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HomeMy WebLinkAbout10-3338Date: 5/19/2010 Dauphin County User: SGRIFFITH Time: 09:31 AM Complete Case History Page 1 of 5 Case: 2009-CV-10461-MM 10-333$ Michelle L Bingaman, etal.vs.Judith A Jozefiak, etal. Filed: 8/26/2009 Subtype: Medical Malpractice Physical File: Y Appealed: N Comment: Status History Pending Transferred Closed Judge History Date Judge 8/26/2009 No Judge, Payments Galfand Berger Plaintiff Name: Address: Phone: Employer: Litigant Type: Comment: Attorneys Jensen, Debra A Plaintiff Name: Address: Phone: Employer: Litigant Type: Comment: Attorneys Jensen, Debra A 8/26/2009 4/21 /2010 5/3/2010 Reason for Removal Current Receipt Date Type Amount 200838 8/26/2009 Civil Filing 132.00 219134 3/11/2010 Civil Filing 20.50 Total 152.50 Bingaman, Michelle L SSN: DOB: Sex: Home: Work: Send notices: Y (Primary attorney) Send Notices Bingaman, Mark SSN: DOB: Sex: Home: Work: Send notices: Y (Primary attorney) Send Notices Date: 5/19/2010 Dauphin County r . Time: 09:31 AM Complete Case History Page 2 of 5 Case: 2009-CV-10461-MM Michelle L Bingaman, etal.vs.Judith A Jozefiak, etal. Defendant Name: Jozefiak, Judith A SSN: Address: DOB: Sex: Phone: Home: Work: Employer: Send notices: Y Litigant Type: Comment: Attorneys Parker, Wiley P (Primary attorney) Send Notices Leonard, Amy B Send Notices Defendant Name: Heritage Diagnostic Center SSN: Address: DOB: Sex: Phone: Home: Work: Employer: Send notices: Y Litigant Type: Comment: Attorneys Pipa, Michael D (Primary attorney) Send Notices Minehan, Karen E Send Notices Defendant Name: Heritage Medical Group SSN: Address: DOB: Sex: Phone: Home: Work: Employer: Send notices: Y Litigant Type: Comment: Attorneys Minehan, Karen E (Primary attorney) Send Notices Defendant Name: Tristan Associates SSN: Address: DOB: Sex: Phone: Home: Work: Employer: Send notices: Y Litigant Type: Comment: Attorneys Parker, Wiley P (Primary attorney) Send Notices Register of Actions 8/26/2009 Plaintiff: Bingaman, Michelle L Attorney of No Judge, Record: Debra A Jensen User: SGRIFFITH Date: 5/19/2010 Dauphin County r Time: 09:31 AM Complete Case History Page 3 of 5 Case: 2009-CV-10461-MM Michelle L Bingaman, etal.vs.Judith A Jozefiak, etal. Register of Actions 8/26/2009 Plaintiff: Bingaman, Mark Attorney of No Judge, Record: Debra A Jensen New Civil Case Filed This Date. No Judge, Filing: Complaint Paid by: Galfand Berger No Judge, Receipt number: 0200838 Dated: 8/26/2009 Amount: $132.00 (Check) For: Bingaman, Michelle L (plaintiff) Complaint filed. No Judge, AOPC MONTHLY CIVIL COURT No Judge, STATISTICAL REPORT DATA (AGING PURPOSES) 8/28/2009 Complaint: Sheriffs Return filed stating No Judge, service was completed. So answers J.R. Lotwick, Sheriff. to Tristan Associates on 8/28/2009; Assigned to Dauphin Co Sheriffs Office. Service Fee of $127.00. 9/4/2009 Certificate of Merit as to Defendant No Judge, Tristan Associates, filed. Certificate of Merit as to defendant No Judge, Heritage Medical Group, filed. Certificate of Merit as to defendant No Judge, Heritage Diagnostic Center, filed. Certificate of Merit as to defendant Judith No Judge, A. Jozefiak, M.D., filed. Complaint: Sheriffs Return filed stating No Judge, service was completed. So answers J.R. Lotwick, Sheriff. to Judith A Jozefiak on 9/4/2009; Assigned to Dauphin Co Sheriffs Office. Service Fee of $0.00. Complaint: Sheriffs Return filed stating No Judge, service was completed. So answers J.R. Lotwick, Sheriff. to Heritage Diagnostic Center on 9/4/2009; Assigned to Dauphin Co Sheriffs Office. Service Fee of $0.00. Complair~t: Sheriffs Return filed stating No Judge, service was completed. So answers J.R. Lotwick, Sheriff. to Heritage Medical Group on 9/4/2009; P.ssigned to Dauphin Co Sheriffs Office. Service Fee of $0.00. 9/14/2009 Stevens and Lee by Michael D Pipa, Esq No Judge, and liaren E. Mineharr, Esq enters appearance on behalf of the Defendant: Heritage Diagnostic Center and Heritage Medical Group. Defendant: Heritage I'•,~edical Group No Judge, Attorney of Record: ~:aren E Minehan 9/17/2009 Defendant: Jozefiak, ~;adith A Attorney of No Judge, Record: Wiley P Parf:er Defendant: Jozefiak, .e~dith A Attorney of No Judge, Record: Amy B Leon and Defendant: Tristan Associates Attorney of No Judge, Record: Wiley P Par er & Amy B Leonard, Esquire User: SGRIFFITH Date: 5/19/2010 Dauphin County Time: 09:3 AM Complete Case History Page 4 of 5 Case: 2009-CV-10461-MM Michelle L Bingaman, etal.vs.Judith A Jozefiak, etal. Register of Act ions . 2/17/2010 Stipulation to dismiss less than all parties No Judge, without prejudice, filed 2/22/2010 Upon consideration of the Stipulation to Cherry, John F. Dismiss Less Than all Parties Without Prejudice, it is hereby ORDERED and DECREED Defendants Heritage Medical Group and Heritage Diagnostic Center are dismissed from this action without Prejudice. If, however, during the course of this litigation it is found Heritage Diagnostice Center and Heritage Medical Group's involvement in Plaintiff Michelle Bingamon's medial care on March 10,2008 exceeded merely taking Plaintiffs diagnotice images and there is found to be reasonable basis for a claimm of liability, Heritage Diagnostice Center and Heritage Medical Group waive the statute of limitations and agree that they will not raise the statute of limitation in response to the filing of an Amended Complaint, outside the limitation period, rejoining Heritage Medical Group and Heritage Diagnostice Center as aparty-defendants. See ORDER filed. Copies Dlst by Court 2/22/10 3/11/2010 Filing: Final Decree/Order Paid by: No Judge, Galfand Berger Receipt number: 0219134 Dated: 3/11/2010 Amount: $20.50 (Check) For: Bingaman, Michelle L (plaintiff) 3/30/2010 Answer and new matter of defendant, No Judge, Judith A. Jozefiak, M.D. and Tristan Associates to plaintiffs' complaint, filed. 4/7/2010 Plaintiffs' reply to defendant's new matter, No Judge, filed. 4/8/2010 Petition of Defendants, Judith A. Jozefiak, No Judge, M.D. and Tristan Associates for a change of Venue, filed 4/14/2010 Upon consideration of the within Petition Coates, Bernard L Jr ans concurrence of all parties venue in the above captioned matter is hereby transferred to the Court of Common Pleas Cumberland County. The Prothonotary of Dauphin County is hereby directed to forward to the Prothonotary of Cumberland County certified copier: of docket entries, process, pleadings ark other papers filed on the action pursuanf: to Rule 1003(d)(30 Pa. R. C. P. Costs and ees of the Petition for ransfer and removal of the record shall be paid by Petitioner to be taxable as costs in the case. See ORDER filed. Copies Dist by court x/15/10 4/21/2010 The above action tra ~isferred to the Court No Judge, of Common Pleas of :.umberland County. User: SGRIFFITH Date: 5/19/2010 Dauphin County Time: 09:31 AM ~ Complete Case History Page 5 of 5 Case: 2009-CV-10461-MM Michelle L Bingaman, etal.vs.Judith A Jozefiak, etal. Register of Actions 4/21/2010 ****NO MORE ENTRIES CASE TRANSFERRED**** TO MIDDLE THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY ~ ~. ~ ~ Q . ~~ L~ I hereby c ify that the foregoing is a and correct copy the or~gi al filed. '~~~ P thonotarylClerk of Courts No Judge, User: SGRIFFITH 200 p~UG26 P~~ 1 ~ 00 F+v __ d 4 k (//•(^/rte/'/~ V ~\ GALFAND BERGER, LLP. BY: DEBRA A. JENSEN, ESQUIRE Identification No.: 33598 HEATHER A. HARPER, ESQUIRE Identification No.: 206035 1818 Market Street, Suite 2300 Philadelphia, Pennsylvania 19103 (215) 665-1600 MICHELLE L. BINGAMAN and MARK BINGAMAN, h/w 11525 Harp Hill Road Myerstown, MD 21773 Plaintiffs, v. JUDITH A. JOZEFIAK, M.D. 3 Walnut Street, Suite 100 Lemoyne, PA 17043 and HERITAGE DIAGNOSTIC CENTER 3 Walnut. Street, Suite 100 Lemoyne, PA 17043 and HERITAGE MEDICAL GROUP 3 Walnut Street, Suite 206 Lemoyne, PA 17043 Attorneys for Plaintiff COURT OF COMMON PLEAS DAUPHIN COUNTY NO. CIVIL ACTION LAW JURY TRIAL DEMANDED and a ~ r' , "- TRISTAN ASSOCIATES : ' 4520 Union Deposit Road Harrisburg, PA 17111 i'~~ ~,'Sr ~~ f' i~ ~0 Defendants. _ ~ ;~Y i '~ 4.` P~ CIVIL ACTION COMPLAINT NOTICE YOU HAVE BEEN SUED IN COURT. If you wish to defend against the claims set forth in the following pages, you must take action within twenty (20) days after this Complaint and Notice are served, by entering a written appearance personally or by attorney and filing in writing with the Court your defenses or objections to the claims set forth against you. You are warned that if you fail to do so the case may proceed without you and a judgment may be entered against you by the Court without further notice for any money claimed in the Complaint or for any other claim or relief requested by the Plaintiff. You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW. THIS OFFICE CAN PROVIDE YOU WITH INFORMATION ABOUT HIRING A LAWYER. IF YOU CANNOT AFFORD TO HIRE A LAWYER, THIS OFFICE MAY BE ABLE TO PROVIDE YOU WITH INFORMATION ABOUT AGENCIES THAT MAY OFFER LEGAL SERVICES TO ELIGIBLE PERSONS AT A REDUCED FEE OR NO FEE. DAUPHIN COUNTY LAWYER REFERRAL SERVICE 213 North Front Street Harrisburg, PA 17101 (717)232-7536 2 V r b 7 ~ NOTICE CONCERNING MEDIATION OF ACTIONS PENDING BEFORE THE COURT OF COMMON PLEAS OF DAUPHIN COUNTY The Judges of the Court of Common Pleas of Dauphin County believe that mediation of lawsuits is a very important component of dispute resolution. Virtually all lawsuits can benefit in some manner from mediation. The Court has adopted Dauphin County Local Rule 1001 to encourage the use of mediation. This early alert enables litigants to determine the best time during the life of their lawsuit for a mediation session. The intent of this early alert is to help the parties act upon the requirement to consider good faith mediation at the optimal time. The Dauphin County Bar Association provides mediation services and can be reached at 717- 232-7536. Free mediation sessions for pro bono cases referred by MidPenn Legal Services are available through the DCBA. AVISO LISTED HA SIDO DEMANDADO/A EN CORTE. Si usted desea defenderse de las demandas que se presentan mas adelante en las siguientes paginas, debe tomar accion dentro de los proximos veinte (20) dias despues de la notificacion de esta Demanda y Aviso radicando personalmente o por medio de un abogado una comparecencia escrita y radicando en la Corte por escrito sus defensas de, y objecciones a, las demandas presentadas aqui en contra suya. Se le advierte de que si usted falla de tomar accion como se describe anteriormente, el caso puede proceder sin usted y un fallo por cualquier suma de dinero reclamada en la demanda o cualquier otra reclamacion o remedio solicitado por el demandante puede ser dictado en contra suya por la Corte sin mas aviso adicional. Usted puede perder dinero o propiedad u otros derechos importantes para usted. LISTED DEBE LLEVAR ESTE DOCUMENTO A SU ABOGADO INMEDIATAMENTE. SI LISTED NO TIENE UN ABOGADO, LLAME O VAYA A LA SIGUIENTE OFICINA. ESTA OFICINA PUEDE PROVEERLE INFORMACION A CF,RCA DE COMO CONSEGUIR UN ABOGADO. SI LISTED NO PUEDE PAGAR POR LOS SERVICIOS DE UN ABOGADO, ES POSIBLE QUE ESTA OFICINA LE PUEDA PROVEER INFORMACION SOBRE AGENCIAS QUE OFREZCAN SERVICIOS LEGALES SIN CARGO O BAJO COSTO A PERSONAS QUE CUALIFICAN. DAUPHIN COUNTY LAWYER REFERRAL SERVICE 213 North Front Street Harrisburg, PA 17101 3 (717)232-7536 A~ VISO REFERENCES A LA MEDIACION DE LAS ACCIONES PENDIENTES ANTES LA CORTE DE SOPLICAS COMUNES DEL CONDADO DE DAUPHIN Los jueces de la torte de suplicas comunes del condado de Dauphin Green que la mediation de pleitos es un componente muy importante de la resolution del conflicto. Virtualmente todos Los pleitos pueden beneficiar de cierta manera de la mediation. La code ha adoptado la regla local de condado de Dauphin 1001 pars animar el use de la mediation. Esta alarma temprana permite a litigantes determiner la mejor epoca durante la vida de su pleito para una sesion de la mediation. El intento de esta alarma temprana es actuar sobre la mediation de la Buena fe en el tiempo optimo. La asociacion de la Barra del condado de Dauphin proporciona servicios de la mediation y se puede alcanzar en 717-232-7536. La sesion Libre de la mediation para Los favorables casos del Bono se refinio por MidPenn que Los servicios juridicos estan disponibles con el DCBA. 4 i ~~ GALFAND BERGER, LLP. BY: DEBRA A. JENSEN, ESQUIRE Identification No.: 33598 HEATHER A. HARPER, ESQUIRE Identification No.: 206035 1818 Market Street, Suite 2300 Philadelphia, Pennsylvania 19103 (215)665-1600 - ",,. '. _ t~ ~+ h ,. ~ ~~ t ` s ~ ;?, Attorneys for Plaintiff MICHELLE L. BINGAMAN and COURT OF COMMON PLEAS MARK BINGAMAN, h/w 11525 Harp Hill Road DAUPHIN COUNTY Myerstown, MD 21773 : Plaintiffs, v. NO. JUDITH A. JOZEFIAK, M.D. ~_ C ~ l~~( I _(~ / 3 Walnut Street, Suite 100 : w 1 ~ V Lemoyne, PA 17043 CNIL ACTION LAW and HERITAGE DIAGNOSTIC CENTER 3 Walnut Street, Suite 100 JURY TRIAL DEMANDED Lemoyne, PA 17043 and HERITAGE MEDICAL GROUP 3 Walnut Street, Suite 206 Lemoyne, PA 17043 and - ~. TRISTAN ASSOCIATES 4520 Union Deposit Road Harrisburg, PA 17111 Defendants. CIVIL ACTION COMPLAINT 1. Plaintiffs Michelle L. Bingaman and Mark Bingaman are adult individuals and citizens of the state of Maryland, residing therein at 11525 Harp Hill Road, Myerstown, MD 21773. 2. At all times material hereto, Defendant, Tristan Associates (herein "Tristan"), was a corporation and/or other business entity as well as a medical and health provider and/or healthcare organization duly organized and existing under the laws of the Commonwealth of Pennsylvania, with a offices located at the address set forth above. 3. At all times material hereto, Defendant Tristan acted individually and/or by and through its parent corporations, subsidiaries, successors, agents, apparent agents, servants, contractors, workers and/or employees, including the facilities, doctors, nurses, technicians and/or other healthcare workers identified and/or described herein and/or in its medical records pertaining to Plaintiffs. 4. At all times material hereto, Defendant, Heritage Diagnostic Center (herein "Heritage Diagnostic"), was a corporation and/or other business entity as well as a medical and health provider and/or healthcare organization duly organized and existing under the laws of the Commonwealth of Pennsylvania, with offices located at the address set forth above. 5. At all times material hereto, Defendant Heritage Diagnostic, acted individually and/or by and through its parent corporations, subsidiaries, successors, agents, apparent agents, servants, contractors, workers and/or employees, including the facilities, doctors, nurses, 2 ~~ technicians and/or other healthcare workers identified and/or described herein and/or in its medical records pertaining to Plaintiffs. 6. At all times material hereto, Defendant, Heritage Medical Group (herein "Heritage Medical"), was and is a corporation and/or other business entity as well as a medical and health provider and/or healthcare organization duly organized and existing under the laws of the Commonwealth of Pennsylvania, with offices located at the above stated address. 7. At all times material hereto, Defendant Heritage Medical, acted individually and/or by and through its parent corporations, subsidiaries, successors, agents, apparent agents, servants, contractors, workers and/or employees, including the facilities, doctors, nurses, technicians and/or other healthcare workers identified and/or described herein and/or in its medical records pertaining to Plaintiffs. 8. In the alternative, Heritage Diagnostic was under the control and direction of Heritage Medical, engaged in the business of providing medical, radiological, diagnostic and/or health care to the public with business addresses as set forth above. 9. At all times material hereto, Heritage Diagnostic acted as the actual, apparent and/or ostensible agent of Heritage Medical. 10. Heritage Medical, Heritage Diagnostic and Tristan are each vicariously liable for the acts and/or omissions of the other. 11. Defendants Heritage Diagnostic, Heritage Medical, and Tristan are hereinafter referred to collectively as "Defendant Radiology Practice Group." 3 ,, 12. Defendant Judith A. Jozefiak, M.D. (hereinafter "Jozefiak" or "Defendant Radiologist") is a physician licensed to practice medicine in the Commonwealth of Pennsylvania, with offices located at the address set forth above. 13. At all times material hereto, Defendant Jozefiak held herself out to the public and to the Plaintiffs as a physician specializing in the fields of mammography, ultrasonography, stereotactic breast biopsy, body imaging, and diagnostic radiology. 14. At all times material hereto, Defendant Jozefiak acted individually, and/or as the agent, employee, independent contractor and/or servant of Defendant Radiology Practice Group. 15. At all times material hereto, Defendant Jozefiak, acted individually and/or as the agent, apparent agent, servant, independent contractor, worker, and/or employee of Defendant Radiology Practice Group and was then and there acting within the course and scope of her employment, agency and/or independent contractor status. 16. At all times material hereto, Defendant Radiology Practice Group acted by and through its agents, servants and/or employees, acting upon its business and within the course and scope of their employment, including but not limited to Defendant Jozefiak, as well as other physicians, residents, interns, nurses, aides, technologists, therapists, nutritionists, and consultants whose identities are reflected in the medical records of Plaintiff, which records are within the exclusive control of Defendant Radiology Practice Group and whose identities are readily discernible to Defendant Radiology Practice Group but are not readily discernible to Plaintiffs absent formal discovery. 17. At all times material, Defendant Radiology Practice Group was engaged through its agents, servants, employees, and those staff personnel hereinbefore and hereinafter identified, in rendering professional and medical care to the public, and thereby held itself out to the public 4 generally, and to Plaintiff specifically, as being skilled in the practice of general medicine, mammography, stereotactic breast biopsy, body imaging, and diagnostic radiology, and thereby accepted responsibility of providing appropriate and adequate medical, radiological, and diagnostic care to Plaintiff in accordance with the prevailing standards of medical and hospital practice and pertinent community, state and national standards and codes. 18. On or about September 12, 2007 and thereafter, Plaintiff-Wife employed the Defendant Radiology Practice Group and Defendant Jozefiak for compensation to provide medical, diagnostic, high risk care evaluation, and/or treatment to her and she thereby came under the professional care, attention, control and treatment of Defendant Radiology Group and Defendant Jozefiak. 19. On or about September 12, 2007 Plaintiff-Wife underwent a bilateral mammogram study and breast ultrasound at the offices of Defendant Radiology Practice Group and Defendant Jozefiak. 20. Plaintiff-Wife's September 12, 2007 bilateral mammogram and left breast ultrasound demonstrated abnormalities in the left breast, and afollow-up mammogram was recommended in March 2008. 21. On or about March 10, 2008, Plaintiff-Wife reported to Defendant Radiology Practice Group and underwent the recommended follow-up mammogram and ultrasound of her left breast. 22. Upon information and belief Plaintiff-Wife's mammogram and ultrasound studies were interpreted in the offices of Tristan Associates. 23. Defendant Jozefiak interpreted Plaintiff-Wife's March 10, 2008 mammogram and ultrasound. 5 ! ~ 24. Defendant Jozefiak reported an area of abnormality in Plaintiff-Wife's left breast, described as a benign glandular asymmetry. 25. Defendant Jozefiak did not report or record a possible malignancy in Plaintiff- Wife's left breast. 26. Upon information and belief, as of March 10, 2008, Plaintiff-Wife was suffering from left breast carcinoma. 27. Upon information and belief, as of March 10, 2008, the carcinoma in Plaintiff- Wife's left breast was visible and recognizable in Plaintiff-Wife's mammogram and ultrasound imaging studies and should have been identified, recognized and reported upon by Defendant Jozefiak. 28. Instead, Defendant Jozefiak merely recommended that Plaintiff-Wife undergo a follow-up mammogram in September 2008. 29. Upon information and belief, Defendant Jozefiak failed to interpret Plaintiff- Wife's March 10, 2008 mammogram and ultrasound results accurately, carefully, and within the proper standard of care. 30. Upon information and belief, Defendant Jozefiak should have contacted Plaintiff s treating physician about the aforesaid abnormality and/or referred Plaintiff-Wife to a specialist for appropriate follow-up evaluation including an immediate biopsy and/or further diagnostic testing of the abnormality in Plaintiff-Wife's left breast. 31. On or about September 11, 2008, Plaintiff reported to the office of Defendant Radiology Practice Group in accordance with Defendant Jozefiak's recommendations for a third follow-up mammogram and ultrasound of her left breast, at which time her left breast carcinoma was diagnosed. 6 r 32. Thereafter, Plaintiff-Wife underwent an ultrasound-guided biopsy which revealed a high-grade invasive ductal carcinoma of her left breast. 33. Following the aforesaid diagnosis, Plaintiff-Wife underwent a bone scan and thoracic spine MRI which revealed she had developed metastatic breast cancer. 34. Had Defendants promptly and properly conducted and managed Plaintiff-Wife's care, including but not limited to the interpretation, recording and reporting of the March 10, 2008 mammogram and ultrasound of Plaintiff-Wife's left breast, Plaintiff-Wife's breast cancer could have been detected, treated, contained, and possibly cured. 35. As a direct and proximate result of the joint and several negligence and carelessness of all Defendants as set forth herein, Plaintiff-Wife's left breast cancer went undiagnosed and untreated for a significant period of time during which time it developed to an advanced stage, negating any chance for Plaintiff-Wife's survival, or in the alternative, greatly reducing the length of time that Plaintiff-Wife will survive the cancer. 36. As a direct and proximate result of the hereinafter described individual, joint, several and/or alternative negligence and liability-producing conduct of Defendants, Plaintiff- Wife lost the opportunity to have potential life-saving and/or life-prolonging treatment. 37. As a direct and proximate result of the hereinafter described individual, joint, several and/or alternative negligence and liability-producing conduct of Defendants, Plaintiff- Wife has suffered and may forever continue to suffer from great emotional and/or physical pain, suffering, anxiety, depression, nightmares, flashbacks, embarrassment, and loss of life's pleasures. 38. As a direct and proximate result of the hereinafter described individual, joint, several and/or alternative negligence and liability-producing conduct of Defendants, Plaintiff- 7 y .+ Wife has required medical care, surgery, therapy and treatment, medical modalities, and the like with resulting financial cost and obligations. 39. As a direct and proximate result of the hereinafter described individual, joint, several and/or alternative negligence and liability-producing conduct of Defendants, Plaintiff- Wife will be forced to spend money and incur obligations (including for such items as medical care, surgery, therapy and treatment, medical modalities, home modifications and the like) as a result of her advanced breast cancer, injuries, and damages. 40. As a direct and proximate result of the hereinafter described individual, joint, several and/or alternative negligence and liability-producing conduct of Defendants, Plaintiff- Wife will experience in the future a loss of earnings and/or earning capacity, and will experience an inability to engage in usual and customary hobbies, duties, work and/or responsibilities. 41. As a direct and proximate result of the hereinafter described individual, joint, several and/or alternative negligence and liability-producing conduct of Defendants, Plaintiff- Wife has lost her chance to survive and will eventually succumb to breast cancer, or complications therefrom. COUNT I -NEGLIGENCE PLAINTIFF-WIFE V. DEFENDANT JUDITH A. JOZEFIAK, M.D. 42. Paragraphs 1 through 41 are incorporated herein by reference as though fully set forth. 43. Defendant Jozefiak's negligence and/or carelessness increased Plaintiff-Wife's risk of developing incurable breast cancer, which in fact occurred. 44. The aforesaid injuries and damages were caused by the negligence and carelessness of Defendant Jozefiak, which consisted of the following. a. Failing to diagnose Plaintiff-Wife's medical condition in a timely manner; 8 b. Incorrectly diagnosing Plaintiff-Wife's medical condition; c. Failing to order and/or interpret appropriate examinations and/or testing; d. Improperly recommending six-month follow-up treatment; e. Failing to observe, report and/or diagnose the carcinoma located in Plaintiff- Wife's left breast abnormality; f. Failing to make sure that Plaintiff-Wife would have reasonable follow-up care to determine the exact diagnosis and proper treatment of her illness; g. Failing to obtain a comprehensive past medical history; h. Failing to properly inform Plaintiff-Wife as to possible symptomatology and regularity of appropriate diagnostic testing; i. Failing to properly advise Plaintiff-Wife as to signs, symptoms, and need to return for a differential diagnosis; j. Failing to suggest further testing to evaluate Plaintiff-Wife's left breast abnormalities; k. Failing to properly advise Plaintiff-Wife and/or her treating physician as to the means, method, and manner of securing a differential or further diagnosis, including but not limited to, further diagnostic testing and/or mammographic and/or ultrasonographic testing and/or biopsy and/or evaluation by a specialist; 1. Failing to interpret the results of Plaintiff-Wife's mammogram and ultrasound accurately, carefully, and within the proper standard of care; m. Failing to perform an appropriate physical examination of Plaintiff-Wife's left breast to identify any abnormalities; n. Failing to record, report or reference the presence of an abnormality and/or mass in Plaintiff s left breast; o. Failing to advise Plaintiff-Wife of the fact that she had developed breast cancer; p. Failing to advise Plaintiff-Wife of the fact that she would need treatment for breast cancer; q. Failing to advise Plaintiff-Wife that she was at risk for developing metastatic breast cancer; r. Failing to consult Plaintiff-Wife regarding her diagnosis and treatment options for her breast cancer; 9 E -' s. Failing to advise Plaintiff-Wife to return for immediate surveillance and/or diagnostic testing; t. Failing to timely, properly, and/or adequately become knowledgeable or otherwise aware ofPlaintiff-Wife's clinical medical condition and/or status; u. Failing to timely, properly and/or adequately avail herself of available and pertinent medical writings, publications, information, and/or diagnostic technology; v. Failing to timely, properly and/or adequately recognize, evaluate, classify and/or treat Plaintiff-Wife as at risk for developing complications of left breast cancer plus other sequelae thereof; w. Failing to timely, properly and/or adequately order, request, recommend, perform, report on and/or interpret appropriate examinations, tests evaluations and/or care in light ofPlaintiff-Wife's respective history and/or then current signs, symptoms, and conditions; x. Failing to timely, properly and/or adequately assess Plaintiff-Wife for and/or diagnose Plaintiff-Wife as suffering from and/or being at risk for breast cancer plus other sequelae and/or complications thereof; y. Failing to timely, properly and/or adequately assess, diagnose, interpret, treat, report and/or respond to Plaintiff-Wife's March 10, 2008 mammogram and ultrasound; z. Filing to observe and/or recognize abnormalities in Plaintiff-Wife's breast that would have demonstrated that Plaintiff-Wife was at risk for and/or in the early stages of breast cancer; aa. Failing to timely, properly and/or adequately see, examine, diagnose and/or treat Plaintiff-Wife; bb. Failing to timely, properly and/or adequately prescribe, provide and/or perform a thorough ultrasound and/or mammogram under the circumstances; cc. Failing to timely, properly and/or adequately communicate to other doctors regarding Plaintiff-Wife's history, examinations, test results, signs, symptoms, conditions, diagnoses and/or plans of care; dd. Failing to timely, properly and/or adequately document Plaintiff-Wife's history, examinations, test results, signs, symptoms, conditions, diagnoses and/or plan of care; ee. Failing to timely, properly and/or adequately consult with appropriate physicians regarding Plaintiff-Wife's mammography and/or ultrasound; 10 i ff. Failing to give significance to the findings and/or diagnoses of other physicians involved in Plaintiff-Wife's care and treatment; gg.Improperly ignoring and/or discounting the significance of findings and/or diagnoses of other physicians with regard Plaintiff-Wife's prior mammogram and/or ultrasound and/or symptoms; hh. Failing to timely, properly and/or adequately respond to notification and/or information provided by others regarding Plaintiff-Wife's status, signs, symptoms, and/or conditions; ii. Failing to timely, properly and/or adequately discover the aforenoted careless and negligent conduct and/or to timely diagnose and/or respond to the consequences and significance thereof; jj. Failing to timely, properly and/or adequately exercise that degree of skill, care and treatment, and/or possess that degree of knowledge ordinarily possessed and exercised by other members of her profession and business under the specific circumstances; kk. Failing to timely, properly and/or adequately review and/or document tests, observations, assessments, studies, films and/or examinations to aid in the diagnosis, care and treatment of patients such as Plaintiff-Wife; 11. Failing to timely, properly and/or adequately review and/or document tests, observations, assessments, studies, films and/or examinations and/or the significance of same with respect to Plaintiff-Wife; mm. Failing to immediately order follow up medical treatment, including biopsy, radiology, oncology, and/or a surgical consult upon completion of the mammogram and ultrasound, and other test which demonstrated a change; nn. Failing to timely, properly and/or adequately transfer Plaintiff-Wife to a different medical facility for evaluation, care and/or treatment of her changing medical condition; oo. Increasing the risk of harm to Plaintiff-Wife as a result of the negligence and carelessness set forth in paragraphs (a) - (nn) above. WHEREFORE, Plaintiff demand judgment against Defendant Judith A. Jozefiak, M.D., individually, jointly, severally and/or in the alternative, for damages each in an amount in excess 11 ~ . of Fifty Thousand Dollars ($50,000.00), together with such other costs, interest and relief as this Honorable Court deems just. COUNT II -NEGLIGENCE PLAINTIFF-WIFE v. DEFENDANT HERITAGE DIAGNOSTIC CENTER, HERITAGE MEDICAL GROUP AND TRISTAN ASSOCIATES 45. Paragraphs 1 through 44 are incorporated herein by reference as though fully set forth. 