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HomeMy WebLinkAbout10-7213SHERIFF'S OFFICE OF CUMBERLAND COUNTY Ronny R Anderson Sheriff FILED-OFFICE Jody S Smith OF THE PROTHONOTARY Chief Deputy 2010 DEC -2 PM 3: 45 Richard W Stewart Solicitor -CUMBERLAND COUNTY PENNSYLVANIA Emma F. DeBoard Case Number vs. DaVita Camp Hill Dialysis Center 2010-7213 SHERIFF'S RETURN OF SERVICE 11/18/2010 01:48 PM - William Cline, Corporal, who being duly sworn according to law, states that on November 18, 2010 at 1348 hours, he served a true copy of the within Writ of Summons, upon the within named defendant, to wit: DaVita Camp Hill Dialysis Center, by making known unto Chrisstine Starliper, Registered Nurse for DaVita Camp Hill Dialysis Center at 425 N. 21st Street, Camp Hill, Cumberland County, Pennsylvania 17011 its contents and at the same time handing to her p rsonally the said true and correct copy of the same. WILLIAM CLINE, DEPUTY SHERIFF COST: $41.94 November 19, 2010 SO ANSWERS, RON R ANDERSON, SHERIFF ;.. (;ntittiyGUit£ Shf't ':fi. Tri?C"sC`t, n::. Evan Black, Esquire Attorney I.D. 17784 717-441-7051 Stephanie L. Hersperger, Esquire Attorney I.D. 78735 THOMAS, THOMAS & HAFER LLP 305 NORTH FRONT STREET P.O. BOX 999 HARRISBURG, PA 17108 Attorney for Defendants EMMA F. DeBOARD, Executrix of the Estate of STUART C. DeBOARD, Plaintiff V. DaVITA RX, LLC, alk/a DaVITA CAMP HILL DIALYSIS CENTER, Defendant "ii_EE?-E.? t+" i i ? 2010 DEC 28 AM 11: 53 CUMBERLAND COU-147y PENNSYLVANIA IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA : NO. 10-7213 Civil Term CIVIL ACTION -LAW JURY TRIAL DEMANDED : 12 JURORS AND ALTERNATES PRAECIPE FOR ENTRY OF APPEARANCE To the Prothonotary: Kindly enter the appearance of Evan Black, Esquire and Stephanie L. Hersperger, Esquire on behalf of the Defendant DaVita RX, LLC, a/k/a DaVita Camp Hill, relative to the above-captioned action. Respectfully submitted, Date: / I- 1 THOMAS, THO S & HAFER, LLP r By: Ev lac , Esquire Attorney I.D. 17884 Stephanie L. Hersperger, Esquire Attorney I.D. 78735 305 North Front Street P.O. Box 999 Harrisburg, PA 17108 (717) 441-7051 Attorneys for Defendant CERTIFICATE OF SERVICE I, Joan L. Wolfe, employee of the law firm of Thomas, Thomas & Hafer, LLP, hereby certify that a true and correct copy of the foregoing document was sent to the following counsel of record by placing a copy of same by First Class in the United States mail, postage prepaid, at Harrisburg, Pennsylvania addressed as follows: David B. Dowling, Esquire Rhoads & Sinon, LLP 1 South Market Square 12'' Floor Harrisburg, PA 17101 Attorney for Plaintiff THOMAS, THOMAS & HAFER, LLP Date: BY: 4JLt . LoIfe, Legal Secretary r Evan Black, Esquire Attorney I.D. 17784 717-441-7051 Stephanie L. Hersperger, Esquire Attorney I.D. 78735 THOMAS, THOMAS & HAFER LLP 305 NORTH FRONT STREET P.O. BOX 999 HARRISBURG, PA 17108 Attorney for Defendants F ILEA-C?= ?'1= i1QDEC 28 AM 11: CUMBERLAND COUNT"-' PENNSYL IANIA EMMA F. DeBOARD, Executrix of the Estate of STUART C. DeBOARD, Plaintiff V. DaVITA RX, LLC, a/k/a DaVITA CAMP HILL DIALYSIS CENTER, Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, : PENNSYLVANIA NO. 10-7213 Civil Term CIVIL ACTION -LAW JURY TRIAL DEMANDED 12 JURORS AND ALTERNATES PRAECIPE FOR RULE TO FILE COMPLAINT TO THE PROTHONOTARY OF SAID COURT: Please issue a Rule on Plaintiff to file a Complaint in the above case within twenty (20) days after service of the Rule or suffer a judgment of non pros. Respectfully submitted, Date: Z L' ro THOMAS, THOMAS & HAFER, LLP By: Evan Black, Esquire Attorney I.D. 17884 Stephanie L. Hersperger, Esquire Attorney I.D. 78735 305 North Front Street P.O. Box 999 Harrisburg, PA 17108 (717) 441-7051 Attorneys for Defendant EMMA F. DeBOARD, Executrix of the Estate of STUART C. DeBOARD, Plaintiff V. IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA : NO. 10-7213 Civil Term DaVITA RX, LLC, a/k/a DaVITA CAMP CIVIL ACTION -LAW HILL DIALYSIS CENTER, JURY TRIAL DEMANDED Defendant 12 JURORS AND ALTERNATES RULE TO FILE COMPLAINT TO: Emma F. DeBoard, Plaintiff c/o David B. Dowling, Esquire Rhoads & Sinon, LLP 1 South Market Square 12th Floor Harrisburg, PA 17101 You are hereby directed to file a Complaint against Defendant, DaVita RX, LLC, a/k/a DaVita Camp Hill Dialysis Center, within twenty (20) days or non pros seq. reg. Prothonotary DATED: /d-lab/ro t. CERTIFICATE OF SERVICE I, Joan L. Wolfe, employee of the law firm of Thomas, Thomas & Hafer, LLP, hereby certify that a true and correct copy of the foregoing document was sent to the following counsel of record by placing a copy of same by First Class in the United States mail, postage prepaid, at Harrisburg, Pennsylvania addressed as follows: David B. Dowling, Esquire Rhoads & Sinon, LLP 1 South Market Square 12th Floor Harrisburg, PA 17101 Attorney for Plaintiff THOMAS, THOMAS & HAFER, LLP Date: IC9- ' J-a - BY: JL. Wolfe, Legal Secretary David B. Dowling, Esquire Attorney I.D. No. 25452 RHOADS & SINON One South Market Square, 12th Floor P.O. Box 1146 Harrisburg, Pennsylvania 17108-1146 (717) 233-5731 4 tI : 7 n 7 1? ?' 3 1 • '?.i V? Attorneys for Plaintiff EMMA F. DEBOARD, Executrix of the Estate of STUART C. DEBOARD, Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA V. DAVITA RX, LLC a/k/a DAVITA CAMP HILL DIALYSIS CENTER, Defendant CIVIL ACTION -PROFESSIONAL LIABILITY NO. 10-7213 JURY TRIAL DEMANDED NOTICE YOU HAVE BEEN SUED IN COURT. If you wish to defend against the claims set forth in. the following pages, you must take action within twenty (20) days after this Complaint and Notice are served, by entering a written appearance personally or by attorney and filing in writing with the Court your defenses or objections to the claims set forth against you. You are warned that if you fail to do so the case may proceed without you and a judgment may be entered against you by the Court without further notice for any money claimed in the Complaint or for any other claim or relief requested by the Plaintiff. You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. CUMBERLAND COUNTY BAR ASSOCIATION 32 South Bedford Street Carlisle, PA 17013 (800) 990-9108 or (717) 249-3166 David B. Dowling, Esquire Attorney I.D. No. 25452 RHOADS & SINON One South Market Square, 12th Floor P.O. Box 1146 Harrisburg, Pennsylvania 17108-1146 (717) 233-5731 Attorneys for Plaintiff EMMA F. DEBOARD, Executrix of the Estate of STUART C. DEBOARD, Plaintiff V. DAVITA RX, LLC a/k/a DAVITA CAMP HILL DIALYSIS CENTER, Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION -PROFESSIONAL LIABILITY NO. 10-7213 JURY TRIAL DEMANDED COMPLAINT NOW COMES Plaintiff, Emma F. DeBoard, Executrix of the Estate of Stuart C. DeBoard, by and through her attorneys, Rhoads & Sinon LLP, and files the within Complaint and aver as follows: PARTIES 1. Plaintiff, Emma F. DeBoard (hereinafter "Mrs. DeBoard"), is the Executrix of the Estate of Stuart C. DeBoard (hereinafter "Mr. DeBoard"). She is an adult individual who resides at 39 Springer's Lane, New Cumberland, York County, Pennsylvania, 17070. 2. Defendant, DaVita RX, LLC, a/k/a DaVita Camp Hill Dialysis Center (hereinafter "DaVita"), is limited liability company organized and existing under the laws of the State of Delaware, maintaining a principal place of business at 425 North 21St Street, Camp Hill, Cumberland County, Pennsylvania, 17011. Plaintiff asserts a professional liability claim against DaVita and its agents, servants and employees. 3. It is believed and averred that DaVita is a licensed health care provider as defined in 40 P. S. § 1303.503 of the M-Care Act. 4. Venue is proper in Cumberland County pursuant to Pa. R. Civ. P. 2719 and 1006(c) because DaVita is located in Cumberland County, Pennsylvania, and the acts upon which this lawsuit is based occurred in Cumberland County, Pennsylvania. FACTUAL BACKGROUND 5. On or about October 15, 2007, Mr. DeBoard became a dialysis patient at DaVita due to renal disease. He received dialysis treatments at DaVita three times per week. His medical profile and history included, among other things, a history of falling, instability and dementia 6. The DaVita records demonstrated that Mr. DeBoard had a history of instability, confusion, and falling. 7. On October 7, 2009 at 2:15 p.m. Mr. DeBoard finished his dialysis treatment and was left unattended by Carmen Villegas, a patient care tech. It is believed and averred that she is a licensed health care provider as defined in 40 P.S. §1303.503 of the MCare Act. Upon her - 2 - return, he was found lying on the floor being assisted by other personnel. The records available at this time indicate that Mr. DeBoard fell and struck his head on the corner of the dialysis machine. 8. He was transported to Harrisburg Hospital Emergency Department and arrived at approximately 2:30 p.m. 9. A CT Scan was performed at 4:00 p.m. The results of the CT scan and it showed a subdural hematoma. Surgical intervention was not an option. Mr. DeBoard died 4 hours later at 8:00 p.m. that evening due to a head injury and resulting subdural hematoma. 10. At all relevant times, DaVita knew or should have known that Mr. DeBoard was at a great risk of falling. 11. At all relevant times, DaVita owed a duty to Mr. DeBoard to possess and exercise the requisite degree of care, skill and knowledge possessed and exercised by similar healthcare providers. 12. The negligence, carelessness and deviation from the appropriate standard of care by DaVita acting through its agents, employees, servants and ostensible agents significantly and materially contributed to and caused the injuries of Mr. DeBoard. - 3 - COUNTI EMMA F. DEBOARD, Executrix of the Estate of STUART C. DeBOARD v. DAVITA RX, LLC a/k/a DAVITA CAMP HILL DIALYSIS CENTER (Negligence) 13. Plaintiff incorporates by reference the allegations set forth in paragraphs 1 through 12 as if more fully set forth herein. 14. The negligence of DaVita, acting through it agents, ostensible agents, employees, and servants, consisted of the following acts and omissions, which substantially increased the risk of harm, morbidity and death of Mr. DeBoard. The acts and omissions listed in the paragraphs a - g, which are to be read in conjunction with paragraphs 1-41 consist of the following: a. leaving Mr. DeBoard alone, unprotected and unassisted thereby causing him to fall and suffer a severe subdural hematoma while waiting for transport in the waiting room; b. failure to protect Mr. DeBoard from falling injury; C. failure to protect its patients, including Mr. DeBoard, against any falling injury by not training its staff, agents, employees and personnel in utilizing proper and appropriate techniques and safety protocols to provide protection and assistance to its patients; d. failure to implement and enforce safety procedures for its cognitively impaired and unstable patients; e. failure to adequately assess the level of assistance or restraint needed to protect it patients, including Mr. DeBoard from falling injuries; f. failure to properly protect and/or restrain Mr. DeBoard from falling injuries; and g. failure to properly assist Mr. DeBoard getting into and out of chairs. - 4 - 15. DaVita knew or should have known that Mr. DeBoard had a history of falling, instability, dementia, needed for assistance with mobility, ambulation and transfers and was predisposed to getting up from, and out of his chair and that by failing to properly assist or restrain him and monitor his condition, Mr. DeBoard suffered serious injuries leading to his death. 16. DaVita failed to act in conscious disregard of, or indifference to Mr. DeBoard's needs not to be left alone, to be constantly assisted and/or physically restrained and monitored throughout his stay at the dialysis treat center. 17. At all relevant times herein, DaVita employed, directed and controlled the nurses, staff and other individuals who rendered care and treatment to Mr. DeBoard during his dialysis treatments at the facility. 18. DaVita is responsible for the negligent acts and omissions of its assistants, nurses and personnel who were involved in the treatment and care of Mr. DeBoard, as this treatment and care was rendered during the course of and within the scope of employment. 19. The injuries and death of Mr. DeBoard were the direct and proximate result of the negligence, carelessness and deviation from the standard of care of Defendant DaVita 20. The conduct of DaVita caused and/or substantially increased the risk of injury to Mr. DeBoard. - 5 - 21. As a result of the negligence and carelessness of DaVita as described above, Mr. DeBoard suffered a subdural hematoma and died. WHEREFORE, Plaintiff demands judgment against DaVita in an amount which exceeds the amount requiring compulsory arbitration pursuant to Pa.R.C.P. 1021 (c), together with interest, costs of suit, delay damages, pain and suffering and all other damages, as allowed by Pennsylvania law. COUNT II E_MMA F. DEBOARD, Executrix of the Estate of STUART C. DeBOARD v. DAVITA RX, LLC a/k/a DAVITA CAMP HILL DIALYSIS CENTER lCorporate Negligence) 22. Plaintiff incorporates by reference the allegations set forth in paragraphs 1 through 21 as if more fully set forth herein. 23. DaVita owed a duty directly to Mr. DeBoard pursuant to the principles of corporate negligence. DaVita breached its duty by: a. failing to use reasonable care in the maintenance of safe and adequate facilities and equipment which directly led and caused the injury to Mr. DeBoard and in decedent falling, hitting his head causing a subdural hematoma and death; b. failing to formulate, adopt and enforce adequate rules and policies to ensure that patients, including Mr. DeBoard, were not left alone, properly assisted and/or restrained from falling out of and/or getting up from a chair and that he would be constantly monitored throughout his stay at DaVita; and c. failing to select and retain only competent and skilled nurses and staff to provide supervision and protection to patients, including Mr. DeBoard; - 6 - 24. DaVita had actual and/or constructive knowledge of the procedures and policies, facilities and equipment that caused the injuries and death of the decedent. 25. As a direct and proximate result of the negligence and carelessness of DaVita as described above, Mr. DeBoard suffered a subdural hematoma and death. WHEREFORE, Plaintiff demands judgment against the Defendant DaVita, in an amount which exceeds the amount requiring compulsory arbitration pursuant to Pa. R.C.P. 1021(c), together with interest, costs of suit, delay damages and all other damages allowed by Pennsylvania law. COUNT III EMMA F. DEBOARD, Executrix of the Estate of STUART C. DEBOARD v. DAVITA RX, LLC a/k/a DAVITA CAMP HILL DIALYSIS CENTER (Premises Liability) 26. Plaintiff incorporates by reference the allegations set forth in paragraphs 1 through 25 as if more fully set forth herein. 27. As owners and occupiers of the respective facilities, DaVita is required to use reasonable care in the maintenance and use of its property and to protect its invitees from foreseeable harm. 28. DaVita, as owners and occupiers of its respective facility is also required to inspect the premises and to discover dangerous conditions, including the base of the dialysis machine. - 7 - 29. DaVita is responsible for the negligent acts and omissions of its nurses and other personnel who were involved in the treatment and care of Stuart C. DeBoard, as this treatment and care was rendered during the course of and within the scope of employment. 30. At all relevant times, Mr. DeBoard was a business invitee. 31. DaVita is also liable to Mr. DeBoard for failure to warn him or his family of the condition referenced herein and by failing to regularly inspect the premises to determine whether a risk of falling exists at the facility. 