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HomeMy WebLinkAbout10-7411CF TNT pROTHONOTAR~' David B. Dowling, Esquire Attorney I.D. No. 25452 BROADS & SINON LLP 1 South Market Square, 12th Floor P.O. Box 1146 Harrisburg, PA 17108-1146 (717) 233-5731 Attorneys for Plaintiff WALTER H. MICHAEL, Executor of the Estate of ANNA L. MICHAEL, Deceased 307 Pearl Street Millersburg, PA 17061 Plaintiff v. xoiao~c-~ ~~~:a~ ~~ P~~N SYIVANI~~j~ IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION -LAW No. 1b~~1~f11 PAUL A. KUNKEL, M.D. and KUNKEL SURGICAL GROUP 890 Poplar Church Rd # 210 Camp Hill, PA 17011-2250 Defendants JURY TRIAL DEMANDED PRAECIPE FOR WRIT OF SUMMONS TO THE PROTHONOTARY: .spa ~~~~ 0,lV~~ sa~35 Please issue a Writ of Summons against the Defendants in the above-captioned action. The Writ shall be issued and forwarded to the S eriff of Cum land County. David B. Dowling, Esquire BROADS & SINON LLP >gnature of Attorney One South Market Square P. O. Box 1146 Harrisburg, PA 17108-1146 Supreme Court ID No. 25452 (717) 233-5731 Date: November 29, 2010 Attorneys for Plaintiff WRIT OF SUMMONS TO THE ABOVE NAMED DEFENDANT: YOU ARE NOTIFIED THAT THE ABOVE-NAMED PLAINTIFF HAS COMMENCED AN ACTION AGAINST YOU. 1 Pro onotary 776713.1 SHERIFF'S OFFICE OF CUMBERLAND COUNTY Ronny R Anderson FILED-OFFICE Sheriff ' F THE PROTHONOTAI', Jody S Smith 10 Chief Deputy DEC Q P? 1: 33 Richard W Stewart CUMBERLAND COUNT` Solicitor . PENNSYLVA'1411A Walter H. Michael, Executor of the Estate of Anna L. Michael, Deceased Case Number vs. Paul A. Kunkel, M.D. (et al.) 2010-7411 SHERIFF'S RETURN OF SERVICE 12/08/2010 11:54 AM - Ronny R. Anderson, Sheriff, who being duly sworn according to law, states that on December 3, 2010 at 1154 hours this Writ of Summons upon defendant Paul A. Kunkel, M.D. is returned not served per request from Attorney David Dowling. 12/08/2010 11:54 AM - Ronny R. Anderson, Sheriff, who being duly sworn according to law, states that on December 3, 2010 at 1154 hours this Writ of Summons upon defendant Kunkel Surgical Group is returned not served per request from Attorney David Dowling. SHERIFF COST: $44.00 December 08, 2010 SO ANSWERS, RONNY R ANDERSON, SHERIFF WALTER H. MICHAEL, Executer of the Estate : IN THE COURT OF COMMON PLEAS of ANNA L. MICHAEL, Deceased, CUMBERLAND COUNTY Plaintiff V. PAUL A. KUNKEL, MD. and KUNKEL SURGICAL GROUP, Defendants. DOCKET NO. 10-7411 c' ? -OZ rat d ? CIVIL ACTION - LAW i r JURY TRIAL DEMANDED .. : w>c_ '' as = q co ENTRY OF APPEARANCE TO THE PROTHONOTARY: Please enter the appearance of Michael D. Pipa, Esquire, and Shaun J. Mumford, Esquire, of Stevens & Lee, P.C., on behalf of Defendants Paul A. Kunkel, M.D. and Kunkel Surgical Group. Kindly serve all papers at 17 North Second Street, 16th Floor, Harrisburg, Pennsylvania 17110. Notice by copy hereof is given to all counsel of record. Respectfully submitted STEVENS & LEE, P.C. Date: December 14, 2010 By: Michael D. Pipa, Esquire Attorney I.D. No. 53624 Shaun J. Mumford, Esquire Attorney I.D. No. 84176 17 North Second Street, 16th Floor Harrisburg, PA 17101 (717) 255-7376 (610) 371-7743 (facsimile) mdp@stevenslee.com sjm@stevenslee.com Attorneys for Defendant Keith R. Haidet, M.D. S L 11041125v I /041199.00465 CERTIFICATE OF SERVICE I, Michael D. Pipa, Esquire, certify that on this date, I served a certified true and correct copy of the foregoing Entry of Appearance upon the following counsel of record, by depositing the same in the United States mail, postage prepaid, addressed as follows: David B. Dowling, Esquire Rhoads & Sinon, LLP South Market Square, 12th Floor P.O. Box 1146 Harrisburg, PA 17108-1146 Date: December 14, 2010 2 SLl 1041125v 1 /041199.00465 WALTER H. MICHAEL, Executor of the Estate of ANNA L. MICHAEL, Deceased Plaintiff V. PAUL A. KUNKEL, M.D. and KUNKEL SURGICAL GROUP Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 10-7411 JURY TRIAL DEMANDED ACCEPTANCE OF SERVICE I hereby accept service of the Complaint in the above matter on behalf of Defendants, Paul A. Kunkel, M.D. and Kunkel Surgical Group and certify that I am authorized to do so. Dated: 13/10 14-? Michael D. Pipa, Es ire Attorney I.D. No. ;3(c, a q Stevens & Lee 17 North Second Street, 16`h Floor Harrisburg, PA 17101 Counsel to Defendants -3 rv C? xrn rn €~n ?Z: cs 800883.1 David B. Dowling, Esquire Attorney I.D. No. 25452 RHOADS & SINON UP 1 South Market Square, 12th Floor P.O. Box 1146 Harrisburg, PA 17108-1146 (717) 233-5731 Attorneys for Plaintiff t i I v o j ; Lt- ; p'k 1 UU, A ? WALTER H. MICHAEL, Executor IN THE COURT OF COMMON PLEAS OF Of the Estate of ANNA L. MICHAEL, CUMBERLAND COUNTY, PENNSYLVANIA Deceased, : Plaintiff CIVIL ACTION -LAW NO. 10-7411 V. PAUL A. KUNKEL, M.D. and KUNKEL SURGICAL GROUP Defendants : JURY TRIAL DEMANDED PRAECIPE TO SUBSTITUTE ACCEPTANCE OF SERVICE TO: THE PROTHONOTARY: Kindly substitute the attached Acceptance of Service for the Acceptance of Service filed on December 16, 2010 on behalf of the Defendants. RHOADS & SINON LLP I}l?id B. Dowt " Attorney I.D. No. 25452 One South Market Square Twelfth Floor P.O. Box 1146 Harrisburg, PA 17108-1 146 (717) 233-5731 WALTER 11. MICHAEL, Executor of the Estate of ANNA L. MICHAEL, Deceased Plaintiff V. PAUL A. KUNKEL, M.D. and KUNKEL SURGICAL GROUP Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 10-7411 JURY TRIAL DEMANDED ACCEPTANCE OF SERVICE I hereby accept service of the Writ of Summons in the above matter on behalf of Defendants, Paul A. Kunkel, M.D. and Kunkel Surgical Group and certify that I am authorized to do so. Dated: Michael D. Pipa, Esqui Attorney I.D. No. 536 Stevens & Lee 17 North Second Street, 1bt" Floor Harrisburg, PA 17101 Counsel to.Defendants '800883.1 CERTIFICATE OF SERVICE I hereby certify that on this ?day of January, 2011, a true and correct copy of the foregoing Praecipe to Substitute Acceptance of Service was served by means of United States mail, first class, postage prepaid, upon the following: Michael D. Pipa, Esquire Stevens & Lee 17 North Second Street, 16`h Floor Harrisburg, PA 17101 V David B. Dowling, Esquire Attorney I.D. No. 25452 RHOADS & SINON LIT One South Market Square, 12th Floor P.O. Box 1146 Harrisburg, PA 17108-1146 Phone: (717) 233-5731 Fax: (717) 238-8622 Email: ddowling(a)rhoads-sinon. com Attorneys for Plaintiff WALTER H. MICHAEL, Executor of the Estate of ANNA L. MICHAEL, Deceased, Plaintiff V. PAUL A. KUNKEL, M.D. and KUNKEL SURGICAL GROUP, Defendants T%-7 PROTH"ROTARY - i r-,-, t ty Ut1RERLAND COUNTY PENNSYLVANIA THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION LAW No. 10-7411 MOTION FOR A STATUS CONFERENCE NOW COMES Plaintiff Walter H. Michael, Executor of the Estate of Anna L. Michael, Deceased, by his attorneys, David B. Dowling and Rhoads & Sinon LLP, and files the following Motion seeking a Status Conference and in support thereof alleging the following: 1. This lawsuit was commenced by a Writ of Summons filed on December 1, 2010. 2. Plaintiff's claim that Defendants were negligent with regard to the gallbladder surgery performed by Defendants on or about December 4, 2009, which ultimately caused Mrs. Michael's death. 3. During Plaintiff's course of dealings with Defendants' counsel, Plaintiff requested documents and served interrogatories designed to assist Plaintiff in filing a Complaint. 4. Without such documents and other information, Plaintiff cannot meet the fact- pleading requirements of the Pennsylvania Rules of Civil Procedure. """I i i 6219iT) i L ? 5. In Pennsylvania, "[alppellate decisions have approved the use of precomplaint discovery in order to aid in the drafting of a complaint." McNeil v. Jordan, 2002 PA Super 400, 814 A.2d 234, 243 (Pa. Super. Ct. 2002) (citing cases). 6. On December 3, 2010, Plaintiff served precomplaint discovery on Defendants in the form of written Interrogatories and requests for production of documents. (See attached hereto and marked as Exhibit "A".) Plaintiff subsequently limited the precomplaint discovery to Interrogatories (Interrogatory Nos. 12, 14, 15, 17, 27, 29, 30, 31, 32.) 7. To date, Defendants have not answered/responded to Plaintiff's precomplaint discovery. 8. Therefore, the purpose of the conference is to compel the Defendants to answer pre-Complaint discovery, particularly Interrogatory Nos. 12, 14, 15, 17, 27, 29, 30, 31, 32. 9. No Judge has been assigned this case. 10. Defendant's counsel does not concur in this motion. WHEREFORE Plaintiff respectfully requests a Status Conference with the Court to obtain Court intervention in obtaining a resolution to the above mentioned issues. Respectfully Submitted, RHOADS & SINON, LLP r By: r-( 4 - ?? avid B. Dowling One South Market Square P.O. Box 1146 Harrisburg, PA 17108-1146 (717) 233-5731 Attorneys for Plaintiff ????? ?X ?