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HomeMy WebLinkAbout13-3432 Su' preme Ca u t o= 'Pennsylvania Cour of Co "tnmo Pleas For Prothonotary Use Only: j tl C' il ' over Shet Docket'No: Is i I th Cumberlan COU11ty i The information collected on this form is used solely for court administration purposes. This form does not supplement or replace the filing and service of pleadings or other papers as required by law or rules of court. Commencement of Action: Complaint 10 Writ of Summons Petition I S E Transfer from Another Jurisdiction 7 Declaration of Taking It Lead Plaintiff's Name: Lead Defendant's Name: 'C Robert M. Marsteller Gregory A. Hanks, M.D. Dollar Amount Requested: O within arbitration limits t Y Are money damages requested? 0 Yes a No (check one) 10 outside arbitration limits 1' .o 4 -N Is this a Class Action Suit? 0 Yes 0 No Is this an MDJAppeal? 0 Yes M No !' A Name of Plaintiff /Appellant's Attorney: Richard C. Anqino, Esquire U Check here if you have no attorney (are a Self- Represented [Pro Sel Litigant) Nature of the Case Place an "X" to the left of the ONE case category that most accurately describes your PRIMARY CASE. If you are making more than one type of claim, check the one that you considerinost important. TORT (do not include Mass Tort) CONTRACT (do not include Judgments) CIVIL APPEALS Intentional _ Buyer Plaintiff Administrative Agencies „L l Malicious Prosecution fLL.N Debt Collection: Credit Card Q Board of Assessment LJ Motor Vehicle FLI Debt Collection: Other Board of Elections CI Nuisance 0 Dept. of Transportation 43 Premises Liability 1 Statutory Appeal: Other S' [3 Product Liability (does not include . Employment Dispute: ass tort) U' m . Slander/Libel/ Defamation Discrimination C J -Other: J Employment Dispute: Other [' Zoning Board T ❑I Other: Other: � MASS TORT ' Asbestos Tobacco Toxic Tort - DES [3 Toxic Tort - Implant REAL PROPERTY MISCELLANEOUS 0 Toxic Waste El ^ } 0 Other: Ejectment l Common Law /Statutory Arbitration Q Eminent Domain /Condemnation ] Declaratory Judgment Ground Rent Mandamus i =J Landlord /Tenant Dispute Non - Domestic Relations C? Mortgage Foreclosure: Residential Restraining Order PROFESSIONAL LIABLITY Mortgage Foreclosure: Commercial E3 Quo Warranto M_J Dental Partition Replevin Legal E] Quiet Title El Other: xa, Medical E] Other: Other Professional: Updated 1/1/2011 # X l ANGINO & ROVNER, P.C. CUMBERLAND Richard C. Angino, Esquire PENNS V COUNTY Attorney ID# : 07140 'A N `A 4503 North Front Street Harrisburg, PA 17110 -1708 (717) 238 -6791 FAX (717) 238 -5610 Attorneys for Plaintiff(s) E -mail: RCA @angino- rovner.com ROBERT M. MARSTELLER AND IN THE COURT OF COMMON PLEAS SHARON M. MARSTELLER, CUMBERLAND COUNT PA Plaintiffs, NO. V. CIVIL ACTION GREGORY A. HANKS, M.D. MEDICAL PROFESSIONAL LIABILITY ACTION . Defendant JURY TRIAL DEMANDED NOTICE TO DEFEND 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 lnay proceed without you and 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 Telephone number- 717- 249 -3166 516117 AVISO USTED HA SIDO DEMANDADO /A EN CORTE. Si usted desea defenderse de las demandas que se persentan mds adelante en las siguientes paginas, debe tomar acci6n dentro de los pr6ximos veinte (20) dias despues de la notificaci6n de esta Demanda y Aviso radicando personalmente o por medio de un abogado una comparecencia escrita y radicando en la Corte por escrito sus defensas de, y objecciones a , las demandas presentadas aqui en contra suya. Se le advierte de que si usted falla de tomar acci6n Como se describe anteriormente, el caso puede proceder sin usted y un fallo por cualquier suma de dinero reclamada en la demanda o cualquier otra reclamaci6n o remedio solicitado por el demandante puede ser dictado en contra suya por la Corte sin mas aviso adicional. Used puede perder dinero o propiedad u otros derechos importantes para used. USTED DEBE LLEVAR ESTE DOCUMENTO A SU ABOGADO INMEDIATAMENTE. SI USED NO TIENE UN ABOGADO, LLAME O VAYA A LA SIGUIENTEI OFICINA. ESTA OFICINA PUEDE PROVEERLE INFORMACION A CERCA DE COMO CONSEGUIR UN ABOGADO. SI USED NO PUEDE PAGAR POR LOS SERVICIOS DE UN ABOGADO, ES POSIBLE QUE ESTA OFICINA LE PUEDA PROVEER INFORMACION SOBRE AGENCIAS QUE OFREZCAN SERVICIOS LEGALES SIN CARGO O BAJO COSTO A PERSONAS QUE CUALIFICAN. Cumberland County Bar Association 32 South Bedford Street Carlisle, PA Telephone number- 717- 249 -3166 516117 ANGINO & ROVNER, P.C. Richard C. Angino, Esquire Attorney ID# : 07140 4503 North Front Street Harrisburg, PA 17110-1708 (717) 238 -6791 FAX (717) 238 -5610 Attorneys for Plantiff(s) E -mail: RCA @angino- rovner.com ROBERT M. MARSTELLER AND IN THE COURT OF COMMON PLEAS SHARON M. MARSTELLER, CUMBERLAND COUNTY, PA Plaintiffs NO. V. CIVIL ACTION GREGORY A. HANKS, M.D. MEDICAL PROFESSIONAL LIABILITY ACTION Defendant JURY TRIAL DEMANDED COMPLAINT AND NOW, come the Plaintiffs, Robert M. Marsteller and Sharon M. Marsteller, Husband and Wife, by and through their attorneys, Angino & Rovner, P.C., and file the foregoing Complaint, alleging as follows: PARTIES 1. Plaintiffs, Robert M. Marsteller (hereinafter, "Mr. Marsteller") and Sharon M. Marsteller (hereinafter, "Mrs. Marsteller"), husband and wife, are both adult individuals and residents of Dauphin, Dauphin County, Pennsylvania. 2. Defendant, Gregory A. Hanks, M.D. (hereinafter, "Defendant Hanks ") is currently, and was at all times relevant to this Complaint, a physician specializing in orthopedic 516117 medicine. Defendant Hanks is licensed to practice medicine in the Commonwealth of Pennsylvania. He regularly practices in Cumberland County, Pennsylvania, where he is employed by Orthopedic Institute of Pennsylvania (hereinafter "OIP "). Plaintiffs are asserting professional liability claims against Defendant Hanks. A Certificate of Merit is attached hereto as "Exhibit A." FACTS 3. On or about April 28, 2012, Mr. Marsteller fell while roller blading and injured his lower r;1 leg, sustaining a spiral intra- articular fracture of the right distal tibia with a spiral proximal fibula fracture. 4. Mr. Marsteller was admitted to Holy Spirit Hospital, where his leg was splinted. 5. The following day, on or about April 29, 2012, Mr. Marsteller underwent a closed reduction and long leg cast application performed by Defendant Hanks at bedside. 6. Defendant Hanks ordered a post reduction x -ray to check position and alignment, but the results are not in the hospital record. 7. Subsequently, Mr. Marsteller was instructed in non- weight bearing crutch ambulation and discharged from Holy Spirit Hospital. 8. On or about May 10, 2012, Mr. Marsteller had a follow -up appointment with Defendant Hanks at OIP, during which time Defendant Hanks ordered an x -ray. 9. Although Mr. Marsteller voiced concerns regarding the alignment of his fracture, Defendant Hanks found there to be "great alignment." 10. On or about May 31, 2012, at OIP, Defendant Hanks removed Mr. Marsteller's cast and ordered another x -ray. 516117 11. On the same date, Defendant Hanks noted that Mr. Marsteller thought that "there may be a rotational abnormality," but Defendant Hanks dismissed the concern regarding rotation as "minimal at best." 12. A brace was ordered and Mr. Marsteller was allowed to be toe -touch weight- bearing. 13. On or about June 21, 2012, Defendant Hanks reviewed Mr. Marsteller's x -ray at OIP and noted that Mr. Marsteller's foot was "slightly externally rotated compared to his other," but found tlae x -ray to reveal satisfactory conditions. 14. On the same date, Defendant Hanks informed Mr. Marsteller that the external rotation was not going to change and to correct it would require another surgery —an osteotomy. 15. On the same date, Defendant Hanks permitted Mr. Marsteller to fully bear weight in his brace. 16. On or about June 27, 2012, Mr. Marsteller sought another doctor's opinion regarding the external rotation of his right leg. 17. A CT scan was ordered which revealed that there was a twenty to twenty -five degree (20° to 25 °) external rotation on the right compared to the left. 18. In order to correct the large degree of rotation, on or about July 5, 2012, Mr. Marsteller underwent right tibial and fibula osteotomies with application of a Taylor Spatial Frame. 19. In the weeks following application of the Taylor Spatial Frame, Mr. Marsteller adjusted the struts of the frame daily to achieve correction of the rotational malunion. 20. The frame was removed approximately five (5) months later. 516117 21. As a result of the negligence of Defendant Hanks, Mr. Marsteller had to undergo a second surgery to correct an unacceptable degree of malrotation, at least five additional months of bracing and treatment, pain and suffering, additional medical expense, and loss of earnings. Robert M. Marsteller v. Grellory A. Hanks, M.D. 22. Paragraphs 1 through 21 are incorporated herein as if set forth at length. 23. All of the Plaintiffs' damages were the result of the negligent, careless, and substandard care provided to Mr. Marsteller by Defendant Gregory A. Hanks, M.D., as follows: a) failure to reduce the fracture adequately at the time of the initial closed reduction; b) failure to detect an unacceptable degree of malrotation; C) failure to assess rotation at the fracture site clinically as well as radiographically; d) failure to correct the unacceptable degree of malrotation within a reasonable period of time; and e) failure to correct the malrotation by the May 31, 2012, visit while the malrotation was still correctable with minimal intervention. WHEREFORE, Plaintiff Robert M. Marsteller demands judgment in his favor and against Defendant Gregory A. Hanks, M.D., in an amount in excess of Fifty Thousand Dollars ($50,000), exclusive of interest and costs, and in excess of any jurisdictional amount requiring compulsory arbitration. CLAIM I DAMAGES Robert M. Marsteller v. Gregory A. Hanks, M.D. 24. Paragraphs 1 througli 23 are incorporated herein as if set forth at length. 25. As a result of Defendant Hanks's negligence as alleged above, Mr. Marsteller was forced to incur medical expenses, and will continue to incur medical expenses in an amount 516117 unknown at this time, for surgical treatment, medical treatment, medications, and other similar expenses in an attempt to restore himself to health, and claims are made therefor. 26. As a result of Defendant Hanks's negligence as alleged above, Mr. Marsteller experienced pain, suffering, humiliation, disfigurement, loss of life's pleasures and enjoyment, limitation, and mental anguish, and claims are made therefor. 27. As a result of Defendant Hanks's negligence as alleged above, Mr. Marsteller suffered a loss of earning and claims are made therefor. 28. Defendant Hanks is liable to Robert M. Marsteller for the damages set forth herein. WHEREFORE, Plaintiff Robert M. Marsteller demands judgment in his favor and against Defendant Hanks in an amount in excess of Fifty Thousand Dollars ($50,000), exclusive of interest and costs, and in excess of any jurisdictional amount requiring compulsory arbitration. CLAIM II LOSS OF CONSORTIUM Sharon M. Marsteller v. Gregory A. Hanks, M.D. 29. Paragraphs 1 through 28 are incorporated herein as if set forth at length. 30. As a result of the injuries sustained by her husband, Plaintiff Sharon M. Marsteller has suffered a loss of the care, custody, society, consortium, services, and companionship of her husband, Robert M. Marsteller, all of which losses are to her detriment, and claims are made therefor. 516117 WHEREFORE, Plaintiff Sharon M. Marsteller demands judgment in her favor and against Defendant Hanks in an amount in excess of Fifty Thousand Dollars ($50,000), exclusive of interest and costs, and in excess of any jurisdictional amount requiring compulsory arbitration. Respectfully submitted, ANG1NO & ROVNER, P.C. ichard . Angino,% 'squire I.D. No. 07140 ; 4503 N. Front,�tr et Harrisburg, P`A 7110 (717) 238,79 Date: June 1.3, 2013 Counsel or laintiffs 516117 VERIFICATION Plaintiffs, Robert M. Marsteller and Sharon M. Marsteller, Husband and Wife, have read the foregoing Complaint and do hereby swear or affirm that the facts set forth in the foregoing are true and correct to the best of our knowledge, information and belief. We understand that this Verification is made subject to the penalties of 18 Pa.C.S.A. Section 4904, relating to unsworn falsification to authorities. C itn s ` Robert M. Marsteller Date: Date: L2 `2-, M(?k GA Witn s baron M. Marsteller Date: ( Z/J 3 Date: I a - z) 516117 ' ANGINO & ROVNER, P.C. Richard C. Angino Esquire Attorney IN :. 07140 4503 North Front Street Harrisburg, PA 17110 -1708 (717) 238 -6791 FAX (717) 238 -5610 Attorneys for Plaintiffs) E -mail: RCA @angino- rovner.com ROBERT M. MARSTELLER AND IN THE COURT OF COMMON PLEAS SHARON M. MARSTELLER, DAUPHIN COUNTY, PA Plaintiffs NO. V. CIVIL ACTION MEDICAL PROFESSIONAL LIABILITY ACTION GREGORY A. HANKS, M.D. JURY TRIAL DEMANDED Defendant Certificate of Merit as to Gregory A. Hanks, M.D. I, Richard C. Angino, certify that: ( X ) 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 defendant Gregory A. Hanks, M.D. 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 ( ) the claim that this defendant deviated from an acceptable professional standard is based solely on allegations that other licensed professionals for whom defendant is responsible deviated from an acceptable professional standard and an appropriate licensed professional has supplied a written statement to the undersigned that there is a basis to conclude that the care, skill or knowledge exercised or exhibited by the other licensed professionals in the treatment, practice or work that is the subject of the complaint, fell outside acceptable professional standards and that Stich conduct was a cause in bringing about the harm; ( ) expert testimony of an appropriate licensed professional is unnecessary for prosecution of the claim against this defendant. Date: R chard C. gino Exhibit A ANGINO & ROVNER,1'.C. Richard C. Angino, Esquire 516117 SHERIFF'S OFFICE OF CUMBERLAND COUNTY Ronny R Anderson Sheriff ct+�sra �,rr I SLED OF F ICE � �y,titt� � F Jody S Smith `,0 THE MAO' ONOT CP Chief Deputy Richard W Stewart "013 JUN 26 PM :2� f'3. Solicitor OPFACE OF P�E V�'E-R!rr CUi"ISERLAND COUNTY PE'NNSYLVANA Robert Marsteller Case Number vs. Gregory A Hanks, M.D. 2013-3432 SHERIFF'S RETURN OF SERVICE 06/14/2013 Sheriff Ronny R Anderson, being duly sworn according to law, states he made diligent search and inquiry for the within named Defendant to wit: Gregory A Hanks, M.D., but was unable to locate the Defendant in the Sheriffs bailiwick. The Sheriff therefore deputizes the Sheriff of Dauphin, Pennsylvania to serve the within Complaint& Notice according to law. 06/20/2013 The requested Complaint& Notice served by the Sheriff of Dauphin County upon Mary Hanks, wife of defendant, who accepted for Gregory A Hanks, M.D., at 779 Pine Tree Road, Hummelstown, PA 17036. Jack Lotwick, Sheriff, Return of Service attached to and made part of the within record. SHERIFF COST: $28.46 SO ANSWERS, June 24, 2013 RONNY R ANDERSON, SHERIFF (c)CountySuite Sheriff,Teleosoit.Inc. 1 , : of III 4 She le Ruhl Jack Duignan Real Estale Deputy ? Chief Deputy Matthew L. Owens Michael W. Rinehart Solicitor Assistant Chief Deputy Dauphin County 101 Market Street Harrisburg,Pennsylvania 17101-2079 ph:(717)780-6590 fax:(717)255-2889 Jack Lotwick Sheriff - Commonwealth of Pennsylvania ROBERT M. MARSTELLER AND SHARON M. MARSTELLAR VS County of Dauphin GREGORY A. HANKS, M.D. Sheriff s Return No. 2013-T-1822 OTHER COUNTY NO. 2013-3432 And now: JUNE 20, 2013 at 8:25:00 AM served the within NOTICE & COMPLAINT upon GREGORY A. HANKS, M.D. by personally handing to MARY HANKS * 1 true attested copy of the original NOTICE & COMPLAINT and making known to him/her the contents thereof at 779 PINE TREE ROAD HUMMELSTOWN PA 17036 * WIFE OF DEFENDANT AND ADULT PERSON IN CHARGE AT TIME OF SERVICE. Sworn and subscribed to So Answers, before me this 21 ST day of June, 2013 Qag c— Sher' f of Dau hin C nty, Pa. .. By 000ccc+++ COMMONWEALTH OF PENNSYLVANIA De ty Sheriff NOTARIAL SEAL De uty: J STRAINING Karen M.Hoffman,Notary Public City of Harrisburg,Dauphin County Sheriffs Costs: $49.25 6/18/2013 My Commission Expires August 17,2014 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PA ROBERT M. MARSTELLER CIVIL ACTION AND SHARON M. MARSTELLER -; NO. 13-3432 :2 tttl V. GREGORY A. HANKS M.D. C) ENTRY OF APPEARANCE TO THE PROTHONOTARY: Kindly enter an appearance on behalf of Defendant, Gregory A. Hanks, M.D., in the above-captioned matter. GE N, G 'LAGHER& MURTAGH BY: John P. Shusted #44675 shustedigggmfirm.com Chilton G. Goebel #92118 goebelcgggmfirm.com The Bellevue, Suite 500 200 S. Broad Street Philadelphia, PA 19102 (215) 545-7700 Attorneys for Defendant, Gregory A. Hanks, M.D. 1084037_1 To the herein PL INTIFF you are hereby notified to plead to the enclosed W MATTER within 20 days of service fQ Il( TA thereof or a de tjudgmerlt ay be entered against you. John P.Shuste t'���` i �� COU Attorney Gregory f nks fM a, t P� 5 �/A lfll r}j GERMAN, GALLAGHER & MURTAGH Attorney for: Defendant, BY: John P. Shusted Gregory Hanks, M.D. sh usted inggmfirm.com IDENTIFICATION NO. 44675 THE BELLEVUE, FIFTH FLOOR 200 S. BROAD STREET PHILADELPHIA,PA 19102 (215) 875-4037 ROBERT M. MARSTELLER and : IN THE COURT OF COMMON PLEAS SHARON M. MARSTELLER, : CUMBERLAND COUNTY, PA Plaintiffs : NO. 13-3432 CIVIL V. : MEDICAL PROFESSIONAL LIABILITY ACTION GREGORY HANKS, M.D. Defendant ANSWER TO PLAINTIFFS' COMPLAINT OF DEFENDANT GREGORY HANKS, M.D. WITH NEW MATTER AND NOW, comes Defendant, Gregory Hanks, M.D., by and through his attorneys, German, Gallagher and Murtagh, P.C., and file an Answer to the Plaintiffs' Complaint with New Matter. PARTIES 1. Denied. After reasonable investigation answering defendant is without knowledge or information sufficient to form a belief as to the truth or accuracy of the averments contained in paragraph 1 of plaintiffs' Complaint. 1 1083648_I.docx i 2. Admitted in part; denied in part. It is admitted only that Dr. Hanks is a physician licensed to practice;medicine in the Commonwealth of Pennsylvania. All other allegations are denied and strict proof thereof is demanded at trial. FACTS 3.4. Denied. These allegations and averments are denied generally pursuant to Pennsylvania Rule of Civil Procedure 1029 (e). By way of further response to the extent these allegations and/or averments are based on plaintiffs' condition and/or course of treatment as set forth in the medical records, the same speak for themselves to the extent these allegations and/or averments are inconsistent with or contrary to said records, the same are denied with strict proof thereof demanded at the time of trial of this matter if material. 5-21. Denied. These allegations and averments are denied generally pursuant to Pennsylvania Rule of Civil Procedure 1029 (e). By way of further response to the extent these allegations and/or averments are based on plaintiffs' condition and/or course of treatment as set forth in the medical records, the same speak for themselves to the extent these allegations and/or averments are inconsistent with or contrary to said records, the same are denied with strict proof thereof demanded at the time of trial of this matter if material. Furthermore, answering defendant denies any and all allegations of negligence and/or carelessness whether express or implied. Answering defendant acted in accordance with the applicable standard of care at all times material to the allegations contained in plaintiffs' Complaint. ROBERT M. MARSTELLER v. GREGORY HANKS, M.D. t 22. Answering defendant hereby incorporates by reference paragraphs 1 through 21 above as if fully set forth herein at length. 