46. The aforesaid injuries and damages were caused by the negligence and carelessness of Defendants Tristan Associates, Heritage Diagnostic Center, and Heritage Medical. Group, individually, jointly, severally and/or in the alternative, which consisted of the following: a. Failing to diagnose Plaintiff-Wife's medical condition in a timely manner; b. Incorrectly diagnosing Plaintiff-Wife's medical condition; c. Failing to order and/or interpret appropriate examinations and/or testing; d. Improperly recommending six-month follow-up treatment; e. Failing to observe, report and/or diagnose the carcinoma located in Plaintiff- Wife's left breast abnormality; f. Failing to make sure that Plaintiff-Wife would have reasonable follow-up care to determine the exact diagnosis and proper treatment of her illness; g. Failing to obtain a comprehensive past medical history; h. Failing to properly inform Plaintiff Wife as to possible symptomatology and regularity of appropriate diagnostic testing; i. Failing to properly advise Plaintiff-Wife as to signs, symptoms, and need to return for a differential diagnosis; j. Failing to suggest further testing to evaluate Plaintiff-Wife's left breast abnormalities; k. Failing to properly advise Plaintiff-Wife and/or her treating physician as to the means, method, and manner of securing a differential or further diagnosis, 12 ~ .. ,. including but not limited to, further diagnostic testing and/or mammographic and/or ultrasonographic testing and/or biopsy and/or evaluation by a specialist; 1. Failing to interpret the results of Plaintiff-Wife's mammogram and ultrasound accurately, carefully, and within the proper standard of care; m. Failing to perform an appropriate physical examination of Plaintiff-Wife's left breast to identify any abnormalities; n. Failing to record, report or reference the presence of an abnormality and/or mass in Plaintiff's left breast; o. Failing to advise Plaintiff-Wife of the fact that she had developed breast cancer; p. Failing to advise Plaintiff-Wife of the fact that she would need treatment for breast cancer; q. Failing to advise Plaintiff-Wife that she was at risk for developing metastatic breast cancer; r. Failing to consult Plaintiff-Wife regarding her diagnosis and treatment options for her breast cancer; s. Failing to advise Plaintiff-Wife to return for immediate surveillance and/or diagnostic testing; t. Failing to timely, properly, and/or adequately become knowledgeable or otherwise aware of Plaintiff-Wife's clinical medical condition and/or status; u. Failing to timely, properly and/or adequately avail herself of available and pertinent medical writings, publications, information, and/or diagnostic technology; v. Failing to timely, properly and/or adequately recognize, evaluate, classify and/or treat Plaintiff-Wife as at risk for developing complications of left breast cancer plus other sequelae thereof; w. Failing to timely, properly and/or adequately order, request, recommend, perform, report on and/or interpret appropriate examinations, tests evaluations and/or care in light ofPlaintiff-Wife's respective history and/or then current signs, symptoms, and conditions; x. Failing to timely, properly and/or adequately assess Plaintiff-Wife for and/or diagnose Plaintiff-Wife as suffering from and/or being at risk for breast cancer plus other sequelae and/or complications thereof; 13 ~ ~` ~ y. Failing to timely, properly and/or adequately assess, diagnose, interpret, treat, report and/or respond to Plaintiff-Wife's March 10, 2008 mammogram and ultrasound; z. Filing to observe and/or recognize abnormalities in Plaintiff-Wife's breast that would have demonstrated that Plaintiff-Wife was at risk for and/or in the early stages of breast cancer; aa. Failing to timely, properly and/or adequately see, examine, diagnose and/or treat Plaintiff-Wife; bb. Failing to timely, properly and/or adequately prescribe, provide and/or perform a thorough ultrasound and/or mammogram under the circumstances; cc. Failing to timely, properly and/or adequately communicate to other doctors regarding Plaintiff-Wife's history, examinations, test results, signs, symptoms, conditions, diagnoses and/or plans of care; dd. Failing to timely, properly and/or adequately document Plaintiff-Wife's history, examinations, test results, signs, symptoms, conditions, diagnoses and/or plan of care; ee. Failing to timely, properly and/or adequately consult with appropriate physicians regarding Plaintiff-Wife's mammography and/or ultrasound; ff. Failing to give significance to the findings and/or diagnoses of other physicians involved in Plaintiff-Wife's care and treatment; gg.Improperly ignoring and/or discounting the significance of findings and/or diagnoses of other physicians with regard Plaintiff-Wife's prior mammogram and/or ultrasound and/or symptoms; hh. Failing to timely, properly and/or adequately respond to notification and/or information provided by others regarding Plaintiff-Wife's status, signs, symptoms, and/or conditions; ii. Failing to timely, properly and/or adequately discover the aforenoted careless and negligent conduct and/or to timely diagnose and/or respond to the consequences and significance thereof; jj. Failing to timely, properly and/or adequately exercise that degree of skill, care and treatment, and/or possess that degree of knowledge ordinarily possessed and exercised by other members of her profession and business under the specific circumstances; 14 ,. .. kk. Failing to timely, properly and/or adequately review and/or document tests, observations, assessments, studies, films and/or examinations to aid in the diagnosis, care and treatment of patients such as Plaintiff-Wife; 11. Failing to timely, properly and/or adequately review and/or document tests, observations, assessments, studies, films and/or examinations and/or the significance of same with respect to Plaintiff-Wife; mm. Failing to immediately order follow up medical treatment, including biopsy, radiology, oncology, and/or a surgical consult upon completion of the mammogram and ultrasound, and other test which demonstrated a change; nn. Failing to timely, properly and/or adequately transfer Plaintiff-Wife to a different medical facility for evaluation, care and/or treatment of her changing medical condition; oo. Increasing the risk of harm to Plaintiff-Wife as a result of the negligence and carelessness set forth in paragraphs (a) - (nn) above. WHEREFORE, Plaintiffs demand judgment against the Defendants Tristan Associates, Heritage Diagnostic Center, and Heritage Medical Group, individually, jointly, severally and/or in the alternative, for damages each in an amount in excess of Fifty Thousand Dollars ($50,000.00), together with such other costs, interest and relief as this Honorable Court deems just. COUNT III -VICARIOUS LIABILITY PLAINTIFF-WIFE v. DEFENDANT HERITAGE DIAGNOSTIC GROUP, HERITAGE MEDICAL GROUP AND TRISTAN ASSOCIATES 47. Plaintiffs incorporate by reference paragraphs 1 through 46, inclusive, as if fully set forth herein at length. 48. Defendants, Tristan Associates, Heritage Diagnostic Center, and Heritage Medical Group, individually, jointly, severally and/or in the alternative, are vicariously liable for the acts and omissions of Defendant Jozefiak and their personnel as described herein, inclusive 15 ~ _ .. , ,. , of the health care providers listed in Defendants' medical records and in that regard Plaintiffs incorporate herein by reference subparagraphs (a) through (oo) of Paragraphs 44 and 46. WHEREFORE, Plaintiffs demand judgment against the Defendants Tristan Associates, Heritage Diagnostic Center, and Heritage Medical Group, individually, jointly, severally and/or in the alternative, for damages each in an amount in excess of Fifty Thousand Dollars ($50,000.00), together with such other costs, interest and relief as this Honorable Court deems just. COUNT IV -LOSS OF CONSORTIUM PLAINTIFF MARK BINGAMAN v. ALL DEFENDANTS 49. Plaintiffs incorporate by reference paragraphs 1 through 48, inclusive, as if fully set forth herein at length. 60. Plaintiffs Mark Bingaman and Michelle L. Bingaman are legally married as husband and Wife. 61. As a direct and proximate result of the individual, joint and several negligence of all Defendants, Plaintiff Mark Bingaman has been deprived of Plaintiff-Wife's services, companionship, consortium, society, assistance and support which have been and will be to his great financial, physical, psychological and emotional detriment and loss. WHEREFORE, Plaintiffs demand judgment against the Defendants Tristan Associates, Heritage Diagnostic Center, Heritage Medical Group, Judith A. Jozefiak, M.D., individually, jointly, severally and/or in the alternative, for damages each in an amount in excess of Fifty Thousand Dollars ($50,000.00), together with such other costs, interest and relief as this 16 \ ~ t ~ V Honorable Court deems just. Respectfully submitted, GALFAND BERGER, L.L.P. \i7,~~ DEBRA A. JENSEN SQUIRE HEATHER A. HARPER, ESQUIRE 1818 Market Street, Suite 2300 Philadelphia, PA 19103 (215) 665-1600 Attorneys for Plaintiff 17 ~ . l' \ ~ 1f VERIFICATION We hereby affirm that the following facts are correct: We are the Plaintiffs in the foregoing action and the attached Complaint is based upon information which we have furnished to our counsel and information which has keen gathered by our counsel in preparation of our lawsuit. The language of the Complaint is that of counsel and not of us. We have read the Complaint and to the extent that the Complaint is based upon information which we have given to our counsel, it is true and correct to the best of our knowledge, information and belief. To the extent that the content of the Complaint is that of counsel, we have relied upon counsel in making this Verification. We hereby acknowledge that the facts set forth in the aforesaid Complaint are made subject to the penalties of 18 Pa.C.S. §4904 relating to unsworn falsification to authorities. DATE: ~'d~~-~q `~~-,~~d.~~~ ~VJ[~~]~,e~~~ MICHELLE BING DATE: $' o? J- Q y BINGAMAN • ., GALFAND BERGER, LLP. BY: DEBRA A. JENSEN, ESQUIRE Identification No.: 33598 HEATHER A. HARPER, ESQUIRE Identification No.: 206035 1818 Market Street, Suite 2300 Philadelphia, Pennsylvania 19103 (215) 665-1600 ;, r~... - ,. ~,. s~ ~.t ,: ~.Q09 ~~P -~ AM ~~ ~ ~Z_ .. ~~ ,; r'. t ~- MICHELLE L. BINGAMAN and MARK BINGAMAN, h/w 11525 Harp Hill Road Myerstown, MD 21773 Plaintiffs, v. JUDITH A. JOZEFIAK, M.D 3 Walnut Street, Suite 100 Lemoyne, PA 17043 and HERITAGE DIAGNOSTIC CENTER 3 Walnut Street, Suite 100 Lemoyne, PA 17043 and HERITAGE MEDICAL GROUP 3 Walnut Street, Suite 206 Lemoyne, PA 17043 and ~V~AGED Attorneys for Plaintiff COURT OF COMMON PLEAS DAUPHIN COUNTY NO. 2009-CV-10461-C V CIVIL ACTION LAW JURY TRIAL DEMANDED TRISTAN ASSOCIATES ~Y „ 4520 Union Deposit Road Harrisburg, PA 17111 Defendants. CERTIFICATE OF MERIT AS TO DEFENDANT TRISTAN ASSOCIATES I, Debra A. Jensen, certify that: ^ an appropriate licensed professional has supplied a written statement to the undersigned that there is a basis to conclude that the care, skill or knowledge exercised or exhibited by this defendant in the treatment, practice or work that is the subject of the Complaint, fell outside acceptable professional standards and that such conduct was a cause in bringing about the harm; OR 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 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 bring about the harm; OR C' expert testimony of an appropriate licensed professional is unnecessary for prosecution of 2 the claim against this defendant. Date ~ ©"! GALFAND BERGER, L.L.P. BY: DEBRA A. JENSEN, ESQU~E 1818 Market Street Suite 2300 Philadelphia, PA 19103 Attorneys for Plaintiff GALFAND BERGER, LLP. BY: DEBRA A. JENSEN, ESQUIRE Identification No.: 33598 HEATHER A. HARPER, ESQUIRE Identification No.: 206035 1818 Market Street, Suite 2300 Philadelphia, Pennsylvania 19103 (215) 665-1600 MICHELLE L. BINGAMAN and MARK BINGAMAN, h/w 11525 Harp Hill Road Myerstown, MD 21773 Plaintiffs, v. JUDITH A. JOZEFIAK, M.D. 3 Walnut Street, Suite 100 Lemoyne, PA 17043 and HERITAGE DIAGNOSTIC CENTER 3 Walnut Street, Suite 100 Lemoyne, PA 17043 and HERITAGE MEDICAL GROUP 3 Walnut Street, Suite 206 Lemoyne, PA 17043 and Attorneys for Plaintiff COURT OF COMMON PLEAS DAUPHIN COUNTY NO. 2009-CV-10461-CV CIVIL ACTION LAW JURY TRIAL DEMANDED TRISTAN ASSOCIATES 4520 Union Deposit Road Harrisburg, PA 17111 Defendants. CERTIFICATE OF SERVICE I, DEBRA A. JENSEN, attorney for the Plaintiffs in the above-captioned matter, hereby certify that on this 3rd Day of September 2009, I have served a true and correct copy the CERTIFICATE OF MERIT in the above Civil Action, by First Class Mail, postage pre-paid upon the following counsel of record: JUDITH A. JOZEFIAK, M.D. 3 Walnut Street, Suite 100 Lemoyne, PA 17043 HERITAGE DIAGNOSTIC CENTER 3 Walnut Street, Suite 100 Lemoyne, PA 17043 HERITAGE MEDICAL GROUP 3 Walnut Street, Suite 206 Lemoyne, PA 17043 TRISTAN ASSOCIATES 4520 Union Deposit Road Harrisburg, PA 17111 GALFAND BERGER, L.L.P. BY: ~l~ua~ DEBRA A. JENSEN, SQUIRE 1818 Market Street Suite 2300 Philadelphia, PA 19103 Attorneys for Plaintiff 2 ~~ wMAGED LW3 ~~~ _ ~ ~C~ ~ ~ ' ZZ GALFAND BERGER, LLP. BY: DEBRA A. JENSEN, ESQUIRE Identification No.: 33598 HEATHER A. HARPER, ESQUIRE Identification No.: 206035 1818 Market Street, Suite 2300 Philadelphia, Pennsylvania 19103 (215) 665-1600 MICHELLE L. BINGAMAN and MARK BINGAMAN, h/w 11525 Harp Hill Road Myerstown, MD 21773 Plaintiffs, v. JUDITH A. JOZEFIAK, M.D. 3 Walnut Street, Suite 100 Lemoyne, PA 17043 and HERITAGE DIAGNOSTIC CENTER 3 Walnut Street, Suite 100 Lemoyne, PA 17043 and HERITAGE MEDICAL GROUP 3 Walnut Street, Suite 206 Lemoyne, PA 17043 and Attorneys for Plaintiff COURT OF COMMON PLEAS DAUPHIN COUNTY NO. 2009-CV-10461-CV CIVIL ACTION LAW JURY TRIAL DEMANDED TRISTAN ASSOCIATES •~ . 4520 Union Deposit Road Harrisburg, PA 17111 Defendants. CERTIFICATE OF MERIT AS TO DEFENDANT HERITAGE MEDICAL GROUP I, Debra A. Jensen, certify that: ^ an appropriate licensed professional has supplied a written statement to the undersigned that there is a basis to conclude that the care, skill or knowledge exercised or exhibited by this defendant in the treatment, practice or work that is the subject of the Complaint, fell outside acceptable professional standards and that such conduct was a cause in bringing about the harm; OR 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 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 bring about the harm; OR ^ expert testimony of an appropriate licensed professional is unnecessary for prosecution of 2 the claim against this defendant. Date Q ?J ~~ GALFAND BERGER, L.L.P. BY: I DEBRA A. JENSEN, QUIRE 1818 Market Street Suite 2300 Philadelphia, PA 19103 Attorneys for Plaintiff GALFAND BERGER, LLP. BY: DEBRA A. JENSEN, ESQUIRE Identification No.: 33598 HEATHER A. HARPER, ESQUIRE Identification No.: 206035 1818 Market Street, Suite 2300 Philadelphia, Pennsylvania 19103 (215) 665-1600 MICHELLE L. BINGAMAN and MARK BINGAMAN, h/w 11525 Harp Hill Road Myerstown, MD 21773 Plaintiffs, v. JUDITH A. JOZEFIAK, M.D 3 Walnut Street, Suite 100 Lemoyne, PA 17043 and HERITAGE DIAGNOSTIC CENTER 3 Walnut Street, Suite 100 Lemoyne, PA 17043 and HERITAGE MEDICAL GROUP 3 Walnut Street, Suite 206 Lemoyne, PA 17043 and Attorneys for Plaintiff COURT OF COMMON PLEAS DAUPHIN COUNTY NO. 2009-CV-10461-C V CIVIL ACTION LAW JURY TRIAL DEMANDED TRISTAN ASSOCIATES 4520 Union Deposit Road Harrisburg, PA 17111 Defendants. CERTIFICATE OF SERVICE I, DEBRA A. JENSEN, attorney for the Plaintiffs in the above-captioned matter, hereby certify that on this 3ra Day of September 2009, I have served a true and correct copy the CERTIFICATE OF MERIT in the above Civil Action, by First Class Mail, postage pre-paid upon the following counsel of record: JUDITH A. JOZEFIAK, M.D. 3 Walnut Street, Suite 100 Lemoyne, PA 17043 HERITAGE DIAGNOSTIC CENTER 3 Walnut Street, Suite 100 Lemoyne, PA 17043 HERITAGE MEDICAL GROUP 3 Walnut Street, Suite 206 Lemoyne, PA 17043 TRISTAN ASSOCIATES 4520 Union Deposit Road Harrisburg, PA 17111 GALFAND BERGER, L.L.P. BY: DEBRA A. JENSEN, E~~-UIRE 1818 Market Street Suite 2300 Philadelphia, PA 19103 Attorneys for Plaintiff 2 .~~ .~, 3,V d ~.~09SEP -~- AMtI~ 21 U `_~~ n ,;w~ GALFAND BERGER, LLP. BY: DEBRA A. JENSEN, ESQUIRE Identification No.: 33598 HEATHER A. HARPER, ESQUIRE Identification No.: 206035 1818 Market Street, Suite 2300 Philadelphia, Pennsylvania 19103 (215) 665-1600 MICHELLE L. BINGAMAN and MARK BINGAMAN, h/w 11525 Harp Hill Road Myerstown, MD 21773 Plaintiffs, v. JUDITH A. JOZEFIAK, M.D 3 Walnut Street, Suite 100 Lemoyne, PA 17043 and HERITAGE DIAGNOSTIC CENTER 3 Walnut Street, Suite 100 Lemoyne, PA 17043 and HERITAGE MEDICAL GROUP 3 Walnut Street, Suite 206 Lemoyne, PA 17043 and Attorneys for Plaintiff COURT OF COMMON PLEAS DAUPHIN COUNTY NO. 2009-CV-10461-CV CIVIL ACTION LAW JURY TRIAL DEMANDED TRISTAN ASSOCIATES . ~. 4520 Union Deposit Road Harrisburg, PA 17111 Defendants. CERTIFICATE OF MERIT AS TO DEFENDANT HERITAGE DIAGNOSTIC CENTER I, Debra A. Jensen, certify that: ^ an appropriate licensed professional has supplied a written statement to the undersigned that there is a basis to conclude that the care, skill or knowledge exercised or exhibited by this defendant in the treatment, practice or work that is the subject of the Complaint, fell outside acceptable professional standards and that such conduct was a cause in bringing about the harm; OR ~J the claim that this defendant deviated from an acceptable professional standard is based solely on allegations that other licensed professionals for whom this defendant is responsible deviated from an acceptable professional standard and an appropriate licensed professional has supplied a written statement to the undersigned that there is a basis to conclude that the care, skill or knowledge exercised or exhibited by the other licensed professionals in the treatment, practice or work that is the subject of the Complaint, fell outside acceptable professional standards and that such conduct was a cause in bring about the harm; OR ^ expert testimony of an appropriate licensed professional is unnecessary for prosecution of 2 the claim against this defendant. Date ~ ~ n GALFAND BERGER, L.L.P. BY: DEBRA A. JENSEN,VESQUIRE 1818 Market Street Suite 2300 Philadelphia, PA 19103 Attorneys for Plaintiff 3 GALFAND BERGER, LLP. BY: DEBRA A. JENSEN, ESQUIRE Identification No.: 33598 HEATHER A. HARPER, ESQUIRE Identification No.: 206035 1818 Market Street, Suite 2300 Philadelphia, Pennsylvania 19103 (215)665-1600 Attorneys for Plaintiff MICHELLE L. BINGAMAN and COURT OF COMMON PLEAS MARK BINGAMAN, h/w 11525 Harp Hill Road DAUPHIN COUNTY Myerstown, MD 21773 Plaintiffs, v. NO. 2009-C V-10461-CV JUDITH A. JOZEFIAK, M.D. 3 Walnut Street, Suite 100 Lemoyne, PA 17043 CIVIL ACTION LAW and HERITAGE DIAGNOSTIC CENTER 3 Walnut Street, Suite 100 JURY TRIAL DEMANDED Lemoyne, PA 17043 and HERITAGE MEDICAL GROUP 3 Walnut Street, Suite 206 Lemoyne, PA 17043 and TRISTAN ASSOCIATES 4520 Union Deposit Road Harrisburg, PA 17111 Defendants. CERTIFICATE OF SERVICE I, DEBRA A. JENSEN, attorney for the Plaintiffs in the above-captioned matter, hereby certify that on this 3rd Day of September 2009, I have served a true and correct copy the CERTIFICATE OF MERIT in the above Civil Action, by First Class Mail, postage pre-paid upon the following counsel of record: JUDITH A. JOZEFIAK, M.D. 3 Walnut Street, Suite 100 Lemoyne, PA 17043 HERITAGE DIAGNOSTIC CENTER 3 Walnut Street, Suite 100 Lemoyne, PA 17043 HERITAGE MEDICAL GROUP 3 Walnut Street, Suite 206 Lemoyne, PA 17043 TRISTAN ASSOCIATES 4520 Union Deposit Road Harrisburg, PA 17111 GALFAND BERGER, L.L.P. BY: DEBRA A. JENSEN, E~UIRE 1818 Market Street Suite 2300 Philadelphia, PA 19103 Attorneys for Plaintiff 2 .. .~~r ' ~ (~ ~S~P -~ AM 11= 2~ NIACED ,~,-,~ ......~ ~~~ r~ GALFAND BERGER, LLP. BY: DEBRA A. JENSEN, ESQUIRE Identification No.: 33598 HEATHER A. HARPER, ESQUIRE Identification No.: 206035 1818 Market Street, Suite 2300 Philadelphia, Pennsylvania 19103 (215) 665-1600 Attorneys for Plaintiff MICHELLE L. BINGAMAN and COURT OF COMMON PLEAS MARK BINGAMAN, h/w 11525 Harp Hill Road DAUPHIN COUNTY Myerstown, MD 21773 Plaintiffs, v. NO. 2009-CV-10461-C V JUDITH A. JOZEFIAK, M.D. 3 Walnut Street, Suite 100 Lemoyne, PA 17043 CIVIL ACTION LAW and HERITAGE DIAGNOSTIC CENTER 3 Walnut Street, Suite 100 JURY TRIAL DEMANDED Lemoyne, PA 17043 and HERITAGE MEDICAL GROUP 3 Walnut Street, Suite 206 Lemoyne, PA 17043 and TRISTAN ASSOCIATES y 420 Uriion Deposit Road Harrisburg, PA 17111 Defendants. CERTIFICATE OF MERIT AS TO DEFENDANT JUDITH A. JOZEFIAK, M.D. I, Debra A. Jensen, certify that: an appropriate licensed professional has supplied a written statement to the undersigned that there is a basis to conclude that the care, skill or knowledge exercised or exhibited by this defendant in the treatment, practice or work that is the subject of the Complaint, fell outside acceptable professional standards and that such conduct was a cause in bringing about the harm; OR ^ 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 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 bring about the harm; OR ^ expert testimony of an appropriate licensed professional is unnecessary for prosecution of 2 the claim against this defendant. Date ~ GALFAND BERGER, L.L.P. BY~ DEBRA A. JENSEN,~ESQUIRE 1818 Market Street Suite 2300 Philadelphia, PA 19103 Attorneys for Plaintiff GALFAND BERGER, LLP. BY: DEBRA A. JENSEN, ESQUIRE Identification No.: 33598 HEATHER A. HARPER, ESQUIRE Identification No.: 206035 1818 Market Street, Suite 2300 Philadelphia, Pennsylvania 19103 (215)665-1600 MICHELLE L. BINGAMAN and MARK BINGAMAN, h/w 11525 Harp Hill Road Myerstown, MD 21773 Plaintiffs, v. JUDITH A. JOZEFIAK, M.D. 3 Walnut Street, Suite 100 Lemoyne, PA 17043 and HERITAGE DIAGNOSTIC CENTER 3 Walnut Street, Suite 100 Lemoyne, PA 17043 and HERITAGE MEDICAL GROUP 3 Walnut Street, Suite 206 Lemoyne, PA 17043 and Attorneys for Plaintiff COURT OF COMMON PLEAS DAUPHIN COUNTY NO. 2009-CV-10461-CV CNIL ACTION LAW JURY TRIAL DEMANDED TRISTAN ASSOCIATES 4520 Union Deposit Road Harrisburg, PA 17111 Defendants. CERTIFICATE OF SERVICE I, DEBRA A. JENSEN, attorney for the Plaintiffs in the above-captioned matter, hereby certify that on this 3ra Day of September 2009, I have served a true and correct copy the CERTIFICATE OF MERIT in the above Civil Action, by First Class Mail, postage pre-paid upon the following counsel of record: JUDITH A. JOZEFIAK, M.D. 3 Walnut Street, Suite 100 Lemoyne, PA 17043 HERITAGE DIAGNOSTIC CENTER 3 Walnut Street, Suite 100 Lemoyne, PA 17043 HERITAGE MEDICAL GROUP 3 Walnut Street, Suite 206 Lemoyne, PA 17043 TRISTAN ASSOCIATES 4520 Union Deposit Road Harrisburg, PA 17111 GALFAND BERGER, L.L.P. BY: I DEBRA A. JENSEN, E QUIRE 1818 Market Street Suite 2300 Philadelphia, PA 19103 Attorneys for Plaintiff 2 ,- , STEVENS & LEE, P.C. Michael D. Pipa, Esquire Attorney I.D. No. 53624 Karen E. Minehan, Esquire Attorney I.D. No. 78050 17 North Second Street, 16th Floor Harrisburg, PA 17101 (717) 255-7376 (610) 371-7743 (fax) mdp@stevenslee.com kem@stevenslee.com Attorneys for Defendants MICHELLE L. BINGAMAN and MARK BINGAMAN h/w, Plaintiffs v. JUDITH A. JOZEFIAK, M.D., HERITAGE DIAGNOSTIC CENTER, HERITAGE MEDICAL GROUP, Defendants IN THE COURT OF COMMON PLEAS OF DAUPHIN COUNTY NO. 2009-CV-10461-CV MEDICAL PROFESSIONAL LIABILITY ACTION CIVIL ACTION LAW 12 MEMBER JURY TRIAL DEMANDED ENTRY OF APPEARANCE TO THE PROTHONOTARY: Please enter the appearance of the undersigned on behalf of Defendants Heritage Medical Group and Heritage Diagnostic Center. Serve all papers at 17 North Second Street, 16th Floor, Harrisburg, Pennsylvania 17101. C SL 1 9473 65v 1 /041199.00416 ti .• Notice by copy hereof is given to all counsel of record. Respectfully submitted STEVENS & LEE, P.C. Date: September 14, 2009 By:-~~____~ - (1 ~ Michael D. Plpa, Esquire Karen E. Minehan, Esquire Attorneys for Defendants, Heritage Medical Group and Heritage Diagnostic Center S L l 9473 65 v 1 /041199.00416 ~~ MICHELLE L. BINGAMAN and MARK BINGAMAN h/w, Plaintiffs v. JUDITH A. JOZEFIAK, M.D., HERITAGE DIAGNOSTIC CENTER, HERITAGE MEDICAL GROUP, Defendants IN THE COURT OF COMMON PLEAS OF DAUPHIN COUNTY N0.2009-CV-10461-CV MEDICAL PROFESSIONAL LIABILITY ACTION CIVIL ACTION LAW JURY TRIAL DEMANDED CERTIFICATE OF SERVICE I, KAREN E. MINEHAN, ESQUIRE, certify that on this date, I served a certified true and correct copy of the foregoing ENTRY OF APPEARANCE upon the following counsel or parties of record, by depositing the same in the United States mail, postage prepaid, addressed as follows: Debra A. Jensen, Esquire Heather A. Harper, Esquire Galfand Berger, LLP 1818 Market Street, Suite 2300 Philadelphia, PA 19103 Judith A. Jozefiak, M.D. 3 Walnut Street, Suite 100 Lemoyne, PA 17043 Tristan Associates 4520 Union Deposit Road Harrisburg, PA 17111 Date: September 14, 2009 Karen E. Minehan, Esquire S L l 9473 65 v 1 /041199.00416 p. .. ~.~ `'~;.. Mary Jane Snyder Real Estate Depu '' V . ?'~~. William T. Tully i i Solicitor Dauphin County Harrisburg, Pennsylvania 17101 ph: (717) 780-6590 fax: (717) 255-2889 Jack Lotwick Sheriff Charles E. Sheaffer Chief Deputy Michael W. Rinehart Assistant Chief Deputy Commonwealth of Pennsylvania MICHELLE & MARK BINGAMAN VS County of Dauphin TRISTAN ASSOCIATES Sheriff s Return No. 2009-CV-10461-CV And now: SEPTEMBER 4, 2009 at 1:53:00 PM served the within COMPLAINT upon HERITAGE MEDICAL GROUP by personally handing to DARLENE FAWBER 1 true attested copy of the original COMPLAINT and making known to him/her the contents thereof at 3 WALNUT ST, SUITE 100 (CUMBERLAND CO) LEMOYNE PA 17043 OFFICE MANAGER 1N CHARGE AT TIME OF SERVICE. Deputy: COUNTY OTHER Plaintiff: MICHELLE & MARK BINGAMAN Sheriff s Costs: $127 8/27/2009 So Answers, ° `.:.T ~ ~ _~ ~~:: 1.~,y :tee o ao i~ ~ ~.:-~ c-~ Vy l/ c :, ,:~ -~ °:o r*1 --i t~ Sheriff of Dauphin County, Pa. ,; - : = ~ ~~~ _ ~ N ~ =+ -G .