- David B. Dowling, Esquire Attorney I.D. No. 25452 RHOADS & SINON LLP 1 South Market Square, 12th Floor P.O. Box 1146 Harrisburg, PA 17108-1146 (717) 233-5731 Attorneys for Plaintiff WALTER H. MICHAEL, Executor of the Estate of ANNA L. MICHAEL, Deceased Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW V. PAUL A. KUNKEL, M.D. and. KUNKEL SURGICAL GROUP Defendants : NO. 10-7411 JURY TRIAL DEMANDED [Rule 4003.8 Pre-Complaint Discovery] PLAINTIFF'S FIRST SET OF INTERROGATORIES TO DEFENDANTS TO: Paul A. Kunkel, M.D. and Kunkel Surgical Group -and- Michael D. Pipa, Esquire Stevens & Lee Harrisburg Market Square 17 North Second Street, 16th Floor Harrisburg, PA 17101 PLEASE TAKE NOTICE that you are hereby notified and required to answer separately, fully, in writing, and under oath, within thirty (30) days of receipt of this Notice and to serve your answers thereto on the undersigned in accordance with Pennsylvania Rule of Civil Procedure No. 4001, et seq. These Interrogatories shall be deemed to be continuing Interrogatories. If you or anyone acting on your behalf learns of further information responsive to these Interrogatories not contained in your Answers between the time of your Answers to these Interrogatories and the time set for hearings in this matter, you are under a duty to promptly notify the undersigned of such further information by way of a supplemental Answer. The Plaintiffs reserve the right to conduct additional discovery. DEFINITIONS TO INTERROGATORIES The following definitions are applicable to each Interrogatory and are incorporated by reference in each Interrogatory. The Interrogatories must be read in the light of these definitions and your Answers must be responsive to the Interrogatories as so defined: 1. "Document": The term "document" is used in the broadest possible sense, and means, without limitation, any written, printed, typed, photostatic, photographed, recorded, electronically stored, computerized and/or otherwise reproduced communication or representation, whether comprised of letters, words, numbers, pictures, sounds or symbols, electronic and/or computerized data or any combination thereof. This definition includes all drafts of every document and/or computer file, and copies or duplicates of documents and/or computer files contemporaneously or subsequently created, and computer back-up files, which have any non-conforming notes or other markings. Without limiting the generality of the foregoing, "document" includes, but is not limited to, correspondence, memoranda, notes, records, letters, envelopes, telegrams, messages, studies, analyses, contracts, agreements, working papers, accounts, analytical records, reports and/or summaries of investigations, trade letters, press releases, comparisons, books, calendars, diaries, articles, magazines, newspapers, booklets, brochures, pamphlets, circulars, bulletins, notices, drawings, diagrams, instructions, notes or minutes of meetings or of other communications of any type, including inter- and intra-office communications, questionnaires, surveys, charts, graphs, photographs, phonograph recordings, films, tapes, disks, data cells, e-mail, printouts or hard copies of information stored or maintained by electronic data processing or word processing equipment, all other data compilations from which information can be obtained (by translation, if necessary, by you through detection devices into usable form) including, without limitation, electromagnetically or optically sensitive storage media such as tapes, floppy disks, hard disks, optical disks and/or CD-ROM, and any preliminary versions, drafts or revisions of any of the foregoing. The term "document" also includes all meta data produced in connection with all computer-generated data that are otherwise documents. 2. "Identify," "Identity" or "Identification": (A) When used in reference to a natural person, the terms "identify," "identity" or "identification" mean to provide the following information: (1) his/her full name; (ii) his/her present or last known business address; (iii) his/her present or last known business affiliation; and, (iv) his/her present or last known business position (including job title and a description of job functions, duties and responsibilities). (B) When used with reference to any entity other than a natural person, state: (i) its full name; (ii) the address of its principal place of business; (iii) the jurisdiction under the laws of which it has been organized or incorporated and the date of such organization or incorporation, if known; (iv) in the case of a corporation, the names of its directors and principal officers; and, (v) in the case of an entity other than a corporation, the identities of its partners or principals or all individuals who acted or who authorized another to act on its behalf in connection with the matters referred to. (C) When used in reference to a document, the terms "identify," "identity" or "identification" mean to provide the following information: (i) the nature of the document (e.g., letter, contract, memorandum) and any other information (i.e., its title, index or file number) which would facilitate in the identification thereof, (ii) its date of preparation; (iii) its present location and the identity (as defined in paragraph 2(A) hereof) of its present custodian or, if its present location and custodian are not known, a description of its last known disposition; (iv) its subject matter and substance or, in lieu thereof, annex a legible copy of the document to the answers to those interrogatories; (v) the identity (as defined in paragraph 2(A) hereof) of each person who performed any significant function or had any role in connection therewith (i.e., author, contributor of information, recipient, etc.) or who has any knowledge; and, (vi) if the document has been destroyed or is otherwise no longer in existence or cannot be found, the reason, if known, why such document no longer exists, the identity (as defined in paragraph 2(A) hereof) of the people responsible for the document no longer being in existence and of its last known custodian. (D) When used in connection with an oral communication, the terms "identify," "identity" and "identification" mean to provide the following information: (i) its general nature (i.e., conference, telephonic communication, etc.); (ii) the time and place of its occurrence; (iii) its subject matter and substance; (iv) the identity (as defined in paragraph 2(A) hereof) of each person who performed any function or had any role in connection therewith or who has any knowledge thereof; and, (v) the identity (as defined in paragraph 2(C) hereof) of each document which refers thereto or which was used, referred to or prepared in the course or as a result thereof. 3. "Relates to": The terms "relates to" or "relating to" when used in connection with any act, action, activity, accounting, practice, process, occurrence, occasion, course of conduct, contractual provision or document, happening, relationship, scheme, conference, discussion, development, service, instance., incident, event, etc., means used or occurring or referred to in the preparation therefore, or in the course thereof, or as a consequence thereof, or referring thereto. 4. "Person": The term "person" means all natural persons, corporations, partnerships or other business associations, public authorities, municipal corporations, state governments, local governments, all governmental bodies, and any other legal entities. 5. Answer by Reference to Documents: If any Interrogatory is answered by reference to a document or group of documents, with respect to each such Interrogatory Answer, identify (as defined in paragraph 2(C) hereof) the specific document or documents containing the requested information. If you refer to, identify, or otherwise rely upon a document when you answer these Interrogatories, please attach a copy of that document. If you refuse to do so and assert the privilege set forth the grounds for that privilege or the grounds for the objection. 6. Claim of Privilege: If you claim that the subject matter of a document or oral communication is privileged, you need not set forth the brief statement of the subject matter of the document, or the substance of the oral communication called for above. You shall, however, otherwise "identify" such document or oral communication and shall state such ground on which you claim that such document or oral communication is privileged. 7. Incident in Question: The term "incident in question" means the surgery performed by Dr. Kunkel on December 4, 2009 and the subsequent care and treatment of Anna H. Michael up to her date of death on December 22, 2009. 8. 