counsel, a case management conference was held before the Honorable Judge J. Wesley Oler, Jr. on February 24, 2010. 4. Following the conference, Judge Oler issued an Order setting deadlines for discovery, production of expert reports and attaching counsel for trial during the second trial term in 2011, (thereafter scheduled to begin May 2, 2011). A copy of the Order is attached hereto as Exhibit "A". 5. By agreement of counsel, the deadlines for discovery and production of expert reports were extended. 6. Without objection by the Defendants, Plaintiff produced his expert reports in the fields of otolaryngology and internal medicine on or about October 6, 2010. 7. Without objection by the Plaintiff, Defendants produced their expert reports in the fields of otolaryngology and internal medicine on or about January 21, 2011. 8. Without objection, Plaintiff produced a rebuttal report this week from his otolaryngology expert. 9. On February 10, 2011, Plaintiff filed a Praecipe for Listing Case for Trial, requesting that the prothonotary list the case for the next term of civil court (May 2, 2011). 10. After filing the listing, certifying that the case is ready for trial, Plaintiff s counsel indicated to Defense counsel that he would be seeking an opinion and producing a new expert report from a new specialist in infectious disease, a completely new area of expert subspecialty. 11. Introducing an opinion from an infectious disease specialist after the case has been certified as ready for trial and within sixty (60) days of trial would be unfair and prejudicial to the Defendants. 2 12. Defendants would have insufficient time prior to trial to obtain an infectious disease expert's review and written opinion. 13. Pursuant to C.C.R.P. 213-2, at the call of the trial list, counsel for all parties shall indicate that discovery has been completed, that all pretrial actions have been taken, and that the case is ready for trial in all respects. 14. According to the 2011 Court Calendar, the call of the list is scheduled for April 5, 2011. 15. Considering the complexity of scheduling medical witnesses and medical experts for trial testimony, Defendants are placing this Objection to the trial listing on the record at this time and asserting that this case is not ready for trial in all respects, and cannot be ready by April 5, 2011. 16. Based on the representations of Plaintiff's counsel, that he will be producing a new expert report in the previously unaddressed subspecialty of infectious disease, discovery has not been completed, and Defendants will need additional time to respond with an infectious disease expert. 17. Trial counsel for Defendants, Andrew Foulkrod, is attached for trial in other jurisdictions during the following subsequent Cumberland County 2011 trial terms: July 18 - Carbon County (Becker v. Lee, Docket No. 08-1175) and September 19 - Franklin County (Walker v. Stewart, Docket No. 2009-2037). 18. Based on the foregoing, Defendants respectfully request that this case be stricken from the trial list, and that it not be relisted for trial before the December 2011 trial term without agreement of counsel. 19. Counsel for Defendants sought concurrence from Plaintiff's counsel, but did not receive a definitive response in concurrence or opposition to the objection. WHEREFORE, Defendants, Christopher J. Witt, M.D. and Ear, Nose and Throat Surgery Group, P.C., respectfully request that this Honorable Court enter the attached Order thereby striking this case from the trial list. Respectfully submitted, FOULKROD ELLIS Date: B Y• Andrew H. Foulkrod, Esquir Attorney I.D. #77394 Darlene K. King, Esquire Attorney I.D. #75898 4000 Market Street Camp Hill, PA 17011 (717) 909-7006 4 DAVID C. PHELPS, as Administrator of the ESTATE OF LAURA A. PHELPS,: deceased, and DAVID C. PHELPS, Individually and in his own right, Plaintiff v CHRISTOPHER J. WITT, M.D.,: and EAR, NOSE AND THROAT FACIAL PLASTIC SURGERY GROUP, P.C., aka EAR, NOSE: AND THROAT SURGERY GROUP, P.C, IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 09-2045 CIVIL TERM Defendants JURY TRIAL DEMANDED IN RE: CASE MANAGEMENT CONFERENCE ORDER OF COURT /? l J N C) C, C o -n Z? rr T', M n1- CiJ rv ? co Ul. AND NOW, this 24th day of February, 2010, upon consideration of Plaintiffs' Motion Requesting the Scheduling of a Case Management Conference, and following a conference in chambers, in which Plaintiffs were represented by Joseph M. Melillo, Esquire, and Defendants were represented by Andrew H. Foulkrod, Esquire, and pursuant to the agreement of counsel, it is ordered and directed as follows: 1. Discovery in this case shall be complete as of August 15, 2010; 2. Plaintiffs' expert report(s) shall be furnished to Defendants' counsel on or before August 15, 2010; 3. Defendants' expert report(s) shall be furnished to Plaintiffs' counsel on or before October 1, 2010; 4. Plaintiffs' rebuttal expert report(s) shall be furnished to Defendants' counsel on or before November 1, 2010; 5. Counsel are attached for the second civil trial term in 2011 in Cumberland County for trial in this case; 6. Counsel have indicated that trial in this case will take place no later than the second trial term of 2011, but may be tried earlier depending upon their respective schedules; and 7. Counsel are directed to list this case for trial at the appropriate time. Joseph M. Melillo, Esquire 2040 Linglestown Road Suite 303 Harrisburg, PA 17110 For Plaintiffs ndrew H. Foulkrod, Esquire 2010 Market Street Camp Hill, PA 17011 For Defendants Court Administrator :mae Copy es 424 io By the Court, V Wesley er, J J. CERTIFICATE OF SERVICE I HEREBY CERTIFY that true and correct copies of the foregoing were served upon all counsel of record this 3IL4 day of , 2011, by depositing said copy in the United States Mail at Camp Hill, Pennsylvania, postage prepaid, first class delivery, and addressed as follows: Duane S. Barrick, Esquire Navitsky, Olson & Wisneski, LLP 2040 Linglestown Road, Suite 303 Harrisburg, PA 17110 (Counsel for Plaintiffi FOULKROD ELLIS Professional Corporation 14) Crystal L. Nemetz, Secretary DAVID C. PHELPS, as Administrator of the ESTATE of LAURA A. PHELPS, Deceased, and DAVID C. PHELPS, Individually and in his own right, Plaintiff V. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA : CIVIL ACTION - LAW CHRISTOPHER J. WITT, M.D., and EAR, NOSE and THROAT FACIAL PLASTIC SURGERY GROUP, P.C., a/k/a EAR, NOSE and THROAT SURGERY GROUP, P.C., Defendants NO. 09-2045 CIVIL TERM sue? ? ?°'' .a IN RE: DEFENDANTS' OBJECTION TO CIVIL TRIAL LISTING ORDER OF COURT AND NOW, this 7`h day of March, 2011, upon consideration of Defendants' Objection to Civil Trial Listing, a Rule is hereby issued upon Plaintiff to show cause why the relief requested should not be granted. RULE RETURNABLE within 7 days of service. BY THE COURT, V/11, S. Barrick, Esq. 2040 Linglestown Road Suite 303 Harrisburg, PA 17110 Attorney for Plaintiff J. esley Ol Jr., Andrew H. Foulkrod, Esq. Darlene K. King, Esq. 4000 Market Street Camp Hill, PA 17011 Attorneys for Defendants ted C°Ppeg M of I I otb rc IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA DAVID C. PHELPS, as Administrator of the the ESTATE OF LAURA A. PHELPS, deceased, and DAVID C. PHELPS, Individually NO. 09-2045 Civil Term and in his own right, Plaintiff CIVIL ACTION MEDICAL PROFESSIONAL V. LIABILITY ACTION CHRISTOPHER J. WITT, M.D., and EAR, NOSE AND THROAT FACIAL PLASTIC SURGERY GROUP, P.C., a/k/a EAR, NOSE AND THROAT SURGERY GROUP, P.C., JURY TRIAL DEMANDED Defendants PLAINTIFF'S REPLY TO OBJECTION TO CIVIL TRIAL LISTING 1. Admitted. 2. Admitted. 3 Admitted z . . 4. Admitted. r x ?o -o o- 5. Admitted. =c 6. Admitted. 7. Admitted. 8. Admitted. 9. Admitted. 10. Admitted in part and denied in part. It is admitted that Plaintiff's counsel indicated to Mr. Foulkrod by email on February 23, 2011 that Plaintiff may submit a separate report from an infectious disease specialist. It was specified that the witness would not be offered on issues of the standard of care but would explain/corroborate the medical 2 background of Mrs. Phelps' illness. Some points that the defense expert raised did, in Plaintiff's view, require this sort of additional rebuttal. In particular, the question of what caused Mrs. Phelps' final illness would best addressed by an infectious disease doctor. The report and accompanying Curriculum Vitae of Dr. Kaul was faxed to Mr. Foulkrod on March 3, 2011. A copy of Dr. Niparko's original and rebuttal reports and Dr. Kaul's report are attached hereto as Exhibits A, B, and C. Dr. Kaul does not actually raise any new issues, but simply corroborates and further details the medical background of Mrs. Phelps' infection, explaining that what caused her death is the same organism which had been cultured from her ear weeks earlier. The defense ENT expert report suggested that she suffered some new illness shortly before she died, which the Defendant had not previously had an opportunity to confront and therefore had not neglected. 11. Denied as stated. The opinions which Dr. Kaul corroborates were expressed by Dr. Niparko in his original and rebuttal reports, and introduced no new theories into the case. Plaintiff does not believe that sixty days is necessarily too little time to rebut the type of report issued by Dr. Kaul. However, Plaintiff accepts defense counsel's assertion of prejudice as made in good faith and will not dispute it. 12. See response to No. 11. 13. Admitted that the rule speaks for itself. 14. Admitted. 15. Admitted that Defendant has filed this objection. 3 16. Plaintiff produced the report on March 3, 2011, the same day that the Defendant's Motion is dated. See response to No. 11. 17. Plaintiff accepts Mr. Foulkrod's representation but does not know whether one or both of those cases may be resolved or rescheduled. IS. Plaintiff objects to moving this case all the way to the December Trial list when there are intervening terms in which this case may still be listed. 19. Plaintiff indicated that if the Defendant truly could not obtain an infectious disease report in time for trial, then he would not object to a continuance. However, Plaintiff objects to moving the case all the way to the December term at court. WHEREFORE, Plaintiff concurs in the Continuance Motion but objects to the further requirement that the case not be relisted before December. Respectfully submitted, NAVITSKY, OLSON & WISNESKI LLP Jo p . Melillo, Esquire I. . No. 526211 2040 Linglestown Road, Suite 303 Harrisburg, PA 17110 717/541-9205 Counsel for Plaintiff Date: 4 CERTIFICATE OF SERVICE I, Jessie K. Walsh, an employee of the law firm of Navitsky, Olson & Wisneski LLP, do hereby certify that I am serving a true and correct copy of a Plaintiffs Response to Defendants' Objection Civil Trial Listing upon all counsel of record via postage prepaid first class United States mail addressed as follows: Andrew Foulkrod, Esquire Gerryanne Cauler, Esquire Foulkrod Ellis 4000 Market Street Camp Hill, PA 17011 Counsel for Defendants Date: 3 -- (U l 1 Jessie K. Walsh IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA DAVID C. PHELPS, as Administrator of the the ESTATE OF LAURA A. PHELPS, deceased, and DAVID C. PHELPS, Individually and in his own right, Plaintiff V. CHRISTOPHER J. WITT, M.D., and EAR, NOSE AND THROAT FACIAL PLASTIC SURGERY GROUP, P.C., a/k/a EAR, NOSE AND THROAT SURGERY GROUP, P.C., Defendants NO. 09-2045 Civil Term CIVIL ACTION c MEDICAL PROFESSIQ-:A , z LIABILITY ACTION r r=- cn r r :xr r fi- o .- ca sb. x t o --C C >c JURY TRIAL DEMAND ° u, < co , PRAECIPE TO ATTACH EXHIBITS to PLAINTIFF'S REPLY TO OBJECTION TO CIVIL TRIAL LISTING Please attach Exhibits A, B and C to Plaintiffs Reply to Objection to Civil Trial Listing which were inadvertently omitted from the original filing. Respectfully submitted, NAVITSKY, OLSON & WISNESKI LLP s' (L?? - , Jose h M. Melillo, Esquire I.D. No. 26211 2040 Linglestown Road, Suite 303 Harrisburg, PA 17110 717/541-9205 Counsel for Plaintiff Date: 41&.