~ ~ w A ~-,3 „~ Mary Jane Sn~der Real Estate Depu ~• , . ~ f~ William T. Tully Solicitor Dauphin County Harrisburg, Pennsylvania 17101 ph: (717) 780-6590 fax: (717) 255-2889 Jack Lotwick Sheriff Charles E. Sheaffer Chief Deputy Michael W. Rinehart Assistant Chief Deputy Commonwealth of Pennsylvania MICHELLE & MARK BINGAMAN VS County of Dauphin TRISTAN ASSOCIATES Sheriff s Return No. 2009-CV-10461-CV And now: SEPTEMBER 4, 2009 at 1:53:00 PM served the within COMPLAINT upon HERITAGE DIAGNOSTIC CENTER by personally handing to DARLENE FAWBER 1 true attested copy of the original COMPLAINT and making known to him/her the contents thereof at 3 WALNUT ST, SUITE 100 (CUMBERLAND CO) LEMOYNE PA 17043 OFFICE MANAGER IN CHARGE AT TIME OF SERVICE. Deputy: COUNTY OTHER Plaintiff: MICHELLE & MARK BINGAMAN Sheriff s Costs: $127 8/27/2009 So Answers, /~ %~~~ ^,, Sheriff of Dauphin County, Pa. ''=" ti°~o -~ cn ~~ ~ ~~~~ _.. -~' ~ .~ -,C w der Mary Jane Sn ,, . y Real Estate Depu ~ , ~~ '~ William T. Tully Solicitor Dauphin County Harrisburg, Pennsylvania 17101 ph: (717) 780-6590 fax: (717) 255-2889 Jack Lotwick Sheriff Charles E. Sheaffer Chief Deputy Michael W. Rinehart Assistant Chief Deputy Commonwealth of Pennsylvania MICHELLE & MARK BINGAMAN VS County of Dauphin TRISTAN ASSOCIATES Sheriff s Return No. 2009-CV-10461-CV And now: SEPTEMBER 4, 2009 at 1:53:00 PM served the within COMPLAINT upon JUDITH A JOZEFIAK, M.D. by personally handing to DARLENE FAWBER 1 true attested copy of the original COMPLAINT and making known to him/her the contents thereof at 3 WALNUT ST, SUITE 100 (CUMBERLAND CO) LEMOYNE PA 17043 OFFICE MANAGER IN CHARGE AT TIME OF SERVICE. So Answers, /~ i~%"~ ~ r.~ 0 Sheriff of Dauphin County, Pa. ~-=~ o _,~ cn ~-~ ~ .~°rn 1-a~1- ~:;~ ~1 ~ Deputy: COUNTY OTHER ~ ~' `~~~ ,~.`'~ ~ Plaintiff: MICHELLE & MARK BINGAMAN ~ ~ -v Sheriff s Costs: $127 8/27/2009 ~ 3 ~`' ~ ~ ~ rv ~ -[ .~- cv Mary Jane Snyder Real Estate Depu , ~. v ®~ William T. Tully Solicitor Dauphin County Harrisburg, Pennsylvania 17101 ph: (717) 780-6590 fax: (717) 255-2889 Jack Lotwick Sheriff Charles E. Sheaffer Chief Deputy Michael W. Rinehart Assistant Chief Deputy Commonwealth of Pennsylvania MICHELLE & MARK BINGAMAN VS County of Dauphin TRISTAN ASSOCIATES Sheriff s Return No. 2009-CV-10461-CV And now: AUGUST 28, 2009 at 10:55:00 AM served the within COMPLAINT upon TRISTAN ASSOCIATES by personally handing to REBECCA LUCKENBILL 1 true attested copy of the original COMPLAINT and making known to him/her the contents thereof at 4520 UNION DEPOSIT RD HBG PA 17111 RECEPTIONIST IN CHARGE AT TIME OF SERVICE. Deputy: W CONWAY Plaintiff: MICHELLE & MARK BINGAMAN Sheriff s Costs: $127 8/27/2009 So Answers, ~~~ Sheriff of Dauphin County, Pa. ~y ~.~ cn ;..v -~ , r-I . ~ O ~v -~ -o ~~rn = =~ ~ a rn '..-r r ~~ ~ ~-' '~ - 7> o c 'v = v-°nv ~ N ~ -C ,~ W ~a ,, ~ ~ g ~~~ HENRY & BEAVER LLP By: Wiley P. Parker Identification No. 20653 937 Willow Street P.O. Box 1140 Lebanon, PA 17042-1140 (717) 274-3644 MICHELLE L. BINGAMAN and MARK BINGAMAN, h/w, Plaintiffs vs. w ~ ~'?~ ~t'~ ,~, •c co ~ t~ ~~~ j ~~ ~ ~ yy`o ~~.~ ~O ~ 9~' '9 G ~ ,~. r IN THE COURT OF COMMON PLEAS DAUPHIN COUNTY, PENNSYLVANIA CIVIL ACTION -LAW NO. 2009-CV-10461-CV JUDITH A. JOZEFIAK, M.D. HERITAGE DIAGNOSTIC CENTER :JURY TRIAL DEMANDED HERITAGE MEDICAL GROUP and TRISTAN ASSOCIATES, Defendants ENTRY OF APPEARANCE TO: PROTHONOTARY: Please enter the appearance of Wiley P. Parker, Esquire and Amy B. Leonard, Esquire of the law firm of Henry & Beaver LLP, 937 Willow Street, P.O. Box 1140, Lebanon, ~ ~ ~~ ., ~. ,._ \P /, ~~ h~~ ~.~ ~` r .. Pennsylvania 17042-1140, on behalf of Judith A. Jozefiak, M.D. and Tristan Associates the Defendants. Date: September ~, 2009 HENRY & BEA Y~..- Y~ ark s I.D. #20653 937 Willow Street P.O. Box 1140 Lebanon, PA 17042 (717) 274-3644 Attorney for Defendants, Judith Jozefiak, M.D. and Tristan Associates By: Amy B. X onard, E quire ID #93 937 Willow Street P.O. Box 1140 Lebanon, PA 17042 (717) 274-3644 Attorney for Defendants, Judith Jozefiak, M.D. and Tristan Associates 2 ~ ~°3€~~1~~ ~~ MICHELLE L. BINGAMAN and COURT OF COMMO ~ ~~ MARK BINGAMAN, h/w ~ ~ ~ ~~ ~ ~ ~~ ~ ~ ~dJ DAUPHIN COUNTY Plaintiffs, v. NO. 2009-CV-10461-CV JUDITH A. JOZEFIAK, M.D. CIVIL ACTION LAW and HERITAGE DIAGNOSTIC CENTER JURY TRIAL DEMANDED and 0 -~ HERITAGE MEDICAL GROUP . N and r`' TRISTAN ASSOCIATES ~ N _. .. Defendants. .:,~ ORDER AND NOW, this ~ °2 day of 009 upon consideration of the Stipulation to Dismiss Less than all Parties Without Prejudice, it is hereby ORDERED and DECREED Defendants Heritage Medical Group and Heritage Diagnostic Center are dismissed from this action without prejudice. If, however, during the course of litigation it is found Heritage Diagnostic Center and Heritage Medical Group's involvement in Plaintiff Michelle Bingamon's medical care on March 10, 2008 exceeded merely taking Plaintiff s diagnostic images and there i s found to be a reasonable basis for a claim of liability, Heritage Diagnostic Center and Heritage Medical Group waive the statute of limitations and agree that they will not raise the statute of limitations in response to the 3 SL1 955183v1/041199.00416 ' filling of an Amended Complaint, outside the limitations period, rejoining Heritage Medical Group and Heritage Diagnostic Center as aparty-defendants. Distribution Legend: Debra A. Jensen, Esquire Galfand Berger, LLP 1818 l~:arket Street, Suite 2300 Philadelphia, PA 19103 Tel: (215) 665-1600 Fax: (215) 564-2262 djensen(a~galfandber e Attorney for Plaintiffs Michael D. Pipa, Esquire Karen Minehan, Esquire Stevens & Lee 17 North Second Street, 16th Floor P.O. Box 11670 BY THE COURT: -~ • J. Harrisburg, PA 17101 Tel: (717) 234-1090 Fax: (717) 234-1099 mdp(a~ stevenslee.com ke~stevenslee.com Attorneys for Defendants Heritage Medical Group and Heritage Diagnostic Center Wiley Parker, Esquire Henry & Beaver Law Firm 937 Willow Street Lebanon, PA 17042-1140 Tel: (717) 769-1296 Fax: (717) 274-6782 parker ,henrybeaver.com Attorney for Defendants Judith A. Jozefiak, M.D. and Tristan Associates 4 S L 1 955183v 1 /041199.00416 ~^J GALh'AND BERGER, LLP. BY: DEBRA A. JENSEN, ESQUIRE Identification No.: 33598 HEATHER A. HARPER, ESQUIRE Identification No.: 206035 1818 Market Street, Suite 2300 Philadelphia, Pennsylvania 19103 (215) 665-1600 MICHELLE L. BINGAMAN and MARK BINGAMAN, h/w Plaintiffs, v. JUDITH A. JOZEFI.AK, M.D. and HERITAGE DIAGNOSTIC CENTER and : Attorneys for Plaintiffs COURT OF COMMON PLEAS DAUPHIN COUNTY NO. 2009-CV-10461-CV CIVIL ACTION LAW JURY TRIAL DEMANDED • ~~...~ HERITAGE MEDICAL GROUP ~-' ~3 and _ . • , __ __ __ TRISTAN ASSOCIATES : ~ ° ~`' Defendants. ~ c - . ~~ STIPULATION TO DISMISS LESS THAN ALL PARTIES WITHOUT PREJUDICE All parties to this lawsuit, through their duly authorized counsel of record, hereby stipulate and agree to the discotitinuancetyithout prejudice and dismissal of all claims and crossclaims against Heritage Diagnostic Center and Heritage Medical Group and it is further stipulated and agreed that Heritage Diagnostic Center and Heritage Medical Group are hereby dismissed without prejudice as parties to this litigation. S L 1 95 518 3 v 1 /041199.00416 ' If, however, during the course of litigation it is found Heritage Diagnostic Center and Heritage Medical Group's involvement in Plaintiff Michelle Bingamon's medical care on March 10, 2008 exceeded merely taking Plaintiffls diagnostic images and there is found to be a reasonable basis for a claim of liability, Heritage Diagnostic Center and Heritage Medical Group waive the statute of limitations and agree that they will not raise the statute of limitations in response to the filing of an Amended Complaint, outside the limitations period, rejoining Heritage Medical Group and Heritage Diagnostic Center as aparty-defendants. BY THE PARTIES: GALFAND BERGER, LLP . ~fV Debra A. Jensen, quire Attorney for Plaintiffs 1818 Market Street, Suite 2300 Philadelphia, PA 19103 Attorneys for Plaintiffs STEVENS & LEE ichael D. Pipa, Esquire Karen E. Minehan, Esquire 17 North Second Street 16th Floor Harrisburg, PA 17101 Attorneys for Defendants Heritage Diagnostic Center and Heritage Medical Group HENRY & BEAVER Wiley Parker, Esquire 937 Willow Street P.O. Box 1140 Lebanon, PA 17042 Attorney for Defendants Judith A. Jozefiak, M.D. and Tristan Associates 2 SL 1 955183v1/041199.00416 If, however, during the course of litigation it is found Heritage Diagnostic Center and Ieritage Medical Group's involvement in Plaintiff Michelle Bingamon's medical care on March 10, 2008 exceeded merely taking Plalnti~s diagnostic images and there is found to be a reasonable basis for a claim of liability, Heritage Diagnostic Center and Heritage Medical Group waive the statute of limitations and agree that they will not raise the statute of limitations in response to the filing of an Amended Complaint, outside the limitations period, rejoining Heritage Medical Group and Heritage Diagnostic Center as aparty-defendants. BY THE PARTIES: GALFAND BERGER, LLP ~•1t~ifYl Debra A. Jensen, quire Attorney for Plaintiffs 1818 Market Street, Suite 2300 Philadelphia, PA 19103 Attorneys for Plaintiffs STEVENS & LEE Michael D. Pipa, Esquire Karen E. Minehan, Esquire 17 North Second Street 16th Floor Hamsburg, PA 17101 Attorneys for Defendants Heritage Diagnostic Center and Heritage Medical Group HENRY & BEAVER Wiley Parker, squire 937 Willow Str et P.O. Box 1140 Lebanon, PA 17042 Attorney for Defendants Judith A. JGzefiak, M.D. and Tristan Associates 2 SL1955183v1/041199.00416 CERTIFICATE OF SERVICE I, KAREN E. MINEHAN, ESQUIRE, certify that on this date, I served a certified true and correct copy of the foregoing Stipulation and Order upon the following counsel or parties of record, by depositing the same in the United States mail, postage prepaid, addressed as follows: Debra A. Jensen, Esquire Heather A. Harper, Esquire Galfand Berger, LLP 1818 Mazket Street, Suite 2300 Philadelphia, PA 19103 Wiley E. Parker, Esquire Henry & Beaver, LLP P.O. Box 1140 Lebanon, PA 17042-1140 Kazen E. Minehan, Esquire Date: February ~, 2010 ..~,, °~ ~ '~ rr. w ~ .,~ HENRY & BEAVER LLP By: Wiley P. Parker, Esquire Identifcation No. 20653 937 Willow Street P.O. Box 1140 Lebanon, PA 17042-1140 (717) 274-3644 MICHELLE L. BINGAMAN and MARK BINGAMAN, h/w, Plaintiffs vs. JUDITH A. JOZEFIAK, M.D. HERITAGE DIAGNOSTIC CENTER HERITAGE MEDICAL GROUP and TRISTAN ASSOCIATES, Defendants TO: Plaintiffs IMAGED ~ ~' --- o } ~ = ~ -;- ~. ° C~ :~ t,D --~ •• -<: ~ N IN THE COURT OF COMMON PLEAS DAUPHIN COUNTY, PENNSYLVANIA CIVIL ACTION -LAW NO. 2009-CV-10461-CV JURY TRIAL DEMANDED NOTICE TO PLEAD YOU ARE HEREBY NOTIFIED to plead to the New Matter set forth herein, and to defend the action. You have twenty (20) days in which to file a responsive pleading. Failure to respond waives proper defenses or objections. HENRY & BEAVER LLP By: WILEY P. PA ER, ESQUIRE I . D. #20653 937 Willow Street P.O. Box 1140 Lebanon, PA 17042-1140 (717) 274-3644 Attorney for Defendants, Judith A. Jozefiak, M.D. and Tristan Associates ~"=z C~ 4r ~.i-. .~ C' :' s~ »--! -.1` HENRY & BEAVER LLP By: Wiley P. Parker Identification No. 20653 937 Willow Street P.O. Box 1140 Lebanon, PA 17042-1140 (717) 274-3644 MICHELLE L. BINGAMAN and MARK BINGAMAN, h/w, Plaintiffs vs. JUDITH A. JOZEFIAK, M.D. and TRISTAN ASSOCIATES, Defendants IN THE COURT OF COMMON PLEAS DAUPHIN COUNTY, PENNSYLVANIA CIVIL ACTION -LAW NO. 2009-CV-10461-CV JURY TRIAL DEMANDED o _ 0 3 Q `~~} r~r,.« tv..' r y3 ~`. ~• +~ ANSWER AND NEW MATTER OF DEFENDANT JUDITH A. JOZEFIAK M.D. AND TRISTAN ASSOCIATES TO PLAINTIFFS' COMPLAINT 1. After reasonable investigation, Answering Defendants are without sufficient information to form a belief as to the truth of such averment in that the means of proof are solely within the control of an adverse party to the instant litigation, and as such, strict proof thereof is demanded at trial, if relevant. 2. Admitted in part and denied in part. It is admitted that Defendant, Tristan Associates is a corporation organized and existing under the laws of the Commonwealth of Pennsylvania with offices located at the address set forth in Plaintiffs' Complaint. It is denied that said Defendant is a medical and health provider and/or health care organization as under Pennsylvania law only licensed professionals can provide medical or health care. 3. Admitted in part and denied in part. It is admitted that Defendant, Tristan acted through Judith A. Jozefiak, M.D. It is denied that said Answering Defendant acted through anyone other than Dr. Jozefiak in the care alleged in Plaintiffs' Complaint. 4. - 9. These allegations are directed against a Defendant, other than Answering Defendant, and as such, no responsive pleading is required. 10. It is specifically denied that Answering Defendant, Tristan, is vicariously liable for any action or inaction on the part of Heritage Medical and/or Heritage Diagnostic. 11. No responsive pleading required. 12. Admitted. 13. Denied as stated. To the contrary, Defendant, Dr. Jozefiak held herself out to the public as a physician with special interest in the areas of mammography, stereotactic breast biopsy and body imaging. As to whether Plaintiffs were aware of any such information, Answering Defendants are without sufficient information to form a belief as to the truth of such averment in that the means of proof are solely within the control of an adverse party, namely Plaintiffs, and as such, strict proof thereof is demanded at trial, if relevant. 14. Denied as stated. To the contrary, Defendant, Jozefiak acted individually and as the agent, employee and servant of Tristan Associates. 2 15. Denied as stated. To the contrary, Defendant, Jozefiak, was acting individually and as the agent, apparent agent, servant, worker and/or employee of Defendant Tristan and was then and there acting within the course and scope of her employment and agency status. 16. Denied as stated. Answering Defendant, Tristan, acted by and through Dr. Jozefiak, its agent, servant and/or employee acting upon its business and within the course and scope of her employment. Said Answering Defendant acted through no other agent, servant, employee, physician, resident, intern, nurse, aide, technologist, therapist, nutritionist, or consultant. 17. Denied as stated. To the contrary, Answering Defendant, Tristan, acted through its agent, servant and employee, Dr. Jozefiak, who rendered professional and medical care and held herself out to the public as having special interest in the field of mammography, stereotactic breast biopsy and body imaging. It is further admitted that Answering Defendants were required to provide appropriate and adequate radiological and diagnostic care to Plaintiff in accordance with the appropriate standard of care. Answering Defendants are without sufficient information to form a belief as to what Plaintiffs are alleging with regard to state and national standards and codes, and as such strict proof thereof is required, if relevant. 18. Denied as stated. It is admitted that on September 12, 2007 Plaintiff wife underwent mammographic evaluation at Heritage Diagnostic Center and that said mammographic study was evaluated by Stacy Castaldi, D.O., the agent, servant, and/or employee of Defendant, Tristan. It is specifically denied that Defendant, Jozefiak was in any way involved in said diagnostic interaction. 3 19. Denied as stated. It is admitted that on September 12, 2007 Plaintiff wife underwent a bilateral mammogram study and beast ultrasound at the offices of Heritage Diagnostic. It is denied that Defendant, Jozefiak interpreted said studies. 20. Denied as stated. The interpretations of the September 12, 2007 bilateral mammogram and left breast ultrasound are written documents prepared by Stacy Castaldi, D.O. of Answering Defendant, Tristan Associates which, as a written document speaks, in its entirety, for itself. 21. Admitted. 22. Denied as stated. To the contrary Plaintiff wife's mammogram and ultrasound studies were interpreted at Heritage Diagnostic Center at the address set forth in Plaintiffs' Complaint. 23. Admitted. 24. Denied as stated. To the contrary, Defendant, Jozefiak's report of the results of Plaintiff wife's study is a written document, which, in its entirety, speaks for itself. 25. Admitted, however, by way of further response, based her evaluation of the March `08 study in conjunction with the September `07 study, Answering Defendant, Dr. Jozefiak was not of the opinion that a possible malignancy existed in Plaintiff wife's left breast. 26. After reasonable investigation, Answering Defendants are without sufficient information to form a belief as to the truth of such averment, and as such, strict proof thereof is demanded at trial, if relevant. 27. Denied. It is denied that any carcinoma in Plaintiff wife's left breast was visible and recognizable in said March 10, 2008 mammogram and ultrasound imaging 4 studies. It is further denied that any such carcinoma should have been identified, recognized and reported by Answering Defendant under the appropriate standard of care. 28. Denied as stated. To the contrary, the recommendation contained in Answering Defendant's report of said studies as a written document in its entirety speaks for itself. 29. Denied. To the contrary Answering Defendant, Jozefiak's interpretation of Plaintiff wife's March 10, 2008 mammogram and ultrasound was appropriate and within the applicable standard of care. 30. Denied as stated. Based upon Answering Defendant's interpretation of said March 10, 2008 studies the actions taken by her were appropriate and in accordance with the applicable standard of care. 31. Admitted, however by way of clarification, the mammogram and ultrasound performed in September of 2008 were her second follow up studies. 32. After reasonable investigation, Answering Defendant is without sufficient information to form a belief as to the truth of such averment in that the means of proof are solely within the control of other parties to the instant litigation, and as such strict proof thereof is demanded at trial, if relevant. 33. After reasonable investigation, Answering Defendant is without sufficient information to form a belief as to the truth of such averment in that the means of proof are solely within the control of other parties to the instant litigation, and as such strict proof thereof is demanded at trial, if relevant. 5 34. Denied as stated. To the contrary, Answering Defendants believe and therefore aver that the actions taken by Answering Defendants with regard to the March 10, 2008 mammogram and ultrasound were appropriate and in accordance with the standard of care. Byway of further response, Answering Defendants believe and therefore aver that Plaintiffs have suffered no loss, injury or damage by reason of any action or inaction on the part of Answering Defendants. 35. It is specifically denied that Answering Defendants were negligent or careless in any regard, and it is further denied that Plaintiff has suffered any loss, injury or damage by reason of any action or inaction on the part of Answering Defendants. 36. - 41. It is specifically denied that Answering Defendants were negligent or careless in any regard, and it is further denied that Plaintiff has suffered any loss, injury or damage by reason of any action or inaction on the part of Answering Defendants. COUNT I -NEGLIGENCE PLAINTIFF-WIFE v. DEFENDANT JUDITH A. JOZEFIAK M.D. 42. The responses set forth in paragraphs 1 through 41 above are incorporated herein by reference as though fully set forth. 43. It is specifically denied that Answering Defendant, Jozefiak, was negligent or careless in any regard. It is further denied that Plaintiff-Wife has suffered any loss, injury or damage by reason of any action or inaction on the part of Answering Defendant. 44. It is specifically denied that Answering Defendant, Jozefiak, was negligent or careless in any regard and further sub-paragraphs a through oo are denied pursuant to Rule 1029(e) of the Pennsylvania Rules of Civil Procedure. 6 WHEREFORE, Answering Defendant, Judith A. Jozefiak, M.D. demands that Plaintiffs' Complaint be dismissed. COUNT II -NEGLIGENCE PLAINTIFF-WIFE v. DEFENDANTS HERITAGE DIAGNOSTIC CENTER, HERITAGE MEDICAL GROUP AND TRISTAN ASSOCIATES 45. The responses set forth in Paragraphs 1 through 44 above are incorporated herein by reference as though fully set forth. 46. It is specifically denied that Answering Defendant, Tristan Associates was negligent or careless in any regard or that any of its agents, servants or employees were negligent. Additionally sub-paragraphs a through oo are denied pursuant to Rule 1029(e) of the Pennsylvania Rules of Civil Procedure. WHEREFORE, Answering Defendant, Tristan Associates, its agents, servants and/or employees demand that Plaintiffs' Complaint be dismissed. COUNT III -VICARIOUS LIABILITY PLAINTIFF-WIFE v. DEFENDANT HERITAGE DIAGNOSTIC GROUP, HERITAGE MEDICAL GROUP AND TRISTAN ASSOCIATES 47. The responses set forth in paragraphs 1 through 46 above are incorporated herein by reference as though fully set forth. 48. It is specifically denied that Defendant, Tristan Associates, its agents, servants and/or employees are vicariously liable for the acts and omissions of Defendant, Jozefiak in that Defendant, Jozefiak's actions were appropriate and in accordance with the proper standard of care. Byway of further response the sub- paragraphs athrough o0 of paragraphs 44 and 46 are denied in accordance with the provisions of Rule 1029(e) of the Pennsylvania Rules of Civil Procedure. 7 COUNT IV -LOSS OF CONSORTIUM PLAINTIFF MARK BINGAMAN v. ALL DEFENDANTS 49. The responses set forth in paragraphs 1 through 48 above are incorporated herein by reference as though fully set forth. 60. After reasonable investigation, Answering Defendants are without sufficient information to form a belief as to the truth of such averment in that the means of proof are solely within the control of an adverse party, namely Plaintiffs, and as such, strict proof thereof is demanded at trial if relevant. 61. It is specifically denied that Answering Defendants were negligent in any regard. It is further denied that Plaintiff has suffered any loss, injury or damage by reason of any action or inaction on the part of Answering Defendants. WHEREFORE, Answering Defendants demand that Plaintiffs' Complaint be dismissed. NEW MATTER 62. The responses set forth in paragraphs 1 through 61 above are incorporate herein by reference as though fully set forth. 63. Plaintiffs' Complaint fails to state a claim upon which relief can be granted. 64. At all times material hereto Answering Defendants have provided full, complete, proper, reasonable and adequate medical and diagnostic services in accordance with the applicable standard of care. No conduct on the part of Answering Defendants was a substantial faction or factual cause of any harm alleged by Plaintiffs. 65. Plaintiffs may not have properly mitigated damages. 66. Plaintiffs' alleged loss, injury or damage, if any, may be the result of natural or unknown causes and not the result of any action or inaction on the part of Answering Defendants. If Plaintiffs suffered any loss, injury or damage as alleged in the Complaint, the damages may have been caused by the conduct of others whom Answering Defendant had no right, duty or ability to control. 67. Plaintiffs' claims may be barred in whole or in part pursuant to the legal doctrines of res judicata or collateral estoppel, to the extent that the apply to this action. 68. The injuries alleged to have been sustained by Plaintiffs may have been caused byWife-Plaintiffs underlying disease process and not any negligence on the part of Answering Defendants. 69. Plaintiffs' claims are barred by the applicable statute of limitations. 70. Plaintiffs' claims and/or request for damages may be barred or limited pursuant to the provisions of the Health Care Services Malpractice Act of 1975 (40 P.S. §1301 et seq., as amended) 71. Plaintiffs' claims and/or request for damages may be barred in whole or in part or limited by the provisions of the Medical Care Availability and Reduction of Error Act (40 P.S. §1303.101 et seq.) 72. Answering Defendants may be entitled to assert and incorporate herein by reference any and all defenses contained in the Federal Health Care Quality Improvement Act (P.L. 99 - 0660). 73. Answering Defendants may be entitled to assert the defense of two schools of thought. WHEREFORE, Answering Defendants demand that Judgment be entered in their 9 favor and against Plaintiffs and that Plaintiffs' Complaint be dismissed with prejudice. HENRY & BEA By: Wiley P. Pa I.D. #20653 937 Willow Street P.O. Box 1140 Lebanon, PA 17042 (717) 274-3644 Attorney for Defendants, Judith A. Jozefiak, M.D. and Tristan Associates 10 VERIFICATION I verify that the statements made in this Answer and New Matter are true and correct. I understand that false statements herein are made subject to the penalties of 18 Pa. C.S. §4904 relating to unsworn falsification to authorities. . ... ~ `~ J dith A. J zefiaNs~ Mar 10 ZO10 7:35PM Tristan 7179094118 p.2 I verify that the statements made in this Answer and New Matter are true and correct. I understand that false statements herein are made subject to the penalties ~~f 18 Pa. C.S. §4904 relating to unswom falsification to authorities. TRlSTAN ASSOCIATES ~~ r aul DeLola CERTIFICATE OF SERVICE I, Wiley P. Parker, Esquire, of the firm of Henry & Beaver LLP, do hereby certify that I have forwarded a certified true and correct copy of the within Answer and New Matter by regular United States mail, postage prepaid, on March 2 9 , 2010 to the following: Debra A. Jensen, Esquire Heather A. Harper, Esquire GALFAND BERGER, LLP 1818 Market Street, Suite 2300 Philadelphia, PA 19103 ~r Wiley P. Parker, squire `~ lfVIAG~u ~"~ .. ~ ~ ."1. ~` ~.~~ ~{!~ .,,.y ~",: ~' ~ n '~// ~i i4. GALFAND BERGER., LLP. BY: DEBRA A. JENSEN, ESQiJIRE Identification No.: 33598 HEATHER A. HARPER, ESQUIRE Identification No.: 206035 1835 Market Street, Suite 2710 Philadelphia, Pennsylvania 19103 (215) 665-1600 MICHELLE L. BINGAMAN and MARK BINGAMAN, h/w Plaintiffs, v. Attorneys for Plaintiffs COURT OF COMMON PLEAS DAUPHIN COUNTY NO. 2009-CV-10461-CV JUDITH A. JOZEFIAK, M.D. CIVIL ACTION LA.W Defendants. PLAINTIFFS' REPLY TO DEFENDANT'S NEW MATTER 62. Paragraphs 1 through 61 of Plaintiffs' Complaint are incorporated herein by reference as though fully set forth at length. 63. Denied. The averments of paragraph 63 are conclusions of law to which no response is required. Byway of further Answer, if the averments of paragraph 63 are deemed to be factual averments, each and every averment is specifically denied. 64. Denied. The averments of paragraph 64 are conclusions of law to which no response is required. By way of further Answer, if the averments of paragraph 64 are deemed to be factual averments, each and every averment is specifically denied. 65. Denied. The averments of paragraph 65 are conclusions of law to which no response ,~ is required. Byway of further Answer, if the averments of paragraph 65 are deemed to be factual averments, each and every averment is specifically denied. 66. Denied. The averments of paragraph 66 are conclusions of law to which no response is required. By way of further Answer, if the averments of paragraph 66 are deemed to be factual averments, each and every averment is specifically denied. 67. Denied. The averments of paragraph 67 are conclusions of law to which no response is required. By way of further Answer, if the averments of paragraph 67 are deemed to be factual averments, each and every averment is specifically denied. 68. Denied. The averments of paragraph. 68 are conclusions of law to which no response is required. By way of further Answer, if the averments of paragraph 68 are deemed to be factual averments, each and every averment is specifically denied. 69. Denied. The averments of paragraph 69 are conclusions of law to which no response is required. Byway of further Answer, if the averments of paragraph 69 are deemed to be factual averments, each and every averment is specifically denied. 70. Denied. The averments of paragraph 7U are conclusions of law to which no response is required. Byway of further Answer, if the averments of paragraph 70 are deemed to be factual averments, each and every averment is specifically denied. 71. Denied. The averments of paragraph 71 are conclusions of law to which no response is required. Byway of further Answer, if the averments of paragraph 71 are deemed to be factual averments, each and every averment is specifically denied. 2 72. Denied. The averments of paragraph 72 are conclusions of law to which no response is required. By way of further Answer, if the averments of paragraph 72 are deemed to be factual averments, each and every averment is specifically denied. 73. Denied. The averments of paragraph 73 are conclusions of law to which no response is required. By way of further Answer, if the averments of paragraph 73 are deemed to be factual averments, each and every averment is specifically denied. Respectfully submitted, GALFA~TD BERGER, L.L.P. BY: DEBRA A. JENSEN"ESQUIRE 1835 Market Street Suite 2710 Philadelphia, PA 19103 Attorneys for Plaintiff 3 " '~ VERIFICATION Debra A. Jensen, Esquire verifies and says as follows: 1. I am the attorney for the within-named Plaintiff. 2. The facts set forth in the foregoing Answer to New Matter are true to the best of my knowledge, information and belief. 