'Defendant(s)": The term "Defendant(s)" shall mean Paul A. Kunkel, M.D. and/or Kunkel Surgical Group. INTERROGATORIES 1. Please state whether or not any liability insurance policies were carried by the Defendant(s) at the time of the incident described in the complaint which would cover damages incurred as a result of the incident in question. ANSWER: 2. If your answer to the preceding Interrogatory is in the affirmative, please state the following: (a) name and address of the company issuing each policy; (b) policy number of each such policy; (c) names and addresses of the persons' named insured under each such policy; (d) limits of liability; (e) whether the insurance company issuing each policy has denied coverage with respect to the incident for any reason; if so, the nature and reason given for such denial; (f) whether the insurance company issuing each policy has required the execution of any agreement by you or on your behalf before undertaking to investigate and/or defend this action; and if so, the nature of such agreement, the reason the agreement was required and whether or not you or any other person acting on behalf of Defendant has executed agreement; and, (g) whether or not each of said policies provide coverage for damages and was in full force and effect on the date of the incident; and if not, state in full detail why said policies were not in effect, specifically listing each such policy or policies on each and every person. ANSWER: 3. Set forth the following details regarding your medical education and preparation for practice (you may attach a current copy of your C. V.): (a) medical school(s) attended, dates of attendance and year of graduation; (b) place and period of internship; (c) nature of subjects covered during internship; (d) names and specialties of physicians who trained you during internship; (e) place and period of residency; (f) subject of residency; (g) names and specialties of physicians who trained you during residency; (h) nature and period of any graduate studies and where they were pursued; (i) inclusive dates of any armed forces service; and, (j) nature of armed forces service, including nature of any medical experience. ANSWER: 4. Set forth the name of each medical organization with which you are affiliated or of which you are a member. ANSWER: 5. If you have ever been certified by any specialty board, or if you are now or have ever been a member of any specialty board, set forth the following: (a) the name and address of each specialty board; (b) the date you were certified or became a member; and, (c) if you are no longer certified or a member, give the date your certification or membership was terminated and the reason for same. ANSWER: 6. Please identify each jurisdiction in which you are licensed to practice medicine. As to each jurisdiction, please set forth: (a) the date you were admitted; (b) whether you were admitted upon examination, reciprocity or otherwise; (c) whether there existed or exists any restriction, suspension or termination upon your right to practice medicine within such jurisdiction; (d) if you ever had a medical license suspended, revoked, terminated or otherwise restricted in any jurisdiction, please indicate: (i) the state or authority which granted it; (ii) whether it was suspended, revoked, terminated or otherwise restricted indicating which; (iii) the date it was suspended, revoked, terminated or otherwise restricted; (iv) the reasons it was suspended, revoked, terminated or otherwise restricted; (v) whether it was ever reinstated, renewed and, if so, on what date. ANSWER: 7. Identify all publications, including but not limited to, papers, journal articles, letters to the editor, textbooks, symposiums, etc., which you authored or contributed to, including the title of the work, the name of the periodical or book in which it was printed, the pages you wrote and the date of its printing. ANSWER: 8. Set forth the name of each medical journal you subscribed to from 2005 through the present. ANSWER: 9. Set forth the name of each medical journal you read regularly in 2005 through the present. ANSWER: 10. Identify each office, clinic, or other location relating to the practice of medicine maintained by you, or in which you otherwise worked, subsequent to your internship or residency and set forth the inclusive dates you maintained each such location. ANSWER: 11. Set forth the names of all hospitals where you had privileges from 2005 through the present. (a) Set forth the nature of each such privileges. ANSWER: 12. Were you associated or in partnership with any other medical practitioner at the time of the incident which is the subject of this action? If so, state: (a) the name, address, specialty and qualifications of each person with whom you were associated or in partnership; (b) the nature of your business relationship to such person; (c) the terms and conditions of the relationship; (d) the date you formed the relationship; (e) whether the relationship still exists, and if not, the reason and date it was terminated; and, (f) whether any written agreement existed between you and your associates or partners, and if so, the name and address of the person who has custody of the agreement. ANSWER: 13. Identify each and every contract or other document establishing or otherwise referring to your privileges at Holy Spirit Hospital and attach a copy hereto. ANSWER: 14. Set forth the dates and time of day you had professional contact with Anna Michael while she was a patient at Holy Spirit Hospital. ANSWER: 15. Set forth the date and identity of any person, including fellows, residents or interns who had contact with Anna Michael, and/or who were in any way associated with Holy Spirit Hospital. ANSWER: 16. Identify the dates and identity of any persons who interpreted any test results obtained or performed at Holy Spirit Hospital. ANSWER: 17. Did you ever consult with any other health care provider in connection with the care and treatment of Anna Michael? If so, set forth: (a) the date(s) of the consultation; (b) the identity of the physician; (c) the subject matter of the consultation; (d) action taken as a result of the consultation; and, (e) the identity of documents relating to the consultation. (f) Please consider this a request to produce the documents referred to in 19 (e). ANSWER: 18. State the name and last known address of each person who: (a) was a witness to your treatment, consultation or examination of Anna Michael through sight or hearing; (b) has knowledge of the facts concerning the happening of the treatment, surgery or examination or conditions or circumstances at the time of the treatment:, surgery, or examination prior to, after, or at the time of the occurrence which is the subject of this suit, excepting those persons who acquired such knowledge during the course of this litigation. (If your answer refers to medical records, specify the type and date of the record, its custodian, and the names of the individuals to whom you are referring.) ANSWER: 19. With respect to each person identified in the answer to Interrogatory 18 (a), state that person's exact location and activity at the time of the treatment, consultation or examination. ANSWER: 20. Have you given, any statement, recorded or otherwise, concerning the care and treatment of Anna Michael? If so, state: (a) the name and address of each person to whom a statement was given; (b) when and where each statement was given; and (c) Please consider this a request to produce the statements referred to in the above answer. ANSWER: 21. Do you know of the existence of any photographs, video recordings, diagrams, or models of the treatment, surgery or examination or any other matters or things involved in this treatment, surgery or examination? If so, identify: (a) the date(s) when such photographs, video recordings, diagrams or models were made; (b) the name and address of the party making them; (c) where they were made; and, (d) the object(s) or subject(s) each photograph, video recordings, diagram or model represents. (e) Please consider this a request to produce the photographs, video recordings, diagrams and/or models referred to in the above. ANSWER: 22. State whether you or anyone else known to you or acting on your behalf has any knowledge as to the existence of any electronically recorded communication between any party to this action or his/her agent and any other person or witness to any of the conversations or events relating in any way to the plaintiff's claims against the defendant. For the purpose of this Interrogatory, an electronic recording includes motion pictures, tape recordings, videotapes or telephone recordings, email or notes taken for the purpose of preserving an electronically transmitted communication. If the answer to the instant Interrogatory is in the affirmative, state: (a) the name and address of the party or person who participated in the taking or making of each such still photograph or motion picture, tape recording, videotape, or other electronic recording; (b) the date that each such electronic recording was taken or made; (c) the identity of the person who is currently in possession of such electronic recording; (d) the name and address of all persons or parties who participated in any way in the taking or making of the electronic recording; (e) whether such electronic recording has been transcribed and if so, please attach a copy to your Answers hereto; (f) the present whereabouts of each such electronic recording, including the name, address, and employer of the person who has possession or custody of each and all copies or prints thereof, (g) the name, address, and employer of the person at whose request the electronic recording was made; (h) attach hereto a copy of the written consent of all parties who participated in the conversation that was electronically recorded; (1) state