2 1083648_l.docx f (`I 23(a)-(e) Denied. These allegations and averments are denied generally pursuant to Pennsylvania Rule of Civil Procedure 1029 (e). By way of further response, answering defendant denies any and all allegations of negligence and/or carelessness whether express or implied. Answerin g defendant acted in accordance with the applicable standard of care at all times material to the allegations contained in plaintiffs' Complaint. WHEREFORE, answering defendant demands judgment in his favor and against plaintiff together with costs, fees and other such relief as this Honorable Court deems just and equitable under the circumstances. CLAIM I DAMAGES ROBERT M. MARSTELLER V. GREGORY HANKS,M.D. 24. Answering defendant hereby incorporates by reference paragraphs 1 through 23 above as it fully set forth herein at length. 25.-28.Denied. These allegations and averments are denied generally pursuant to Pennsylvania Rule;of Civil Procedure 1029 (e). By way of further response, answering defendant denies any and all allegations of negligence and/or carelessness whether express or implied. Answering defendant acted in accordance with the applicable standard of care at all times material to the allegations contained in plaintiffs' Complaint. To the extent Plaintiff makes allegations concerning damages, strict proof thereof is demanded at the time of trial of this matter, if material.! WHEREFORE, answering defendant demands judgment in his favor and against plaintiff together with costs:, fees and other such relief as this Honorable Court deems just and equitable under the circumstances. ' CLAIM 11 LOSS OF CONSORTIUM SHARON M. MARSTELLER v. GREGORY HANKS,M.D. 29. Answering defendant hereby incorporates by reference paragraphs I through 28 above as if fully set forth herein at length. 30. Denied. These allegations and averments are denied generally pursuant to Pennsylvania Rule of Civil Procedure 1029 (e). By way of further response, answering defendant denies any and all allegations of negligence and/or carelessness whether express or implied. Answering defendant acted in accordance with the applicable standard of care at all times material to the allegations contained in plaintiffs' Complaint. WHEREFORE, answering defendant demands judgment in his favor and against plaintiff together with costs, fees and other such relief as this Honorable Court deems just and equitable under the circumstances. NEW MATTER 31. Answering defendant incorporate by reference their answers to each of the preceding paragraphs of plaintiffs' Complaint as though the same were fully set forth herein at length. 32. Plaintiffs failed to state a cause of action upon which relief can be granted. 33. Plaintiffs' claims are barred in whole, or in part, by a virtue of the doctrine of Contributory Negligence. 34. Plaintiffs' claims are barred in whole, or in part, by the Doctrine of Comparative Negligence, and thus, any claim must be reduced, as a result of his/her comparative negligence. 35. Plaintiffs' claims are barred by the applicable Statute of Limitations. Plaintiffs' claims are barred, in whole, or in part, by the Doctrine of Assumption of the Risk. 36. At all times material hereto, answering defendant provided treatment to the plaintiffs in accordance with the applicable standard of medical care at the time and place of 4 1083648—l.docx treatment, and no conduct of answering defendant herein was the proximate cause of the alleged injuries or damages to the plaintiffs. 37. If answering defendant was negligent in any respect as alleged in the plaintiffs' Complaint, all such allegations being specifically denied, said answering defendant's negligence was passive and the injury sustained by the plaintiffs was the result of an intervening act of a third person or persons which was the superseding cause of the injuries, and therefore, answering defendant are not liable. 38. Plaintiffs' claims are barred and/or limited by the provisions of the Pennsylvania Healthcare Services Malpractice Act, as amended. 39. In accordance with Section 602 of the Healthcare Malpractice Acts, plaintiff shall have no right to recover for any amount which was paid by a public collateral source of compensation or benefits. 40. Pennsylvania Rule of Civil Procedure 238 relating to delay damages is unconstitutional on its face and as applied. 41. Plaintiffs' claims are barred and/or limited by Pennsylvania law and legislation regarding joint and several liability. 42. To the extent that plaintiff alleges issues of informed consent as they apply to the informed consent doctrine, the information provided to the plaintiff was adequate, following the accepted standards of care at all times, and satisfied the obligations of defendant Gregory Hanks, M.D. in compliance with Pennsylvania law. 43. That the claims of plaintiffs are barred in whole or in part under the provisions of the Medical Malpractice Act of 1996,No. 135. 44. The plaintiffs' claims and/or request for damages is barred or limited by the Provisions of the Medical Care Availability and Reduction of Error Act(M-CARE),40 P.S. §1303.101, et seq.;as amended. 45. Any award given the plaintiffs shall be offset by any public collateral source of compensation or benefits pursuant to §602 of the Health Care Services Malpractice Act and plaintiffs' claims for medical expenses must be reduced by the total amount of any and all medical expenses charged, but not actually paid by or on behalf of plaintiffs. Any amount of medical expenses claimed by plaintiff must be reduced by any expenses that are written off or deducted by any healthcare provider. 5 108364$ l.docx WHEREFORE, defendant, Gregory Hanks, M.D. hereby demands judgment in his favor and against plaintiffs together with costs, fees, and other such relief as this Honorable Court deems just and equitable under the circumstances. I GERMAN GALLAGHER& MURTAGH By: John P. h sted, Atty. Id. No.44675 The B le ue— Suite 500 200S Broad Street Philade phia, PA 19102 (215) 545-7700 Attorney for Defendant Gregory Hanks, M.D. i I I i i i 6 1083648 l.docx VERIFICATION Defendant, Gregory Hanks, M.D., has reviewed the foregoing Answer with New Matter to Plaintiff's Complaint. The same is based upon information furnished to counsel and/or information gathered by counsel in the course of this lawsuit. The language is that of counsel and not of signer. Signer verifies that he has read the Answer with New Matter to Plaintiffs Complaint and that it is true and correct to the best of his knowledge information and belief. To the extent that the contents are that of counsel, signer has relied upon counsel in taking this verification. This verification is made subject to the penalties of 18 Pa.C.S. §4904 relating to unsworn falsification to authorities. Dated: 7/311 3 Grego a s, M.D. 7 1083648_I.docx i CERTIFICATE OF SERVICE The undersigned certifies that on q , 2013, the within Answer with New Matter of Defendant Gregory Hanks, M.D. was for arded to the Court for filing and that the Answer was served upon counsel of record listed below via U.S. First-Class Mail, postage prepaid. i Richard C. Angino, Esquire ID No. 07140 Angino & Rovner, P.C. 4503 N. Front Street Harrisburg, PA 17110 Counsel for Plaintiffs Jo P. busted i i I i i i 8 1083648 l.docx fl t • _ • I'�fi�� o�L ; ANGINO&ROVNER,P.C. Richard C.Angino,Esquire Attorney ID# : 07140 4503 North Front Street Harrisburg,PA 17110-1708 (717)238-6791 FAX(717)238-5610 Attorneys for Plaintiff(s) E-mail:RCA @ angino-rovner.com ROBERT M. MARSTELLER AND IN THE COURT OF COMMON PLEAS SHARON M. MARSTELLER, CUMBERLAND COUNTY, PA Plaintiffs, NO. 13-3432 Civil V. CIVIL ACTION MEDICAL PROFESSIONAL LIABILITY ACTION GREGORY A. HANKS, M.D. JURY TRIAL DEMANDED Defendant PLAINTIFFS' REPLY TO NEW MATTER OF DEFENDANT, GREGORY HANKS, M.D. AND NOW, come the Plaintiffs, Robert M. Marsteller and Sharon M. Marsteller, Husband and Wife, by and through their attorneys, Angino & Rovner. P.C., and file their Reply to New Matter of Defendant, Gregory Hanks, M.D., stating as follows: NEW MATTER 31. Denied. Plaintiffs incorporate herein by reference the allegations set forth in their Complaint as if stated in full herein. 533178 1 32. Denied. This paragraph is denied as a conclusion of law to which no response is required. To the extent it is deemed to contain averments of fact, the same are specifically denied. 33. Denied. This paragraph is denied as a conclusion of law to which no response is required. To the extent it is deemed to contain averments of fact, the same are specifically denied. By way of further response, it is specifically denied that Plaintiffs were negligent. To the contrary, at all times relevant hereto, Plaintiffs were acting as reasonable and prudent people under the circumstances. 34. Denied. This paragraph is denied as a conclusion of law to which no response is required. To the extent it is deemed to contain averments of fact, the same are specifically denied. By way of further response, it is specifically denied that Plaintiffs were negligent. To the contrary, at all times relevant hereto, Plaintiffs were acting as reasonable and prudent people under the circumstances. 35. Denied. This paragraph is denied as a conclusion of law to which no response is required. To the extent it is deemed to contain averments of fact, the same are specifically denied. By way of further response, it is specifically denied that Plaintiffs assumed the risk of injury or that they had a subjective understanding of the risk involved. 36. Denied. This paragraph is denied as a conclusion of law to which no response is required. To the extent it is deemed to contain averments of fact, the same are specifically denied. 37. Denied. This paragraph is denied as a conclusion of law to which no response is required. To the extent it is deemed to contain averments of fact, the same are specifically denied. By way of further response, it is specifically denied that Plaintiffs' injuries were caused 533178 2 by an intervening act of a third person or a superseding cause. To the contrary, it is alleged that Plaintiffs' injuries are the direct and proximate result of Defendant's professional negligence. 38. Denied. This paragraph is denied as a conclusion of law to which no response is required. To the extent it is deemed to contain averments of fact, the same are specifically denied. 39. Denied. This paragraph is denied as a conclusion of law to which no response is required. To the extent it is deemed to contain averments of fact, the same are specifically denied. 40. Denied. This paragraph is denied as a conclusion of law to which no response is required. To the extent it is deemed to contain averments of fact, the same are specifically denied. 41. Denied. This paragraph is denied as a conclusion of law to which no response is required. To the extent it is deemed to contain averments of fact, the same are specifically denied. 42. Denied. This paragraph is denied as a conclusion of law to which no response is required. To the extent it is deemed to contain averments of fact, the same are specifically denied. 43. Denied. This paragraph is denied as a conclusion of law to which no response is required. To the extent it is deemed to contain averments of fact, the same are specifically denied. 44. Denied. This paragraph is denied as a conclusion of law to which no response is required. To the extent it is deemed to contain averments of fact, the same are specifically denied. 533178 3 45. Denied. This paragraph is denied as a conclusion of law to which no response is required. To the extent it is deemed to contain averments of fact, the same are specifically denied. WHEREFORE, Plaintiffs Robert M. Marsteller and Sharon M. Marsteller, husband and wife, demand judgment in their favor and against Defendant, Gregory Hanks, M.D. in an amount in excess of Fifty Thousand Dollars ($50,000), exclusive of interest and costs, and in excess of any jurisdictional amount requiring compulsory arbitration. Respectfully submitted, ANGINO & ROVNER, P.C. Richar . Angino,Esquire I.D. No. ON 40,111, 4503 N. Fro t"Street Harrisburg; A 17110 (717)2'18-6 x. � 91 I // Date: August ?0 , 2013 unsellor Plaintiffs 533178 4 CERTIFICATE OF SERVICE I, Joan L. Helmuth, an employee of the law firm of Angino & Rovner, P.C., do hereby certify that I am this day serving a true and correct copy of the foregoing PLAINTIFFS' REPLY TO NEW MATTER OF DEFENDANT, GREGORY HANKS, M.D. upon all counsel of record via postage prepaid first class United States mail addressed as follows: John P. Shusted, Esquire GERMAN, GALLAGHER& MURTAGH, P.C. The Bellevue— Suite 500 200 S. Broad Street Philadelphia, PA 19102-3814 Dated: August-"�, 2013 Jo` n f. Helmuth 533178 5 f 3 DEC t.b F t 3. 4 PENNSYLVANIA ANGINO&ROVNER,P.C. Richard C.Angino,Esquire Attorney ID#: 07140 4503 North Front Street Harrisburg,PA 17110-1708 (717)238-6791 FAX(717)238-5610 Attorneys for Plaintiff(s) E-mail:RCA @angino-rovner.com ROBERT M. MARSTELLER and IN THE COURT OF COMMON PLEAS SHARON M. MARSTELLER, CUMBERLAND COUNTY, PA Plaintiffs, NO. 13-3432 Civil v. CIVIL ACTION MEDICAL PROFESSIONAL LIABILITY ACTION GREGORY A. HANKS, M.D. JURY TRIAL DEMANDED Defendant PARTIES' JOINT STIPULATION OF CASE MANAGEMENT DEADLINES AND NOW, come the Parties, by and through their attorneys, and jointly file the foregoing Stipulation of Case Management Deadlines. IT IS HEREBY STIPULATED AND AGREED by and between the above-named parties, that the following case-management deadlines apply in this action: (A) All fact discovery commenced in time to be completed by April 3, 2014; (B) Reports from retained experts due: from Plaintiffs: April 3,2014; from Defendant: May 4,2014; (C) Plaintiffs' rebuttal report due: May 24, 2014; 542169 (D) All potentially dispositive motions filed by July 1, 2014; and (E) The case to be listed for trial during the July 14, 2014 trial term.2 The foregoing Stipulation has been signed by all Parties that have appeared in the instant action. Respectfully submitted, ANGINO & ROVNER, P.C. GERMAN, GALLAGHER&MURTAGH, P.C. 7 Richar• . Angino, Esquire .- ' John P. ' usted, Esquire PA .D.No. 07140 ,-' PA I.D.r o. c 15- L r•.@angino-rovner.c ShustedJ @ggmfirm.com 4503 N. Front Str The Bellevue—Suite 500 Harrisburg, P 7110 200 S. Broad Street (717) 238-' 1 Philadelphia, PA 19102-3814 Attorne or Plaintiffs (215)545-7700 Attorney for Defendant Date: /2/-1-41/3 Date: nit (.?(f3 i 2 In the event the parties' dispositive motions are still pending as of this date, the case shall be listed as soon thereafter as practicable. 542169 CERTIFICATE OF SERVICE I, Joan L. Helmuth, an employee of the law firm of Angino & Rovner, P.C., do hereby certify that I am this day serving a true and correct copy of PARTIES' JOINT STIPULATION OF CASE MANAGEMENT DEADLINES upon all counsel of record via postage prepaid first class United States mail addressed as follows: John P. Shusted, Esquire GERMAN, GALLAGHER& MURTAGH, P.C. The Bellevue— Suite 500 200 S. Broad Street Philadelphia, PA 19102-3814 4v al Jo L. Helmuth, Legal Secretary Date: December 28, 2013 542169 ,. (.3 1- TH[1.17R1)6+11.01•N'CO'..TA1,:t 2013 DEC 31 PH 3: 42 CUt19CRLAND COUNTY PENNSYLVANIA ANGINO&ROVNER,P.C. Richard C.Angino,Esquire Attorney 1D41 : 07140 4503 North Front Street Harrisburg,PA 17110-1708 (717)238-6791 FAX(717)238-5610 Attorneys for Plaintiff(s) E-mail:RCA @angino-rovner.com ROBERT M. MARSTELLER AND IN THE COURT OF COMMON PLEAS SHARON M. MARSTELLER, CUMBERLAND COUNTY, PA Plaintiffs, NO. 13-3432 Civil v. CIVIL ACTION MEDICAL PROFESSIONAL LIABILITY ACTION GREGORY A. HANKS, M.D. JURY TRIAL DEMANDED Defendant ORDER AND NOW, this ,)6 day of , 2013, in consideration of the Parties' Joint Stipulation of Case Management Deadlines, it is hereby ORDERED AND DECREED that the following deadlines will apply in this action: (A) All fact discovery commenced in time to be completed by April 3,2014; (B) Reports from retained experts due: from Plaintiffs: April 3,2014; from Defendant: May 4,2014; (C) Plaintiffs' rebuttal report due: May 24,2014; (D) All potentially dispositive motions filed by June 1,2014; and • (E) The case to be listed for the July 14,2014 trial term.1 SO ORDERED. J. Distribution: Richard C. Angino, Esquiregino &Rovner, P.C., 4503 North Front Street, Harrisburg,PA 17110-1708; Phone: 717-238-6791; Fax: 717-238-5610;Email:violin P. Shusted,Esquire, German, Gallagher&Murtagh,P.C., The Bellevue—Suite 500,200 S. Broad Street, Philadelphia,PA 19102-3814; Phone: 215-545-7700; Fax: 215-732-4182; Email: ShustedJ @ggmfirm.com W3?( 1 C / `, 1 In the event the parties' dispositive motions are still pending as of this date, the case shall be listed as soon thereafter as practicable. 542169 2 i JAN'? P� GSM 1'r'(}CO ANGINO&ROVNER,P.C. Richard C.Angino,Esquire Attorney ID# : 07140 4503 North Front Street Harrisburg,PA 17110-1708 (717)238-6791 FAX(717)?38-5610 Attorneys for Plaintiffs) E-mail: RCA(4)angino-rovner.com ROBERT M. MARSTELLER AND IN THE COURT OF COMMON PLEAS SHARON M. MARSTELLER, CUMBERLAND COUNTY, PA Plaintiffs, NO. 13-3432 Civil V. CIVIL ACTION MEDICAL PROFESSIONAL LIABILITY ACTION GREGORY A. HANKS, M.D. JURY TRIAL DEMANDED Defendant PRAECIPE FOR WITHDRAW OF COUNSEL Please withdraw the appearance of Kristen N. Sinisi, Esquire, as counsel of record for Plaintiff in this action. ANGINO & ROVNER, P.C. r Kriste N. ]si, Esquire Date: January 2014 PA I.D. No. 311381 4503 N. Front Street Harrisburg, PA 17110 (717) 238-6791 ksinisi(( .angino-rovnerxom Counsel for Plaintiff 545139 CERTIFICATE OF SERVICE I, Joan L. Helmuth, an employee of the law firm of Angino & Rovner, P.C., do hereby certify that I am this day serving a true and correct copy of PRAECIPE FOR WITHDRAWAL OF APPEARANCE upon all counsel of record via postage prepaid first class United States mail addressed as follows: John P. Shusted, Esquire GERMAN, GALLAGHER& MURTAGH, P.C. The Bellevue— Suite 500 200 S. Broad Street Philadelphia, PA 19102-3814 Dated: Januaryo,7-, 2014 JoaVL. Helmuth 545139 1 lv71 2014 APR 1 1 PM 2. 1'8 CUHBF: RL A NO CQUN'r``I•' ANGINO •& ROVNER, P.C. Richard C. Angino, Esquire Attorney ID# : 07140 4503 North Front Street Harrisburg, PA 17110 -1708 (717) 238 -6791 FAX (717) 238 -5610 Attorneys for Plaintiff(s) E -mail: RCA @angino - rovner.com ROBERT M. MARSTELLER and SHARON M. MARSTELLER, Plaintiffs, v. GREGORY A. HANKS, M.D. Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PA NO. 13 -3432 Civil CIVIL ACTION MEDICAL PROFESSIONAL LIABILITY ACTION JURY TRIAL DEMANDED PARTIES' REVISED JOINT STIPULATION OF CASE MANAGEMENT DEADLINES AND NOW, come the Parties, by and through their attorneys, and jointly file the foregoing Revised Stipulation of Case Management Deadlines. IT IS HEREBY STIPULATED AND AGREED by and between the above - named parties, that the following case - management deadlines apply in this action: (A) All fact discovery completed by May 27, 2014; (B) Reports from retained experts due: from Plaintiffs: July 8, 2014; from Defendant: August 19, 2014; Plaintiffs' rebuttal report due: September 16, 2014; (C) 542169 (D) All potentially dispositive motions filed by September 16, 2014; and (E) The case to be listed for trial during the October 27, 2014 trial term.2 The foregoing Stipulation has been signed by all Parties that have appeared in the instant action. Respectfully submitted, ANGINO & ROVNER, P.C. Richar C. An ino, Esquire PA I.D. No. 0 -40 rca @angi - r vner.com 4503 N ro Street Harrisburg, ' A 17110 (717) 38 791 Attorn'for Plaintiffs Date: 27065//9 GERMAN, GALLAGHER & MURTAGH, P.C. John P. S d, Esquire PA I.D. o. Shusted @ggmfrm.com The Bellevue — Suite 500 200 S. Broad Street Philadelphia, PA 19102-3814 (215)545 -7700 Attorney for Defendant Date: Gf // 0//Z 2 In the event the parties' dispositive motions are still pending as of this date, the case shall be listed as soon thereafter as practicable. 542169 CERTIFICATE OF SERVICE I, Lisa A. Giknis, an employee of the law firm of Angino & Rovner, P.C., do hereby certify that I am this day serving a true and correct copy of PARTIES' JOINT REVISED STIPULATION OF CASE MANAGEMENT DEADLINES upon all counsel of record via postage prepaid first class United States mail addressed as follows: John P. Shusted, Esquire GERMAN, GALLAGHER & MURTAGH, P.C. The Bellevue — Suite 500 200 S. Broad Street Philadelphia, PA 19102-3814 Date: April 10, 2014 542169 is A. Giknis, Legal Secretary CERTIFICATE PREREQUISITE TO SERVICE OF A SUBPOENA PURSUANT TO RULE 4009.22 In the Matter of: ROBERT MARSTELLER, ET AL. -VS- GREGROY HANKS, M.D. 14- 02075GW Court of Common Pleas Cumberland County No. 13 -3432 As a prerequisite to service of a subpoena for documents and things pursuant to Rule 4009.22 CCLR on behalf of JOHN P. SHUSTED, ESQUIRE Defendant certifies that (1) A notice of intent to serve the subpoena(s) with a copy of the subpoena(s) attached thereto was /were mailed or delivered to each party at least twenty days prior to the date on which the subpoena(s) is /are sought to be served. (2) A copy of the notice of intent, including the proposed subpoena(s), is attached to the certificate. (3) No objection to the subpoena(s) has been received. (4) The subpoena(s) which will be served is /are identical to the subpoena(s) which is /are attached to the notice of intent to serve the subpoena(s). DATE: 4/10/2014 J HN P. SHUSTED, ESQUIRE Counsel for Defendant 2CJ CCLR Center City Legal Reproductions, Inc. 1315 Walnut Street, Suite 601, Philadelphia, PA 19107 (215)732 -1177 fax (215)732 -5637 Online Services www.cclrinc.com ROBERT MARSTELLER, ET AL. vs. GREGROY HANKS, M.D. IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY No. 13 -3432 NOTICE OF INTENT TO SERVE A SUBPOENA TO PRODUCE DOCUMENTS RICHARD ANGINO, ESQUIRE ANGINO & ROVNER, PC 4503 NORTH FRONT STREET HARRISBURG, PA 17110 -1708 Please take notice there has been a request by JOHN P. SHUSTED, ESQUIRE, counsel for the Defendant in the above case for production and copying of records in the possession of (see enclosures). These records pertain to ROBERT MARSTELLER. Enclosed is(are) a copy (copies) of the subpoena(s) to be served on the custodian of such records and also a Counsel Return Page for you to fill out and return to us stating whether you would like to order a copy of the records and whether you have any objections to the production and copying of such records or manner thereof. The fee per location is enclosed on the Counsel Return Page. The subpoena will be sent to the records custodian twenty (20) days from the date of this notice requesting that the records be produced on or before ten (10) days thereafter unless we hear from you to the contrary on the Counsel Return Page. If you state an objection on the Counsel Return Page, we will proceed accordingly. If you require assistance, please contact our office. DATE: April 21, 2014 Enclosures : Copy (copies) of Subpoena(s) Counsel Return Page Center City Legal Reproductions, Inc. 1315 Walnut Street, Suite 601, Philadelphia, PA 19107 (215)732-1177 fax (215)732-5637 Online Services www.cclrinc.com ROBERT MARSTELLER, ET AL. vs. GREGROY HANKS, M.D. CCLR File NO. 14-02075GW COUNSEL RETURN PAGE I have received the Notice of Records Reproduction Request dated 4/21/2014 regarding records in the custody of (see attached subpoena(s)) and respond as follow: (1) COPIES 1 would like a copy of the records in question sent to me, and agree to pay the price noted in the Notice of Records Reproduction Request. (2) I would like copies of X-Rays sent to me. (3) OBJECTION In accordance to rules governing civil procedure a copy of date/time stamped filing needs to be sent to Center City Legal Reproductions prior to 4/10/2014. Failure to do so shall serve as an agreement that the records reproduction service should proceed with the records collection process. yes / no yes / no (4) 1 would like to look at the records at a Center City location before yes / no deciding whether to order a copy. 2014 Copy Fees/Per Location Admihistrative Fee $17.00 Pages 1-20 $.95 Pages 21-60 $.65 Pages 61 & Above $.20 Date: Attorney for plaintiff(s) / defendant(s) RICHARD ANGINO, ESQUIRE ANGINO & ROVNER, PC 4503 NORTH FRONT STREET HARRISBURG, PA 17110-1708 COMMONWEALTH OF PENNSYLVANIA COUNTY OF CUMBERLAND ROBERT MARSTELLER, ET AL Plaintiff . : File No. 13-3432 VS. GREGORY HANKS, M.D. Defendant SUBPOENA TO PRODUCE DOCUMENTS OR THINGS FOR DISCOVERY PURSUANT TO RULE 4009.22 To:THE FAIRFIELD- COMPANY— MEDICAL RECORDS DEPARTMENT (Name of Person or Entity) Within twenty (20) days after service of this subpoena, you are ordered by the court to produce the following documents or things: ** *SEE ATTACHED ADDENDUM * ** at CENTER CITY LEGAL REPRODUCTIONS, INC. (Address) You may deliver or mail legible copies of the documents or produce things requested by this subpoena, together with the certificate of compliance, to the party making this request at the address listed above. " You have the right to seek in advance the reasonable cost of preparing the copies or producing the things sought. If you fail to produce the documents or things required by this subpoena within twenty (20) days after its service, the party serving this subpoena may seek a court order compelling you to comply with it. THIS SUBPOENA WAS ISSUED AT THE REQUEST OF THE FOLLOWING PERSON: NAME: J0j.IN P, SHUSTED, ESQUIRE ADDRESS4QL , iIYCa 1315 Walnut St 601 TPhii e1ph;,, SUPREM Ri, ATTORN� P U P = T Date: Deputy Center City Legal Reproductions, Inc. 1315 Walnut Street, Suite 601, Philadelphia, PA 19107 (215)732 -1177 fax (215)732 -5637 CCLR File No. 14- 02075GW * * * * * * * * * * * * * * * * * * * * * * * * ** ADDENDUM TO SUBPOENA * * * * * * * * * * * * * * * * * * * * * * * * ** To: THE FAIRFIELD COMPANY - MEDICAL RECORDS DEPT Re: ROBERT MARSTELLER ANY AND ALL EMPLOYMENT /PERSONNEL RECORDS, WORKERS' COMP CLAIMS, DATES OF ATTENDANCE, APPLICATIONS, PERFORMANCE RECORDS, DISCIPLINARY RECORDS, REVIEWS, EVALUATIONS, EARNINGS, MEDICAL REPORTS, ETC., PERTAINING TO ROBERT MARSTELLER. ** CERTIFICATION PAGE MUST BE SIGNED AND DATED ** (DOB: 02/23/1963) ANGINO & ROVN ER, P.C. Richard C. Angino, Esquire Attorney ID# : 07140 4503 North Front Street Harrisburg, PA 17110-1708 (717) 238-6791 FAX (717) 238-5610 Attorneys for Plaintiff(s) E-mail: RCA@angino-rovner.com CIF 2914 APR 16 111 ROBERT M. MARSTELLER AND SHARON M. MARSTELLER, Plaintiffs, V. GREGORY A. HANKS, M.D. Defendant AND NOW, this day IN THE THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PA NO. 13-3432 Civil CIVIL ACTION MEDICAL PROFESSIONAL LIABILITY ACTION JURY TRIAL DEMANDED ORDER , 2014, in consideration of the Parties' Revised Joint Stipulation of Case Management Deadlines, it is hereby ORDERED AND DECREED that the following deadlines will apply in this action: (A) All fact discovery completed by May 27, 2014; (B) Reports from retained experts due: from Plaintiffs: July 8, 2014; from Defendant: August 19, 2014; (C) Plaintiffs' rebuttal report due: September 16, 2014; (D) All potentially dispositive motions filed by September 16, 2014; and (E) The case to be listed for trial during the October 27, 2014 trial term.1 SO ORDERED. Distribution: J. Richard C. Angino, Esquire Angino & Rovner, P.C., 4503 North Front Street, Harrisburg; PA 17110-1708; Phone: 717-238-6791; Fax: 717-238-5610; Email: rca angino-rovner.com john P. Shnsted, Esquire, German, Gallagher & Murtagh, P.C., The Bellevue — Suite 500, 200 S. Broad Street, Philadelphia, PA 19102-3814; Phone: 215-545-7700; Fax: 215-732-4182; Email: ShustedJ@ggmfirm.com 1 In the event the parties' dispositive motions are still pending as of this date, the case shall be listed as soon thereafter as practicable. 542169 2 1 t11 PRAECIPE FOR LISTING CASE FOR JURY TRWL"' y 28 (Must be typewritten and submitted in triplicatdj'-;'` r 1 r'�FtI TO THE PROTHONOTARY OF CUMBERLAND COUNTY Please list the following case for a Jury Trial. ------------------------------------------------------------------------------------------------------------------------------- CAPTION OF CASE jentire caption must be stated in full] (check one) ❑■ Civil Action—Law Appeal from arbitration Robert M. Marsteller and (other) Sharon M. Marsteller p (Plaintiff) No. 13-3432 Civil Term VS. The trial list will be called on 9/30/14 Gregory A. Hanks, M.D. and (Defendant) Pretrials will be held on 10/15/14 (Briefs are due 5 days before pretrials) VS. Trials commence on 10/27/14 Indicate the attorney who will try case for the party who files this praecipe: Richard C. Angino, Esq. Indicate trial counsel for other parties if known: John P. Shusted, Esq. This case is ready for trial. Signed: Print Name: is r . Angino Date: 8/20/2014 Attorney for,Aa/tiffs ( 936,431 �' '-�10 3sa CERTIFICATE OF SERVICE I, Lisa A. Giknis, an employee of the law firm of Angino & Lutz, P.C., do hereby certify that I am this day serving a true and correct copy of a Praecipe to List Case for Trial upon all counsel of record via postage prepaid first class United States mail addressed as follows: John P. Shusted, Esquire GERMAN, GALLAGHER& MURTAGH, P.C. The Bellevue— Suite 500 200 S. Broad Street Philadelphia, PA 19102-3814 � Li4a A. Giknis Dated: August 20, 2014 528178 LEO -OFFICE PROTHONOTARY 3:38 CUMBERLAND COUNTY PENNSYLVANIA ANGINO & LUTZ, P.C. Richard C. Angino, Esquire Attorney ID# : 07140 4503 North Front Street Harrisburg, PA 17110-1708 (717) 238-6791 FAX (717) 238-5610 Attomeys for Plaintiff(s) E-mail: RCA@anginolutz.com ROBERT M. MARSTELLER AND SHARON M. MARSTELLER, Plaintiffs, v. GREGORY A. HANKS, M.D. Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PA NO. 13-3432 Civil CIVIL ACTION MEDICAL PROFESSIONAL LIABILITY ACTION JURY TRIAL DEMANDED PLAINTIFFS' MOTION IN LIMINE TO LIMIT THE TESTIMONY OF DR. SUZANNE LONG BY PROHIBITING ANY MENTION OF THE TWO SCHOOLS OF THOUGHT DOCTRINE AND NOW, come the Plaintiffs, Robert M. Marsteller and Sharon M. Marsteller, Husband and Wife, by and through their attorneys, Angino & Lutz, P.C., and file the foregoing Motion in Limine and in support thereof, aver as follows: I. Brief Factual Summary On April 28, 2012, Plaintiff Robert Marsteller, a 49 year old male with a very active work and life style, fell while roller blading and injured his lower right leg, sustaining a spiral intra- articular fracture of the right distal tibia with a spiral proximal fibula fracture. Mr. Marsteller was 1 admitted to Holy Spirit Hospital, where his leg was splinted. The following day, Mr. Marsteller underwent a closed reduction and long leg cast application performed by Defendant Hanks at bedside. Dr. Hanks knew from the outset that Mr. Marsteller and his wife recognized a malrotation and called it to Dr. Hanks attention. The malrotation obviously came from the casting procedure. Dr. Hanks disagreed that there was a malrotation and did nothing to address the malrotation. Despite Mr. Marsteller's expressed concern during follow up visits, Dr. Hanks did nothing and did not order a CT scan. After insisting upon a second opinion, Dr. Hanks sent Mr. Marsteller to J. Spence Reid at Hershey Medical Center. Dr. Reid observed the clear malrotation and after a CT scan quantified the malrotation as a 25 to 30 degree external rotation deformity, the accepted standard is 10%. Plaintiffs' expert will clearly testify that flat plate x-rays are notoriously inaccurate in detecting malrotation and malalignment, and cannot be the only criteria relied upon to reach an acceptable clinical result. See Plaintiff expert reports of Gerald D. Hayken, M.D., FAAOS. See Pretrial Memo Exhibits A, B, C. There is no question that there was a malrotation/malalignment of at least 20-30 degrees. Failure to initially obtain a satisfactory reduction of the fracture resulted in a necessary surgery and a prolonged recovery period. Defendant's experts do not dispute Mr. Marsteller's foot was malrotated from the beginning. Defendant's experts do not address the principal issue of this case - the appearance and function of the fractured leg. See Defendants' expert reports, Pretrial Memo Exhibits D and E. 2 II. Two Schools of Thought Doctrine A trial judge is required to charge the jury only on the law which applies to the facts of a particular case. Schaefer v. Stewartstiwn Dev. Co., 436 Pa. Super. 354 (Pa. Super. 1994). Where a defense applies to one claim by the plaintiff, but it does not apply to another, the court must specifically delineate in its charge to the jury the particular claims to which the defense applies. Levine v. Rosen, 532 Pa. 512 (Pa. 1992). Where an instruction to the jury is fundamentally erroneous and "may have been responsible for the verdict," a new trial is warranted. Chanthavong v. Tran., 452 Pa. Super 378 (Pa. Super. 1996). On appeal, the plaintiff bears the burden of proving that the defense has not produced sufficient evidence to warrant a particular instruction, and therefore, that the trial court abused its discretion. Reger v. A.I. Dupont Hosp., 259 F. App'x 499, 501 n.2 (3d Cir. 2008) (citing Tormenia v. First Investors Realty Co., 251 F.3d 128, 136 (3d Cir. 2000)). The two schools of thought doctrine provides a complete defense to a malpractice claim. Jones v. Chidester, 531 Pa. 31, 32 (Pa. 1992); Levine v. Rosen, 532 Pa. 512 (Pa. 1992). It instructs: "Where competent medical authority is divided, a physician will not be held responsible if in the exercise of his judgment he followed a course of treatment advocated by a considerable number of recognized and respected professionals in his given area of expertise." Jones, 531 Pa. at 41 (emphasis added). However, the two schools of thought instruction applies only where sufficient evidence has established that a "considerable number" of recognized and respected professionals subscribe to each school of thought. As clarified in Jones, "[i]t is therefore insufficient to show that there exists a 'small minority' of physicians who agree with the defendant's questioned practice. . . . there must be a 3 considerable number of physicians, recognized and respected in their field, sufficient to create another `school of thought.'" Jones, 531 Pa. at 40. The burden of proving that two schools of thought exists rests on the defendant. Jones, 531 Pa. at 40. The Jones court declined to "place a numerical certainty on what constitutes a `considerable number,' but it did note that the defendant could satisfy his burden by eliciting from the defense expert "the factual reasons to support his claim that there is a considerable number of professionals who agree with the instruction to the jury on the two `schools of thought.' Jones, 531 Pa. at 40-41. The defense experts may satisfy the burden by offering the following types of evidence: medical literature, the experts' own experiences as practitioners, information the experts obtained during their medical training and while attending lectures and other educational programs sponsored by institutions and professional societies. Gala, 552 Pa. at 472-73. However, where the defense experts fail to state on the record that a "considerable number," rather than a small minority, of professionals agree with the treatment administered by the defendant, there exists insufficient evidence to warrant a jury instruction on two schools of thought. See Gala v. Harnilton, 552 Pa. 466, 471 (Pa. 1998). In Tesauro v. Perrige, the Pennsylvania Supreme Court held, "The writings and teachings of one individual are inadequate factual support for the proposition that a considerable number of professionals agree with th[e] treatment." 437 Pa. Super. 620, 627 (Pa. Super. 1994) (finding that where the only evidence the defendant introduced to establish two schools of thought was the writings and teachings of one individual expert, the court's refusal to instruct the jury as to the "two schools of thought" theory was 4 improper); see also Levine v. Rosen, 532 Pa. 512, 519 (Pa. 1992) (noting that the "considerable number" standard was adopted to ensure that an alleged school of thought "reflects the general acceptance of medical authorities" (emphasis added)). But see Reger v. A.I. Dupont Hosp. for Children of the Nemours Fund, 259 F. App's 499, 501-02 (3d Cir. 2008) (holding that sufficient evidence was presented to warrant the judge's two schools of thought charge when multiple defense experts testified that a variety of surgeons adhered to different standards regarding how long the DHCA treatment should last and the temperature to which the body should have cooled). Moreover, where the plaintiff alleges more than one count of negligence, but the defendant has not established that two schools of thought exist as to each count, the court must delineate with specificity in its instructions to the jury the charges to which the "two schools of thought" doctrine applies. Sinclair v. Block, 534 Pa. 563, 572-73 (Pa. 1993). In the current case, there has been no testimony indicating that there exists two schools of thought in regard to the setting of a fracture such as the one Plaintiff suffered in this case. Specifically, Dr. Long does not address the two schools of thought doctrine in her report and, therefore, should not be allowed to testify as to it at trial. Dr. Esterhai does state in his report that "there is more than one school of thought in the Orthopaedic community on these treatment options (treating patient conservatively versus immediate surgical revision)." However, Plaintiff does not contend that Dr. Hanks was negligent in his selection of a treatment option but that, the option selected was carried out negligently. The two schools of thought referred to by Dr. Esterhai are irrelevant and inadmissible because they are not at issue in this case. What is at issue is the negligence 5 falling below the standard of care in the setting of break by improperly casting with mal rotation, the failure to recognize the error, refusal to perform a CAT scan when brought to Dr. Hank's attention, and the reliance on flat plate X rays which have been shown to be notoriously unreliable. Neither defense expert's report addresses these facts which are at issue in this case, not the point Dr. Esterhai focuses on of whether Dr. Hanks should have followed conservative treatment or elected to perform immediate surgical intervention. Finally, Dr. Long's report addresses facts and information that occurred after the negligent casting that was performed in this case. Because those events referenced happened after the negligent act, they are irrelevant and should also be excluded at trial. Therefore, for the reasons stated above, Plaintiff respectfully requests this Honorable Court to exclude any testimony regarding the above mentioned matters. WHEREFORE, Plaintiffs, Robert M. Marsteller and Sharon M. Marsteller, Husband and Wife, respectfully request that Your Honorable Court grant Plaintiff's Motion in Limine. Date: October F, 2014 A5/ 6 Respectfully submitted, ANGINO & LUTZ, P.C. Richard C. Angino, Esquire PA I.D. No. 07140 4503 N. Front Street Harrisburg, PA 17110 (717) 238-6791 rca@anginolutz.com Attorney for Plaintiff CERTIFICATE OF SERVICE I, Lisa Giknis, an employee of the law firm of Angino & Lutz, P.C., do hereby certify that I am this day serving a true and correct copy of Plaintiffs' Motion in Limine to Limit the Testimony of Dr. Suzanne Long by Prohibiting any Mention of the Two Schools of Thought Doctrine upon all counsel of record via postage prepaid first class United States mail addressed as follows: Dated: October 8, 2014 John P. Shusted, Esquire GERMAN, GALLAGHER & MURTAGH, P.C. The Bellevue - Suite 500 200 S. Broad Street Philadelphia, PA 191.02-3814 FILED 0FFICE l :�„ THE PROTHON ► »Rt 2fitt QCT - 8 PN. 3:;3B CUt1sERLANO 'COUNTY PENNSYLVANIA ANGINO & LUTZ, P.C. Richard C. Angino, Esquire Attorney ID# : 07140 4503 North Front Street Harrisburg, PA 17110-1708 (717) 238-6791 FAX (717) 238-5610 Attorneys for Plaintiff(s) E-mail: RCA@anginolutz.com ROBERT M. MARSTELLER AND SHARON M. MARSTELLER, Plaintiffs, v. GREGORY A. HANKS, M.D. Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PA NO. 13-3432 Civil CIVIL ACTION MEDICAL PROFESSIONAL LIABILITY ACTION JURY TRIAL DEMANDED PLAINTIFFS' MOTION IN LIMINE TO LIMIT THE TESTIMONY OF DR. JOHN ESTERHAI BY PROHIBITING ANY MENTION OF THE TWO SCHOOLS OF THOUGHT DOCTRINE AND NOW, come the Plaintiffs, Robert M. Marsteller and Sharon M. Marsteller, Husband and Wife, by and through their attorneys, Angino & Lutz, P.C., and file the foregoing Motion in Limine and in support thereof, aver as follows: I. Brief Factual Summary On April 28, 2012, Plaintiff Robert Marsteller, a 49 year old male with a very active work and life style, fell while roller blading and injured his lower right leg, sustaining a spiral intra-articular fracture of the right distal tibia with a spiral proximal fibula fracture. Mr. 1 Marsteller was admitted to Holy Spirit Hospital, where his leg was splinted. The following day, Mr. Marsteller underwent a closed reduction and long leg. cast application performed by Defendant Hanks at bedside. Dr. Hanks knew from the outset that Mr. Marsteller and his wife recognized a malrotation and called it to Dr. Hanks attention. The malrotation obviously came from the casting procedure. Dr. Hanks disagreed that there was a malrotation and did nothing to address the malrotation. Despite Mr. Marsteller's expressed concern during follow up visits, Dr. Hanks did nothing and did not order a CT scan. After insisting upon a second opinion, Dr. Hanks sent Mr. Marsteller to J. Spence Reid at Hershey Medical Center. Dr. Reid observed the clear mairotation and after a CT scan quantified the malrotation as a 25 to 30 degree external rotation deformity, the accepted standard is 10%. Plaintiffs' expert will clearly testify that flat plate x-rays are notoriously inaccurate in detecting malrotation and malalignment, and cannot be the only criteria relied upon to reach an acceptable clinical result. See Plaintiff expert reports of Gerald D. Hayken, M.D., FAAOS. See Pretrial Memo Exhibits A, B, C. There is no question that there was a malrotation/malalignment of at least 20-30 degrees. Failure to initially obtain a satisfactory reduction of the fracture resulted in a necessary surgery and a prolonged recovery period. Defendant's experts do not dispute Mr. Marsteller's foot was malrotated from the beginning. Defendant's experts do not address the principal issue of this case - the appearance and function of the fractured leg. See Defendants' expert reports, Pretrial Memo Exhibits D and E. 2 II. Limitation of Testimony of Dr. John Esterhai as an Expert Witness A trial judge is required to charge the jury only on the law which applies to the facts of a particular case. Schaefer v. Stewartstiwn_Dev. Co., 436 Pa. Super. 354 (Pa. Super. 1994). Where a defense applies to one claim by the plaintiff, but it does not apply to another, the court must specifically delineate in its charge to the jury the particular claims to which the defense applies. Levine v. Rosen, 532 Pa. 512 (Pa. 1992). Where an instruction to the jury is fundamentally erroneous and "may have been responsible for the verdict," a new trial is warranted. Chanthavong v. Tran., 452 Pa. Super. 378 (Pa. Super. 1996). On appeal, the plaintiff bears the burden of proving that the defense has not produced sufficient evidence to warrant a particular instruction, and therefore, that the trial court abused its discretion. Reger v. A.I. Dupont Hosp., 259 F. App'x 499, 501 n.2 (3d Cir. 2008) (citing Tormenia v. First Investors Realty Co., 251 F.3d 128, 136 (3d Cir. 2000)). The two schools of thought doctrine provides a complete defense to a malpractice claim. Jones v. Chidester, 531 Pa. 31, 32 (Pa. 1992); Levine v. Rosen, 532 Pa. 512 (Pa. 1992). It instructs: "Where competent medical authority is divided, a physician will not be held responsible if in the exercise of his judgment he followed a course of treatment advocated by a considerable number of recognized and respected professionals in his given area of expertise." Jones, 531 Pa. at 41 (emphasis added). However, the two schools of thought instruction applies only where sufficient evidence has established that a "considerable number" of recognized and respected professionals subscribe to each school of thought. As clarified in Jones, "[i]t is therefore insufficient to show that there exists a 'small minority' of physicians who agree with the defendant's questioned practice. . . . there must be a considerable number of physicians, recognized and respected in their field, sufficient to create another 'school of thought." Jones, 531 Pa. at 40. The burden of proving that two schools of thought exists rests on the defendant. Jones, 531 Pa. at 40. The Jones court declined to "place a numerical certainty on what constitutes a 'considerable number," but it did note that the defendant could satisfy his burden by eliciting from the defense expert "the factual reasons to support his claim that there is a considerable number of professionals who agree with the instruction to the jury on the two 'schools of thought." Jones, 531 Pa. at 40-41. The defense experts may satisfy the burden by offering the following types of evidence: medical literature, the experts' own experiences as practitioners, information the experts obtained during their medical training and while attending lectures and other educational programs sponsored by institutions and professional societies. Gala, 552 Pa. at 472-73. However, where the defense experts fail to state on the record that a "considerable number," rather than a small minority, of professionals agree with the treatment administered by the defendant, there exists insufficient evidence to warrant a jury instruction on two schools of thought. See Gala v. Hamilton, 552 Pa. 466, 471 (Pa. 1998). In Tesauro v., Perrige, the Pennsylvania Supreme Court held, "The writings and teachings of one individual are inadequate factual support for the proposition that a considerable number of professionals agree with th[e] treatment." 437 Pa. Super. 620, 627 (Pa. Super. 1994) (finding that where the only evidence the defendant introduced to establish two schools of thought was the writings and teachings of one individual expert, the court's refusal to instruct the jury as to the "two schools of thought" theory was 4 improper); see also Levine v. Rosen, 532 Pa. 512, 519 (Pa. 1992) (noting that the "considerable number" standard was adopted to ensure that an alleged school of thought "reflects the general acceptance of medical authorities" (emphasis added)). But see Reger v. A.I. Dupont Hosp. for Children of the Nemours Fund, 259 F. App's 499, 501-02 (3d Cir. 2008) (holding that sufficient evidence was presented to warrant the judge's two schools of thought charge when multiple defense experts testified that a variety of surgeons adhered to different standards regarding how long the DHCA treatment should last and the temperature to which the body should have cooled). Moreover, where the plaintiff alleges more than one count of negligence, but the defendant has not established that two schools of thought exist as to each count, the court must delineate with specificity in its instructions to the jury the charges to which the "two schools of thought" doctrine applies. Sinclair v. Block, 534 Pa. 563, 572-73 (Pa. 1993). In the current case, there has been no testimony indicating that there exists two schools of thought in regard to the setting of a fracture such as the one Plaintiff suffered in this case. Specifically, Dr. Esterhai states in his report that "there is more than one school of thought in the Orthopaedic community on these treatment options (treating patient conservatively versus immediate surgical revision)." However, Plaintiff does not contend that Dr. Hanks was negligent in his selection of a treatment option but that, the option selected was carried out negligently. The two schools of thought referred to by Dr. Esterhai are irrelevant and inadmissible because they are not at issue in this case. What is at issue is the negligence falling below the standard of care in the setting of break by improperly casting with mal rotation, the failure to recognize the error, refusal to perform 5 a CAT scan when brought to Dr. Hank's attention, and the reliance on flat plate X rays which have been shown to be notoriously unreliable. Neither defense expert's report addresses these facts which are at issue in this case, not the point Dr. Esterhai focuses on of whether Dr. Hanks should have followed conservative treatment or elected to perfoiin immediate surgical intervention. Therefore, for the reasons stated above, Plaintiff respectfully requests this Honorable Court to exclude any testimony that would refer to the two schools of thought doctrine as it is not applicable to this case. Finally, Dr. Esterhai's report addresses facts and information that occurred after the negligent casting that was performed in this case. Because those events referenced happened after the negligent act, they are irrelevant and should also be excluded at trial Therefore, for the reasons stated above, Plaintiff respectfully requests this Honorable Court to exclude any testimony regarding the above mentioned matters. WHEREFORE, Plaintiffs, Robert M. Marsteller and Sharon M. Marsteller, Husband and Wife, respectfully request that Your Honorable Court grant Plaintiff's Motion in Limine. Date: October , 2014 Respectfully submitted, ANGINO & LUTZ, P.C. 6 Richard C. Angino, Esquire PA I.D. No. 07140 4503 N. Front Street Harrisburg, PA 17110 (717) 238-6791 rca@anginolutz.com Attorney for Plaintiff CERTIFICATE OF SERVICE I, Lisa Giknis, an employee of the law firm of Angino & Lutz, P.C., do hereby certify that I am this day serving a true and correct copy of Plaintiffs' Motion In Limine to Limit the Testimony of Dr. John Esterhai by Prohibiting any Mention of the Two Schools of Thought Doctrine upon all counsel of record via postage prepaid first class United States mail addressed as follows: Dated: October 8, 2014 John P. Shusted, Esquire GERMAN, GALLAGHER & MURTAGH, P.C. The Bellevue — Suite 500 200 S. Broad Street Philadelphia, PA 19102-3814 FILED -OFFICE OF THE PROTHONOTARY 2014 OCT 4 PH 3: 37 CUMBERLAND COUNTY PENNSYLVANIA ANGINO & LUTZ, P.C. Richard C. Angino, Esquire Attorney ID# : 07140 4503 North Front Street Harrisburg, PA 17110-1708 (717) 238-6791 FAX (717) 238-5610 Attorneys for Plaintiff(s) E-mail: RCA@anginolutz.com ROBERT M. MARSTELLER AND SHARON M. MARSTELLER, Plaintiffs, v. GREGORY A. HANKS, M.D. Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PA NO. 13-3432 Civil CIVIL ACTION MEDICAL PROFESSIONAL LIABILITY ACTION JURY TRIAL DEMANDED PLAINTIFFS' MOTION IN LIMINE TO LIMIT THE TESTIMONY OF DR. SUZANNE LONG BY PROHIBITING HER TESTIFYING AS TO THE STANDARD OF CARE OF AN ORTHOPEDIC SURGEON AND NOW, come the Plaintiffs, Robert M. Marsteller and Sharon M. Marsteller, Husband and Wife, by and through their attorneys, Angino & Lutz, P.C., and file the foregoing Motion in Limine and in support thereof, aver as follows: I. Brief Factual Summary On April 28, 2012, Plaintiff Robert Marsteller, a 49 year old male with a very active work and life style, fell while roller blading and injured his lower right leg, sustaining a spiral intra-articular fracture of the right distal tibia with a spiral proximal fibula fracture. Mr. Marsteller was admitted to Holy Spirit Hospital, where his leg was splinted. The following day, Mr. Marsteller underwent a closed reduction and long leg cast application performed by Defendant Hanks at bedside. Dr. Hanks knew from the outset that Mr. Marsteller and his wife recognized a malrotation and called it to Dr. Hanks attention. The malrotation obviously came from the easting procedure. Dr. Hanks disagreed that there was a malrotation and did nothing to address the malrotation. Despite Mr. Marsteller's expressed concern during follow up visits, Dr. Hanks did nothing and did not order a CT scan. After insisting upon a second opinion, Dr. Hanks sent Mr. Marsteller to J. Spence Reid at Hershey Medical Center. Dr. Reid observed the clear malrotation and after a CT scan quantified the malrotation as a 25 to 30 degree external rotation deformity, the accepted standard is 10%. Plaintiffs' expert will clearly testify that flat plate x-rays are notoriously inaccurate in detecting malrotation and malalignment, and cannot be the only criteria relied upon to reach an acceptable clinical result. See Plaintiff expert reports of Gerald D. Hayken, M.D., FAAOS. See Pretrial Memo Exhibits A, B, C. There is no question that there was a malrotation/malalignment of at least 20-30 degrees. Failure to initially obtain a satisfactory reduction of the fracture resulted in a necessary surgery and a prolonged recovery period. Defendant's experts do not dispute Mr. Marsteller's foot was malrotated from the beginning. Defendant's experts do not address the principal issue of this case - the appearance and function of the fractured leg. See Defendants' expert reports, Pretrial Memo Exhibits D and E. 2 II. Limitation of Testimony of Dr. Suzanne Long as an Expert Witness A motion in limine is a procedure for obtaining a ruling on the admissibility of evidence prior to or during trial, but before the evidence has been offered. Yacoub v. Lehigh Valley Med. Associates, P.C., 805 A.2d 579, 588 (Pa. Super. 2002). "It is well-settled that the admission of expert testimony is a matter within the sound discretion of the trial court, whose decisions will not be reversed unless the court clearly abused that discretion." Pirches v. General Accident Insurance Co., 511 A.2d 1349, 1351 (Pa. Super. 1986). Under the Pennsylvania Rules of Evidence 702[5] "expert testimony is the personal professional opinion of a qualified individual applying specialized knowledge to an issue in the case. If a witness possesses neither experience nor education in the subject matter under investigation, he or she should be found not qualified." Dambacher v. Mallis, 336 Pa. Super. 22, 42-3, 485 A.2d 408, 418-419 (1984), app. dismissed, 508 Pa. 643, 500 A.2d 428 (1985) (collecting cases). Specifically, Dr. Long offers her opinion on Dr. Hanks actions in the ER on April 29, 2012 and subsequent follow up visits. She states that Dr. Hanks "in my opinion, from a musculoskeletal radiology standpoint, there is no deviation from the standard of care by Dr. Hanks' in his interpretation of the imaging...It is not mandated, nor is it the standard of radiologic care, to recommend, or to obtain, a CT scan in the setting presented to Dr. Hanks." However, Dr. Long is not an orthopedic surgeon but rather an expert in musculoskeletal radiology, and she cannot testify as to the standard of care for Dr. Hanks who is an orthopedic surgeon. She cannot testify as to whether or not Dr. Hanks' actions were reasonable. In addition, Dr. Long's report does not address the central issue of the case, that casting Plaintiff's leg in a malrotated position and failing to order a CAT scan violated the standard of care. The report 3 merely addresses the issue of negligence and is, therefore, improper testimony and is inadmissible. "An expert witness may not guess or offer an opinion based on mere conjecture." Collins v. Hand, 431 Pa. 378, 390, 246 A.2d 398, 404 (1968). In addition to the Pennsylvania Rules of Evidence, the Pennsylvania MCARE Act applies to cases of medical professional liability actions against physicians. Freed v. Geisinger Medical Center, 971 A.2d 1202; 1213 n.8 (Pa. 2009). The statute created a more stringent standard for admissibility of medical expert testimony in a medical malpractice action by the imposition of specific additional requirements not present in the common law standard. Vicari v. Spiegel, 989 A.2d 1277, 1280 (Pa. 2010). One of these requirements is where testimony is offered against a board certified physician, the proposed expert must not only satisfy subsections 512(c)(1) (requiring substantial familiarity with the standard of care as it was practiced at the time of the alleged breach) and (c)(2) (requiring the expert to practice either in the same subspecialty or in a subspecialty that follows the same standard or care for the specific care at issue) but is also required by subsection 512 (c)(3) to be board certified in the same specialty. 40 P.S. § 1303.512 (2014). While the specific language of the subsection might appear only to restrict who may testify for a plaintiff, this reading would violate Pennsylvania's Constitution. Legislation cannot make admissible as to one party evidence which would not be admissible as to other parties in the same litigation. Rich Hill Coal Co. v. Bashore, 334 Pa. 449, 485, 7 A.2d 302, 319 (1939). The constitutionality of section 512 may be maintained if courts interpret the provision to apply equally to all testifying experts in a malpractice suit and the MCARE Act has in fact been applied to defense experts. Rose v. Annabi, 934 A.2d 743 (Pa. Super. 2007). 