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HomeMy WebLinkAbout03-0411COURT OF COMMON PLEAS OF CUMBERLAND COUNTY NINTH JUDICIAL DISTRICT COMMONWEALTH OF PENNSYLVANIA ORPHAN'S COURT DIVISION IN RE: ROBYN ELIZABETH SMITH, : an alleged incapacitated person : PETITION FOR ADJUDICATION OF INCAPACITY AND APPOINTMENT OF PLENARY GUARDIAN OF THE ESTATE AND PERSON IN ACCORDANCE WITH 20 Pa. Cons. Stat. §5511 TO THE HONORABLE, THE JUDGES OF THE SAID COURT: er i:i,:~~ ;~'~!: ~::~ 1. Your Petitioner, Margaret Steuber, is the mother ofRobyn ~izabeth ~mith [hereinafter sometimes refe~ed to as the "incapacitated ~::~" pemon:. ]. The alleged incapacitated person was bom on August 9, 19g~, ~nd s~is 43 years of age, and she currently resides in a skilled nursing care facility, Manor Care Health Services, 940 Walnut Bottom, Carlisle, Pennsylvania 17013. 3. The alleged incapacitated person suffered a serious poisoning incident on November 2, 2002, at which time she resided at 25 Indian Country, Gouldsboro, Wayne County, Pennsylvania, as a result of which incident she was hospitalized at CMC Hospital in Scranton, then a hospital in Harrisburg, Pennsylvania, and now at the aforesaid facility, Manor Care Health Services. 4. The Court of Common Pleas of Cumberland County has jurisdiction over this Petition pursuant to 20 Pa.C.S. {}5512(a) as the county in which the incapacitated person is currently residing. 5. The following persons are to the best of Petitioner's knowledge, information and belief, the only living next-of-kin of the alleged incapacitated person: Name James Smith Margaret Steuber Erik Acerblom Christopher Acerblom Keri Smith Kyle Smith Relationship Spouse Mother/Petitioner Son Son Minor Daughter Minor Son Present Address 25 Indian Country Gouldsboro, PA 1736 Pine Ridge Bushkill, PA 18324 17 George Road New Providence, NJ 17 George Road New Providence, NJ 25 Indian Country Gouldsboro, PA 25 Indian Country Gouldsboro, PA o o 10. The institution providing residential services for the alleged incapacitated person is Manor Care Health Services, 940 Walnut Bottom, Carlisle, PA 17013. To the extent known by Petitioner, the alleged incapacitated person has no personal assets of any significance. The Petitioner estimates that the alleged incapacitated person's annual income is $ 0 , including current monthly social security benefits of $ 0 The alleged incapacitated person was not a member of the armed services of the United States and is not receiving benefits from the United States Veterans' Administration. The alleged incapacitated person is currently suffering from a near vegetative state, unresponsive to verbal command and physical command as a result of 11. 12. 13. 14. ingestion of an overdose of prescription drugs and antifreeze on November 2, 2002, with the result that she suffered cardiac and respiratory arrest. When the physicians attempted to revive her, she suffered an anoxic encephalopathy, i.e., irreversible brain damage, and since that date has been 100% dependent on nursing care to live, including artificial feeding. Because of her mental and physical condition, the alleged incapacitated person is totally unable to manage her financial affairs, property and business and to make and communicate responsible decisions relating to any of her financial or other affairs. Petitioner believes, and therefore avers, that the alleged incapacitated person had at no time executed any powers of attorney or advance healthcare directives or in any other way designated anyone to serve as her agent over any of her personal or financial affairs or as her surrogate over her medical care, or that she designated in writing her wishes in regard to healthcare, including the use or refusal of life- sustaining treatment. As a result of her impaired mental and physical condition, the alleged incapacitated person lacks the capacity to make or communicate any decisions concerning her person and is unable to keep herself properly nourished and hydrated, make her own living arrangements, seek needed medical services, and make decisions concerning a continuation of artificial nourishment and other extraordinary healthcare measures. The Petitioner, as well as other members of the alleged incapacitated person's family, have made attempts to convince the staff of the residential facility which 15. 16. the alleged incapacitated person is currently housed to modify the services currently provided to her, or move her to another skilled nursing care facility closer to her home, however, the staff of the residential facility have refused to follow those wishes unless your Petitioner or another member of the family was appointed the guardian of the alleged incapacitated person's person and estate. The severity of the alleged incapacitated person's mental and physical condition and the lack of a viable, less restrictive alternative necessitate that a plenary guardian of her person be appointed to handle all issues relating to the person of the alleged incapacitated person, specifically including, but not limited to: her living arrangements, her medical and psychiatric care, the administration of medication to her, the extent to which extraordinary medical measures must be utilized in order to sustain her life, and the employment and discharge of physicians, psychiatrists, nurses, therapists, and other professionals for her physical and mental treatment and care, as well as the selection of skilled care nursing facilities to house the alleged incapacitated person. The severity of the alleged incapacitated person's mental and physical condition and the lack of viable, less restrictive alternatives necessitate that a plenary guardian of her Estate be appointed to manage and handle all aspects of the alleged incapacitated person's Estate, including, but not limited to, issues concerning her cash, checks, personal property, insurance and other matters. 17. 18. 19. 20. 21. 22. 23. 24. The proposed plenary guardian of the person and the Estate of the alleged incapacitated person is Margaret Steuber, the mother of the alleged incapacitated person, who resides at 1736 Pine Ridge, Bushkill, Pike County, Pennsylvania 18324. The proposed plenary guardian, your Petitioner, has no interest adverse that of the alleged incapacitated person. The consent of the proposed plenary guardian, your Petitioner, is attached hereto as Exhibit "A". No other court has ever assumed jurisdiction in any proceeding to determine the capacity of the alleged incapacitated person. No other guardian has been appointed for the Estate or the person of the alleged incapacitated person. The deposition was taken of Hal S. Fineburg, M.D., the treating physician of the alleged incapacitated person at Manor Care Health Services, a copy of which is attached hereto, marked Exhibit "B" and made a part hereof. During the course of the deposition, Dr. Fineburg was asked the following question: "...In the event that a Petition is filed in court to have this person determined to be an incapacitated person, do you feel that there would be any benefit to having her there in terms of any involvement she could have in the hearing process?" Dr. Fineburg's answer was: "There would be absolutely no benefit to her being present in the hearing process as she would be like I said, unresponsive." 