the facts upon which you rely in support of your statement that the parties to the electronically recorded conversation consented to the recording; and (j) if the parties to the electronically recorded conversation were not informed of the taking or making of the electronic recording, please state any and all facts in support of your belief that such recording was lawfully made. ANSWER: 23. Have you sent, received, drafted, edited, prepared, formulated and/or read any electronic data, metadata (data about data) or emails concerning any of the matters or allegations described in the Complaint? If so, identify all such electronic data, metadata or emails by stating: (a) When it was prepared, sent, received, drafted, edited, formulated or read; (b) By whom it was prepared, sent, received, drafted, edited, formulated or read; (c) When it was prepared, sent, received, drafted, edited, formulated or read; (d) How and it what :manner the information has been stored; and (e) Identify the custodian of the data, metadata or email. ANSWER: 24. Have your or anyone acting on your behalf, excluding your attorney, obtained from any person any statement concerning this action or its subject matter? If so, state: (a) the name and last known address of each such person; (b) when, where, and by whom and to whom each statement was made, and whether it was reduced to writing or otherwise recorded; and, (c) the name and address of any person who has custody of any such statement that were reduced to writing or otherwise recorded. (d) Please consider this a request to produce those statements referred to in the above matter. ANSWER: 25. Have you, or anyone on your behalf, excluding your attorney, conducted any investigations of the treatment, surgery or examination which is the subject matter of this lawsuit? If so, please state: (a) the name, address and employer of all persons who conducted any investigations; (b) the dates of the investigation; (c) the dates of any reports of any investigations and the identity of the persons who have possession thereof, and (d) Please consider this a request to produce your investigation reports, except those portions which are protected from discovery by Pa. R.Civ.P. 4003.3. ANSWER: 26. State whether following Anna Michael's discharge from Holy Spirit Hospital, any additions, corrections, alterations or changes were made to her chart. If so, indicate: (a) when such changes were made; (b) the exact nature thereof; (c) the circumstances therefor; (d) the name, address and position of the party making each such change. ANSWER: 27. Do you contend that any other person, employee or agent caused or contributed to the Plaintiffs injuries, in any manner? If so, describe with particularity and in detail the name, address and job or professional classification of the individual to whom you refer and the manner in which it is alleged that each contributed. ANSWER: 28. Are you aware of any information that any of the injuries alleged to have been suffered by Plaintiff were due in whole or in part to any defect or mechanical failure or unusual or improper operation of any equipment or medical supplies used during the course of Plaintiffs treatment? If so, describe with particularity and in detail the name, address and job or professional classification of the party or individual to whom you refer and the manner in which it is alleged that each contributed. ANSWER: 29. Do you contend that anyone, including any employee or agent of Holy Spirit Hospital failed or neglected to: (a) provide you with relevant information concerning Anna Michael from the date of her surgery, December 4, 2009 until the date of her death, December 22, 2009; and (b) provide you with timely information concerning Anna Michael from the date of her surgery, December 4, 2009 until the date of her death, December 22, 2009 ANSWER: 30. Do you contend that anyone, including any employee or agent of Holy Spirit Hospital provided you with incorrect or erroneous, information concerning Anna Michael from the date of her surgery, December 4, 2009 until the date of her death, December 22, 2009. ANSWER: 31. If you answered "yes" to Interrogatories 29 and/or 30, please explain in detail and identify the employee by name, title or physical description. ANSWER: 32. Did you authorize the discharge of Anna Michael on December 6, 2009? If so, please state at what time you last saw her and at what time you signed for her discharge. If not, please identify who authorized her discharge and who last saw her. ANSWER: 33. Are you aware of any incident or occurrence report being prepared by anyone concerning Anna Michael's care and treatment. ANSWER: 34. Have you prepared or authored any document, including e-mail, concerning Anna Michael, which is not part of her hospital chart. ANSWER: RHOADS & SINON LLP q lr P.O. Box 1146 Harrisburg, PA 17108-1146 (717) 233-5731 By: \b' - J David B. Dowling One South Market S r. 12th In Date: December 3, 2010 Attorneys for Plaintiff CERTIFICATE OF SERVICE I hereby certify that on thi5X_ day of December, 2010, a true and correct copy of the foregoing "[Rule 4003.8 Pre-Complaint Discovery] Plaintiff, s First Set of Interrogatories Directed to Defendants" was served by means of United States mail, first class, postage prepaid, upon the following: Michael D. Pipa, Esquire Stevens & Lee Harrisburg Market Square 17 North Second Street, 16th Floor Harrisburg, PA 17101 Ryan Betz, Sr. Claims Specialist Murray Risk Management and Insurance 30 North Duke Street P.O. Box 1728 Lancaster, PA 17608 -0 P O?-rx?, - vav?.? Cynthia L. Santone WALTER H. MICHAEL, IN THE COURT OF COMMON PLEAS OF Executor of the Estate of CUMBERLAND COUNTY, PENNSYLVANIA ANNA L. MICHAEL, Deceased PLAINTIFF V. ? -_D - M.D. AND ' PAUL A. KUNKEL rrn ?? -- , KUNKEL SURGICAL GROUP, ? ? ? DEFENDANTS NO. 10-7411 CIVIL ° ' `-c -c' *= C" ORDER OF COURT - rn th AND NOW, this 11 day of February, 2011, upon consideration of Plain s= Q'I T Motion for a Status Conference; IT IS HEREBY ORDERED AND DIRECTED that unless the Defendants provides Answers to Plaintiff's Interrogatory Nos. 12, 14, 15, 17, 27, 29, 30, 31, 32 on or before March 1, 2011, a status conference on this matter will be held on Wednesday, April 6, 2011, at 1:30 p.m. in Courtroom No. 2 of the Cumberland County Courthouse. By the Court, David Dowling, Esquire Attorney for Plaintiff •/Michael Pipa, Esquire Attorney for Defendant ?j? ula M. L. Ebert, Jr., J. 00as 41[I 1t Q9A WALTER H. MICHAEL, Executor of the Estate of ANNA L. MICHAEL, Deceased PLAINTIFF V. PAUL A. KUNKEL, M.D. AND KUNKEL SURGICAL GROUP, DEFENDANTS IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 10-7411 CIVIL ORDER OF COURT AND NOW, this 25th day of February, 2011, this Court having received confirmation that the outstanding discovery issue has been answered, IT IS HEREBY ORDERED AND DIRECTED the status conference scheduled Wednesday, April 6, 2011, at 1:30 p.m. is CANCELLED. By the Court, M. L. Ebert, Jr., J. ?David Dowling, Esquire Attorney for Plaintiff ? Michael Pipa, Esquire Attorney for Defendant cop;e"'6 woo"W alasf r ?? W7 -?, ?yj 1 N -max: crk r'_? s 4 David B. Dowling, Esquire Attorney I.D. No. 25452 RHOADS & SINON LLP 1 South Market Square, 12th Floor P.O. Box 1146 Harrisburg, PA 17108-1146 (717) 233-5731 Attorneys for Plaintiff WALTER H. MICHAEL, Executor Of the Estate of ANNA L. MICHAEL, Deceased, Plaintiff V. PAUL A. KUNKEL, M.D. and KUNKEL SURGICAL GROUP Defendants ,.. iiI 1 a ° 1' ?DTH0N0TAR LfIIFAR -3 AV, 10:bI CUMBERLAND COUNT' PENNSYLVANIA IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION -LAW NO. 10-7411 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, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW. THIS OFFICE CAN PROVIDE YOU WITH INFORMATION ABOUT HIRING A LAWYER. IF YOU CANNOT AFFORD TO HIRE A LAWYER, THIS OFFICE MAY BE ABLE TO PROVIDE YOU WITH INFORMATION ABOUT AGENCIES THAT MAY OFFER LEGAL SERVICES TO ELIGIBLE PERSONS AT A REDUCED FEE OR NO FEE. Cumberland County Bar Association 32 South Bedford Street Carlisle, PA 17013 Telephone: (717) 249-3166 David B. Dowling, Esquire Attorney I.D. No. 25452 RHOADS & SINON LLP 1 South Market Square, 12th Floor P.O. Box 1146 Harrisburg, PA 17108-1146 (717) 233-5731 Attorneys for Plaintiff WALTER H. MICHAEL, Executor IN THE COURT OF COMMON PLEAS OF Of the Estate of ANNA L. MICHAEL, CUMBERLAND COUNTY, PENNSYLVANIA Deceased, Plaintiff CIVIL ACTION -LAW NO. 10-7411 V. PAUL A. KUNKEL, M.D. and KUNKEL SURGICAL GROUP Defendants : JURY TRIAL DEMANDED COMPLAINT NOW COMES Plaintiff, Walter H. Michael, Executor of the Estate of Anna L. Michael, Deceased, by and through his attorneys, David B. Dowling, Esquire and Rhoads & Sinon LLP, and files the within Complaint, and in support thereof, avers the following: PARTIES 1. Plaintiff, Walter H. Michael is the Executor of the Estate of Anna L. Michael, Deceased. Mr. Michael resides at 307 Pearl Street, Millersburg, Dauphin County, Pennsylvania 17061. 2. Defendant Paul A. Kunkel, M.D. ("Dr. Kunkel') is a physician and surgeon, licensed to practice in the Commonwealth of Pennsylvania with an office address of 890 Poplar Church Road, Camp Hill, Cumberland County, Pennsylvania 17011. 