4 Therefore, Dr. Long should not be allowed to testify as to the standard of care of an orthopedic surgeon at trial because she is not board certified as an orthopedic surgeon as is Dr. Hanks. Because she neither has the credentials or certification as an orthopedic surgeon and because she has expressed opinions without basis in fact, she must not be allowed to testify as to the standard of care of an orthopedic surgeon at trial. WHEREFORE, Plaintiffs, Robert M. Marsteller and Sharon M. Marsteller, Husband and Wife, respectfully request that Your Honorable Court grant Plaintiff's Motion in Limine. Respectfully submitted, ANGINO & LUTZ, P.C. Richard C. Angino, Esquir PA I.D. No. 07140 4503 N. Front Street Harrisburg, PA 17110 (717) 238-6791 rca@anginolutz.com Attorney for Plaintiff Date: October , 2014 CERTIFICATE OF SERVICE I, Lisa Giknis, an employee of the law firm of Angino & Lutz, P.C., do hereby certify that I am this day serving a true and correct copy of Plaintiffs' Motion in Limine to Limit the Testimony of Dr. Suzanne Long by Prohibiting her testifying as to the Standard of Care of an Orthopedic Surgeon upon all counsel of record via postage prepaid first class United States mail addressed as follows: Dated: October 8, 2014 557239 John P. Shusted, Esquire GERMAN, GALLAGHER & MURTAGH, P.C. The Bellevue — Suite 500 200 S. Broad Street Philadelphia, PA 19102-3814 1- Ad6W is Giknis ROBERT M. MARSTELLER AND : IN THE COURT OF COMMON PLEAS OF SHARON M. MARSTELLER, : CUMBERLAND COUNTY, PENNSYLVANIA PLAINTIFFS V. GREGORY A. HANKS, M.D., DEFENDANT : 13-3432 CIVIL TERM IN RE: PRETRIAL CONFERENCE A pretrial conference was held on October 15, 2014. In attendance were Plaintiffs' counsel Richard C. Angino, Esquire and defense counsel Zachary J. Duffy, Esquire, appearing on behalf of John P. Shusted, Esquire who will be trying the case. This malpractice case arises from the treatment that Plaintiff Robert Marsteller received from Defendant after suffering a severely broken leg while rollerblading. This trial will require between three and five days and must commence on Monday, October 27, 2014 because Plaintiffs' counsel is unavailable on October 28 due to an appellate argument that cannot be rescheduled. Although this is a relatively simple malpractice case, Plaintiffs have filed three Motions in Limine that should be addressed by the trial judge well in advance of trial. The first two motions seek to preclude two of Defendant's expert witnesses from testifying regarding the "two schools of thought" doctrine. The third motion seeks to preclude the testimony of a defense expert (Dr. Long) as to the applicable standard of care, claiming she is disqualified from doing so by MCARE. Defense counsel did not fully address those matters in his pretrial memorandum and has been directed to file a response promptly. r Settlement negotiations have been non-existent. Plaintiffs have demanded $375,000 and Defendant has made no counteroffer. In the absence of any prospect for settlement, we issue the following directions to counsel and the parties: 1. Each side will be granted four peremptory challenges. 2. The jurors will be permitted to take notes during the evidentiary phase of the trial. 3. Defense counsel shall file a response to Plaintiff's Motions in Limine, submitting a courtesy copy to the court no later than October 17, 2014. 4. The parties will mark and exchange all exhibits prior to trial and provide a binder to the court containing the respective exhibits. 5. In the interest of concluding this trial during the week of October 27, 2014, the parties shall review and refine their respective lists of witnesses and exhibits. 6. Suggested points for charge shall be submitted to the court prior to the start of trial on October 27, 2014. The parties may provide revised requests as issues emerge during trial. By the Court, Albert H. Masland, J. ✓ Richard C. Angino, Esquire For Plaintiffs 4_ r j i ma; o r ,/John P. Shusted, Esquire � jpI15 I C") �rN Zachary J. Duffy, Esquire DINW For Defendant c ' �C-) Court Administrator-by &O 0i1 :salv , r, r I ED O F CE jOF THE PROTHO NOTARY 2014 OCT 20 PH 3: 53 CUMBERLAND COUNTY PENNSYLVANIA ANGINO & LUTZ, P.C. Richard C. Angino, Esquire Attorney ID# : 07140 4503 North Front Street Harrisburg, PA 17110-1708 (717) 238-6791 FAX (717) 238-5610 Attorneys for Plaintiff(s) E-mail: RCA@anginolutz.com ROBERT M. MARSTELLER AND IN THE COURT OF COMMON PLEAS SHARON M. MARSTELLER, CUMBERLAND COUNTY, PA Plaintiffs, NO. 13-3432 Civil v. CIVIL ACTION MEDICAL PROFESSIONAL LIABILITY ACTION GREGORY A. HANKS, M.D. Defendant PLAINTIFFS' RESPONSE TO DEFENDANT'S CROSS MOTION IN LIMINE TO LIMIT THE TESTIMONY OF PLAINTIFFS' EXPERT, GERALD HAYKEN, M.D. AND NOW, come the Plaintiffs, Robert M. Marsteller and Sharon M. Marsteller, Husband and Wife, by and through their attorneys, Angino & Lutz, P.C., and file the foregoing response and aver as follows: On April 28, 2012, Plaintiff Robert Marsteller, a 49 year old male with a very active work and life style, fell while roller blading and injured his lower right leg, sustaining a spiral intra-articular fracture of the right distal tibia with a spiral proximal fibula fracture. Mr. Marsteller was admitted to Holy Spirit Hospital, where his leg was splinted. The following day, Mr. Marsteller underwent a closed reduction and long leg cast application performed by 558210 JURY TRIAL DEMANDED Defendant Hanks at bedside. Plaintiffs attach as Exhibit A the pictures of Mr. Marsteller's cast which will be exhibits at trial. Dr. Hanks knew from the outset that Mr. Marsteller and his wife recognized a malrotation and called it to Dr. Hanks attention. The malrotation obviously came from the casting procedure. Dr. Hanks disagreed that there was a malrotation and did nothing to address the malrotation. See Physical Therapy records attached hereto as Exhibit B. Plaintiffs will call various witnesses, including the physical therapist, the individual who fitted Mr. Marsteller with a brace, certified orthotist, friends, relatives and a fellow worker who will all confirm the malrotation. Despite Mr. Marsteller's expressed concern during follow up visits, Dr. Hanks did nothing and did not order a CT scan. After insisting upon a second opinion, Dr. Hanks sent Mr. Marsteller to J. Spence Reid at Hershey Medical Center. Dr. Reid observed the clear malrotation and after a CT scan quantified the malrotation as a 25 to 30 degree external rotation deformity. The maximum accepted standard is 10%. Defendants filed a motion in limine to limit Plaintiffs' expert Dr. Hayken's testimony by refusing to allow him to testify as to the necessity of performing a CT scan in reference to whether the standard of care of an orthopedic surgeon was breached in this case. A motion in limine is a procedure for obtaining a ruling on the admissibility of evidence prior to or during trial, but before the evidence has been offered. Yacoub v. Lehigh Valley Med. Associates, P.C., 805 A.2d 579, 588 (Pa. Super. 2002). "It is well-settled that the admission of expert testimony is a matter within the sound discretion of the trial court, whose decisions will not be reversed unless the court clearly abused that discretion." Pirches v. General Accident Insurance Co., 511 A.2d 1349, 1351 (Pa. Super. 1986). Plaintiffs expect to call Dr. Hayken at trial to discuss his opinions of the treatment that Mr. Marsteller received and to testify as to the standard of care of an orthopedic surgeon and to 558210 discuss whether it was violated in this case. Dr. Hayken has provided three reports, dated October 20, 2013, July 5, 2014, and September 13, 2014. See Attached Exhibits C, D and E. In the July 5, 2014 report Dr. Hayken states "Pre and post reduction x-rays reveal minimal displacement at the fracture site, however, rotation at the fracture site is more difficult to assess radiographically. This must be done clinically." Dr. Hayken goes on to say "Another way of evaluating rotation is with a CAT scan. The CAT scan ordered by Dr. Reid revealed 20 to 25 degrees of external rotation. The degree of acceptable external rotation deformity is variable in the orthopaedic literature, but most set a limit at 10 to 15 degrees." See Exhibit D. The above discussion reveals that Dr. Hayken believes that x-rays are not a reliable way to evaluate displacement at the fracture site, that it should be evaluated clinically, and that one of the methods in a clinical evaluation is to order a CAT scan, as was done eventually by Dr. Reid. This CAT scan revealed an obviously external rotation that is outside of acceptable levels as described in orthopaedic literature. Dr. Hayken continues to illustrate these facts in his September 13, 2014 letter stating "The rotational deformity has to be assessed visually by inspecting the extremity. Mr. Marsteller noticed the malrotation immediately at the time of the initial reduction and casting. He brought this to Dr. Hanks' attention who relied on the x-ray...I stated in my earlier report that rotation is very difficult to evaluate on x-ray. Dr. Esterhai states that plain x-rays would be expected to show a larger fracture gap than this patient had in the presence of significant rotation of one fracture fragment on the other. This statement illustrates my point exactly. There was significant malrotation clinically that did not show up on x-ray but was visually apparent. A CT scan was necessary to accurately evaluate the rotation in detail." See Exhibit E. The September 13, 2014 report confirms Dr. Hayken's previous statements that a CT scan was necessary in order to perform a full visual evaluation of Mr. Marsteller's fracture rotation. Defendants own expert, Dr. Esterhai, confirms Dr. Hayken's statement in that he admits 558210 that the x-ray should show a larger fracture fragment given Mr. Marsteller's obvious fracture rotation. The fact that his rotation appeared larger visually than it did on the x-ray warrants further in-depth study, a CT scan, as Dr. Hayken suggests. Defendants claim that Dr. Hayken cannot testify as to the necessity of having a CT scan performed in his evaluation of whether the standard of care of an orthopedic surgeon was breached in this case. However, as the excepts from Dr. Hayken's expert reports explained above point out, Dr. Hayken did directly and indirectly refer to the fact that a clinical investigation should have been performed when the x-rays clearly did not show the expected deformities that Mr. Marsteller's obvious fracture rotation suggested. This mandated further visual inquiry in the form of a CT scan. Therefore, Dr. Hayken testifying as to the necessity of ordering a CT scan in his evaluation of whether the standard of care for an orthopedic surgeon was breached is appropriate as it is within the four corners of his report. Therefore, Plaintiffs ask this Honorable Court to allow this testimony at trial unrestricted. WHEREFORE, Plaintiffs, Robert M. Marsteller and Sharon M. Marsteller, Husband and Wife, respectfully request that Your Honorable Court deny Defendants' Cross Motion in Limine. Respectfully submitted, ANGINO & LUTZ, P.C. Date: October 20, 2014 558210 Ric d C(Angino; Esquire PA 1.D 1o. 07/140. 45 Sit N. Front://Street Harrisburg, P@ 17110 (717) 238-691 rca@angiiolutz.com Attorney2for Plaintiff 0A* ,Phy sicalTheraPY Hands that heat. Hearts that care. To J Spence Reid,MD Physical Therapy Evaluation Date of Referral ` •om: June Perry PT Cert MDT 7/9/2012 dated Hospitalization:Yes For Date of IE Hospital From Date: 7/5/2012 Robert Marsteller! 7/12/2012 Hospital To Date:7/7/2012 Primary Diagnosis Malunion of fracture J Date of Onset Institutional Therapy:No Secondary Diagnosis Fracture Tibia and Fibula (closed) 4128/2012 Orientation: Patient's Date of Birth: 12/23/1963 ; Related Surgery: Yes Date of Surgery: 715/2012 SurgicatProcedu s/p tibial cortectomy and Taylor Spacial Brace placement General Health: !Good Allergies: see list Medications: see list Precautions: 1WBAT Summary of Findings/Assessment Patient presents to PT one week s/p right tibial cortectomy and Taylor Spacial Frame placement for correction of malunion tibia with the following problems: pain, right foot edema and discoloration which increases with dependent positioning, decreased AROM and strength right knee and ankle, functional restrictions due to limited WB and recent post-op status, patient c/o apprehension regarding WB and increased pain with increased WB. Patient's goal for PT is to recover full ROM and strength right knee and ankle, restore normal gait pattem and restore normal alignment to tibia. Patient will be instructed in written HEP next session. I certify that Robert Marsteller is under my care for the treatment of Maiunion of fracture. I authorize as medically necessary, the treatment plan outlined above. Periodic re-evaluations of this patient's treatment plan will be performed.by myself at least every 90 days or at more frequent intervals as the patient's condition dictates. Social and/or vocational readjustment servicesl unless specified otherwise, are not medically necessary for this patient. June Perry PT Cert MDT Password Protected Electronic Signatures Central PA Rehabilitation Services 722 Allegheny Street Dauphin, PA 170188902 Phone: (717) 921-2440 Fax: (717) 921-2442 )'LEASE REVIEW, SIGN AND RETURN IN SELF ADDRESSED STAMPED ENVELOPE J Spence Reid,MD Bone & Joint Institute HMC 30 Hope Drive Suite 2400 Hershey, PA 17033-0850 DateofService: 7/12/2012 Time In Time Out 11:20 AM 12:40 PM hls torv/Subiectve Patient is a 49 year old Employed Male electrician presenting as follows. Patient is referred to CPRS for evaluation and treatment s/p right tibial cortectomy and Taylor Spacial Frame placement. Patient sustained spiral fracture to right tibia and right fibula fracture 4/28/12 while rollerblading. He was placed in a cast initially, which was then advanced to walking boot. He became aware of a fairly significant tibial torsion while undergoing outpatient PT. He opted to receive tibial cortectomy and TSF to correct this malunion. His surgery was 7/5/12 and he was hospitalized x 2 nights. He is referred to CPRS for ankle and knee ROM and he is to be WBAT. He is currently using two crutches for ambulation and he states that he is minimally WB at this time. Relevant Past Medical History and Treatment Past Medical History tib/fib fx 4/12 !x-rays Previous Tests/Rx Outcome Tests/Rx Chief Complaints [25 to 30 degree tibial rotation Comments Complaint/ Problem pain, swelling, functional restrictions Pain/Paresthesia Cause Which Side ? Where ? Comments tib/fib fx malunion Right !LE Which Type Side? Where Motion Magnitude Increase Decrease Nature STG Pain LTG Pain Comments Physician: J Spence Reid,MD Patient: Robert Marsteller 409JJ Marsteller0057 Pain Right knee, leg, 1!N[ one ankle /- previous Functional Status weight. bearing, dependent positioning Elevation aching, !numb, !annoying" 3/10 1 Resolve Pain/l0 nronic right LE pain and functional restrictions related to tib/fib fracture and malunion. Obie_ctive... Observation .... STGLength: Assessment I 2 to 4 Weeks LTG Length: 4 to 6 Weeks Observation TSF, pin sites dry, swelling right foot ROM Assessment STG Inspection LTG Inspection Comments Minimal swelling No swelling or right foot, normal discoloration right color foot Which Side ? Type What Motion Right Right Right ROM . Normal Deficit Passive I Knee Flexion 11100 Degrees 11140 Degrees! 40 Degrees Passive 11Knee Extension -5 Degrees i r0 Degrees 1 5 Degrees Actives 1Plantar Flexion 30 Degrees 1 145 Degrees 15 Degrees J 195 Degrees 11140 Degrees; 45 Degrees Right : Active 1[Knee Flexion Right Active (Knee Extension 11-7 Degrees !10 Degrees 1 7 Degrees Right Right Right Active Active Active !Inversion (Eversion Dorsi Flexion 11-10 Degrees:1 135 Degrees 1 45 Degrees 118 Degrees J 0 Degrees 12 Degrees 0 Degrees 1 20 Degrees 1 20 Degrees Strength °Which . „I ' Side? What Motion Strength • Assessment "ankle gross strength 1 1 3- . . Right ;knee gross strength 1 . - 3+ , Right Gait Characteristics STG ROM LTG ROM 1120 Degrees 1 140 Degrees -2.5 Degrees] 0 Degrees 37.5 Degrees 1 45 Degrees 117.5 Degraei 140 Degrees 1-3.5 Degrees 1 0 Degrees 112.5 Degrees] 35 Degrees 114 Degrees 1 20 Degrees 20 Degrees 10 Degrees Comments STG Strength 3+ 4 - LTG Strength Comments Description Minimal WB right LE, using two crutches, attempting to maintain heel strike and rollover with minimal WB. Activities of Daily Living STG Gait Character LTG Gait Character PWB with two crutches, WBAT with two crutches, minimal to no minimal deviations deviations ADL Activity Assistance sleeping tolerance 1 wakes due to pain LEFS LE dressing dependent positioning 14/78 modification due to limited ROM and TSF 1 causes increased right foot !swelling, dusky appearance „ Assessment Physician: J Spence Reid,MD Patient: Robert Marsteller STG ADL decrease episodes of waking to<2x night LTG ADL Comment !resume normal !sleeping patterns >25/80 >40/80 LE dressing with minimal modification LE dressing without modification tolerate dependent positioning up to 15 minutes without increased swelling 409JJ tolerate all dependent positioning, intermittent elevation, w/o swelling Marsteller0058 Activities of Daily Living ADL Activity Assistance ambulation Comments !limited community distances, minimal WB . • Assessment STG ADL !PWB all community distances, two [crutches LTG ADL WBAT all ambulation, two crutches, initiate household distances one crutch Comment Comments.... _... McGill pain questionnaire: 7/78. LEFS: 14/78. Patient will be instructed in written HEP next session. Rehab Potential: Good Within the Context of Goals Plan and Treatment Provided Date of Service: 7/12/2012 CPT Code Description Plan 97001 ; IPT Evaluation 97110 !Therapeutic Exercise 97140 I MManual Therapy Modalities as needed: CP, Estim for neuro -re -ed. Manual therapy techniques to decrease edema, increase mobility and ROM, therapeutic exercises including ROM and stretching, strengthening, functional training, gait training, patient education, HEP. • Units: Time 1 I 30 173.81; 823.82 li 2 I! 30 I 1. it 1 i 15 Frequency: 3x/week Physician: J Spence Reid,MD Patient: Robert Marsteller Duration: 90 Days 409JJ Marsteller0059 Patient N ): 4.tc/dief Patient #: 4/09 - 3-J7 Dx: SfiY/J 11-J 1 Therapist: cJGU( 'Pet - Physician: 144k---t▪ (S Physician F/U Date: sicalTherapy t heal. 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X am si-c' -E.1-...0.-,,,A...1, +N.CA-9- •3; 4A-#2-- ,..„,,,. . . . • - .. ,,.. - , . - - )c.0O3-.1______Q____. g A' -. ,1- Stz---A-4 • L,..t..iA , INit-,s e -2--4:›).c €:•'!e 0...5 ....e_c. . 4. , ' Isji Wy t. E.:8? CPT Codes i Time 30' 3:› . . '3r %-4,0 • 4 o - itiiimil o61 41 ' * (ot 3 '10' - 3 ci • lifk . \ 13 0—..$0111011 90' c---------- Time In:/Time Out: Total Time: Initials: UL," Oi. Precautions: Unchanged NT = Not Performed Today M = Manual Therapy NM = Neuromuscular Reeducation TE Therapeutic Exercise TA TherapeMarstiefier(31)60ait Training Patient Name: Ar(' -6,6 ' .O rb. / Patient #: 1f D Dx: (tom wjk ❑ Gown Pt Position Modalities & Parameters c= 3e.�C.` • Posterior Anterior Lateral Therapist Name & Credentials PRINTED OR TYPED Initials Comments: PhysicatTherapy I Hands that heat. arts that: care Obi. Measure 6-2z •lam Z -g. d 36.8/36.11 C.0.it.4 ° airo �ct2 , 1 cc / 1 120 V./.cg! -5. ik,v,k.. Af. —6 ' ,50 Fe 3Gz. "le Ns,/ 2 g' 9' a.lLw't- LSD ' ii e'f�Piv' ...... L-%-' rv4a. '- ( .Y fj pct . abare� lO ") P.35• wtlr� V 4f( l SK .. -. 1,.E:"FS 7D/60 tic CAA\ 3t 18 BP• HR/RR Height (in.)