25. Dr. Fineburg was also asked the following question during the deposition: "In fact, taking her from the healthcare facility, for the purpose of a hearing or other purposes, would that in any way jeopardize her health?" 26. Dr. Fineburg's answer was: "It probably would just make her uncomfortable. Again, moving a patient like that could produce discomfort. It wouldn't be any help to take her to a court of law." 27. 20 Pa.C.S. {}551 l(a), which sets forth conditions for a petition and hearing, states, in part: "The alleged incapacitated person shall be present at the hearing unless: 1. the court is satisfied, upon the deposition of or testimony or sworn statement by a physician or licensed psychologist his physical and mental condition would be harmed by his presence; or if it is impossible for him to be present because of his absence from the Commonwealth. It shall not be necessary for the alleged incapacitated person to be represented by a guardian ad litem in the proceeding." WHEREFORE, your Petitioner respectfully requests that this Honorable Court award a citation directed to Robyn Elizabeth Smith, the alleged incapacitated person, and to such other persons as this Court may direct, to show cause why she should not be adjudicated a fully incapacitated person, and your Petitioner, Margaret Steuber, the appointed plenary guardian of the alleged incapacitated person and her state. It is further requested that, due to the alleged incapacitated person's physical and mental condition, that she not be required to be present in Court at the hearing mandated by 20 Pa.C.S. {}551 Respec~~~ Submitted, ~'---4eff?~/g~. ~elander,'Esquire Attbf. ffey I.D. No. 24897 ¢or~ey for Petitioner 2 Main Street Slir~udsburg, PA 18360 (570) 421-7311 COURT OF COMMON PLEAS OF CUMBERLAND COUNTY NINTH JUDICIAL DISTRICT COMMONWEALTH OF PENNSYLVANIA ORPHAN'S COURT DIVISION IN RE: ROBYN ELIZABETH SMITH, : an alleged incapacitated person : CONSENT OF GUARDIAN OF THE PERSON OF ROBYN ELIZABETH SMITH I, Margaret Steuber, hereby consent to act as the guardian of the person of my daughter, Robyn Elizabeth Smith. I reside at 1736 Pine Ridge, Bushkill, Pennsylvania 18324, and I am retired. I am a citizen of the United States of American and can speak, read and write the English language. I have no interest adverse to Robyn Elizabeth Smith, the alleged incapacitated person. Date: e~JSteuber¥?roposed Guardian IN RE: ROBYN SMITH An Alleged Incapacitated Person TELEPHONE DEPOSITION OF HAL S. FINEBURG, M.D. taken on behalf Robyn Smith, at the law offices of Velander & Sundmaker, P.C., 802 Main Street, Stroudsburg, Pennsylvania, on Tuesday,. February 25, 2003, beginning at 12:00 p.m., before Maria Germana-Kucer, Notary Public. APPEARANCE: VELANDER & SUNDMAKER, P.C. By JEFFREY G. VELANDER, ESQUIRE 802 Main Street Stroudsburg, PA 18360 For Robyn Smith Panko Reporting 537 Sarah Street, 2nd Floor Stroudsburg, Pennsylvania 18360 (570) 421-3620 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 2 HAL S. FINEBURG, M.D., having been duly sworn, was examined and testified as follows: BY MR. VELANDER: Q Please state your name for us, Doctor. A Hal S. Fineburg, F-I-N-E-B-U-R-G. Q Dr. Fineburg, you are a physician? A I'm a physician specializing in internal medicine and medical doctor, yes. Q You are licensed in the Commonwealth of Pennsylvania to pursue that? A Correct. Q What is your office address, Doctor? A 356 East Penn Drive, Enola, PA, 17025. Q Is that Nola, N-O-L-A, or Enola? A Enola, E-N-O-L-A. Q Pennsylvania. Approximately how long have you practiced as a physician? A About 22 years. Q Are you currently on the staff of any hospitals or other facilities? A I'm medical director of a nursing home. Q What is name of that nursing home? A Manor Care of Camp Hill. And I was medical director at Carlisle Manor Care. Q My name is Jeffrey Velander and I am here to ask you 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 2O 21 22 23 24 25 H. Fineburg M.D. 3 some questions concerning Robyn Smith; R-O-B-Y-N, Smith. Is Robyn Smith one of your patients? A Yes, she is. Q Can you tell me approximately when you first came in contact with Ms. Smith? A I believe it was late November of '02. Q Now, my understanding is that Ms. Smith was born on August 9, 1959, which would put her at about 40 years old or a little more. Is that your understanding too? A Yes. It's 42, I think, yes. Q So we're talking about the same person. When you first came in contact with Ms. Smith, did you have a chance to examine her? A Yes, I did. Q What were your findings, Doctor? A Ms. Smith presented a near vegetative state. She was unresponsive to verbal command and physical command, and again, near vegetative state. Q So if you were to define for me in layman's terms a vegetative state, it would be, perhaps and correct me if I'm wrong a person who really has no contact with her environment? A Exactly right, and is 100 percent d~pendent on nursing care to live. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 H. Fineburg M.D. 4 Q Now, at the time that you first saw Ms. Smith, was she capable of feeding herself, grooming herself, performing any of the ordinary functions? A Absolutely not. Her activities of daily living would have to be done by some external force like a nurse. Q Could you tell me what facility Ms. Smith was at, at the time you examined her? A At Manor Care, Carlisle, which is a nursing facility. Q Was she receiving what you consider to be skilled nursing care at that point in time? A Most definitely. Q When you examined her, did you have an opportunity to learn of her recent medical history? In other words, how she managed to come into that state? A Yes, I did. I understand from reading her old chart that she had committed an overdose and actually went into cardiac and respiratory arrest; and then having tried reviving her, she ultimately suffered an anoxic encephalopathy, which is irreversible brain damage and was transferred to my facility. Q In part of your preparation for treatment of this individual, did you have a chance to review any magnetic imaging or X-rays or any radiographic testing of that type? A No. The only thing I had available to me was her chart from the hospital. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 H. Fineburg M.D. 5 Q In your opinion, as a result of your examination and treatment of her, did she in fact suffer serious brain damage? A Her clinical presentation was exactly as per her old chart. Yes. I feel that it was irreversible brain damage, secondary to anoxic encephalopathy. Q Now, did you have an opportunity following the initial examination to be involved in her care and treatment? A Yes, I did. Q Are you still performing that function? A Yes, I do. She has not changed over the time that I've been caring for her. She has had what is to be expected in a person receiving this type of artificial feeding, Foley catheters, et cetera. She's had her exceptions, but again, her condition has been unchanged. Q During the course of your observation and treatment of this patient, have you observed anything in her behavior that would lead you to believe that there is going to be a change for the better in terms of her condition, perhaps becoming more associated with her environment? A I believe that is impossible. Q So it is your opinion that the brain damage is irreversible and is unlikely to change at any time? A Correct. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 2O 21 22 23 24 25 H. Fineburg M.D. Q Can you please describe for us what happens when you come in to visit this patient, what her state is? If she speaks, doesn't speak, something like that to give the court an idea of A Yes. For example, I can paint a picture of her sitting in front of the nurses' station in a wheelchair, almost in a fetal position with her eyes open opened, staring at seemingly nothing. When approached, she does not respond. When asked to do something, she does not respond. She has minimal motion of her extremities. Again, even with some painful stimuli, she would only move a very little bit. And again, she's 100 percent dependent on feedings that the nurses are giving her. She has a Foley catheter in, draining urine, and again, nearly in a vegetative state. Q The Foley catheter is the one with the little bulb on the end that's more or less a permanent sort of catheter? A Well, it's actually not permanent. It can be inserted and pulled out. Q But it's the sort of catheter that one would have around the clock? A That is correct. bladder, correct. Q Draining the urine from the Have you ever spoken with her? Has this woman said 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 H. Fineburg M.D. 7 anything during the period of time that you've seen her? A Never to me, no. I've never gotten any verbal response from her. Q Have you ever been present when somebody else has gotten a verbal response from her? A No. Q I'm going to ask you a few questions about this patient. First of all, you indicated that you have practiced medicine for more than 20 years, that your specialty is internal medicine and that you have been on the staffs of at least two skilled nursing homes. Do you feel comfortable in assessing the abilities of an injured patient? A Yes, I do. Q I believe that you described this patient's mental state as either vegetative or near vegetative? A Correct. It would be an unresponsive state. Q I believe you've also told us that she's never spoken to you. Have you observed any signs from this patient indicating that she has any significant cognitive function at all? A I have not. I have had heard through one nurse that she actually had eye contact with her and maybe some grimacing or some type of response, but again, I've never 1 2 3 4 5 6 7 8 9 10 tl 12 13 14 15 16 17 18 19 2O 21 22 23 24 25 H. Fineburg M.D. 8 experienced it myself being in there with her. Q You did indicate, however, that she responded sometimes to painful stimuli by some type of movement, is that correct? A Again, not appropriately, as one would flinch when they receive pain. Hers was with purposeless. Her movements were purposeless. Q So they could have simply been random of some sort? A I agree. Q Can you evaluate for us specifically, and I don't want to be tedious here, but can you evaluate for us specifically the mental, emotional and physical condition of this patient, taking into account any adaptive behaviors or social skills that she exhibits? A I sincerely believe that she has no contact with her environment. You cannot evaluate her emotional state as there are no emotions present, and she does not respond to any type of verbal questioning. And that would be a value impossible to evaluate. As far as her physical status goes, anybody in a vegetative state like she is, would be a slow deteriorating human being because of the because of nosocomial infections. It's better that they are in a nursing facility like she is living in now. Q What word did you use? Some type of infections, what 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 H. Fineburg M.D. word was that, Doctor? A Nosocomial. Those are infections that you find in the health care facility. Q Can you spell it for me? I've never even heard of that word. A N-O-S-O-C-O-M-I-A-L. Q Thank you. I appreciate that. In your opinion, is this patient capable of caring for herself in any way whatever, outside of the'type of facility in which she currently is living? A No. She would not survive caring for herself. Q I think you mentioned the services that she's currently receiving as external feeding, you mentioned the catheterization A Stool, yes. Turning in bed. Q So as far as you know, this patient is really doing nothing for herself at this point? A Is not, correct. Q I'd like to ask you in the event that a petition is filed in court to have this person determined to be an incapacitated person, do you feel that there would be any benefit to having her there in terms of any involvement she could have in the hearing process? A There would be absolutely no benefit to her being present in the hearing process as she would be, like I 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 ~24 25 H. Fineburg M.D. 10 said, unresponsive. Q In fact taking her from the health care facility, for the purpose of a hearing or other purposes, would that in any way jeopardize her health? A It probably would just make her uncomfortable. Again, moving a patient like that could produce discomfort. It wouldn't be any help to take her to a court of law. Q Is there any treatment or any type of treatment, surgical, pharmacological, any type of treatment that you are aware of that has a reasonable possibility of improvinc this patient's condition? A None that I am aware of. Q Doctor, are all the statements that you made within a reasonable degree of medical certainty? A Correct. MR. VELANDER: Thank you very much, Doctor. I appreciate it. THE WITNESS: You're welcome. (Telephone deposition concluded at 12:15 p.m.) 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 H. Fineburg M.D. 11 t, Maria Germana-Kucer, a Notary Public of the Commonwealth of Pennsylvania, do hereby certify that the foregoing is a true and correct transcript, recorded stenographically by me, of the telephone deposition of HAL S. FINEBURG, M.D., who was first duly sworn by me. I further certify that I am neither counsel nor solicitor to any of the parties in said suit; nor interested in the event of the cause. MARIA GERMANA-KUCER VERIFICATION The facts set forth herein are certified to be true and correct subject to the penalties of 18 Pa.C.S.A. §4904 relating to unsworn falsification to authorities. Dated: ,2003 Margar~ Steuber / COURT OF COMMON PLEAS OF CUMBERLAND COUNTY NINTH JUDICIAL DISTRICT COMMONWEALTH OF PENNSYLVANIA ORPHAN'S COURT DIVISION IN RE: ROBYN ELIZABETH SMITH, : an alleged incapacitated person : CITATION AND NOW, this _~_~day of ~ ~ ,2003, a Rule is hereby issued upon the following persons to show cause why Robyn Smith should not be adjudicated an incapacitated person, and that Margaret Steuber should not be appointed as the guardian of her person. This Rule is Returnable by Hearing scheduled for the~_~t 1~ day ofJ..