3. I am aware and hereby certify that this Verification is made subject to the penalties of 18 Pa.C.S.A. §4904 relating to unsworn falsification to authorities. DEBRA A. JENSEN, SQUIRE Dated: `7 ` ~ - ~ CERTIFICATE OF SERVICE I, DEBRA A. JENSEN, attorney for the Plaintiffs in the above-captioned matter, hereby certify that on this 6`i' Day of Apri12010, I have served a true and correct copy Plaintiffs' Response to New Matter in the above Civil Action, by First Class Mail, postage pre-paid upon the following counsel of record: Wiley P. Parker, Esquire Henry & Beaver, LLP 937 Willow Street P.O. Box 1140 Lebanon, PA 19042-1140 GALFAND BERGER, L.L.P. DEBRA A. DENSE SQUIRE Attorneys for Plaintiff r . ., HENRY & BEAVER LLP By: Wiley P. Parker Identification No. 20653 937 Willow Street P.O. Box 1140 Lebanon, PA 17042-1140 (717) 274-3644 MICHELLE L. BINGAMAN and MARK BINGAMAN, h/w, Plaintiffs vs. o ~_ ~~ ~. ~ o ~~ co o nm Z c-~ a rn 2'C 3 OO1rn z r ~~~ ~ ~ -< IN THE COURT OF COMMON PLEAS DAUPHIN COUNTY, PENNSYLVANIA CIVIL ACTION -LAW NO. 2009-CV-10461-CV JUDITH A. JOZEFIAK, M.D. : HERITAGE DIAGNOSTIC CENTER :JURY TRIAL DEMANDED HERITAGE MEDICAL GROUP and TRISTAN ASSOCIATES, Defendants PETITION OF DEFENDANTS, JUDITH A. JOZEFIAK M D AND TRISTAN ASSOCIATES FOR A CHANGE OF VENUE TO: THE HONORABLE JUDGES OF SAID COURT: AND NOW come Defendants, Judith A. Jozefiak, M.D. and Tristan Associates by their counsel, Wiley P. Parker, Esquire and respectfully represent as follows: 1. The above captioned matter is a medical professional liability action as that term is utilized in Rule 1006(a)(2)(a.1)flled in this Court on August 27, 2009. 2. The care giving rise to Plaintiffs' Complaint occurred at the Heritage Diagnostic Center located in Lemoyne, Cumberland County, Pennsylvania. 3. Counsel for all parties to the instant matter have conferred and are in agreement, based upon the representation of the location of the care set forth above, that the proper venue for this action is Cumberland County, Pennsylvania not Dauphin County, Pennsylvania pursuant to Rule 1006(a)(2)(a.1), Pa. R.C.P.. 4. Rule 1006, Pa.R.C.P. establishes Preliminary Objections as the proper way to raise the issue of improper venue, however, all parties are in agreement that Preliminary Objections are not necessary based upon the parties' agreement. 5. Rule 1006 establishes a Petition as the proper means to apply to the Court for a change of venue and said Rule is hereby recited for purposes of compliance with Rule 206.1 (a) of the Dauphin County Rules. of Civil Procedure: 6. All parties are in agreement that the Prothonotary of Dauphin County should take the action required by Rule 1006(d)(3) namely forwarding to Cumberland County certified copies of the docket entries, pleadings and other papers filed in the action. 7. Counsel for Plaintiff, Debra Jensen, Esquire, reserves the right to petition the appropriate Court to return venue to Dauphin County in the event that it is learned through discovery or otherwise that Dauphin County is the county of appropriate venue pursuant to Rule 1006 (a)(2) (a.1), Pa. R.C.P. WHEREFORE, the undersigned, on behalf of Defendants, Judith A. Jozefiak, M.D. and Tristan Associates, requests your Honorable Court enter an Order transferring venue of the instant matter to The Court of Common Pleas of Cumberland County and 2 directing the Prothonotary to comply with the requirements of Rule 1006(d)(3), Pa. R.C.P.. Respectfully submitted, HENRY & E LL B. Wiley P. Parker, Esquire I.D. #20653 937 Willow Street P.O. Box 1140 Lebanon, PA 17042 (717) 274-3644 Attorney for Defendants, Judith A. Jozefiak, M.D. and Tristan Associates 3 CERTIFICATE OF SERVICE I, Wiley P. Parker, Esquire, of the firm of Henry & Beaver LLP, do hereby certify that I have forwarded a certified true and correct copy of the within Petition for Change of Venue by regular United States mail, postage prepaid, on Ap a i 1 7 , 2010 to the following: Debra A. Jensen, Esquire Heather A. Harper, Esquire GALFAND BERGER, LLP 1818 Market Street, Suite 2300 Philadelphia, PA 19103 r ~~ MARK BINGAMAN, h/w, Plaintiffs vs. !0 -3338 evil (gym DAUPHIN COUNTY, PENNSYLVANIA CIVIL ACTION -LAW NO. 2009-CV-10461-CV JUDITH A. JOZEFIAK, M.D. HERITAGE DIAGNOSTIC CENTER :JURY TRIAL DEMANDED HERITAGE MEDICAL GROUP and TRISTAN ASSOCIATES, Defendants ORDER OF COURT c `:_ r~,r-. .,ter j ~..~: ~~~° f. ~; ~_ _: ~;;:c1 cx~ ..~ AND NOW, this~~day of April, 2010 upon consideration of the within Petition and concurrence of all parties venue in the above captioned matter is hereby transferred to The Court of Common Pleas of Cumberland County. The Prothonotary of Dauphin County is hereby directed to forward to the Prothonotary of Cumberland County certified copies of the docket entries, process, pleadings and other papers filed in the action pursuant to Rule 1006(d)(3) Pa.R.C.P.. Costs and fees of the Petition for ~: _~ ..._, ~;; ~ ? • 1~ F"C1 ,. ~ r °~ Transfer and removal of the record shall be paid by Petitioner to be taxable as costs in the case. ~9a1,op PD ~ D~raA By The Court, Jen-~"~~ ~~ !o'f151 ~~ ~~ ~7 /s ~ J . <t o--~ cc: Debra A. Jensen, Esquire, Galfand Berger, LLP, 1818 Market Street Suite 2300, Philadelphia, PA 19103 Wiley P. Parker, Esquire, Henry & Beaver, LLP, P.O. Box 1140 APR `~ ~. ~ ~~~ Lebanon, PA 17042 ----~ - ~. °°~°-° a herebS~ t;;r :. ~, .~~~~roq is ~ Yr~+c srt,~ { ~ ` g~~ origins! filed. ;.. ,~ ..\~ ~~ GALFAND BERGER, LLP. BY DEBRA A. JENSEN, ESQUIRE Identification No.: 33598 1835 Market Street, Suite 2710 Philadelphia, Pennsylvania 19103 (215) 665-1600 MICHELLE L. BINGAMAN and MARK BINGAMAN, h/w Plaintiffs, V. JUDITH A. JOZEFIAK, M.D. and TRISTAN ASSOCIATES Defendants. Attorney for Plaintiffs c? c-? C= m rn rn r- aa C) Cn COURT OF COMMON CAS t© z? r?-ro CUMBERLAND COUNVE5 V µ NO. 10-3338 CIVIL ACTION LAW PETITION TO WITHDRAW AS COUNSEL AND NOW, comes Plaintiffs' counsel, Galfand Berger, LLP, Debra A. Jensen, Esquire, and files the instant Petition to Withdraw as Counsel for Plaintiffs, Michelle L. Bingaman and Mark Bingaman, h/w, and in support thereof avers as follows: The present case is a personal injury action arising out of injuries sustained by Plaintiff, Michelle L. Bingaman in September 2007. In the within action, a medical malpractice case, Plaintiffs allege that Defendants deviated from professional standards by causing a delay in the diagnosis of Plaintiff, Michelle Bingaman's breast cancer with resulting harm to Plaintiffs. 2. Rule 1012 of the Pennsylvania Rules of Civil Procedure states that Leave of Court is required where an attorney seeks to withdraw as counsel for a party for whom another attorney has not entered an appearance on behalf of the party. Pa.R.C.P. 1012(b)(2). Leave of court to withdraw an appearance shall be sought by petition. Pa. R. C. P. 1012(c). 3. Additionally, Rule 1.16 of the Pennsylvania Rules of Professional Conduct provides that an attorney may withdraw from representing a client if the representation has been rendered unreasonably difficult by the client or other good cause for withdrawal exists. Pa. R.P.C. 1.16(b)(6) and R.P.C. 1.16(b)(7). 4. Other good cause exists which justifies Petitioner's withdrawal pursuant to R.P.C_ 1.16(b)(6) and R.P.C. 1.16(b)(7). 5. Counsel seeks Court approval to withdraw as counsel for Plaintiffs and asks that this Court Stay the proceedings for ninety (90) days to allow Plaintiffs to seek other counsel. 6. Plaintiffs will not be prejudiced by counsel's withdrawal as this Petition is seeking to Stay this matter for ninety (90) days to permit Plaintiffs to retain another attorney. Accordingly, Petitioner's withdrawal will have no material adverse effect upon Plaintiffs. WHEREFORE, Plaintiffs counsel respectfully requests that this Honorable Court grant Leave to Withdraw from representation of Plaintiffs, Michelle L. Bingaman and Mark Bingaman in the instant action pursuant to Rule 1012 of the Pennsylvania Rules of Civil Procedure and requests a ninety (90) day stay of proceedings to allow Plaintiff to seek other counsel. Respectfully submitted, GALFAND BERGER, LLP BY: I `? (1t DEBRA A. DENSE , ESQUIRE Attorney for Plaintiffs 2 GALFAND BERGER, LLP. BY: DEBRA A. JENSEN, ESQUIRE Identification No.: 33598 1835 Market Street, Suite 2710 Philadelphia, Pennsylvania 19103 (215) 665-1600 MICHELLE L. BINGAMAN and MARK BINGAMAN, h/w Plaintiffs, V. JUDITH A. J6ZEFIAK, M.D. and TRISTAN ASSOCIATES Defendants. Attorney for Plaintiffs COURT OF COMMON P&AJ9 c?a CUMBERLAND COUI rn ?r ? tP may, _ NO. 10-3338 C o-n xc:) CIVIL ACTION LAW 5c: -a-iM -c C r CERTIFICATE OF SERVICE I, DEBRA A. JENSEN, attorney for the Plaintiffs in the above-captioned matter, hereby certify that on this 16`h Day of February 2011, I have served a true and correct copy of the within Petition to Withdraw as Counsel in the above Civil Action, by First Class Mail, postage pre-paid upon the following: Wiley P. Parker, Esquire Henry & Beaver, LLP 937 Willow Street P.O. Box 1140 Lebanon, PA 19042-1140 Mark and Michelle L. Bingaman 11525 Harp Hill Road Myerstown, MD 21773 GALFAND BERGER, L.L.P. BY: (-1?4 a a , V? DEBRA A. JENSEN, SQUIRE Attorneys for Plaintiff MICHELLE L. BINGAMAN and MARK BINGAMAN, h/w PLAINTIFFS V. JUDITH A. JOZEFIAK, M.D. and TRISTAN ASSOCIATES, DEFENDANTS IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA : 10-3338 CIVIL TERM ORDER OF COURT 4,%Al AND NOW, this ?`- day of February, 2011, a Rule is issued on plaintiffs, Michelle L. Bingaman and Mark Bingaman, and defendants, Judith A. Jozefiak, M.D. and Tristan Associates, to show cause why the plaintiffs' counsel, Debra A. Jensen, Esquire, should not be permitted to withdraw. Rule returnable twenty-one (21) days from the date of this order. Any answers filed shall be forwarded by the Prothonotary to chambers. By the Court, C'?Albertt H. Masland, J. ? Mark and Michelle Bingaman 11525 Harp Hill Road Myerstown, MD 21773 Debra A. Jenson, Esquire v Wiley P. Parker, Esquire PO Box 1140 937 Willow Street , Lebanon, PA 19042-1140 led aJa,3111 i'S GALFAND BERGER, LLP. BY: DEBRA A. JENSEN, ESQL Identification No.: 33598 1835 Market Street, Suite 2710 Philadelphia, Pennsylvania 1910: (215) 665-1600 MICHELLE L. BINGAMAI MARK BINGAMAN, h/w Plaintiffs, Attorney for Plaintiffs COURT OF COMMON PLEAS CUMBERLAND COUNTY v- NO. 10-3338 JUDITH A. JOZEFIAK M.D. ar id CIVIL ACTION LAW -:? , TRISTAN ASSOCIATES r Defendant } '° {•.? = (J , PETITIO N TO MAKE THE RULE ABSOLUTE 2:c:) ?5 o AND NOW, comes Plain ;X4 tiffs' counsel, Debra A. Jensen, Esquire and Galfand Bergdi LLP and files the instant Petiti n to Make the Rule Absolute and in support thereof avers as follows: 1. On February 18, 011, Plaintiffs' Counsel filed a Petition for Leave to Withdraw as Counsel for Plaintiffs, Mich le L. Bingaman and Mark Bingaman, h/w and requested the matter be stayed for ninety (90) (A true and correct copy of said 2. On February Returnable on Plaintiffs, Jozefiak, M.D. and Tristan permitted to withdraw. Said R Order. (A true and correct cop: herein by reference as Exhibit "l so that Plaintiffs could obtain other counsel if so desired. ition is attached hereto and marked Exhibit "A") 2011, the Honorable Albert H. Masland issued a Rule L. Bingaman and Mark Bingaman and Defendants, Judith A. to show cause why Plaintiffs' counsel should not be was Returnable within twenty-one (21) days of the Court's of the Order/Rule to Show Cause is attached and incorporated 3. On or about Petition requesting that the 2, 2011 counsel for Defendants filed a response to said be stayed for sixty (60) days. (A true and correct copy of Defendants' response is attached?hereto and marked Exhibit "C"). 4. More than twenty (21) days have passed since service of Judge Masland's Rule Returnable, and Plaintiffs, Mic lle L. Bingaman and Mark Bingaman have not shown cause why the Petition for Leave to Wi hdraw as Counsel should not be granted. WHEREFORE, Plaintiff ' counsel respectfully requests that this Honorable Court make the rule absolute and grant Plaintiffs' counsel's Petition to withdraw from representation of the Plaintiffs in the instant action pursuant to Rule 1012 of the Pennsylvania Rules of Civil Procedure and requests a counsel. (90) day stay of proceedings to allow Plaintiffs to seek other Respectfully submitted, GALFAND BERGER, LLP BY: I )MM JENSEN, ESQUI Attorney for Plaintiffs 2 I .? I -Ir GALFAND BERGER, LLP. BY: DEBRA A. JENSEN, ESQU Identification No.: 33598 1835 Market Street, Suite 2710 Philadelphia, Pennsylvania 19103 (215) 665-1600 MICHELLE L. BINGAMAN MARK BINGAMAN, h/w Plaintiffs, V. JUDITH A. JOZEFIAK, M.D. an TRISTAN ASSOCIATES Defendants ETITI AND NOW, comes Plai r iLED-Of= 'ICE Att "e?,Ljgrj?AXi1" 0 TAR Y RE 2011 FEB 1$ AM 11: 31 ("UMBERLAND COUNTY PENNSYLVANIA COURT OF COMMON PLEAS CUMBERLAND COUNTY NO. 10-3338 CIVIL ACTION LAW W ' counsel, Galfand Berger, LLP, Debra A. Jensen, Esquire, and files the instant Petition to VYithdraw as Counsel for Plaintiffs, Michelle L. Bingaman and Mark Bingaman, h/w, and in support thereof avers as follows: 1. The present case if a personal injury action arising out of injuries sustained by Plaintiff, Michelle L. Bingaman 14 September 2007. In the within action, a medical malpractice case, Plaintiffs allege that Defendants deviated fi-om professional standards by causing a delay in the diagnosis of Plaintiff, Michell Bingaman's breast cancer with resulting harm to Plaintiffs. 2. Rule 1012 of the (Pennsylvania Rules of Civil Procedure states that Leave of Court is required where an attorney seeks to withdraw as counsel for a party for whom another attorney has not entered an appearance on behalf of the party. Pa.R.C.P. 1012(b)(2). Leave of court to withdraw an appearance s?all be sought by petition. Pa.R.C.P. 1012(c). 3. Additionally, Rulel 1.16 of the Pennsylvania Rules of Professional Conduct provides that an attorney may withdraw from representing a client if the representation has been rendered unreasonably difficult by the client or other good cause for withdrawal exists. Pa. R.P.C l .16(b)(6) and R.P.C. 1.1 b)(7). 4. Other good caul exists which justifies Petitioner's withdrawal pursuant to RP-C. 1.16(b)(6) and R.P.C. 1.16 b)(7). 5. Counsel seeks Co rt approval to withdraw as counsel for Plaintiffs and asks that this Court Stay the proceedings f ninety (90) days to allow Plaintiffs to seek other counsel. 6. Plaintiffs will not be prejudiced by counsel's withdrawal as this Petition is seeking to Stay this matter for n nety (90) days to permit Plaintiffs to retain another attorney. Accordingly, Petitioner's withdrawal will have no material adverse effect upon Plaintiffs. WHEREFORE, Plaintiffs counsel respectfully requests that this Honorable Court grant Leave to Withdraw from represen ation of Plaintiffs, Michelle L. Bingaman and Mark Bingaman in the instant action pursuant to ule 1012 of the Pennsylvania Rules of Civil Procedure and requests a ninety (90) day stay of roceedings to allow Plaintiff to seek other counsel. Respectfully submitted, GALFAND BERGER, LLP BY: I;?Q a DEBRA A. JENSE , ESQUIRE Attorney for Plaintiffs 2 GALFAND BERGER, LLP. BY DEBRA A. JENSEN, ESQU Identification No.: 33598 1835 Market Street, Suite 2710 Philadelphia, Pennsylvania 19103 (215) 665-1600 MICHELLE L. BINGAMAN and MARK BINGAMAN, h/w Attorney for Plaintiffs COURT OF COMMON PLEAS CUMBERLAND COUNTY Plaintiffs, V. JUDITH A. JOZEFIAK, M.D. an TRISTAN ASSOCIATES Defendants NO. 10-3338 CIVIL ACTION LAW MEMORANDUM F LAW IN SUPPORT OF PETITION TO W THDRAW AS COUNSEL 1. MATTER BEFORE T COURT Good cause exists which justifies Petitioner's withdrawal pursuant to R.P.C. 1.16(b)(6) and R.P.C. 1.16(b)(7). As such, etitioner files the within Petition and Memorandum of Law to withdraw as counsel for Plaintiffs in the instant matter. II. FACTUAL HISTORY This is a medical malprac ice action arising out of a delay in diagnosis of breast cancer. In the within matter, Plaintiffs allege that Defendants deviated from professional standards and caused Plaintiff to suffer damagesias a result thereof. Under Rule 1.16 of the Pa R.C.P., an attorney may withdraw as counsel if good cause for withdrawal exists. In the insta t matter, such good cause exists. Accordingly, Petitioner respectfully requests leave of courf to withdraw their appearance. A III. LEGAL ARGUMENT Rule 1012 of the Pennsyl required where an attorney seeks Rules of Civil Procedure states that Leave of Court is to withdraw as counsel for a party for whom another attorney has not entered an appearance or? behalf of the party. Pa.R.C.P. 1012(b)(2). Leave of Court to withdraw an appearance shall be ought by petition. Pa. R.C.P. 1012(c). Rule 1.16 of the Pennsylvania Rules of Professional Conduct provides that an attorney may withdraw from representinj a client if good cause for withdrawal exists. Pa. R.P.C. 1.16(b)(7). Petitioner has good c?use to request Leave from the Court to withdraw as counsel in the instant matter. See e.g., 17834, *4 (D. Pa. 1999). 1999 U.S. Dist. LEXIS Accordingly, Plaintiffs' counsel seeks Leave of this Honorable Court to withdraw as counsel for Plaintiffs. Further, Petitioner respectfully requests a ninety-day stay of proceedings to allow the Plaintiffs to obtain other counsel, which stay will ensure that this withdrawal imposes no material adverse effect upon Plaintiffs. IV. RELIEF REQUESTED Petitioner respectfully requests that this Honorable Court grant the within Petition to Withdraw as Counsel and Stay th? proceedings for ninety (90) days to allow the Plaintiff to obtain another counsel. Respectfully submitted, GALFAND BERGER, LLP BY: DEBRA A. JENSEN, E QUIRE Attorney for Plaintiff 2 GALFAND BERGER, LLP. BY: DEBRA A. JENSEN, ESQL Identification No.: 33598 1835 Market Street, Suite 2710 Philadelphia, Pennsylvania 1910? (215) 665-1600 MICHELLE L. BINGAMAN MARK BINGAMAN, h/w Plaintiffs, V. JUDITH A. JOZEFIAK, M.D. a TRISTAN ASSOCIATES Defendan Attorney for Plaintiffs COURT OF COMMON PLEAS CUMBERLAND COUNTY NO. 10-3338 CIVIL ACTION LAW OF SER I, DEBRA A. JENSEI , attorney for the Plaintiffs in the above-captioned matter, hereby certify that or? this 16th Day of February 2011, I have served a true and correct copy of the within Petition to Withdraw as Counsel in the above Civil Action, by First Class Mail, Oostage pre-paid upon the following: Wiley P. Parker, Esquire Henry & Beaver, LLP 937 Willow Street P.O. Box 1140 Lebanon, PA 19042-1 140 k and Michelle L. Bingaman 11525 Harp Hill Road Myerstown, MD 21773 GALFAND BERGER, L.L.P. BY: I\?V ?A a , ?Vc??? DEBRA A. JENSEN, SQUIRE Attorneys for Plaintiff MICHELLE L. BINGAMAN MARK BINGAMAN, h/w PLAINTIFFS V. JUDITH A. JOZEFIAK, M.D. TRISTAN ASSOCIATES, DEFENDANTS AND NOW, this plaintiffs, Michelle L. Bing Jozefiak, M.D. and Tristan A. Jensen, Esquire, should (21) days from the date of Prothonotary to chambers. nd IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA and 10-3338 CIVIL TERM ORDER OF COURT day of February, 2011, a Rule is issued on and Mark Bingaman, and defendants, Judith A. ates, to show cause why the plaintiffs' counsel, Debra be permitted to withdraw. Rule returnable twenty-one order. Any answers filed shall be forwarded by the By the Court, •e'• aY?A? /. Albert H. Masland, J. Mark and Michelle Bingamar 11525 Harp Hill Road Myerstown, MD 21773 Debra A. Jenson, Esquire Wiley P. Parker, Esquire 937 Willow Street, PO Box 1 Lebanon, PA 19042-1140 140 saa ?X???? ?. COPY HENRY & BEAVER LLP By: Wiley P. Parker Identification No. 20653 937 Willow Street P.O. Box 1140 Lebanon, PA 17042-1140 (717) 274-3644 MICHELLE L. BINGAMAN an( MARK BINGAMAN, h/w, Plaintiffs vs. JUDITH A. JOZEFIAK, M.D. TRISTAN ASSOCIATES, Defend, IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 10-3338 JURY TRIAL DEMANDED ORDER OF COURT AND NOW, this day of , 2011, upon consideration of Plaintiffs' counsel's Petition to ithdraw as Counsel and Defendants' response thereto, it is ORDERED and DECREE that said Petition is GRANTED and that Plaintiffs' counsel, Galfand Berger, LLP, and Debra A. Jensen, Esquire, shall be permitted to withdraw their appearance as counsel for Plaintiffs Michelle L. Bingaman and Mark Bingaman, husband and wife. Plaintiffs are hereby directed to obtain other counsel who shall enter an appearance in this matter on their behalf. This matter shall be stayed until counsel enters an appearance on behalf of Plaintiffs or sixty (60) days from the date of this Order, whichever stall occur first. If Plaintiffs have not obtained counsel within sixty (60) days of this rder, Defendants shall be entitled to pursue final disposition of this matter. BY THE COURT, Distribution List: Debra A. Jensen, Esquire GALFAND BERGER, LLP 1835 Market Street, Suite 271 Philadelphia, PA 19103 Mark & Michelle L. Bingaman 11525 Harp Hill Road Myerstown, MD 21773 Wiley P. Parker, Esquire HENRY & BEAVER, LLP 937 Willow Street Lebanon,PA 17042 J. HENRY & BEAVER LLP By: Wiley P. Parker Identification No. 20653 937 Willow Street P.O. Box 1140 Lebanon, PA 17042-1140 (717) 274-3644 MICHELLE L. BINGAMAN anc MARK BINGAMAN, h/w, Plaintiffs vs. JUDITH A. JOZEFIAK, M.D. TRISTAN ASSOCIATES, Defend, IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 10-3338 JURY TRIAL DEMANDED RESPONSE OF DEFEN ANTS JUDITH A JOZEFIAK M.D. AND TRISTAN ASSOCIATES TO PLAINTIFFS' COUNSEL'S_ PETITION TO WITHDRAW AND NOW, come respectfully respond to Plai 1. Defendants admit professional standards, h occurred. 2. Admitted. ant Judith A. Jozefiak, M.D. and Tristan Associates and ' counsel's Petition to Withdraw as follows: ?t this is a personal injury action alleging a deviation from ?r it is specifically denied that any such deviation 3. Admitted. 4. After reasonable inv stigation, Answering Defendants are without sufficient information to form a belief as o the truth of such averment, in that the means of proof are solely within the control of p'laintiffs' counsel. 5. It is admitted that Plaintiffs' counsel seeks such a resolution of their request. 6. Although counsel's Withdrawal, may not prejudice Plaintiffs, it may well have a prejudicial effect upon Defend nts as is set forth in New Matter below. 7. The responses to Pa reference as though fully set NEW MATTER raphs 1 through 6 above are incorporated herein by 8. The Complaint in th instant matter was originally filed in the Court of Common Pleas of Dauphin Co my on August 26, 2009. 9. The deposition of Doendant, Dr. Jozefiak has been scheduled on two occasions and continued at 10. Defendants have discovery and prepared for a 11. Were the Court to counsel to withdraw with a ni because they will be left to created thereby. request of Plaintiff's counsel. n cooperative and forthcoming in responding to all position, which did not take place nt Plaintiffs' counsel's Petition and allow Plaintiffs' (90) day stay in place, Defendants will be prejudiced d with pro se Plaintiffs with the myriad difficulties 12. Defendants respectfully request that this Court, rather than grant a general ninety (90) day stay, direct the Plaintiffs to obtain counsel within such sixty (60) day time period, which stay would be terminated upon the entry of appearance of new counsel 2 but would permit Defendants 1 Plaintiffs remained unrepreser seek a final disposition of this matter, in the event that WHEREFORE, Defendants respectfully request your Honorable Court enter an Order permitting Plaintiffs' cou sel to withdraw but imposing upon Plaintiffs a duty to obtain counsel within sixty (60 days, during which the matter would be stayed until new counsel has entered an appea ance and that at the conclusion of said period, Defendants would be entitled seek a final disposition of the underlying action. HENRY & BEAVER LLP By: C:? - WILEY P. PARKER I. D. # 20653 937 Willow Street P.O. Box 1140 Lebanon, PA 17042-1140 (717) 274-3644 Attorney for Judith A. Jozefiak, M.D. and Tristan Associates 3 E I, Wiley P. Parker, of tht firm of Henry & Beaver LLP, do hereby certify that I served a certified true and correct copy of the within Response of Defendants Judith A. Jozefiak, M. D. and Tristan As ociates to Plaintiffs' Counsel's Petition to Withdraw upon the following person(s) o March 2. , 2011 in the manner specified below: Name Manner of Service Mark & Michelle L. Bingaman 11525 Harp Hill Road Myerstown, MD 21773 Debra A. Jensen, Esquire GALFAND BERGER, LLP 1835 Market Street, Suite 271( Philadelphia, PA 19103 Date: March 2 , 2011 U.S. First Class Mail U.S. First Class Mail -S? WILEY P. PARKER t'7 C na ?,' ? 'T1 xrn MC t --i =-n r" HENRY & BEAVER LLP CAS , By: Wiley P. Parker Identification No. 20653 CD -a = C-q 937 Willow Street - ' Einv P.O. Box 1140 Lebanon, PA 17042-1140 .; Z-n (717) 274-3644 -< MICHELLE L. BINGAMAN and IN THE COURT OF COMMON PLEAS MARK BINGAMAN, h/w, CUMBERLAND COUNTY, PENNSYLVANIA Plaintiffs CIVIL ACTION - LAW vs. NO. 10-3338 JUDITH A. JOZEFIAK, M.D. and TRISTAN ASSOCIATES, JURY TRIAL DEMANDED Defendants ORDER OF COURT AND NOW, this day of 2011, upon consideration of Plaintiffs' counsel's Petition to Withdraw as Counsel and Defendants' response thereto, it is ORDERED and DECREED that said Petition is GRANTED and that Plaintiffs' counsel, Galfand Berger, LLP, and Debra A. Jensen, Esquire, shall be permitted to withdraw their appearance as counsel for Plaintiffs Michelle L. Bingaman and Mark Bingaman, husband and wife. Plaintiffs are hereby directed to obtain other counsel who shall enter an appearance in this matter on their behalf. This matter shall be stayed until counsel enters an appearance on behalf of Plaintiffs or sixty (60) days from the date of this Order, whichever shall occur first. If Plaintiffs have not obtained counsel ?4-. within sixty (60) days of this Order, Defendants shall be entitled to pursue final disposition of this matter. Distribution List: Debra A. Jensen, Esquire GALFAND BERGER, LLP 1835 Market Street, Suite 2710 Philadelphia, PA 19103 Mark & Michelle L. Bingaman 11525 Harp Hill Road Myerstown, MD 21773 Wiley P. Parker, Esquire HENRY & BEAVER, LLP 937 Willow Street Lebanon, PA 17042 BY THE COURT, C,ples,0 (I 10 36 2 GALFA D BERGER, LLP. BY: DE RA A. JENSEN, ESQUIRE Identific ation No.: 33598 1835 Ma rket Street, Suite 2710 Philadel hia, Pennsylvania 19103 (215) 6 5-1600 MICHE LE L. BINGAMAN and MARK 1NGAMAN, h/w Plaintiffs, V. .JUDIT A. JOZEFIAK, M.D. and TRIST N ASSOCIATES Defendants. Attorney for Plaintiffs COURT OF COMMON PLEAS CUMBERLAND COUNTY NO. 10-3338 ..a CIVIL ACTION LAW--ca -r - _ cn r" 7D ? N PRAECIPE TO WITHDRAW APPEARANCE -= c:) _Z TO THE PROTHONOTARY: °r < spa 770 withdraw my appearance on behalf of Plaintiffs in accordance with the Court's March 24, 2011 Order regarding the above-referenced matter. GALFAND BERGER, LLP BY: ?f DE DENSE SQUIRE Attorney for Plaih-tiffs GALFA D BERGER, LLP. BY: DE RA A. JENSEN, ESQUIRE Identification No.: 33598 1835 Market Street, Suite 2710 Philadehia, Pennsylvania 19103 (215) 6T5- 1600 MICHE LE L. BINGAMAN and MARK 1NGAMAN, b/w Plaintiffs, V. JUDIT A. JOZEFIAK, M.D. and TRIST N ASSOCIATES Defendants. Attorney for Plaintiffs COURT OF COMMON PLEAS CUMBERLAND COUNTY NO. 10-3338 CIVIL ACTION LAW CERTIFICATE OF SERVICE I, DEBRA A. JENSEN, attorney for the Plaintiffs in the above-captioned matter, hereby ertify that on this 20"' day of April, 2011, I have served a true and correct copy of the with'n Praecipe to Withdraw Appearance in the above Civil Action, by First Class Mail, postage re-paid upon the following: Wiley P. Parker, Esquire Henry & Beaver, LLP 937 Willow Street P.O. Box 1140 Lebanon, PA 19042-1140 Mark and Michelle L. Bingaman 11525 Harp Hill Road Myerstown, MD 21773 GALFAND BERGER, L.L.P. BY: DEBRA A. DENSE SQUIRE Attorneys for Plaintiffs I Aoo? 2 P-.2 o o ?1 ? HEN RY & BEAVER LLP z ? rn moo, By: iley P. Parker -<D o x-. a , moo Ident fcation No. 20653 < , 937 illow Street xo x`` n P O Box 1140 o V . . Leba on, PA 17042-1140 4 n > (717 274-3644 MICHELLE L. BINGAMAN and IN THE COURT OF COMMON PLEAS MAR BINGAMAN, h/w, CUMBERLAND COUNTY, PENNSYLVANIA Plaintiffs CIVIL ACTION - LAW vs. NO. 10-3338 JUDITH A. JOZEFIAK, M.D. and TRI TAN ASSOCIATES, JURY TRIAL DEMANDED Defendants ORDER OF COURT AND NOW, this v'-? day of lti ? `i , 2011, upon consideration of Plai iffs' counsel's Petition to Withdraw as Counsel and Defendants' response thereto, it is QRDERED and DECREED that said Petition is GRANTED and that Plaintiffs' , Galfand Berger, LLP, and Debra A. Jensen, Esquire, shall be permitted to raw their appearance as counsel for Plaintiffs Michelle L. Bingaman and Mark Bingaman, husband and wife. Plaintiffs are hereby directed to obtain other counsel who shalllenter an appearance in this matter on their behalf. This matter shall be stayed until ?ounsel enters an appearance on behalf of Plaintiffs or sixty (60) days from the S date Of this Order, whichever shall occur first. If Plaintiffs have not obtained counsel . }llo withi I? sixty (60) days of this Order, Defendants shall be entitled to pursue final dispgsition of this matter. BY THE COURT, D n 1 n List: i A. Jensen, Esquire AND BERGER, LLP Market Street, Suite 2710 ielphia, PA 19103 V Mar & Michelle L. Bingaman 115129 5 Harp Hill Road Mye stown, MD 21773 Wile P. Parker, Esquire HENRY & BEAVER, LLP 937 illow Street Lebanon, PA 17042 awed (!,Oas a?1 II 3 d6 2 GALFA D BERGER, LLP. BY: DEBRA A. JENSEN, ESQUIRE Identification No.: 33598 1835 Market Street, Suite 2710 Philadelphia, Pennsylvania 19103 (215) 6(5-1600 MICHE LE L. BINGAMAN and MARK 1NGAMAN, h/w Plaintiffs, V. JUDIT A. JOZEFIAK, M.D. and TRIST N ASSOCIATES Defendants. PRAECIPE TO WITHDRAW PETITI TO THE PROTHONOTARY: Attorney for Plaintiffs COURT OF COMMON P(]?ES, CUMBERLAND COU r - ; NO 10-3338 CD . x? cD CD-r CIVIL ACTION LAW2-1o ;Z -- : b C= .. CD - - (_0 y withdraw the Petition to Make Rule Absolute filed by the undersigned on March 25, 201 regarding the above-referenced matter. GALFAND BERGER, LLP BY: ?' DEBRA A. JENSEN, ES IRE Attorney for Plaintiffs GALFA D BERGER, LLP. BY: DE RA A. JENSEN, ESQUIRE Identific tion No.: 33598 1835 M rket Street, Suite 2710 Philadelp hia, Pennsylvania 19103 (215) 66 -1600 MICHE LE L. BINGAMAN and MARK INGAMAN, h/w Plaintiffs, V. JUDIT A. JOZEFIAK, M.D. and TRIST N ASSOCIATES Defendants. Attorney for Plaintiffs COURT OF COMMON PLEAS CUMBERLAND COUNTY NO. 10-3338 CIVIL ACTION LAW CERTIFICATE OF SERVICE I, DEBRA A. JENSEN, attorney for the Plaintiffs in the above-captioned matter, hereby ertify that on this 20`h day of April, 2011, I have served a true and correct copy of the wit in Praecipe to Withdraw Petition to Make the Rule Absolute in the above Civil Action, y First Class Mail, postage pre-paid upon the following: Wiley P. Parker, Esquire Henry & Beaver, LLP 937 Willow Street P.O. Box 1140 Lebanon, PA 19042-1140 Mark and Michelle L. Bingaman 11525 Harp Hill Road Myerstown, MD 21773 BY: FAND BERGER, L.L.P. QAL n DEBRA A. JENSEN, ?, QUIRE Attomeys for Plainti s 1 CSRTIFICATS PRSRSQUISITS TO SSRVICS OF A SUBPOSNA PURSUANT TO RULE 4009.22 A IN THE MATTER OF: COURT OF CdMMON PLE, MICHELLE L. & MARK BINGAMAN TERM, CUMBERLAND -VS- CASE NO: 10-CV-3338, ~y rya- --+ JUDITH JOZEFIAK, MD. & TRISTAN ASSOC. ~ N t+"~~ ~~ ~ As a prerequisite to service of a subpoena for documents and thingrs~nt' to Rule 4009.22 ~Z~ ~ y, {', ~ ZG F ~ ,..