32. DaVita is additionally liable in that it should expect that its invitees will not be able to discover or realize the danger of falling and will correspondingly fail to protect ,themselves against it. 33. DaVita is also liable to Mr. DeBoard, a business invitee for failure to adequately instruct, advise and train its employees, agents, servants and representatives to implement a safe effective and adequate prevention, detection and monitoring system to prevent patient falling injuries. WHEREFORE, Emma F. DeBoard, as Executrix of the Estate of Stuart C. DeBoard, demands judgment against the DaVita in an amount which exceeds the amount requiring compulsory arbitration pursuant to Pa. R.C.P. 1021(c), together with interest, costs of suit, delay damages and all other damages allowed by Pennsylvania law. - 8 - COUNT IV EMMA F. DEBOARD, Executrix of the Estate of STUART C. DEBOARD v. DAVITA AN, LLC a/k/a DAVITA CAMP HILL DIALYSIS CENTER (Wrongful Death) 34. Plaintiff incorporates by reference the allegations set forth in paragraphs 1 through 33 as if more fully set forth herein. 35. Emma DeBoard brings this action pursuant Pa. R.Civ. P. 2202(a) and 42 C.S.A. §8301 as the Executrix of the Estate of Stuart C. DeBoard and on her own behalf to recover for the wrongful death of Stuart C. DeBoard. 36. At no time did the Decedent's Estate bring an action to recover damages for his death and no other action has been commended to recover damages for his death. 37. Emma F. DeBoard as Executrix of the Estate of Stuart C. DeBoard brings this action on behalf of all persons entitled to recover damages under the Wrongful Death Statute, including: Emma F. DeBoard, wife; and Martha A. DeBoard, daughter. 38. As a direct and proximate result of all DaVita's negligence as set forth herein, the Plaintiff has suffered and the DaVita is liable for the following damages: a. all reasonable and necessary funeral expenses; b. all medical expenses related to the negligence of DaVita; C. expenses of administration related to the decedent's injuries and death; and - d. Plaintiff's loss of contribution, support, comfort, care and services of the Decedent which would have been provided. - 9 - WHEREFORE, Emma F. DeBoard, Executrix of the Estate of Stuart C. DeBoard, pursuant to the Wrongful Death Act, demands judgment against DaVita in an amount which exceeds the amount requiring compulsory arbitration pursuant to Pa. R.C.P. 1021(c), together with interest, costs of suit, delay damages and all other damages allowed by Pennsylvania law. COUNT V EMMA F. DEB_OARD, Executrix of the Estate of STUART C. DEBOARD v. DAVITA RX, LLC a/k/a DAVITA CAMP HILL DIALYSIS CENTER (Survival Action) 39. Plaintiff incorporates by reference the allegations set forth in paragraphs 1 through 38 as if more fully set forth herein. 40. ' The Plaintiff brings this action on behalf of Stuart C. DeBoard's Estate pursuant to 20 Pa.C.S.A. 3373 and 42 Pa.C.S. §8302 for damages suffered by the Estate as a result of Stuart C. DeBoard's death, as well as pain, suffering and inconvenience which the decedent underwent prior to his death as a result of the negligence of DaVita. 41. As a direct and proximate result of the negligence and carelessness of the DaVita as described herein, Stuart C. DeBoard suffered a fatal subdural hematoma. 42. As a direct and proximate result of the negligence and carelessness of the DaVita as set forth herein, Stuart C. DeBoard suffered physical pain, mental anguish, emotional distress, discomfort, social security and other benefits, including loss of life's pleasures. Emma F. - 10 - DeBoard, as Executrix of the Estate of Stuart C. DeBoard makes a claim therefore together with all other damages allowed and recoverable pursuant to Pennsylvania law. WHEREFORE, Emma F. DeBoard, Individually and as Executrix of the Estate of Stuart C. DeBoard, pursuant to the Survival Statute, 42 Pa. C.S.A. §8302 demands judgment against DaVita, in an amount which exceeds the amount requiring compulsory arbitration pursuant to Pa. R.C.P. 1021(c), together with interest, costs of suit, delay damages and all other damages allowed by Pennsylvania law. RHOADS & S1NON LLP By: David B. Dowling One South Market Square, 11 P.O. Box 1146 Harrisburg, PA 17108-1146 (717) 233-5731 Attorneys for Plaintiff Date: January 28, 2011 - 11 - VERIFICATION I hereby affirm that the following facts are correct: I am the Plaintiff herein. The attached Complaint is based upon information which I have furnished to my counsel and information which has been gathered by my counsel in preparation of my lawsuit. The language of the Complaint is that of counsel and not of me. I have read the Complaint and, to the extent that the Complaint is based on information which I have given to my counsel, it is true and correct to the best of my knowledge, information and belief: To the extent that the content of the Complaint is that of counsel, I have relied upon counsel in making this Verification. I hereby acknowledge that the facts set forth in the aforesaid Complaint is made subject to the penalties of 18 Pa. C.S. § 4904, relating to unsworn falsification to authorities. Executrix of the Estate of Stuart C. DeBoard Emma F. DeBoard Dated: / CERTIFICATE OF SERVICE I hereby certify that on this 28th day of January, 2011, a true and correct copy of the foregoing Complaint was served by means of United States mail, first class, postage prepaid, upon the following: F. Evan Black, Esquire Thomas, Thomas & Hafer 305 North Front Street P.O. Box 99 Harrisburg, PA 17108-0999 (Attorneys for Defendant DaVita Camp Hill Dialysis Center) (ynf a L.-S tone - 12 - Y r T THOMAS, THOMAS & HAFER, LLP Evan Black, Esquire Attorney I.D. 17884 Stephanie L. Hersperger, Esquire Attorney I.D. 78735 305 North Front Street P.O. Box 999 Harrisburg, PA 17108 (717) 441-7051 Attorneys for Defendants r- i "" FF ie ?L L L1 -U i l?.. n ' --I P 2: 1'?l 'sU?•It3`nE? < t . FE f%'N S Y L'/rAt I `. EMMA F. DeBOARD, Executrix of the IN THE COURT OF COMMON PLEAS Estate of STUART C. DeBOARD, CUMBERLAND COUNTY, Plaintiff PENNSYLVANIA V. NO. 10-7213 Civil Term DaVITA RX, LLC, a/k/a DaVITA CAMP HILL CIVIL ACTION -LAW DIALYSIS CENTER, JURY TRIAL DEMANDED Defendant 12 JURORS AND ALTERNATES CERTIFICATE PREREQUISITE TO SERVICE OF SUBPOENA FOR DISCOVERY PURSUANT TO RULE 4009.22 As a prerequisite to service of subpoenas for documents and things pursuant to Rule 4009.22, Defendant certifies that: (1) A notice of intent to serve subpoenas with copies of the Subpoenas attached thereto was mailed or delivered to each party on or about February 27, 2011; (2) A copy of the Notice of Intent, including copies of the proposed Subpoenas, is attached to this Certificate; (3) Plaintiffs counsel has waived the twenty (20) day notice period for this subpoena (see email attached); and 913018.1 (4) The subpoenas that will be served are identical to the subpoenas that are attached to the notice of intent to serve subpoenas. Respectfully submitted, THOMAS, THOMAS & HAFER, LLP Date: 02 La(s By. Evan Black, Esquire Attorney I.D. 17884 Stephanie Hersperger, Esquire Attorney I.D. 78735 Thomas, Thomas and Hafer, LLP 305 North Front Street P.O. Box 999 Harrisburg, PA 17108 (717) 441-7051 Attorneys for Defendants 913018.1 Evan Black, Esquire Attorney I.D. 17784 717-441-7051 Stephanie L. Hersperger, Esquire Attorney I.D. 78735 THOMAS, THOMAS & HAFER LLP 305 NORTH FRONT STREET P.O. BOX 999 HARRISBURG, PA 17108 Attorney for Defendants EMMA F. DeBOARD, Executrix of the Estate of STUART C. DeBOARD, Plaintiff IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA V. DaVITA RX, LLC, a/k/a DaVITA CAMP HILL DIALYSIS CENTER, Defendant : NO. 10-7213 Civil Term CIVIL ACTION -LAW JURY TRIAL DEMANDED 12 JURORS AND ALTERNATES NOTICE OF INTENT TO SERVE SUBPOENAS TO PRODUCE DOCUMENTS AND THINGS FOR DISCOVERY PURSUANT TO RULE 4009.21 TO: David B. Dowling, Esquire, Counsel for Plaintiff Defendant DaVita Rx, LLC, a/k/a DaVita Camp Hill Dialysis Center intends to serve subpoenas upon the following locations: 1. Dauphin County Coroner. The subpoenas to be served are identical to the ones attached to this notice. You have twenty (20) days from the date listed below in which to file of record and serve upon the undersigned an objection to the subpoenas. If no objection is made, the subpoenas may be served. Respectfully submitted, THOMAS, THO S & HAFER, LLP By: Evan Black, squire Attorney I.D. 17884 Stephanie Hersperger, Esquire Attorney I.D. 78735 Thomas, Thomas and Hafer, LLP 305 North Front Street P.O. Box 999 Harrisburg, PA 17108 (717) 441-7051 Attorneys for Defendants 907926.2 Commonwealth of Pennsylvania County of CUMBERLAND SUBPOENA TO PRODUCE DOCUMENTS OR THINGS FOR DISCOVERY, PURSUANT TO RULE 4009.22 EMMA F. DeBOARD, Executrix of the IN THE COURT OF COMMON PLEAS Estate of STUART C. DeBOARD, CUMBERLAND COUNTY, Plaintiff PENNSYLVANIA V. : NO. 10-7213 Civil Term DaVITA RX, LLC, a/k/a DaVITA CAMP HILL CIVIL ACTION - LAW DIALYSIS CENTER, JURY TRIAL DEMANDED Defendant 12 JURORS AND ALTERNATES To: Dauphin County Coroner 1271 South 28th Street Harrisburg, PA 17111 Within twenty (20) days after service of this subpoena, you are ordered by the court to produce the following documents or things: Any and all records for Stuart C. DeBoard, DOB:1211011929, SS#230-28-9481, including, but not limited to, a complete copy of any and all records in your possession, autopsy report, death certificate, photographs, etc.. at Thomas, Thomas & Hafer, LLP, P.O. Box 999, Harrisburg, PA 17108 You may deliver or mail legible copies of the documents or produce things requested by this subpoena, together with the certificate of compliance, to the party making this request at the address listed above. You have the right to seek in advance the reasonable cost of preparing the copies or producing the things sought. If you fail to produce the documents or things required by this subpoena within twenty (20) days after its service, the party serving this subpoena may seek a court order compelling you to comply with it. This subpoena was issued at the request of the following person: Evan Black, Esquire Attorney ID#78735 305 North Front Street Harrisburg, PA 17108 Attorney for Defendants BY THE COURT: DATE: Seal of the Court BY [Prothonotary] CERTIFICATE OF SERVICE / 7i' AND NOW, this l l day of February, 2011, I, Kristi L. Munshower, a Paralegal of the firm of Thomas, Thomas & Hafer LLP, hereby certify that I sent a true and correct copy of the foregoing document by placing a copy of the same in the United States Mail, postage prepaid, to the following: David B. Dowling, Esquire Rhoads & Sinon, LLP 1 S Market Square 12th Floor Harrisburg, PA 17101 THOMAS, THOMAS & HAFER, LLP Kr ti L. Munsho r, Paralegal 907926.2 Munshower, Kristi L. From: KBock@Rhoads-Sinon.com Sent: Wednesday, February 23, 2011 12:19 PM To: Munshower, Kristi L. Subject: Estate of Stuart DeBoard v. DaVita Camp Hill Dialysis, TT&H file no. 704-02259 Kristi- We are in receipt of your letter of February 17 enclosing a Notice of Intent to subpoena records from the Dauphin County Coroner and a request that we waive the 20-day objection period for the subpoena. We have no objection to service of the subpoena to the Dauphin County Coroner for: "Any and all records for Stuart C. DeBoard, DOB: 12/10/1929, SS#230-28-9481, including but not limited to, a complete copy of any and all records in your possession, autopsy report, death certificate, photographs, etc." We ask that you kindly provide us with a copy of whatever is produced by the Dauphin County Coroner. Thank you, Kathy B. Bock Kathy B. Bock, Paralegal RHOADS & SINON LLP One South Market Sqr., 12th Flr. Harrisburg, PA 17101 (717) 233-5731 (MAIN) (717) 231-6679 (DIRECT) (717) 238-8622 (FAX) www.rhoads-sinon.com Notice: This email transmission, including any attachments, may contain confidential information protected by the attorney-client or other legal privilege. Unauthorized use, distribution or copying is prohibited. If you received this email in error, please notify the sender by replying to this email or by calling Rhoads & Sinon LLP at 717.233.5731 and deleting the erroneous transmission from your system without copying it. Thank You. " The United States Treasury Regulations and Circular 230 require all tax professionals to advise their clients that any U.S. federal tax advice contained in any written communications (including emails and attachments thereto) is not intended to be used, and cannot be used, by any recipient for the purpose of avoiding penalties that may be imposed under federal tax laws. Furthermore, no statement contained herein should be used to promote, market or recommend any federal tax transactions to third parties. Any person reviewing this information, other than the intended recipient, is expressly advised to consult with their own independent tax advisor with respect to any tax advice contained herein." 1 CERTIFICATE OF SERVICE I, KRISTI L. MUNSHOWER, PARALEGAL of the law firm of THOMAS, THOMAS & HAFER, LLP, do certify that I served the foregoing document on the following person(s), by depositing the same in the United States Mail, postage prepaid, at Harrisburg, Pennsylvania, addressed as follows: David B. Dowling, Esquire Rhoads & Sinon, LLP I South Market Square 12th Floor Harrisburg, PA 17101 Attorney for Plaintiff Date: jh -A ? 913018.1 THOMAS, THOMAS & HAFER, LLP Evan Black, Esquire Attorney I.D. 17884 Stephanie L. Hersperger, Esquire Attorney I.D. 78735 305 North Front Street P.O. Box 999 Harrisburg, PA 17108 (717) 441-7051 Attorneys for Defendants r. ! ,, a +, t..i R•,..a3 E _t 3 EMMA F. DeBOARD, Executrix of the IN THE COURT OF COMMON PLEAS Estate of STUART C. DeBOARD, CUMBERLAND COUNTY, Plaintiff PENNSYLVANIA V. NO. 10-7213 Civil Term DaVITA RX, LLC, a/k/a DaVITA CAMP HILL CIVIL ACTION -LAW DIALYSIS CENTER, JURY TRIAL DEMANDED Defendant 12 JURORS AND ALTERNATES CERTIFICATE PREREQUISITE TO SERVICE OF SUBPOENA FOR DISCOVERY PURSUANT TO RULE 4009.22 As a prerequisite to service of subpoenas for documents and things pursuant to Rule 4009.22, Defendant certifies that: (1) A notice of intent to serve subpoenas with copies of the Subpoenas attached thereto was mailed or delivered to each party on or about February 11, 2011; (2) A copy of the Notice of Intent, including copies of the proposed Subpoenas, is attached to this Certificate; (3) The twenty (20) day notice period for objections has expired and no objections to said subpoenas has been received; and 913018.2 (4) The subpoenas that will be served are identical to the subpoenas that are attached to the notice of intent to serve subpoenas. Respectfully submitted, THOMAS, THOMAS & HAFER, LLP Date: aL S "Evan Black, Esquire Attorney I.D. 17884 Stephanie Hersperger, Esquire Attorney I.D. 78735 Thomas, Thomas and Hafer, LLP 305 North Front Street P.O. BOX 999 Harrisburg, PA 17108 (717) 441-7051 Attorneys for Defendants 913018.2 Evan Black, Esquire Attorney I.D. 17784 717-441-7051 Stephanie L. Hersperger, Esquire Attorney I.D. 78735 THOMAS, THOMAS & HAFER LLP 305 NORTH FRONT STREET P.O. BOX 999 HARRISBURG, PA 17108 Attorney for Defendants EMMA F. DeBOARD, Executrix of the Estate of STUART C. DeBOARD, Plaintiff IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA V. : NO. 10-7213 Civil Term DaVITA RX, LLC, a/k/a DaVITA CAMP HILL CIVIL ACTION - LAW DIALYSIS CENTER, JURY TRIAL DEMANDED Defendant 12 JURORS AND ALTERNATES NOTICE OF INTENT TO SERVE SUBPOENAS TO PRODUCE DOCUMENTS AND THINGS FOR DISCOVERY PURSUANT TO RULE 4009.21 TO: David B. Dowling, Esquire, Counsel for Plaintiff Defendant DaVita Rx, LLC, a/k/a DaVita Camp Hill Dialysis Center intends to serve subpoenas upon the following locations: 1. Pinnacle Health System; 2. Nephrology Associates of Central PA; 3. Hematology & Oncology Consultants of Pennsylvania, PC; 4. Smith Radiology; 5. Valley Green Family Practice; 6. Associated Cardiologists; 7. Rabia N. Al-Sbaiti, M.D.; 8. Holy Spirit Hospital; 9. Select Specialty Hospital. The subpoenas to be served are identical to the ones attached to this notice. You have twenty (20) days from the date listed below in which to file of record and serve upon the undersigned an 907926.1 objection to the subpoenas. If no objection is made, the subpoenas maybe served. Respectfully submitted, THOMAS, THOMAS & HAFER, LLP By:- Evan Black, Esquire Attorney I.D. 17884 Stephanie Hersperger, Esquire Attorney I.D. 78735 Thomas, Thomas and Hafer, LLP 305 North Front Street P.O. Boa 999 Harrisburg, PA 17108 (717) 441-7051 Attorneys for Defendants 907926.1 Commonwealth of Pennsylvania County of CUMBERLAND SUBPOENA TO PRODUCE DOCUMENTS OR THINGS FOR DISCOVERY, PURSUANT TO RULE 4009.22 EMMA F. DeBOARD, Executrix of the IN THE COURT OF COMMON PLEAS Estate of STUART C. DeBOARD, CUMBERLAND