/Weight (lbs.) BMI . Initials k - RP = Blood Pressure HR = Heart Rate RR = Respiration Rate Videx Patient: Robert Marsteller 409JJ Physician: J Spencil ;id,MD DateofService: 6/22/2012 Time In Time Out 10:00 AM 11:30 AM .i'ubjective Chief Complaints Complaint/ Problem pain, decreased function Cause fall Which Side ? Where ? Comments Right ! !tibia/fibula !per patient report Patient referred to physical therapy post right tibial shaft fracture. Patient stated he fractured his leg on 4/28/12, when he was roller blading with his kids and fell on his right leg. Patient stated x-ray taken on 4/28 showed a spiral fracture of his tibia and he was cast from his hip down to his toes for 5 weeks. Patient stated at 5 weeks the doctor had an orthosis made for him and he was instructed to continue non-weight bearing. Patient stated on 6/21/12 he had two xrays done and they showed the fracture was healing. Patient stated that on that visit the doctor told him he was allowed to begin light weight bearing and could take the cast off at night and for physical therapy. Patient complained of minimal pain mostly when sleeping and when trying to stand on it weakness in right LE and decreased motion in ankle. Patient also is planning to discuss altered ankle alignment with physician. Pain/Paresthesia Which _ Type Side? Where Motion Magnitude Increase Decrease Nature STG Pain :Pain 1.Rg;leg 11None 1 0-4/10nj o [nearing weight 11"sharp, 0-2/10 !weightbear L ring +(tight, land sleeping tingling" 1 Objective Observation LTG Pain 0-1/10 t Comments Observation significant edema right ankle and foot, dusky appearance parent tibial rotation of 15 degrees lateral rotation Assessment STG Inspection Girth Data Presented in Centimeters minimal to moderate edema, improved color. na LTG Inspection Comments minimal to no edema, normal coloration. na !measured with knee flexed in !prone Proximal How Type Joint Disal ? Far? Right Left Difference Edema 1 MT heads !Join ! 27 8 23 6 I 4.2 Edema 1 knee Joint Liner 36.8 36.2 Atrophy 11 knee . , Above i 10 34.0 36.0 Edema 1 ankles, !Joint Line 58.2 52.61. figure 8 "Short and Long Term Goals are stated as the difference between the affected and unaffected side * STG Girth LTG Girth ROM Comments Which Side ? Type What Motion _...._ Right i Passive 1 Right Right Passive ! 11 Active 1 Knee Flexion ROM 193 Degrees Knee Extension Plantar Flexion Right Active Jl Normal -8 Degrees 140 Degrees 1 10 Degrees 18 Degrees Deficit STG ROM LTG ROM Comments 1116.5 Degree 47 Degrees J35 Degrees 1145 Degrees 10 Degrees 1Knee Flexion 1192 Degrees 10_40 Degrees! 148 Degrees -23 Degrees! 0 Degrees 123 Degrees j 112 Degrees j i 5 Degrees j 133 Degrees 18.5 Degrees Eversion 1118 Degrees 1120 Degrees 112 Degrees —1 119 Degrees (120 Degrees Dorsi Flexion I 1-8 Degrees 1 r20 Degrees _128 Degrees 1 6 Degrees 120 Degrees Right 1 Active Knee Extension Right 11 Active Inversion Right 111Ac+vie+vie Right 11 Active 1 1 -4 Degrees 140 Degrees 0 Degrees 40 Degrees 145 Degrees 1116 Degrees -11.5 Degrees 140 Degrees 0 Degrees 35 Degrees Gait Characteristics Deserintinn RTC. (ai+ f_harariar 1 TRrl,e.e..te.}t j� Date Printed: -a rst i i e rut -13.02 Patient: Robert Marsteller 4011.1 Atnbulatine with two crutches. Non-weight bearing right. Activities of Daily Living Physician: J Spent` :id,MD va.a v,.c+ttxuav• l.. 1 u %ata villa* (MAW, Initiate partial weight. bearing Ambulate WHAT with bilateral crutches... right. step through gait. normalized pattern. pattern with. two crutches. ADL Activity LETS .... donntns/Doftng shoes dependent ,positioning Assistance 20/80 ;difficulty due to limited ROM ;causes increased edema and =discoloration :ambulation I ;limited community distances kvith two enuches Comments Assessment STG ADL >30/80.... a donning/doffing ;shoes with minimal i ;difficulty !tolerate dependent ,positioning > l0 ;tninutes prior to rincreased edema !ambulate ;community !distances with two 'crutches LTG ADL >40i80 [LE ADLs without !diliculty ;tolerate dependent positioning > 20 !minutes prior to ;increased edema •initiate household !distance ambulation with !one crutch, VilBAT Comment Comments f:E1=S: 20180. %lcGill pain questionnaire: 3/78: Patient vas instructed in written DEP, Assessment Patient is referred to CPRS 8 weeks sip tibial shall fracture with the following problems: LE pain, edema with dusky appearance right foot. decreased A, PROM right knee and anile, non-weight bearing status due to physician precautions, limited ROM and apprehension regarding pain, decreased functional mobility and difficulty with LE dressing. Patient expressed concern ower: apparent lateral tibial: rotation, is. planning to discuss concerns with physician. Patient's mil for PT is to resume normal activities and achieve improved alignment_ Patient was instructed in written HEP which will be advanced as appropriate. Treatment Provided Date of Service: 6/22/2012 CPT Code Description 97001 PT Evaluation 97110 :Therapeutic Exercise 97140 !!Manual Therapy .. Units: Time 1 30 823.21 Maximum Potential Plan Yes/No Comment No IE completed, report to follow. Thank you for thereferral of this pleasant patient! June Perry PT Cert MDT Password Protected Electronic Signatures Continue with treatment as appropriate and as per plan of care Frequency:3xlweek Duration: 90. Days Date Printed:, Jilond I} gus l x0 2 Mars eiYer b Patient: Robert Marsteller 409JJ Physician: J Spend. Jid,MD DateofService: 6/25/2012 Time In Time Out 9:30 AM 10:30 AM Treatment Provided Date of Service: 6/25/2012 CPT Code Description 97110 Therapeutic Exercise 97140 Manual Therapy Units: 1 Time 15 20 Maximum Potential Plan Yes/No Comment No j ,Patient reports a decrease in swelling aroung his R ankle/foot since his IE. 'Treatment began with manual therapy to decrease soft tissue dysfunction, increase R ankle ROM, decrease swelling and improve patellar mobility. Exercises per flow sheet to increase RLE strength, ROM and NM control. !Patient would benefit from a continued course of Physical Therapy to !achieve all established goals. June Perry PT Cert MDT Kelly D Klinger PTA Password Protected Electronic Signatures Continue with treatment as appropriate and as per plan of care Frequency: 3x/week Duration: 90 Days Date Printedmgclo 3guaush1r3i30A2 Patient: Robert Marsteller 409JJ DateofService: 6/26/2012 Physician: J Spend :id,MD Time In Time Out 9:30 AM 10:40 AM Treatment Provided Date of Service: 6/26/2012 CPT Code Description Units: Time 97110 `Therapeutic Exercise 2 30 97140 ,Manual Therapy 2 30 Maximum Potential Plan Yes/No Comment No E Patient states that he is noticing improvement in toe mobility, ankle plantarflexion and overall edema levels since beginning PT. Retrograde 'massage for edema performed, added STJ joint mobs and general foot mobilization, PROM right ankle. Progressed exercise program as per flow !sheet without complaint. Added weight shifting, BAPs next session. Patient would benefit from a continued course of Physical Therapy to achieve all 'established goals June Perry PT Cert MDT Password Protected Electronic Signatures Continue with treatment as appropriate and as per plan of care Frequency: 3xlweek Duration: 90 Days Date Printed:Marsiell@rb16 2 Patient: Robert Marsteller 409JJ DateofService: 6/28/2012 Physician: J Spenc :id,MD Time In Time Out 9:30 AM 11:00 AM Treatment Provided Date of Service: 6/28/2012 CPT Code Description Units: Time 97110 1Therapeutic Exercise I 3 97140 iManual Therapy 2 40 30 Maximum Potential Plan Yes/No Comment No ; Retrograde massage performed for edema, general joint mobilizations throughout STJ, ankle, forefoot with PROM for stretching right ankle all directions. Added standing dorsiflexion mobilization on step. Initiated weight shifting and gait training for transition to WBAT. Patient currently only performing TTWB due to apprehension and c/o pain distal tibia. Patient states that he had consuh with second orthopedist who recommended surgical correction of mid-tibia lateral rotation, which may be performed as early as next week. Patient would benefit from a continued course of Physical Therapy to achieve all established goals June Perry PT Cert MDT Password Protected Electronic Signatures Continue with treatment as appropriate and as per plan of care Frequency: 3x/week Duration: 90 Days Date PrintedMarslYetrgrUldv2 Patient: Robert Marsteller 408JJ DateofService: 7/2/2012 Physician: J Spenc; iid,MD Time In Time Out 9:35 AM 11:10 AM subjective Robert reports soreness in his R shin. He states that he spoke with a surgeon at Hershey Medical Center this moming. He is scheduled for a procedure to correct his tibial rotation in his RLE this Thursday 7/5/2012. Robert is very frustrated at the abnormal mechanics in his RLE. Pain/Paresthesia Type :Pain Which Side? Where [Right leg Objective Motion Magnitude Increase Decrease Nature 0-4/10 1 try to no weight "sharp, weight bear bearing tight, None STG Pain and sleeping tingling" Girth Data Presented in Centimeters LTG Pain 0-2/10 1 0-1/10 1 Comments Type Edema I I MT heads 1 Joint Line Edema a i knee i Atrophy 11 knee A (_ bove ] 0 35.1 36.0 ; Edema 1 t ankle- i Joint Line 1 5r 63 52.6 figure 8 *Short and Long Term Goals are stated as the difference between the affected and unaffected side Proximal How Joint Mal ? Far? Right 1 25.0 Left 23.6 36.2 Differance 1.4 1 * STG Girth 0..7 0.5 0.5 1.9 LTG Girth Comments ROM j ,Vhich Side ? Type Right 11 Active Right I Active What Motion Plantar Flexion knee Flexion ROM •Normal De 1142 Degrees 145 Degrees 1 1 [100 Degrees1 140 Degrees r40 Degrees cit STG ROM LTG ROM Comments 3 Degrees Right 1 Active Right j j Active Right Right Knee Extension 11-11 Degrees 0 Degrees Inversion J 11 Active 11Eversion 1 Active ;Dorsi Flexion Activities of Daily Living 9 Degrees 35 Degrees 18 Degrees I 120.Degrees 5 Degrees 1.10 Degrees 11 Degrees 26 Degrees 12 Degrees 25 Degrees 43.5 Degrees 1 45 Degrees 120 Degrees 1 140 Degrees -5.5 Degrees 0 Degrees 22 Degrees 1 135 Degrees 19 Degrees 20 Degrees 17.5 Degrees 20 Degrees ADL Activity Assistance donning/Doffing shoes difficulty due to limited ROM dependent positioning [(causes increased edema and discoloration ambulation --Comments limited community distances (with two crutches Assessment STG ADL LTG ADL Comment donning/doffing shoes with minimal difficulty LE ADLs without difficulty tolerate dependent positioning> 10 minutes prior to increased edema ambulate community distances with twc crutches tolerate dependen positioning> 20 minutes prior to increased edema initiate household distance ambulation with one crutch, WBAT Comments Patient completed treatment well without setbacks today. Assessment Date Printed„ Aarsseneh12 Patient: Robert Marsteller 409JJ i Physician: J Spenc! :id,MD MI Mt Patient has objectively made progress this past week with increased AROM RLE and decreased edema as well. He continues to report difficulty/pain when placing weight through his RLE. AROM R ankle progressed as follows: DF -8 degrees last week to -5 degrees today, PF 35 degrees last week to 42 degrees today, INV 2 degrees last week to 9 degrees today and eversion remains at 18 degrees. AROM R knee flexion increased from 92 degrees last week 0 100 degrees today and AROM R knee extension against gravity improved from -23 degrees last week to -11 degrees today. His MT girth improved from .8 cm last week to 25.0 cm today, MT figure 8 improved from 58.2cm last week to 56.3 cm today, mid patella girth increased slightly from 36.8 cm last week to 37.2 cm today and 10 cm above R knee joint line demonstrated increased muscle tone from 34 cm last week to 35.1 cm today. Robert will attend one more PT session prior to his tibial rotation surgery this Thursday. Treatment Provided Date of Service: 7/2/2012 CPT Code Description 97110 Therapeutic Exercise 97140 Manual Therapy Units: 3 2 Time 40 30 Maximum Potential Plan Yes/No Comment No ;Patient would benefit from a continued course of Physical Therapy to ;achieve all established goals. June Perry PT Cert MDT Kefly D Klinger PTA Password Protected Electronic Signatures 0 Continue with treatment as appropriate and as per plan of care Frequency: 3x/week Duration:90 Days Date Printed Atrayergti .13,2W2 Patient: Robert Marsteller 409JJ DateofService: 7/3/2012 Time In Time Out 10:00 AM 11:30 AM Treatment Provided. Date of Service: '7/3/2012 Physician: J Spenc aid,MD CPT Code Description .9711() Therapeutic Exercise -97140 Manual Therapy Units: Time r 3 40 2 30 Maximum Patentee Plan yes/No. Comment No iPatient suites that he is. scheduled to have surgery 715112 for tibial re- alignment, possible heel cord release, Manual therapy techniques to 'decrease edema, increase joint Mobility, PROM right ankle and knee.. ,Discontinue PT due t0 'upcomingsurgery. June Perry PT Ceti MDT_ Protectcdllectronic Signatures v Patient isDischarged from Active Tr. Frequoncy:'3xMeek Duration:90' Days Date Printed: Mond Mars el4`eru 9 Q gusj i t]112 Central >r A Rehabilitation Servic6*; inc To Gregory Hanks,MD From: June Perry PT Cert MDT Related Hospitalization:No Institutional Therapy:No Related Surgery: No Discharge Summary For Robert Marsteller Primary Diagnosis Fracture of tibia & fibula shaft closed Secondary Diagnosis Patient's Date of Birth: 2/23/1963 Date of Referral 6/21/2012 DateoflE 6/22/2012 Date of Onset 4/28/2012 TEAMWORK Discharge Date: 7/3/2012 Summary of Physical Therapy and Progress as of 7/3/2012 Assessment Patient has objectively made progress this past week with increased AROM RLE and decreased edema as well. He continues to report difficulty/pain when placing weight through his RLE. AROM R ankle progressed as follows: DF -8 degrees last week to -5 degrees today, PF 35 degrees last week to 42 degrees today, INV 2 degrees last week to 9 degrees today and eversion remains at 18 degrees. AROM R knee flexion increased from 92 degrees last week to 100 degrees today and AROM R knee extension against gravity improved from -23 degrees last week to -11 degrees today. His MT girth improved from 27.8 cm last week to 25.0 cm today, MT figure 8 improved froni:58.2cm last week to 56.3 cm today, mid patella girth increased slightly from 36.8 cm last week to 37.2 cm today and 10 cm above R Mee joint line demonstrated increased muscle tone from 34 cm last week to 35.1 cm today. Robert will attend one more PT session prior to his tibial rotation surgery this Thuisday. Maximum Potential Plan Yes/No Comment No Patient states that he is scheduled to have surgery 7/5/12 for tibial re- Patient is Discharged from Active Treatment alignment, possible heel cord release. Manual therapy techniques to decrease edema, increase joint mobility, PROM right ankle and lame. Discontinue PT due to upcoming surgery. 1 certify that Robert Marsteller is under my care for the treatment of Fracture of tibia & fibula shaft closed. I authorize as medically necessary, the treatment plan outlined above. Periodic re-evaluations of this patient's treatment plan will be performed by myself at least every 30 days or at more frequent intervals as the patient's condition dictates. Social and/or vocational readjustment services, unless specified otherwise, are not medically necessary for this patient. June Perry PT Cert MDT Password Protected Electronk Signatures Central PA Rehabilitation Services 722 Allegheny Street Dauphin, PA 170188902 Phone: (717) 921-2440 Fax (717) 921-2442 Copy To: Gregory Hanks,MD Orthopedic Institute of Pennsylvania 3399 Trindle Road Camp Hill, PA 17011 PLEASE REVIEW, SIGN AND RETURN IN SELF ADDRESSED STAMPED ENVELOPE Subjective Robert reports soreness in his R shin. He states that he spoke with a surgeon at Hershey Medical Center this morning. He is scheduled for a procedure to correct his tibial rotation in his RLE this Thursday 7/5/2012. Robert is very frustrated at the abnormal mechanics in his RLE. Pain/Paresthesia Which Type Side? Where Motion Magnitude increase Decrease Nature STG Pain LTG Pain Comments Pain Right leg None 0-4/10 try to no weight "sharp, 0-2/10 0-1/10 weight bear bearing tight, and sleeping tingling" --Observation bservation Physician: Gregory Hanks,MD Assessment STG Inspection LTG Inspection Comments Patient Robert Marsteller 409JJ Marsteller0070 significant edema right ankle and foot, dus appearance _ _1 apparent tibial rotation of 15 degrees lateral rotation rth Data Presented in Centimeters minimal to inimal to no moderate edema, - Iedema, normal mproved color. coloration. measured with knee flexed in prone Proximal How Type Joint Distal ? Far? Right Left Differance Edema_ MT heads Joint Line _25.0 23.6 1.4 ... Edema knee_ Joint Line_ _ 37.2 36.2 1.0_ Atrophy _ _ knee — - Above r 10 35.1 36.0 —_ 0.9 Edema ankle- Joint Line 56.3 52.6 3.7 1.9 .. figure 8 *Short and Long Term Goals are stated as the difference between the affected and unaffected side ROM * STG Girth ' 0.7 0.5 0.5 LTG Girth Comments 0.1 0.1 0.1 0.4 Which Side ? Right Type What Motion • ROM Activ_ed Plantar Flexion 42 Degrees Right Normal Deficit STG:ROM LTG ROM Comments I45 Degrees 3 Degrees J 43.5 Degrees 45 Degrees Active Active Active Knee Flexion 100 Degrees 140 Degrees 40 Degrees 120 Degrees 140 Degrees Knee Extension _ -11 Degrees -I r0 Degrees 11 Degrees -5.5 Degrees 0 Degrees Inversion 9 Degrees 1135 Degrees 26 Degrees ( 22 Degrees 35 Degrees 18 Degrees 1 20 Degrees 2 Degrees 1 19 Degrees 2Q Degrees r20 Degrees 25 Degrees 17.5:Degrees 20 Degrees Right Active j Eversion Fight - .. Active. Dorsi Flexion -5 Degrees Gait Characteristics Description STG Gait Character LTG Gait Character rnbulating with two crutches, Non-weight bearing right. Initiate partial weight bearing Ambulate WBAT with bilateral crutches, right, step through gait normalized pattern. pattem with tm.prutches. Activities of Daily Living _ADL Activity Assistance donning/Doffing shoes difficulty due to limited ROM dependent positioning _ causes increased edema and discoloration ambulation Comments limned community distances with two crutches Assessment STG ADL LTG ADL Comment donning/doffmg shoes with minimal difficulty LE ADLs without difficulty tolerate dependent positioning> 10 minutes prior to increased edema ambulate community distances with two crutches tolerate dependent positioning > 20 minutes prior to increased edema initiate household distance ambulation with one crutch, WBAT Comments Patient completed treatment well without setbacks today. Treatment Provided as of Last Trea ment Description Units Time Therapeutic Exercise " 3 Manual Therapy 40 2 30 Physician: Gregory Hanks,MD Patient: Robert Marsteller .409JJ Marsteller0071 To J Spence Reid,MD mom: June Perry PT Cert MDT _ .dated Hospitalization:Yes Hospital From Date: 7/5/2012 PhysicatTherapy Hands that heal. Hearts that care. Physical Therapy Evaluation For Robert Marsteller Date of Referral 7/9/2012 Date of IE 7/12/2012 Hospital To Date:7/7/2012 Date of Onset Primary Diagnosis Malunion of fracture Secondary Diagnosis Fracture Tibia and Fibula (closed) 4/2812012 Surgical Procedu Institutional Therapy:No Orientation: Patients Date of Birth: 2/23/1963 Related Surgery: Yes Date of Surgery: 7/5/2012 s/p tibial cortectomy and Taylor Spacial Brace placement General Health: Good Allergies: see fist Medications: isee list Precautions: *WBAT Summary of Findings/Assessment Patient presents to PT one week s/p right tibial cortectomy and Taylor Spacial Frame placement for correction of malunion tibia with the following problems: pain, right foot edema and discoloration which increases with dependent positioning, decreased AROM and strength right knee and ankle, functional restrictions due to limited WB and recent post-op status, patient c/o apprehension regarding WB and increased pain with increased WB. Patient's goal for PT is to recover full ROM and strength right knee and ankle, restore normal gait pattern and restore normal alignment to tibia. Patient will be instructed in written IMP next session. I certify that Robert Marsteller is under my care for the treatment of Malunion of