- ...-{ ~ ,./' MCS on behalf of AMY LEONARD, ESQ. certifies that (1) A notice of intent to serve the subpoena with a copy of the subpoen attached thereto was mailed or delivered to each party at least twenty days prior to the date on which the subpoena is sowght to be served, (2) A copy of the notice of intent, including the proposed subpoena, 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 is attached to the notice of intent to serve the subpoena. MCS on behalf,of DATE: 08/08/2012 ~.- '~ At --, r= for DEFE Elizab ,_. ~,~ ~~ d~ ~~ Q~a'i ~" --C (~HlenrybeaVe . COm MCS # 30314 L06 DE11 COMMONWEALTH OF PENNSYLVANIA COUNTY OF CUMBERLAND IN THE MATTER OF: MICHELLE L. & MARK BINGAMAN -VS- JUDITH JOZEFIAK, MD. & TRISTAN ASSOC. COURT OF COMMON TERM, CASE NO: 10-CV-3338 NOTICB OF INTRNT TO SERVE A SIIHPOBNA TO PRODIICB DOCIIfiE~ATS AND THINGS FOR DISCOVERY PIIRSIIANT TO RIILE 4009.21 HARRISBURG HOSPITAL MEDICAL RECORDS TO: J. CRAIG CURRIE, ESQ., PLAINTIFF COUNSEL KAREN MINEHAM, ESQ. MCS on behalf of AMY LEONARD, ESQ. 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 th undersigned an objection to the subpoena. If the twenty day notice period is waived or if no objection is made, then the subpoena may be served. Complete copies of any reproduced records may be ordered at your expense by completin the attached counsel card and returning same to MCS or by contacting our loc MCS office. DATE: 07/17/2012 CC: AMY LEONARD, ESQ. J. CRAIG CURRIE, ESQ. CURRIE & ASSOCIATES 1600 MARKET STREET 25TH FL. PHILADELPHIA, PA 19103 - 00220/449 MCS on behalf of AMY LEONARD Attorney for DE THE MCS GROUP INC. 1601 MARKET STREET #800 PHILADELPHIA, PA 1910: (215) 246-0900 MC5 # 30314 C03 DEb2 COMMONWEALTH OF PENNSYLVANIA COUNTY OF CUMBERLAND MICHELLE L. & MARK BINGAMAN File No. vs. JUDITH JOZEFIAK, MD. & TRISTAN ASSOC. SUBPOENA TO PRODUCE DOCUMENTS OR THINGS FOR DISCOVERY PURSUANT TO RULE 4009.22 TO: Custodian of Records for (Name of Person or Entity) Within twenty (20) days after service of this subpoena, you are ordered by the court to produce the documents or things: _ **** SEE ATTACHRi~ RTDFR **** at You may deliver or mail legible copies of the documents or produce things requested by this subpoena, t gether with the certificate of compliance, to the party making this request at the address listed above. You have t e 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 the party serving this subpoena may seek a court order compelling you to comply with it. THIS SUBPOENA WAS ISSUED AT THE REQUEST OF THE FOLLOWING PERSON: NAME: ADDRESS: TELEPHONE:. (2 1 51 246-0900 SUPREME COURT ID #: ATTORNEY FOR: Defendant G 0 8 2012 Date: *"` Seal of the Court BY THE COURT: ~IfJ~~,~tA I ....,~ othonotary/Clerk, Civil Division Deputy ` 30314-06 EXPLANATION OF REQUIRED RECORDS T0: CUSTODIAN OF RECORDS FOR: HARRISBURG HOSPITAL MEDICAL RECORDS 111 S. FRONT STREET HARRISBURG, PA 17101 RE: MCS # 30314-L06 MICHELLE BINGAMAN 11525 HARP HILL RD. MYERSVILLE, MD 21773 Social Security #: 168-64-9929 Date of Birth: 10-20-1966 Please provide the entire hospital medical file, including but not limited to all records, intake or admission forms, correspondence to and from the consulting and treating physicians, and discharge forms. Include all files, memoranda, handwritten notes, history and physical reports. Supply al medication and prescription records, nurses' notes, doctor's comments, dietary and all patient consent or refusal of treatment. This should contain all records in your possession, including all archived records, records in stora e Including any and all items as may be stored in a computer database or otherwise in electronic form. Prior approval is required for fees in excess of $150.00 for hospitals, $100.00 for all other providers. MCS # 30314~L06 SU'10 f., ORIGINAL OF 2013KAY 23 f-flt'lSFRLANt? C4UNT'' f'F NSY�.�q# lA HENRY & BEAVER LLP By: Wiley P. Parker Identification No. 20653 937 Willow Street P.O. Box 1140 Lebanon, PA 17042-1140 (717) 274-3644 MICHELLE L. BINGAMAN and IN THE COURT OF COMMON PLEAS MARK BINGAMAN, h/w, CUMBERLAND COUNTY, PENNSYLVANIA Plaintiffs CIVIL ACTION — LAW vs. NO. 10-3338 JUDITH A. JOZEFIAK, M.D. and TRISTAN ASSOCIATES, JURY TRIAL DEMANDED Defendants ANSWER OF DEFENDANTS JUDITH A. JOZEFIAK, M.D. AND TRISTAN ASSOCIATES TO PLAINTIFFS' AMENDED COMPLAINT 1. After reasonable investigation, Answering Defendants are without sufficient information to form a belief as to the truth of such averment in that the means of proof are solely within the control of an adverse party, namely Plaintiff and, as such, strict proof thereof is demanded at trial, if relevant. 2. After reasonable investigation, Answering Defendants are without sufficient information to form a belief as to the truth of such averment in that the means of proof are solely within the control of an adverse party, namely Plaintiff and, as such, strict proof thereof is demanded at trial, if relevant. 3. Admitted. 1 4. It is admitted that Plaintiff incorporates by reference as though fully set forth the allegations and averments of the original Complaint filed in this matter on or about August 26, 2009 and by way of response, Answering Defendants incorporate herein by reference as though fully set forth the Answer and New Matter thereto filed in this action on or about March 26, 2010. A true and correct copy of the aforesaid Answer and New Matter is attached hereto and marked Exhibit "A". COUNT I —WRONGFUL DEATH 5. The responses to Paragraphs 1 through 4 above are incorporated herein by reference as though fully set forth. 6. It is denied that Answering Defendants were negligent in any regard or that Plaintiff or Plaintiffs decedent has suffered any loss, injury, or damage by reason of any action or inaction on their part. The balance of said allegation is denied as a conclusion of law. 7. It is admitted that Plaintiff, Mark Bingaman, brings the action as asserted, however it is denied that there is any validity or legal basis to said claim. 8. After reasonable investigation, Answering Defendants are without sufficient information to form a belief as to the truth of such averment in that the means of proof are solely within the control of an adverse party, namely Plaintiff and, as such, strict proof thereof is demanded at trial, if relevant. 9. It is admitted that Plaintiff asserts claims as set forth in his Complaint, however it is denied that there is any validity or legal basis to said claim. WHEREFORE, Answering Defendants demand that Plaintiffs Complaint be dismissed. 2 COUNT II — SURVIVAL ACTION 10. The responses to Paragraphs 1 through 4 above and Count I are incorporated herein by reference as though fully set forth. 11. It is admitted that Plaintiff brings this action as asserted, however it is denied there is any validity.or legal basis to said claim. 12. It is admitted that Plaintiff asserts claims as set forth in his Complaint, however it is denied that there is any validity or legal basis to said claim. WHEREFORE, Answering Defendants demand that Plaintiff's Complaint be dismissed. HENRY & BEAVER LLP By: WILEY P. PAJRKER, Esquire .D. #20653 937 Willow Street P.O. Box 1140 Lebanon, PA 17042-1140 (717) 274-3644 (Phone) (717) 274-6782 (Fax) parker @henrybeaver.com Attorney for Judith A. Jozefiak, M.D. and Tristan Associates 3 VERIFICATION verify that the statements made in this Answer to Plaintiffs' Amended Complaint are true and correct. I understand that false statements herein are made subject to the penalties of 18 Pa.C.S. Section 4904 relating to unsworn falsification to authorities. Judith J z� k, M' CERTIFICATE OF SERVICE I, Wiley P. Parker, Esquire, of the firm of Henry & Beaver LLP, do hereby certify that I served a certified true and correct copy of the within Answer to Plaintiffs' Amended Complaint upon the following person(s) on May , 2013 in the manner specified below: Name Manner of Service J. Craig Currie, Esquire U.S. First Class Mail J. CRAIG CURRIE &ASSOCIATES 1600 Market Street, 25th Floor Philadelphia, PA 19103 Date: May 42-, 2013 WILEY P. PARfffR----' COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA e; MARK BINGAMAN, in his own right and as Administrator of the Estate of MICHELLE L. BINGAMAN PLAINTIFFS 10-3338 CIVIL TERM y ;� V. JUDITH A. JOZEFIAK, M.D. and TRISTAN ASSOCIATES, DEFENDANTS Consent of Defendants to the Filing by Plaintiff of an AmendedComplaint in Accordance with Pa.R.Civ.P. 1033 On behalf of the Defendants in this matter (Judith A. Jozefiak, M.D. and Tristan Associates) I hereby consent to the filing by Plaintiff of the Amended Complaint attached hereto and marked Exhibit"A-1" converting the lawsuit from a claim of personal injury to one of wrongful death and survival action. Wiley P. Parker, Esquire Attorney for Defendants,Judith A. Jozefiak, M.D. and Tristan Associates Date: ---/o ' J. CRAIG CURRIE & ASSOCIATES, P.C. BY: J. Craig Currie. Esquire 25`, Floor 1600 MarLet Street Philadelphia. PA 19103-7225 (215) 564-0833 F.. (215) 523-7911 currie®phillylaw.net Attorney for Plaintiff COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA MARK BINGAMAN, in his own right and as Administrator of the Estate of MICHELLE L. BINGAMAN PLAINTIFFS 10-3338 CIVIL TERM V. JUDITH A.JOZEFIAK, M.D. and TRISTAN ASSOCIATES, DEFENDANTS PLAINTIFF'S AMENDED COMPLAINT 1. On or about February 20, 2012, Michelle L. Bingaman died. 2. On or about May 16, 2012, Michelle L. Bingaman's husband, Mark Bingaman was named the administrator of the estate of Michelle L. Bingaman. 3. On or about February 13, 2013 Mark Bingaman filed and served in this action a Notice of Death and a Substitution of Successor Plaintiff naming him as the Successor Plaintiff. 4. In his capacity as the Plaintiff in this matter, Mark Bingaman incorporates herein by reference as though fully set forth herein the allegations and averments of the original complaint filed in this matter on or about August 26, 2009. EXHIBIT A-1 Y A true and correct copy of aforesaid complaint is attached hereto and marked Exhibit"A." COUNT I. Wrongful Death 5. Paragraphs 1 through 4 are incorporated herein by reference as though fully set forth herein. 6. The death of Plaintiffs decedent was caused by the negligence of the defendants as set forth in detail in the original complaint and was in no way caused by the conduct of the decedent who at all times material hereto acted as a reasonable and prudent person looking out for her health, safety and welfare. Moreover, at no time did the decedent assume the risk of her death in her selection of the courses of treatment she pursued in an effort to treat and cure her cancer because each was recommended to her by her then treating physician or physicians. In the alternative,the negligence and carelessness of the defendants as set forth in the original complaint increased the risk that decedent would be caused the injuries and the death that she in fact was caused to suffer. 7. Mark Bingaman, as administrator of the estate of Michelle L. Bingaman and in his own right brings this action on behalf of decedent's survivors, under and by virtue of the act of 1855 P.L. 309 as amended, and Pa. R.C.P. 2002 and 42 Pa. C.S.A.§ 8301 et seq as well as all other acts which may be applicable. 8. The decedent left surviving her the following persons entitled to recover damages for her death and on his behalf this action is brought; a. Mark Bingaman, husband; b. Sean Herman, son; and c. Shane Herman, son. g. By reason of the death of the decedent, Mark Bingaman has incurred recoverable expenses including but not limited to: (a)funeral expenses and(b) costs of administration of the estate. WHEREFORE, plaintiff demands judgment against all the defendants,jointly and severally,for a sum in excess of$50,000 as well as delay damages as allowed by law. COUNT II. Survival Action 1o.Paragraphs 1 through 4 and Count I are incorporated herein by reference as though fully set forth herein. 11. Plaintiff also brings this action on behalf of the estate of Michelle L. Bingaman, deceased, under and by virtue of the Probate Estates &Fiduciaries Code 20 Pa. C.S.A. § 3373 and 42 Pa. C.S.A. § 8302. 12. Plaintiff claims, on behalf of the estate,those damages suffered by said estate by reason of the death of Michelle L. Bingaman, as well as for the pain and suffering decedent underwent prior to her death, and the loss of life's pleasures she would have enjoyed but for her tortiously inflicted injury and death. WHEREFORE, plaintiff demands judgment against all the defendants,jointly and severally,for a sum in excess of$50,000 as well as delay damages as allowed by law. J.CRAIG CURRIE&ASSOCIATES,P.C. J. C aig urrie, Esq. VERIFICATION The undersigned,having read the attached Amended Complaint, verifies that the within pleading is based on information furnished to counsel, which information has been gathered by counsel in the course of this lawsuit. The -language of the pleading-is that of counsel and not of signer. Signer verifies that he has read the within pleading and that it is true and correct to the best of signer's knowledge, information and belief. To the extent that the contents of the pleading are that of counsel, verifier has relied upon counsel in taking this Verification. This verification is made subject to the penalties of 18 Pa. R.CP. §4904 relating to unsworn falsification to authorities. Mark Bingaman 25 P,; ',' 01 t1 GALFAND BERGER, LL,P. Attonicys For .Plaintiff BY: DEBRA A. JENSEN, ESQUIRE Identification No.: 33598 HEATHER A. HARPER, ESQUIRE Identification No.: 206035 1818 Market. Street, Suite 2300 Philadelphia, Pennsylvania 19103 (21.5) 665-1600 MICHELLE L. BINGAMAN and COURT OF COMMON PLEAS MARK BINGAMAN, h/w 11525 Haig Hill Road : DAUPHI:.N COUNTY Myerstown, .M.D 21773 Plaintiffs, NO. JUDITH•A. JC)GEFIAK, M.D. �046(,_.CQ 3 Walnut Street, Suite 100 Lemoyne. PA 17043 CIS/II._ ACTION LAW and H.ERITAC&, DIAGNOSTIC CENTER 3 M11nU1 St►'cet, Suite 100 JURY TRIAL DEMANDED Lemoyne, PA 17043 and HERITAGE MEDICAL GROUP 3 Walnut Strect, Suite 206 Lemoyne. PA 17043 and EXHIBIT A f , TRISTAN ASSOCIATES ,Y 4520 Union Deposit Road : , ,. Harrisburg, PA 17111 Z5 �r = Defendants. :1 Y CIVIL ACTION COMPLAINT NOTICE YOU HAVE BEEN SUED IN COURT. If you wish to defend against the claims set forth in the following pages, you must take action within twenty (20) days after this Complaint and Notice are served, by entering a written appearance personally or by attorney and filing in writing with the Court your defenses or objections to the claims set forth against you. You are warned that if you fail to do so the case may proceed without you and a judgment may be entered against you by the Court without .further notice for any money claimed in the Complaint or for any other claim or relief requested by the Plaintiff. You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW. THIS OFFICE CAN PROVIDE YOU WITH INFORMATION ABOUT HIKING A LAWYER. IF YOU CANNOT AFFORD TO HIRE A LAWYER, THIS OFFICE MAY BE ABLE TO PROVIDE YOU WITH INFORMATION ABOUT AGENCIES THAT MAY OFFER LEGAL. SERVICES TO ELIGIBLE PERSONS AT A REDUCED FEE OR NO FEE. DAUPHIN COUNTY LAWYER REFERRAL SERVICE 213 North Front Street Harrisburg, PA 17101 (717) 232-7536 NOTICE CONCERNING MEDIATION OF ACTIONS PENDING BEFORE THE COURT OF COMMON PLEAS OF DAUPHIN COUNTY The :lodges of the Court of Common.Pleas of Dauphin County believe that mediation of lawsuits is a very important component of dispute resolution. Virtually all lawsuits can benefit in sonic manner from mediation. The Court has adopted Dauphin County Local Rule 1001 to encourage the use of mediation. This early alert enables litigants to determine the best time during the life of their lawsuit for a mediation session. The intent of this early alert is to help the parties act upon the requircmcnt to consider good .faith mediation at the optimal time. The Dauphin County Bar Association provides mediation services and cart be reached at 717- 232-7536. Free mediation sessions for pro Bono cases referred by MidPenn .Legal Services are available through the DCBA. AVISO LISTED HA SIDO DEMA.NDADO/A EN CORRE. Si usted desea defenderse de las de.mandas que se prescntan mas adela:nte en ]as siguientes paginas. debe tornar acci6n dentro de los pr6xirnos veinte (20) dlas despuds de la notificaci6n de esta Demanda y Aviso radicando personalmente o pot medic,de un abogado una comparecencia escrita y radicando en la Corte por escrito sus defensas de. y objecciones a, las demandas presentadas aqui en contra suya. Se le advierte de gue si usted falla de tomar acci6n como se describe anteriormente. el caso puede proceder sin usted y un fallo por cualquier suma de dinero reclamada en la dernanda o cualquier- otra reclamaci6n o remedio solicitado por el demandante puede set dictado en contra Rlya por la Corte sin mas aviso adicional. Usted puede perder dinero o propiedad a otros derechos importantes para usted. USTED DEBE LLEVAR ESTE DOCUMENTO A SU ABOGADO INMEDIATAMiENTE. Si LISTED NO TIENE UN ABOGADO, LLAME 0 VAYA A LA SIGUIENTE O'FICINA. ESTA OFICINA PUEDE PROVEERLE INFORMACION A CERCA DE COMO CONSEGUIR UN ABOGADO. SI USTED NO ;PUE'DE PAGAR POR LOS SE.RVICIOS DE UN ABOGADO, ES POSIBI.E QUE ESTA OFICINA LE PUEDA PROVEER fNl~ORa14ACION SO.BRE AGENCIAS QUE OFREZCAN SERVICIOS LEGALES SIN CARGO 0 BA:IO COSTO A PERSONAS QUE CUALIFICAN. DAUPHIN COUNTY LAWYER REFERRAL SERVICE 213 North Front.Street Harrisburg, PA 17101 3 (71.7) 232-7536 AVISO REFERENCES A LA MEDIACION DE LAS ACCIONES PENDIENTES ANTES LA CORTE DE SOPLICAS COMUNES DEL CONDADO DE DAUPHIN Los jueces de la come de suplicas comunes del condado de Dauphin creep que la mediation de pleitos es un componente muy importante de la resolution del conflicto. Virtualmente todos los pleitos pueden beneficiar de cierta manera de la mediation. La code lra adoptado la regla local de condado de .Dauphin 1.001 Para animar el use de Ia mediation. Esta alarina temprana permite a litigantes determiner la mejor epoca durante la viola tie su pleito Para una sesion de la mediacion. El intento de esta alarma temprana es actuar sobre la media.cion de la buena fe en el tiempo 6ptimo. La asociacion de la barra del condado de Dauphin proporciona ser vicios de la mediation y se puede alcanzar en 717-232-7536. La sesi6n Libre de la mediation para los favorables casos del bond se refinio por Midl'enn que los servic.ios jundicos estan disponibles con el DCBA. 4 ' j 20 Pia 1. O Of GALFAND B.ERGER, LLP. Attorneys for- Plaintiff BY: DEBRA A. JENSEN,ESQUIRE Identification No.: 33595 HEATHER A. HARPER, ESQUIRE Identification No.: 206035 1.518 Market Sh-eet, Suite 2300 :Philadelphia, Pennsylvania 19103 (215) 665-1600 MICHELLE L. BINGAMAN and : COURT OF COMMON PLEAS MARK BINGAMAN, h/w 1 1525 Haig 14111 Road DAUPHIN COUNTY Myerstown, NOD 21773 Plaintiffs, V. NO. JUDITH A. JOZEFIAK, M.D. 3 Walnut Street, Suite 100 Lemoyne, PA 17043 Cf IL ACTION LAW and HERITAGE DIAGNOSTIC CENTER 3 Walnut Street, Suite 100 JURY TRIAL DEMANDED Lemoyne, PA 17043 and HERITAGE MEDICAL GROUP 3 Walnut Street, Suite 206 Lemoyne, PA 17043 and TRISTAN ASSOCIATES 4520 Union Deposit Road Harrisburg, PA 17111 Defendants. CIVIL ACTION COMPLAINT L Plaintiffs Michelle L. Binganian and Mark Bmgama.n are adult individuals and citizens of the state of Maryland, residing therein at 11525 Harp Hill Road, Myerstown, MD 21773. 2. At all times material hereto, :Defendant, Tristan Associates (herein "Tristan"). was a corporation and/or other business entity as well as a medical and health provider and/or- healthcare organization duly organized and existing Linder the laws of the Commonwealth of Pennsylvania, with a offices located at the address set forth above. 3. At all times material hereto, Defendant Tristan acted individually and/or by and through its parent corporations, subsidiaries, successors, agents, apparent agents, servants, contractors, workers and/or employees, including the facilities, doctors, nurses, technicians and/or other healthcare workers identified and/or described herein and/or in its medical records pertaining to Plaintiffs. 4. At all times material hereto. Defendant, Heritage Diagnostic Center (herein -`Heritage. Diagnostic"'), was a corporation and/or other business entity as well as a medical and health provider and/or healthcare organization duly organized and eristirrg under the laves of the Commomvealth of Pennsylvania, with offices located at the address set forth above. 5. At all times material hereto, Defendant Heritage Diagnostic, acted individually and/or by and through its parent corporations, subsidiaries, successors, agents, apparent agents, servants. contractors, workers and/or employees, including the facilities, doctors, nurses, technicians and/or other healthcare workers identified and/or described herein and/or in its medical records pertaining to Plaintiffs. 6. At all times material hereto, Defendant, Heritage Medical Group (herein "Heritage Medical"), was and is a corporation and/or other business entity as well as a medical and health provider and/or healthcare organization duly organized and existing under the laws of' the Commonwealth of Pennsylvania, with offices located at the above stated address. 7. At all times material hereto, Defendant Heritage Medical, acted individually and/or by and through its parent corporations, subsidiaries, successors, agents, apparent agents, servants, contractors, workers and/or employees, including the facilities, .doctors, nurses, technicians and/or other healthcare workers identified and/or described herein and/or in its medical records pertaining to Plaintiffs. 8. In the alternative, Heritage Diagnostic was tinder the control and direction of Heritage Medical, engaged in the business of providing medical, radiological, diagnostic and/or health care to the public with business addresses as set forth above. 9. At all times material hereto, Heritage Diagnostic acted as the actual, apparent and/or ostensible agent of ,Heritage Medical. 10. Heritage Medical, Heritage Diagnostic and Tristan are each vicariously liable for the acts and/or omissions of the other. H. Defendants Heritage Diagnostic, Heritage Medical, and Tristan are hereinafter referred to collectively as "Defendant Radiology Practice Group.- 12. Defendant Judith A. .16zefiak, M.D. (hereinafter -36zefiak- or ".Defendant Radiologist-) is a physician licensed to practice medicine in the Commonwealth of Pennsylvania, with offices located at the address set forth above. 13. At all times material hereto. Defendant J6zefiak held herself out to the public and to the Plaintiffs as a physician specializing in the fields of mammography, ultrasonography, stereotactic breast biopsy, body imaging, and diagnostic radiology. 14. At all times material hereto. Defendant J6zefiak acted individually, and/or as the agent, employee, independent contractor and/or servant of Defendant Radiology Practice Group. 15. At all times material hereto. Defendant J6zefiak, acted individually and/or as the agent, apparent agent, servant, independent contractor, worker, and/or employee of Defendant Radiology Practice Group and was then and there acting within the course and scope of her employment, agency and/or independent contractor status. 16. At all times material hereto, Defendant Radiology Practice Group acted by and through its agents, servants and/or employees, acting upon its business and within the course and scope of their employment. including but not limited to Defendant J6zefiak. as well as other physicians, residents, interns, nurses. aides, technologists, therapists, nutritionists, and consultants whose identities are reflected in the medical records of Plaintiff, which records are within the exclusive control of Defendant Radiology Practice Group and whose identities are readily discernible to Defendant Radiology Practice Group but are not readily discernible to Plaintiffs absent formal discovery. 17. At all times material. Defendant Radiology Practice Group was engaged through its agents, servants, employees, and those staff personnel hereinbefore and hereinafter identified, in rendering professional and medical care to the public, and thereby held itself out to the public 4 generally, and to Plaintiff specifically, as being skilled in the practice of general medicine, mammography, stereotactic breast biopsy, body imaging, and diagnostic radiology, and thereby accepted responsibility of providing appropriate and adequate medical, radiological, and diagnostic care to Plaintiff in accordance with the prevailing standards of medical and hospital practice and pertinent cotilm Lill ity, state and national standards and codes. 18. On or about September 12, 2007 and thereafter, Plaintiff-Wife employed the Defendant Radiology Practice Group and Defendant J6zefiak for compensation to provide medical, diagnostic, high risk care evaluation, and/or treatment to her and she thereby came under the professional care, attention, control and treatment of Defendant Radiology Group and Defendant.16zefiak. 1.9. On or about September 12, 2007 Plaintiff Wife underwent a bilateral mammogram study and breast ultrasound at the offices of Defendant Radiology Practice Group and Defendant J6zef ak.. 20. Plaintiff-Wife's September 12, 2007 bilateral mammogram and left breast ultrasound demonstrated abnormalities in the left breast, and a follow-up .mammogram was reconvaiended in March 2008. 21. Oil or about March 10, 2008, Plaintiff-Wife reported to Defendant Radiology Practice Group and undcrwernl the recommended follow-up mammogram and ultrasound of her left breast. 22. Upon information and belief Plaintiff-Wife's marnmograrn and ultrasound studies were interpreted in the offices of Tristan Associates. 23. Defendant .16zefiak interpreted Plaintiff-Wife's March 10. 2008 mammogram and ultrasound. 5 24. Defendant .16zefiak reported an area of abnormality in Plaintiff-Wife's left breast. described as a benign glandular as}mimetry. 25. Defendant Jozetia{: did not report or record a possible malign- in Plaintiff Wife's left breast. 26. Upon information and belief: as of March 10; 2008, Plaintiff-Wife was suffering from left breast carcinoma. 27. Upon information and belief: as of March 10. 2008, the carcinoma in Plaintiff- Wife's left breast was visible and recognizable in Plaintiff-Wife's mammogram and ultrasound imaging studies and should have been identified. recognized and reported upon by Defendant J6zefiiak. 28. Instead. Defendant .167-efiak merely recommended that Plaintiff-Wife undergo a follow-up mammogram in September 2008. 29. Upon information and belief. Defendant J6zef•3ak failed to interpret Plaintiff- Wife's March 10, 2008 mammogram and ultrasound results accurately, carefully, and within the proper-standard of care. 30. Upon information and belief: Defendant .167-etiak should have contacted Plaintiffs treating physician about the aforesaid abnorniality and/or referred Plaintiff-Wife to a specialist for appropriate folJOW-up evaluation including an immediate biopsy and/or further diagnostic testing of the abnormality in Plaii•rtiff-\rife's (eft breast. 