COUNTY, Plaintiff V. DaVITA RX, LLC, a/k/a DaVITA CAMP HILL DIALYSIS CENTER, Defendant PENNSYLVANIA : NO. 10-7213 Civil Term CIVIL ACTION - LAW JURY TRIAL DEMANDED 12 JURORS AND ALTERNATES To: Pinnacle Health System Attn: Medical Records Department 111 South Front Street Harrisburg, PA 17101 Within twenty (20) days after service of this subpoena, you are ordered by the court to produce the following documents or things: Anv and all records for Stuart C. DeBoard, DOB:1211011929, SS#230-28-9481, including, but not limited to, all office notes, hospital records, progress notes, nursing notes, therapy records, medication records, operative reports, daily assessments, physicians orders, social services records, billinp- records, radiology reports and studies, copies ofx-ray fllms, CT scans, MRA, etc.. at Thomas, Thomas & Hafer LLP P .O. Box 999, Harrisburg PA 17108 You may deliver or mail legible copies of the documents or produce things requested by this subpoena, together with the certificate of compliance, to the party making this request at the address listed above. You have the right to seek in advance the reasonable cost of preparing the copies or producing the things sought. If you fail to produce the documents or things required by this subpoena within twenty (20) days after its service, the party serving this subpoena may seek a court order compelling you to comply with it. This subpoena was issued at the request of the following person: Evan Black, Esquire Attorney ID478735 305 North Front Street Harrisburg, PA 17108 Attorney for Defendants BY THE COURT: DATE: BY [Prothonotary] Seal of the Court Commonwealth of Pennsylvania County of CUMBERLAND SUBPOENA TO PRODUCE DOCUMENTS OR THINGS FOR DISCOVERY, PURSUANT TO RULE 4009.22 EMMA F. DeBOARD, Executrix of the IN THE COURT OF COMMON PLEAS Estate of STUART C. DeBOARD, CUMBERLAND COUNTY, Plaintiff PENNSYLVANIA V. : NO. 10-7213 Civil Term DaVITA RX, LLC, a/k/a DaVITA CAMP HILL CIVIL ACTION - LAW DIALYSIS CENTER, JURY TRIAL DEMANDED Defendant 12 JURORS AND ALTERNATES To: Nephrology Associates of Central Pennsylvania 205 Grandview Avenue, Suite 402 Camp Hill, PA 17011 Within twenty (20) days after service of this subpoena, you are ordered by the court to produce the following documents or things: Am, and all records for Stuart C. DeBoard DOB:1211011929, SS#230-28-9481, including, but not limited s to, all office notes hospital records, progress notes, nursing notes, therapy records, medication record, operative reports, daily assessments, diagnostic tests, labs, physicians orders, social services records, billing records, etc.. at Thomas, Thomas & Hafer LLP P.O. Box 999, Harrisburg PA 17108 You may deliver or mail legible copies of the documents or produce things requested by this subpoena, together with the certificate of compliance, to the party making this request at the address listed above. You have the right to seek in advance the reasonable cost of preparing the copies or producing the things sought. If you fail to produce the documents or things required by this subpoena within twenty (20) days after its service, the party serving this subpoena may seek a court order compelling you to comply with it. This subpoena was issued at the request of the following person: Evan Black, Esquire Attorney ID#78735 305 North Front Street Harrisburg, PA 17108 Attorney for Defendants BY THE COURT: DATE: Seal of the Court BY [Prothonotary] Commonwealth of Pennsylvania County of CUMBERLAND SUBPOENA TO PRODUCE DOCUMENTS OR THINGS FOR DISCOVERY, PURSUANT TO RULE 4009.22 EMMA F. DeBOARD, Executrix of the IN THE COURT OF COMMON PLEAS Estate of STUART C. DeBOARD, CUMBERLAND COUNTY; Plaintiff V. DaVITA RX, LLC, a/k/a DaVITA CAMP HILL DIALYSIS CENTER, Defendant PENNSYLVANIA : NO. 10-7213 Civil Term CIVIL ACTION - LAW JURY TRIAL DEMANDED 12 JURORS AND ALTERNATES To: Hematology & Oncology Consultants of Pennsylvania, PC 3 Walnut Street, Suite 204 Lemoyne, PA 17043 Within twenty (20) days after service of this subpoena, you are ordered by the court to produce the following documents or things: Anv and all records for Stuart C. DeBoa_ rd, DOB:1211011929, SS#230-28-9481, including, but not limited to, all office notes, hospital records, progress notes, nursing notes, therapy records, medication records, operative reports, daily assessments, diagnostic tests, labs, physicians orders, social services records, billing records, etc.. at Thomas Thomas & Hafer LLP P.O. Box 999, Harrisburg, PA 17108 _ You may deliver or mail legible copies of the documents or produce things requested by this subpoena, together with the certificate of compliance, to the party making this request at the address listed above. You have the right to seek in advance the reasonable cost of preparing the copies or producing the things sought. If you fail to produce the documents or things required by this subpoena within twenty (20) days after its service, the party serving this subpoena may seek a court order compelling you to comply with it. This subpoena was issued at the request of the following person: Evan Black, Esquire Attorney ID#78735 305 North Front Street Harrisburg, PA 17108 Attorney for Defendants BY THE COURT: DATE: Seal of the Court BY [Prothonotary] Commonwealth of Pennsylvania County of CUMBERLAND SUBPOENA TO PRODUCE DOCUMENTS OR THINGS FOR DISCOVERY, PURSUANT TO RULE 4009.22 EMMA F. DeBOARD, Executrix of the IN THE COURT OF COMMON PLEAS Estate of STUART C. DeBOARD, CUMBERLAND COUNTY, Plaintiff V. DaVITA RX, LLC, a/k/a DaVITA CAMP HILL DIALYSIS CENTER, Defendant : PENNSYLVANIA NO. 10-7213 Civil Term CIVIL ACTION - LAW JURY TRIAL DEMANDED 12 JURORS AND ALTERNATES To: Smith Radiology 1515 Bridge Street New Cumberland, PA 17070 Within twenty (20) days after service of this subpoena, you are ordered by the court to produce the following documents or things: Anv and all records for Stuart C. DeBoard, DOB:1211011929, SS#230-28-9481, including, but not limited to, all office notes hospital records progress notes, nursing notes, therapy records, medication records, operative reports, daily assessments, diagnostic tests, labs, physicians orders, social services records, billing records, etc.. r at Thomas Thomas & Hafer LLP P.O. Box 999, Harrisburg, PA 17108 You may deliver or mail legible copies of the documents or produce things requested by this subpoena, together with the certificate of compliance, to the party making this request at the address listed above. You have the right to seek in advance the reasonable cost of preparing the copies or producing the things sought. If you fail to produce the documents or things required by this subpoena within twenty (20) days after its service, the party serving this subpoena may seek a court order compelling you to comply with it. This subpoena was issued at the request of the following person: Evan Black, Esquire Attorney ID#78735 305 North Front Street Harrisburg, PA 17108 Attorney for Defendants BY THE COURT: DATE: Seal of the Court BY [Prothonotary] Commonwealth of Pennsylvania County of CUMBERLAND SUBPOENA TO PRODUCE DOCUMENTS OR THINGS FOR DISCOVERY, PURSUANT TO RULE 4009.22 EMMA F. DeBOARD, Executrix of the IN THE COURT OF COMMON PLEAS Estate of STUART C. DeBOARD, CUMBERLAND COUNTY, Plaintiff V. DaVITA RX, LLC, a/k/a DaVITA CAMP HILL DIALYSIS CENTER, Defendant : PENNSYLVANIA NO. 10-7213 Civil Term CIVIL ACTION - LAW JURY TRIAL DEMANDED 12 JURORS AND ALTERNATES To: Valley Green Family Practice 1790 Old Trail Road Etters, PA 17319 Within twenty (20) days after service of this subpoena, you are ordered by the court to produce the following documents or things: Any and all records for Stuart C. DeBoard DOB:1211011929, SS#230-28-9481, includine, but not limited to, all office notes, hospital records, progress notes, nursing notes, therapy records, medication records, operative reports, daily assessments, diagnostic tests, labs, physicians orders, social services records, billing records, etc.. _ at Thomas Thomas & Hafer LLP P .O. Box 999, Harrisburg, PA 17108 You may deliver or mail legible copies of the documents or produce things requested by this subpoena, together with the certificate of compliance, to the party making this request at the address listed above. You have the right to seek in advance the reasonable cost of preparing the copies or producing the things sought. If you fail to produce the documents or things required by this subpoena within twenty, (20) days after its service, the party serving this subpoena may seek a court order compelling you to comply with it. This subpoena was issued at the request of the following person: Evan Black, Esquire Attorney ID#78735 305 North Front Street Harrisburg, PA 17108 Attorney for Defendants BY THE COURT: DATE: BY [Prothonotary] Seal of the Court Commonwealth of Pennsylvania County of CUMBERLAND SUBPOENA TO PRODUCE DOCUMENTS OR THINGS FOR DISCOVERY, PURSUANT TO RULE 4009.22 EMMA F. DeBOARD, Executrix of the IN THE COURT OF COMMON PLEAS Estate of STUART C. DeBOARD, CUMBERLAND COUNTY, Plaintiff V. DaVITA RX, LLC, a/k/a DaVITA CAMP HILL DIALYSIS CENTER, Defendant PENNSYLVANIA NO. 10-7213 Civil Term CIVIL ACTION - LAW JURY TRIAL DEMANDED 12 JURORS AND ALTERNATES To: Associated Cardiologists 856 Century Drive Mechanicsburg, PA 17055 Within twenty (20) days after service of this subpoena, you are ordered by the court to produce the following documents or things: Anv and all records for Stuart C. DeBoard, DOB:1211011929 SS#230-28-9481, including, but not limited to, all office notes, hospital records, progress notes, nursing notes, therapy records, medication records, operative reports. daily assessments, diagnostic tests, labs, physicians orders, social services records, billing records, etc.. at Thomas Thomas & Hafer, LLP, P.O. Box 999, Harrisburg, PA 17108 You may deliver or mail legible copies of the documents or produce things requested by this subpoena, together with the certificate of compliance, to the party making this request at the address listed above. You have the right to seek in advance the reasonable cost of preparing the copies or producing the things sought. If you fail to produce the documents or things required by this subpoena within twenty (20) days after its service, the party serving this subpoena may seek a court order compelling you to comply with it. This subpoena was issued at the request of the following person: Evan Black, Esquire Attorney ID#78735 305 North Front Street Harrisburg, PA 17108 Attorney for Defendants BY THE COURT: DATE: Seal of the Court BY [Prothonotary] Commonwealth of Pennsylvania County of CUMBERLAND SUBPOENA TO PRODUCE DOCUMENTS OR THINGS FOR DISCOVERY, PURSUANT TO RULE 4009.22 EMMA F. DeBOARD, Executrix of the IN THE COURT OF COMMON PLEAS Estate of STUART C. DeBOARD, CUMBERLAND COUNTY, Plaintiff PENNSYLVANIA V. : NO. 10-7213 Civil Term DaVITA RX, LLC, a/k/a DaVITA CAMP HILL CIVIL ACTION - LAW DIALYSIS CENTER, JURY TRIAL DEMANDED Defendant 12 JURORS AND ALTERNATES To: Rabia N. Al-Sbaiti, MD 425 North 21" Street, Suite 204 Camp Hill, PA 17011 Within twenty (20) days after service of this subpoena, you are ordered by the court to produce the following documents or things: Any and all records for Stuart C. DeBoard, DOB:1211011929, SS#230-28-9481, including, but not limited to, all office notes, hospital records, progress notes, nursing notes, therapy records, medication records, operative reports, daily assessments, diagnostic tests, labs, physicians orders, social services records, billing records, etc.. at Thomas Thomas & Hafer LLP, P.O. Box 999, Harrisburg, PA 17108 _ You may deliver or mail legible copies of the documents or produce things requested by this subpoena, together with the certificate of compliance, to the party making this request at the address listed above. You have the right to seek in advance the reasonable cost of preparing the copies or producing the things sought. If you fail to produce the documents or things required by this subpoena within twenty (20) days after its service, the party serving this subpoena may seek a court order compelling you to comply with it. This subpoena was issued at the request of the following person: Evan Black, Esquire Attorney ID#78735 305 North Front Street Harrisburg, PA 17108 Attorney for Defendants BY THE COURT: DATE: Seal of the Court BY [Prothonotary] Commonwealth of Pennsylvania County of CUMBERLAND SUBPOENA TO PRODUCE DOCUMENTS OR THINGS FOR DISCOVERY, PURSUANT TO RULE 4009.22 EMMA F. DeBOARD, Executrix of the IN THE COURT OF COMMON PLEAS Estate of STUART C. DeBOARD, CUMBERLAND COUNTY. Plaintiff V. DaVITA RX, LLC, a/k/a DaVITA CAMP HILL DIALYSIS CENTER, Defendant PENNSYLVANIA NO. 10-7213 Civil Term CIVIL ACTION - LAW JURY TRIAL DEMANDED : 12 JURORS AND ALTERNATES To: Holy Spirit Hospital Attn: Medical Records Department 503 North 21st Street Camp Hill, PA 17011 Within twenty (20) days after service of this subpoena, you are ordered by the court to produce the following documents or things: Any and all records for Stuart C. DeBoard, DOB:1211011929, SS#230-28-9481, including, but not limited to, all office notes, hospital records, progress notes, nursing notes, therapy records, medication records, operative reports, daily assessments, physicians orders, social services records, billing records, radiology reports and studies, copies ofx-ray films, CT scans, MRls, etc.. at Thomas Thomas & Hafer LLP P.O. Box 999, Harrisburg, PA 17108 _ You may deliver or mail legible copies of the documents or produce things requested by this subpoena, together with the certificate of compliance, to the party making this request at the address listed above. You have the right to seek in advance the reasonable cost of preparing the copies or producing the things sought. If you fail to produce the documents or things required by this subpoena within twenty (20) days after its service, the party serving this subpoena may seek a court order compelling you to comply with it. This subpoena was issued at the request of the following person: Evan Black, Esquire Attorney ID#78735 305 North Front Street Harrisburg, PA 17108 Attorney for Defendants BY THE COURT: DATE: Seal of the Court BY [Prothonotary] Commonwealth of Pennsylvania County of CUMBERLAND SUBPOENA TO PRODUCE DOCUMENTS OR THINGS FOR DISCOVERY, PURSUANT TO RULE 4009.22 EMMA F. DeBOARD, Executrix of the IN THE COURT OF COMMON PLEAS Estate of STUART C. DeBOARD, CUMBERLAND COUNTY, Plaintiff V. DaVITA RX, LLC, a/k/a DaVITA CAMP HILL DIALYSIS CENTER, Defendant : PENNSYLVANIA : NO. 10-7213 Civil Term CIVIL ACTION - LAW JURY TRIAL DEMANDED 12 JURORS AND ALTERNATES To: Select Specialty Hospital Attn: Medical Records Department 503 North 21" Street - 5th Floor Camp Hill, PA 17011 Within twenty (20) days after service of this subpoena, you are ordered by the court to produce the following documents or things: Any and all records for Stuart C, DeBoard, DOB:1211011929, SS#230-28-9481, including, but not limited s to, all office notes, hospital records, progress notes, nursing notes, therapy records, medication record, operative reports, daily assessments, physicians orders, social services records, billing records, radiology reports and studies, copies ofx-raj, films, CT scans, MRIs, etc.. at Thomas Thomas & Hafer LLP P.O. Box 999, Harrisburg, PA 17108 You may deliver or mail legible copies of the documents or produce things requested by this subpoena, together with the certificate of compliance, to the party making this request at the address listed above. You have the right to seek in advance the reasonable cost of preparing the copies or producing the things sought. If you fail to produce the documents or things required by this subpoena within twenty (20) days after its service, the party serving this subpoena may seek a court order compelling you to comply with it. This subpoena was issued at the request of the following person: Evan Black, Esquire Attorney ID#78735 305 North Front Street Harrisburg, PA 17108 Attorney for Defendants BY THE COURT: DATE. Seal of the Court BY [Prothonotary] CERTIFICATE OF SERVICE AND NOW, this // day of February, 2011, I, Kristi L. Munshower, a Paralegal of the firm of Thomas, Thomas & Hafer LLP, hereby certify that I sent a true and correct copy of the foregoing document by placing a copy of the same in the United States Mail, postage prepaid, to the following: David B. Dowling, Esquire Rhoads & Sinon, LLP 1 S Market Square 12th Floor Harrisburg, PA 17101 907926.1 THOMAS, THOMAS & HAFER, LLP CERTIFICATE OF SERVICE I, KRISTI L. MUNSHOWER, PARALEGAL of the law firm of THOMAS, THOMAS & HAFER, LLP, do certify that I served the foregoing document on the following person(s), by depositing the same in the United States Mail, postage prepaid, at Harrisburg, Pennsylvania, addressed as follows: David B. Dowling, Esquire Rhoads & Sinon, LLP 1 South Market Square 12th Floor Harrisburg, PA 17101 Attorney for Plaintiff Date: g b5i I / 913018.2 David B. Dowling, Esquire Attorney I.D. No. 25452 RHOADS & SINON LLP One South Market Square, 12th Floor P.O. Box 1146 Harrisburg, PA 17108-1146 Phone: (717) 233-5731 Fax: (717) 238-8622 ddowling@rhoads-sinon.com Attorneys for Plaintiff Flu; FIRIOTHONOTAr"Cl H I! MAR ! 