3. Defendant Kunkel Surgical Group is a corporation organized and existing under the laws of the Commonwealth of Pennsylvania, believed to be the employer of Paul A. Kunkel, M.D. with an address of 890 Poplar Church Road, Camp Hill, Cumberland County, Pennsylvania 17011. RELEVANT FACTUAL BACKGROUND 4. At all relevant times hereto, Anna L. Michael, Deceased and Dr. Kunkel enjoyed a patient/physician relationship. 5. Dr. Kunkel pursued the medical specialty of surgery and was obligated to bring to bear in the practice of his profession, the professional skills, knowledge, and experience which he possessed, and to pursue his profession in accordance with reasonable, safe and acceptable standards of medicine in general and surgery in particular. 6. Anna L. Michael underwent an ultrasound on November 4, 2009, for epigastric and back pain which demonstrated multiple gallstones, a dilated common bile duct to 14.4 mm and dilated intrahepatic ducts. Previous blood work demonstrated elevated liver function tests with a bilirubin of 1.6. 7. Dr. Kunkel was consulted, noted the elevated liver function tests and dilated bile ducts and recommended laparoscopic cholecystectomy to be performed at the Holy Spirit Hospital in Camp Hill, Pennsylvania. 8. Dr. Kunkel performed surgery on December 4, 2009 at approximately 8:00 a.m. At the time of surgery he noted that the gallbladder was distended. His operative report stated, "multiple stones were noted". The pathology report noted a very distended cystic duct with an impacted stone. 9. When Anna Michael arrived at post-op, the notes reflect as follow: at 10:40 a.m., she continued to moan and complain of pain; at 10:50 a.m. she remarked "it feels like a sharp knife is in 2 my back"; at 11:35 a.m. she was groaning with pain; and at 1:00 p.m. she could not take deep breaths due to pain. 10. Though Mrs. Michael was scheduled for out-patient surgery, she was admitted overnight due to severe pain. The following day, December 5, 2009, she was still complaining of pain, and at 06:00 hours was given Morphine. 11. Dr. Kunkel's notes for December 5, 2009, state that his patient would be discharged today. However, Mrs. Michael continued to experience pain, vomiting and abdominal distention and Dr. Hansen decided to keep her another day. At midnight her heart rate rose to 121 and at 8:00 a.m., it was 150. At 0934 hours, it was recorded at 148. She continued to have abdominal pain, and was given Percocet. Her abdomen was distended with faint bowel sounds. The nurse's notes state "questionable ileus." 12. On December 6, 2009, Mrs. Michael was still experiencing significant pain. Her abdomen was distended and her bowel sounds were hypoactive. The nurse's notes state that her level of consciousness was - "confused". At 0214 hours on December 6, 2009, her pain was 6/10. At 0953 hours, the nurse's notes indicate that she was confused and forgetful at times. At 1007 hours, the nurse's notes indicate "acute pain". Her heart rate at this time was between 140 and 150. 13. Nevertheless, at approximately 11:30 a.m. on December 6, 2009, Mrs. Michael was discharged by Dr. Kunkel. 14. When Mrs. Michael arrived home on Sunday, December 7, 2009, she sat in a chair and continued to take Percocet. She could not eat, nor could she lie down. 15. On December 8, 2009, her abdomen was still distended, she was in pain, and Dr. Kunkel's office was notified. Dr. Kunkel's office was told that Mrs. Michael was in pain, could not walk, and her stomach was distended. The family was informed by Dr. Kunkel's office that he 3 could not see her until the following day. The office note said, "She is not eating, hurts to swallow, still having abdominal pain." 16. Shortly thereafter, Anna Michael collapsed and Mr. Michael called for an ambulance. The ambulance crew noted upon arrival that Mrs. Michael was unresponsive to verbal and painful stimuli and was in a critical state. Her abdomen was distended. She was pale, cold and dry to the touch. Her pulse was 128 and weak, respirations 28 and shallow. She was transported by ambulance to the Harrisburg Hospital. 17. Upon admission to the Emergency Room at Harrisburg Hospital, her blood pressure was recorded at 77/palpation, heart rate at 126, respiratory rate 24. She was intubated immediately. A CT Scan demonstrated a large biloma. 18. Interventional radiology drained the large biloma and then placed percutaneous transhepatic drainage stents in the bile ducts. 19. Three large stones were found in the common bile duct and bile was noted to be extravasating from the cystic duct stump. She was in septic shock with multisystem failure. 20. A GI Consult noted that the bile leak was secondary to retained biliary stones causing increased intraductal pressure. 21. Dr. Kunkel made an entry in the hospital chart on December 9, 2009, which stated, "I need to have a conference with patient's family in a few weeks. I will call when I get back after the New Year." 22. Consultations occurring during Mrs. Michael's stay at the Harrisburg Hospital read in relevant part, "Injection of contrast medium demonstrated dilated common bile duct containing three large biliary calculi. It was presumed this is secondary to retaining biliary stone causing increased pressure and then subsequent leak." 4 23. On December 12, 2009, a CT Scan of the chest, abdomen and pelvis showed extensive bilateral airspace opacities, findings suggested of multiglobular pneumonia and acute respiratory distress syndrome. 24. The CT Scan of the abdomen showed dilation of the common bile duct with increased density in the distal duct. 25. After 11 days in the ICU, a decision was made to proceed with a tracheostomy and PEG tube for feeding. 26. Following this procedure on December 18, 2009, the patient's respiratory condition continued to worsen. She continued to be febrile, required pressors, Levophed and dopamine. 27. On December 20, 2009, she went into severe hypotension that required pressors with deterioration of overall hemodynamic picture suggested of recurrent septic shock. Her nutritional status was worsening. Her prognosis at that time was very poor. 28. Mrs. Michael did not recover from the infectious insult and she died on December 22, 2009. The diagnosis at the time of her death was altered mental status secondary to severe sepsis, septic shock secondary to multilobular pneumonia and biloma status post cholecystectomy, acute respiratory distress syndrome, acute renal failure, biloma status post ch.olecystectomy on December 4, urinary tract infection, hypertension and peritonitis. 29. - The death certificate lists the cause of death as acute respiratory distress syndrome, sepsis, biliary leak. 30. The negligence, carelessness and deviation from the standard of care by the Defendants significantly and materially contributed to and caused the injuries and death of Anna Michael. 5 31. The negligence of the Defendants consisted of the following acts and omissions, in addition to those acts and omissions set forth in Paragraphs 4 through 30 all of which were the direct and proximate cause of and substantially increased the risk of harm, injury and death to Anna Michael: (a) Failure to remove large stones from the common bile duct at the time of surgery; (b) Failure to carefully inspect the biliary ducts prior to and at the time of surgery to look for gallstones; (c) Failure to utilize appropriate diagnostic tests to look for stones, including MRI or ERCP. (d) Failure to detect gallstones in the common bile duct prior to and at the time of surgery; (e) Failure to perform an intraoperative cholangiogram to determine the state of the common bile duct to ensure there was no blockage; (f) Failure to determine the cause of Anna Michael's post-op pain and tachycardia prior to discharge; (g) Failure to consult with other practitioners as to the cause of Anna Michael's post-op pain and tachycardia; (h) Failure to formulate a differential diagnosis concerning Anna Michael's post-op pain and tachycardia; and, (i) Discharging Anna Michael when she was not medically stable, still in pain and tachycardic. COUNTI WALTER H. MICHAEL, EXECUTOR OF THE ESTATE OF ANNA L. MICHAEL, DECEASED V. KUNKEL SURGICAL GROUP (Respondeat Superior) 32. Paragraphs 1 through 31 above are herein incorporated by reference. 6 33. At all relevant times, Kunkel Surgical Group employed and directed and were responsible for the care and treatment provided by nurses, technicians, physicians, including Dr. Kunkel, and physician assistants, operating in the offices of Kunkel Surgical Group. 34. At all relevant times, Defendant owed a duty to Decedent to provide competent and qualified physicians, nurses, physician assistants, and other personnel to render care to the Decedent/Patient. 35. At all relevant times, Defendant and their agents, including Dr. Kunkel, owed to the Decedent a duty to possess and exercise the requisite degree of skill and knowledge ordinarily possessed and exercised by similar office practices. 