31. On or about September 11. 2008, Plaintiff reported to the office of Defendant Radiology Practice Group in accordance with Defendant J6zefiak's recommendations for a third follOW-tip mammogram and ultrasound of her left breast. at which time her left breast carcinoma was diagnosed. 6 32. Thereafter, Plaintiff-Wife underwent an ultrasound-guided biopsy which revealed a high-grade invasive ductal carcinoma of her left b7-east. 33. Following the aforesaid diagnosis. Plaintiff-Wife underwent a bone scan and thoracic spine MRl which revealed she had developed metastatic breast cancer. 34. Had .Defendants promptly and properly conducted and managed Plaintiff-Wife's care, including but not limited to the interpretation, recording and reporting of the March l0, 2008 mammogram and ultrasound of Plai.nti:ff Wife's left breast, Plaintiff-Wife's breast cancer could have been detected, treated, contained, and possibly Cured. 35. As a direct and proximate result of the joint and several negligence and carelessness of all Defendants as set forth herein, i'laintiff-Wife's left breast cancer went undiagnosed and untreated for a significant period of time during which tine it developed to an advanced stage; negating any chance for Plaintiff-Wife's survival. or in the alternative, greatly reducing the length of time that Plaintiff-Wife will survive the cancer. 36. As a direct and proximate result of the hereinafter described individual, joint, several and/or alternative negligence and liability-producing conduct of Defendants, Plaintiff- Wife lost the opportunity to have potential life-saving and/or life-prolonging treatment. 37. As a direct and proximate result of the hereinafier described individual, joint, several and/or alternative negligence and liability-producing conduct of Defendants; Plaintiff Wife has suffered and may forcvver continue to suffer from great emotional and/or physical pain. suffering, anxiety. depression. nightmares, flashbacks. embarrassment, and loss of life's Pleasures. 38. As a direct and proximate result of the hereinafter described individual, joint, several and/or alternative negligence and liability-producing conduct of Defendants, Plaintiff- 7 Wife has required medical care, surgery, therapy and treatment, medical modalities, and the like with resulting financial cost and obligations. 39. As a direct and proximate result of the hereinafter described individual, Joint. several and/or alternative negligence and liability-producing conduct of Defendants. Plaintiff- Wife will be forced to spend money and incur obligations (including for such items as medical care, surgery, therapy and treatment, medical modalities, home modifications and the like) as a result of her advanced breast cancer, illjLtl-lcs, and damages. 40, As a direct and proximate result of the hereinafter described individual, joint, several and/or alternative negligence and liability-producing conduct of Defendants, Plaintiff- Wife will experience In the future a loss of earnings and/or earning capacity, and will experience all inability to engage in usual and customary hobbies, duties,work and/or responsibilities. 41. As a direct and proximate result of the hereinafter described individual, joint, several and/or alternative negligence and liability-producing conduct of Defendants, Plaintiff- Wife has lost her chance to survive and will eventually succumb to breast cancer, or complications therefrom. COUNT I —NEGLIGENCE PLAINTIFF-W)FE V. DEFENDANT JUDITH A.j0zr!,FjAK. M.D. 42. Paragraph,-, I through 41 are incorporated herein by reference as though fully set forth. 43. Defendant J67.efiak's negligence and/or carelessness increased 'Plaintiff-Wife's risk ofdcvelol)liig incurable breast cancer, which in fact occurred. 44. The aforesaid injuries and damages were caused by the negligence and carelessness of Defendant 36zefiak. which consisted of the following. a. FaiiiiigtodiagliosePlaiiitiff-Wife's )iiedicalcotiditiojiinatinicl\liiiaiiner: 8 b. Incorrectly diagnosing Plaintiff Wife's medical condition; c. Failing to order and/or interpret appropriate examinations and/or testing; d. lnnproperly recommending six-month follow-up treatment; e. :Failing to observe, report and/or diagnose the carcinoma located in Plaintiff Wife's left breast abnormality; f. Failing to make sure that Plaintiff-Wife would have reasonable follow-up care to determine the exact diagnosis and proper treatment of her illness; g. Failing to obtain a comprehensive past medical history; h. Failing to properly inform Plaintiff-Wife as to possible symptomatology and regularity of appropriate diagnostic testing; i. Failing to properly advise Plaintiff-Wife as to siDis, symptoms, and need to return -for a differential diagnosis; j. Failing to suggest further testing to evaluate Plaintiff-Wife's left breast abnormalities; k. Failing to properly advise Plaintiff-Wife and/or her treating physician as to the means, method, and manner of securing a differential or further diagnosis, including but not limited to, further diagnostic testing and/or nnatnmographic and/or ultrasonographic testing and/or biopsy and/or evaluation by a specialist; 1. Failing to interpret the results of Plaintiff-Wife's nnamnmgram and ultrasound accurately, carefully, and within the proper standard of care; nn, Failing to perfornn an appropriate physical examination of Plaintiff-Wife's left breast to identify any abnormalities; n. Failing to record, report or reference the presence of an abnormality and/or mass in Plaintiffs left breast; o. Failing to advise Plaintiff-Wife of the fact that she had developed breast cancer; p. Failing to advise Plaintiff-Wife of the fact that she would need treatment for breast cancer: q. Failing to advise Plaintiff-Wife that she was at risk for developing metastatic breast cancer, r. Failing to consult Plaintiff-Wife regarding her diagnosis and treatment options for her breast cancer; 9 s. Failing to advise :Plaintiff Wife to return for immediate surveillance and/or diagnostic testing; t. Failing to timely, properly, and/or adequately become knowledgeable or otherwise aware of Plaintiff Wife-s clinical medical condition and/or status: u. Failing to timely, properly and/or adequately avail herself of available and pertinent medical writings, publications, information, and/or diagnostic tcchnology; v. Failing to timely, properly and/or adequately recognize, evaluate, classify and/or treat Plaintiff-Wife as at risk for developing complications of left breast cancer plus other sequelae thereof; w. Failing to timely, properly and/or adequately order, request, recommend, perform,. report on and/or interpret appropriate examinations, tests evaluations and/or care in light of Plaintiff-Wife's respective history and/or then current signs. symptoms. and conditions; x. Failing to timely, properly and/or adequately assess Plaintiff-Wife for and/or diagnose Plaintiff-Wife as suffering from and/or being at risk for breast cancer plus other sequelae and/or complications thereof; y. Failing to timely, properly and/or adequately assess, diagnose, interpret, treat, report and/or respond to Plaintiff-Wife's March 10, 2008 mammogram and ultrasound: z. Filing to observe and/or recognize abnormalities in Plaintiff-Wife's breast. that would have demonstrated that Plaintiff-Wife was at risk for and/or in the early stages of breast cancer; aa. Failing to timely, properly and/or adequately see, examine, diagnose and/or treat Plaintiff-Wife: bb. Failing to timely, properly and/or adequately prescribe, provide and/or perform a thorough ultrasound and/or mammogram under the circumstances. cc. Failing to timely. properly and/or adequately communicate to other doctors regarding Plaintiff Wife's history_ examinations. test results. signs. symptoms. conditions, diagnoses and/or plans of care; dd. Failing to timely, properly and/or adequately document Plaintiff-Wife-s history. examinations, test results, signs; symptoms. conditions, diagnoses andlor- plan of care; ce. Failing to timely, properly and/or adequately consult with appropriate ,physicians regarding Plaintiff-Wife's mammography and/or ultrasound: 10 ff. Failing to give significance to the ;findings and/or diagnoses of other physicians involved in Plaintiff-Wiife's care and treatment, gg. Improperly ignoring and/or discounting the significance of findings and/or diagnoses of other physicians with regard Plaintiff-Wife's prior mammogram and/or ultrasound and/or symptoms; hh. Failing to timely, properly and/or adequately respond to notification anti/or infor-amation provided by others regarding Plaintiff Wife's status, signs, symptoms, and/or-conditions: ii. Failing to timely, properly and/or adequately discover the aforenoted careless and negligent conduct and/or to timely diagnose and/or respond to the consequences and significance thereof; jj. Failing to timely, properly and/or adequately exercise that degree of skill, care % and treatment, and/or possess that degree of'knowledge ordinarily possessed and exercised by other members of her profession and business under the specific circumstances; U. Failing to U177e1)/; properly and/or adequately review and/or document tests, observations, assessments, studies, films and/or examinations to aid in the diagnosis, care and treatment of patients such as Plaintiff-Wife; 11. Failing to timely, properly and/or adequately review and/or document tests, observations, assessments, studies, films and/or examinations and/or the significance of same with respect to Plaintiff-Wife; mm. Failing to immediately order follov,, up medical treatment, including biopsy, radiology, oncology, and/or a surgical consult upon completion of the .mammogram and ultrasound, and other test which demonstrated a. change; nn. Failing to timely; properly and/or adequately transfer Plaintiff-Wife to a different medical facility for evaluation, care and/or treatment of her changing medical condition; oo. hicreasing the risk of harm to Plaintiff--Wife as a result of the negligence and . carelessness set forth in paragraphs (a) —(nn) above. WHEREPOKF. Plaintiff demand judgment against Defendant Judith A, J67cfiak, .M.D.. individually,jointly. severally and/or in the alternative, for damages each in an amount in excess ll of Fifty Thousand Dollars ($50,006.00), together with,such other costs, interest and relief as this Honorable Court deerns just. COUNT II - NEGLIGENCE PLAINTIFF-WIFE v. DEFENDANT HERITAGE DIAGNOSTIC CENTER, HERITAGE MEDICAL GROUP AND TRiSTAN ASSOCIATES 45. Paragraphs 1 through 44 are incorporated herein by reference as though fully set Forth. 46. The aforesaid injuries and damages were caused by the negligence and carelessness of Defendants Tristan Associates, Heritage Diagnostic Center, and heritage Medical Group, individually,jointly, severally and/or in the alteniative, which consisted of the following: a. Failing to diagnose Plaintiff-Wile's medical condition in a timely manner; b. Incon-ectly diagnosing Plaintiff-Wife's medical condition;_ c. Failing to order and/or interpret appropriate examinations and/or testing; d. im.propeily recommending six-month follow-up treatment; e.. Failing to observe, report and/or diagnose the carcinoma located in Plaintiff- Wife's left breast abnormality: f Failing to make sure that Plaintiff-Wife would have reasonable follow-up care to determine the exact diagnosis and proper treatment of her illness; g. Failing to obtain a comprehei3sive past medical history; h. Failing to properly inform Plaintiff=Wife as to possible symptomatology and regularity of appropriate diarrostic testing; i. Failing to properly advise Plaintiff=«fife as to signs, symptoms, and need to return for a differential diagnosis: j. Failing to suggest further testing to evaluate Plaintiff-Wife's left breast abnormalities; k. Failing to properly advise Plaintiff-Wife and/or her treating physician as to the means, method, and manner of securing a differential or further diagnosis. 12 including but not limited to, furl her diagnostic testing and/or nxammographic and/or ultrasonographic testing and/or biopsy and/or evaluation by a specialist; 1. Failing to interpret the results of Plaintiff Wife's rmmntogram and ultrasound accurately, carefully, and within the proper standard of care; nt. Failing to perform an appropriate physical examination of Pla.intiffWife's tell breast to identify any abnormalities; it. Failing to record, report or reference the presence of an a.bnorrnality and/or mass in Plaintiff's left breast. o. Failing to advise Plaintiff--Wife of the fact that site had developed breast.cancer; p. .Failing to' advise Plaintiff-Wife of the fact that she Would need treatment for breast cancel; q. Failing to advise Plaintiff=Wife that she was at risk for developing metastatic breast cancer; r. Failing to consult Plaintiff-Wife regarding tier diagiosis and treatment options for. her breast cancer, s. Failing to advise Plaintiff-Wife to return for immediate surveillance and/or, diagnostic testing; t. Failing to tintcly, properly, and/or adequately become knowledgeable or otherwise aware of Plaintiff-Wife's clinical medical condition and/or status: u. Failing to timely, properly and/or adequately avail herself of available and pertinent medical writings, publications. information, and/or diagnostic technology; yr Failing_ to timely, properly,and/or adequately recognize, evaluate, classify and/or treat Plaintiff Wifc as at. risk for developing complications of left breast cancer plus other sequelae thereof; w, Failing to timely, properly and/or adequately order, request, recommend,perform, report on and/or interpret appropriate examinations, tests evaluations and/or'care in light of Plaintiff-Wife's respective history and/or then current signs, symptoms, and conditions; x. Failing to timely, properly and/or adequately assess Plaintiff Wife for and/or diagnose PlaintiffWife.as suffcring from and/or being at risk for breast cancer plus other sequelae and/or complications thereof, 13 y. Failing to timely, properly and/or adequately assess, diagnose, interpret, treat, report and/or respond to Plaintiff-Wife's March 10. 2008 rnammogram and ultrasound, z. Filing to observe and/or recognize abnormalities in Plairitiff-Wife's breast that. ZD would have demonstrated that Plaintiff-Wife was at risk for and/or in the early stages of breast cancer; aa. Failing to tirnely, properly and/or adequately see, examine, diagnose and/or treat Plaintiff-Wife; bb. Failing to timely, properly and/or adequately prescribe, provide and/or perform a thorough ultrasound and/or inarnmogram under the CiI-CUDIstanccs; cc. Failing to timely, properly and/or adequately communicate to other doctors regarding Plaintiff-Wife's history. examinations, test results. signs, symptoms. ID conditions,diagnoses and/or plans of care- dd. Failing to timely, properly and/or adequately document Plaintiff Wife's history, examinations, test results, signs. symptoms, conditions, diagnoses and/or plan of care*, ee. Failing to timely, properly and/or adequately consult with appropriate physicians regarding Plaintiff-Wife's mammography and/or ultrasound,, ff. 'Failing to give significance to the findings and/or diagnoses of other physicians involved in Plaintiff-Wife's care and treatment.: g- Improperly ignoring and/or discounting the significance of findings and/or diagnoses of other physicians with regard Plaintiff-Wife's prior marnmogTarn and/or ultrasound and/or symptoms; hh. Failing to timely, properly and/or adequately respond to notification and/or infionriation provided by others regarding Plaintiff-NA/Ife's status. signs, syn-ipton,is, and/or conditions; H, Falling to timely, properly and/or adequately discover the aforcriolcd Careless and negligent conduct and/or to timely diagnose and/or• respond to the consequences and significance thereof, j Failing to timely, properly and/oi.- adequately exercise that degree of skill, care g and treatment, and/or possess that degree of knowledge ordinarily possessed and 11) In exercised by other members of her profession and business under the specific circumstances; A lck. Failing to timely, properly and/or adequately review and/or document tests, observations, assessments, studies, films and/or examinations to aid in the diagnosis, care and treatment of patients such as Plaintiff-Wife; I1. Failing to timely, properly and/or adequately review and/or document tests, observations, assessments, studies, films and/or examinations and/or the significance of same with respect to Plaintiff Wife; mm. Failing to immediately order follow up medical treatment. including biopsy, radiology, oncology, and/or a surgical consult upon completion of the mammogram and ultrasound, and other test which demonstrated a change; nn. Failing to timely, properly and/or adequately transfer Plaintiff\Fife to a different medical facility for evaluation, care and/or treatment of her changing medical condition; oo. Increasing the risk of harn-i to Plaintiff Wife as a result of the negligence and carelessness set forth in paragraphs(a)—(nn) above. WHEREFORE, Plaintiffs demand judgment against the Defendants Tristan Associates, Heritage Diagnostic Center, and Heritage Medical Group, individually, jointly, severally and/or in the alternative, for damages each in an amount in excess of Fifty Thousand Dollars ($50,000.00). together with such other costs, interest and relief as this Honorable Court deems just. COUNT III - VICARIOUS LIABILITY PLAINTIFF-WIFE v. DEFENDANT 14ERITAGE DIAGNOSTIC GROUP, .H.ERITAGE MEDICAL GROUP AND TRISTAN ASSOCIATES 47. Plaintiffs incorporate by reference paragraphs I through 46. inclusive, as if fully set forth herein at length. 48. Defendants, Tristan Associates, Heritage Diagnostic Center, and heritage Medical Croup, individually,jointly, severally and/or in the alternative, are vicariously liable for the acts and omissions of Defendant .16zefiak and their personnel as described herein, inclusive 1.5 of the health care providers listed in Defendants' medical records and in that regard Plaintiffs incorporate herein,by reference subparagraphs(a) through (oo) of Paragraphs 44 and 46. WHEREFORE, Plaintiffs demand judgment against the Defendants Tristan Associates. 1-tentage Diagnostic Center, and Heritage Medical Group, individually,jointly, severally and/or in the alternative, for damages each in an amount in excess of Fifty Thousand Dollars ($50,000.00), together with such other costs, interest and relief as this .Honorable Court deems j ust. COUNT [V- LOSS OF CONSORTIUM PLAINTIFF MARK BINGAAIAN v. ALL.DEFENDANTS 49. Plaintiffs incorporate by reference paragraphs l through 48, 'inclusive, as if folly set forth herein at length. 60. Plaintiffs Mark Bingaman and Michelle L. 'Binganian are legally married as husband and Wife. 61. As a direct and proximate result of the individual,joint and several negligence of all Defendants, Plaintiff Marl; Bingaman has been deprived of Plaintiff-Wife's services, companionship, consortium, society, assistance and support which have been and will be to his great .financial, physical, psychological and emotional detriment and loss. WHEREFORE, Plaintiffs demand judgment against the Defendants Tristan Associates, Heritage Diagnostic Center. Heritage Mcdical Group, Judith A. J6zefiak. M.D.. individually. jointly, severally and/or in the alternative, for damages each in an amount in excess of Fifty Thousand Dollars ($50,000.00). together with such other costs, interest and relief as this 16 Honorable Court deems just. Respectfully submitted, GALIFAND BERGER, L.L.P. DEBRA A. JENSEN; SQUIRE HEATHER A. HARPER, ESQUIRE l 8l 8 Market Street, Suite 2300 P.lailadelphia. PA 19103 (215) 665-1600 Attonieys for Plaintiff 17 i VERIFICATION We hereby affiurn that the following facts are correct: We are the Plaintiffs in the foregoing action and the attached Complaint is based upon: information which we have furnished to our counsel and information which has been gathered by our counsel in preparation of our lawsuit. The language of the Complaint is that of counsel and not of us. We have read the Complaint and to the extent that the Complaint is based upon information which we have given to our counsel,it is true and correct to the best of our knowledge,information and belief. To the extent that the content of the Complaint is that of counsel,we have relied upon counsel in making this Verification. We hereby acknowledge that the facts set forth in the aforesaid Complaint are made subject to the penalties of 18 Pa.C.S. §4904 relating to unworn falsification to authorities. DATE: �—Q MICHELLE BING 1V1AAK BINGE a j"A R Y 1. CRAIG CURRIE 8: ASSOCIATES. P.C. BY: 1. Craig Currie. Esquire � y �r1ri0 4p, 11: 40 25i6 Floor hOO t NYNT PJelphia PA 19103-72,25 YLVAI /A (215) 564-0833 Fa. (215) 523-7911 Currie®phillylaw.nel Attorney for Plaintiff COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA MARK BINGAMAN, in his own right and as Administrator of the Estate of MICHELLE L. BINGAMAN PLAINTIFFS 10-3338 CIVIL TERM V. JUDITH A.JOZEFIAK, M.D. and TRISTAN ASSOCIATES, DEFENDANTS PLAINTIFF'S AMENDED COMPLAINT 1. On or about February 20, 2012, Michelle L. Bingaman died. 2. On or about May 16, 2012, Michelle L. Bingaman's husband, Mark Bingaman was named the administrator of the estate of Michelle L. Bingaman. 3. On or about February 13, 2013 Mark Bingaman filed and served in this action a Notice of Death and a Substitution of Successor Plaintiff naming him as the Successor Plaintiff. 4. In his capacity as the Plaintiff in this matter, Mark Bingaman incorporates herein by reference as though fully set forth herein the allegations and averments of the original complaint filed in this matter on or about August 26, 2009. A true and correct copy of aforesaid complaint is attached hereto and marked Exhibit"A." COUNT I. Wrongful Death 5. Paragraphs 1 through 4 are incorporated herein by reference as though fully set forth herein. 6. The death of Plaintiff s decedent was caused by the negligence of the defendants as set forth in detail in the original complaint and was in no way caused by the conduct of the decedent who at all times material hereto acted as a reasonable and prudent person looking out for her health, safety and welfare. Moreover, at no time did the decedent assume the risk of her death in her selection of the courses of treatment she pursued in an effort to treat and cure her cancer because each was recommended to her by her then treating physician or physicians. In the alternative, the negligence and carelessness of the defendants as set forth in the original complaint increased the risk that decedent would be caused the injuries and the death that she in fact was caused to suffer. 7. Mark Bingaman, as administrator of the estate of Michelle L. Bingaman and in his own right brings this action on behalf of decedent's survivors, under and by virtue of the act of 1855 P.L. 309 as amended, and Pa. R.C.P. 2002 and 42 Pa. C.S.A.§ 8301 et seq as well as all other acts which may be applicable. 8. The decedent left surviving her the following persons entitled to recover damages for her death and on his behalf this action is brought; a. Mark Bingaman, husband; b. Sean Herman, son; and c. Shane Herman, son. 9. By reason of the death of the decedent, Mark Bingaman has incurred recoverable expenses including but not limited to: (a) funeral expenses and (b) costs of administration of the estate. WHEREFORE, plaintiff demands judgment against all the defendants,jointly and severally,for a sum in excess of$50,000 as well as delay damages as allowed by law. COUNT II. Survival Action io.Paragraphs 1 through 4 and Count I are incorporated herein by reference as though fully set forth herein. ii. Plaintiff also brings this action on behalf of the estate of Michelle L. Bingaman, deceased, under and by virtue of the Probate Estates &Fiduciaries Code 20 Pa. C.S.A. § 3373 and 42 Pa. C.S.A. § 8302. 12. Plaintiff claims, on behalf of the estate,those damages suffered by said estate by reason of the death of Michelle L. Bingaman, as well as for the pain and suffering decedent underwent prior to her death, and the loss of life's pleasures she would have enjoyed but for her tortiously inflicted injury and death. WHEREFORE, plaintiff demands judgment against all the defendants,jointly and severally,for a sum in excess of$50,000 as well as delay damages as allowed by law. J.CRAIG CURRIE&ASSOCIATES,P.C. J. C ai)turrie, Esq. VERIFICATION The undersigned, having read the attached Amended Complaint, verifies that the within pleading is based on information furnished to counsel, which information has been gathered by counsel in the course of this lawsuit. The language of the pleading is that of counsel and not of signer. Signer verifies that he has read the within pleading and that it is true and correct to the best of signer's knowledge, information and belief. To the extent that the contents of the pleading are that of counsel, verifier has relied upon counsel in taking this Verification. This verification is made subject to the penalties of 18 Pa. R.CP. §4904 relating to unsworn falsification to authorities. Mark Bingaman 25 01 GALFAND BERGER, LLP. Attorneys for:Plaintiff BY: DEBRA A. .1ENSEN, ESQUIRE Identification No.: 33598 HEATHER A. .HARP.ER, ESQUIRE Identification No.: 206035 1818 Market Street, Suite 2300 Philadelphia, Pennsylvania 19103 (215) 665-1600 MICHELLE L. BINGAMAN and COURT OF COMMON FLEAS MARK BINGAMAN, h/w 11525 Hasp 1-1111 Road DAUPHIN COUNT' Myerstown. MD 21.773 Plaintiffs, NO. JUDITH A. .IOZEFIAK. M.D. _C �04 (o( --CQ 3 Walnut Street, Suite 100 Lemo )qne. PA 17043 CI J1L ACTION LAW and HERITAUE DIAGNOSTIC CENTER 3 Walnut Strcct, Suite 100 JURY "I'RiAL DE'MAND'ED Lemoyne, PA 17043 and HERITAGE MEDICAL GROUT' 3 Walnut Street, Suite 206 Lemoyne. PA 17043 and EXHIBIT A r , TRISTAN ASSOCIATES ,Y 4520 Union Deposit Road Harrisburg, PA 171 1 1 '' �" 1' 0 1 Defendants. r Y CIVIL ACTION COMPLAINT NOTICE YOU HAVE BEEN SUED IN COURT. If YOU wish to defend against the claims set forth in file following pages, you must take action within twenty (20) days after this Complaint and Notice are served, by entering a written appearance personally oi- by attorney and ding in writing with the Court your defenses or objections to the claims set forth against you. You are warned that if you fail to do so the case may proceed without you and a judgment may be entered against you by the Court Without fUrther notice for any money claimed in the Complaint or for any other claim or relief requested by the Plaintiff. You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER, GO TO OR TELEPHONE T14E OFFICE SET FORTH BELOW. THIS OFFICE CAN PROVIDE YOU WITH INFORMATION ABOUT HIRING A LAWYER. IF YOU CANNOT AFFORD TO HIRE A LAWYER, THIS OFFICE MAY BE ABLE TO PROVIDE YOU WITH INFORMATION ABOUT AGENCIES THAT MAY OFFER LEGAL SERVICES TO ELIGIBLE PERSONS AT A REDUCED FEE OR NO FEE. DAUPHIN COUNTY LAWYER REFERRAL SERVICE 213 North Front Street Harrisburg, PA 17101 (717) 232-7536 NOTICE CONCERNING MEDIATION OF ACTIONS PENDING BEFORE THE COURT OF COMMON PLEAS OF DAUPHIN COUNTY The .fudges of the Court of Common Pleas of Dauphin County believe that mediation of lawsuits is a very important component of dispute resolution. Virtually all lawsuits can benefit in some manner from mediation. The Court has adopted Dauphin County Local Rule 1001 to encourage the use of mediation. This early alcrt enables litigants to determine the best time during the life of their lawsuit for a mediation session. The intent of this early alert is to help the parties act upon the requirement to consider good faith mediation at the optimal time. The Dauphin County Bar Association provides mediation services and can be reached at 717- 232-7536. Free mediation sessions for pro bono cases referred by MidPenn Legal Services are available through the DCBA. AVISO LISTED H.A SIDO DEMANDADO/A EN CORTE. Si usted desea dcfenderse de las demandas que se presentan mas adelante en las siguientes paginas. debe tomar acci6n dentro de los pr6ximos veinte (20) dias despucs de la notificaci6n de esta Demanda y Aviso radicando personalmente o por medio de un abogado una comparecencia escrita y radicando en la Corte por escrito sus defensas de. y objecciones a, las demandas presentadas aqui en contra soya. Se le advierte de que si usted falla de tomar acci6n corno se describe anterrormente, el caso puede proceder sin usted y un fallo por cualquier soma de dinero reclamada en la demanda o cualquier otra reclarnaci6n o remedio solicitado por el demandante puede ser dictado en contra suya por la Corte sin mas aviso adicional. Usted puede perder dinero o propiedad a otros derechos importantes Para usted. USTED DE:BE LLEVAR ESTE DOCUMENTO A SU ABOGADO INMEDIATAM.ENTE. Sl USTED NO TIENE UN ABOGADO. .LLAME O VAYA A LA SIGUI.ENTE OFICINA. ESTA OFICINA PUEDE PROVEERLE INFORMACION A CERCA DE COMO CONSEGUIR UN ABOGADO. SI USTED NO PUEDE PAGAR POR :LOS SERVICIOS DE UN ABOGADO, ES POSIBLE QUE ESTA OFI.CINA LE PUEDA PROVEER INFORMACION SO.BRE AGENCIAS QUE OFR.EZCAN SERVICIOS LEGALES SIN CARGO O BRIO COSTO A PERSONAS QUE CUALIFICAN. DAU1314IiN COUNTY LA«'YER REFERRAL SERVICE 213 North Front Street Harrisburg, PA 17101 3 (717) 232-7536 AVISO REFERENCES A LA MEDIACION DE LAS ACCIONES 'PENDIENTES ANTES LA CORTE DE SOPLICAS COMUNES DEL CONDADO DE DAUPHIN LOS jueces de la corte de siiplicas comunes del condado de Dauphin creep que is mediacion de pleitos es un componente muy importante de la resolucion del conflicto. Virtualmente todos los pleitos pueden bene[iciar de cierm manera de la mediacion. La code lia adoptado la regla local de condado de Dauphin 1.001 Para animar el use de la mediacion. Esta alarma temprana permite a litigantes determiner la mejor epoca durante la vida de su pleito pa:ra una sesion de la mediacion. El intento de esta alai-ilia temprana es actuar sobre la mediaci6n de la buena fe en el tempo optimo. La asociacion de la barra del condado de Dauphin p.roporciona servicios de la mediacion se puede alcanzar en 717-232-7536. La sesion fibre de la mediacion para los favorables casos del Bono se refinio por MidPenn que los servicios juridicos estdn disponibles con el DCBA. 4 4I "s 26 P„ I. 01 GALFAND BERGER, LLP. Attorneys for Plaintiff BY: DEBRA A. JENSEN, ESQUIRE Identification No.: 33598 HEATHER A. HARPER, ESQUIRE Identification No.: 206035 1818 Market Street, Suite 2300 Philadelphia, Pennsylvania 19103 (215) 665-1600 MICHELLE L. BINGAMAN and : COURT OF COMMON PLEAS MARK BI:NGAMAN, hJw 11525 Harp I-3i11 Road DAUPHIN COUNTY Myerstown, MD 21773 Plainti ffs, V. NO. JUDITH A. J07EFIAK, M.D. 3 Walnut Street, Suite 100 Lemoyne, PA 17043 CIVIL ACTION .LAW and HERITAGE DIAGNOSTIC CENTER 3 Walnut Street, Suite 100 IURY TRIAL DEMANDED Lemoyne, PA 17043 and HERITAGE MEDICAL GROUP 3 Walnut Street, Suite 206 Lemoyne, PA 17043 and TRISTAN ASSOCIATES 4520 Union Deposit Road Harrisburg, PA 17111 Defendants. CIVIL ACTION COMPLAINT I. Plaintiffs Michelle L. Bingarpan and Mark. Bingarnan are adult individuals and citizens of the state of Maryland, residing therein at 11525 Hail) Hill Road, Myerstown, MD 21773. 