5 AM 9: 5 9 CUMBERLAND COUNTY PENNSYLVANIA EMMA F. DEBOARD, Executrix of the IN THE COURT OF COMMON PLEAS OF Estate of STUART C. DEBOARD, CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff V. DAVITA RX, LLC a/k/a DAVITA CAMP HILL DIALYSIS CENTER, Defendant CIVIL ACTION -PROFESSIONAL LIABILITY NO. 10-7213 JURY TRIAL DEMANDED CERTIFICATE OF MERIT AS TO DAVITA RX, LLC a/k/a DAVITA CAMP HILL DIALYSIS CENTER I, David B. Dowling, Esquire 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; AND/OR the claim that this defendant deviated from an acceptable professional standard is based solely on allegations that other licensed professionals for whom this defendant is responsible deviated from an acceptable professional standard and an appropriate licensed processional 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 808803.1 650138.1 licensed processionals in the treatment, practice or work that is the subject of the complaint, fell outside acceptable professional standards and that such conduct was a cause in bringing about the harm; AND/OR expert testimony of an appropriate licensed professional is unnecessary for prosecution of the claim against this defendant. RHOADS & SINON LLP Date: L By: avid B. Dowling One South Market Square, 12`h o P.O. Box 1146 Harrisburg, PA 17108-1146 (717) 233-5731 Attorney for Plaintiff i CERTIFICATE OF SERVICE I hereby certify that on this 4 - jday of March, 2011, a true and correct copy of the foregoing "Certificate of Merit" was served by means of United States mail, first class, postage prepaid, upon the following: F. Evan Black, Esquire Thomas, Thomas & Hafer 305 North Front Street P.O. Box 99 Harrisburg, PA 17108-0999 (Attorneys for Defendant DaVita Camp Hill Dialysis Center) C is L. San-tone i THOMAS, THOMAS & HAFER, LLP Evan Black, Esquire Attorney I.D. 17884 Stephanie J,. Hersperger, Esquire Attorney I.D. 78735 305 North Front Street P.O. Box 999 Harrisburg, PA 17108 (717) 441-7051 Attorneys for Defendants 3 i .. 0 0 l" I' I Ci:. ?' ..1.. Pell'- PROTHONOTAR'Y `011 F. AR 18 PM 3: 06 "UMBERLAND COUNTY PENNSYLVANIA EMMA F. DeBOARD, Executrix of the IN THE COURT OF COMMON PLEAS Estate of STUART C. DeBOARD, CUMBERLAND COUNTY, Plaintiff PENNSYLVANIA V. NO. 10-7213 Civil Term DaVITA RX, LLC, a/k/a DaVITA CAMP HILL CIVIL ACTION -LAW DIALYSIS CENTER, JURY TRIAL DEMANDED Defendant 12 JURORS AND ALTERNATES CERTIFICATE PREREQUISITE TO SERVICE OF SUBPOENA FOR DISCOVERY PURSUANT TO RULE 4009.22 As a prerequisite to service of subpoenas for documents and things pursuant to Rule 4009.22, Defendant certifies that: (1) A notice of intent to serve subpoenas with copies of the Subpoenas attached thereto was mailed or delivered to each party on or about March 7, 2011; (2) A copy of the Notice of Intent, including copies of the proposed Subpoenas, is attached to this Certificate; (3) Plaintiff's counsel has waived the twenty (20) day notice period for this subpoena (see email attached); and 913018.3 (4) The subpoenas that will be served are identical to the subpoenas that are attached to the notice of intent to serve subpoenas. Respectfully submitted, THOMAS, THOMAS & HAFER, LLP Date: By: Evan Black, Esquire Attorney I.D. 17884 Stephanie Hersperger, Esquire Attorney I.D. 78735 Thomas, Thomas and Hafer, LLP 305 North Front Street P.O. Box 999 Harrisburg, PA 17108 (717) 441-7051 Attorneys for Defendants 913018.3 Evan Black, Esquire Attorney I.D. 17784 717-441-7051 Stephanie L. Hersperger, Esquire Attorney I.D. 78735 THOMAS, THOMAS & HAFER LLP 305 NORTH FRONT STREET P.O. BOX 999 HARRISBURG. PA 17108 Attorney for Defendants EMMA F. DeBOARD, Executrix of the Estate of STUART C. DeBOARD, Plaintiff V. DaVITA RX, LLC, a/k/a DaVITA CAMP HILL DIALYSIS CENTER, Defendant (C(DF)r IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 10-7213 Civil Term CIVIL ACTION - LAW JURY TRIAL DEMANDED : 12 JURORS AND ALTERNATES NOTICE OF INTENT TO SERVE SUBPOENAS TO PRODUCE DOCUMENTS AND THINGS FOR DISCOVERY PURSUANT TO RULE 4009.21 TO: David B. Dowling, Esquire, Counsel for Plaintiff Defendant DaVita Rx, LLC, a/k/a DaVita Camp Hill Dialysis Center intends to serve subpoenas upon the following locations: 1. Manor Care Rehab. The subpoenas to be served are identical to the ones attached to this notice. You have twenty (20) days from the date listed below in which to file of record and serve upon the undersigned an objection to the subpoenas. If no objection is made, the subpoenas may be served. Respectfully submitted, THOMAS, THOMAS & HAFER, :LLP By: E an Black, Esquire Attorney I.D. 17884 Stephanie Hersperger, Esquire Attorney I.D. 78735 Thomas, Thomas and Hafer, LLP 305 North Front Street P.O. Box 999 Harrisburg, PA 17108 (717) 441-7051 Attorneys for Defendants 907926.3 Commonwealth of Pennsylvania County of CUMBERLAND SUBPOENA TO PRODUCE DOCUMENTS OR THINGS FOR DISCOVERY, PURSUANT TO RULE 4009.22 EMMA F. DeBOARD, Executrix of the IN THE COURT OF COMMON PLEAS Estate of STUART C. DeBOARD, CUMBERLAND COUNTY, Plaintiff V. DaVITA RX, LLC, a/k/a DaVITA CAMP HILL DIALYSIS CENTER, Defendant PENNSYLVANIA NO. 10-7213 Civil Term CIVIL ACTION - LAW JURY TRIAL DEMANDED : 12 JURORS AND ALTERNATES To: Manor Care Rehab Attn: Medical Records Department 1700 Market Street Camp Hill, PA 17011 Within twenty (20) days after service of this subpoena, you are ordered by the court to produce the following documents or things: Any and all records for Stuart C. DeBoard, DOB: 1211011929, SSN.• 230-28-9481, including, but not limited to, all office notes, hospital records, Progress notes, nursing notes, therapy records, medication records, operative reports, daily assessments, physicians orders, social services records, billing records, radiology reports and studies, copies ofx-ray films, CT scans, MRIs, etc. from 12110129 to present at Thomas. Thomas & Hafer, LLP. P.O. Box 999. Harrisburg, PA 17108. You may deliver or mail legible copies of the documents or produce things requested by this subpoena, together with the certificate of compliance, to the party making this request at the address listed above. You have the right to seek in advance the reasonable cost of preparing the copies or producing the things sought. If you fail to produce the documents or things required by this subpoena within twenty (20) days after its service, the party serving this subpoena may seek a court order compelling you to comply with it. This subpoena was issued at the request of the following person: Evan Black, Esquire Attorney ID#78735 305 North Front Street Harrisburg, PA 17108 Attorney for Defendants DATE: BY BY THE COURT: [Prothonotary] Seal of the Court CERTIFICATE OF SERVICE AND NOW, this 7 day of March, 2011, L. Kristi L. Munshower, a Paralegal of the firm of Thomas, Thomas & Hafer LLP, hereby certify that I sent a true and correct copy of the foregoing document by placing a copy of the same in the United States Mail, postage prepaid, to the following: David B. Dowling, Esquire Rhoads & Sinon, LLP 1 S Market Square 12th Floor Harrisburg, PA 17101 THOMAS, THOMAS & HAFER, LLP Asti L. Munshower, Paralegal 907926.3 Munshower, Kristi L. From: KBock@Rhoads-Sinon.com Sent: Tuesday, March 15, 2011 3:36 PM To: Munshower, Kristi L. Cc: DDowling@Rhoads-Sinon.com Subject: Estate of Stuart DeBoard v. DaVita Camp Hill Dialysis Kristi- We are in receipt of your letter and Notice of Intent for records from Manor Care. We have no objection and waive the 20 day time period. I want to point out, however, that you are requesting records from 12/10/29 (the date of his birth) to present. He was only in Manor Care beginning July 2, 2009 through September 1, 2009. He died October 7, 2009. Thank you. Kathy Bock Kathy B. Bock, Paralegal RHOADS & SINON LLP One South Market Sqr., 12th Flr. Harrisburg, PA 17101 (717) 233-5731 (MAIN) (717) 231-6679 (DIRECT) (717) 238-8622 (FAX) www.rhoads-sinon.com Notice: This email transmission, including any attachments, may contain confidential information protected by the attorney-client or other legal privilege. Unauthorized use, distribution or copying is prohibited. If you received this email in error, please notify the sender by replying to this email or by calling Rhoads & Sinon LLP at 717.233.5731 and deleting the erroneous transmission from your system without copying it. Thank You. " The United States Treasury Regulations and Circular 230 require all tax professionals to advise their clients that any U.S. federal tax advice contained in any written communications (including emails and attachments thereto) is not intended to be used, and cannot be used, by any recipient for the purpose of avoiding penalties that may be imposed under federal tax laws. Furthermore, no statement contained herein should be used to promote, market or recommend any federal tax transactions to third parties. Any person reviewing this information, other than the intended recipient, is expressly advised to consult with their own independent tax advisor with respect to any tax advice contained herein." 1 CERTIFICATE OF SERVICE I, KRISTI L. MUNSHOWER, PARALEGAL of the law firm of THOMAS, THOMAS & HAFER, LLP, do certify that I served the foregoing document on the following person(s), by depositing the same in the United States Mail, postage prepaid, at Harrisburg, Pennsylvania, addressed as follows: David B. Dowling, Esquire Rhoads & Sinon, LLP 1 South Market Square 12th Floor Harrisburg, PA 17101 Attorney for Plaintiff Date: ( ;b7 III 6 4st L. Munshower, Paralegal 913018.3 Evan Black, Esquire Attorney I.D. 17784 717-441-7051 Stephanie L. Hersperger, Esquire Attorney I.D. 78735 THOMAS, THOMAS & HAFER LLP 305 NORTH FRONT STREET P.O. BOX 999 HARRISBURG, PA 17108 Attorney for Defendants HENNISYLVANIA EMMA F. DeBOARD, Executrix of the Estate of STUART C. DeBOARD, Plaintiff V. DaVITA RX, LLC, a/k/a DaVITA CAMP HILL DIALYSIS CENTER, Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 10-7213 Civil Term CIVIL ACTION -LAW JURY TRIAL DEMANDED 12 JURORS AND ALTERNATES NOTICE TO PLEAD TO: Plaintiff and Counsel: You are hereby notified to plead to the enclosed Preliminary Objections within twenty (20) days from service hereof or a default judgment may be entered against you. Respectfully submitted, THOMAS, THOMAS & HAFER, LLP Date: 4/1/11 By: Evan ack, Esquire Stephanie L. Hersperger, Esquire Attorneys for Defendant a? Evan Black, Esquire Attorney I.D. 17784 717-441-7051 Stephanie L. Hersperger, Esquire Attorney I.D. 78735 THOMAS, THOMAS & HAFER LLP 305 NORTH FRONT STREET P.O. BOX 999 HARRISBURG, PA 17108 Attorney for Defendants EMMA F. DeBOARD, Executrix of the Estate of STUART C. DeBOARD, Plaintiff V. DaVITA RX, LLC, a/k/a DaVITA CAMP HILL DIALYSIS CENTER, Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 10-7213 Civil Term CIVIL ACTION -LAW JURY TRIAL DEMANDED 12 JURORS AND ALTERNATES PRELIMINARY OBJECTIONS OF DEFENDANT, DaVITA RX, LLC a/k/a DaVITA CAMP HILL DIALYSIS CENTER, TO PLAINTIFFS COMPLAINT AND NOW COMES Defendant, DaVITA RX, LLC a/k/a DaVITA Camp Hill Dialysis Center ("Objecting Defendant"), by and through its attorneys, Thomas, Thomas & Hafer, LLP, and hereby files the instant Preliminary Objections to Plaintiffs Complaint, and in support of same, avers as follows: 1. Plaintiff, Emma F. DeBoard, Executrix of the Estate of Stuart C. DeBoard ("Plaintiff') instituted this professional liability action by filing a Writ of Summons. 2. On or about January 31, 2011, Plaintiffs filed a Complaint. Plaintiff did not file or serve Certificates of Merit with their Complaint. A true and correct copy of Plaintiff s Complaint is attached hereto and marked as Exhibit "A". 3. Plaintiff asserts in her Complaint a cause of action for negligence, for corporate negligence, and for premises liability. Plaintiff seeks damages pursuant to the Wrongful Death Act and the Survival Act. See Plaintiff's Complaint, Exhibit "A". 4. Plaintiff contends in her Complaint that Defendant is a licensed health care provider as defined in 40 P.S. § 1303.503 of the Mcare Act. See ¶ 3 of Plaintiff's Complaint, Exhibit "A". 5. Plaintiff claims that Defendant is negligent for a fall Plaintiff sustained. 6. Specifically, Plaintiff alleges that decedent, who had a history of instability, falling and confusion, underwent dialysis at Defendant on October 15, 2007, due to renal disease. See ¶¶ 5-6 of Plaintiff's Complaint, Exhibit "A". 7. Plaintiff claims that at the completion of the dialysis treatment, decedent was left unattended by a patient care tech, who was a licensed health care provider, and that upon her return, "he was found lying on the floor being assisted by other personnel. The records available at this time indicate that Mr. DeBoard fell and struck his head on the corner of the dialysis machine. See ¶ 7 of Plaintiff's Complaint, Exhibit "A". 8. Plaintiff asserts that as a result of the fall, decedent suffered a subdural hematoma and died as a result of same. See ¶ 9 of Plaintiff's Complaint, Exhibit "A". 9. On or about March 14, 2011, Plaintiff served a Certificate of Merit as to Defendant. 10. Defendant files the instant Preliminary Objections to Plaintiffs' Complaint. 1. Demurrer to Count III, Premises Liability 11. A party may file a demurrer for lack of legal sufficiency pursuant to Pa.R.C.P. No. 1028(a)(4). 2 12. Plaintiff sets forth a claim based on premises liability in Count III of her Complaint. See Count III of Plaintiff's Complaint, Exhibit "A". 13. However, Plaintiff's claim based on premises liability is legally insufficient as she fails to aver that decedent's fall was caused by the alleged dangerous condition and aver facts to support same. 14. The owner of a premises may be liable to an invitee for physical harm caused by a dangerous condition if the owner by the exercise of reasonable care could have discovered the condition and the unreasonable risk involved and could have made the condition safe. Trude v. Martin, 660 A.2d 626, 630-31 (Pa. Super. 1995). 15. In the instant matter, Plaintiff's Complaint fails to aver that a dangerous condition on Defendant's properly caused decedent to fall and suffer injuries. See Count III of Plaintiffs Complaint, Exhibit "A". 16. More importantly, Plaintiffs Complaint fails to set forth facts to support that decedent fell as a result of a dangerous condition on Defendant's property. See IT 5-10 of Plaintiff s Complaint, Exhibit "A". 17. Although Plaintiff claims that the dialysis machine was a "dangerous condition," nowhere in Plaintiffs Complaint are there facts alleged to support that the dialysis machine caused decedent to fall. Instead, the only factual allegation pertaining to the dialysis machine is that decedent struck his head on the corner of it when he fell. See ¶ 7 of Plaintiffs Complaint, Exhibit "A". 18. In fact, the facts set forth in Plaintiffs Complaint and almost all of the averments of negligence pertain to Defendant's alleged failure to protect or keep decedent from falling in light of Defendant's alleged knowledge of decedent's prior medical history, which included 3 falling, instability and dementia. These are claims for professional negligence, not premises liability. 