-?clk" CERTIFICATE OF SERVICE I, Jessie K. Walsh, an employee of the law firm of Navitsky, Olson & Wisneski LLP, do hereby certify that I am serving a true and correct copy of a Praecipe to Attach Exhibits upon all counsel of record via postage prepaid first class United States mail addressed as follows: Andrew Foulkrod, Esquire Gerryanne Cauler, Esquire Foulkrod Ellis 4000 Market Street ('amp Hill, PA 17011 Counsel for Defendants Date:." Jessie K. Walsh ??? ?1. b' ?x DEPM&TMENT OF OTOLWNGOLOGY! HEAD AND NECK MGM MAVAdkew joh- "wbs 06vdd-C-w 601 r..awAG6vm 4*FIb . e ww*.I%jb ww~ no.sss-awf x October 5, 2010 Duane S. Banick, Ally Navitsky, Olson & Wiameski LLP 2040 Lingleston Road Suite 303 Harrisburg, PA 17110 Re* Phelps, Laura (doh: 7/30/32) ONHOPKM nes?tiK, Dear ft. Bm*J4 I have reviewed the transcripts of the dgtosihoa taken by A& Mel--lo of0mstopher WK MD on June 7, 2010, made available W me by phdatiM3 counseL This deposition covers concerns related to 1& Phaw d stains, wheaer the treatment rendered was effeatuve, and 1onWtudind assem=ft of ltd. Pl~ I0e eondshon. Dr. Witt fails, evert on Jae 7, 2010, to rmcognim how l& Phdpe status and the lack of effective toonaggnmo of b" j=potsi bow i &m ion led to a ?g brain infection and to bet dealt. Dr_ Wkt seems oblivious to the basic circmmstanm of an inadequately steed and treated condition-ow dW often leads to a dire outcomo. He also did not recognize, even in hWWght, the oppmWnkias that existed to avert such art Meome. Thus my report of April 14, 2009 stands, tmmodified. I also found Dr. Whys C- - etenzatlon of the documentabm moci2tBd with I,qg, Phelps` case to be highly confusing. The ptactice dmcadmd reflects a lack of compliaDm with minimal standards for documenting clmical manageuient in the pane record. Please let me know if I can provide further information Sincerely, ` t n , Newotology do SkA Base Surgery , Division of Audiology ns Hospital Professor of Otolaryngology-H ead & Neck Surgery The Jobus Hopkins University ?, ?, 0 ( I ? 9 E Department of Otolaryngology- Head and Neck Surgery Mailing Address: Johns Hopkins Outpatient Center 601 N. Caroline Street, 6th Floor Baltimore, MD 21287-0910 410-955-0035 Fax February 24, 2011 Duane Barrick, Esquire Navitsky, Olson & Wisneski LLP 2040 Linglestown Road, Suite 303 Harrisburg, PA 17110 RE: Laura Phelps Dear Mr. Barrick, S JOHNS HOPKINS M E D I C I N E 1. The incidence of CNS complications of otitis media was 40-fold higher before the advent of effective antibiotics. The incidence today is markedly lower because appropriately prescribed antibiotics halt the spread of the infection. However, if for some reason antibiotics are ineffective, or stopped, the risk increases substantially. 2. There are several concerns regarding the method of record-keeping that fully do not withstand defense experts' opinions. There is a widely recognized risk created by failing to document a patient's clinical course in a timely manner. Dr. Witt's record keeping, which consisted of handwritten key words (none of which indicate that she felt better and seem to say "continue" with respect to antibiotics) and his detailed typed note, dictated hours later after seeing other patients, suggest .a substantial risk of failing to document the true circumstances of Mrs. Phelps' condition. Absent a photographic memory, it seems that Dr. Witt may have missed some critical details in his later dictation. In every likelihood Mrs. Phelps could not have been improved at the time of her last doctor's visit given her underlying disease process, and the fact that the Biaxin did not have time to work. The essence of Dr. Witt's defense is that at the time of the last visit, Mrs. Phelps was feeling better, so that the sudden development of mastoiditis (extension of the infection into the bone) was a rare and unforeseeable event. The next day, though, her speech was slurred and she called Dr. Witt, attributing this to the Biaxin. He okayed her going off the medication. Just a couple days later she called complaining of pus coming out of her ear. Dr. Witt ordered ear drops. His expert says this was a new and unrelated problem. Slurred speech is not a recognized complication of taking Biaxin, but a fairly common symptom of infection involving the brain-a insidious process that was now likely established and progressing to form an abscess. 4. It appears that after the last visit is when Mrs. Phelps called with slurred speech, and then later puss coming out of her ear, Defendant Witt did not see her. Even if it is presumed she was feeling better at the last visit, thereafter, she got much worse and called Dr. Witt -twice, with serious symptoms of slurred speech and puss from the ear. It appears that Defendants' experts' opinions are premised on the notion that while Dr. Witt failed to document that Mrs. Phelps was feeling better on her last visit to see him, he later dictated this information and that Mrs. Phelps must not have been infected with the bug that killed her until after she left his office. These notions make little sense. Mrs. Phelps had seen him several times in a few week period leading up to this last visit, and she had called him twice with new symptoms of slurred speech and puss draining from her ear. He diagnosed her over the phone and treated her over the phone, and the defense expert appears to completely ignore these facts. 6. The likelihood that Ms. Phelps died of a persistent, indolent infection is reinforced by the microbiology studies that were performed. Ear drainage cultures from 4/6/07 and from 5/15/07 both showed clear evidence of the same organism, Group A Streptococcus. 7. Defendants' experts posit that the brain abscess occurred as a consequence of a final recurrent ear infection. Defendants' experts should be reminded of the basic teaching, typically in the 2nd year of medical school, that brain abscesses form slowly, over weeks (Robbins & Cotran, Pathologic Basis of Disease, Chapter: The Central Nervous System). The brain is naturally resistant to abscess formation given its robust blood supply and its usual isolation from sources of infection by virtue of a tough dural lining and the blood-brain barrier. For this reason, a brain abscess takes weeks to develop as it requires a period of days or weeks. (Harker L and Shelton C: Complications of temporal bone infections (Chapter 134) in Cummings Otolaryngology-Head & Neck Surgery, 1998, p. 3017). 8. Defendents' experts maintain that Mrs. Phelps diabetes did not constitute an immunological defect known to facilitate infection. This assertion is not sustainable. Virtually all levels of infection are more likely in diabetics. In particular, fatal infections are 3 to 5 times more likely in diabetics with cardiovascular risk factors and diseases (eg, hypertension and hyperlipidemia as experienced by Mrs. Phelps) (Bertoni A, Sayday S, Brancati F, Diabetes and the Risk of Infection-Related Mortality in the US, Diabetes Care June 2001 vol. 24 no. 6 1044-1049.) In particular, conditions such as diabetes mellitus are associated with high mortality (Brain abscess: clinical analysis of 53 cases, PT Kao, HK Tseng, CP Liu, SC Su... - J Microbiology, 2003 ). This is particular true for streptococcal microbes. Invasive pneumococcal Patients with diabetes mellitus are at particular risk for invasive pneumoeoccal disease manifesting lethal abcesses (Brain abscess: clinical experience and analysis of prognostic factors, F Xiao, MY Tseng, LJ Teng, HM Tseng - Surgical neurology, 2005; Pyogenic brain abscess caused by Streptococcus pneumoniae. case report and review E Grigoriadis et al, Clinical Infectious Diseases, 1997 - JSTOR). Sincerely, jGeoe ip*Profe T. Nor & Interim Director ent olou, Head & NeckSurgery The Johns Hopkins University, School of Medicine N L x ?' University of Michigan Hospitals and Health Centers Department of Internal Medicine Division of Infectious Diseases 3119 Taubman Center 1500 E. Medical Center Dr., SPC 5378 Ann Arbor, Michigan 48109-5378 (734) 936-5205 office (734) 936-2737 fax http://www.med.umich.edu/intmed/infectious/ March 2, 2011 Duane Barrick, Esq. Navitsky, Olson, & Wisneski LLP 2040 Linglestown Road Suite 303 Harrisburg, PA 17110 Re: Laura Phelps Dear Mr. Barrick, At your request I reviewed the following materials: 1) Records from Internists of Central Pennsylvania 2) Records from Dr. Christopher Witt (ENT) 3) Records from CVS pharmacy 4) Records from Fox Dental Ltd 5) Records from Holy Spirit Hospital (5/15/07 - 5/16/07) 6) :,ertificate of Death 7) Deposition transcript of Defendant Dr. Christopher Witt (ENT) 8) Deposition transcript of Dr. Patrick Ratnasamy (Internal Medicine physician) 9) Reports of Dr. John Niparko 10) Report of Dr. Fred Fedok 11) Report of Dr. David Isaacs 12) Report of Dr. Noel Ballentine I will briefly review the facts of the case. Laura Phelps was a 74 year old woman with a past medical history most significant for rheumatoid arthritis and diabetes mellitus. The rheumatoid arthritis was treated with chronic prednisone and hydroxychloroquine (plaquenil) ar.d the patient occasionally required increases in her dosage to control flares of her symptoms. She was not currently on any medications for diabetes mellitus, although she took duloxetine to treat peripheral neuropathy symptoms that may have been caused by diabetes. Ms. Phelps was seen by her primary care physician on March 30, 2007 for upper respiratory tract symptoms (e.g., sinus drainage, cough, ear popping) that had persisted since about March 17, 2007. Fluid was noted behind the right eardrum, but no bulging or redness was noted and the patient was given a diagnosis of rhinosinusitis and treated with a 5 day course of the antibiotic azithromycin. She returned on April 5, 2007 with ear pain, drainage, nausea, vomiting, congestion and facial tenderness. Cheesy yellow discharge was noted from her right ear, and examination revealed an inflamed right ear canal with possible perforation of the tympanic membrane. The ear drainage was cultured and the patient was diagnosed with otitis externa and otitis media and treated with ciprodex drops for the otitis externa and ciprofloxacin pills (planned 7 day course) for the otitis media. A referral was made to an ear nose and throat (ENT) physician. Four days later (April 9, 2007) the patient was seen by both her primary care physician and Dr. Witt (the ENT physician). Dr. Witt felt she had resolving otitis externa and serous otitis media (fluid that may not be infected in the middle ear) and advised continuation of the ciprodex drops. Her PCP physician noted that the culture result of the ear drainage demonstrated beta hemolytic streptococcus (culture reported heavy growth of group A streptococcus), and changed the ciprofloxacin back to azithromycin planning a 10 day course. Three days later (April 12, 2007) the patient returned to see Dr. Witt, complaining of continuing ear pain and worsening in her hearing. A retracted tympanic membrane with a purulent effusion was noted, and the patient was diagnosed with otitis media and a 10 day course of avelox (a different antibiotic) was added. Dr. Witt's note states that the patient was diagnosed with strep tonsillitis (strep throat); it does not appear that he was aware that the culture with group A streptococci was ear drainage and not a throat swab. The records do not indicate that a throat swab was obtained or that a diagnosis of streptococcal pharyngitis (strep throat) had been made. Five days later (April 17, 2007) she returned to see Dr. Witt, Avelox had been stopped and restarted with worsening and then improvement in her ear pain. The diagnosis remained resolving otitis media with peforation and the recommended treatment was to continue Avelox and perform a myringotomy (incision in the tympanic membrane) in the near future. Six days later (April 23, 2007) she returned to her primary care physician's office and the ear canals appeared normal with a small perforation noted in the right tympanic membrane (eardrum). Congested sinuses were noted and this was treated with a long acting injection of corticosteroids (DepoMedrol 40 mg). Dr. Witt performed a myringotomy the following day, scant drainage was noted at the time of the procedure. At this point the patient continued to complain of decreased hearing. She was no longer on antibiotics at this point. The patient called Dr. Witt's office on (May 7, 2007) complaining of ongoing pain in the right ear, headache and fever and was prescribed a 5 day course of clarithromycin (Biaxin XL) and was seen the next day in clinic. The clinic note from that day described no ongoing fever and the patient was to continue the antibiotic; clot on the tympanic membrane was noted. The following day she again called Dr. Witt's office complaining 2 of slurred speech and sore throat that she felt might be a side effect of antibiotics and was given permission to stop the antibiotic. A replacement antibiotic was not prescribed. She called two days later (May 11, 2007) describing thick pus draining from her right ear. She