2. At all times material hereto. Defendant, Tristan Associates (herein "Tristan"). was a corporation and/or other business entity as well as a 'medical and health provider and/or healthcare organization duly organized and existing under the laws of the Commonwealth of Pennsylvania, with a offices located at the address set forth above. 3. At all times material hereto, Defendant Tristan acted individually and/ot' by and through its parent corporations, subsidiaries, successors, agents, apparent agents, servants, contractors, workers and/or employees, including the facilities, doctors, nurses, technicians and/or other healthcare workers identified and/or described herein and/or in its medical records pertaining to Plaintiffs. 4. At all times material hereto, Defendant, Heritage Diagnostic Center (herein "Heritagc Diagnostic-)- was a corporation and/or other business entity as well as a medical and health provider and/or healthcare organization duly organized and existing under the laws of the Commonwealth of Pennsylvania, with offices located at the address set forth above. 5. At all times material hereto. Defendant Heritage Diagnostic, acted individually and/or by and through its parent corporations, subsidiaries, successors, agents, apparent agents, servants, contractors, workers and/or employees, including the facilities, doctors, Nurses, 2 technicians and/or other healthcare workers identified and/or described herein and/or in its medical records pertaining to Plaintiffs. 6. At all times material hereto, Defendant, Heritage Medical Group (herein "Heritage Medical"), was and is a corporation and/or other business entity as well as a medical and health provider and/or healthcare organization duly organized and existing under the laws of the Commonwealth of Pennsylvania, with offices located at the above stated address. 7. At all times material hereto, Defendant Heritage Medical, acted individually and/or by and through its parent corporations, subsidiaries, successors, agents, apparent agents, servants, contractors, workers and/or employees, including the facilities. doctors, nurses, technicians acid/or other healthcare workers identified and/or described herein and/or in its medical records pertaining to Plaintiffs. S. In the alternative, Heritage Diagnostic was under the control and direction of Heritage Medical, engaged in the business of providing medical, radiological, diagnostic and/or health care to the public with business addresses as set forth above. 9. At all times material hereto, Heritage Diagnostic acted as the actual, apparent and/or ostensible agent of Heritage Medical. 10. Heritage Medical, Heritage Diagnostic and Tristan are each vicariously liable for the acts and/or omissions of the other. 11. Defendants Heritage Diagnostic, Heritage Medical, and Tristan are hereinafter referred to collectively as "Defenclaut Radiology Practice Group.- 3 12. Defendant Judith A. .16zefiak. M.D. {hereinafter ".16zefiak- or "Defendant Radiologist"} is a physician licensed to practice medicine in the Commonwealth of Pennsylvania, with offices located at the address set forth above, 11 At all,times material hereto, Defendant J6zefiak held herself out to the public and to the Plaintiffs as a physician specializing in the fields of mammography, ultrasonography, stercotaefic breast biopsy, body imaging, and diagnostic radiology. 14. At all times material hereto..Defcndant J6zefiak acted individually, and/or as the agent, employee, independent contractor and/or seiwant of Defendant Radiology Practice Group. 15. At all times material hereto. Defendant .16zefiak, acted individually and/or as the agent, apparent agent, servant, independent contractor, worker, and/or employee of Defendant Radiology Practice Group and was then and there acting within the course and scope of her employment, agency and/or independent contractor status. 16. At all times material hereto, Defendant Radiology Practice Group acted by and through its agents, servants and/or employees, acting upon its business and within the course and scope of their employment. including but not limited to Defendant J6zefiak, as well as other physicians, residents, interns, nurses. aides, technologists, therapists, nutritionists. and consultants whose identities are reflected in the medical records of Plaintiff, which records are within the exclusive control of Defendant Radiology Practice Group and whose identities are readily discernible to Defendant Radiology Practice Group but are not readily discernible to zr Plaintiffs absent formal discovery. 17. At all times material, Defendant Radiology Practice Group was cri-aged through 0 Z� 1�1 its agents, servants, employees, and those staff personnel hereiribefore: and hereinafter identified, in rendering professional and medical care to the public, and thereby held itself out to the public 4 generally, and to Plaintiff specifically, as being skilled in the practice of general medicine, mammography, stereotactic breast biopsy, body imaging and that - piostic radiology, and thereby accepted responsibility of providing appropriate and adequate medical, radiological, and diagnostic care to Plaintiff in accordance with the prevailing standards of medical and hospital practice and pertinent community, state and national standards and codes. 18. On or about September 12, 2007 and thereafter, Plaintiff-Wife employed the Defendant Radiology Practice Group and Defendant J6zefiak for compensation to provide medical, diagnostic, high risk care evaluation, and/or treatment to her and she thereby came under the professional care, attention, control and treatment of Defendant Radiology Group and Defendant.16zefiak. 19. On or about September 12, 2007 Plaintiff-WC underwent a bilateral marrimograin study and breast ultrasound at the offices of Defendant Radiology Practice Group and Defendant J67.efiak, 20. Plaintiff-Wife-s September 12, 2007 bilateral illammogram and left breast ultrasound demonstrated abnormalities in the left breast, and a follow-up illaillillogram was recommended in March 2008. 21. On or about March 10, 2008, Plaintiff-Wife reported to Defendant Radiology Practice Group and underwent the recommended follow-up marnmograrn and ultrasound of her left breast. 22. Upon inforniation and belief Plaintiff-Wife's marriniograill and ultrasound studies were inteilveted in the offices of Tristan Associates. 23. Defendant J6zefiak interpreted Plaintiff-Wife's March 10. 2008 ,maninlograrn and ultrasound. 5 24. Defendant .16zefiak reported an area of abnormality in Plaintiff Wife's left breast. described as a benign glandular asymmetry. 25. Defendant J6zefiak did not report or record a possible maligniancy in Piaintiff- Wife's left breast.' 26. Upon inforniation and belief, as of March 10. 2008, Plaintiff=Wife was suffering from left breast carcinoma. 27. Upon information and belief, as of March 10. 2008, the carcinoma in Plaintiff- Wife's left breast was visible and recognizable in Plaintiff-Wife's mammogram and ultrasound imaging studies and should have been identified. recognized and reported upon by Defendant. J6zefiak. 28. Instead, Defendant J67-efiak merely recommended that Plaintiff--Wife undergo a follow-up mammogram in September 2008. 29. Upon information and belief. Defendant J6zefiak failed to interpret Plaintiff- Wife's March 10. 2008 mammogram and ultrasound results accurately, carefully, and within the proper standard of care. 30. Upon information and belief. Defendant Ipzefiak should have contacted Plaintiff s treating physician about the aforesaid abnormality and/or referred Plaintiff-Wife to a specialist for appropriate follow-up evaluation including an immediate biopsy and/or further diagnostic testing of the abnormality in Plaintiff-Wile's left breast. 31. On or about September 11, 2008, Plaintiff reported to the office of Defendant Radiology Practice Group in accordance with Defendant ;167.efak"s recommendations for a third follow-up mamtmogram and ultrasound of her left breast. at which time her left breast carcinoma was diagnosed. 6 32. Thereafter, Plaintiff-Wife underwent an ultrasound-guided biopsy which revealed a high-grade invasive ductal carcinoma of her left breast. 33. Following the aforesaid diagnosis. Plaintiff-Wife underwent a bone scan and thoracic spine MR1 which revealed she had developed metastatic breast cancer. 34. Had Defendants promptly and properly conducted and managed Plaintiff-Wife's care, including but not limited to the interpretation, recording and repoTtirag of the March lU, 2008 mammogr-am and ultrasound of Plaintiff-Wife's left breast, Plaintiff-Wife's breast cancer could have been detected, treated, contained, and possibly cured. 35. As a direct and proximate result of the joint and several negligence and carelessness of all Defendants as set forth herein, Plaintiff-Wife's left breast cancer went undiagnosed and untreated for a significant period of time during which time it developed to an advanced stage, negating any chance for Plaintiff-Wife's survival. or in the alternative, greatly reducing the Iength of time that Plaintiff-Wife will survive the cancer. 36. ' As a direct and proximate result of the hereinafter described individual, joint- several and/or alternative negligence and liability-producing conduct of Defendants, Plaintiff- Wife lost the opportunity to have potential life-saving and/or life-prolonging treatment. 37. As a direct and proximate result of the hereinafter described individual, joint, several and/or alternative negligence and liability-producing conduct of Defendants, Plaintiff- Wife has suffered and may forever continue to suffer from great emotional and/or physical pain, suffering, anxiety, depression. nightmares, flashbacks• embarrassment. and loss of life's pleasures. 3S. As a direct and proximate result of the hereinafter described individual, joint, several and/or alternative negligence and liability-producing conduct of Defendants, Plaintiff - 7 Wife has required medical care, surgery, therapy and treatment, medical modalities, and the like With resulting financial cost and obligations. 39. As a direct and proximate result of the hereinafter described individual, joint, several and/or alternative negligence and 'liability-producing conduct of Defendants, Plaintiff Wife will be forced to spend money and incur obligations (including for such items as medical care, surgery, therapy and treatment, medical modalities, home modifications and the like) as a. result of her advanced breast cancer, injuries, and damages. 40. As a direct and proximate result of the hereinafter described individual, joint, several and/or alternative negligence and liability-producing conduct of Defendants, Plaintiff-- Wife will experience in the future a loss of earnings and/or earning capacity, and will experience an inability to engage in usual and customary lobbies, duties, work and/or responsibilities. 41. As a direct and proximate result of the hereinafter described individual, joint, several and/or alternative negligence and liability-producing conduct of Defendants, Plaintiff- Wife has lost her chance to survive and will eventually succumb to breast cancer, or complications therefrom. COUNT I—NEGLIGENCE PLAINTIFF-WIFE V DEFENDANT JUDITH A. JOZEFIAK, M.A. 42. Paragraphs 1 through 41 are incorporated herein by reference as though fully set Forth. 43. Defendant J6zefiak's negligence and/or carelessness increased Plaintiff-Wife's risk of developing incurable breast cancer, which in fact occurred. 44. The aforesaid injuries and damages were caused by the negligence and carelessness of Defendant .lozefiak, which consisted of the following. a, Failing to diagnose Plaintiff Wife's medical condition in a timely naannei; 8 b. Incorrectly diagnosing Plaintiff-Wife's medical condition*, c. Failing to order and/or interpret appropriate examinations and/or testing; d. Improperly recommending six-month follow-up treatment; e. Falling, to observe, report and/or diagnose the carcinoma located in Plaintiff Wife's.left breast abnormality: f. Falling to slake sure that Plaintiff-Wife would have reasonable follow-up care to determine the exact diagnosis and proper treatment of her illness-, g. Failing to obtain a comprehensive past medical history; h, Falling to properly inform Plaintiff-Wife as to possible symptom"Itology and regularity of appropriate diagnostic testing; i. Failing to properly advise Plaintiff Wife as to signs, symptoms, and need to return for a differential diagnosis; J. Failing to suggest further testing to evaluate Plaintiff-Wife's left breast abnormalities; k. Failing to properly advise Plaintiff-Wife andlor her treating physician as to the means, method, and manner of securing a differential or further diagnosis, including but not limited to, further diagnostic testing, and/or maninlographic and/or ultrasonographic testing and/or biopsy and/or evaluation by a specialist, 1. Failing to Interpret the results of Plaintiff-Wife's marnmogram and ultrasound accurately, carefully, and within the proper standard of care; m. Failing to perform an appropriate physical examination of Plaintiff-Wife's left breast to identify any abnormalities; n. Failing to record, report or reference the presence of all abnormality and/or mass in Plajntlffs lcfi breast.- o, Failing to advise Plaintiff-Wife of the fact that she had developed breast canccr-, p. Faflin,­, to advise Plaintiff-Wife of the fact that she would need treatment for breast cancer; q. Failing to advise Plaintiff-Wife that she was at risk. for developing metastatic breast cancer: r. Failing to consult Plaintiff-Wife regarding her diagnosis and treatment options for her breast cancer; 9 s. Failing to advise Plaintiff-Wire to return for immediate surveillance and/or diagnostic testing: t. Failing to timely, properly. and/or adequately become knowledgeable or otherwise aware of Plaintiff-Wife's clinical medical condition and/or status: u. Failing to timely, properly and/or adequately avail herself of available and pertinent medical writings, publications, information, and/or diagnostic technology; v. Failing to timely, properly and/or adequately recognize, evaluate, classify and/or treat Plaintiff-Wife as at risk for developing complications of left breast cancer plus other sequelae thereof; w. Failing to timely,properly and/or adequately Order, request, recommend,perform, report on and/or interpret appropriate examinations, tests evaluations and/or care in light of Plaintiff-Wife's respective history and/or.then current signs. symptoms- and conditions; x. Failing to timely, properly and/or adequately assess Plaintiff-Wife for and/or- diagnose Plaintiff-Wife as suffering from and/or being at risk for breast cancer plus other sequelae and/or complications thereof: y. Failing to timely, properly and/or adequately assess, diagnose, interpret, treat, report and/or respond to Plaintiff-Wife's March 10, 2008 mammogram and ultrasound; z. Filing to observe and/or recognize abnormalities in Pia.intiff-Wife's breast that would have demonstrated that Plaintiff-Wife was at .risk for and/or in the early stages of breast cancer; aa. Failing to timely, properly and/or adequately see, examine, diagnose and/or treat Plaintiff-Wife: bb. Failing to timely, properly and/or adequately prescribe, provide and/or perform a thorough ultrasound and/or mammogram under the circumstances; cc. Failing to timely; properly and/or- adequately communicate to other doctors regarding Plaintiff-Wife's history. examinations. test results. sigms. symptoms. conditions. diagnoses and/or plans of care; dd. Failing to timely, properly and/or adequately docuirient Plaintiff-Wife's history. examinations, test results, signs, symptoms. conditions, diagnoses and/or plan of care; ee. Failing to timely. properly and/or adequately consult with appropriate physicians regarding Plaintiff-Wife's mammography and/or ultrasound: 1.0 ff, Failing to give significance to the findings and/or diagnoses of other- physicians involved in Plaintiff-Wife's care and treatment; gg. Improperly ignoring and/or discounting the significance of findings and/or diagnoses of other physicians with regard Plaintiff-Wife's prior mammogram and/or ultrasound and/or symptoms; hh. Failing to timely, properly .and/or adequately respond to notification and/or information provided by others regarding Plaintiff-Wife's status. signs, symptoms, and/or conditions; ii. Failing to timely, properly and/or adequately discover the aforcnoted careless and negligent conduct and/or to timely diagnose and/or respond to the consequences and significance thereof; jj. failing to timely, properly and/or adequately exercise that degree of skill, care and treatment, and/or possess that degree of knowledge ordinarily possessed and exercised by other members of her profession and business under the specific circumstances: kk. Failing to timely. properly and/or adequately review and/or document tests, observations, assessments, studies, films and/or examinations to aid in the diagnosis, care and treatment of patients such as Plaintiff-Wife; ll. Failing to timely, properly and/or adequately review and/or document tests, observations, assessments, studies, films and/or examinations and/or the significance of same with respect to Plaintiff-Wife; mm. Failing to immediately order follow up medical treatment, including biopsy, radiology, oncology, and/or a surgical consult upon completion of the mammogram and ultrasound. and other test which demonstrated a change; nn. Failing to timely, properly and/or adequately transfer Plaintiff-Wife to a different. medical facility for evaluation, care and/or treatment of her changing medical condition: oo. Increasing the risk of harm to Plaintiff-Wife as a result of the negligence and carelessness set forth in paragraphs(a) —(nn) above. WHEREFORE, Plaintiff demand judgment against Defendant Judith A. J6zefiak. M.D.. individually,jointly, severally and/or in the alterative, for damages each in an amount in excess it of Fifty Thousand Dollars (S50.000.00), together with such other costs, interest and relief as this Honorable Court deems just. COUNT 11 - NEGLIGENCE PLAINTIFF-WIFE v. DEFENDANT HEIUTAGI' DIAGNOSTIC,CI NTER, IIFRITAGE MEDICAL GROUP AND TRISTAN ASSOCIATES 45. Paragraphs I through 44 arc incorporated herein by reference as though fully set forth. 46. The aforesaid injuries and damages were caused by the negligence and carelessness of Defendants Tristan Associates. Heritage ,Diagnostic Center, and Heritage Medical Group. individually,jointly, severally and/or in the alternative,which consisted of the following: a. Failing to diagnose Plaintiff-Wife's medical condition in a timely planner; b. htcorrectly diagnosing Plaintiff-Wife's medical condition; c. Failing to order and/or interpret appropriate examinations and/or testing; d. Improperly recommending six-month follow-up treatment; e. Failing to observe, report and/or diagnose the carcinoma located in Plaintiff- Wife's left breast abnonnality; f. Failing to make sure that Plaintiff-Wife would have reasonable follow-Lip care to determine the exact diagnosis and proper treatment of her illness; U. Failing to obtain a comprehensi�e pass medical 1listory; h. Failing to properly inform Plaintiff-Wife as to possible symptonlatology and regularity of appropriate diagnostic testing; i. Failing to properly advise Plaintiff-Wife as to signs, symptoms, and need to return for a differential diagnosis: j. Failing to suggest further testing to evaluate Plaintiff Wife`s left breast abnormalities; k. Failing to properly advise .Plaintiff-Wife and/or her treating physician as to the means, method, and manner of securing a differential or further diagnosis. 12 including but not limited to, further diagnostic testing and/or mamnnographic and/or ultrasonographic testing and/or biopsy and/or evaluation by a specialist; I. Failing to interpret the results of Plaintiff-W.ife's mammogram and ultrasound accurately, carefully, and within the proper standard of care; m. Failing to perform an appropriate physical examination of Plaintiff-Wife's left breast to identify any abnormalities; m Failing to record, report or reference tine presence of an abnormality and/or mass in Plaintiffs left breast: o. Failing to'adv.ise Plaintiff-Wife of the fact that she had developed breast:cancer; p. Failing to advise Plaintiff-Wife of the fact that she Would need treatment for breast cancer; q. Failing to advise Plaintiff-Wife that she was at risk for developing metastatic breast cancer; r. Failinag to consult Plaintiff-1�4�ife regarding her diagnosis and treatment options for her breast cancer; s. _Failing to. advise Plaintiff-Wife to return for immediate Surveillance and/or diagnostic testing; t. Failing to timely, properly, and/or adequately become knowledgeable or otherwise aware of Plaintiff-Wife's clinical medical condition and/or status; u. Failing to timely, properly and/or adequately avail herself of available and pertinent medical writings, publications. information, and/or diagnostic technology; N1. Failing to timely, properly and/or adequately recognize, evaluate, classify and/or treat Plaintiff-Wife as at. risk for developing complications of left breast cancer plus other sequelae thereof; w. Failing.to timely, properly and/or adequately order, request, recommend, perform, report on and/or interpret appropriate examinations, tests evaluations and/or care in light of PlaintiffWife's respective histor}� and/or then current signs. symptoms, and conditions; x. Failing to timely, properly and/or adequately assess Plaintiff-Wife for and/or diagnose Plaintiff Wife as suffering from and/or being at risk for breast cancer plus other sequelae and/or complications thereof, a y. Failing to timely, properly and/or adequately assess, diagnose, interpret, treat, report and/or respond to Plaintiff-Wife's March 10, 2008 mammogram and ultrasound; z. Filing to observe and/or recognize abnormalities in Plaintiff Wife°s breast that would have demonstrated that Plaintiff-Wife was at risk for and/or in the early stages of breast cancer; aa. Failing to timely, properly and/or adequately see, examine, diagnose and/or treat Plaintiff-Wife; bb. Failing to timely, properly and/or adequately prescribe, provide and/or perform a . thorough ultrasound and/or mammogram under the circumstances; cc. Falling to timely, properly and/or adequately communicate to other doctors regarding Plaintiff-Wafe^s history. examinations. test results. signs, symptoms. conditions, diagnoses and/or plans of care; dd. .Failing to timely, properly and/or adequately dOCLrrllerlt Plaintiff-Wife's history, examinations, test results, signs, symptoms, conditions, diagnoses and/or plan of care; ee. Failing to timely, properly and/or adequately consult with appropriate physicians regarding Plaintiff-Wife's mammography and/or ultrasound; f. Failing to give significance to the findings and/or diagnoses of other physicians involved in Plaintiff-Wife's care and treatment, gg. Improperly ignoring and/or discounting the significance of findings and/or diagnoses of other physicians with regard Plaintiff-Wife's prior mammogram and/or ultrasound and/or symptoms; hli. Failing to timely; properly and/or adequately respond to notification and/or information provided by others regarding Plaintiff-Wife's status. signs, symptoms, and/or conditions; ii, Failing to tamely, properly and/or adequately discover the aforenoted-careless and negligfent conduct and/or to timely diagnose and/or respond to the consequences and sigrrificance thereof; j.j. Palling to.timely, properly and/or adequately exercise that degree of skill, care and treatment, and/or.possess that degree of knowledge ordinarily possessed and exercised by other members of her profession and business under the specific ca'rcum Stall Ces, 14 kk. Failing to timely; properly and/or adequately review and/or document tests, observations, assessments, studies, films and/or examinations to aid in the diagnosis, care and treatment of patients such as Plaintiff-Wife; 11. Failing to timely, properly and/or adequately review and/or document tests, observations, assessments, studies, films and/or examinations and/or the significance of same with respect to Plaintiff-Wifc; film. Farling to immediately order follow up medical treatment, including biopsy, radiology, oncology, and/or a surgical consult upon completion of the mammogram and ultrasound, and other test which demonstrated a change; nn. Failing to timely, properly and/or adequately transfer Plaintiff-Wife to a different medical facility for- evaluation, care and/or treatment of filer changing medical condition; oo. Increasing the risk of harm to Plaintiff-Wife as a result of the negligence and carelessness set forth in paragn•aphs(a)—(nn) above. WHEREFORE, Plaintiffs demand judgment against the Defendants Tristan Associates. Heritage Diagnostic Center, and Heritage Medical Group, individually, jointly, severally and/or in the alternative, for damages each in an amount in excess of Fifty Thousand Dollars ($50,000.00), together with such other costs, interest and relief as this Honorable Court deems just. COUNT III - VICARIOUS LIABILITY PLAINTIFF-WIFE v. DKFFNDANT HFRITAG.E DIAGNOSTIC GROUP, I4CRTTAGII MEDICAL GROUP AND TRTSTAN ASSOCIATES 47. Plaintiffs incorporate by reference paragraphs 1 through 46, i.nclusive. as if fully set forth herein at length. 48. Defendants, Tristan Associates, Heritage Diagnostic Center, and Beritage Medical Group, individually,jointly, severally and/or in the alternative, are vicariously liable for- the acts and omissions of Defendant .lozefiak and their personnel as described herein. inclusive 15 of the health care providers listed in Defendants' medical records and in that regard Plaintiffs incorporat.c herein by reference subparagraphs (a) through (oo) of Paragraphs 44 and 46. WHEREFORE, Plaintiffs demand judgment against the Defendants Tristan Associates, Heritage Diagnostic Center, and Heritage Medical Group, individually,jointly, severally and/or in the alternative, for damages each in an amount in excess of Fifty Thousand Dollars ($50,000.00), together with such other costs, interest and relief as this Honorable Court deems just. COUNT IV- ."BOSS OF CONSORTIUM PLAINTIFF MARK BINGAMAN v. ALL DEFENDANTS 49. Plaintiffs incorporate by reference paragraphs l through 45, inclusive, as if fully set forth herein at length. 