~t~~' 2003, at_/t~ :..,~I~ o'clock att} _.M., in Courtroom No. ~, Cumberland County Courthouse, Carlisle, Pennsylvania. The following persons are to be notified of this Hearing by personal service and/or service by certified mail, return receipt requested, no later than ] {1 days before the above scheduled Hearing: James Smith Margaret Steuber Spouse Mother/Petitioner Erik Acerblom Son Christopher Acerblom Son 25 Indian Country Gouldsboro, PA 1736 Pine Ridge Bushkill, PA 18324 17 George Road New Providence, NJ 17 George Road New Providence, NJ Keri Smith Kyle Smith Minor Daughter Minor Son 25 Indian Country Gouldsboro, PA 25 Indian Country Gouldsboro, PA BY THE Jo CC; Jeffrey G. Velander, Esquire 802 Main Street Stroudsburg, PA 18360 COURT OF COMMON PLEAS OF CUMBERLAND COUNTY NINTH JUDICIAL DISTRICT COMMONWEALTH OF PENNSYLVANIA ORPHAN'S COURT DIVISION IN RE: ROBYN ELIZABETH SMITH, : NO. 21-2003-0411 an alleged incapacitated person : AFFIDAVIT OF SERVICE I, Lisa F. Esposito, hereby certify that on May 20, 2003, a copy of the Petition for Adjudication of Incapacity and Appointment of Plenary Guardian of the Estate and Person in Accordance with 20 Pa. Cons. Stat. {}5511 and Citation indicating Hearing Date was served by Certified Mail, Return Receipt Requested upon: James Smith 25 Indian Country Gouldsboro, PA Margaret Steuber 1736 Pine Ridge Bushkill, PA 18324 Erik Acerblom 17 George Road New Providence, NJ Christopher Acerblom 17 George Road New Providence, NJ Keri Smith c/o James Smith 25 Indian Country Gouldsboro, PA Kyle Smith c/o James Smith 25 Indian Country Gouldsboro, PA Sworn to and subscribed before me this cvq c~ day of May, 2003. Notary Public ~ Notarial Seal _Darlene J. Jorden, Notary Public .S~oudsburp Boro, Monroe Counly My Cornmiss~on Expires July 14, 2003 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY NINTH JUDICIAL DISTRICT COMMONWEALTH OF PENNSYLVANIA IN RE: ROBYN ELIZABETH SMITH, an alleged incapacitated person 21-2003-0411 AFFIDAVIT OF SERVICE Jeffrey G. Velander, Esquire ROBERT M. ROSENBLUM LAW OFFICE 802 Main Street Stroudsburg, PA 18360 (570) 424-6661 COURT OF COMMON PLEAS OF CUMBERLAND COUNTY NINTH JUDICIAL DISTRICT COMMONWEALTH OF PENNSYLVANIA ORPHAN'S COURT DIVISION IN RE: ROBYN ELIZABETH SMITH, : NO. 21-2003-0411 an alleged incapacitated person : ORDER OF COURT AND NOW, this ''.~_~day of__~'~'- ~~, upon Motion of the Petitioner, Margaret Steuber, by and through her counsel, Jeffrey G. Velander, Esquire, it is hereby ORDERED that: The hearing scheduled in this matter for June 16, 2003, is hereby rescheduled to be held on the ay of ,2003, at ~ o'clock, .M., in Courtroom No. 5, Cumberland County Courthouse, Carlisle, PA. The alleged incapacitated person, Robyn Elizabeth Smith, who in the opinion of her treating physician, Dr. Hal Fineberg, could not understand the nature of these proceedings and would be made physically uncomfortable by a trip to the courthouse, need not appear at the hearing; ~~ ~}~e,,)~f~ is hereby appointed at the guardian ad litem for the alleged incapacitated person, Robyn Elizabeth Smith; is nereoy appolnteO to conduct an lnctep~ndc,d-- The Petitioner and Manor Health Care are hereby directed to cooperate with the appointed physician granting him access to the alleged incapacitated person and her medical records. BY THE cc: Jeffrey G. Velander, Esquire COURT OF COMMON PLEAS OF CUMBERLAND COUNTY NINTH JUDICIAL DISTRICT COMMONWEALTH OF PENNSYLVANIA ORPHAN'S COURT DIVISION IN RE: ROBYN ELIZABETH SMITH, : NO. 21-2003-0411 an alleged incapacitated person : MOTION FOR CONTINUANCE TO THE HONORABLE, THE JUDGES OF THE SAID COURT: AND NOW, comes Margaret Steuber, Petitioner, by and through her counsel, Jeffrey G. Velander, Esquire, and moves this Honorable Court for a continuance, respectfully averring that: 1. Pursuant to a Petition for the appointment of a guardian of Robyn Elizabeth Smith, an alleged incapacitated person, this Court, the Honorable Edward Guido, Judge, Presiding, issued a Citation on May 19, 2003, directed to various persons to show cause why Robyn Smith should not be adjudicated an incapacitated person and Margaret Steuber should not be appointed as a guardian of the person. The Rule is returnable for hearing on June 16, 2003 at 10:00 a.m. in Courtroom No. 5, Cumberland County Courthouse, Carlisle, Pennsylvania. 2. Pursuant to that Citation, the next of kin of the alleged incapacitated person were served, however, the institution in which she currently resides, Manor Health Care Services, 940 Walnut Bottom, Carlisle, Pennsylvania 17013 was not served. 3. The purpose of the Petition is to appoint a guardian to direct the health care services of Robyn Smith, the alleged incapacitated person, and part of that guardian's decision would be whether or not to withhold the artificial feeding treatment which is currently provided to that person, perhaps resulting in her o 10. death. While the appointment of a guardian at litem to represent the interest of the alleged incapacitated person and/or an independent physician to conduct an independent medical examination and provide the Court with an opinion, it is not required by the statute 20 P.S. §5511, this Honorable Court may, in its discretion, make that decision. The court may, therefore, choose to appoint a guardian ad litem to represent the interests of the alleged incapacitated person and it may choose to appoint a physician to conduct an independent medical evaluation of the alleged incapacitated person. The statute, furthermore, provides for the appointment of a physician to conduct an examination of the incapacitated person at the Court's discretion. This Court may choose to appoint an independent physician. That statute, furthermore, provides that the Court may, upon a showing that the alleged incapacitated person would not comprehend the proceeding, excuse that person from attending the hearing. Petitioner and a treating physician, Dr. Hal Fineberg, a copy of whose deposition was attached to the Petition, both are of the opinion that the presence of the alleged incapacitated person at the hearing would not be of value to her or the Court. Because all of these procedures require time, it is respectfully requested that this court continue the June 16, 2003 hearing for a period of three weeks in order to resolve these matters. WHEREFORE, the Petitioner, by and through her counsel, respectfully requests that this Honorable Court to: (1) Continue the proposed Hearing for a date and time convenient to the Court which is at least two weeks from June 16, 2003; (2) Decide whether or not to appoint a guardian ad litem for Robyn Elizabeth Smith; (3) Decide whether or not to appoint a physician