19. In sum, because Plaintiff's Complaint fails to set forth any facts whatsoever that an alleged dangerous condition, i.e., the dialysis machine, on Defendant's property caused decedent to fall (as compared to the dialysis machine being the instrumentality which actually injured decedent when he fell and hit his head on it), Plaintiff has failed to set forth a valid cause of action based on premises liability and it should be dismissed. WHEREFORE, for the reasons set forth herein, Defendant, DaVITA RX, LLC a/k/a DaVITA Camp Hill Dialysis Center, respectfully requests that this Honorable Court sustain its preliminary objection to Count III of Plaintiff s Complaint and dismiss Count III, with prejudice. II. Motion to Strike Vague and Unidentified Allegations of Ageney 20. At various places in Plaintiff s Complaint, she avers that Defendant was negligent through its "agents, employees, servants and ostensible agents," "nurses, staff and other individuals," or "assistants, nurses and personnel." See ¶¶ 12, 14, 17, 18, 29 and 33 of Plaintiff's Complaint, Exhibit "A". 21. Pursuant to Pa.R.C.P. No. 1208(a)(2), a party may file preliminary objections for the failure of a pleading to conform to law or rule of Court, or may preliminarily object pursuant to Pa.R.C.P. No. 1028(a)(3) for insufficient pleading. 22. Under Pennsylvania law, the existence of an agency relationship is a material fact essential to demonstrating vicarious liability and, therefore, must be pleaded with specificity. Willinger v. Mercy Catholic Medical Center, Fitzgerald Mercy Div., 362 A.2d 280, 283-84 (Pa. Super. 1976), aff'd, 393 A.2d 1188 (Pa. 1978). 4 23. Pennsylvania law makes clear that while it is unnecessary to plead all of the various details surrounding an alleged agency relationship, a complaint must at least allege sufficient facts which: (1) identify the agent by name or appropriate description; and (2) set forth the agent' s authority, and how the tortious acts of the agent either fall within the scope of that authority, or if unauthorized, were ratified by the agent's principals. Ettinger v. Triangle-Pacific Corp., 799 A.2d 95, 109 (Pa. Super. 2002) (citing Alumni Assoc. v. Sullivan, 535 A.2d 1095, 1100 n.2 (Pa. Super. 1987), affd, 572 A.2d 1209 (1990)), appeal denied, 815 A.2d 1042 (Pa. 2003). 24. The burden of establishing the existence of an agency relationship rests with the plaintiff as the party who is contending such a relationship exists. See Bloomingdale 's By Mail, Ltd. v. Dept. of Revenue, 567 A.2d 773, 778 (Pa. Commw. 1989), aff'd, 591 A.2d 1047 (Pa. 1991). 25. Despite these clear requirements, other than identifying the technician who allegedly left decedent unattended, nowhere in Plaintiffs Complaint does she identify the name of any other alleged agent, servant or employee of Defendant. See Plaintiff's Complaint, Exhibit "A". 26. Plaintiff also fails to set forth the authority of the agent, servant or employee of Defendant and how the tortious acts of the alleged agent, servant or employee either fall within the scope of that authority, or if unauthorized, were ratified by Defendant. See Plaintiff's Complaint, Exhibit "A". 27. Plaintiff's allegations of agency against Defendant set forth in Paragraphs 12, 14, 17, 18, 29 and 33 of Plaintiff's Complaint are contrary to the Pennsylvania Rules of Civil Procedure and interpreting case law. 5 28. If these overly broad and vague allegations of agency are permitted to remain in Plaintiff's Complaint, Defendant will be left to guess as to whom allegedly was acting on its behalf and will not be able to properly admit or deny said agency and prepare a defense. 29. Moreover, Pa.R.C.P. No. 1029(b) and (e) dictate that averments "relating to the identity of the person by whom a material act was committed" are deemed to be admitted if not specifically denied. 30. Because Plaintiffs' references to Defendant's "agents, employees, servants and ostensible agents," "nurses, staff and other individuals," or "assistants, nurses and personnel" fail to identify the individuals forming the basis for Plaintiffs claim for vicarious liability with sufficient specificity, those allegations contained in Plaintiffs Complaint, specifically in Paragraphs 12, 14, 17, 18, 29 and 33 of Plaintiff's Complaint, should be stricken, with prejudice. See, e.g. , Yacoub v. Lehigh Valley Med. Assocs., 805 A.2d 579, 589-90 (Pa. Super. 2002), appeal denied, 825 A.2d 639 (Pa. 2003); Rex v. Wellspan Health t/d/b/a Gettysburg Hospital, 8 Pa. D. &.C5th 573, 575-76 (C.C.P. Adams Co. 2009) (sustaining the defendant's preliminary objection to overly broad allegations of agency); Boyd v. Somerset Hosp., 24 Pa. D.&C. 4th 564 (C.C.P. Somerset Co. 1993). 31. Alternatively, Plaintiff should be required to identify by name or adequate description each of the agents, servants or employees whom they refer were acting on behalf of Defendant, and their authority to act on its behalf. WHEREFORE, for the reasons set forth herein, Defendant, DaVITA RX, LLC a/k/a DaVITA Camp Hill Dialysis Center, respectfully requests that this Honorable Court sustain its preliminary objection to the overly broad allegations of agency and strike said allegations in Paragraphs 12, 14, 17, 18, 29 and 33 of Plaintiffs Complaint, or in the alternative, order Plaintiff 6 to file an Amended Complaint within 20 days more specifically identifying the alleged agents and their authority to act on behalf of Defendant. Respectfully submitted, THOMAS, THOMAS & HAFER, LLP Date: 4/1/11 By: z? Evan B1 ck, Esquire Attorney I.D. 17884 Stephanie,L. Hersper&!r, _ Attorney I.D. 78735 305 North Front Street P.O. Box 999 Harrisburg, PA 17108 (717) 441-7051 Attorneys for Defendant 7 1 .9 David B. Dowling, Esquire Attorney I.D. No. 25452 RHOADS & SINON One South Market Square, 12th Floor P.O. Box 1146 Harrisburg, Pennsylvania 17108-1146 (717) 233-5731 Attorneys for Plaintiff EMMA F. DEB OARD, Executrix of the Estate of STUART C. DEBOARD, Plaintiff V. DAVITA RX, LLC a/k/a DAVITA CAMP HILL DIALYSIS CENTER, Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION -PROFESSIONAL LIABILITY NO. 10-7213 : JURY TRIAL DEMANDED NOTICE YOU HAVE BEEN SUED IN COURT. If you wish to defend against the claims set forth in. the following pages, you must take action within twenty (20) days after this Complaint and Notice are served, by entering a written appearance personally or by attorney and filing in writing with the Court your defenses. or objections to the claims set forth against you. You are warned that if you fail to do- so the . case may proceed without you and a judgment may be entered against you by the Court without further notice for any money claimed in the Complaint or for any other claim or relief requested by the Plaintiff. You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. CUMBERLAND COUNTY BAR ASSOCIATION 32 South Bedford Street Carlisle, PA 17013 (800) 990-9108 or (717) 249-3166 1,A--- David B. Dowling, Esquire Attorney I.D. No. 25452 RHOADS & SINON One South Market Square, 12th Floor P.O. Box 1146 Harrisburg, Pennsylvania 17108-1146 (717) 233-5731 Attorneys for Plaintiff EMMA F. DEBOARD, Executrix of the Estate of STUART C. DEBOARD, Plaintiff V. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION -PROFESSIONAL LIABILITY NO. 10-7213 DAVITA RX, LLC a/k/a DAVITA CAMP HILL DIALYSIS CENTER, Defendant JURY TRIAL DEMANDED COMPLAINT NOW COMES Plaintiff, Emma F. DeBoard, Executrix of the Estate of Stuart C. DeBoard, by and through her attorneys, Rhoads & Sin on LLP, and files the within Complaint and aver as follows: PARTIES 1. Plaintiff, Emma F. DeBoard (hereinafter "Mrs. DeBoard"), is the Executrix of the Estate of Stuart C. DeBoard (hereinafter "Mr. DeBoard"). She is an adult individual who resides at 39 Springer's Lane, New Cumberland, York County, Pennsylvania, 17070. a 2. Defendant, DaVita RX, LLC, a/k/a DaVita Camp Hill Dialysis Center (hereinafter "DaVita"), is limited liability company organized and existing under the laws of the State of Delaware, maintaining a principal place of business at 425 North 21St Street, Camp Hill, Cumberland County, Pennsylvania, 17011. Plaintiff asserts a professional liability claim against DaVita and its agents, servants and employees. 3. It is believed and averred that DaVita is a licensed health cart provider as defined in 40 P.S. §1303.503 of the M-Care Act. 4. Venue is proper in Cumberland County pursuant to Pa. R. Civ. P. 2719 and 1006(c) because DaVita is located in Cumberland County, Pennsylvania, and the acts. upon which this lawsuit is based occurred in Cumberland County, Pennsylvania. FACTUAL BACKGROUND 5. On or about October 15, 2007, Mr. DeBoard became a dialysis patient at DaVita due to renal disease. He received dialysis treatments at DaVita three times per week. His medical profile and history included, among other things, a history of falling, instability and dementia 6. The DaVita records demonstrated that Mr. DeBoard had a history of instability, confusion, and falling. 7. On October 7, 2009 at 2:15 p.m. Mr. DeBoard finished his dialysis treatment and was left unattended by Carmen Villegas, a patient care tech. It is believed and averred that she is a licensed health care provider as defined in 40 P.S. § 1303.503 of the MCare Act. Upon her - 2 - return, he was found lying on the floor being-assisted by other personnel. The records available at this time indicate that Mr. DeBoard fell and struck his head on the corner of the dialysis machine. 8. He was transported to Harrisburg Hospital Emergency Department and arrived at approximately 2:30 p.m. 9. A CT Scan was performed at 4:00 p.m. The results of the CT scan and it showed a subdural hematoma. Surgical intervention was not an option. Mr. DeBoard died 4 hours later at 8:00 p.m. that evening due to a head injury and resulting subdural hematoma. 10. At all relevant times, DaVita knew or should have known that Mr. DeBoard was at a great risk of falling. 11. At all relevant times, DaVita owed a duty to Mr. DeBoard to possess and exercise the requisite degree of care, skill and knowledge possessed and exercised by similar healthcare providers. 12. The negligence, carelessness and deviation from the appropriate standard of care by DaVita acting through its agents, employees, servants and ostensible agents significantly and . materially contributed to and caused the injuries of Mr. DeBoard. - 3 - COUNTI EMMA F._DEBOARD, Executrix of the Estate of STUART C. DeBOARD v. DAVITA RX, LLC a/k/a DAVITA CAMP HILL DIALYSIS CENTER (Negligence) 13. Plaintiff incorporates by reference the allegations set forth in paragraphs 1 through 12 as if more fully set forth herein. .14. The negligence of DaVita, acting through it agents, ostensible agents, employees, and servants, -consisted of the following acts and omissions, which substantially increased the risk of harm, morbidity and death of Mr. DeBoard. The acts and omissions listed in the paragraphs a - g, which are to be read in conjunction with paragraphs 1-41 consist of the following: a. leaving Mr. DeBoard alone, unprotected and unassisted thereby causing him to fall and suffer a severe subdural hematoma while waiting for transport in ' the waiting room; b. failure to protect Mr. DeBoard from falling 'injury; C. failure to protect its patients, including Mr. DeBoard, against any falling injury by not training its. staff, agents, employees and personnel in utilizing proper and appropriate techniques and safety protocols to provide protection and assistance to its patients; d. failure to implement and enforce safety procedures for its cognitively impaired and unstable patients; e. failure to adequately assess the level of assistance or restraint needed to protect it patients, including Mr. DeBoard from falling injuries; f. failure to properly protect and/or restrain Mr. DeBoard from falling injuries; and g. failure to properly assist Mr. DeBoard getting into and out of chairs. - 4 - 15. DaVita knew or should have known that Mr. DeBoard had a history of falling, instability, dementia, needed for assistance with mobility, ambulation and transfers and was predisposed to getting up from, and out of his chair and that by failing to properly assist or restrain him and monitor his condition, Mr. DeBoard suffered serious injuries leading to his death. 16. DaVita failed to act in conscious disregard of, or indifference to Mr. DeBoard's needs not to be left alone, to be constantly assisted and/or physically restrained and monitored throughout his stay at the dialysis treat center. 17. At all relevant times herein, DaVita employed, directed and controlled the nurses, staff and other individuals who rendered care and treatment to Mr. DeBoard during his dialysis treatments at the facility. 18. DaVita is responsible for the negligent acts and omissions of its assistants, nurses and personnel who were involved in the treatment and care of Mr. DeBoard, as this treatment and care was rendered during the course of and within the scope of employment. 19. The injuries and death of Mr. DeBoard were the direct and proximate result of the negligence, carelessness and deviation from the standard of care of Defendant DaVita 20. The conduct of DaVita caused and/or substantially increased the risk of injury to Mr. DeBoard. - 5 - 21. As a result of the negligence and carelessness of DaVita as described above, Mr. DeBoard suffered a subdural hematoma and died. WHEREFORE, Plaintiff demands judgment against DaVita in an amount which exceeds the amount requiring compulsory arbitration, pursuant to Pa.R.C.P. 1021 (c), together with interest, costs of suit, delay damages, pain and suffering and all other damages, as allowed by Pennsylvania law. COUNT II EMMA F._ DEBOARD, Executrix of the Estate of STUART C. DeBOARD v. DAVITA_RX, LLC a/k/a DAVITA CAMP HILL DIALYSIS CENTER (Corporate Negligence) 22. Plaintiff incorporates by reference the allegations set forth in paragraphs 1 through 21 as if more fully set forth herein. 23. DaVita owed a duty directly to Mr. DeBoard pursuant to the principles of corporate negligence. DaVita breached its duty by: a. failing to use reasonable care in the maintenance of safe and adequate facilities and equipment which directly led and caused the injury to Mr. DeBoard and in decedent falling, hitting his head causing a subdural hematoma and death; b. failing to formulate, adopt and enforce adequate rules and policies to ensure that patients, including Mr. DeBoard, were not left alone, properly assisted and/or restrained from falling out of and/or getting up from a chair and that he would be constantly monitored throughout his stay at DaVita; and c. failing to select and retain only competent and skilled nurses and staff to provide supervision and protection to patients, including Mr. DeBoard; - 6 - 24. DaVita had actual and/or constructive knowledge of the procedures and policies, facilities and equipment that caused the injuries and death of the decedent. 25. As a direct and proximate result of the negligence and carelessness of DaVita as described above, Mr. DeBoard suffered a subdural hematoma and death. WHEREFORE, Plaintiff demands judgment against the Defendant DaVita, in an amount which exceeds the amount requiring compulsory arbitration pursuant to Pa. R.C.P. 1021(c), together with interest, costs . of suit, delay damages and all other damages allowed by Pennsylvania law. COUNT III EMMA F. DEBOARD, Executrix of the Estate of STUART C. DEBOARD v DAVITA RX, LLC a/k/a DAVITA CAMP HILL DIALYSIS CENTER (Premises Liability) 26. Plaintiff incorporates by reference the allegations set forth in paragraphs 1 through 25 as if more fully set forth herein. 27. As owners and occupiers of the respective facilities, DaVita is required to use reasonable care _ in the maintenance and use of its property and to protect its invitees from foreseeable harm. 28. DaVita, as owners and occupiers of its respective facility is also required to inspect the premises and to discover dangerous conditions, including the base of the dialysis machine.. - 7 - 29. DaVita is responsible for the negligent acts and omissions of its nurses and other personnel who were involved in the treatment and care of Stuart C. DeBoard, as this treatment and care was rendered during the course of and within the scope of employment. 30. At all relevant times, Mr. DeBoard was a business invitee. 31. DaVita is also liable to Mr. DeBoard for failure to warn him or his family of the. condition referenced herein and by failing to regularly inspect the premises to determine whether a risk of falling exists at the facility. 