was given ciprodex drops (but no systemic antibiotics) and told to avoid water or mineral oil in her ear. On May 15, 2007 she had an episode of dizziness and fell in the bathroom and was not able to get up. She was brought by ambulance to Holy Spirit Hospital and cultures of blood and ear drainage were obtained. She had slimy pus draining from her right ear, and her tympanic membrane was noted to be erythematous and performated. Her white blood cell count was very high (31,500 cells/cubic mm) with 33% band forms indicating very significant infection. A computed tomogram (CT scan) of the head was consistent with otitis and mastoiditis and was suggestive of a temporal lobe abscess. Despite administration of antibiotics, she developed sepsis and was transferred to the intensive care unit early the following morning. Both her blood cultures and drainage from her ear grew group A streptococcus (the same bacteria noted in cultures performed on ear drainage on April 5); and her sepsis rapidly worsened and she died one day after admission to the hospital due to sepsis resulting from a group A streptococcal infection that began in her middle ear but spread to surrounding structures (mastoid, temporal lobe of her brain). Ms. Phelps had an ear infection since at least April 5, 2007. She had fever and purulent drainage from her ear canal. The causative organism was group A streptococcus (based on culture of ear drainage performed that day); no other organism was cultured and this same organism grew from her blood and her ear drainage the day before her death. Group A streptococcus is a highly virulent organism, a very uncommon colonizer of the ear canal, and heavy growth was noted. These factors indicate that this organism was the cause of her otitis and not a colonizing organism. She had a waxing and waning course treated by antibiotics with variable activity against group A streptococcus. The waxing and waning course resulted from partial treatment (indicated by improved symptoms with some of her courses of antibiotics) followed by relapse (related to progressive development of deeper seated infection that could not be eradicated with 5 to 10 day courses of oral antibiotics). This clinical course of waxing and waning but insidiously progressive infection (as demonstrated by the development of fever on May 8 and thick pus from her ear on May 11) is common in patients with impaired immune systems. The combination of the patient's chronic prednisone use, diabetes mellitus, and rheumatoid arthritis all suppressed her immune system and contributed to her difficulty eradicating this infection and placed her at increased risk for the suppurative complication of her otitis that eventually resulted in her death. The patient developed sepsis related to infection with group A streptococcus from an ear source. The presence of group A streptococcus on smear confirmed by culture of her ear drainage and the finding of the same organism gaining entry into her blood (also 3 confirmed by blood cultures) indicates that she developed an invasive, suppurative complication of a group A strep otitic infection. The CT finding of temporal lobe changes is suspicious for further extension of group A streptococci into her brain with the development of early brain abscess or infectious inflammation. The above sequence of events represents a well described complication of middle ear infection, although these complications have become uncommon due to the routine use of antibiotics to treat ear infections. The fact that the exact same organism was identified on the April 5th culture and just before her death on the May 15th culture indicates that she died from insidious but progressive disease from an infection caused by the same organism. Deep infection with this organism is routinely successfully treated with prolonged courses of antibiotics and, if necessary, drainage procedures all of which Ms. Phelps did not receive. My opinions stated above are based on a review of the records provided to me and are stated with a reasonable degree of medical certainty. Sincerely, Daniel R. Kaul, M.D. Assistant Professor Director, Infectious Disease Training Program Director, Transplant Infectious Disease Service University of Michigan Health System 4 COMMONWEALTH OF PENNSYLVANIA, COUNTY OF CUMBERLAND David C. Phelps Admin. of Estate of Laura A. Phelps, Decd and David C. Phelps, Individually and in his own right, Plaintiff(s), VS. Christopher J. Witt, MD & Ear, Nose & Throat Facial Plastic Surgery Group, PC a/k/a Ear, Nose and Throat Surgery Group, P.C., Defendant(s). CIVIL ACTION No.: CV-09-2045 M cn -<> _ U7 J [fit. r27 <? DC--) x =C) -- --{ c: As a prerequisite to service of a subpoena for documents and things pursuant to Rule 4009.22, Andrew H. Foulkrod, Esquire, attorney for the Defendant(s), certifies that: (1) a notice of intent to serve the subpoena with a copy of the subpoena attached thereto was mailed or delivered to each party at least twenty days prior to the date on which the subpoena is sought to be served; (2) a copy of the notice of intent, including the proposed subpoena, is attached to this certificate; (3) no objection to the subpoena has been received, and; (4) the subpoena which will be served is identical to the subpoena which is attached to the notice of intent to serve the subpoena. Date: 03/09/2011 /S/ Andrew H. Foulkrod Andrew H. Foulkrod, Esquire (SBN: 77394) Foulkrod Ellis 4000 Market St. Camp Hill, PA 17011 Phone: (717) 909-7006 Fax: (717) 909-6955 Attorney for Defendant(s) Christopher J. Witt, MD & Ear, Nose & Throat Facial Plastic Surgery Group, PC a/k/a Ear, Nose and Throat Surgery Group, P.C. W.O. # 201932-001 Page 1 of 1 Pa_c0tn COMMONWEALTH OF PENNSYLVANIA, COUNTY OF CUMBERLAND David C. Phelps Admin. of Estate of Laura A. Phelps, Dec'd and David C. Phelps, Individually and in his own right, CTVIL ACTION Plain tiff(s), rs, Christopher J. Witt, MD & Ear, Nose & Throat Facial Plastic Surgery Group, PC aWa Ear, Nose and Throat Surgery Group, P.C., Defendant(s). Case No.- CV-09-2045 ,SiiBPOF ' TO PR011111 nn.'UMENTS OR MOO FOR ]DISCOV E PUM ANT TO HITLE 4009.22 TO: Custodian of Records, Holy Spirit HospitallMedical Records Department, 503 N. 21 st St., Canip Hill, PA 17011 Re: Laura A. Phelps DOB: 07130(1932 SSN: XXX-XX-6053 Withintwenty (20) days after service of this subpoena, you are orderedby the court to produce the following doctnrients or things: Billing Records; Medical Records; See. "AttachmentA." at Second Image National, 1805 MonumentAve, Ste 208, Richmond,VA 23220, Fax: (800) 611-4555 You may deliveror mail legiblecopies of the documents or producethingsrequestedby this subpoena, togetherwith the certificate of compliance,to the party rnakingthis request at the address listed above. You have the right to seek in advance the reasonablecost of preparing the copies or producingthe things sought. If you fail to produce the documentsor things required by this subpoetlawi.thin twenty (20) days after its service, the party servingthis subpoenarnay seek a court order compelling you to complywith it. W.O. # 201932-001 Page 1 of 3 w_ws m, THISSubpoena WAS ISSUED AT THE REQUESTOF THE FOLLOWING PF.RS0IV. Andrew H. Foulkrod, Esquire (SRN: 77394) Foulkrod Ellis 4000 Market St., Camp 14111, PA 17011 Phone? (717) 909-7006 Fax: (717) 909-6955 SUPREME COURT 1D NO.: 77394 Attorney for Defendant(s), Christopher J. Witt, MD & Ear, Nose & Throat Facial Plastic Surgery Group, PC a/k/a Ear, Nose and Throat Surgery Group, P.C. BY THE COURT: Date Seal of-the Co eputy WO.# 201932-001 Vag . 2 of3 Attachment "A" Records for: Laura A. Phelps DOB: 07/30/1932 SSN: XXX-XX-6053 Complete medical records and billing records from the first date of treatment to the present, including but not limited to any records/documents that may be stored digitally and/or electronically: documents, medical reports, doctor's entries, nurse's notes, progress reports, radiology reports, x-ray reports, MRI reports, CT reports, myelogram reports, lab reports, monitor strips, physical therapy records, case history, emergency records, diagnosis, prognosis, condition, admit and discharge records, charges, explanation of benefits, payments, adjustments, write-offs, balances due, and itemized billing charges pertaining to any and all care, treatment, and/or examinations. All emails between physicians and the patient regarding physical complaints, symptoms, and treatment, including 'secure messages'. Docket # CV-09-2045 W.O. # 201932-001 Page 3 of 3 p._ & d.. W.O. # 201932-001 AAL Commonwealth of Pennsylvania County of Cumberland In the matter of: COURT OF COMMON PLEAS David C. Phelps Admin. of Estate of Laura A. Phelps, Dec'd and David C. Phelps, Individually Case No.: CV-09-2045 (Plaintiffi (Demandante) VS. Christopher J. Witt, MD & Ear, Nose & Throat Facial Plastic Surgery Group, PC a/k/a (Defendant) (Demandado) Return of Service On the ? = day of RRti2-c K. , Yr. I ? , I, sp,,,,-.' served with the foregoing subpoena by (describe the method of service): Personally delivering a copy to: Certified mail to: Person served (name) Address where served: F] Camp Hill, PA 17011 I verify that the statements in this return of service are true and correct. I understand that false statements herein are made subject to the penalties of 18 Pa. C.S.A. § 4904 relating to unsworn falsification to authorities. MALZCH 9 , LO I I OL= Date ` Si atur opwiffG? MOR.A-l Name of Witness Name of Person Served 5? Custodian of Records Holy Spirit Hospital/Medical 503 N. 21 st St. 10-200 (Rev. 7/99) (Reverse) pidt m COMMONWEALTH OF PENNSYLVANIA, COUNTY OF CUMBERLAND David C. Phelps Admin. of Estate of Laura A. Phelps, Dec'd and David C. Phelps, Individually and in his own right, Plaintiff(s), CIVIL ACTION VS. Case No.: CV-09-2045 Christopher J. Witt, MD & Ear, Nose & Throat Facial Plastic Surgery Group, PC a/k/a Ear, Nose and Throat Surgery Group, P.C., Defendant(s). Andrew H. Foulkrod, Esquire, attorney for Defendan(s), intends to serve a subpoena identical to the one that is attached to this notice. You have twenty (20) days from the date listed below in which to file of record and serve upon the undersigned an objection to the subpoena. If no objection is made, the subpoena maybe served. To: Joseph M. Melillo, Esquire Jessie K. Walsh, Esquire Navitsky, Olson & Wisneski, LLP 2040 Linglestown Rd., Ste. 303, Harrisburg, PA 17110 Attorney for Plaintiff(s) j"(s) Date: 2/17/2011 /s/ Andrew H. Foulkrod Andrew H. Foulkrod, Esquire (SBN: 77394) Foulkrod Ellis 4000 Market St. Camp Hill, PA 17011 Phone: (717) 909-7006 Fax: (717) 909-6955 Attorney for Defendant(s) Christopher J. Witt, MD & Ear, Nose & Throat Facial Plastic Surgery Group, PC a/k/a Ear, Nose and Throat Surgery Group, P.C. W.O. # 201932-001 pa-mi Page 1 of 1 DAVID C. PHELPS, as Administrator of the ESTATE of LAURA A. PHELPS, Deceased, and DAVID C. PHELPS, Individually and in his own right, Plaintiff V. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CHRISTOPHER J. WITT, M.D., and EAR, NOSE and THROAT FACIAL PLASTIC SURGERY GROUP, P.C., a/k/a EAR, NOSE and THROAT SURGERY GROUP, P.C., Defendants CIVIL ACTION - LAW NO. 09-2045 CIVIL TERM m 3MO z mF -0 r rn = _ =Z:3 ? w IN RE: DEFENDANTS' OBJECTION TO CIVIL TRIAL LISTING ORDER OF COURT AND NOW, this 31s` day of March, 2011, upon consideration of Defendants' Objection to Civil Trial Listing, and of Plaintiff's Reply to Objections to Civil Trial Listing, a conference is scheduled with the Court at the call of the Civil Trial List on April 5, 2011, at 9:30 a.m., in chambers of the undersigned judge. BY THE COURT, ? Duane S. Barrick, Esq. 2040 Linglestown Road Suite 303 Harrisburg, PA 17110 Attorney for Plaintiff Wesley 01e ., J. ,/Andrew H. Foulkrod, Esq. Darlene K. King, Esq. 4000 Market Street Camp Hill, PA 17011 Attorneys for Defendants :rc Coe,% c ,, . DAVID C. PHELPS, ADMINISTRATOR OF THE ESTATE OF LAURA A. PHELPS, DECEASED, AND DAVID C. PHHLPS, INDIVIDUALLY, Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 09-2045 CIVIL, TERM v C) _ rr3 C_ T CHRISTOPHER J. WITT, M.D., rnco =-n AND EAR, NOSE AND THROAT FACIAL: zm ? rnr= PLASTIC SURGERY GROUP, P.C. ? rno AKA EAR, NOSE AND THROAT -v o SURGERY GROUP, P.C., r_z .moo - 0 x-n Defendants o M-n ?.! ? tV X3'77 -4 Q1 IN RE: CASE STRICKEN FROM LIST ORDER OF COURT AND NOW, this 5th day of April, 2011, upon consideration of the call of the civil trial list, and upon consideration of Defendant's objection to civil trial listing and plaintiff's reply to defendant's objections to the civil trial listing, and pursuant to an agreement reached in chambers of the undersigned judge, in which Plaintiffs were represented by Michael Navitsky, Esquire, and Defendants were represented by Andrew H. Foulkrod, Esquire, it is ordered and directed that the above-captioned case is continued from the May trial list. It is further ordered that the case will be placed by counsel on the December list, and counsel are attached for that term. However, should defense counsel's trial conflict for an earlier term clear, the case may be listed for that earlier term. The parties are encouraged by the Court to consider mediation in this case. By the Court, J. W s ey Ole Jr., J. /Michael Navitsky, Esquire 2040 Linglestown Road Suite 303 Harrisburg, PA 17110 For Plaintiffs Andrew H. Foulkrod Esquire 4000 Market Street Camp Hill, PA 17011 For Defendants Court Administrator -in bin :mae COMMONWEALTH OF PENNSYLVANIA, COUNTY OF CUMBERLAI m David C. Phelps Admin. of Estate of Laura A. .ZM r- Phelps, Dec'd and David C. Phelps, Individually and in his own right, .y r7 ;Z:C) Plaintiff(s), CIVIL ACTION `- r vs. Christopher J. Witt, MD & Ear, Nose & Throat Facial Plastic Surgery Group, PC a/k/a Ear, Nose and Throat Surgery Group, P.C., Defendant(s). Case No.: Q9 2056- %.0 Andrew H. Foulkrod, Esquire, attorney for Defendant(s), intends to serve a subpoena identical to the one that is attached to this notice. You have twenty (20) days from the date listed below in which to file of record and serve upon the undersigned an objection to the subpoena. If no objection is made, the subpoena may be served. To: Joseph M. Melillo, Esquire Jessie K. Walsh, Esquire Navitsky, Olson & Wisneski, LLP 2040 Linglestown Rd., Ste. 303, Harrisburg, PA 17110 Attorney for Plaintiff(s) Date: 03/25/2011 /s/ Andrew H. Foulkrod Andrew H. Foulkrod, Esquire (SBN: 77394) Foulkrod Ellis 4000 Market St. Camp Hili, PA 17011 Phone: (717) 909-7006 Fax: (717) 909-6955 Attorney for Defendant(s) Christopher J. Witt, M.D. and ENT Surgery Group i? -s, W.O. # 204545-001 Page 1 of 1 pa_-i COMMONWEALTH OF PENNSYLVANIA, COUNTY OF CUMBERLAND David C. Phelps Admin. of Estate of Laura A. Phelps, Dec'd and David C. Phelps, Individually and in his own right, Plaintiff(s), vs. Christopher J. Witt, MD & Ear, Nose & Throat Facial Plastic Surgery Group, PC a/k/a Ear, Nose and Throat Surgery Group, P.C., Defendant(s). CIVIL ACTION 09- 2oYS No.:-99956 As a prerequisite to service of a subpoena for documents and things pursuant to Rule 4009.22, Andrew H. Foulkrod, Esquire, attorney for the Defendant(s), certifies that: (1) a notice of intent to serve the subpoena with a copy of the subpoena attached thereto was mailed or delivered to each party at least twenty days prior to the date on which the subpoena is sought to be served; (2) a copy of the notice of intent, including the proposed subpoena, is attached to this certificate; (3) no objection to the subpoena has been received, and; (4) the subpoena which will be served is identical to the subpoena which is attached to the notice of intent to serve the subpoena. Date: 04/14/2011 /s/ Andrew H. Foulkrod Andrew H. Foulkrod, Esquire (SBN: 77394) Foulkrod Ellis 4000 Market St. Camp Hill, PA 17011 Phone: (717) 909-7006 Fax: (717) 909-6955 Attorney for Defendant(s) Christopher J. Witt, M.D. and ENT Surgery Group W.O. # 204545-001 pa_cpl. Page 1 of 1 .w t r AI COMMONWEALTH OF PENNSYLVANIA, COUNTY OF CUMBERLAND David C. Phelps Admin. of Estate of Laura A. Phelps, Dec'd and David C. Phelps, Individually and in his own right, Plaintiff(s? vs. Christopher J. Witt, MD & Ear, Nose & Throat Facial Plastic Surgery Group, PC a/k/a Ear, Nose and Throat Surgery Group, P.C., Defendant(s). CIVIL ACTION Of- .7,041s' Case No.: -09-26:56 TO: Custodian of Records, Internists of Central PA, 108 Lowther St., Lemoyne, PA 17043 Re: Laura A. Phelps DOB: 07/30/1932 SSN: XXX-XX-6053 Within twenty (20) days after service of this subpoena, you are ordered by the court to produce the following documents or things: Billing Records; See. "Attachment A." at Second Image National, 1805 Monument Ave, Ste 208, Richmond, VA 23220, Fax: (800) 611-4555 You may deliver or mail legible copies of the documents or produce things requested by this subpoena, together with the certificate of compliance, to the party making this request at the address listed above. You have the right to seek in advance the reasonable cost of preparing the copies or producing the things sought. If you fail to produce the documents or things required by this subpoena within twenty (20) days after its service, the party serving this subpoena may seek a court order compelling you to comply with it. W.O. # 204545-001 ps_.dt-de° Page 1 of 3 " . THIS Subpoena WAS ISSUED AT THE REQUEST OF THE FOLLOWING PERSON. Andrew H. Foulkrod, Esquire (SBN: 77394) Foulkrod Ellis 4000 Market St., Camp Hill, PA 17011 Phone: (717) 909-7006 Fax: (717) 909-6955 SUPREME COURT ID NO.: 77394 Attorney for Defendant(s), Christopher J. Witt, M.D. and ENT Surgery Group Date : A"36, Sea] of he Court BY THE COURT: ?)a-u t. A 1J. Bu- t // Prothonotary/Clerk, Civil Division A A ) (J. -- , - /Deputy W.O. # 204545-001 p._.dt_dm Page 2 of 3 w? Attachment "A" Records for: Laura A. Phelps DOB: 07/30/1932 SSN: XXX-XX-6053 Complete billing records from the first date of treatment to the present, including but not limited to any records/documents that may be stored digitally and/or electronically: charges, explanation of benefits, payments, adjustments, write-offs, balances due, and itemized billing charges pertaining to any and all care, treatment, and/or examinations. All emails between physicians and the patient regarding physical complaints, symptoms, and treatment, including 'secure messages'. W.O. # 204545-001 pa.kd- Page 3 of 3 Commonwealth of Pennsylvania W.O. # 204545-001 County of Cumberland In the matter of: David C. Phelps Admin. of Estate of Laura A. Phelps, Dec'd and David C. Phelps, Individually (Plaintiff) (Demandante) VS. Christopher J. Witt, MD & Ear, Nose & Throat Facial Plastic Surgery Group, PC a/k/a (Defendant) (Demandado) Return of Service 09-209's Case No.: 99-956 On the ? day of Yr. I, vt°r? L51tM1_ , served with the foregoing subpoena by (describe the method of service): Personally delivering a copy to: Certified mail to: Person served (name) : Address where served: 0 r"stodian of Records internists of Central PA 108 Lowther St. Lemoyne, PA 17043 I verify that the statements in this return of service are true and correct. I understand that false statements herein are made subject to the penalties of 18 Pa. C.S.A. § 4904 relating to unsworn falsification to authorities. ate Signature Name of Witness Name of Person Served COURT OF COMMON PLEAS 10-200 (Rev. 7/99) (Reverse) P"d-,o. n• COMMONWEALTH OF PENNSYLVANIA, COUNTY OF CUMBERLAND David C. Phelps Admin. of Estate of Laura A. Phelps, Dec'd and David C. Phelps, Individually and in his own right, Plaintiff(s? vs. Christopher J. Witt, MD & Ear, Nose & Throat Facial Plastic Surgery Group, PC a/k/a Ear, Nose and Throat Surgery Group, P.C., Defendant(s). CIVIL AC OQN,Iq?956 DVS Case No.: -99 TO: Custodian of Records, Holy Spirit HospitgBilling Department, 503 N. 21 st St., Camp Hill, PA 17011 Re: Laura A. Phelps DOB: 07/30/1932 SSN: XXX-XX-6053 Within twenty (20) days after service of this subpoena, you are ordered by the court to produce the following documents or things: Billing Records; See. "Attachment A." at Second Image National, 1805 Monument Ave, Ste 208, Richmond, VA 23220, Fax: (800) 611-4555 You may deliver or mail legible copies of the documents or produce things requested by this subpoena, together with the certificate of compliance, to the party making this request at the address listed above. You have the right to seek in advance the reasonable cost of preparing the copies or producing the things sought. If you fail to produce the documents or things required by this subpoena within twenty (20) days after its service, the party serving this subpoena may seek a-court order compelling you to comply with it. W.O. # 204545-002 Page 1 of 3 M_.k du ? ? 1 r 6" y - '?-o 5-60 THIS Subpoena WAS ISSUED AT THE REQUEST OF THE FOLLOWING PERSON.• Andrew H. Foulkrod, Esquire (SBN: 77394) Foulkrod Ellis 4000 Market St., Camp Hill, PA 17011 Phone: (717) 909-7006 Fax: (717) 909-6955 SUPREME COURT ID NO.: 77394 Attorney for Defendant(s), Christopher J. Witt, M.D. and ENT Surgery Group Date : at-r 30 , 02.0 // Seal of the Co BY THE COURT: x/64- LJ ?)- gu e Prothonotary/Clerk, Civil Division Deputy W.O. # 204545-002 p .dt d- Page 2 of 3 Attachment "A" Records for: Laura A. Phelps DOB: 07/30/1932 SSN: XXX-XX-6053 Complete billing records from the first date of treatment to the present, including but not limited to any records/documents that may be stored digitally and/or electronically: charges, explanation of benefits, payments, adjustments, write-offs, balances due, and itemized billing charges pertaining to any and all care, treatment, and/or examinations. All emails between physicians and the patient regarding physical complaints, symptoms, and treatment, 'including 'secure messages'. W.O. # 204545-002 P.-.& &. Page 3 of 3 talk - Commonwealth of Pennsylvania W.O. # 204545-002 9W County of Cumberland In the matter of. COURT OF COMMON PLEAS David C. Phelps Admin. of Estate of Laura A. Phelps, Decd and David C. Phelps, Individually Case No.: 09-2056 (Plaintiffi (Demandante) vs. Christopher I Witt, MD & Ear, Nose & Throat Facial Plastic Surgery Group, PC a/k/a (Defendant) (Demandado) Return of Service On the ?y><? day of Ar-I , Yr. served with the foregoing subpoena by (describe the method of service): F-I Personally delivering a copy to: Certified mail to: Person served (name) : Address where served: F-I Camp Hill, PA 17011 I verify that the statements in this return of service are tnie and correct. I understand that false statements herein are made subject to the penalties of 18 Pa..C.S.A. § 4904 relating to unsworn falsification to authorities. ? i _ 1 o Name of Witness Name of Person Served EJ/Custodian of Records IZI-401y Spirit HospitaUBilling 503 N. 21st St. 10-200 (Rev. 7199) (Reverse) w.dt.- TNONOTAt? PRAECIPE FOR LISTING CASE FOR TRIAL (Must be typewritten and submitted in triplicate) '-'l -r tBRtrAND C?UNTY -??NP?SYLVANtA TO THE PROTHONOTARY OF CUMBERLAND COUNTY Please list the following case: ?X for JURY trial at the next term of civil court. ? for trial without a jury. --------------------------------------------------------------------------------------------------------------------- CAPTION OF CASE (entire caption must be stated in full) (check one) DAVID C- PISS, as Administrator of t Yie ? Civil Action - Law Estate of LAURA A. PHELPS, deceased, and ? Appeal from arbitration DAVID C. PHEISS, Individually and in his oiln right, ?X Civil Action - Med; cm (other fessional Liability (Plaintiff) vs. The trial list will be called on CHRISTOPHER J. WITT, M.D. and and November 8, 2011 EAR, NIOSF. AND THROAT FACIAL PLASTIC SURGERY GROW, P_C., a/k/a EAR, Trials commence on December 5, 2011 NOSE AND THROAT SURGERY GROUP, P.C. (Defendant) Pretrials will be held on November 23, 2011 vs. (Briefs are due S days before pretrials No. 09-2045 Term Indicate the attorney who will try case for the party who files this praecipe: Joseph M. Melillo Indicate trial counsel for other parties if known: Andrew Foulkrod This case is ready for trial. Date: August 11, 2011 Signed: 911)l, Print NamtV JcWeph M. Melillo Attorney for: Plaintiff WA $aS oo dad u J 0-LW13635 I'ZI 62 tp Q -73 i ? FOULKROD ELLIS Professional Corporation Andrew H. Foulkrod, Esquire Attorney I.D. #77394 Darlene K. King, Esquire Attorney I.D. #75898 4000 Market Street Camp Hill, Pennsylvania 17011 Telephone: (717) 909-7006 Fax: (717) 909-6955 {? !( C,' C ^ fi t;?" r.?^ ?i nr" r I l , F N, R \/ T? iy C Attorneys for Defendants: Christopher J. Witt, M.D., and Ear, Nose and Throat Surgery Group, P.C. DAVID C. PHELPS, as Administrator Of the ESTATE OF LAURA A. PHELPS, Deceased, and DAVID C. PHELPS, Individually and in his own right, Plaintiffs V. CHRISTOPHER J. WITT, M.D. AND EAR, NOSE AND THROAT FACIAL PLASTIC SURGERY GROUP, P.C., a/k/a EAR, NOSE AND THROAT SURGERY GROUP, P.C., Defendants IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 09-2045 : JURY TRIAL DEMANDED MOTION IN LIMINE TO PRECLUDE STATEMENTS SUGGESTING THAT MRS. PHELPS CHANGE PHYSICIANS AND NOW, come Defendants, Christopher J. Witt, M.D., and Ear, Nose and Throat Surgery Group, P.C., by and through their counsel, Foulkrod Ellis, P.C., and file this Motion in Limine to Preclude Statements suggesting that Mrs. Phelps change physicians as follows: 1. This case is scheduled for trial during the December 2011 term of Civil Court. 