to examine Robyn Smith; and (4) Excuse Robyn Elizabeth Smith from attending the hearing. R pect5 lly Submitted, Jeffr~ g ~e}an~eer,~quire Att~pey I.D. No. 2489'/ At~)4:ney for Petitioner 80ff Main Street Stt~oudsburg, PA 18360 (570) 421-7311 VERIFICATION The facts set forth herein are certified to be true and correct subject to the penalties of 18 Pa.C.S.A. §4904 relating to uns ification to authorities. ' Date ~,,),~,~,~'[// ,2003 iii,N__..,,'"' / K'-4e'f', fre ~. ~elander, Esquire COURT OF COMMON PLEAS OF CUMBERLAND COUNTY NINTH JUDICIAL DISTRICT COMMONWEALTH OF PENNSYLVANIA ORPHAN'S COURT DIVISION IN RE: ROBYN ELIZABETH SMITH, : NO. 21-2003-0411 an alleged incapacitated person : CERTIFICATE OF SERVICE I, Jeffrey G. Velander, Esquire, hereby certify that I served a copy of the foregoing Motion for Continuance upon parties on June 12, 2003, by mailing the same, United States mail, first class, postage prepaid to: Manor Care Health Services 940 Walnut Bottom Carlisle, PA 17013 Mrs. Margaret Steuber 1736 Pine Ridge Bushkill, PA 18324 Mr. James Smith 25 Indian Country Gouldsboro, PA 18424 Ms. Regina Smith 16 South Railroad Avenue Mahwah, NJ 07430 Mr. Kyle Smith c/o Mr. James Smith 25 Indian Country Gouldsboro, PA 18424 Ms. Keri Smith c/o Mr. James Smith 25 Indian Country Gouldsboro, PA 18424 Mr. Erik Acerblom 17 George Road New Providence, NJ 07974 Mr. Christopher Acerblom 17 George Road New Providence, NJ 07974 lly Submitted, Je: i~y' G. V~'nder, Esquire Atl rney for Defendant Att rney ID#24897 802 Main Street Stroudsburg, PA 18360 (570) 421-7311 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY NINTH JUDICIAL DISTRICT COMMONWEALTH OF PENNSYLVANIA IN RE: ROBYN ELIZABETH SMITH, an alleged incapacitated person 21-2003-0411 MOTION FOR CONTINUANCE Jeffrey G. Velander, Esquire ROBERT M. ROSENBLUM LAW OFFICE 802 Main Street Stroudsburg, PA 18360 (570) 424-6661 IN RE: ROBYN ELIZABETH SMITH AN ALLEGED INCAPACITATED PERSON IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA ORPHANS' COURT DIVISION NO. 21-2003-0411 IMPORTANT NOTICE CITATION WITH NOTICE A petition has been filed with the Court to have you declared an Incapacitated Person. If the Court finds you to be an Incapacitated Person, your rights will be affected, including our right to manage money and property and to make decisions. A copy of the petition which has been filed by Margaret Steuber is attached. You are hereby ordered to appear at a hearing to be held in Court Room No. 5, Cumberland County Courthouse, Carlisle, Pennsylvania, on June 16 ,2003, at 10:30 A.M. to tell the Court why is should not find you to be an incapacitated Person and appoint a Guardian to act on your behalf. To be an incapacitated Person means that you are not able to receive and effectively evaluate information and communicate decisions and that you are unable to manage your money and/or other property, or to make necessary decisions about where you will live, what medical care you will get, or how your money will be spent. At the hearing, you have the right to appear, to be represented by an attorney, and to request a jury trial. If you do not have an attorney, you have the right to request the Court to appoint an attorney to represent you and to have the attorney's fees paid for you if you cannot afford to pay them yourself. You also have the right to request that the Court order that an independent evaluation as to your alleged incapacity. If the Court decides that you are an Incapacitated person, the Court may appoint a Guardian for you, based on the nature of any condition or disability and your capacity to make and communicate decisions. The Guardian will be of your person and/or your money and other property and will have either limited of full powers to act for you. If the court finds you are totally incapacitated, your legal rights will be affected and you will not be able to make a contract or girl of your money to other property. If the court finds that you are partially incapacitated, your legal rights will also be limited as directed by the Court. If you do not appear at the heating (either in person or by an attorney representing you) the court will still hold the hearing in your absence and may appoint the Guardian requested. Clerk, Orphans Court Division Cumberland County, Carlisle, PA My Commission Expires 1st Monday, January, 2006 COURT OF COMMON PLEAS OF CUMBERLAND COUNTY NINTH JUDICIAL DISTRICT COMMONWEALTH OF PENNSYLVANIA ORPHAN'S COURT DIVISION IN RE: ROBYN ELIZABETH SMITH, : NO. 21-2003-0411 an alleged incapacitated person : AFFIDAVIT OF SERVICE I, Jeffrey G. Velander, Esquire, being duly sworn, avers that on June 20, 2003, I served the following with a Motion for Continuance and Citation scheduling a Hearing for July 21, 2003 at 12:00 p.m. at the Cumberland County Courthouse in Carlisle, Pennsylvania, by certified mail, return receipt requested: Manor Care Health Services 940 Walnut Bottom Carlisle, PA 17013 Mrs. Margaret Steuber 1736 Pine Ridge Bushkill, PA 18324 Mr. James Smith 25 Indian Country Gouldsboro, PA 18424 Ms. Regina Smith 16 South Railroad Avenue Mahwah, NJ 07430 Mr. Kyle Smith c/o Mr. James Smith 25 Indian Country Gouldsboro, PA 18424 Ms. Keri Smith c/o Mr. James Smith 25 Indian Country Gouldsboro, PA 18424 Mr. Erik Acerblom 17 George Road New Providence, NJ 07974 Sworn to and subscribed before me this 21 st. day of July, 2003. Mr~stopher Acerblom _F Geo/ge~Road J 07974 Jef5 Ve"l'ander~ ~e Notary Public ROSERT M. ROSENBLUM LAW OFFICE ATTORNEY AT LAW 802 MAIN STREET, STROUDSBURG, PA 18360 (570) 424-6661 · FAX: 570-424-8921 ROBERT M. ROSENBLUM JAMES P. GREGOR HOLLY B. CONWAY JEFFREY G.VELANDER June 20, 2003 Mr. Steve Coetzee Manor Health Care Services 940 Walnut Bottom Carlisle, PA 17013 Re: Dear Mt'. Coetzee: In Re: Robyn Elizabeth Smith Cumberland County No. 21-03-411 Enclosed herewith please find Citation and Motion for Continuance dated June 16, 2003 scheduling a Hearing tbr July 21,2003 at 12:00 p.m. in Courtroom No. 5 of the Cumberland County Courthouse in Carlisle, Pennsylvania. If you should have any questions, kindly contact me. JGV:lfe Enclosure Very truly/~xS~)/ By:_. !~~ander, Esquire Return Receipt Fee rtl Endorsement Required) I-"1 Restricted Deliven/Fee I'-I (End ....... t Required) '~, ...................................... ~ ZIP+4 iC~mplete items 1, 2, and 3. Also complete it~m 4 if Restricted Delivery is desired. I~int your name and address on the reverse ~) that we can return the card to you. Attach this card to the back of the mailpiece, or on the front if space permits. 