60. Plaintiffs Mark 'Bingaman and Michelle L. Bingaman are legally married as husband and Wife. 61: As a direct and proximate result of the individual,joint and several negligence of all Defendants, Plaintiff Mark Bingaman has been deprived of Plaintiff-Wife's services. companionship, consortium, society, assistance and support v-A hich have been and will be to his great financial, physical, psychological and emotional detriment.and loss. WHEREFORE, Plaintiffs demand judgment against the Defendants Tristan Associates, Heritage Diagnostic Center, 1-leritage Mcdical Group. Judith A. Jozefak. M.D.. individually. jointly, severally and/or in the alternative, for damages each in an amount in excess of Fifty Thousand Dollars ($50,000.00), together with such other costs, interest and relief as this 16 4 Honorable Court deems just. Respectfully submitted, GALFAND BERGER, L.L.P. A DEBRA A. JENSEN; SQUIRE HEATHER A. HARPER, ESQUIRE 1818 Market Street, Suite 2300 .Philadelphia; PA 19103 (215) 665-1600 Attorneys for Plainti ff 17 d yERMCATION We hereby affirm that the following facts are correct: We are the Plaintiffs in the foregoing action and the attached Complaint is based upon information which we have furnished to our counsel and information which has been gathered by our counsel in preparation of our lawsuit. The language of the Complaint is that of counsel and not of us. We have read the Complaint,and to the extent that the Complaint is based upon information which we have given to our counsel,it is true and correct to the best of our knowledge,information and belief. To the extent that the content of the Complaint is that of counsel,we have relied upon counsel in making this Verification. We hereby acknowledge that the facts set forth in the aforesaid Complaint are made subject to the penalties of 18 Pa.C.S.§4904 relating to rmswom falsification to authorities. DATE: i-Oq �s'�°,.�E�°l f _ MICHELLE BINGAMANJ i DATE: 6? MASK BINGE J. CRAIG CURRIE & ASSOCIATES, P.0 BY: J. Craig 25th Floor 1600 Market Philadelphia (215) 564-08 Fax (215) 52 currie@phill Currie, Esquire Street , PA 19103-7225 33 3-7911 ylaw.net nROTHONO 21-i ill SEP 12 PM 12: 03 CUMBERLAND COUNTY PENNSYLVANIA Attorney for Plaintiff COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA MARK BINGAMAN, in his own right and as Administrator of the Estate of MICHELLE L. BINGAMAN PLAINTIFFS 10-3338 CIVIL TERM V. JUDITH A. JOZEFIAK, M.D. and TRISTAN ASSOCIATES, DEFENDANTS Petition of Shaun Herman for Rule to Show Cause why he should not be substituted in place of Mark Bingaman as the Plaintiff acting on behalf of the Estate of Michelle Bingaman. 1. This action for personal injury was commenced by Michelle Bingaman and her husband, Mark Bingaman as the result of a delay of diagnosis of Michelle Bingaman's breast cancer. 2. The Honorable Albert J. Masland has ruled in this ease: on February 22, 2011 he entered a Rule Returnable in response to prior plaintiffs' counsel's Petition for permission to withdraw. 3. After the commencement of this lawsuit the Plaintiffs relocated to Myersville, Maryland. 4. On February 20, 2012, Michelle Bingaman died as the result of the breast cancer in Fredericktown, Maryland. 5. On or about May 16, 2012, pursuant to a Petition for a Small Estate, Mark Bingaman was named the personal representative of the estate of Michelle L. Bingaman by the Court of Frederick County, Maryland. 6. On or about February 13, 2013, Plaintiff Mark Bingaman filed a Suggestion of Death with this Court. 7. On or about May 10, 2013, Defendants consented to the filing of an Amended Complaint naming Mark Bingaman as a plaintiff in his capacity as personal representative of the estate of Michelle Bingaman as well as in his own right and converting that lawsuit into a survival action and an action for wrongful death. 8. On or about May 23, 2013 an Amended Complaint was filed in conformance with the Consent referenced the previous paragraph. 9. In the Wrongful Death Count of the Amended Complaint, Paragraph 8 alleges that: The decedent left surviving her the following persons entitled to recover damages for her death and on his behalf this action is brought; a. Mark Bingaman, husband; b. Sean [sic] Herman, son; and c. Shane Herman, son. 10. At all time pertinent hereto, and no later than May 23, 2011, the undersigned counsel has represented the interests of the Plaintiffs as they have appeared and those otherwise beneficially interested in the wrongful death damages, decedent's two adult sons: Shane Herman and Shaun Herman (incorrectly identified as "Sean" Herman in the Amended Complaint). For a brief period of time after his substitution as the lone Plaintiff Mark Bingaman continued in the active prosecution of the claim, primarily by appearing for his deposition on August 20, 2013. 12. Subsequent to the deposition, however, Mr. Bingaman has declined to provide necessary assistance in the continued prosecution of the claim by failing to: a. Assist counsel in the discovery, retrieval and/or location of various records including, but not limited to, Michelle Bingaman's application for Social Security Disability Benefits as well as her income tax returns; b. Return phone calls placed by the undersigned counsel; c. Respond to correspondence from the undersigned counsel explaining the problems created by his refusal to cooperate. 13. Between the date of his mother's diagnosis of breast cancer up until the time of her death, Shaun Herman was either living with his mother and Mark Bingaman or was visiting her regularly; he routinely accompanied her on her appointments including those for radiation and chemotherapy treatments; he was with his mother when Dr. Riceberg told her she "had only a few months left". He also attended the deposition of Mark Bingaman to serve as a "backup" for the provision of information that Mr. Bingaman might not be able to provide. 14. Since the death of his mother, Shaun Herman has relocated to Sunbury, Pennsylvania. 15. He has continued to assist in the gathering information important to the prosecution of the case notably locating and contacting potentially important witnesses (relating to damages). 16. Mr. Bingaman testified at this deposition that he has returned to Sunbury where he lives with a woman whom he referred to as his "girlfriend." 17. In light of Petitioner's demonstrated ability and willingness to assist with the pre- trial preparation of the matter and Plaintiffs disinclination to assist, Petitioner believes that his substitution as Plaintiff will better serve the interests of the beneficiaries of the death claims as well as those of the Defendants and the Court. 18. Notice of the filing of this Petition will be served on the beneficiaries of the claims, including Plaintiff Mark Bingaman, and counsel for the Defendants, as will notice of any hearings to be scheduled by the Court in disposition of this issue. 19. Counsel for the Defendants, Wiley Parker, Esquire, does not object to this Petition. WHEREFORE, Petitioner prays this Honorable Court enter the attached order substituting him as the Plaintiff in this matter and removing Mark Bingaman. J. CRAIG CURRIE & ASSOCIATES, P.C. J. CrCurrie- J. Craig Currie, Esq. VERIFICATION The undersigned, having read the attached Petition, verifies that the within Petition is based on information furnished to counsel or information which has been gathered by counsel in the course of this lawsuit. The language of the Petition is that of counsel and not of Petitioner. Petitioner verifies that he has read the within Petition and that it is true and correct to the best of his knowledge, information and belief. To the extent that the contents of the Petition are that of counsel, Petitioner has relied upon counsel in taking this verification. This verification is made subject to the penalties of 18 Pa. R.C.P. § 4904 relating to unsworn falsification to authorities. h: un Herma CERTIFICATE OF SERVICE I, J. Craig Currie, Esquire, do hereby certify that I have forwarded a true and correct copy of the Petition of Shaun Herman for Rule to Show Cause why he should not be substituted in place of Mark Bingaman as the Plaintiff acting on behalf of the Estate of Michelle Bingaman by regular U.S. Mail, postage pre- paid this lath/ day of September, 2014 to Wiley P. Parker, Esquire 937 Willow Street, PO Box 114o Lebanon, PA 19042-1140 Mark Bingaman 409 Spruce Street Sunbury, PA 17801 Shaun Herman 139 North 4th Street Sunbury, Pa 17801 J. CRAIG CURRIE & ASSOCIATES, P. J. CRAIG CURRIE & ASSOCIATES, P.C. BY:. J. Craig Currie, Esquire 25th Floor 1600 Market Street Philadelphia, PA 19103-7225 (215) 564-0833 Fax (215) 523-7911 currie@phillylaw.net HR PROTIIONO TA W7- 2Ulti SEP 12 PH 12: 03 CUMBERLAND COUNTY PENNSYLVANIA Attorney for Plaintiff COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA MARK BINGAMAN, in his own right and as Administrator of the Estate of MICHELLE L. BINGAMAN PLAINTIFFS 10-3338 CIVIL TERM V. JUDITH A. JOZEFIAK, M.D. and TRISTAN ASSOCIATES, DEFENDANTS Petition of Shaun Herman for Rule to Show Cause why he should not be substituted in place of Mark Bingaman as the Plaintiff acting on behalf of the Estate of Michelle Bingaman. 1. This action for personal injury was commenced by Michelle Bingaman and her husband, Mark Bingaman as the result of a delay of diagnosis of Michelle Bingaman's breast cancer. 2. The Honorable Albert J. Masland has ruled in this case: on February 22, 2011 he entered a Rule Returnable in response to prior plaintiffs' counsel's Petition for permission to withdraw. 3. After the commencement of this lawsuit the Plaintiffs relocated to Myersville, Maryland. 4. On February 20, 2012, Michelle Bingaman died as the result of the breast cancer in Fredericktown, Maryland. 5. On or about May 16, 2012, pursuant to a Petition for a Small Estate, Mark Bingaman was named the personal representative of the estate of Michelle L. Bingaman by the Court of Frederick County, Maryland. 6. On or about February 13, 2013, Plaintiff Mark Bingaman filed a Suggestion of Death with this Court. 7. On or about May 10, 2013, Defendants consented to the filing of an Amended Complaint naming Mark Bingaman as a plaintiff in his capacity as personal representative of the estate of Michelle Bingaman as well as in his own right and converting that lawsuit into a survival action and an action for wrongful death. 8. On or about May 23, 2013 an Amended Complaint was filed in conformance with the Consent referenced the previous paragraph. 9. In the Wrongful Death Count of the Amended Complaint, Paragraph 8 alleges that: The decedent left surviving her the following persons entitled to recover damages for her death and on his behalf this action is brought; a. Mark Bingaman, husband; b. Sean [sic] Herman, son; and c. Shane Herman, son. 10. At all time pertinent hereto, and no later than May 23, 2011, the undersigned counsel has represented the interests of the Plaintiffs as they have appeared and those otherwise beneficially interested in the wrongful death damages, decedent's two adult sons: Shane Herman and Shaun Herman (incorrectly identified as "Sean" Herman in the Amended Complaint). For a brief period of time after his substitution as the lone Plaintiff Mark Bingaman continued in the active prosecution of the claim, primarily by appearing for his deposition on August 20, 2013. 12. Subsequent to the deposition, however, Mr. Bingaman has declined to provide necessary assistance in the continued prosecution of the claim by failing to: a. Assist counsel in the discovery, retrieval and/or location of various records including, but not limited to, Michelle Bingaman's application for Social Security Disability Benefits as well as her income tax returns; b. Return phone calls placed by the undersigned counsel; c. Respond to correspondence from the undersigned counsel explaining the problems created by his refusal to cooperate. 13. Between the date of his mother's diagnosis of breast cancer up until the time of her death, Shaun Herman was either living with his mother and Mark Bingaman or was visiting her regularly; he routinely accompanied her on her appointments including those for radiation and chemotherapy treatments; he was with his mother when Dr. Riceberg told her she "had only a few months left". He also attended the deposition of Mark Bingaman to serve as a "backup" for the provision of information that Mr. Bingaman might not be able to provide. 14. Since the death of his mother, Shaun Herman has relocated to Sunbury, Pennsylvania. 15. He has continued to assist in the gathering information important to the prosecution of the case notably locating and contacting potentially important witnesses (relating to damages). i6. Mr. Bingaman testified at this deposition that he has returned to Sunbury where he lives with a woman whom he referred to as his "girlfriend." 17. In light of Petitioner's demonstrated ability and willingness to assist with the pre- trial preparation of the matter and Plaintiffs disinclination to assist, Petitioner believes that his substitution as Plaintiff will better serve the interests of the beneficiaries of the death claims as well as those of the Defendants and the Court. i8. Notice of the filing of this Petition will be served on the beneficiaries of the claims, including Plaintiff Mark Bingaman, and counsel for the Defendants, as will notice of any hearings to be scheduled by the Court in disposition of this issue. 19. Counsel for the Defendants, Wiley Parker, Esquire, does not object to this Petition. WHEREFORE, Petitioner prays this Honorable Court enter the attached order substituting him as the Plaintiff in this matter and removing Mark Bingaman. J. CRAIG CURRIE & ASSOCIATES, P.C. j. Cr,* Cwiri,e- J. Craig Cfirrie, Esq. VERIFICATION The undersigned, having read the attached Petition, verifies that the within Petition is based on information furnished to counsel or information which has been gathered by counsel in the course of this lawsuit. The language of the Petition is that of counsel and not of Petitioner. Petitioner verifies that he has read the within Petition and that it is true and correct to the best of his knowledge, information and belief. To the extent that the contents of the Petition are that of counsel, Petitioner has relied upon counsel in taking this verification. This verification is made subject to the penalties of 18 Pa. R.C.P. § 4904 relating to unsworn falsification to authorities. h un Herma CERTIFICATE OF SERVICE I, J. Craig Currie, Esquire, do hereby certify that I have forwarded a true and correct copy of the Petition of Shaun Herman for Rule to Show Cause why he should not be substituted in place of Mark Bingaman as the Plaintiff acting on behalf of the Estate of Michelle Bingaman by regular U.S. Mail, postage pre- paid this AA' day of September, 2014 to Wiley P. Parker, Esquire 937 Willow Street, PO Box 114o Lebanon, PA 19042-1140 Mark Bingaman 409 Spruce Street Sunbury, PA 17801 Shaun Herman 139 North 4th Street Sunbury, Pa 17801 J. CRAIG CURRIE & ASSOCIATES, P. B J ire COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA MARK BINGAMAN, in his own right and as Administrator of the Estate of MICHELLE L. BINGAMAN PLAINTIFFS V. JUDITH A. JOZEFIAK, M.D. and TRISTAN ASSOCIATES, DEFENDANTS 10-3338 CIVIL TERM ORDER AND NOW THIS /7'4 day 2014 a Rule is issued on Plaintiff Mark Bingaman to show cause why he should not be removed as the personal representative of the decedent and Returnable 40/ / days from the date of Herman be substituted in his place. Rule gitzifte . Any answers filed shall be forwarded by the Prothonotary to chambers. ZMark Bingaman 409 Spruce Street Sunbury, PA 17801 Wiley P. Parker, Esquire 937 Willow Street, PO Box 1140 Lebanon, PA 19042-1140 t 1 - Shaun Herman 139 North 4th street Sunbury, Pa 17801 Craig Currie, Esquire 1600 Market St., 25th Fir. Philadelphia, PA 19103 fiLgi.(5.4 9p7/ rt cJt� 1 OF THE P OTHO iOTARY 2014 OCT PM 12:29 CUMBERLAND COUNTY PENNSYLVANIA HENRY & BEAVER LLP By: Wiley P. Parker Identification No. 20653 937 Willow Street P.O. Box 1140 Lebanon, PA 17042-1140 (717) 274-3644 MICHELLE L. BINGAMAN and : IN THE COURT OF COMMON PLEAS MARK BINGAMAN, h/w, : CUMBERLAND COUNTY, PENNSYLVANIA Plaintiffs : CIVIL ACTION — LAW vs. JUDITH A. JOZEFIAK, M.D. and TRISTAN ASSOCIATES, Defendants : NO. 10-3338 : JURY TRIAL DEMANDED ANSWER OF DEFENDANTS JUDITH A. JOZEFIAK, M.D. AND TRISTAN ASSOCIATES TO PETITION OF SHAUN HERMAN FOR RULE TO SHOW CAUSE WHY HE SHOULD NOT BE SUBSTITUTED IN PLACE OF MARK BINGAMAN AS THE PLAINTIFF ACTING ON BEHALF OF THE ESTATE OF MICHELLE BINGAMAN 1. Admitted. 2. Admitted. 3. Admitted. 4. Admitted in part, denied in part. It is admitted that Michelle Bingaman died on February 2012. As to the remainder of the allegation, after reasonable investigation, Answering Defendants are without sufficient information to form a belief as to the truth of such averment in that the means of proof are solely within the control of an adverse party, namely Plaintiff and, as such, strict proof thereof is demanded at trial, if relevant 5. Admitted. 6. Admitted. 7. Admitted. 8. Admitted. 9. Admitted. 10. Admitted. 11. After reasonable investigation, Answering Defendants are without sufficient information to form a belief as to the truth of such averment in that the means of proof are solely within the control of an adverse party, namely Plaintiff and, as such, strict proof thereof is demanded at trial, if relevant. 12. After reasonable investigation, Answering Defendants are without sufficient information to form a belief as to the truth of such averment in that the means of proof are solely within the control of an adverse party, namely Plaintiff and, as such, strict proof thereof is demanded at trial, if relevant, 13. After reasonable investigation, Answering Defendants are without sufficient information to form a belief as to the truth of such averment in that the means of proof are solely within the control of an adverse party, namely Plaintiff and, as such, strict proof thereof is demanded at trial, if relevant. 14. After reasonable investigation, Answering Defendants are without sufficient information to form a belief as to the truth of such averment in that the means of proof 2 are solely within the control of an adverse party, namely Plaintiff and, as such, strict proof thereof is demanded at trial, if relevant. 15. After reasonable investigation, Answering Defendants are without sufficient information to form a belief as to the truth of such averment in that the means of proof are solely within the control of an adverse party, namely Plaintiff and, as such, strict proof thereof is demanded at trial, if relevant. 16. After reasonable investigation, Answering Defendants are without sufficient information to form a belief as to the truth of such averment in that the means of proof are solely within the control of an adverse party, namely Plaintiff and, as such, strict proof thereof is demanded at trial, if relevant. 17. After reasonable investigation, Answering Defendants are without sufficient information to form a belief as to the truth of such averment in that the means of proof are solely within the control of an adverse party, namely Plaintiff and, as such, strict proof thereof is demanded at trial, if relevant. 18. After reasonable investigation, Answering Defendants are without sufficient information to form a belief as to the truth of such averment in that the means of proof are solely within the control of an adverse party, namely Plaintiff and, as such, strict proof thereof is demanded at trial, if relevant. 19. Admitted in part, denied in part. Counsel for Defendants does not object to the substitution of the personal representative, however, counsel believes that this Petition must be filed in the Court of Frederick County, Maryland. Maryland Rule 6-111 provides that "[p]robate proceedings may not be maintained in more than one county. If proceedings are commenced in more than one county, the court of the county in which 3 proceedings were filed first has exclusive jurisdiction to determine venue." In this case, proper venue of the estate administration is in the Court of Frederick County, Maryland, and, as such, only that Court may remove Mark Bingaman as the personal representative for the Estate of Michelle Bingaman and appoint a successor personal representative. WHEREFORE, Answering Defendants request this Honorable Court deny Petitioner's Petition for Rule to Show Cause why he should not be substituted in place of Mark Bingaman as the Plaintiff acting on behalf of the Estate of Michelle Bingaman and instruct Petitioner to file such Petition in the Court of Frederick County, Maryland. NEW MATTER 20. The responses to Paragraphs 1 through 19 above are incorporated herein by reference as though fully set forth. 21. Maryland Rule 6-111 provides that "[p]robate proceedings may not be maintained in more than one county. If proceedings are commenced in more than one county, the court of the county in which proceedings were filed first has exclusive jurisdiction to determine venue." In this case, proper venue of the estate administration is in the Court of Frederick County, Maryland, and, as such, only that Court may remove Mark Bingaman as the personal representative for the Estate of Michelle Bingaman and appoint a successor personal representative. 22. Defendants will be prejudiced if this Court substitutes a personal representative without jurisdiction, in that the Court may enter a verdict in favor of an improperly designated personal representative with the duly appointed personal representative remaining in place under Maryland law. 4 WHEREFORE, Defendants, Judith A. Jozefiak, M.D., and Tristan Associates, request this Honorable Court deny Petitioner's Petition for Rule to Show Cause why he should not be substituted in place of Mark Bingaman as the Plaintiff acting on behalf of the Estate of Michelle Bingaman and instruct Petitioner to file such Petition in the Court of Frederick County, Maryland. HENRY & BEAVER LLP By. 5 squire I.D. #20651. HEATHER A. EGGERT, Esquire I.D. #314064 937 Willow Street P.O. Box 1140 Lebanon, PA 17042-1140 (717) 274-3644 (Phone) (717) 274-6782 (Fax) parker@henrybeaver.com Attorneys for Judith A. Jozefiak, M.D. and Tristan Associates CERTIFICATE OF SERVICE I, Wiley P. Parker, Esquire, of the firm of Henry & Beaver LLP, do hereby certify that I served a certified true and correct copy of the within Answer to Plaintiffs' Amended Complaint upon the following person(s) on September , 2014 in the manner specified below: Name Manner of Service J. Craig Currie, Esquire J. CRAIG CURRIE & ASSOCIATES 1600 Market Street, 25th Floor Philadelphia, PA 19103 Date: September , 2014 U.S. First Class Mail J. CRAIG CURRIE & ASSOCIATES, P.C. BY: J. Craig Currie, Esquire 25th Floor 1600 Market Street Philadelphia, PA 19103-7225 (215) 564-0833 Fax (215) 523-7911 currie@phillylaw.net 24 Attorney for Plaintiff COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA MARK BINGAMAN, in his own right and as Administrator of the Estate of MICHELLE L. BINGAMAN PLAINTIFFS 10-3338 CIVIL TERM V. JUDITH A. JOZEFIAK, M.D. and TRISTAN ASSOCIATES, DEFENDANTS Shaun Herman's Reply to New Matter of Defendants Jozefiak and Tristan Associates to Petition of Shaun Herman for Rule to Show Cause why he should not be substituted in place of Mark Bingaman as the Plaintiff acting on behalf of the Estate of Michelle Bingaman. Defendants Jozefiak and Tristan Associates having filed an Answer and New Matter to Shaun Herman's Petition for Substitution as Plaintiff in this action, Petitioner herewith replies to the New Matter as follows: 21. Maryland's Rule 6 -ill does not purport to control who may be a personal representative in a wrongful death action or a survival action pending in another state. The Rule purports to regulate venue where proceedings may take place for estate administration. 22. The disposition of the instant lawsuit is not part of estate's administration. 23. The "Letters of Administration of a Small Estate" issued to Mark Bingaman May 16, 2012 declare that THIS ORDER DOES NOT CONSTITUTE LETTERS OF ADMINISTRATION ANO DOES NOT AUTHORIZE THE TRANSFER OF ASSETS. A copy of the Letters is attached hereto, marked Exhibit "A," and made part hereof. 24. Defendants in this lawsuit did not object to this Honorable Court's authority to substitute Mark Bingaman as the Plaintiff. Said Defendants cannot now be heard to object to this Court's authority to remove Mark Bingaman as Plaintiff. Stated differently, Defendants have waived their rights to object to the exercise of authority by this Court which Petitioner requests. 25. In any event, the instant lawsuit is subject to Pennsylvania Rule of Civil Procedure 2203 which permits the removal of a plaintiff in a wrongful death action upon motion by any person entitled by law to recover damages in the action. The statute provides as follows: (a) Any person entitled by law to recover damages in an action for wrongful death may petition the court in which an action for such wrongful death is pending to remove the plaintiff and to substitute as a new plaintiff any person entitled by law to recover damages in the action or a personal representative of the decedent. (b) After hearing, of which due notice shall be given to the plaintiff in the action and to all persons entitled by law to recover damages, the court may remove the plaintiff and order the substitution prayed for, if it deems the same advisable. Note: This rule has the effect of making the plaintiff in the wrongful death action accountable to the court in which the action is brought for his or her conduct therein. In addition, it permits the parties beneficially interested in the damages recovered in the action to exercise some supervisory control over the conduct of the action by enabling them to obtain the assistance of the court if the action is not properly conducted on their behalf. 26. As noted in the Petition to which Defendants now object, Petitioner as a natural son of the decedent is entitled by law to recover damages in this action and therefore has a right to seek substitution. WHEREFORE, Petitioner prays this Honorable Court dismiss Defendants' Objection to his Petition and grant the relief he requested. J. Craig tf e, Esq. Counsel Petitioner 1;1 STATE OF MARYLAND LETTERS OF ADMINISTRATION OF A SMALL ESTATE F5JiatA. No. 16t12F_ — _ war, ct:erlrE-C r nib RifV11C7 rr.-.:bated tiia; ac:mi •is;ratior MICHFLLE L. 8INGAMAN o'• ki.;Y 2012 Zij,,tril ;Pr. Pi eblel'ie.ltret,lt 3! ti e FappotnZ:nri n er4ecf __J-81.1_ day &- InI:esiL-te estate Urif:Jrztiated WW- P; ct-2.ate Nnt % • .-I % '•,'\"14,.i:-:--:_.1_,_ _."._ 7- i4,,.1 _ ___ VIRGIN!1‘ P FiFER Register f WiliS for 1 ,-..r!)12P.il..i,... Ci)i.;. ';1 vAL,l) ONLY IF SE.ALEC) WiTI-4 THE SEAL or THE COURT t THE Hkr:Glt-.;14 EXHIBIT A (page 1 of 2) IN THE ORPHANS' COURT FOR (OR) =•'t)1'.='.HE '-fG; r t_i.'WUUL: F IN TNF Fc1ATF OF• MICHELLE L. BINGAMAN FREDERICK COUNTY , MARYLAND ORDER FOR SMALL ESTATE i.:p0.- i`' trrego:ng Pretrt!or,. ! is th:s 7r.'r da;r. _ _-- MA'r — _ 2312 . Dy the Register o' b"Elis oroeret that �~'- 'i rte estate o; Mi;;iiELLE L B1NGAMAN shat! oe adm!h!sterzd as a smair estate 2 MARK A B3NGAMAN s'al gPr;a ?.' ^Prr7^,ri r4resent3tive;e; 3. The perscnai rpnrr.0@n!t;t•vc she'' 4.-.95 ": t! -a register exile lses acri.niFtranon. aaowabie fur"eral expenses. ,ru 3i5iutz y taiiliiy oli:lY.eilze;s. aria. it :,0Geaaa.'7 SCJ, ulupely a irrt: utotAlLit.iit ii uiutr to i�iiy ir}ern. 4 "T)e vv;q I.CtCU (ina�dtrg Codtciis. it any Cates _ --_------ ---------1 accompanying the pet;tw..:5 L adi-r ted to prooate. or 0 reta:riei or. f;le omy 2 not regtiirec or 0 required and Notice or App Altment :;tail be p',b+is`ted cr:ca a r-:ewspaper of genet's' circuiat!om in the COJnty o` appointment Wnel publ .at!:.'' r5 i equ!''e'"r.:.'esemoti,le s."tail sJL;e:: to le statuiOry Cr'1er Of prioritie5 and t'e resosut!O^ 7i o'.sputeo J:;,ur.5 by '. a «ar'.es 'Jr CV t ;e cojrt (a; rav a ' r 'oe c airrs exDe"ses. and ar:owances prevIoisty �.aia Cu!1' r1 -ebsa;'y Sc" ;it_oi-rig c' (rte esus*.e H' Jru cc. ci;5tribute :na rernarrt;rlc a io:d *,ne Jews ..; ih :Malt: r1 k. _ tile,;' J. P fir. C_� / !f Registry of Wills THIS ORDER DOTS NOT CONSTETU IT=LETTERS OF ADMINISTRATION AND DOES NOT AUTHORIZE THE '"RANSFER OF ASSETS. here! y coney tnai on this '6t- "a, f -til ) _� dei:vere-n nr ma':Ad res'.age :,repair. a copy of ti' to:eoo.rtg Oroe' is ".1.a. K I= BiNGAMAi\ r. r. oi1J;..-,mn�. 115.6 HARP i–' R'.)A;. MYERSY,,.LE MO 21773 l • J.- , .. \ t r ...._.34. t/ \'\ C:.. L. .' i:1Vi-':r, r :-;rCi' . i7eJ,retP• .1t Will, RW1108 Rev. 07/01i2C11 EXHIBIT A (page 2 of 2) Personal RED:•tesentattrve hlivvt IET t)72.l CERTIFICATE OF SERVICE I, J. Craig Currie, Esquire, do hereby certify that I have forwarded a true and correct copy of Shaun Herman's Reply to New Matter of Defendants Jozefiak and Tristan Associates to Petition of Shaun Herman for Rule to Show Cause why he should not be substituted in place of Mark Bingaman as the Plaintiff acting on behalf of the Estate of Michelle Bingaman by regular U.S. Mail, postage pre -paid this 7th day of October , 2014 to Wiley P. Parker, Esquire 937 Willow Street, PO Box 114o Lebanon, PA 19042-1140 Mark Bingaman 409 Spruce Street Sunbury, PA 17801 Shaun Herman 139 North 4th Street Sunbury, Pa 17801