2. This is a medical professional liability action in which the Plaintiffs allege inter alia that Dr. Witt negligently treated an ear infection leading to death. 3. During discovery, several non-medical witnesses were deposed who expressed their opinion that Mrs. Phelps should have changed physicians, or gone to another physician for treatment. 4. David Phelps, Plaintiff and son of Mrs. Phelps, testified at his deposition that in the context of two (2) telephone calls he had with Mrs. Phelps on Mothers' Day 2007 from his home in Georgia, he suggested that she should go to another doctor. (See Deposition of David C. Phelps, pages 26, 30, 38, 44, 69, 100, 101, attached hereto as Exhibit "A".) 5. Dawn Phelps, wife of David Phelps and daughter-in-law of Mrs. Phelps, testified at her deposition regarding her husband's Mothers' Day telephone calls with Mrs. Phelps, as well as her recollection of conversations she had with Mrs. Phelps' friends after her death, all of which contained statements made to Mrs. Phelps suggesting that she should have gone to another physician. (See Deposition of Dawn E. Phelps, pages 27, 28, 4145, attached hereto as Exhibit "B" 6. Leslee Yarlett, daughter of Mrs. Phelps, testified at her deposition that she could not specifically recall conversations with her mother, but "probably suggested maybe we need to talk about another doctor". Mrs. Yarlett also prepared a written narrative prior to her deposition in which she noted that she had questioned whether or not Mrs. Phelps should be seeing another doctor. (See Deposition of Leslee Yarlet, page 26 and Deposition exhibit #1, attached hereto as Exhibit "C".) 7. Nancy Boyes, next-door neighbor of Mrs. Phelps, testified at her deposition that she made several statements to Mrs. Phelps suggesting that she go to another doctor on Mothers' Day and the following day. (See Deposition of Nancy Boyes, pages 17, 20, 21, 25, 29, 34, attached hereto as Exhibit "D".) 2 8. The witnesses are non-medical witnesses and are therefore not qualified to offer a medical opinion as to the propriety of care or indication to change physicians. 9. Moreover, none of the above-mentioned witnesses had reviewed the medical records of Mrs. Phelps healthcare providers or were present for any conversations with, or examinations by, her healthcare providers during the relevant time: • Deposition of David Phelps (Exhibit "A") - never met Dr. Witt (5); did not see medical records until after Mrs. Phelps died (10, 21); lives in Georgia, last time he saw Mrs. Phelps was 1/2007 (27); he was not there, does not know basis for Dr. Witt's treatment decisions (38, 39); his understanding of Mrs. Phelps' condition is only based on what other people told him (70); • Deposition of Dawn Phelps (Exhibit "B") - never talked to any of Mrs. Phelps doctors concerning any health issues (15); had not visited Mrs. Phelps since the prior summer [2006] (8); never met Dr. Witt or ever spoke to him (62); Deposition of Leslee Yarlett (Exhibit "C") - did not attend any doctors' appointments or have any conversations with any of Mrs. Phelps healthcare providers during the relevant time (21-23); did not review medical records (5); • Deposition of Nancy Boyes (Exhibit "D") - not present for any conversations between Mrs. Phelps and any doctors, never talked to any of Mrs. Phelps doctors (15); did not have any conversations with any of Mrs. Phelps doctors concerning her health (31). 10. Accordingly, the witnesses' statements made to Mrs. Phelps concerning their opinions that she should go to another physician are objectionable impermissible medical opinions of lay witnesses who were not aware of the information provided to Dr. Witt. 11. In addition, the statements should be excluded because any probative value is far outweighed by the danger of unfair prejudice to Dr. Witt. 12. For the foregoing reasons, the testimony of any witnesses concerning statements made to Mrs. Phelps suggesting that she switch physicians or go to another physician should be precluded from trial. 3 13. Defendants do not seek to preclude these witnesses' testimony about their perceptions of Mrs. Phelps health (e.g. whether she was better), but it would go too far if they were to testify about the propriety of care, i.e., the need for another physician. WHEREFORE, Defendants, Christopher J. Witt, M.D. and Ear, Nose and Throat Surgery Group, P.C., respectfully request that this Honorable Court enter the attached Order. Respectfully submitted, ELLI Date: tl L 1 By: Profess Andrew H. Vulkfiod; Esquire Attorney I.D. #77394 Darlene K. King, Esquire Attorney I.D. #75898 4000 Market Street Camp Hill, PA 17011 (717) 909-7006 4 ???\?? l? C I GIiN1A L 1 DAVID C. PHELPS, AS IIN THE COURT OF COMMON PLEAS ADMINISTRATOR OF THE ESTATE ICUMBERLAND COUNTY, PA OF LAURA A. PHELPS, DECEASEDI AND DAVID C. PHELPS, { INDIVIDUALLY AND IN HIS OWN RIGHT, I PLAINTIFF I I V I NO. 09-2045 I CIVIL DIVISION CHRISTOPHER J. WITT, M.D., I AND EAR, NOSE AND THROAT i FACIAL PLASTIC SURGERY GROUPI P.C., A/K/A EAR, NOSE AND I THROAT SURGERY GROUP, P.C., I DEFENDANTS I JURY TRIAL DEMANDED DEPOSITION OF: DAVID C. PHELPS TAKEN BY: DEFENDANTS • BEFORE: KAREN C. ALBRIGHT, RPR NOTARY PUBLIC DATE: June 2, 2010, 11:05 A.M. PLACE: NAVITSKY, OLSON & WISNESKI, LLP 2040 LINGLESTOWN ROAD HARRISBURG, PENNSYLVANIA APPEARANCES: NAVITSKY, OLSON & WISNESKI, LLP BY: JOSEPH M. MELILLO, ESQUIRE FOR - PLAINTIFFS FOULKROD ELLIS, PC BY: ANDREW H. FOULKROD, ESQUIRE FOR - DEFENDANTS s Hughes, Albright, Foltz & Natale Reporting Service, Inc. 3540 N. Progress Avenue • Suite 207-A • Harrisburg, PA 17110 717-540-0220 • Fax 717-540-0221 D30.0001 5 • • 1 L 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 BY MR. FOULKROD: Q Did you review anything else to prepare for your deposition? A I looked at some notes that I had prepared some year and a half ago. Q Did you review anything else in preparation for your deposition? A No. Q By the way, I appreciate your moving the time for this, I appreciate that. Why did you look at Dr. Witt's resume or curriculum vitae? I don't ever want to inquire into communications you had with your counsel, that's -- MR. MELILLO: I'm going to reveal at least it was at my suggestion so he knows a little bit about Dr. Witt. He had never met him, so I handed it to him. BY MR. FOULKROD: Q What was your impression of Dr. Witt's curriculum vitae, if any? A I didn't really have an impression, other than I was surprised that he appears to be as young as he is. Q You never met Dr. Witt? A Never met, no. Q So when you say you're surprised that he appears to be as young as he is, you mean appears based on the D30.0005 10 0 • • 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 breast pocket of a jacket, and this looks more like a ring binder calendar that would sit on a desk. Q So you would have -- you believe you would have referenced her calendar and bills from health care providers in creating these notes? A Yes. Q Anything else? A Yes. Q What? A I saw copies of some of her medical records. Documents that are purported to be her medical records. Q Purported by whom or what? A Another lawyer. Q A lawyer other than one with Navitsky, Olson & Wisneski? A That's correct. Q Who was that? A I can't remember her name, but if I heard it I'd remember it. Q Robin Marzella? MR. MELILLO: I have no idea. THE WITNESS: No, that doesn't sound familiar. BY MR. FOULKROD: Q Were they medical records of Dr. Witt's practice? A Yes. D30.0010 21 • C7 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 added to it or deleted from it? A I believe so, yes. Q I'd ask that you give that to your lawyer. A Okay. Q I'd like to look at that. A All right. Q Did you ever obtain another copy of Dr. Witt's records at any other time? A Did I? Q Yes. A No. Q So the only -- your only source of Dr. Witt's records at any time was that one lawyer at Cliff Haines' office? A These were records that they purported were from Dr. Witt's office, and the hospital, Holy Spirit Hospital, and her internist Dr. Ratnassamy. I may have mispronounced that name, I'm sorry. Q But my question is, did you ever receive any other records from Dr. Witt's office at any other time or from any other person other than that one time from that one female lawyer at Cliff Haines' office? A No. The clarification was because I was never certain that I received the entire file from that office. You want me to testify that those were, in fact, D30.0021 26 • • • 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A Yes. Q What do you recall? MR. MELILLO: Well, the question is fine, except the form of the question is a little bit off center. Obviously he and his mother never talked about the case. They talked about her medical care. MR. FOULKROD: That's one way to interpret the question, that's fine. MR. MELILLO: I understand what you mean. BY MR. FOULKROD: Q I don't mean to imply that you and your mother ever talked about the case, but as you sit here today, what do you recall about discussions with your mother about her medical condition and medical care that gives rises to this case? A I spoke to her on Mother's Day, and she had been seeing Dr. Witt for about four weeks, or whatever -- I don't know, four-five weeks, maybe six weeks. And she had what was described to me as an ear infection. And I said, Ma, it's time for you to get another doctor, I think. Because her symptoms were not improving, they were getting worse. Q Let's stick with that conversation for now. Do you recall other conversations with her? A This was the same conversation, this was one D30.0026 27 • • C] 1 2 3 4 5 6 7 8 9 10 11 12 13 14 1.5 16 17 18 19 20 21 22 23 24 25 conversation -- during one conversation on Mother's Day. Q So the extent of your recollection of conversations with your mother about her medical condition and medical care that gives rise to this lawsuit is one conversation on Mother's Day? A I spoke to her around the time that she got the ear infection. So I was aware that she had an ear infection, and that was probably four to five weeks before I spoke to her on Mother's Day. Q Let's just for now identify the different conversations. Are there any others, other than those two? A I don't recall having other conversations other than those two with her. Q Did you see her in that time frame? A I did not. Q When is the last time you saw her before she was admitted to Holy Spirit Hospital in May of '07? A I believe it was in January -- January of '07. Can I add something? I live in Woodstock, Georgia. Q Woodstock, what? A Georgia. And she lived in Camp Hill, Pennsylvania. Q So you had the two conversations with her? A That I recall. My wife had conversations -- I believe my wife had conversations with her, and also D30.0027 30 • • • 1 2 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 about the call on Mother's Day. Do you recall anything else other than what you've already told me, or have you told me the extent of it? A Of the telephone call on Mother's Day? Q Yes. A Other than telling her that she needed a new doctor. Q You told me that. A Yeah. She told me that she was in severe pain and that she had either thought about it or was considering self medication, because she had some pain killers from a prior surgery that she had had a year or two before, and that she had a lot of pain in her head, she was dizzy, and that she had some excessive drainage and some -- I think her words were gross discharge from her ear, and that she had seen -- been in contact with the doctor maybe three times the week before and had been prescribed another antibiotic. And I think she had said she may have been on three or four up to that point, that she had been having some symptoms from the antibiotics, thrush maybe, and that the latest opinion was that they were going to take her off all her antibiotics to see what happened. Q Do you recall anything else about that conversation? A Yeah, I told her that I thought she ought to go D30.0030 38 • • 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 could be perceived to be negative. It was more she was a bit perplexed, as I was. Q What do you mean when you say perplexed? Can you describe that in any way, or not? A She seemed a bit confused. Is was obvious -- or appeared to be obvious based upon what she was telling me, she thought she had an infection and she should