1. Article Addressed to: 2. Attic (Tran PS Fon [] Agent [] Addressee Date of Delivery I D. Is delivery address different from item 17 [] Yes If YES, enter delivery address below: [] No I 3. Service Type [ "lE~-Certified Mail [] Express Mail [] Registered [] Return Receipt for Merchandise [] Insured Mail [] C.O.D. 4. Restricted Delivery? (Extra Fee) [] yes 02595-01-M-2509 Ros g M. Ros rsI VU LAw Ogg c ATTORNEY AT LAW 802 MAIN STREET, STROUDSBURG, PA 18360 (570) 424-6661 · FAX: 570-424-8921 ROBERT M. ROSENBLUM JA~ES P. GmmoR HOLLY a. CONWAY JEF~nu~Y G.VELANDER June 20, 2003 Mr. Christopher Acerblom 17 George Road New Providence, NJ 07974 Re.' In Re: Robyn Elizabeth Smith Cumberland County No. 21-03-411 Dear Mr. Acerblom: Enclosed herewith please find Citation and Motion for Continuance dated June 16, 2003 scheduling a Hearing for July 21, 2003 at 12:00 p.m. in Courtroom No. 5 of the Cumberland County Courthouse in Carlisle, Pennsylvania. JGV:lfe Enclosure If you should have any questions, kindly contact me. Very ~ By: elander, Esquire m m Certified Fee (Endorsement Required) Restricted Delivery Fee (E~dorsement Required) · Complete items 1, 2, and 3. Also complete item 4 if Restricted Delivery is desired. · P~nt your name and address on the reverse s(~ that we can return the card to you. · A~tach this card to the back of the mailpiece olon the front f space permits. 1. Article Addressed to: [] Agent [] Addressee D. Is delivery address different from item 17 If YES, enter delivery address below: [] Yes [] No] 3. Service Type ~-Certified Mail [] Registered [] Insured Mail [] Express Mail [] Return Receipt for Memhandise [] C.O.D. 4. Restricted Delivery? (Extra Fee) [] Yes 2. Article Number PS Form 3811, August 2001 Domestic Return Receipt 10259S-01-M-2509 ROBERT M. ROSENBLUM JAM~S P. GREGOR HOLLY B. CON"WAY JEFFREY G.VELANDER ROBERT M. ROSENBLUM LAW OFFICE ATTORNEY AT LAW 802 MAIN STREET, STROUDSBURG, PA 18360 (570) 424-6661 · FAX: 570-424-8921 June 20, 2003 Mr. Erik Acerblom 17 George Road New Providence, NJ 07974 Re.' In Re: Robyn Elizabeth Smith Cumberland County No. 21-03-411 Dear Mr. Acerblom: Enclosed herewith please find Citation and Motion for Continuance dated June 16, 2003 scheduling a Hearing for July 21, 2003 at 12:00 p.m. in Courtroom No. 5 of the Cumberland County Courthouse in Carlisle, Pe~msylvania. If you should have any questions, kindly contact me. JGV:lfe Enclosure By:Very trt~ Je~Telander, Esquire r--~ Postage ,_-t- I.~ Certified Fee Return Receipt Fee (Endorsement Required) r-'t Restricted Delivery Fee r--t (Endorsement Required) r-t Total Postage & Fees r--~ -'-J- [ Nar~.[Pleas~-Print Cleprly) (to/b,~ comple.~y~.~er) '"" L/_/"J£:.¢... ........................ D- J'~-t~.~,..~pt.,,~lo.; or PO Box o. /-)1 ¢ J r,- ,&cul · Complete items 1, 2, and 3. Also complete J J A. Siamature item 4 if Restricted Delivery is desired. I1~ ~~ F1 A~ent Print your name and address on the reverse [] Addressee soj~hat we can return the card to you. ],L~. Receivedby/.,~ri(~tedNarn~) lC. Date~of~Deliver~_ At~ach this card to the back of the mailpiece, ~ or~on the front if Space permits, ll,J~/~to ~ Arti61ej Addressed to: J' ''~' Is delivery ad~lress different'from i~'e~ 17 [] Y~s If YES, enter delivery address below: [] No 3. Se[vice Type '~C;trtified Mail [] Registered [] Insured Mail [] Express Mail [] Return Receipt for Memhandise [] C.O.D. 4. Restricted Delivery? ('Extra Fee) [] Yes 2. Article Number PS Form 3811, August 2001 Domestic Return Receipt 102595-01-M-2509 ROBERT M. ROSENBLUM LAW OFFICE ATTORNEY AT LAW 802 MAIN STREET, STROUDSBURG, PA 18360 (570) 424-6661 ° FAX: 570-424-8921 ROBERT M. ROSENBLUM JAMES P. GREGOR HOLLY B. CONWAY JEFFREY G.VELANDER June 20, 2003 Mr. Kyle Smith c/o James Smith 25 Indian Country Gouldsboro, PA 18424 Re.' Dear Mr. Smith: In Re: Robyn Elizabeth Smith Cumberland County No. 21-03-411 Enclosed herewith please find Citation and Motion for Continuance dated June 16, 2003 scheduling a Hearing for July 21, 2003 at 12:00 p.m. in Courtroom No. 5 of the Cumberland County Courthouse in Carlisle, Pennsylvania. If you should have any questions, kindly contact me. JGV:lfe Enclosure Very tru - By:' Esquire ROBERT M. ROSENBLUM LAW OFFICE ATTORNEY AT LAW 802 MAIN STREET, STROUDSBURG, PA 18360 (570) 424-6661 · FAX: 570-424-8921 ROBEWr M. ROSENBLUM JA~mS P. GR~aOR HOLLY B. CONWAY JE~m~y G.VELAIVD~R June 20, 2003 Ms. Keri Smith c/o James Smith 25 Indian Country Gouldsboro, PA 18424 Re' Dear Ms. Smith: In Re: Robyn Elizabeth Smith Cumberland County No. 21-03-411 Enclosed herewith please find Citation and Motion for Continuance dated June 16, 2003 scheduling a Hearing for July 21, 2003 at 12:00 p.m. in Courtroom No. 5 of the Cumberland County Courthouse in Carlisle, Pennsylvania. If you should have any.questions, kindly contact me. JGV:lfe Enclosure Jef~-Y~fler, Esquire ROBERT M. ROSENBLUM LAW OFFICE ATTORNEY AT LAW 802 MAIN STREET, STROUDSBURG, PA 18360 (570) 424-6661 · FAX: 570-424-8921 ROBERT M. ROSENBLUM JAMES P. GREGOR HOLLY B. CONWAY JEFFREY G.VELANDER June20,2003 Mr. James Smith 25 Indian Country Gouldsboro, PA 18424 Re: In Re: Robyn Elizabeth Smith Cumberland County No. 21-03-411 Dear Mr. Smith: Enclosed herewith please find Citation and Motion for Continuance dated June 16, 2003 scheduling a Hearing for July 21, 2003 at 12:00 p.m. in Courtroom No. 5 of the Cumberland County Courthouse in Carlisle, Pennsylvania. If you should have any questions, kindly contact me. JGV:lfe Enclosure Very true- By: Je~l~nder, Esquire r--I rtl c~ Return Receipt Fee i q ~"" i (Endorsement Required) ' ~..~ , r,,,,/y~,,)/ (Endorsement Required) ...................................... · Complete items 1, 2, and 3. Also complete item 4 if Restricted Delivery is desired. · Print your name and address on the reverse so that we can return the card to you. o~ or, the front if space permits. Attac~ this card to the back of the mailpiece, ! 1. ArtiCllJ Addressed to: [] Agent by ( Printed Name) D. Is delivery address different from item 17 Yes If YES. enter delivery address below: [] No 3. Service Type J~-~,"'~'ertified Mail [] Express Mail [] Registered [] Return Receipt for Merchandise [] Insured Mail [] C.O.D. 4. Restricted Delivery? (Extra Fee) [] Yes 2. Article Number (g-ransfer f~om service label) PS Form 3811, August 2001 Domestic Return Receipt 102595-01-M-2509 ROBERT M. ROSENBLUM LAW OFFICE ATTORNEY AT LAW 802 MAIN STREET, STROUDSBURG, PA 18360 (570) 424-6661 · FAX: 570-424-8921 ROBERT M. ROSENBLUM JAM~S P. GREGOR HOLLY B. CONWAY JEFFREY G.VELANDER June 20, 2003 Ms. Margaret Steuber 1736 Pine Ridge Bushkill, PA 18324 Re: In Re: Robyn Elizabeth Smith Cumberland County No. 21-03-411 Dear Mrs. Steuber: Enclosed herewith please find Citation and.Motion for Continuance dated June 16, 2003 scheduling a Hearing for July 21, 2003 at 12:00 p.m. in Courtroom No. 5 of the Cumberland County Courthouse in Carlisle, Pennsylvania. Your appearance is mandatory. If you should have any questions, kindly contact me. JGV:lfe Enclosure By:: . Je£~ Velander, Esquire IB- ,-~ r-~ Postage Cer[ified Fee rf'l Return Receipt Fee ~ (Endorsement Required) r--I Restricted Delivery Fee r-1 (Endorsement Required) r-i Total Postage & Fees · Complete items 1, 2, and 3. Also complete item 4 if Restricted Delivery is desired. · I~rint your name and address on the reverse ~o that we can return the card to you. · /~ttach this card to the back of the mailpiece, o~on the front if space permits. 