32. DaVita is additionally liable in that it should expect that its invitees will not be able to discover or realize the danger of falling and will correspondingly fail to protect Ahemselves against it. 33. DaVita is also liable to Mr. DeBoard, a business invitee for failure to adequately instruct, advise and train its employees, agents, servants and representatives to implement a safe effective and adequate prevention, detection and monitoring system to prevent patient falling injuries. WHEREFORE, Emma F. DeBoard, as Executrix of the Estate of Stuart C. DeBoard, demands judgment against the DaVita in an amount which exceeds the amount requiring compulsory arbitration pursuant to Pa. R.C.P. 1021(c), together with interest, costs of suit, delay damages and all other damages allowed by Pennsylvania law. - 8 - COUNT IV EMMA F. DEBOARD, Executrix of the Estate of STUART C. DEBOARD v. DAVITA RX, LLC a/k/a DAVITA CAMP HILL DIALYSIS CENTER (Wrongful Death) 34. Plaintiff incorporates by reference the allegations set forth in paragraphs 1 through 33 as if more fully set forth herein. 35. Emma DeBoard•brings this action pursuant Pa. R.Civ. P. 2202(a) and 42 C.S.A. §8301 as the Executrix of the Estate of Stuart C. DeBoard and on her own behalf to recover.for the wrongful death of Stuart C. DeBoard. 36. At no time did the Decedent's Estate bring an action to recover damages for his death and no other action has been commended to recover damages for his death. 37. Emma F. DeBoard as Executrix of the Estate of Stuart C. DeBoard brings this action on behalf of all persons entitled to recover damages under the Wrongful Death Statute, including:'Emma F. DeBoard, wife; and Martha A. DeBoard, daughter. 38. As a direct and proximate result of all DaVita's negligence as set forth herein, the Plaintiff has suffered and the DaVita is liable for the following damages: a. all reasonable and necessary funeral expenses; b. all medical expenses related to the negligence of DaVita; C. expenses of administration related to the decedent's injuries and death; and d. Plaintiff's loss of contribution,. support, comfort, care and services of the Decedent which would have been provided. - 9 - WHEREFORE, Emma F. DeBoard, Executrix of the Estate of Stuart C. DeBoard, pursuant to the Wrongful Death Act, demands judgment against DaVita in an amount which exceeds the amount requiring compulsory arbitration pursuant to Pa. R.C.P. 1021(c), together with interest, costs of suit, delay damages and all other damages allowed by Pennsylvania law. COUNT V EMMA F. DEBOARD, Executrix of, the Estate of STUART C. DEBOARD v. DAVITA RX, LLC a/k/a DAVITA CAMP HILL DIALYSIS CENTER (Survival Action) 39.. Plaintiff incorporates by reference the allegations set. forth in paragraphs 1 through 38 as if more fiilly set forth herein. . . . 40'.- ' The Plaintiff brings this action on behalf of Stuart C. DeBoard's Estate pursuant ' to 20 Pa.C.S.A. 3373. and 42 Pa.C.S. §8302 for damages suffered -by the Estate as a .result of Stuart C. DeBoard's death, as well as pain, suffering and inconvenience which the decedent underwent prior to his death as a result of the negligence 'of DaVita. 41. As a direct and proximate result of the negligence and carelessness of the DaVita as described herein, Stuart C. DeBoard suffered a fatal subdural hematoma. 42. As a direct and proximate result of the negligence and carelessness of the DaVita as set forth herein, Stuart C. DeBoard suffered physical pain, mental anguish, emotional distress, discomfort, social security and other benefits, including loss of life's pleasures. Emma F. - 10 - DeBoard, as Executrix of the Estate of Stuart C. DeBoard makes a claim therefore together with all other damages allowed and recoverable pursuant to Pennsylvania law. WHEREFORE, Emma F. DeBoard, Individually and as Executrix of the Estate of Stuart C. DeBoard, pursuant to the Survival Statute, 42 Pa. C.S.A. §8302 demands judgment against - 17 DaVita, in an amount which exceeds the amount requiring compulsory arbitration pursuant to Pa. R.C.P. 1021(c), together with interest, costs of suit, delay damages and all other damages allowed by Pennsylvania law. RHOADS & SINON LLP By: 1 Date: January 28, 2011 David B. Dowling One South Market Square, li P.O. Box 1146 Harrisburg, PA 17108-1146 (717) 233-5731 Attorneys for Plaintiff - 11 - n VERIFICATION I hereby affirm that the following facts are correct: I am the Plaintiff herein. The attached Complaint is based upon information which I have furnished to my counsel and information which has been gathered by my counsel in preparation of my lawsuit. The language of the Complaint is that of counsel and not of me. I have read the Complaint and, to the extent that the Complaint is based on information which I have given to my counsel, it is true and correct to the best of my knowledge, information and belief. To the extent that the content of the Complaint is that of counsel, I have relied upon counsel in making this Verification. I hereby acknowledge that the facts set forth in the aforesaid Complaint, is made subject to the penalties of 18 Pa. C.S. § 4904, relating to unworn falsification to authorities. Executrix of the Estate of Stuart C. DeBoard Emma F. DeBoard Dated: / ), / / CERTIFICATE OF SERVICE I hereby certify that on this 28th day of January, 2011, a true and correct copy of the foregoing Complaint was served by means of United States mail, first class, postage prepaid, upon the following: F. Evan Black, Esquire Thomas, Thomas & Hafer 305 North Front Street P.O. Box 99 Harrisburg, PA 17108-0999 (Attorneys for Defendant DaVita Camp Hill Dialysis Center) ? J l V V yn{hia L. Santone J - 12 - CERTIFICATE OF SERVICE I, Gwen Cleck, employee of the law firm of Thomas, Thomas & Hafer, LLP, hereby certify that a true and correct copy of the Preliminary Objections of Defendant to Plaintiff's Complaint was sent to the following counsel of record by placing a copy of same by First Class in the United States mail, postage prepaid, at Harrisburg, Pennsylvania, addressed as follows: David B. Dowling, Esquire Rhoads & Sinon, LLP 1 South Market Square 12th Floor Harrisburg, PA 17101 Attorney for Plaintiff Date: 4/1/11 THOMAS, THOMAS & HAFER, LLP Gwen Cleck 8 I EMMA F. DEBOARD, Executrix of the IN THE COURT OF COMMON PLEAS OF Estate of STUART C. DEBOARD, CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff V. DAVITA RX, LLC a/k/a DAVITA CAMP HILL DIALYSIS CENTER, Defendant CIVIL ACTION -PROFESSIONAL LIABILITY NO. 10-7213 : :rn :Z= --< rnr= fl r- -<> !V r "OCD r-- -; o JURY TRIAL DEMANDED c RULE TO SHOW CAUSE rn? AND NOW, this p? day of 2011, upon consideration of the foregoing motion, it is hereby ordered that: (1) a rule is issued upon the respondent to show cause why the petitioner is not entitled to the relief requested; (2) the respondent shall file an answer to the motion within days of this date; (3) the motion shall be decided under Pa.R.C.P. No. 206.7; (4) argument shall be held on l 2011" in Courtroom -6 oft Cumberland County Courthouse; and (5) notice of the entry of this order shall be provided to all parties by the petitioner. BY THE COURT: DavtdB. in9, 6 0"' F. Evx.n ala&, 8tj 6?11 s 3: OaK 1 go THOMAS, THOMAS & HAFER, LLP Evan Black, Esquire Attorney I.D. 17884 Stephanie L. Hersperger, Esquire Attorney I.D. 78735 305 North Front Street P.O. Box 999 Harrisburg, PA 17108 (717) 441-7051 Attorneys for Defendants EMMA F. DeBOARD, Executrix of the Estate of STUART C. DeBOARD, Plaintiff V. -, x-- e? 'c3 r-n cry CO IN THE COURT OF COMMO N PMAS.-.' CUMBERLAND COUNTY, PENNSYLVANIA NO. 10-7213 Civil Term DaVITA RX, LLC, a/k/a DaVITA CAMP HILL CIVIL ACTION - LAW DIALYSIS CENTER. JURY TRIAL DEMANDED Defendant 12 JURORS AND ALTERNATES CERTIFICATE PREREQUISITE TO SERVICE OF SUBPOENA FOR DISCOVERY PURSUANT TO RULE 4009.22 As a prerequisite to service of subpoenas for documents and things pursuant to Rule 4009.22, Defendant certifies that: (1) A notice of intent to serve subpoenas with copies of the Subpoenas attached thereto was mailed or delivered to each party on or about April 14, 2011; (2) A copy of the Notice of Intent, including copies of the proposed Subpoenas, is attached to this Certificate; (3) Plaintiffs counsel has waived the twenty (20) day notice period for this subpoena (see email attached); and 913018.4 (4) The subpoenas that will be served are identical to the subpoenas that are attached to the notice of intent to serve subpoenas. Respectfully submitted, THOMAS, THOMAS & HAFER, LLP Date: t Z7By: Evan Black, squire Attorney I.D. 17884 Stephanie Hersperger, Esquire Attorney I.D. 78735 Thomas, Thomas and Hafer, LLP 305 North Front Street P.O. Box 999 Harrisburg, PA 17108 (717) 441-7051 Attorneys for Defendants 913018.4 Munshower, Kristi L. From: KBock@Rhoads-Sinon.com Sent: Tuesday, April 26, 2011 2:49 PM To: Munshower, Kristi L. Subject: RE: (DeBoard)Notice of Intent - Michael L. Sams, DO K- Yes, we waive the Notice period. Thank you. K Kathy B. Bock, Paralegal RHOADS & SINON LLP One South Market Sqr., 12th Flr. Harrisburg, PA 17101 (717) 233-5731 (MAIN) (717) 231-6679 (DIRECT) (717) 238-8622 (FAX) www.rhoads-sinon.com From: "Munshower, Kristi L." <kmunshower@tthlaw.com> To: "'KBock@Rhoads-Sinon.com "' <KBock@Rhoads-Sinon.com> Cc: "DDowling@Rhoads-Sinon.com" <DDowling@Rhoads-Sinon.com>, "CSantone@Rhoads-Sinon.com" <CSantone@Rhoads-Sinon.com> Date: 04/26/2011 02:45 PM Subject: RE: (DeBoard)Notice of Intent - Michael L. Sams, DO Hi Kathy, Sure, I will send copies over. I assume Mr. Dowling waives the notice period then? Thanks, Kristi Kristi L. Munshower, Paralegal Thomas, Thomas & Hafer LLP (717) 237-7114 kmunshower(kthlaw.com -----Original Message----- From: KBock@Rhoads-Sinon.com [mailto:KBock@Rhoads-Sinon.com] Sent: Tuesday, April 26, 2011 2:42 PM To: Munshower, Kristi L. Cc: DDowling@Rhoads-Sinon.com; CSantone@Rhoads-Sinon.com Subject: (DeBoard)Notice of Intent - Michael L. Sams, DO Kristi- We are in receipt of your Notice of Intent for records from the office of Michael L. Sams, D.O. To the extent there are records, independent of Manor Care, at Dr. Sams' office regarding Mr. DeBoard, would you please provide us with a copy. Thank you. KB Kathy B. Bock, Paralegal RHOADS & SINON LLP One South Market Sqr., 12th Flr. Harrisburg, PA 17101 (717) 233-5731 (MAIN) (717) 231-6679 (DIRECT) (717) 238-8622 (FAX) www.rhoads-sinon.com Notice: This email transmission, including any attachments, may contain confidential information protected by the attorney-client or other legal privilege. Unauthorized use, distribution or copying is prohibited. If you received this email in error, please notify the sender by replying to this email or by calling Rhoads & Sinon LLP at 717.233.5731 and deleting the erroneous transmission from your system without copying it. Thank You. 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This email message has been delivered safely and archived online by Mimecast. For more information please visit http://www.mimecast.com 2 Evan Black, Esquire Attorney I.D. 17784 717-441-7051 Stephanie L. Hersperger, Esquire Attorney I.D. 78735 THOMAS, THOMAS & HAFER LLP 305 NORTH FRONT STREET P.O. BOX 999 HARRISBURG. PA 17108 Attorney for Defendants EMMA F. DeBOARD, Executrix of the Estate of STUART C. DeBOARD, Plaintiff IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, : PENNSYLVANIA V. DaVITA RX, LLC, a/k/a DaVITA CAMP HILL DIALYSIS CENTER, Defendant NO. 10-7213 Civil Term CIVIL ACTION - LAW JURY TRIAL DEMANDED 12 JURORS AND ALTERNATES NOTICE OF INTENT TO SERVE SUBPOENAS TO PRODUCE DOCUMENTS AND THINGS FOR DISCOVERY PURSUANT TO RULE 4009.21 TO: David B. Dowling, Esquire, Counsel for Plaintiff Defendant DaVita Rx, LLC, a/k/a DaVita Camp Hill Dialysis Center intends to serve subpoenas upon the following locations: 1. Michael L. Sams, D.O. The subpoenas to be served are identical to the ones attached to this notice. You have twenty (20) days from the date listed below in which to file of record and serve upon the undersigned an objection to the subpoenas. If no objection is made, the subpoenas may be served. Respectfully submitted, THOMAS, THOMAS & HAFER, LLP Ev*al h Black, Esquire Attorney I.D. 17884 Stephanie Hersperger, Esquire Attorney I.D. 78735 Thomas, Thomas and Hafer, LLP 305 North Front Street P.O. Box 999 Harrisburg, PA 17108 (717) 441-7051 Attorneys for Defendants 907926.3 Commonwealth of Pennsylvania County of CUMBERLAND SUBPOENA TO PRODUCE DOCUMENTS OR THINGS FOR DISCOVERY, PURSUANT TO RULE 4009.22 EMMA F. DeBOARD, Executrix of the IN THE COURT OF COMMON PLEAS Estate of STUART C. DeBOARD, CUMBERLAND COUNTY, Plaintiff PENNSYLVANIA V. : NO. 10-7213 Civil Term DaVITA RX, LLC, a/k/a DaVITA CAMP HILL CIVIL ACTION - LAW DIALYSIS CENTER, JURY TRIAL DEMANDED Defendant 12 JURORS AND ALTERNATES To: Michael L. Sams, D.O. 3544 North Progress Avenue, Suite 107 Harrisburg, PA 17110 Within twenty (20) days after service of this subpoena, you are ordered by the court to produce the following documents or things: Any and all records for Stuart C. DeBoard, DOB: 1211011929, SSN.• 230-28-9481, including, but not limited to, all office notes, hospital records, progress notes, nursing notes, therapy records, medication records, operative reports, daily assessments, diagnostic tests, labs, physicians orders, social services records, billing records, etc. at Thomas, Thomas & Hafer, LLP, P.O. Box 999, Harrisburg, PA 17108. You may deliver or mail legible copies of the documents or produce things requested by this subpoena, together with the certificate of compliance, to the party making this request at the address listed above. You have the right to seek in advance the reasonable cost of preparing the copies or producing the things sought. If you fail to produce the documents or things required by this subpoena within twenty (20) days after its service, the party serving this subpoena may seek a court order compelling you to comply with it. This subpoena was issued at the request of the following person: Evan Black, Esquire Attorney ID#78735 305 North Front Street Harrisburg, PA 17108 Attorney for Defendants BY THE COURT: DATE: BY [Prothonotary] Seal of the Court CERTIFICATE OF SERVICE I, KRISTI L. MUNSHOWER, PARALEGAL of the law firm of THOMAS, THOMAS & HAFER, LLP, do certify that I served the foregoing document on the following person(s), by depositing the same in the United States Mail, postage prepaid, at Harrisburg, Pennsylvania, addressed as follows: David B. Dowling, Esquire Rhoads & Sinon, LLP 1 South Market Square 12th Floor Harrisburg, PA 17101 Attorney for Plaintiff Date: 913018.4 David B. Dowling, Esquire Attorney I.D. 25452 Jill N. Weikert, Esquire Attorney I.D. 208055 RHOADS & SINON LLP One South Market Square PO Box 1 146 Harrisburg, PA 17108-1146 Telephone: (717) 233-5731 Facsimile: (717) 238-8623 Email: ddowling@rhoads-sinon.com jweikert@rhoads-sinon.com Attorneys for Plaintiff EMMA F. DeBOARD, Executrix of the ESTATE OF S TUART C. DeBOARD, Plaintiff V. DaVITA RX, LLC, a/k/a DaVITA CAMP HILL DIALYSIS CENTER, Defendant r jj (`'fit }. P ^ g i 7 a l)f .d 2011 JU 4 10 P11 12: 22 r'UMBE(;'L "j, . PENInsY IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 10-7213 CIVIL TERM CIVIL ACTION - LAW JURY TRIAL DEMANDED 12 JURORS AND ALTERNATES PRAECIPE FOR ENTRY OF APPEARANCE TO THE PROTHONOTARY; Kindly enter the appearance of Cory A. Iannacone on behalf of the Plaintiff, Emma F. DeBoard, Executrix of the Estate of Stuart C. DeBoard, in this matter. Respectfully submitted, MaaOA & SIN ON LLP By: ?