fracture. I authorize as medically necessary, the treatment plan outlined above. Periodic re-evaluations of this patient's treatment plan will be performed by myself at least every 90 days or at more frequent intervals as the patient's condition dictates. Social and/or vocational readjustment services; unless specified otherwise, are not medically necessary for this patient. June Perry PT Cert MDT Password Protected Electronic Signatures ,: t t Central PA Rehabilitation Services 722 Allegheny Street Dauphin, PA 170188902 Phone: (717) 921-2440 Fax: (717) 921-2442 (PLEASE REVIEW, SIGN AND RETURN IN SELF ADDRESSED STAMPED ENVELOPE J Spence Reid,MD Bone & Joint Institute HMC 30 Hope Drive Suite 2400 Hershey, PA 17033-0850 DateofService: 7/12/2012 Time In Time Out 11:20 AM 12:40 PM History/Sub.ctve_ Patient is a 49 year old Employed Male electrician presenting as follows. Patient is referred to CPRS for evaluation and treatment s/p right tibial cortectomy and Taylor Spacial Frame placement. Patient sustained spiral fracture to right tibia and right fibula fracture 4/28/12 while rollerblading. ,He was placed in a cast initially, which was then advanced to walking boot. He became aware of a fairly significant tibial torsion while undergoing outpatient PT. He opted to receive tibial cortectomy and TSF to correct this malunion. His surgery was 7/5/12 and he was hospitalized x 2 nights. He is referred to CPRS for ankle and knee ROM and he is to be WBAT. He is currently using two crutches for ambulation and he states that he is minimally WB at this time. Relevant Past Medical History and Treatment Past Medical History Previous Tests/Rx :... tib/fib fx 4/12 Ix -rays Chief Complaints Outcome Tests/Rx 25 to 30 degree tibial rotation Comments Complaint/ Problem :pain, swelling, functional restrictions Pain/Paresthesia Cause tib/ftb tic malunion Which Side ? Where ? Comments Right LE Which ()Type Side? Where Physician: ' J Spence Reid,MD Motion.. Magnitude Increase Decrease Nature STG Pain LTG Pain Patient Robert Marsteller 409JJ Comments Marsteller0072 Activities of Daily Living ADL Activity ambulation Comments Assistance limited community distances, minimal WB Assessment STG ADL PWB all community distances, two crutches LTG ADL Comment WBAT all ambulation, two crutches, initiate household distances one crutch Comments McGill pain questionnaire: 7/78. LEFS: 14/78. Patient will be instructed in written HEP next session. Rehab Potential: Good Within the Context of Goals Plan and Treatment Provided Date of Service: 7/12/2012 CPT Code Description 9700 97110 97140 PT Evaluation Therapeutic Exercise Manual Therapy Plan Modalities as needed: CP, Estim for neuro -re -ed. Manual therapy techniques to decrease edema, increase mobility and ROM, therapeutic exercises including ROM and stretching, strengthening, functional training, gait training, patient education, HEP. O Physician: J Spence Reid,MD Units: Time 73.81; 823.82 Frequency: 3x/week Patient Robert Marsteller Duration: 90 Days 409JJ Marsteller0073 Patient: Robert Marsteller 409JJ Physician: J Spend .:id,MD DateofService: 7/12/2012 Time In 11:20 AM jubjective Chief Complaints Time Out 12:40 PM Complaint/ Problem pain, swelling, functional restrictions Cause Which Side ? Where ? Comments tib/fib fx malunion Right 1 1LE Patient is referred to CPRS for evaluation and treatment s/p right tibial cortectomy and Taylor Spacial Frame placement. Patient sustained spiral fracture to right tibia and right fibula fracture 4/28/12 while rollerblading. He was placed in a cast initially, which was then advanced to walking boot. He became aware of a fairly significant tibial torsion while undergoing outpatient PT. He opted to receive tibial cortectomy and TSF to correct this malunion. His surgery was 7/5/12 and he was hospitalized x 2 nights. He is referred to CPRS for ankle and knee ROM and he is to be WBAT. He is currently using two crutches for ambulation and he states that he is minimally WB at this time, Pain/Paresthesia Type Pain Which Side? Where Motion Magnitude Increase Decrease Nature (Elevation I"ach ng, !numb, [annoying" Right ;knee, leg, None 11 5/10 1 weight !ankle J bearing, !dependent 'positioning Objective Observation STG Pain LTG Pain 3/10 1 Resolve Pain/I0 Comments Observation TSF, pin sites dry, swelling right foot 0 ROM Assessment STG Inspection Minimal swelling right foot, normal color LTG Inspection Comments No swelling or discoloration right foot Which Side ? Type What Motion ROM Normal Deficit Right j Passive 1jKnee Flexion 1'100 Degrees11140 Degrees 140 Degrees r Right 11 Passive Right Right Right Right knee Extension 1'-5 Degrees 1110 Degrees 115 Degrees 1 Active J Plantar Flexion .1/P0 Degrees .1.145 Degrees 15 Degrees 11 Active !Knee Flexion Active 11Knee Extension 1 1 Active Inversion Right j Active Eversion Right i1 Activ Strength 95 Degrees 11140 Degrees ;0 Degrees 135 Degrees -7 Degrees -10 Degrees 8 Degrees 1120 Degrees 45 Degrees 17 Degrees 45 Degrees 12 Degrees 10 Degrees 1120 Degrees 1120 Degrees STG ROM LTG ROM 120 Degrees 1 140 Degrees 0 Degrees 45 Degrees -2.5 Degrees 37.5 Degrees 117.5 Degree -3.5 Degrees 12.5 Degrees 114 Degrees 10 Degrees 140 Degrees 0 Degrees 35 Degrees 20 Degrees 120 Degrees Comments Which Side? What Motion Right ! ankle gross strength Right knee gross strength Gait Characteristics Strength Assessment 3- 3+ STG Strength 3+ 147-1 LTG Strength Comments 4 4+ 1, Description Minimal WB right LE, using two crutches, attempting to maintain heel 'like and rollover with minimal WB. Activities of Daily Living STG Gait Character LTG Gait Character PWB with two crutches, minimal deviations WBAT with two crutches, minimal to no deviations Date Printed A Ado tenst18tb�. "p12 Patient: Robert Marsteller 409JJ ADL Activity steeping tolerance dependent1 on Comments Physician: J Spenc aid,MD Assistance Assessment STG ADL ;wakes due to pain _.............. _ _ _ ;14/78 modification due to limited !ROM and TSF causes increased right Poo ;swelling, dusky appearance !I limited commu Eminimal WB _. !decrease episodes o lwakingto<2x =night 1>25/80 !LE dressing with !minimal ;modification ;tolerate dependent ;positioning up to 15 ;minutes without ;increased swelling 1 Sdistanccs, two 'crutches LTG ADL ume normal ceping patterns >40180 #LE dressing f without modification Itoleate all dependent .positioning, iintermittcnt :elevation,_ wio 'swelling WBAT.alt !ambulation, two crutches. initiate !.household distances . Lone crutch Comment Comments McGill pain questionnin written HEP next session. Assessment Patient presents to PT one w.eksip right trbtai cortectomy and Taylor Spacial Frame placement for mtrection of malunion tibia with the following problems: pain: right foot edema and discoloration which increases with dependent positioning, decreased. AROM and strength right knee and ankle, functional ;restrictions due to !;tinted WR and recent post-op status,, patient c/o apprehension regarding W13 and increased pain with increased W13. Patient's goalfor PT is`to recover full :ROM and strength right knee and ankle, restore normal gait pattern and restore normal alignment to tibia. Patient will be instntcled in written HEP next,session:. Treatment Provided Date of Service: 7/12/2012 PT Code Description 97001 PT Evaluation 97110 '.therapeutic 97140 iManual Therapy: Units: Time 30 73.8.1; 823.82 Maximum Potential Plan Yes/No Comment No 11E completed,; report to follow. Thank you for the referral of this pleasant !patient!, June Petry PT Cert MDT Passw fected Electronic. Signatures Continue with treatment as appropriate and as per plan ofeare Frequency: 3xhveek Duration: 90 Days Date Printed: Monday, ..A gus 1 ,.2 2 Marstelieru07h Patient: Robert Marsteller 409.1,1 Physician: J Speno Ad 13 DateofService: 7/17/2012 Time In Time Out 10:00 AM 11:25 AM Treatment Provided Date of Service: 7/17/2012 CPT Code Description Units: Time 97014 ES (Unattended) i 1 15 97110 ;Therapeutic Exercise i 2 30 97140 jManual Therapy 1 1 15 Maximum Potential Plan Yes/No Comment _ No Patient reports some irritation in his distal pins with inversion and eversion, Treatment began with manual therapy to decrease soft tissue dysfunction, increase R ankle ROM as well as improve R patellar mobility and R knee ROM. Exercises to increase RLE strength, ROM and improve the ability to place increased weight throughout his RLE during ambulation. Initiated Russian stimulation today to improve quad/VMO tone/strength. Patient would benefit from a continued course of Physical Therapy to achieve all established goals, Lynn Butterbaugh PT Kelly D Klinger PTA Password Protected Electronic Signatures Continue with treatment as appropriate and as per plan of care Frequency: 3xiweek Duration: 90 Days Date Printed arstelle SO 2 Patient: Robert Marsteller 409JJ DateofService: 7/19/2012 Physician: J Spenc 3id,MD Time In 2:25 PM Time Out 3:35 PM subjective Patient states that he had follow up with surgeon regarding tension rod malfunction. Patient states he is having some difficulty adjusting tension rods as he cannot easily see all of the numbers. Patient states that he is having pain with weight bearing, however, is progressing WB at home using scale. Objective ROM Which Side ? Type What Motion ROM Normal Right j Active i Plantar Flexion 1131 Degrees Right 11 Active Inversion j 0 Degrees 1 [35 Degrees Right 1 Active 1 1Eversion ] 1l5 Degrees 1120 Degrees Right 11 Active 1IDorsi Flexion 1j4 Degrees 1120 Degrees 1 45 Degrees Assessment Deficit 14 Degrees 35 Degrees 15 Degrees STG ROM LTG ROM Comments [38 Degrees 1 1 !17.5 Degrees 117.5 Degrees 1120 Degrees 1 45 Degrees 35 Degrees 16 Degrees 1 I12 Degrees 1120 Degrees 1 Patient progressing well with objective measures of right ankle AROM. Patient demonstrates decreased recruitment during quad setting, Russian stim performed for neuromuscular re-education. Patient progressing WB during standing weight shifts, however, continues to demonstrate decreased rollover ;and early toe off right during gait. reatment Provided Date of Service: 7/19/2012 CPT Code Description 97110 97112 97140 Therapeutic Exercise Neuromusc. re -ed of move,bal&coord. Manual Therapy Maximum Potential Plan Yes/No Comment No j Added tband TKE as patient states that he feels weakness right knee during weight shifting. Decreased rest time during neuro re -ed to 10" per patient preference. Patient would benefit from a continued course of Physical Therapy to achieve all established goals June Perry PT Cert MDT Password Protected Electronic Signatures Continue with treatment as appropriate and as per plan of care Frequency:3x/week Duration: 90 Days Date Printed: Monday, August 13,/012 Marsteller0077 Patient: Robert Marsteller 409JJ DateofService: 7/24/2012 Physician: J SpencL ;id,MD Time In 10:05 AM Time Out 11:25 AM Treatment Provided Date of Service: 7/24/2012 CPT Code Description 97110 Therapeutic Exercise Units: Time 30 97112 Neuromusc. re -ed of.move halt coorcl. i 15 97140 'Manual Therapy 20 Maximum Potential Plan Yes/No Comment No .Patient reports soreness distal pins secondary to recent rotation :gains with ; Continue with treatment as appropriate and as per plan of care 'the hardware. Treatment be tz n'wtth manual therapy to decrease soft tissue ;dysfunction in his R foot' and increase: ROM. R: ankle and R knee. Exercises per flow sheet to increase RLE strength; ROM and nm control. Russian istunulation to improve quatl/VMO tone and facilitate NM re-education. :Patient would benefit from a continued course of Physical Therapy to :achieve all established goals. June Perry .PT Cert MDT • Kelly D Klinger PTA Password Protected Electronic Signatures Frequency: 3x/week Duration: 90 Days Date Printed' Mond y;. gusj1 Q12 Marstelier j$$ Patient Robert Marsteller 4091i DateofService: 7/26/2012 Physician: J Spend Time In Titne Out 1Q:OOAMI 1130 AIVI lubjective 'Patient slates that his leghas been Mott, ore since tension rod re -adjustment last week, states pam puttingrnitihnal %%tight throtigh tight LE ditriug.ambulation. Patient states that he continues to hats .positiOning. limiling his W13 tolerance. Patient states that he is significant LE swelling tvhich worsens with dependent Objective ROM WhjthSide? Type Right .11 Passive • Rig.Pitssiv!, Righi11 Active What Motion !;Xnee Flexion itHnecElciension ;ItelLar flexion ROM Normal Deficit 20 Devvesi 'il40Degrees1120 Degrees 1E -2..1.3e• Degreesh3ecs 140 Degrees reds ) iL 1140 D—igreesYLDegitn_S Right 71 Active te Maim Degr—e—e STG ROM. LTGROM t3ODegrees 140 Degree.s 44 ,cs 7Pegrees 132,5 Degrees .1?.5 DeTreeS 1129,5 Degreej :1.410 Deges •Rjght 11 Active. IKece E?gertsteu. jt0Dgrees it1.0 Dektmi 0 Degrees tp Degree : Right 1 Aetivd ilinversion Li21:?egy? 1 ps.Degreqs- 1E3 DO.,grt,;1 t18-5, Ddgrees .4 t35. Degtets. • 4i-----1 I ActiviiEv..e.rsi00: rig PegrOe.s 1120DegredS It2L3ees 1 114 Drees70Dcgees LilDetyteS i 120 Tiegrees, : III 7' Degrees_r; tr1—'1,..5- &give 7s i LibDegrees7 -71 - . kight li Active irnorsi.Flexion c4ctivities of Daily Living Xctivity ,kicieht 'heath% Comments Assistance Assessment Minintal Weight bettingi dependent pesitioning Itcansts increased right foot. g,4us1y app6rrince Assessment. • STG LIGADL. Comment viith bilateral trioutialike4 g.ait crutches, minimal attetri, VIM"( ! gait deviations I Witli 1 crutch tolerate dependent bilcittcalt Wetting:up 10 1 dpendeM' iminutes wifhOut MOsiti0Ortg,' tincrettseit.Swellim j 1rn1ernttent jswUing (Minn, Wto Patient has lOss:Of A.R01\4 right ankle this week ail ciirectiOnsexcept inversion, most likely due to swelling, difficulty with self-styetching,litnited WR lint* strength , Patleaienprot,ed with objective .of right Imee flexion A. PROM, Patient able to increase weight bearing today as monitored by Fele', able toylace pio siio briefiroti right LE Treatment ProVided. Date of Service: 7/26/201.:2 • • CPT _Code: Description Units: Time 97110 iTherapeutie:Exereise . 3 40 97112 iRcummose: re -ed of movelbaliSteoord.; 1 10 97140 Manual Therapy I 1 IVIa3cirnurn Potential •Plan yes/No CoMMent Date Printed. Monday, AtigUS1:11/042 arsteller007 Patient: Robert Marsteller 409JJ Physician: J SpenO )id,MD r No I !Added seated BAPS, A -P weight shifting in standing, tband ankle x 4 Continue with treatment as appropriate and as per plan of care !directions and knee flexion. Patient would benefit from a continued course of Physical Therapy to achieve all established goals June Perry PT Cert MDT Password Protected Electronic Signatures Frequency: 3x/week Duration: 90 Days Date Printed: Monday, August 13, 2012 Marsteller0080 Patient: Robert Marsteller 409JJ Physician: J Spend,. .id,MD DateofService: 7/31/2012 Time In Time Out 10:00 AM 11:40 AM Treatment Provided Date of Service: 7/31/2012 CPT Code Description 97110 97140 Therapeutic Exercise Manual Therapy Maximum Potential Units: 3 I 2 Time 40 30 Plan Yes/No Comment No i Patient states that he initially felt a lot of burning pain at pin sites prior to session, was apprehensive regarding WB, however, after exercise program and weight shift onto scale, patient was feeling able to initiate gait training with one crutch. Patient was able to ambulate > 20' WBAT with one crutch. Extra time spent on STM and passive stretching due to swelling and capsular tightness. Patient would benefit from a continued course of Physical Therapy to achieve all established goals June Perry PT Cert MDT Password Protected Electronic Signatures Continue with treatment as appropriate and as per plan of care Frequency: 3x/week Duration: 90 Days Date Printed* Mond y, Qpgusjl0]2 Marselllleru �I Patient: Robert Marsteller 409JJ Physician: J Spenc 1id,MD DateofService: 8/2/2012 Time In Time Out 10:15 AM 11:45 AM bubjective Patient states that he had follow up with surgeon who stated that his tib/fib are in good alignment and healing well, Taylor Spacial Frame to remain in place several more weeks. Patient states that swelling right leg and foot remain and continue to restrict movement. Objective Girth Data Presented in Centimeters Proximal How Type Joint Disal ? Far? Right Left Differance * STG Girth Edema 1 figure 8 Joint Line ; 57.2 52 4 T 4.8 1 2.4 L 0.5 LTG Girth Comments *Short and Long Term Goals are stated as the difference between the affected and unaffected side ROM Which Side ? Type What Motion Right 11 Passive ;!Knee Flexion Right i' Passive knee Extension 1 Active 1 Active ROM Normal Deficit j1123 Degrees] 1140 Degrees j 17 Degrees f 3 Degrees '.110 es .13 . i Plantar flexion j 27 Degrees I !45 Degrees !Knee Flexion 11122 Degrees11140 Degrees STG ROM LTG ROM Comments I 131.5 Degree (140 Degrees j 1-1.5 Degrees 1 (0 Degrees 36 Degrees 1 45 Degrees 8 Degrees 1131 Degrees 1 1140 Degrees 1 0 Degrees Right Right Right Active !Knee Extension j1-7 Degrees 1 Right Active I Inversion 0 Degrees 114 Degrees 1135 Degrees Right II Active jjEversion 1 15 Degrees 120 Degrees Right ;Dorsi Flexion Active 4 Degrees Activities of Daily Living 120 Degrees tj- 18 Degrees 7 Degrees 31 Degrees 15 Degrees 16 Degrees -3.5 Degrees ;19.5 Degrees 17.5 Degrees 12 Degrees. 35 Degrees 20 Degrees 20 Degrees ADL Activity Assistance weight bearing ;currently minimal weight bearing Assessment Assessment STG ADL LTG ADL Comment initiating WBAT with 1 PWB with bilateral I !normalized gait one crutch in clinic j crutches, minimal i ,pattern WBAT gait deviations j ;with 1 crutch Patient has regained some of lost ROM last week, improvements in AROM right ankle inversion, right knee flexion and extension. Patient has initiated WBAT in clinic with one crutch, is able to WB > 100# on scale with minimal discomfort, provided that weight is directly over ankle. Treatment Provided Date of Service: 8/2/2012 CPT Code Description 97110 'Therapeutic Exercise 97140 Manual Therapy Maximum Potential Units: Time 3 i 40 2 30_ Plan Yes/No Comment Date Printed: Monday, August 13, 2012 Marsteller0082 Patient: Robert Marsteller 409JJ I No Physician: J spend sid,MD Reviewed gait technique, patient instructed to decrease left step length to avoid right pelvis retraction during mid to terminal stance. Patient would benefit from a continued course of Physical Therapy to achieve all established goals June Perry PT Cert MDT Password Protected Electronic Signatures Continue with treatment as appropriate and as per plan of care Frequency: 3x/week Duration: 90 Days Date Printed: Monday, August 13, 2012 Marsteller0083 Patient: Robert Marsteller 409JJ DateofService: 8/7/2012 Physician: J Spence :id,MD Time In Time Out 10:00 AM 11:20 AM Treatment Provided Date of Service: 8/7/2012 CPT Code 97110 97112 97140 Description Units: Time Therapeutic Exercise 2 I 40 Neuromusc. re -ed of move,bal&coord. 