be on some time of antibiotics. And the latest is, we're going to stop all antibiotics and see what happens, is what brought my response, come on, Ma, you got to get another doctor. Q Do you know the circumstances under what the antibiotics were discontinued? A No, other than a discussion that she had with him. I wasn't there, so. Q Do you know anything about the discussion? A No. Well, based on what I'm telling you, she told me that they, the doctors, had said we're going to stop all antibiotics and see what happens. Q But do you know why? A No. At that point I had already made the conclusion, my conclusion was, you need a new doctor. Q What was the basis of that conclusion, just because the antibiotics were stopped? A It seemed like her condition -- she had told me her condition was getting worse, she had been on a whole D3O.OO38 39 11 • 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 bunch of antibiotics, and now the conclusion was to stop the antibiotics. To me, I don't have medical training, but it seemed as though there should have been another conclusion made by her physician at that point. Q And in fairness, you don't know what the basis for that decision was? A I do not. Q Did your mother go to dinner at your sister's house that day? A I believe she did, um-hum. Q Do you know who was present? A Other than my sister and her daughter and her fiance, I think that's all. I don't even know if he was there. Q When you say her fiance, is that the daughter's fiance? A No, I'm sorry. My sister's fiance. He may not have been her fiance at that point. Boyfriend. Q Did your mother see anyone else that Mother's Day, to your knowledge? A She -- I don't know for sure. She was close with her neighbors, and she had some neighbors that were looking on her, and so forth. Q Who is that? A Nancy Boyle, her next door neighbor. And Dottie D30.0039 44 • • 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q Did you have any other discussions with Brett Hintze about the issues in this case? A No. Q Let me back up. Did you have any discussions with anybody else about your mother's medical condition or care? A Prior to her death? You mean -- Q Before or after. I want to know what you know. A Other than maybe some friends, you know, associates, that we just had discussions with about what's happening. Those that know will some times ask. Q And you're referring to conversations with friends after your mother's death? A Yeah. I mean, you're not being very specific, but as we're discussing this, you know, like her neighbors, like Nancy, for example, said, I told your mom she needed to get another doctor. I think Dottie may have told her that. There were -- after the fact when she deceased, I mean, people were shocked. She had a lot of friends and people that came to the funeral, well, I knew she was sick but I didn't know she was that sick. Q Nancy told you that she had told your mother that she needed to get another doctor? A Right. MR. MELILLO: Excuse me. What was Nancy's last D30.0044 69 • • • 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 2.0 21 22 23 24 25 mind is a legal one that I have not yet come to a decision on, but I think that there may be a valid point of view here that the bills that should have been incurred with the proper treatment would have exceeded the ones that were incurred. MR. FOULKROD: I have to ask you a question about pain and suffering type damages. If you're going to take the stand at trial and testify about what your mother went through with her disease process over the period of time to her death, that's something that I need to hear today. Are you aware of that? Is that something that you're going to testify to? I'm going to ask the question. If Joe's going to say, he's not going to testify to, or you're not aware of it, you can respond like that. Go ahead. THE WITNESS: What is the question? MR. MELILLO: He'd like to know what you recall about the distress your mother was in up to the time of her death. MR. FOULKROD: What you know about it. THE WITNESS: Well, I know that when I spoke to her on Mother's Day, other than the pain, she was scared. She thought that there was something wrong with her. And that's why when she started talking about self medicating and things of that nature, that in my conclusion was she needed to seek some other help, get another doctor. D30.0069 ?J E i 8 0 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 70 So I mean, I pretty much told you what my opinion was what she was going through at that point in time. BY MR. FOULKROD: Q You don't have an understanding as to what she went through after that point in time, is that fair? A Only based on what people told me. Q People being who, health care providers? A Well, the people that had, you know, when she fell, and then she went to the hospital and they told me what she was going through, that she was having the pain and the discharge. Q Tell me about what you recall that you were told about what she went through. A Well, it's pretty much my knowledge what I explained before, is that she was having severe pain in her head. She was having discharge, cottage cheese-like discharge. In fact, she had it in her house. She had buckets of bloody like -- not bandages, but cotton pad type things that she was discharging on. And they were by her bed. Q Who witnessed that? Did you witness that? A My wife did. Q Did you witness that? A I think I didn't want to, as I recall. Q Do you literally mean more than one bucket? D30.0070 100 11 • • 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 ever had any ear or head pain or fever? A Yeah, she told me she had head pain on Mother's Day. Q Do you have any information that she reported that to Dr. Witt? A She told me she did. Q Do you have any information that she reported any ear pain or head pain or fever to Dr. Witt after she started taking the Biaxin? A I don't know when she told him, if it was before or after, during, but she told me he was well aware of her condition and what was going on. And that she was -- the latest was that she was going to stop taking the antibiotics, that he had told her to stop taking the antibiotics. And that's when I told her she needed to get another doctor. So I don't know exactly which time, which visit or conversation. Q Do you have any information had that your mother ever reported to Dr. Witt that she was dizzy? A Yeah, I think so, because she told me that's why she -- I recall that she called him back because she was dizzy, and when she fell, but I mean, she told me her symptoms, and -- I mean, this conversation with her was not of a clinical nature. I didn't know that she was going to be dead four days later. It was more, Mom, look, you got D30.0100 101 • E 13 1 2 3 4 5 6 7 8 9 10 11 12 14 15 16 17 18 19 20 21 22 23 24 25 an ear infection, get to somebody who can take care of you. And if you talked to the guy three or four times last week, and you've seen him for four weeks, it's time to change doctors. And she was like, well, I was referred to the practice, they seem to know what they're doing. If I would have known then what I know now, this conversation would have been quite different. Q I respect that. Do you have any information surrounding what caused 911 to be called on May 15th? A Yeah, she fell in the bathroom. She fell in her bedroom getting out of bed. And she called -- she fell getting out of bed in the morning. She called my sister, and said she couldn't get up. I believe my sister's boyfriend and her daughter went to her house, and she fell next to the bed getting out of bed in the morning, or late morning, or mid morning, whatever it was, and she then went to the bathroom. And then she fell in the bathroom. And she fell against the door, and they couldn't get the door open. So either Rick or Emily, or Nancy the neighbor may have called, too. I don't know who exactly made the phone call. That's my understanding. Then the EMTs came. Q Where did you learn that information? A Either my sister -- I think my sister told me, or Nancy. My sister or Nancy told me, or Rick. Probably my sister, because she's the one that called me and told me D30.0101 ??? ?? ?? • IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA DAVID C. PHELPS, As Civil Division Administrator of the Estate of LAURA A. PHELPS, Deceased, . and DAVID C. PHELPS, Individually and in his own right, Plaintiffs VS. No. 09-2045 CHRISTOPHER J. WITT, M.D., and EAR, NOSE AND THROAT FACIAL PLASTIC SURGERY GROUP, . P.C., a/k/a EAR, NOSE AND THROAT SURGERY GROUP, P.C., Defendants Jury Trial Demanded . . . . . . . . . . . . . . . . j Deposition of: DAWN E. PHELPS Taken by Defendants Date August 6, 2010, 10:00 a.m. Place 2040 Linglestown Road Harrisburg, Pennsylvania By Susan L. Petrilla, Reporter Notary Public D39.0001 Exam./King - Dawn Phelps • 1 2 3 Q. Did David live with you in 2007? A. Yes. Q. And other than talking on the telephone and exchanging e-mails, did you visit your mother-in-law in Camp Hill during that time period? A. Not in that time period, no. Q. When was the last time prior to -- Let's say, May 2007, when was the last time you had visited? 81 E 0 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. Six months, summer, July, August, prior summer. Q. How long did you visit for? A. We stayed -- I don't know, I think we stayed overnight. We usually at least stayed overnight a night or two. Q. You mean 2006? A. Yes, 2006. Yes, sorry, summer prior to the fall -- spring of 2007. Q. When you said earlier that you talked about -- you may have talked about her health in e-mails, telephone calls and conversations, was she having any particular health problems that you were aware of? A. Yes, she'd been battling cold, respiratory, ear issues since March, I guess. Filius & McLucas Reporting Service, Inc. Harrisburg 717-236-0623 York 717-845-6418 PA 1-800-233-9327 D39.0008 Exam./ King - Dawn Phelps i r] • 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 15 1 already talked about, if you recall? A. (Shakes head.) Q. Is that no? A. No. Q. Did you ever talk to any of her doctors concerning any of these health issues? A. I did not. Q. And let's talk a little bit about what your mother-in-law's life was like in, say, 2007. I know you weren't here on a day-to-day basis, but just from your conversations with her and your e-mail exchanges, can you tell me what her routine, her daily routine would have been like? A. Yes, she had a dog that she doted on. She had -- She went to church regularly. She was in a women's group. She had a group of friends that she went to movies, theater. She saw her niece at every performance she was in, which was in ballet. You know, she was active. She did her own shopping and, you know, all that I can see from her calendar, all of her dates on there and everything that she attended and went to. Q. When you mentioned that she went to her niece's ballet, did she participate in -- I'm sorry, I Filius & McLucas Reporting Service, Inc. Harrisburg 717-236-0623 York 717-845-6418 PA 1-800-233-9327 D39.0015 i 1 2 3 4 5 6 7 8 9 10 11 • • 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Exam./King - Dawn Phelps 27 1 Q. Do you remember him telling you anything at all about the second conversation? A. Not really, no. Q. Do you remember a conversation with anyone else in the family that day? A. I know he spoke to his sister. Q. Do you know anything about that phone call? A. No. Q. Did he tell you anything about what he and his sister spoke about? A. He mentioned that his sister was having a cook-out and wanted his mom to attend. That's my recollection. Q. Do you remember any conversation about suggesting that Mrs. Phelps go to the hospital, go back to see another doctor? A. That would be the first conversation. Q. Okay. What can you tell me about that? A. I remember he had said, mom, don't you think you should see someone else? You've been having this ear problem for about six weeks now and it's not resolved. And I remember thinking, yes, that's probably a good suggestion. Q. And did anything happen as a result of that conversation? Did she go to see a doctor? Did Filius & McLucas Reporting Service, Inc. Harrisburg 717-236-0623 York 717-845-6418 PA 1-800-233-9327 D39.0027 P Exam./ King - Dawn Phelps • 1 she go to a hospital? A. Not that day. Q. Did she eventually go to your sister-in-law's house for the cook-out, do you know? A. She did go over briefly from what I understand. Q. I think you said that you remember thinking that would be a good idea for her to get follow-up. Did you mention