-W - nnacone One South Market Square P. O. Box 1146 Harrisburg, PA 17108-1146 (717) 233-5731 Attorneys for Plaintiff 81'7561.1 CERTIFICATE OF SERVICE I hereby certify that on June _, 2011, a true and correct copy of the foregoing document was served by means of United States mail, first class, postage prepaid, upon the following: Evan Black, Esquire Stephanie L. Hersperger, Esquire Thomas, Thomas & Hafer LLP 305 North Front Street P.O. Box 999 Harrisburg, PA 17108 Attorneys for Defendants t lWt4 Lynne W Ritter EMMA F. DEBOARD, Executrix of the : IN THE COURT OF COMMON PLEAS OF Estate of STUART C. DEBOARD, CUMBERLAND COUNTY, PENNSYLVANIA PLAINTIFF • C? ra DAVITA RX, LLC a/k/a DAVITA CAMP HILL DIALYSIS CENTER DEFENDANT 10-7213 CIVIL TERMS = ' = ORDER OF COURT AND NOW, this day of June, 2011, upon consideration of plaintiffs motion to compel, defendant's response thereto and argument thereon, the court issues the following order: (1) Regarding interrogatories 7 and 29, we direct that the defendant submit to the court for in camera review its Adverse Occurrence Report, which the court shall examine to determine if it is privileged pursuant to the Peer Review Protection Act, 63 P.S. Section 425.1 et seq. (2) With respect to interrogatories 3, 4 and 5, pursuant to Pa.R.C.P. 4006(b), the information sought by plaintiff is deemed accessible to the plaintiff who should bear the burden of ascertaining the respective answers. Therefore, the motion to compel with respect to these interrogatories IS DENIED, with the proviso that the defendant shall assist plaintiff in identifying the names or signatures of any individuals which counsel for plaintiff cannot read or identify. By the Court, v Albert H. Masland, Cory A. lannacone, Esquire For Plaintiff Stephanie L. Hersperger, Esquire For Defendant ?Ao? COP i? IIrk I tl Ob saa Tyq'NOTAR David B. Dowling, Esquire PA Attorney ID No. 25452 Jill N. Weikert, Esquire PA Attorney ID No. 208055 Rhoads & Sinon LLP PO Box 1146 Harrisburg, PA 17108-1146 Phone: 717.233.5731 /Fax: 717.238.8622 Email: ddowling wrhoad-sinon.com jweikert@rhoads-sinon.com Attorneys for Plaintiff n,, 1.,'UL 20 PN 1: 53 ;uPENNS LVANIA TY EMMA F. DEBOARD, Executrix of the IN THE COURT OF COMMON PLEAS OF Estate of STUART C. DEBOARD, CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff ; V. DAVITA RX, LLC a/k/a DAVITA CAMP HILL DIALYSIS CENTER, Defendant CIVIL ACTION -PROFESSIONAL LIABILITY NO. 10-7213 : JURY TRIAL DEMANDED PRAECIPE TO SUBSTITUTE EXECUTRIX OF THE ESTATE OF STUART C. DEBOARD To: David D. Buell, Prothonotary 1 Courthouse Square Suite 100 Carlisle, PA 17013 Please amend the caption in this action and substitute Martha Ann DeBoard, Executrix of the Estate of Stuart C. DeBoard, for Emma F. DeBoard in the above-captioned action pursuant to Pa. R.C.P. Rule 2352(a). Emma F. DeBoard's health deteriorated significantly subsequent to her qualification as Executrix of the Estate of Stuart C. DeBoard, and she is unable to perform her duties as Executrix. Emma F. DeBoard filed a Petition for Leave to Resign as Executrix in the York County Orphan's Court division on May 18, 2011, which was granted on May 24, 2011. On June 27, 2011, Martha Ann DeBoard was sworn in as Executrix of the Estate of Stuart C. DeBoard and 820960.2 Letters of Administration were granted. (See a copy the Short Certificate attached hereto as Exhibit «A„ RHOADS & SINON LLP By: &aid B. owling Weikert One South Market Square P. O. Box 1146 Harrisburg, PA 17108-1146 (717) 233-5731 Attorneys for Plaintiff Date: July 19, 2011 -2- ?X?I??i? Commonwealth of Pennsylvania - Short Certificate County of York ?`SZER Of 606411" QP I, Bradley C. Jacobs, Register for the Probate of Wills and Granting Letters of Administration in and for YORK County, do hereby certify that on June 27, 2011, LETTERS OF ADMINISTRATION D.B.N. C.T.A. in common form were granted by the Register of said County, on the estate of STUART COLUMBUS DEBOARD, AKA: STUART C. DEBOARD late of FAIRVIEW TOWNSHIP in said county, deceased, to MARTHA ANN DEBOARD and that same has not since been revoked. IN TESTIMONY HWEREOF, I have here unto set my hand and affixed the seal of said office at YORK, PENNSYLVANIA, on July 11, 2011. File No: Date of Death : S.S. #: 6710-1031 October 07, 2009 230-28-9481 Register Will, BRADLEY C. JACOBS Register of Wills & Clerk of Orphans, Court fly Commission Expires First Monday, January. 2012 NOT VALID WITHOUT OFFICIAL SIGNATURE AND SEAL OF OFFICE CERTIFICATE OF SERVICE I hereby certify that on this 19th day of July, 2011, a true and correct copy of the foregoing Praecipe to Substitute Executrix of the Estate of Stuart C. DeBoard was served by means of United States mail, first class, postage prepaid upon the following: F. Evan Black, Esquire Stephanie L. Hersperger, Esquire Thomas, Thomas & Hafer 305 North Front Street Harrisburg, PA 17101 I EMMA F. DEBOARD, Executrix of the Estate of STUART C. DEBOARD, PLAINTIFF V. DAVITA RX, LLC a/k/a DAVITA CAMP HILL DIALYSIS CENTER, DEFENDANT IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA C-) C: ru C-5 r -I r- ? t\) CD a > ?s 10-7213 CIVIL TERM' •• ;?r''? ORDER OF COURT AND NOW, this day of July, 2011, following the court's in camera review of Defendant's Adverse Occurrence Report (AOR), which was conducted pursuant to our order of court dated June 14, 2011, we find as follows: 1. The two-page AOR is merely an incident report and is not remotely akin to an evaluation or review that would bring it under the purview of the Peer Review Protection Act, 63 P.S. Section 425.1 et seq. 2. The AOR's 154 word narrative contains information that would be otherwise available to the parties. 3. The AOR constitutes a business record and is not subject to the confidentiality safeguards of the aforesaid statute. 4. Contrary to Defendant's assertion, the inclusion of a block (which was not checked) on page two of the AOR for "training and education issue (CSS)" does not transform the AOR into a peer review document. Therefore, in accordance with Atkins v. Pottstown Memorial Medical 10-7213 CIVIL TERM Center, 634 A.2d 258 (Pa. Super. 1993), we direct Defendant to submit a copy of the Adverse Occurrence Report to Plaintiff within ten days of the date of this order. By the Court, f? Albert 14. Maslan , J. Cory A. lannacone, Esquire One Market Square .'d PO Box 1146 M0i Harrisburg, PA 17108-1146 t? 411 For Plaintiff Stephanie L. Hersperger, Esquire For Defendant saa -2- PRAECIPE FOR LISTING CASE FOR ARGUMENT (Must be typewritten and submitted in duplicate) TO THE PROTHONOTARY OF CUMBERLAND COUNTY: (List the within matter for the next Argument Court.) MARTHA ANN DeBOARD, Executrix of the Estate of STUART C. DeBOARD, Plaintiff V. DaVITA RX, LLC, a/k/a DaVITA CAMP HILL DIALYSIS CENTER, Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA , ? CIVIL ACTION - LAW CO M C y + O. 2010-7213 CIVIL TERM rT7 -<> co URY TRIAL DEMANDED -<C? No. 2010 7213 Term ` State matter to be argued (i.e., plaintiffs motion for new trial, defendant's demurrer to complaint, etc.): Preliminary Objections of Defendant to Plaintiffs' Complaint 2. Identify all counsel who will argue cases: (a) for plaintiffs: David B. Dowling, Esquire, Rhoads & Sinon LLP 1 South Market Square 12th Floor Harrisburg, PA 17101 (Name and Address) (b) for defendants: Stephanie L. Hersperger, Esquire Thomas Thomas & Hafer, 305 N Front Street Harrisburg, PA 17101 (Name and Address) 3. 1 will notify all parties in writing within two days that this case has been listed for argument. 4. Argument Court Date: August 26. 2011 Signature Stephanie L. Hersper, er, Esq. Print your name Date: DaVita RX, LLC,a/k/a DaVita Camp Hill Dialysis Center Attorney for Defendants. ,h Evan Black, Esquire Attorney I.D. 17784 717-441-7051 Stephanie L. Hersperger, Esquire Attorney I.D. 78735 THOMAS, THOMAS & HAFER LLP 305 NORTH FRONT STREET P.O. BOX 999 HARRISBURG, PA 17108 Attorney for Defendants f 9 t'Ui ICE i'k O TA r4, a 13 JF' SYL VANI"{ MARTHA ANN DeBOARD, Executrix of the IN THE COURT OF COMMON PLEAS Estate of STUART C. DeBOARD, CUMBERLAND COUNTY, Plaintiff PENNSYLVANIA V. DaVITA RX, LLC, a/k/a DaVITA CAMP HILL DIALYSIS CENTER, Defendant NO. 10-7213 Civil Term CIVIL ACTION -LAW JURY TRIAL DEMANDED 12 JURORS AND ALTERNATES NOTICE TO PLEAD TO: Plaintiff and Counsel: You are hereby notified to plead to the enclosed New Matter within twenty (20) days from service hereof or a default judgment may be entered against you. Respectfully submitted, THOMAS, THOMAS & HAFER, LLP Date: O //Z / By' Evan BI ck, Esquire Stephanie L. Hersperger, Esquire 305 North Front Street P.O. Box 999 Harrisburg, PA 17108 (717) 441-7051 Attorneys for Defendant Evan Black, Esquire Attorney I.D. 17784 717-441-7051 Stephanie L. Hersperger, Esquire Attorney I.D. 78735 THOMAS, THOMAS & HAFER LLP 305 NORTH FRONT STREET P.O. BOX 999 HARRISBURG, PA 17108 Attorney for Defendants MARTHA ANN DeBOARD, Executrix of the Estate of STUART C. DeBOARD, Plaintiff V. DaVITA RX, LLC, a/k/a DaVITA CAMP HILL DIALYSIS CENTER, Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 10-7213 Civil Term CIVIL ACTION -LAW JURY TRIAL DEMANDED 12 JURORS AND ALTERNATES ANSWER OF DEFENDANT, DaVITA RX, LLC a/k/a DaVITA CAMP HILL DIALYSIS CENTER (CORRECTLY IDENTIFIED AS "RENTAL TREATMENT CENTER-NORTHEAST, INC. D/B/A CAT' HILL DIALYSIS"), TOPLAINTIFF'S COMPLAINT, WI'T`H NEW MATTER AND NOW COMES Defendant, DaVITA RX, LLC a/k/a DaVITA Camp Hill Dialysis Center (correctly identified as "Renal Treatment Center-Northeast, Inc. d/b/a Camp Hill Dialysis"), by and through its attorneys, Thomas, Thomas & Hafer, LLP, and responds to Plaintiff's Complaint as follows: PARTIES 1. Denied. After reasonable investigation, Answering Defendant is without knowledge or information sufficient to form a belief as to the truth of the allegations contained in this paragraph of Plaintiff's Complaint, and thus, the same are deemed denied and strict proof I demanded at the time of trial. All allegations contained in this paragraph also are generally denied pursuant to Pa.R.C.P. No. 1029(e). 2. Denied as stated. The correct defendant is not DaVITA RX, LLC a/k/a DaVITA Camp Hill Dialysis Center. To the contrary, the correct defendant is Renal Treatment Center- Northeast, Inc. d/b/a Camp Hill Dialysis, which is a corporation with a principal place of business at 425 North 21St Street, Camp Hill, Cumberland County, Pennsylvania 17011. The remaining allegations contained in this paragraph of Plaintiff' s complaint are conclusions of law as opposed to statements of fact, and therefore, no response is required. Strict proof of same is demanded at the time of trial. 3. The allegations contained in this paragraph of Plaintiff's Complaint are conclusions of law as opposed to statements of fact, and therefore, no response is required. To the extent an answer is deemed required, it is admitted at the time of Plaintiff's decedent's care and treatment, Answering Defendant was licensed to provide health care in the State of Pennsylvania and did so through its agents, servants and employees. Any remaining allegations are denied pursuant to Pa.R.C.P. No. 1029(e) and strict proof thereof is demanded at the time of trial. 4. The allegations contained in this paragraph of Plaintiff's Complaint are conclusions of law as opposed to statements of fact, and therefore, no response is required. To the extent an answer is deemed required, it is admitted at the time of Plaintiff's decedent's care and treatment, Answering Defendant was located in Cumberland County and that the care and treatment of Plaintiff's decedent also occurred in Cumberland County. Any remaining allegations are denied pursuant to Pa.R.C.P. No. 1029(e) and strict proof thereof is demanded at the time of trial. 2 FACTUAL BACKGROUND 5.-6. Denied. The allegations contained in these paragraphs of Plaintiff's Complaint are generally denied pursuant to Pa.R.C.P. No. 1029(e) and strict proof of same is demanded at the time of trial. 7. To the extent that the allegations contained in this paragraph of Plaintiff's Complaint are conclusion of law as opposed to statements of fact, no response is required. To the extent a response is required, it is admitted only that Carmen Villegas was a patient care tech at Answering Defendant on October 7, 2009, and treated and/or cared for Plaintiffs decedent on that date. The remaining allegations contained in this paragraph of Plaintiffs Complaint are generally denied pursuant to Pa.R.C.P. No. 1029(e) and strict proof of same is demanded at the time of trial. 8.-9. Denied. The allegations contained in these paragraphs of Plaintiff s Complaint are generally denied pursuant to Pa.R.C.P. No. 1029(e) and strict proof of same is demanded at the time of trial. 10.42. Denied as stated. The allegations contained in these paragraphs of Plaintiffs Complaint are denied as legal conclusions or generally denied pursuant to Pa.R.C.P. No. 1029(e), and therefore, strict proof of same is demanded at the time of trial. Moreover, it is averred that at all times relevant hereto, Answering Defendant, through its alleged agents, servants and/or employees, acted with the appropriate standard of care and did not cause or increase the risk of any harm to Plaintiffs decedent, and as such, strict proof of same is demanded at the time of trial. 3 COUNT I EMMA F. DEBOARD. Executrix of the Estate of STUART C. DEBOARD v. DAVITA RX. LLC a/k/a DAVITA CAMP HILL DIALYSIS CENTER (Negligence) 13. Answering Defendant incorporates its responses to paragraphs 1-12 as if set forth herein and at length. 14.(a)-(g). Denied as stated. The allegations contained in this paragraph and subparagraphs (a) through (g) of Plaintiff's Complaint are denied as legal conclusions or generally denied pursuant to Pa.R.C.P. No. 1029(e), and therefore, strict proof of same is demanded at the time of trial. Moreover, Answering Defendant is without sufficient information to either admit or deny whether the "agents, ostensible agents, employees and servants," referenced and averred in this paragraph and subparagraphs (a) through (g), were the agents, servants or employees of Answering Defendant since said persons are not identified with specificity herein so that Answering Defendant can respond to same. Therefore, all allegations of agency are denied and strict proof of same is demanded at the time of trial. Regardless, it is averred that at all times relevant hereto, Answering Defendant, through its alleged agents, servants or employees acted with the appropriate standard of care and did not cause or increase the risk of any harm to Plaintiff's decedent, and as such, strict proof of same is demanded at the time of trial. 15.-16. Denied as stated. The allegations contained in these paragraphs of Plaintiff's Complaint are denied as legal conclusions or generally denied pursuant to Pa.R.C.P. No. 1029(e), and therefore, strict proof of same is demanded at the time of trial. Moreover, it is averred that at all times relevant hereto, Answering Defendant, through its alleged agents, 4 servants and/or employees, acted with the appropriate standard of care and did not cause or increase the risk of any harm to Plaintiffs decedent, and as such, strict proof of same is demanded at the time of trial. 17. Denied as stated. The allegations contained in this paragraph of Plaintiffs Complaint are denied as legal conclusions or generally denied pursuant to Pa.R.C.P. No. 1029(e), and therefore, strict proof of same is demanded at the time of trial. Moreover, Answering Defendant is without sufficient information to either admit or deny whether it employed, directed or controlled the "nurses, staff and other individuals" referenced in this paragraph of Plaintiffs Complaint since said "nurses, staff and other individuals" are unidentified, and therefore, said allegations are denied and strict proof of same is demanded at the time of trial. Regardless, it is averred that at all times relevant hereto, Answering Defendant, through its alleged agents, servants or employees acted with the appropriate standard of care and did not cause or increase the risk of any harm to Plaintiff's decedent, and as such, strict proof of same is demanded at the time of trial. 18. Denied as stated. The allegations contained in this paragraph of Plaintiffs Complaint are denied as legal conclusions or generally denied pursuant to Pa.R.C.P. No. 1029(e), and therefore, strict proof of same is demanded at the time of trial. Moreover, Answering Defendant is without sufficient information to either admit or deny whether it employed, directed or controlled the "assistants, nurses and personnel" referenced in this paragraph of Plaintiff's Complaint since said "assistants, nurses and personnel" are unidentified, and therefore, said allegations are denied and strict proof of same is demanded at the time of trial. Regardless, it is averred that at all times relevant hereto, Answering Defendant, through its alleged agents, servants or employees acted with the appropriate standard of care and did not 5 cause or increase the risk of any harm to Plaintiff's decedent, and as such, strict proof of same is demanded at the time of trial. 