36. At all relevant times, Defendant ratified and approved the acts of all of its agents, ostensible agents, employees, servants, physicians (including Dr. Kunkel), nurses, physician assistants and others who rendered care to the Decedent/Patient, while a patient at Holy Spirit Hospital. 37. The injuries and damages set forth herein, including the ultimate death of the Decedent, are the direct and proximate result of the negligence, carelessness and deviation from the standard of care by Defendant, their agents, ostensible agents, servants, physicians, nurses, physician assistants, employees, and other individuals all acting within the course and scope of their employment, including Dr. Kunkel, which consisted of the acts and omissions described in Paragraph 31 (a-i). 7 COUNT II WALTER H. MICHAEL, EXECUTOR OF THE ESTATE OF ANNA L. MICHAEL, DECEASED V. PAUL A. KUNKEL, M.D. AND KUNKEL SURGICAL GROUP (Survival) 38. Paragraphs 1 through 37 above are herein incorporated by reference. 39. Plaintiff Walter H. Michael brings this action on behalf of Anna L. Michael's estate pursuant to 20 Pa. C.S.A. § 3373 and 42 Pa. C.S.A. § 8302 for damages by the Estate of Anna L.' Michael, as a result of Mrs. Michael's death, as well as pain and suffering experienced by Mrs. Michael prior to her death. 40. As a direct and proximate result of the negligence, carelessness and conduct as set forth herein, Mrs. Michael died. 41. , As a direct and proximate result of the negligence and carelessness of the Defendants, Mrs. Michael suffered physical pain, mental anguish, emotional distress, discomfort, loss of earnings, loss of future earnings, social security and other benefits, including loss of life's pleasures. Plaintiff Walter H. Michael, as Executor of the Estate of Anna L. Michael, makes a claim therefor together with all other damages recoverable pursuant to Pennsylvania law. WHEREFORE, Plaintiff demands judgment against Defendants 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. 8 COUNT III WALTER H. MICHAEL, EXECUTOR OF THE ESTATE OF ANNA L. MICHAEL, DECEASED V. PAUL A. KUNKEL, M.D. AND KUNKEL SURGICAL GROUP (Wrongful Death) 42. Paragraphs 1 through 41 above are herein incorporated by reference. 43. Plaintiff Walter H. Michael brings this action pursuant to 42 Pa. C.S.A. § 8301 and Pa. R.C.P. No. 2202(a) as personal representative of Anna L. Michael to recover for the wrongful death of Mrs. Michael. 44. At no time did Mrs. Michael bring an action to recover damages for personal injuries and no other action has been commenced to recover damages for the death of Mrs. Michael. 45. Plaintiff Walter H. Michael, as Executor of the Estate of Anna L. Michael, brings this action on behalf of the following persons, who are all of the persons who may be entitled to recover damages in this action: (a) Walter H. Michael - Spouse (b) Debra A. Koppenhaver Daughter (c) Doris E. Hoffman - Daughter 46. As a direct and proximate result of Defendants' negligence and carelessness as set forth herein, the Plaintiff has suffered and the Defendants are liable for the following damages: (a) all reasonable and necessary funeral expenses for Mrs. Michael; (b) all medical expenses related to the medical treatment provided to Mrs. Michael; (c) expenses of administration related to Mrs. Michael's injuries and death; 9 (d) Mrs. Michael's loss of income and social security benefits and contributions for support, care and services which would have been provided to her family; (e) The pecuniary value of Mrs. Michael's companionship, comfort, society, guidance, solace and protection as spouse; and, (f) Such other damages as are permissible in a Wrongful Death Action under Pennsylvania law. WHEREFORE, Plaintiff demands judgment against Defendants 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. RHOADS & SINON LLP David B. Dowling Attorney I.D. No. 25452 One South Market Square Twelfth Floor P.O. Box 1146 Harrisburg, PA 17108-1146 (717) 233-5731 10 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 are made subject to the penalties of 18 Pa. C.S. § 4904, relating to unswom falsification to authorities. Date: Walter H. Michael, Executor of the Estate of Anna L. Michael, Deceased CERTIFICATE OF SERVICE I hereby certify that on this e,?9?1 day of March, 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: Michael D. Pipa, Esquire Stevens & Lee 17 North Second Street, 16`h Floor Harrisburg, PA 17101 WALTER H. MICHAEL, Executer of the Estate IN THE COURT OF COMMON PLEAS of ANNA L. MICHAEL, Deceased, CUMBERLAND COUNTY Plaintiff : DOCKET NO. 10-7411 V. CIVIL ACTION - LAW PAUL A. KUNKEL, MD. and KUNKEL JURY TRIAL DEMANDEDM? -? rn"?+ SURGICAL GROUP, m m r- -0m " L a a Defendants. I ?° ?• NOTICE OF INTENT TO ENTER JUDGMENT -- 7-7 OF NON PROS PURSUANT TO PA R.C.P. 1042.6 TO: Walter H. Michael, Executor of the Estate of Anna L. Michael, Deceased c/o David B. Dowling, Esquire Rhoads & Sinon, LLP 1 South Market Street, 12th Floor P.O. Box 1146 Harrisburg, PA 17108-1146 Pursuant to Pennsylvania Rule of Civil Procedure 1042.7, we intend to enter a judgment of non pros against you after thirty (30) days of the date of the filing of this Notice if a Certificate of Merit is not filed as required by Pa. R.C.P. 1042.3. I am serving this Notice on behalf of all Defendants. A judgment of non pros will be entered as to all claims against all Defendants. STEVENS & LEE, P Date: May .2-, 2011 By: Michael-D. Pi , squire Attorney I o. 53624 Shaun J umford, Esquire Attorney I.D. No. 84176 17 North Second Street, 16th Floor Harrisburg, PA 17101 (717) 255-7376 (610) 371-7743 (facsimile) Counsel for Defendants SL 11069192v 1 /041199.00465 CERTIFICATE OF SERVICE I, SHAUN J. MUMFORD, ESQUIRE, certify that on this date, I served a certified true and correct copy of the foregoing NOTICE OF INTENT TO ENTER JUDGMENT OF NON PROS PURSUANT TO PA R.C.P. 1042.6 upon the following counsel of record, by depositing the same in the United States mail, postage prepaid, addressed as follows: David B. Dowling, Esquire Rhoads & Sinon, LLP 1 South Market Street, 12th Floor P.O. Box 1146 Harrisburg, PA 17108-1146 Date: May, 2011 2 S Ll 1069192v 1 /041199.00465 .v- David B. Dowling, Esquire rn -c 1'r Attorney I.D. No. 25452 CD RHOADS & SINON LLP cl't 1 South Market Square, 12th Floor ?-n P.O. Box 1146 ^' Harrisburg, PA 17108-1146 sv (717) 233-5731 Attorneys for Plaintiff M WALTER H. MICHAEL, Executor IN THE COURT OF COMMON PLEAS OF Of the Estate of ANNA L. MICHAEL, CUMBERLAND COUNTY, PENNSYLVANIA Deceased, : Plaintiff CIVIL ACTION - LAW NO. 10-7411 V. PAUL A. KUNKEL, M.D. and KUNKEL SURGICAL GROUP Defendants JURY TRIAL DEMANDED CERTIFICATE OF MERIT AS TO DEFENDANTS PAUL A. KUNKEL M.D. AND KUNKEL SURGICAL GROUP I, David B. Dowling, Esquire certify that: VN 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 licensed processionals in the treatment, practice or work that is the subject of the 814715.1 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: Wrvid B. Do Amg One South Market Square, 11 P.O. Box 1146 Harrisburg, PA 17108-1146 (717) 233-5731 Attorney for Plaintiff r- CERTIFICATE OF SERVICE I hereby certify that on this 5th day of May, 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: Michael D. Pipa, Esquire Stevens & Lee Harrisburg Market Square 17 North Second Street, 16th Floor Harrisburg, PA 17101 E, Cassel WALTER H. MICHAEL, Executer of the Estate of ANNA L. MICHAEL, Deceased, Plaintiff v t;") rya +-7- U-J M C.`-1 IN THE COURT OF COMMON g4tAg,'- CUMBERLAND COUNTY c? DOCKET NO. 10-7411 ? CIVIL ACTION - LAW - W, PAUL A. KUNKEL, MD. and KUNKEL JURY TRIAL DEMANDED SURGICAL GROUP, Defendants. NOTICE TO PLEAD TO: Plaintiff Walter H. Michael, Executor of the Estate of Anna L. Michael c/o David B. Dowling, Esquire Rhoads & Sinon, LLP 1 South Market Street, 12th Floor P.O. Box 1146 Harrisburg, PA 17108-1146 You are hereby notified to file a written response to the enclosed new matter within twenty (20) days from service hereof or a judgment may be entered against you. Respectfully submitted, STEVENS & LEE Date: November 7, 2011 By: Michael D. Pipa, Esquir Attorney I.D. No. 53624 Karen E. Minehan, Esquire Attorney I.D. No. 78050 17 North Second Street, 16th Floor Harrisburg, PA 17101 (717) 255-7376 (telephone) (610) 371-7743 (facsimile) mdp@stevenslee.com kem@stevenslee.com Counsel for Defendants 1 -?i LJ ?? -. 1 SL1 1108627v] 041199.00465 WALTER H. MICHAEL, Executer of the Estate : IN THE COURT OF COMMON PLEAS of ANNA L. MICHAEL, Deceased, CUMBERLAND COUNTY Plaintiff V. : DOCKET NO. 10-7411 : CIVIL ACTION - LAW PAUL A. KUNKEL, MD. and KUNKEL JURY TRIAL DEMANDED SURGICAL GROUP, Defendants. ANSWER AND NEW MATTER OF DEFENDANTS PAUL A. KUNKEL, M.D. AND KUNKEL SURGICAL GROUP TO PLAINTIFF'S COMPLAINT AND NOW come Defendants Paul A. Kunkel, M.D. and Kunkel Surgical Group ("Answering Defendants"), by and through their attorneys and in response to Plaintiff's Complaint, states as follows: 1. Denied. After reasonable investigation, Answering Defendants are without knowledge and information sufficient to form a belief as to the truth of these averments, strict proof thereof being demanded at trial. 2. Admitted. 