that to your husband? A. Well, we spoke after the conversation, after he hung up, yes. 28 1 • 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q. Okay. A. I said, yes, I agree, she should see somebody else. Q. So, basically, what you're telling me about the phone conversations, if I'm characterizing it correctly, is you didn't actually talk with her, you talked with your husband, and you may have overheard his end of the conversation after he got off the phone or during the -- A. I believe I spoke to her and said, hi, happy -- I'm sorry. Q. No, that's okay. You overheard his end of the conversation and spoke with him about the conversation, but didn't have any direct communication with her on the phone. Is that Filius & McLucas Reporting Service, Inc. Harrisburg 717-236-0623 York 717-845-6418 PA 1-800-233-9327 D39.0028 Exam./King - Dawn Phelps • 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 41 1 1] ?J mother-in-law's death? A. No. Q. So the conversation with Dottie Gault after your mother-in-law's death, would you tell me about that? A. Primarily what was exchanged was that she had wished she had pushed Laura harder to see another doctor. She had suggested it to her, as well as my husband and I had. Q. Do you know when she had talked with Mrs. Phelps about going to see another doctor? A. I don't know for sure. Q. Generally, would you say the week prior to her death? A. I think she had had lunch with her the week or two prior to that. Q. Did she see Dottie Gault on a regular basis? A. Yes, she did. Q. Was she a neighbor? I don't recall. A. Yes. Q. Was she the next-door neighbor? A. No, she lived a few doors down. Q. How often did she see Mrs. Phelps? A. At least once a week, they tried to get together. Pilius & McLucas Reporting Service, Inc. Harrisburg 717-236-0623 York 717-845-6418 PA 1-800-233-9327 D39.0041 Exam./King - Dawn Phelps • 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 45 1 • • she came to take care of the dog on the morning that she went to the hospital, anything else about that conversation that you remember? A. Same thing as Dottie. You know, we wish we would have pushed harder for her to see another doctor. They were neighbors, you know, I'm sure they talked. She knew that Laura hadn't been feeling well. Specifics of their conversations, I don't know. Q. Okay. A. I don't recall what Nancy may or may not have said to me at the time, other than, I came over, I saw them taking her out in the ambulance on the stretcher. I spoke to her very briefly that I would take care of the dog, don't worry about it. And that's all I recollect. Q. Did you speak to any of her other friends during those few days that you were in Harrisburg in May 2007 concerning her -- A. No, only at the funeral. No. Q. Was Nancy her next-door neighbor? A. Yes. Q. Do you know if she lived with anyone else; Nancy Boyle? A. Her husband. Filius & McLucas Reporting Service, Inc. Harrisburg 717-236-0623 York 717-845.6418 PA 1-800-233-9327 D39.0045 Exam./King - Dawn Phelps • is • 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 providers who had taken care of your mother-in-law in the hospital? Did you have any conversations after your mother-in-law's death with anybody who had taken care of her in the hospital? A. No. Q. Did you have any conversations with anyone other than Leslee, her husband, and/or daughter concerning anything at the hospital? A. No. Q. Is there anything about those two days that we haven't covered that you can remember? A. No. Q. Have you ever met Dr. Witt? A. No. Q. Have you ever spoken with him? A. No. Q. Have you ever spoken with anyone at his office? A. No. Q. Have you ever talked with any of the other healthcare providers other than Dr. Witt and the hospital personnel concerning your mother-in-law's care? For instance, the internists who she went to see or any other doctors? 62 1 Filius & McLucas Reporting Service, Inc. Harrisburg 717-236-0623 York 717-845-6418 PA 1-800-233-9327 ??a?? 1\ • • IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA . . . . . . . . . . . . . . . . DAVID C. PHELPS, As Administrator of the Estate of LAURA A. PHELPS, Deceased, . and DAVID C. PHELPS, Individually and in his own right, - Plaintiffs VS. CHRISTOPHER J. WITT, M.D., and EAR, NOSE AND THROAT FACIAL PLASTIC SURGERY GROUP, . P.C., a/k/a EAR, NOSE AND THROAT SURGERY GROUP, P.C., Defendants . . . . . . . . . . . . . . . . Civil Division No. 09-2045 Jury Trial Demanded Deposition of: LESLEE YARLET Taken by Defendants Date August 6, 2010, 11:42 a.m. Place 2040 Linglestown Road Harrisburg, Pennsylvania By Susan L. Petrilla, Reporter Notary Public • D40.0001 Exam./King - Yarlet 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 51 • • that might occur in just everyday conversation. It just needs to be verbal. And, along that same line, please wait until I'm finished asking the question until you give your response, because she can't take both of us down at the same time. Have you reviewed anything in preparation for your deposition today? A. You mean reviewed like my thoughts? Q. Anything in writing. A. No. Q. Have you ever looked at the medical records for your mother? A. No. Q. Are you aware of calendars that your mother created? A. Well, I know that -- I mean, I might have seen them at one time, but I know she was a copious note taker. Q. And do you remember ever actually looking at the calendars for 2007? A. Probably not. Q. So you haven't looked at them recently? A. No. Q. Just to finish with the instructions, I'm Filius & McLucas Reporting Service, Inc. Harrisburg 717-236-0623 York 717-845-6418 PA 1-800-233-9327 D40.0005 2 3 4 5 6 7 8 9 10 11 • 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Exam./King - Yarlet 21 1 extent, because I was so tired of people being sick. And it was like, come on, come on, come on, we've got to rally round here. And she wasn't rallying. And, you know, there could be even a portion of me that I was kind of mad at her. It's like, you can't be sick now, get up. Q. Were you aware of her going to doctors' appointments? A. Oh, yeah. Oh, yeah, that would have been part of the daily. Now, when it came to what they said or whatever, you know, I would have listened and I would have listened attentively. You know, but whatever the doctor would have told her to do was what she was going to be about the business of doing, so, you know. And we were just trained, you know, the doctors were professionals and that you didn't self-medicate, you know, you didn't play doctor yourself. When you didn't feel well, you went to the,doctor, and the doctor would tell you what it was that needed to be done and you would do it, and then those two in place, you would get well. Q. Did you ever go with her to any of her doctors' appointments? Filius & McLucas Reporting Service, Inc. Harrisburg 717-236-0623 York 717-845-6418 PA 1-800-233-9327 D40.0021 Exam./King - Yarlet E • • 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 22 1 A. Not at this point in time, no. Q. Did you have any conversations with any of her doctors during this time? A. No, I didn't, not that I'm aware of. Q. Do you know Dr. Ratnasamy? A. I do. Q. Have you ever had any conversations with him concerning the subject matter of this case? A. Not that I'm aware of. Q. Do you know Dr. Witt? A. I do not. Q. Do you know anything about him? Have you researched him? A. No, I know nothing about him. Q. And you've never had any conversations with him? A. No. Q. Concerning this case? A. No. Q. Concerning your mother's care, either? A. No. And with Dr. Ratnasamy, I don't think we've spoken about the case or anything. He's my own personal doctor. Q. Okay. A. So it would have been more discussion of, you know, that your mom was a nice lady and stuff Filius & McLucas Reporting Service, Inc. Harrisburg 717-236-0623 York 717-845-6418 PA 1-800-233-9327 D40.0022 Exam./King - Yarlet • E 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 23 1 like that. It would have been more, you know, that he was being kind to me. Q. Nothing specific about her care? A. No, no. I mean, with HIPAA stuff in place, I don't think he could have even had that discussion with me, could he? Q. Have you had any conversations with him about it since your mother passed away? A. No. Q. Other than Dr. Ratnasamy and Dr. Witt, have you had any conversations with any medical providers concerning your mother's care during this time period? A. No. Q. Are you aware of anyone else having conversations with your mother's healthcare providers concerning her care either during that time period or after? A. Just David. Q. What do you mean? A. I mean, David would have had some conversation with them. I mean, all along, he would have. You know, if there was anything serious. In our family, my dad -- David is a lot like my dad. And after -- Just a minute. After daddy died, Filius & McLucas Reporting Service, Inc. Harrisburg 717-236-0623 York 717-845-6418 PA 1-800-233-9327 D40.0023 C • • 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Exam./King - Yarlet 26 1 good and so she didn't take care of herself, you know, as well as she had for all my life. Q. How long would you say that that lasted? A. The not taking care of herself? Q. Yes. A. I would have said up until, you know, the -- a few days before she died. And I think, you know, I was trying to -- You know, things aren't getting better. I probably suggested maybe we need to talk about another doctor. Are you sure the treatment is right? I don't remember, but if I was overly concerned, I think I would have talked to David, you know, maybe would have called him, bypassed something through him, you know, just made sure he was on top. Let's see. I think I might have even said something to Dottie like, can you get her out? Can you get her dressed? Can you -- Because I just felt like I wasn't able to motivate her. Because I guess I didn't realize how -- I mean, I don't know. I can't say. I just know that I was troubled, and I thought she should be getting better and I didn't know why she wasn't getting better. MR. MELILLO: Darlene, you haven't asked Filius & McLucas Reporting Service, Inc. Harrisburg 717-236-0623 York 717-845-6418 PA 1-800-233-9327 D40.0026 -N Questons for David: How is Laurie, your friend who was awaiting a heart transplant? May I have you personal e-mail address? Lost info contacts when our computer went down and would like to have access to it again. A few directing points about Mom: Re: professionals/following orders She would have been consistent about followin through with the doctor's treatment plan. She would have continued to do exactly what it was that he had told her to do (i.e. note journal documentations) C v'OSRION t6R My brother and I were raised to go to the doctor when we were sick. We were not taught to play doctor, to self-medicate or self-diagnose. When ill, we were taught to seek professional help. The family doctor or specialist would be the trusted professional to diagnose what was wrong and would be the one to prescribe treatment. We would then be held responsible to follow through with those directives. A-the doctor's experienced diagnosis paired with B-our follow through would then equal our return to good health. My Mom was good at following orders. Once a plan was in place and a directive given, she would do her best to carry that out. She was a trained secretary and my brother and I were raised in a traditional household. She was used to receiving orders and Mom would carry out to the best of her ability, those for which she was responsible. Re: ear infection I remember my Mom doctoring a lot that winter. Some of the appointments were pre- scheduled check-ups like dentist, eye doctor, foot doctor to trim nails and appointments like that. But increasingly, she began to add appointments to see her internist and other specialists to track down why she was feeling so poorly. I do not remember when the ear infection began exactly, as I was a bit preoccupied. I had just lost my husband to pancreatic cancer, after an 18 month battle, and I still had a teenage daughter at home needing my care and attention. I remember most of the last month she was alive, she spent doctoring and then sitting in her pjs and bathrobe in the family room watching TV. That was so unlike my Mom. I r became increasingly worried and questioned whether or not she should be seeing another doctor. I remember that she had a paper bag and a box of tissues beside her chair. The bag had discarded tissues in it that had been used to swab the discharge coming from her J r D40.0057 ear. That, plus her lethargy and pain caused me to question the doctor's treatment plan. But she insisted that the doctor was fully aware of her symptoms and concerns and was on top of it. I knew if there was anything to be really concerned about, she would have talked to my brother about it, as she often used him as a key advisor when it came to decision making. Re: hospital They told me that were going to observe her throughout the night but expected that they would be releasing her the next day. D40.0058 FI I. fl- 1;111 K. j C1 1 , : 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 I?Ur Tf COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA DAVID C. PHELPS, as . Administrator of the ESTATE OF LAURA A. NO. 09-2045 Civil Term PHELPS, deceased, and DAVID C. PHELPS, CIVIL ACTION Individually and in his MEDICAL PROFESSIONAL own right, LIABILITY ACTION Plaintiff, -vs- - CHRISTOPHER J. WITT, M.D., and EAR, NOSE AND THROAT FACIAL PLASTIC SURGERY GROUP, P.C., a/k/a EAR, NOSE AND THROAT SURGERY GROUP, P.C., JURY TRIAL DEMANDED Defendants. Thursday, Septem ber 30, 2010 Oral deposition of NANCY BOYES, held at the law offices of FOULKROD ELLIS, P.C., commencing at 2:00 p.m. on the above date, before Denise L. Travis, RPR and Notary Public in the Commonweal th of Pennsylvania. LOVE COURT REPORTING, INC. 1500 Market Street 12th Floor, East Tower Philadelphia, Pennsylvania 19102 (215) 568-5599 D33.0001 0 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 . 