19.-21. Denied as stated. The allegations contained in these paragraphs of Plaintiff's Complaint are denied as legal conclusions and to which no response is deemed necessary. Regardless, it is averred that at all times relevant hereto, Answering Defendant, through its alleged agents, servants or employees acted with the appropriate standard of care and did not cause or increase the risk of any harm to Plaintiff s decedent, and as such, strict proof of same is demanded at the time of trial. WHEREFORE, Defendant, DaVITA RX, LLC a/k/a DaVITA Camp Hill Dialysis Center (correctly identified as "Renal Treatment Center-Northeast, Inc. d/b/a Camp Hill Dialysis"), demands judgment in its favor against all other parties, together with costs. COUNT II EMMA F. DEBOARD, Executrix of the Estate of STUART C. DEBOARD v. DAVITA RX, LLC a/k/a DAVITA CAMP HILL DIALYSIS CENTER (Corporate Negligence) 22. Answering Defendant incorporates its responses to paragraphs 1-21 as if set forth herein and at length. 23.(a)-(c). Denied as stated. The allegations contained in this paragraph and subparagraphs (a) through (c) of Plaintiffs Complaint are denied as legal conclusions or generally denied pursuant to Pa.R.C.P. No. 1029(e), and therefore, strict proof of same is demanded at the time of trial. Moreover, it is averred that at all times relevant hereto, Answering Defendant, and its alleged agents, servants or employees, acted with the appropriate standard of care and did not cause or increase the risk of any harm to Plaintiffs decedent, and as such, strict proof of same is demanded at the time of trial. 6 24.-25. Denied as stated. The allegations contained in these paragraphs of Plaintiff's Complaint are denied as legal conclusions and to which no response is deemed necessary. Regardless, it is averred that at all times relevant hereto, Answering Defendant, through its alleged agents, servants or employees acted with the appropriate standard of care and did not cause or increase the risk of any harm to Plaintiff's decedent, and as such, strict proof of same is demanded at the time of trial. WHEREFORE, Defendant, DaVITA RX, LLC a/k/a DaVITA Camp Hill Dialysis Center (correctly identified as "Renal Treatment Center-Northeast, Inc. d/b/a Camp Hill Dialysis"), demands judgment in its favor against all other parties, together with costs. COUNT III EMMA F. DEBOARD, Executrix of the Estate of STUART C. DEBOARD v. DAVITA RX, LLC a/k/a DAVITA CAMP HILL DIALYSIS CENTER (Premises Liability) 26. Answering Defendant incorporates its responses to paragraphs 1-25 as if set forth herein and at length. 27.-33. Count III of Plaintiff's Complaint, "Premises Liability," has been stricken and/or dismissed by the Court's Order dated September 9, 2011, and therefore, no response is necessary. WHEREFORE, Defendant, DaVITA RX, LLC a/k/a DaVITA Camp Hill Dialysis Center (correctly identified as "Renal Treatment Center-Northeast, Inc. d/b/a Camp Hill Dialysis"), demands judgment in its favor against all other parties, together with costs. 7 COUNT IV EMMA F. DEBOARD. Executrix of the Estate of STUART C. DEBOARD v. DAVITA RX. LLC a/k/a DAVITA CAMP HILL DIALYSIS CENTER (Wrongful Death) 34. Answering Defendant incorporates its responses to paragraphs 1-33 as if set forth herein and at length. 35.-37. Denied as stated. The allegations contained in this paragraph of Plaintiff's Complaint are denied as legal conclusions or generally denied pursuant to Pa.R.C.P. No. 1029(e), and therefore, strict proof of same is demanded at the time of trial. Moreover, it is averred that at all times relevant hereto, Answering Defendant, through its alleged agents, servants or employees acted with the appropriate standard of care and did not cause or increase the risk of any harm to Plaintiff's decedent, and as such, strict proof of same is demanded at the time of trial. 38.(a)-(d). Denied as stated. The allegations contained in this paragraph and subparagraphs (a) through (d) of Plaintiff's Complaint are denied as legal conclusions or generally denied pursuant to Pa.R.C.P. No. 1029(e), and therefore, strict proof of same is demanded at the time of trial. Moreover, it is averred that at all times relevant hereto, Answering Defendant, and its alleged agents, servants or employees, acted with the appropriate standard of care and did not cause or increase the risk of any harm to Plaintiff's decedent, and as such, strict proof of same is demanded at the time of trial. WHEREFORE, Defendant, DaVITA RX, LLC a/k/a DaVITA Camp Hill Dialysis Center (correctly identified as "Renal Treatment Center-Northeast, Inc. d/b/a Camp Hill Dialysis"), demands judgment in its favor against all other parties, together with costs. 8 COUNT V EMMA F. DEBOARD. Executrix of the Estate of STUART C. DEBOARD v. DAVITA RX. LLC a/k/a DAVITA CAMP HILL DIALYSIS CENTER (Survival Action) 39. Answering Defendant incorporates its responses to paragraphs 1-38 as if set forth herein and at length. 40.42. Denied as stated. The allegations contained in this paragraph of Plaintiff's Complaint are denied as legal conclusions or generally denied pursuant to Pa.R.C.P. No. 1029(e), and therefore, strict proof of same is demanded at the time of trial. Moreover, it is averred that at all times relevant hereto, Answering Defendant, through its alleged agents, servants or employees acted with the appropriate standard of care and did not cause or increase the risk of any harm to Plaintiff's decedent, and as such, strict proof of same is demanded at the time of trial. WHEREFORE, Defendant, DaVITA RX, LLC a/k/a DAVITA Camp Hill Dialysis Center (correctly identified as "Renal Treatment Center-Northeast, Inc. d/b/a Camp Hill Dialysis"), demands judgment in its favor against all other parties, together with costs. NEW MATTER 43. Answering Defendant incorporates its responses to paragraphs 1-42 as if set forth herein and at length. 44. Plaintiff's Complaint fails to state a claim upon which relief can be granted. 45. Plaintiff's claims are barred and/or limited because of the conduct of the Plaintiff under the doctrines of comparative negligence and/or assumption of the risk. 46. Plaintiff's claims are barred by the statute of limitations to the extent that discovery may support same. 9 47. Plaintiff s claims are potentially barred and/or limited by virtue of the doctrines of release and/or consent. 48. At no time relevant hereto was Answering Defendant or any of its agents, servants, or employees acting on behalf of any other natural person, partnership, corporation, or other legal entity, except as may be specifically set forth in this Answer. 49. At no time relevant hereto was any natural person, partnership, corporation, or other legal entity acting or serving as an agent, servant, employee, or otherwise for or on behalf of Answering Defendant, except as specifically set forth in Answering Defendant's Answer to Plaintiff's Complaint. 50. To the extent Plaintiff has failed to sufficiently identify agents, servants or employees of Answering Defendant in Plaintiff s Complaint prior to the expiration of the statute of limitations, Answering Defendant as a matter of law is not vicariously liable for any alleged negligence on their part. 51. Any additional allegation of negligence other than as specifically set forth in Plaintiffs Complaint based on Plaintiffs allegation of negligence are or will be barred by the statue of limitations. 52. The claims set forth in Plaintiffs Complaint may be barred by the applicable statute of limitations as discovery may reveal. 53. Answering Defendant or its agents, servants and employees were at no time relevant to the within cause of action negligent or careless and at all times material hereto, acted in a careful, reasonable, and prudent manner consistent with the required standard of care. 54. Any acts or omissions of Answering Defendant or its agents, employees or servants alleged to constitute negligence and/or carelessness and/or malpractice were not the 10 substantial causes or factors of the subject incident and/or did not result in any incident or injuries alleged by Plaintiff. 55. Plaintiff shall have no right to recover for any amount which was paid by a public collateral source of compensation or benefits or medical expenses paid by a third party, including an insurance company, under §602 of the Health Care Services Malpractice Act. 56. If Plaintiff suffered injuries as alleged, such allegations being specifically denied, Plaintiff's injuries were caused by persons, entities, occurrences, instrumentalities or events unrelated to and not under the control of Answering Defendant. 57. Answering Defendant is entitled to and incorporates and asserts herein by reference all defenses, including those on limitations and damages, which are available to it under the Health Care Services Malpractice Act, 40 Pa.C.S. § 1301.1.01. et seq. 58. The injuries and/or damages alleged to have been sustained by the Plaintiff were not proximately caused by Answering Defendant or its agents, servants and employees. 59. Plaintiffs claims, the existence of which is specifically denied by Answering Defendant, may be reduced and/or limited by any collateral source of compensation and/or benefit in accordance with the Pennsylvania Supreme Court decision in Moorhead v. Crozer Chester Medical Center. 60. At all times relevant hereto, Answering Defendant or its agents, servants or employees acted within and followed the precepts of a school of thought followed by a considerable number of qualified and well respected specialists in the field and, accordingly, their professional conduct was fully commensurate with the applicable standard of care. Evidence at trial may establish two or more schools of thought applicable to the issues presented in this case. 11 61. In the event that it is determined that Answering Defendant or its agents, servants or employees were negligent with regard to any of the allegations contained in and with respect to the Plaintiff's Complaint, said allegations being specifically denied, discovery may establish that said negligence was superseded by the intervening negligent acts of other persons, parties and/or organizations other than Answering Defendant and over whom said Answering Defendant had no control, right of control, or responsibility and, therefore, Answering Defendant is not liable. 62. To the extent that the evidence may show that other persons, partnerships, corporations, or other legal entities caused or contributed to the injuries or the pre-existing condition of the Plaintiff, then the conduct of Answering Defendant or its agents, servants and employees were not the legal cause of such conditions or injuries. 63. Answering Defendant raised all affirmative defenses of the Medical Care Availability and Reduction of Error (MCare) Act a/k/a Act 13 of 2002 as a limit/bar to Plaintiffs claims. 64. Plaintiffs claims are barred and/or limited by the informed consent given to the Answering Defendant by Plaintiff. 65. Answering Defendant incorporates the Court's Order dated September 9, 2011, as if same were set forth herein at length. 12 WHEREFORE, Defendant, DaVITA RX, LLC a/k/a DaVITA Camp Hill Dialysis Center (correctly identified as "Renal Treatment Center-Northeast, Inc. d/b/a Camp Hill Dialysis"), denies any and all liability to any party whatsoever, demands that the case be dismissed with prejudice, and that judgment be entered in its favor. Respectfully submitted, THOMAS, THOMAS & HAFER, LLP Date: ?Q J Z ! By: 26 ? i ae, -- z /Z-, Evan Black, Esquire Attorney I.D. 17884 Stephanie L. Hersperger, Esquire Attorney I.D. 78735 305 North Front Street P.O. Box 999 Harrisburg, PA 17108 (717) 441-7051 Attorneys for Defendant 13 VERIFICATION I, Stephanie L. Hersperger, Esquire, of the law firm of THOMAS, THOMAS & HAFER, LLP, hereby verify that I am one of the attorneys of record for Defendant, DaVITA RX, LLC a/k/a DaVITA Camp Hill Dialysis Center (correctly identified as "Renal Treatment Center- Northeast, Inc. d/b/a Camp Hill Dialysis"), in this case; that as such I am authorized to make this Verification; and that the information set forth in the foregoing Answer with New Matter to Plaintiff's Complaint, is true and correct to the best of my knowledge, information and belief. I understand that any false statements contained herein are subject to the penalties of 18 Pa.C.S. § 4904 relating to unworn falsification to authorities. Date: /Q fia //Z Stephan L. Hersperger, Esquire CERTIFICATE OF SERVICE I, Gwen Cleck, employee of the law firm of Thomas, Thomas & Hafer, LLP, hereby certify that a true and correct copy of the Answer with New Matter of Defendant to Plaintiff's Complaint was sent to the following counsel of record by placing a copy of same by First Class in the United States mail, postage prepaid, at Harrisburg, Pennsylvania, addressed as follows: David B. Dowling, Esquire Rhoads & Sinon, LLP 1 South Market Square 12a' Floor Harrisburg, PA 17101 Attorney for Plaintiff Date: THOMAS, THOMAS & HAFER, LLP C---.?(? 0 A Gwen C ec 14 U MARTHA ANN DeBOARD, Executrix of the Estate of STUART C. DeBOARD, Plaintiff V. DaVITA RX, LLC, a/k/a DaVITA CAMP HILL DIALYSIS CENTER, Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 10-7213 Civil Term CIVIL ACTION - LAW JURY TRIAL DEMANDED 12 JURORS AND ALTERNATES ORDER AND NOW, this I day of 1.?V 2012, upon consideration of the Stipulation to Amend Caption entered into by the parties, it is hereby ORDERED that the caption in this matter be amended to replace DaVITA RX, LLC a/k/a Da VITA Camp Hill Dialysis Center with Renal Treatment Center-Northeast, Inc. d/b/a Camp Hill Dialysis, as the proper party defendant. By the Court: n ?xb `-c t= cc: ? David B. Dowling, Esquire q Evan Black, Esquire/Stephanie L. Hersperger, Esquire y> i co ca w CD rxtir= 8)° e C" I G Evan Black, Esquire ' Z - Attorney I.D. 17784 717-441-7051 ..??° Stephanie L. Hersperger, Esquire Attorney I.D. 78735 . THOMAS, THOMAS & HAFER LLP G7 305 NORTH FRONT STREET P.O. BOX 999 a. HARRISBURG, PA 17108 Attorney for Defendants r-.) 7;> 1 "O c? --? t:D MARTHA ANN DeBOARD, Executrix of the Estate of STUART C. DeBOARD, Plaintiff V. DaVITA RX, LLC, a/k/a DaVITA CAMP HILL DIALYSIS CENTER, Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 10-7213 Civil Term CIVIL ACTION - LAW JURY TRIAL DEMANDED 12 JURORS AND ALTERNATES STIPULATION TO AMEND PLEADINGS AND CAPTION Plaintiff and Defendant, by and through their respective counsel, hereby stipulate as follows: That the caption be amended so as to remove DaVITA RX, LLC a/k/a DaVITA Camp Hill Dialysis Center as a defendant. 2. That DaVITA RX, LLC a/k/a DaVITA Camp Hill Dialysis Center is dismissed from this case. 3. That the caption and all pleadings shall hereby identify the defendant as Renal Treatment Center-Northeast, Inc. d/b/a Camp Hill Dialysis. 4. That all allegations made against the originally named Defendant, DaVITA RX, LLC a/k/a DaVITA Camp Hill Dialysis Center, are equally applicable to the entity being substituted for that party, Renal Treatment Center-Northeast, Inc. d/b/a Camp Hill Dialysis. 5. That this Stipulation may be executed in one or more counterparts, all of which will be considered one and part of this Stipulation, and a facsimile or photocopy reproduction of signatures shall have the effect of original signatures. Date: 1 tU ? 1Z Date: 3 leg 12, By: Respectfully submitted, Attorney I.D. 25452 Rhoads & Sinon, LLP 1 South Market Square 12th Floor Harrisburg, PA 17101 Attorneys for Plaintiff , A,, ?., , --- 7 - - , 4 2 By: - Evan ack, Esquire Attorney I.D. 17884 Stephanie L. Hersperger, Esquire Attorney I.D. 78735 305 North Front Street P.O. Box 999 Harrisburg, PA 17108 (717) 441-7051 Attorneys for Defendant 2 CERTIFICATE OF SERVICE I, Nora A. Starnes, a legal secretary with the law firm of Thomas, Thomas & Hafer, LLP, do hereby certify that I served the foregoing document upon the following person(s), by depositing the same in the United States First Class Mail, postage prepaid, at Harrisburg, Pennsylvania addressed as follows: David B. Dowling, Esquire Rhoads & Sinon, LLP 1 South Market Square, 12th Floor Harrisburg, PA 17101 Date: March 6, 2012 9 Nora A. Starnes r GD ? ?5