1. Artioie Addressed to: 2. Article Number (Transfer from service ~abel) ,~//~nature /. Rec i b (P' ~akNaroe) lC. Date of Delivery D.'lsOeli;/ota~fromitem 17 [] Yes If YES/enjft~r delivery,a,,d~dcr~si' ~ C'./ '''' ; below: I-I,o 3. Service Type''';~v--~-'~>¢ ,~..C.,e~ied Mail [] Express Mail [] Registered [] Return Receipt for Merchandise [] Insured Mail [] C.O.D. 4. Restricted Delivery? (Extra Fee) [] Yes PS Form 3811, August 2001 Domestic Return Receipt 102595-01-M-2509 ROBERT M. ROSENBLUM LAW OFFICE ATTORNEY AT LAW 802 MAIN STREET, STROUDSBURG, PA 18360 (570) 424-6661 · FAX: 570-424-8921 ROBERT M. ROSENBLUM J~.M~S P. GP~GOR HOLLY B. CONWAY JEFFREY G.VELANDER June 20, 2003 Ms. Regina Smith 16 South Railroad Avenue Mahwah, NJ 07430 Re: In Re: Robyn Elizabeth Smith Cumberland Cotmty No. 21-03-411 Dear Ms. Smith: Enclosed herewith please find Citation and Motion for Cominuance dated June 16, 2003 scheduling a Hearing for July 21, 2003 at 12:00 p.m. in Courtroom No. 5 of the Cumberland County Courthouse in Carlisle, Pennsylvania. If you should have any questions, kindly contact me. JGV:lfe Enclosm'e By: ~/~er, Esquire I'1'1 m 1::3 Clearly) [] Registered [] Return Receipt for Memhandise [] Insured Mail [] C.O.D. 4. Restricted Delivery? (Extra Fee) [] Yes 2. Article Number 9~) 99 ~.~9~(~) ~.~..~/.~ ~'~ (Transfer from service label) PS Form 3811, August 2001 Domestic Return Receipt 102595-01.M-2509 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY NINTH JUDICIAL DISTRICT COMMONWEALTH OF PENNSYLVANIA IN RE: ROBYN ELIZABETH SMITH, an alleged incapacitated person 21-2003-0411 AFFIDAVIT OF SERVICE Jeffrey G. Velander, Esquire ROBERT M. ROSENBLUM LAW OFFICE 802 Main Street Stroudsburg, PA 18360 (570) 424-6661 IN RE: ROBYN ELIZABETH SMITH, an alleged incapacitated person : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : ORPHANS' COURT DIVISION : NO. 21-03-411 ORDER OF COURT AND NOW, this 21st day of July, 2003, after hearing, we're satisfied that the allegations contained in the petition have been proven and that Robyn Elizabeth Smith is an incapacitated person. Petitioner Margaret Steuber is hereby appointed the permanent plenary guardian of the person of Robyn Elizabeth Smith. By theft, Edward E. Guido, J. Jeffrey G. Velander, Esquire Attorney for Petitioner Michael Whare, Esquire Guardian ad litem for Robyn Smith srs COURT OF COMMON PLEAS OF CUMBERLAND COUNTY NINTH JUDICIAL DISTRICT COMMONWEALTH OF PENNSYLVANIA ORPHAN'S COURT DIVISION IN RE: ROBYN ELIZABETH SMITH, : an alleged incapacitated person : CONSENT OF GUARDIAN OF THE ESTATE AND PERSON OF ROBYN ELIZABETH SMITH I, Margaret Steuber, hereby consent to act as the guardian of the Estate and person of my daughter, Robyn Elizabeth Smith. I reside at 1736 Pine Ridge, Bushkill, Pennsylvania 18324, and I am retired. I am a citizen of the United States of American and can speak, read and write the English language. I have no interest adverse to Robyn Elizabeth Smith, the alleged incapacitated person. Date: Marg'~a~ Steuber, Prop/~ osed Guardian IN RE: ROBYN SMITH An Alleged Incapacitated Person TELEPHONE DEPOSITION OF HAL S. FINEBURG, M.D. taken on behalf Robyn Smith, at the law offices of Velander & Sundmaker, P.C., 802 Main Street, Stroudsburg, Pennsylvania, on Tuesday, February 25, 2003, beginning at 12:00 p.m., before Maria Germana-Kucer, Notary Public. APPEARANCE: VELANDER & SUNDMAKER, P.C. By JEFFREY G. VELANDER, ESQUIRE 802 Main Street Stroudsburg, PA 18360 For Robyn Smith ORIGINAL Panko Reporting 537 Sarah Street, 2nd Floor Stroudsburg, Pennsylvania 18360 (570) 421-3620 1 2 3 4 5 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 2 HAL S. FINEBURG, M.D., having been duly sworn, was examined and testified as follows: BY MR. VELANDER: Q Please state your name for us, Doctor. A Hal S. Fineburg, F-I-N-E-B-U-R-G. Q Dr. Fineburg, you are a physician? A I'm a physician specializing in internal medicine and medical doctor, yes. Q You are licensed in the Commonwealth of Pennsylvania to pursue that? A Correct. Q What is your office address, Doctor? A 356 East Penn Drive, Enola, PA, 17025. Q Is that Nola, N-O-L-A, or Enola? A Enola, E-N-O-L-A. Q Pennsylvania. Approximately how long have you practiced as a physician? A About 22 years. Q Are you currently on the staff of any hospitals or other facilities? A I'm medical director of a nursing home. Q What is name of that nursing home? A Manor Care of Camp Hill. And I was medical director at Carlisle Manor Care. Q My name is Jeffrey Velander and I am here to ask you 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 2O 21 22 23 24 25 H. Fineburg M.D. some questions concerning Robyn Smith; R-O-B-Y-N, Smith. Is Robyn Smith one of your patients? A Yes, she is. Q Can you tell me approximately when you first came in contact with Ms. Smith? A I believe it was late November of '02. Q Now, my understanding is that Ms. Smith was born on August 9, 1959, which would put her at about 40 years old or a little more. Is that your understanding too? A Yes. It's 42, I think, yes. Q So we're talking about the same person. When you first came in contact with Ms. Smith, did you have a chance to examine her? A Yes, I did. Q What were your findings, Doctor? A Ms. Smith presented a near vegetative state. She was unresponsive to verbal command and physical command, and again, near vegetative state. Q So if you were to define for me in layman's terms a vegetative state, it would be, perhaps and correct me if I'm wrong a person who really has no contact with her environment? A Exactly right, and is 100 percent dependent on nursing care to live. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 H. Fineburg M.D. 4 Q Now, at the time that you first saw Ms. Smith, was she capable of feeding herself, grooming herself, performing any of the ordinary functions? A Absolutely not. Her activities of daily living would have to be done by some external force like a nurse. Q Could you tell me what facility Ms. Smith was at, at the time you examined her? A At Manor Care, Carlisle, which is a nursing facility. Q Was she receiving what you consider to be skilled nursing care at that point in time? A Most definitely. Q When you examined her, did you have an opportunity to learn of her recent medical history? In other words, how she managed to come into that state? A Yes, I did. I understand from reading her old chart that she had committed an overdose and actually went into cardiac and respiratory arrest; and then having tried reviving her, she ultimately suffered an anoxic encephalopathy, which is irreversible brain damage and was transferred to my facility. Q In part of your preparation for treatment of this individual, did you have a chance to review any magnetic imaging or X-rays or any radiographic testing of that type? A No. The only thing I had available to me was her chart from the hospital. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 2O 21 22 23 24 25 H. Fineburg M.D. 5 Q In your opinion, as a result of your examination and treatment of her, did she in fact suffer serious brain damage? A Her clinical presentation was exactly as per her old chart. Yes. I feel tha% it was irreversible brain damage, secondary to anoxic encephalopathy. Q Now, did you have an opportunity following the initial examination to be involved in her care and treatment? A Yes, I did. Q Are you still performing that function? A Yes, I do. She has not changed over the time that I've been caring for her. She has had what is to be expected in a person receiving this type of artificial feeding, Foley catheters, et cetera. She's had her exceptions, but again, her condition has been unchanged. Q During the course of your observation and treatment of this patient, have you observed anything in her behavior that would lead you to believe that there is going to be a change for the better in terms of her condition, perhaps becoming more associated with her environment? A I believe that is impossible. Q So it is your opinion that the brain damage is irreversible and is unlikely to change at any time? A Correct. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 2O 21 22 23 24 25 H. Fineburg M.D. 6 Q Can you please describe for us what happens when you come in to visit this patient, what her state is? If she speaks, doesn't speak, something like that to give the court an idea of A Yes. For example, I can paint a picture of her sitting in front of the nurses' station in a wheelchair, almost in a fetal position with her eyes open opened, staring at seemingly nothing. When approached, she does not respond. When asked to do something, she does not respond. She has minimal motion of her extremities. Again, even with some painful stimuli, she would only move a very little bit. And again, she's 100 percent dependent on feedings that the nurses are giving her. She has a Foley catheter in, draining urine, and again, nearly in a vegetative state. Q The Foley catheter is the one with the little bulb on the end that's more or less a permanent sort of catheter? A Well, it's actually not permanent. It can be inserted and pulled out. Q But it's the sort of catheter that one would have around the clock? A That is correct. bladder, correct. Q Draining the urine from the Have you ever spoken with her? Has this woman said 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 2O 21 22 23 24 25 H. Fineburg M.D. anything during the period of time that you've seen her? A Never to me, no. I've never gotten any verbal response from her. Q Have you ever been present when somebody else has gotten a verbal response from her? A No. Q I'm going to ask you a few questions about this patient. First of all, you indicated that you have practiced medicine for more than 20 years, that your specialty is internal medicine and that you have been on the staffs of at least two skilled nursing homes. Do you feel comfortable in assessing the abilities of an injured patient? A Yes, I do. Q I believe that you described this patient's mental state as either vegetative or near vegetative? A Correct. It would be an unresponsive state. Q I believe you've also told us that she's never spoken to you. Have you observed any signs from this patient indicating that she has any significant cognitive function at all? A I have not. I have had heard through one nurse that she actually had eye contact with her and maybe some grimacing or some type of response, but again, I've never 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 H. Fineburg M.D. experienced it myself being in there with her. You did indicate, however, that she responded sometimes to painful stimuli by some type of movement, is that correct? A Again, not appropriately, as one would flinch when they receive pain. Hers was with purposeless. Her movements were purposeless. Q So they could have simply been random of some sort? A I agree. Q Can you evaluate for us specifically, and I don't want to be tedious here, but can you evaluate for us specifically the mental, emotional and physical condition of this patient, taking into account any adaptive behaviors or social skills that she exhibits? A I sincerely believe that she has no contact with her environment. You cannot evaluate her emotional state as there are no emotions present, and she does not respond to any type of verbal questioning. And that would be a value - - impossible to evaluate. As far as her physical status goes, anybody in a vegetative state like she is, would be a slow deteriorating human being because of the because of nosocomial infections. It's better that they are in a nursing facility like she is living in now. Q What word did you use? Some type of infections, what 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 2O 21 22 23 24 25 H. Fineburg M.D. word was that, Doctor? A Nosocomial. Those are infections that you find in the health care facility. Q Can you spell it for me? that word. A Q I've never even heard of N-O-S-O-C-O-M- I-A-L. Thank you. I appreciate that. In your opinion, is this patient capable of caring for herself in any way whatever, outside of the type of facility in which she currently is living? A No. She would not survive caring for herself. Q I think you mentioned the services that she's currently receiving as external feeding, you mentioned the catheterization A Stool, yes. Turning in bed. Q So as far as you know, this patient is really doing nothing for herself at this point? A Is not, correct. Q I'd like to ask you in the event that a petition is filed in court to have this person determined to be an incapacitated person, do you feel that there would be any benefit to having her there in terms of any involvement she could have in the hearing process? A There would be absolutely no benefit to her being present in the hearing process as she would be, like I 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 H. Fineburg M.D. 10 said, unresponsive. Q In fact taking her from the health care facility, for the purpose of a hearing or other purposes, would that in any way jeopardize her health? A It probably would just make her uncomfortable. Again, moving a patient like that could produce discomfort. It wouldn't be any help to take her to a court of law. Q Is there any treatment or any type of treatment, surgical, pharmacological, any type of treatment that you are aware of that has a reasonable possibility of improving this patient's condition? A None that I am aware of. Q Doctor, are all the statements that you made within a reasonable degree of medical certainty? A Correct. Doctor. MR. VELANDER: I appreciate it. Thank you very much, 12:15 p.m.) THE WITNESS: You're welcome. (Telephone deposition concluded at 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 H. Fineburg M.D. 11 I, Maria Germana-Kucer, a Notary Public of the Commonwealth of Pennsylvania, do hereby certify that the foregoing is a true and correct transcript, recorded stenographically by me, of the telephone deposition of HAL S. FINEBURG, M.D., who was first duly sworn by me. I further certify that I am neither counsel nor solicitor to any of the parties in said suit; nor interested in the event of the cause. MARIA GERMANA-KUCER ORIGINAL