25 Nancy Boyes Page 15 A No -- Q Okay. A -- not near the hospital. You would turn off -- Q Okay. A -- before you would get on 83. I'm sorry. Q No. I didn't mean to interrupt you. A Okay. Q Did you accompany her into the doctor's visit or just take her there? A I -- I just took her there. I was in the waiting room. Q Okay. Were you present for any conversations between Mrs. Phelps and a doctor? A No. Q Did you talk to that doctor at all while you were there? A No. Q Okay. All right. And -- but you think it may have been a visit that was related to her ear? A It was. I know that, yes. Q Do you know when that was? A No. I really -- I really can't -- Love Court Reporting, Inc. D33.0015 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Page 17 Nancy Boyes Q In what way when you say very bad? A Well, she was outside with Abby; and she was, like, leaning -- she has a rail. And she was leaning over. And I said, Laura, what's the matter? And she goes, I'm not feeling good. I said, Laura, you've been sick for a couple weeks now. And I -- I said to her, I think you need to get another doctor. I said, If you get another doctor, I'll drive you there, please, because, I said, you shouldn't be sick for this long. Q Did she respond? A She -- Laura was the type -- she was a very sweet lady. And she didn't like -- how can I put this? She didn't like to put anybody down type of thing. She said she wanted to wait. And I said, No, Laura, please get another -- I would have called her kids; but I didn't know their phone numbers. She had showed me where her daughter lived one time; but I couldn't remember, because I wasn't that familiar with that area. So I Love Court Reporting, Inc. D33.0017 • 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Nancy Boyes Page 20 with the dogs outside? A Um-hum. Q The dogs were playing. And you had a conversation? A Um-hum. Q Was there anything else about that conversation that you recall that you didn't already talk about, the morning conversation? A We might have talked about the weather or something. I don't... (witness trails off) Q Nothing else with respect to how she was feeling or her health? A I just said to her, Are you -- I said to her, I'm going -- I think I said something like, I'm going to be your mother. And I'm telling you to get another doctor, because you're not getting better. You're getting worse. That's -- you know, I might have said something to her like that. Q Did you know the name of the doctor she was seeing at the time? A No. Q Okay. Did you know if she was seeing more than one doctor? Love Court Reporting, Inc. D33.0020 Page 21 Nancy Boyes 1 2 3 A No, I don't. Q Okay. So then you didn't see her for a portion of the day when you were both visiting for Mother's Day? A Right. Q But then you did speak with her again later that day? A Yes. 4 5 6 7 8 9 10 11 12 0 13 14 15 16 17 18 19 20 21 22 23 24 is 25 Q Was it in person or on the phone? A No, in person. Q Okay. Can you describe that for me? A It was out on the patio again -- Q Okay. A -- with the dogs. And that was that day. And that was Mother's Day. And I think I said again to her, Get another doctor. Let me know, and I'll take you. Q Was there anything different about how she appeared in the later visit than how she appeared in the morning visit? A No. I guess about the same. She said she wasn't feeling good and something like she was going to go to bed early or something. But she goes, You know, I've got to let Abby out again. Love Court Reporting, Inc. D33.0021 4 I • Page 25 Nancy Boyes i 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 0 25 name is Emily -- and at the time her boyfriend, which she's now married to. And Lee had told me that Laura fell in the bathroom, that she was dizzy. So I ran in and ran upstairs. And the paramedic told me they can't get the door open because she.was -- when she had fallen, she was against the door. And I said, Why don't you get in through the window? Finally, they got Laura to move a little where they could get the door -- somebody could get in to get her. And they lifted her up. And they -- I came downstairs, and then I started talking to Lee. I came outside. And I said to Lee, what happened? And I said, I told your mom to get another doctor. I said, I don't understand why she's getting worse. I said, This has been going on for a while now. She shouldn't be like this. And then I went back in the house. And they were bringing her down on -- what do they call that -- a stretcher, that they -- and they said they were bringing her to the hospital, Holy Spirit. And I -- my last words to her was, Love Court Reporting, Inc. D33.0025 Page 29 Nancy $oyes 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 . 25 Okay. So where's the new doctor? And she just sort of smirked at me. Q When do you get home from work? A Between five and five-thirty. Q Okay. Anything else about that conversation you remember? A No. We talked about other things, you know. W e might -- I can't really -- I don't want say -- I'm under oath. We might have talked about food o r something, nothing -- no. I just -- Q I'm not asking you to guess, but just to tell me if you have any specific recall of anything that was said. A No. Q No. That's fine. That's a fine answer. A You know, just maybe the news or something. Yeah, that wasn't that -- I was -- I was thinking she had gotten a book; but that wasn't that day. So that doesn't -- no. Q Okay. All right. Several different times you've mentioned that she said she wasn't feeling well. And I think one time you mentioned that she said something about ear pain? Love Court Reporting, Inc. D33.0029 V Page 31 Nancy Boyes 0 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 • 25 felt dizzy or that she had had any conversations with anyone, a doctor or anybody, about why she felt dizzy? A No. Q Okay. Other than ear pain and dizziness, any other symptoms she talked to you about? A (Witness shakes head from side to side.) Q Is that a no? A I'm sorry. No. Q Okay. All right. And other than that one doctor's visit that you took her to, you don't remember going with her to any other doctor's visits? A Yes, I did. But that was when she had surgery on her hand. Q Okay. A And that was before this. Q Okay. And you haven't had any conversations with any of her doctors concerning her health? A No. I didn't feel it was my place, because I wasn't family. Q Have you had any conversations with Love Court Reporting, Inc. D33.0031 F % Page 34 Nancy Boyes 0 1 2 3 4 5 6 7 8 9 10 11 12 . 13 14 15 16 17 18 19 20 21 22 23 24 25 Q okay. A No. All I kept saying to her was get another doctor, get another doctor. Q Did you have the opportunity to see her bedroom -- A Yes. Q -- while she was ill? A Yes. Q What did you notice about it, if anything? A Fine. Q Did she have anything laying around, discharge in tissues, that sort of thing? A Tissues, yes. Yes. Q What do you remember about how they appeared? A Well, she had a basket by her bed; and she had a lot of tissues. I actually -- when she wasn't feeling good, I would bring her laundry downstairs. she had it upstairs. And I would bring her laundry down to the basement, because of the steps that she had to go down. And I said, Laura, if you're dizzy, you shouldn't be doing this. But, yeah, she had a waste basket Love Court Reporting, Inc. D33.0034 CERTIFICATE OF SERVICE I HEREBY CERTIFY that true and correct copies of the foregoing were served upon all counsel of record this 2 / - day of ALVe/0h 2011, by depositing said copy in the United States Mail at Camp Hill, Pennsylvania, postage prepaid, first class delivery, and addressed as follows: Joseph M. Melillo, Esquire Navitsky, Olson & Wisneski, LLP 2040 Linglestown Road, Suite 303 Harrisburg, PA 17110 (Counsel for Plaintiff FOULKROD ELLIS Professional Corporation C (L Christina W. Shaffer, Paralegal U 0- - t ', 0 THE PROTHONOTARY FOULKROD ELLIS 70, {I DEC 21 PM 1 44 Professional Corporation 4000 Market Street COUNTY cU BERLANQ NIA Camp Hill, Pennsylvania 17011 PENNSYLVA Telephone: (717) 909-7006 Fax: (717) 909-6955 Attorneys for Defendants: Christopher J. Witt, M.D., and Ear, Nose and Throat Surgery Group, P.C. DAVID C. PHELPS, as Administrator : IN THE COURT OF COMMON PLEAS Of the ESTATE OF LAURA. A. PHELPS, : CUMBERLAND COUNTY, Deceased, and DAVID C. PHELPS, : PENNSYLVANIA Individually and in his own (right, Plaintiffs : CIVIL ACTION - LAW V. : NO.09-2045 CHRISTOPHER J. WITT, M.D. AND EAR, NOSE AND THROAT FACIAL PLASTIC SURGERY GROUP, P.C., a/k/a EAR, NOSE AND THROAT SURGERY GROUP, P.C., Defendants : JURY TRIAL DEMANDED PRAECIPE TO ENTER JUDGMENT ON THE VERDICT TO THE PROTHONOTARY: Kindly enter Judgment in favor of Defendants, Christopher J. Witt, M.D., and Ear, Nose and Throat Facial Plastic Surgery (Group, P.C. a/k/a Ear, Nose and Throat Surgery Group, P.C., and against Plaintiff, David C. Phelps, as Administrator of the Estate of Laura A. Phelps, Deceased, and David C. Phelps, Individually and in his own right, pursuant to the Jury Verdict entered on December 12, 2011. Respectfully submitted, FOULKROD ELLIS Professional gorporl DATE: Z Z3 t I By: ` I Andrew H. Foulkro , Esquire Court I.D. No. 77394 Darlene K. King, Esquire Court I.D. No. 75898 C??aoca Iio h a wai (-ed •.4 3 CERTIFICATE OF SERVICE I HEREBY CERTIFYI that true and correct copies of the foregoing were served upon all counsel r-Gt-- of record this day of /),f, G YyL-Jo c.,', 2011, by depositing said copy in the United States Mail at Camp Hill, Pennsylvania, postage prepaid, first class delivery, and addressed as follows: Joseph M. Melillo, Esquire Navitsky, Olson & Wisneski, LLP 2040 Linglestown Road, Suite 303 Harrisburg, PA 17110 (Counsel for Plaintiff) FOULKROD ELLIS Professional Corporation Y? Christina W. Shaffer, Paralegal r 1 DAVID C. PHELPS, Administrator of the Estate of Laura A. Phelps, deceased and DAVID C. PHELPS, Individually, V. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA : CIVIL ACTION - LAW CHRISTOPHER J. WIT", M.D., : and EAR, NOSE and OAT FACIAL PLASTIC SURGERY GROUP, P.C., aka EAR 140SE and THROAT SURGERY GROPU, P.C., Defendants NO. 09-2045 CIVIL TERM VERDICT [In this case, counsel have stipulated that the jury's verdict as to Defendant Witt will also apply to hi? employer, Defendant Ear, Nose and Throat Facial Plastic Surgery Group, P.Q. Therefore the verdict slip does not provide for a separate verdict as to the corporate Defendant] Question 1: Do you find that Defendant Witt was negligent? Yes No If you answered Question I "No," Plaintiff can not recover and you should return to the Courtroom. If youanswered Question 1 "Yes," you should proceed to Question 2. II! Question 2: Was Defendant Witt's negligence a factual cause of any harm to the decedent, Laura A. Phelps? Yes No If you answered 2 "No," y Plaintiff can not recover and you should return to the Courtroom. If you answered Question 2 "Yes," you should proceed to Question 3. Question 3: What damages, if ??!ly, do you award to Plaintiff? ? Wrongful Death Action: $ Survival Action: $ ?t„w?ber ??? aoli (Date) (Foreperson)