3. Admitted in part and denied in part. It is admitted that Defendant Kunkel Surgical Group is a registered professional corporation organized and existing under the laws of the Commonwealth of Pennsylvania with an address of 890 Poplar Church Road, Suite 210, Camp Hill, Cumberland County, Pennsylvania 17011. It is denied that Defendant Kunkel Surgical Group is an "employer" of Paul A. Kunkel, M.D. Rather, Dr. Kunkel is an officer and shareholder of Defendant Kunkel Surgical Group. 1 SL I 1108627v l 041199.00465 4. Admitted in part and denied in part. After reasonable investigation, Answering Defendants lack sufficient knowledge and information to form the belief as to the truth of certain of these averments, strict proof thereof being demanded at trial as Plaintiffs fail to define what they mean by "at all relevant times hereto." To the extent a response is required, it is admitted that a patient/physician relationship existed between Dr. Kunkel and Anna L. Michael as evidenced set forth in the relevant medical records in November and December of 2009. 5. Admitted and denied. After reasonable investigation, Answering Defendants lack sufficient knowledge and information to form the belief as to the truth of certain of these averments, strict proof thereof being demanded at trial as Plaintiffs fail to define what they mean by "obligated to bring to bear in the practice of his profession." It is admitted only that Dr. Kunkel owed Plaintiff a legal duty to have the same knowledge and skill and use the same care as other specialists in his medical specialty with regard to the care he rendered to Plaintiff in November and December of 2009. It is denied that Answering Defendant was negligent or that any allegedly negligent act or omission of Answering Defendant caused or contributed to Plaintiff s alleged damages. Plaintiff's allegations are otherwise denied pursuant to Rule 1029(e) or as a legal conclusion. 6-29. Admitted and denied. It is admitted that Answering Defendants provided certain medical care and treatment to Plaintiff in November and December of 2009. By way of further answer, the allegations of these paragraphs appear to relate to the facts of medical treatment and care, which have been recorded in the associated medical records. Those medical records are incorporated herein by reference. To the extent that Plaintiff s allegations are inconsistent with or in conflict in any way with the contents of the records, the allegations are denied and strict proof thereof is demanded at the time of trial. Other allegations involve 2 SL I 1108627v l 041199.00465 medical concepts that constitute medical expert opinions or legal conclusions, which are not the proper subject of pleading, and no response is required. To the extent any response is required, such allegations are denied pursuant to Rule 1029(e). By way of further response, it is denied that Answering Defendants were negligent or that any act or omission of Answering Defendants caused or contributed to the Plaintiff s alleged damages. 30. Denied. The allegations of this paragraph constitute conclusions of law to which no response is required. To the extent a response is deemed required, the allegations against Answering Defendants are denied pursuant to Rule 1029(e) and/or as a legal conclusion. It is denied that Answering Defendants were negligent or that any allegedly negligent act or omission by Answering Defendants caused or contributed to the Plaintiffs alleged damages. 31(a-i). Denied. The allegations of this paragraph constitute conclusions of law to which no response is required. To the extent a response is deemed required, the allegations against Answering Defendants are denied pursuant to Rule 1029(e) and/or as a legal conclusion. It is denied that Answering Defendants were negligent or that any allegedly negligent act or omission by Answering Defendants caused or contributed to the Plaintiff s alleged damages. COUNTI WALTER H. MICHAEL, EXECUTOR OF THE ESTATE OF ANNA L. MICHAEL, DECEASED V. KUNKEL SURGICAL GROUP (Respondeat Superior) 32. The preceding paragraphs are incorporated herein by reference. 33. Admitted and denied. After reasonable investigation, Answering Defendants lack sufficient knowledge and information to form the belief as to the truth of these averments, strict proof thereof being demanded at trial as Plaintiffs fail to define what they mean by "at all relevant times", the "care and treatment" or the "nurses, technicians, physicians [other than 3 SL 11108627v ] 041199.00465 Dr. Kunkel], and physicians assistants. To the extent a response is required, it is admitted only that Dr. Kunkel was the agent of Defendant Kunkel Surgical Group with regard to the care that he rendered to Plaintiff Anna L. Michael in November and December 2009 as set forth and evidenced in the relevant medical records. By way of further response, it is denied that Answering Defendants were negligent or that any act or omission of Answering Defendants caused or contributed to the Plaintiff's alleged damages. Plaintiff's allegations are otherwise denied pursuant to Rule 1029(e) or as a legal conclusion. 34. Admitted and denied. After reasonable investigation, Answering Defendants lack sufficient knowledge and information to form the belief as to the truth of these averments, strict proof thereof being demanded at trial as Plaintiffs fail to define what they mean by "at all relevant times" and to identify the alleged "physicians, nurses, physician assistants and other personnel." By way of further response, it is denied that Answering Defendants were negligent or that any act or omission of Answering Defendants caused or contributed to the Plaintiff's alleged damages. Plaintiff's allegations are otherwise denied pursuant to Rule 1029(e) or as a legal conclusion. 35. Admitted and denied. After reasonable investigation, Answering Defendants lack sufficient knowledge and information to form the belief as to the truth of certain of these averments, strict proof thereof being demanded at trial as Plaintiffs fail to define what they mean by "at all relevant times" or to identify all of the alleged agents. It is admitted only that Dr. Kunkel owed Plaintiff a legal duty to have the same knowledge and skill and use the same care as other specialists in his medical specialty with regard to the care he rendered to Plaintiff in November and December of 2009. It is denied that Answering Defendants were negligent or that any allegedly negligent act or omission of Answering Defendants caused or contributed to 4 SL I 1108627v l 041199.00465 Plaintiff's alleged damages. Plaintiff's allegations are otherwise denied pursuant to Rule 1029(e) or as a legal conclusion. 36. Admitted and denied. After reasonable investigation, Answering Defendants lack sufficient knowledge and information to form the belief as to the truth of certain of these averments, strict proof thereof being demanded at trial as Plaintiffs fail to define what they mean by "at all relevant times", "ratified and approved" or to identify all of the alleged "agents, ostensible agents, employees, servants, physicians, nurses, physician assistants and others...". It is admitted only that Dr. Kunkel owed Plaintiff a legal duty to have the same knowledge and skill and use the same care as other specialists in his medical specialty with regard to the care he rendered to Plaintiff in November and December of 2009. It is denied that Answering Defendants were negligent or that any allegedly negligent act or omission of Answering Defendants caused or contributed to Plaintiff's alleged damages. Plaintiff's allegations are otherwise denied pursuant to Rule 1029(e) or as a legal conclusion. 37. Admitted and denied. After reasonable investigation, Answering Defendants lack sufficient knowledge and information to form the belief as to the truth of certain of these averments, strict proof thereof being demanded at trial as Plaintiffs fail to identify all of the alleged "agents, ostensible agents, servants, physicians, nurses, physician assistants, employees and other individuals..." or the referenced acts. It is admitted only that Dr. Kunkel owed Plaintiff a legal duty to have the same knowledge and skill and use the same care as other specialists in his medical specialty with regard to the care he rendered to Plaintiff in November and December of 2009. It is denied that Answering Defendants were negligent or that any allegedly negligent act or omission of Answering Defendants caused or contributed to Plaintiff's 5 SL I 1108627v] 041199.00465 alleged damages. Plaintiff's allegations are otherwise denied pursuant to Rule 1029(e) or as a legal conclusion. COUNT II WALTER H. MICHAEL, EXECUTOR OF THE ESTATE OF ANNA L. MICHAEL, DECEASED V. KUNKEL SURGICAL GROUP (Survival) 38. The preceding paragraphs are incorporated herein by reference. 39. Denied. The allegations of this paragraph constitute conclusions of law to which no response is required. To the extent a response is deemed required, the allegations against Answering Defendants are denied pursuant to Rule 1029(e) and/or as a legal conclusion. It is denied that Answering Defendants were negligent or that any allegedly negligent act or omission by Answering Defendants caused or contributed to the Plaintiff's alleged damages. Plaintiff s allegations are otherwise denied pursuant to Rule 1029(e) or as a legal conclusion. 40. Denied. The allegations of this paragraph constitute conclusions of law to which no response is required. To the extent a response is deemed required, the allegations against Answering Defendants are denied pursuant to Rule 1029(e) and/or as a legal conclusion. It is denied that Answering Defendants were negligent or that any allegedly negligent act or omission by Answering Defendants caused or contributed to the Plaintiff s alleged damages. Plaintiff s allegations are otherwise denied pursuant to Rule 1029(e) or as a legal conclusion. 41. Denied. The allegations of this paragraph constitute conclusions of law to which no response is required. To the extent a response is deemed required, the allegations against Answering Defendants are denied pursuant to Rule 1029(e) and/or as a legal conclusion. It is denied that Answering Defendants were negligent or that any allegedly negligent act or 6 SL I 11086270 041199.00465 omission by Answering Defendants caused or contributed to the Plaintiff's alleged damages. Plaintiff s allegations are otherwise denied pursuant to Rule 1029(e) or as a legal conclusion. WHEREFORE, Answering Defendants respectfully request that this Honorable Court enter judgment in their favor, and against Plaintiffs, with prejudice, together with such other relief as is deemed just. COUNT III WALTER H. MICHAEL, EXECUTOR OF THE ESTATE OF ANNA L. MICHAEL, DECEASED V. KUNKEL SURGICAL GROUP 42. The preceding paragraphs are incorporated herein by reference. 43. Denied. The allegations of this paragraph constitute conclusions of law to which no response is required. To the extent a response is deemed required, the allegations against Answering Defendants are denied pursuant to Rule 1029(e) and/or as a legal conclusion. It is denied that Answering Defendants were negligent or that any allegedly negligent act or omission by Answering Defendants caused or contributed to the Plaintiff's alleged damages. Plaintiff s allegations are otherwise denied pursuant to Rule 1029(e) or as a legal conclusion. 44. Admitted upon information and belief. 45. Admitted and denied. After reasonable investigation, Answering Defendants lack sufficient knowledge and information to form the belief as to the truth of certain of these averments, strict proof thereof being demanded at trial concerning the identity of the potential wrongful death beneficiaries. Denied. The allegations of this paragraph constitute conclusions of law to which no response is required. To the extent a response is deemed required, the allegations against Answering Defendants are denied pursuant to Rule 1029(e) and/or as a legal conclusion. It is denied that Answering Defendants were negligent or that any allegedly negligent act or omission by Answering Defendants caused or contributed to the Plaintiff s 7 SL I 1108627v l 041199.00465 alleged damages. Plaintiff's allegations are otherwise denied pursuant to Rule 1029(e) or as a legal conclusion. 46. Denied. The allegations of this paragraph constitute conclusions of law to which no response is required. To the extent a response is deemed required, the allegations against Answering Defendants are denied pursuant to Rule 1029(e) and/or as a legal conclusion. It is denied that Answering Defendants were negligent or that any allegedly negligent act or omission by Answering Defendants caused or contributed to the Plaintiff's alleged damages. Plaintiff's allegations are otherwise denied pursuant to Rule 1029(e) or as a legal conclusion. WHEREFORE, Answering Defendants respectfully request that this Honorable Court enter judgment in their favor, and against Plaintiffs, with prejudice, together with such other relief as is deemed just. NEW MATTER 47. The preceding paragraphs are all incorporated herein by reference. 48. The Plaintiff has failed to state a cause of action upon which relief may be granted as against Answering Defendants. 49. Answering Defendants were not negligent. 50. Any acts or omissions of Answering Defendants alleged to constitute negligence were not substantial causes or factors of the subject incident and/or did not result in the injuries and/or losses alleged by Plaintiff. 51. The incidents and/or damages described in Plaintiff's Complaint may have been caused or contributed to by Plaintiffs. 52. If Plaintiff sustained the injuries alleged, proof of which is specifically demanded, said injuries may have been the result of the negligent or careless acts and/or 8 SL I 1108627v] 041199.00465 omissions of persons and/or entities over which Answering Defendants exercised no control or right of control. 53. Any negligent acts or omissions proven by Plaintiff, of other individuals and/or entities, may have constituted intervening and/or superseding causes of the damages and/or injuries alleged to have been sustained by Plaintiff. 54. The incident, injuries and/or damages sustained by the Plaintiff, if any, were not proximately caused by Defendant. 55. Plaintiffs claims may be barred by the doctrine of the assumption of risk. 56. Plaintiff s claims may be barred by the doctrine of comparative negligence. 57. Plaintiffs claims may be barred or reduced by the provisions of the Pennsylvania Comparative Negligence Act, 42 Pa. C.S.A. § 7201 et seq., the relevant portions of which are incorporated herein by reference as though same or more fully set forth at length herein. 58. At all times material hereto, Answering Defendants provided care and treatment in accordance with the applicable standards of care at the time and place of treatment. 59. Plaintiff may have failed to mitigate any damages allegedly sustained. 60. Plaintiff s claim and/or request for damages may be barred or limited and/or precluded by the doctrines of res judicata and/or collateral estoppel. 61. Plaintiff s claim and/or request for damages is barred or limited by the provisions of the Medical Care and Reduction of Error Act, 40 P.S. § 1301 et seq., also known as Act 13. 62. Plaintiff s claims may be barred in whole or in part by the applicable statute of limitations. 9 SL 1 1108627v 1041199.00465 63. To the extent that the evidence reveals that Defendant, or any person for whom he was or may be vicariously liable, elected a treatment modality that is recognized as proper, but that may differ from another appropriate treatment modality, then the "two schools of thought" defense is hereby raised. WHEREFORE, Answering Defendants respectfully request that this Honorable Court enter judgment in his favor, and against Plaintiff, with prejudice, together with such other relief as is deemed just. STEVENS & LEE Date: November 7, 2011 By: Michael D. Pipa, Esqui Attorney I.D. No. 53624 Karen E. Minehan, Esquire Attorney I.D. No. 78050 17 North Second Street, 16th Floor Harrisburg, PA 17101 (717) 255-7376 (telephone) (610) 371-7743 (facsimile) mdp@stevenslee.com kem@stevenslee.com Counsel for Defendants 10 SL I 1108627v l 041199.00465 CERTIFICATE OF SERVICE I certify that on this date, I served a certified true and correct copy of the foregoing Answer and New Matter upon the following counsel of record, by depositing the same in the United States mail, postage prepaid, addressed as follows: David B. Dowling, Esquire Rhoads & Sinon, LLP 1 South Market Street, 12th Floor P.O. Box 1146 Harrisburg, PA 17108-1146 Date: November 7, 2011 11 SL I 1108627v l 041199.00465 VERIFICATION (Michael) I, Paul A. Kunkel, M.D., depose and state that the facts set forth in the foregoing Answer and New Matter, are true and correct to the best of my knowledge, information and belief. This Verification is made subject to the penalties of 18 Pa. C.S.A. § 4904, relating to unworn falsification to authorities. Date: , 2011 SL I 1108627v I 041199.00465 12 Paul A. Kunkel, M.D. 1 David B. Dowling, Esquire Attorney I.D. No. 25452 RHOADS & SINON LLP 1 South Market Square, 12th Floor P.O. Box 1146 Harrisburg, PA 17108-1146 (717) 233-5731 Attorneys for Plaintiff FiLED-OFFICE 2fll? JUN Z7 FM 1 ? 4 I RLAiO CPTY PIfiN YL?A & WALTER H. MICHAEL, Executor IN THE COURT OF COMMON PLEAS OF Of the Estate of ANNA L. MICHAEL, CUMBERLAND COUNTY, PENNSYLVANIA Deceased, Plaintiff CIVIL ACTION - LAW NO. 10-7411 V. PAUL A. KUNKEL, M.D. and KUNKEL SURGICAL GROUP Defendants JURY TRIAL DEMANDED PRAECIPE TO SETTLE. DISCONTINUE AND END TO THE PROTHONOTARY: Kindly mark the above captioned matter, settled, discontinued and ended. RHOADS,&.,SINON LLP "David B. Dowling Attorney I.D. No. 25452 One South Market Square P. O. Box 1146 Harrisburg, PA 17108-1146 (717) 233-5731 Attorneys for Plaintiff 855615.1 CERTIFICATE OF SERVICE I hereby certify that I am this '(,o 0 day of June, 2012, serving a true and correct copy of the foregoing "Praecipe to Settle, Discontinue and End" by means of first-class United States mail upon the following: Michael D. Pipa, Esquire Stevens & Lee 17 North Second Street, 16th Floor Harrisburg, PA 17101 (Attorney for Defendants) C a L. Santone 2