1 10 Manual Therapy f 2 j 30 Maximum Potential Pian Yes/No Comment No j ;Patient states that he remains concerned regarding swelling right LE. Weight ; Continue with treatment as appropriate and as per plan of care bearing progressed today, patient able to bear> 130# through right LE x 'several reps, however, pain increased throughout reps. Patient would benefit pm a continued course of Physical Therapy to achieve all established goals June Perry PT Cert MDT Password Protected Electronic Signatures Frequency: 3x/week Duration: 90 Days Date Printed: Monday, August 13, 2012 Marsteller0084 Patient: Robert Marstelier 409JJ DateofService: 8/9/2012 Physician: J Spenci id,MD Time In 9:25 AM ublective Time Out 10:50 AM Patient expressed concern over swelling in right ankle and throughout calf, however, states that he is slightly better today due to limited dependent positioning thus far today. Patient to discuss concerns about increased "play" in Taylor Spacial frame with surgeon, patient states that he feels "click" with initial weight bearing and when pivoting on right LE. Patient states that pain at fracture site continues to restrict weight bearing right LE. Pain/Paresthesia Which Type Side? Where Motion Pain Right distal 1/3 !tibia Objective 1.1sione gnitude increase Decrease Nature STG Pain LTG Pain -7/101 'weight rest, i 0-4/10 1 0-1/10 bearing elevation Girth Data Presented in Centimeters Comments Type Proximal How Joint Dlsal ? Far? Edema I 1 figure 8 Right Left Difference * STG Girth LTG Girth Comments Joint Line `55.0 52.4 ( 2.6 1.3 1 0.3 J *Short and Long Term Goals are stated as the difference between the affected and unaffected side ROM Which Side ? Type What Motion Right 11 Passive 1Knee Flexion Right i1 Passive Right Right 1 Active 1 Knee Extension Plantar Flexion Active 11Knee Flexion Right 11 Active Right Knee Extension 1 Active 1lnversion ROM 126 Degrees 11140 Degrees 1.1 Degrees -1.10 Degrees j134 Degrees 1 145 Degrees 11126 Degrees 1 1140 Degrees —1'LDegrees 110 Degrees 11 Degrees 1135 Degrees 1 Normal Deficit STG ROM LTG ROM Comments Right 1 Active i1Eversion Right 11 Active 1 Dorsi Flexion 10 Degrees 1 [5 Degrees Activities of Daily Living 120 Degrees 20 Degrees 14 Degrees 1 Degrees 11 Degrees 14 Degrees J 1133 Degrees 11140 Degrees 133 Degrees -0.5 Degrees 39.5 Degrees 140 Degrees 0 Degrees 45 Degrees 14 Degrees 24 Degrees [10 Degrees 15 Degrees -2 Degrees 23 Degrees 15 Degrees 12.5 Degrees 0 Degrees 35 Degrees 20 Degrees 1 20 Degrees ADL Activity weight bearing Assistance currently minimal weight bearing Assessment Assessment STG ADL initiating WBAT with one crutch in clinic PWB with bilateral crutches, minimal gait deviations LTG ADL Comment normalized gait pattern, WBAT with 1 crutch limited by pain ;Patient making improvements this week in edema measurements, due to decreased dependent positioning today. AROM right knee and ankle improved all directions except eversion. Patient is advancing WB in clinic and is able to ambulate short distances with one crutch, WBAT right LE, however, tolerance is limited by pain at fracture/surgery site. Treatment Provided Date of Service: 8/9/2012 CPT Code Description Units: Time 97110 (Therapeutic Exercise 3 1- 40 97140 ;Manual Therapy 1 2 L 30 Date Printed: Monday, August 13, 2012 Marstelier0085 Patient: Robert Marsteller 409JJ Physician: J Spenc( id,MD Maximum Potential Plan Yes/No Comment No Patient declined neuromuscular re -ed today, states that he is having slightly Continue with treatment as appropriate and as per plan of care more pain today during WB and is concemed about increased "play" at TSF. Patient would benefit from a continued course of Physical Therapy to achieve all established goals June Perry PT Cert MDT Password Protected Electronic Signatures Frequency: 3x/week Duration: 90 Days Date Printed: Monday, August 13, 2012 Marsteller0086 Patient: Robert Marsteiier 409JJ Physician: J Spenc( id,MD Date Printed: Monday, August 13, 2012 Marsteller0087 Larchmont Medical Center 204 Ark Road;'Sait •105'- Mount Laurel, NI 08054 October 20, 2013 Richard C. Angina, Esq. Angina -Rower • 4503 North Front Street Harrisburg, PA 17110-1799 RE: Robert Millet Dear Mr. Angmo, Gerald, D.. i:. atyken,16 : ��. FAAOS • ORTHOPAEDIC SURGEON Tel: 856-235-7080 Fax: 856-273-0402 I have been asked to evaluate the Orthopaedic care of Robert Marsteller with regard to the right Tibia and Fibula fracture which he sustained on Apra 28, 2012. In wing so, I reviewed the following records: 1. Holy Spirit Hospital 2. Orthopaedic Institute ofPennsylvania, (OIP ) 3. CPRS Physical Therapy 4. Hershey Medical Center - mon 5. Hershey Medical Center - outpatient records 6. X-rays, initial, from OIP, and pa -operative from Hershey Medical Center 7. Additional records from Mr. Marsteller 8. Post operative photographs of Mr. Marsteller, his leg and his Taylor Spatial Frame Mr. Marsteller injured his right leg wheat he fel while roller bb ding with his son. He was brought to the Emergency Room at Holy Spirit Hospital, splinted and admitted on Apra 28, 2012Bs X-rays at that time revealed a spiral fracture of the right distal tibia with a spiral proximal fibula fracture. On April 29, he =dement a dosed reduction and long leg cast aeon by Gregory A. Hanks, MD. at the bedside . A post reduction X-ray was ordered to cher position and alignment, but the results are not in the hospital record He was seen by the Physical Therapist and instructed in non-weight bearing crutch ambabtion. On May 10, he had a follow-up office visit with Dr. Hanks. Excellent alignment of #ice fracture was noted. He was again seen on May 31,when his cast was removed and he was re x-rayed. Films showed near anatomic alignment, Dr. Hanks' note reds that Mr Marstdlar thought that "there may be a rotational abnormality." Dr. Hanks felt that "it is minimal at best." A Sarmiento fracture b ce was ordered and be was allowed to be toe -touch weight bearing. At the Jude 21, office visit, Dr. Hanks nom that the foot was "slightly ratty rotated compered to his other." The X-ray was noted to be dory. He was progressed to full weight bearing in the brace. Dr. Hanks told him that the external rotation was not going to change and that to correct it would require an osteotomy. On June 27, Mr. Marsteller saw J. Spence Reid, M.D. at the Milton S. Hershey Medical Center for another opinion regarding the external rotation of his right leg. Dr. Reid did note an external rotation deformity of the right leg when compared to the leg. A CT scan was ordered to quantitate the rotational dice between both legs and to evaluate the healing.. The CT scan revealed that there was 20 to 25 degrees of external rotation on the right compared to the left. There was also callus formation at the fracture site. On July 5, Mr. Marsteller underwent a right tibial and fibula osteotomies with application of a Taylor Spatial Frame and coneci'mon of the malunion. Fkoling progressed over time and the frame was removed in the operating room on November 12, 5 months later. I believe that a violation of the standard of care exists in that an adequate reduction of the fracture was not obtained at the time of the initial closed reduction and long leg cast application on Aprll 29, 2012. At the time of closed reduction external rotation of the tibia distal to the fracture site was not corrected. Pre and post reduction x-rays reveal minimal displacement at the fracture site, however, rotation at the fracture site is more difficult to assess radiographically. This mast be done clinically. That is, the position of the foot relative to the knee must be compared to the opposite intact minority and the distal fractured extremity rotated to match. In general, a line projected along the axis of the tibia from the tibial tuberosity through the ankle to the foot should intersect the second We when the foot is m the neutral position. At one month post fracture, the malrotation was noted by the patient during the May 31, 2012 office visit. This was correctable at that time, most likely with minimal intervention, adding little time if any to the recovery, but Dr. Hanks recorded in his note that this was "minimal at best." I believe that correction of the mahotation was necessary to avoid the sequellae which may include a gait disturbance, difficulty nmning, skating and riding a bike, post traumatic arthritis of the knee and/or ankle, which could be painful, and a cosmetically unacceptable appearance.. 1., 2. lberefore, m summary, failure to reduce the fracture adequately and failure to detect an unacceptable degree of mahotaticm and correct it within a reasonable period of time, resulted in a rotational malunion which required surgery and the placement of the Taylor Spatial Frame for the necessary correction. 'This additional treatment added months to his recovery. These °pink= are consisteat with basic principles of Orthopaedic Surgery and based on yews of practice and experience and held to a reasonable degree of Orthopaedic certainty. 1. Rodcwood and Green's Fractures In Adults, Sixth Editkm, Volume Two, p. 2129. Ed. Bucholz R.W., Heckmann, ID., Court -Brown, C., Pub. Lippincott, Williams & Wilkins, 2006. 2. Campbell's Operative Ordwpaedks, Eleventh Edition, Vohmie Three, pp. 3476- 3484 . Edited by Canale, S.T. and Beaty, LH., Mosby . 2008. Gerald D. Haykeal, M.D., FAAOS ORTHOPAEDIC SURGEON Larchmont Medical Center 204 Ark Road, Suite 105 Mount Laurel, NJ 08054 July 5; 2014 Richard C. Angina, Esq. Angino - Romer 4503 North Front Street Hatrisbmg, PA 17110-1799 RE; Robert MatsteIer Dear Mr. Angina, Tel: 856-235-7080 Fax: 856-273-0402 I have been asked to evaluate the Orthopaedic care of Robert Marsteller with regard to the right Tibia and Fibula fracture which he sustained on April 28, 2012. In doing so, I reviewed the following records: 1. Holy Spirit Hospital 2. Orthopaedic Institute of Pennsylvania, (OIP ) 3. CPRS Physical Therapy 4. Hershey Medical Center - bion 5. Hershey Medical Center - outpatient records 6. X-rays, initial, from OIP, and post-operative from Hershey Medical Center 7. Additional zeoords fromz Mr. Moistener 8. Post operative photographs of Mr. Mme, his leg and his Taylor Spatial Frame 9. Deposition of Robert M. Marsteller dated January 28, 2014 10. Deposition of Sharon M. Marsteiler dated January 28, 2014 11. Deposition of Gregory A. Hanks, MD. dated Jamnary 28, 2014 12. Deposition of 3. Spence Reid, MD. dated Apnl 4, 2014 Mr. Marsteller injured his right leg when he fell while roller blading with his'son. He was brought to the Emcrgency Room at Holy Spirit Hospital, splinted and admitted on April 28, 2012.His X-rays at that time revealed a spiral intra-artiailar fracture of the right distal tibia with a spiral proximal fibula fracture. On April 29, he underwent a closed reduction and long leg cast application by Gregory A. Hanks, MD. at the bedside . At the completion of casting, Mr. Marsteller noted that his foot was "angled out". He brought this to the attention of Dr. Hanks at that time who, according to Mrs. Marsteler, who was present at the time, said " Don't wony. We'll get an X-ray and make sure it looks good". A post reduction X-ray was ordered to check position and alppmert, but the results are not in the hospbal record. Dr. Hanks felt that the fracture alignment was stable. Ire was seen by' the kcal Therapist and instructed in non- weight beating cxatbch ambullatica On May 10, he had a follow-up office visit with Dr. Hanks Excellent alignment of the fracture was noted. He was again seen on May 31,when his cast was removed and he was re x-rayed. Films showed near anatomic alignment. Dr. Hanks' note reflects that Mr. Marstellar drought that "there may be a rotational abnormality." Dr. Hanks felt that "it is minimal at best" A Sarmiento fracture brace was ordered and he was allowed to be toe -touch weight bearing. At the June 21, office visit, Dr. Hanks noted that the foot was "slightly externally ally rotated compared to his other." The X-ray was noted to be satisfactory. He was progressed to full weight bearing in the brace. Dr. Hanks told him that the external rotation was not going to change and that to correct it would require an osteotomy. On June 27, Mr. Marsteller saw J. Spence Reid, M.D. at the Milton S. Hershey Medical Center for another opinion regarding the external rotation of his right leg. Dr. Reid did note an external rotation deformity of the right leg when compared to the left A CT scan was ordered to qui the rotational difference between both legs and to evaluate the healing.. The CT scan revealed that there was 20 to 25 degrees of external rotation on the right compared to the leit. There was also callus formation at the fracture site. On July 5, Mr. Marsteller underwent a right tibia and fibula osteotomies with application of a Taylor Spatial Frame and correction of the mahmion. Healing progressed over time and the frame was removed in the operating room on November 12, 5 months bter. I believe that a violation of the standard of care exists in that an adequate reduction of the fracture was not obtained at the time of the initial closed reduction and long leg cast application on April 29, 2012. At the time of closed reduction external relation of the tibia distal to the fracture site was not corrected. This was brought to Dr. Hanks' attention by the patient. Pre and past reduction x-rays reveal minimal displacement at the fracture site, hosvever, rotation at the fracture site is more difficult to assess radiographically. This must be done clinically. That is, the position of the foot relative to the knee must be (=pared to the opposite intact extremity and the distal fractured egremity rotated to match. In general, a line projected along the axis of the tibia from the tibial tuberosity through the ankle to the foot should intersect the second toe when the foot is in the neutral position. Another way of evaluating rotation is with a CAT scan. The CAT scan ordered by Dr. Reid revealed 20 to 25 degrees of external rotation. The degree of acceptable external rotation deformity is variable in the orthopaedic literatme, but most set a limit at 10 to 15 degrees. 1, 2. At one month pat fracture, the malrotation was noted by the patient dining the May 31, 2012 office visit. This was correctable at that time, adding little time if any to the recovery, but Dr. Hanks recorded in his note that this was "minimal at best." I believe that conection of the malrotation was necessary to avoid the sequellae of a rotational mahmion which may imide a gait disturbance, difficulty climbing laddas, difficulty running, skating and riding a bile, post traumatic arthritis of the knee and/or ankle, which mkt be painful, and a cosmetically =acceptable appearance. 1., 2. Since the mahotation was noted at the time of the orig. inal reduction, it would have been simple to carnet at that time by re - reducing the fracture or by simply de-rotadng it try circumferentially cutting the cast and turning the foot. ff these manipulations failed, surgery would have been required Due to the delay in adrhessing the mahotation, surgery to disrupt the healing process and application of the Taylor Spatial Frame prolonged the healing of dds fiacnue from 3 to 4 months to over 8 to 9 months, since the fiame was in place for 5 months. This prolonged recovery caused worry about the status of his job and resulted in log income .When he returned to a field position at his job in February 2013,10 months following bis injury, it was as a foreman rather than as a superintendent, his previous position. Therefore, in cannmary, failure to reduce the fracture adequately and frame to detect an unacceptable degree of malrotation and correct it within a reasonable period of time, resulted in a rotational mahmion which required surgery and the placement of the Taylor Spatial Frame for the necessary correction This additional treatment added months to his recovery, resulting in adthtional morbidity, additional time lost from work, additional lost income and return to work at a lesser positio. n. These opinions are consistent with basic principles of Orthopaedic Surgery and based on years of practice and experience and held to a reasonable degree of Orthopaedic certainty. 1. Rockwood and Green's Fractures In Aduhs, Sixth Edition, Volume Two, p. 2129. Ed. Bucholz Heckmann, ID., Court -Brown, C., Pub. Lippincott, Williams & Wilkins , 2006. 2. Campbell's Operative Orthopaedics, Eleventh Edition, Volume Three, pp. 3476- 3484 . Edited by Canale, S.T. and Beaty, LH., Mosby. 2008. Gerald ) . = ayken, M.D., FAAOS ORTHOPAEDIC SURGEON Larchmont Medical Center 204 Ark Road, Suite 105 Mount Laurel, NJ 08054 September 13, 2014 Richard C. Angino, Esq. 4503 North Front Street Harrisburg, PA 17110-1799 RE: Robert Marsteller v. Gregory Hanks, M.D. Tel: 856-235=7080 Fax: 856-273-0402 Dear Mr. Angina, I have reviewed the defense expert reports authored by John L. Esterhai, Jr., M.D. and Suzanne S. Long, M.D. I would like to make the following comments: In his report, Dr. Esterhai makes the case for treating this fracture with cast immobilization as Dr. Hanks did. In my report, I did not criticize the method of initial treatment that Dr. Hanks chose for Mr. Marsteller. I, too, would have attempted to treat the fracture in the same way. The problem herein arises from the fact that while the treatment method was proper, it was carried out improperly in that the rotational component of this fracture was not corrected.Dr. Hanks" reduction of Mr. Marsteller's fracture was inadequate. The rotational deformity has to be assessed visually by inspecting the extremity. Mr. Marsteller noticed the malrotation immediately at the time of the initial reduction and casting. He brought this to Dr. Hanks' attention who relied on the x-ray and felt that the fracture position was acceptable. I stated in my earlier report that rotation is very difficult to evaluate on x-ray. Dr. Esterhai states that"plain x-rays would be expected to show a larger fracture gap than this patient had in the presence of significant rotation of one fracture fragment on the other." This statement illustrates my point exactly. There was significant malrotation clinically that did not show up on x-ray, but was visually apparent A CT scan was necessary to accurately evaluate the rotation in detail, but was not necessary to see it clinically. Dr. Esterhai states that there was no more than 20 degrees of external rotation of the right tibia compared to the left. The orthopedic literature does not support that 20 degrees of extemal rotation is acceptable, There is also no reason to to suspect that Mr. Marsteller's tibias were not symmetric prior to his injury, as Dr. Esterhai wonders. Dr. Esterhai also opines that had Mr. Marsteller continued his care and rehabilitation with Dr. Hanks, he might have been pleased with his result and implies that he might not have desired surgery.Dr. Reid did offer this option. However, Dr. Reid, in his deposition states that he did not feel that this patient would have been happy with his degree of external rotation based on his life style and activity level, and he indicated this to Mr. Marsteller. Dr. Long, in her report, states than Dr. Hanks' reduction was performed well based on the the appearance of the post -reduction x-rays. But again, she does not consider the appearance of the extremity, which was externally rotated according to Mr. Marsteller. She states that when Mr. Marsteller expressed concem about the rotational abnormality on 6/22/12, he was appropriately referred for a second opinion. I believe,however, that the rotational abnormality was present and apparent from the time of the initial closed reduction and that this could have been corrected at that time with less morbidity to the patient. In summary, the deviation in the standard of care in this case is failure to obtain a satisfactory reduction of the fracture at he time of the initial closed reduction and long Ieg cast application. 1 do not believe that an adequate reduction was performed because the patient noticed the abnormal external rotation immediately .If a re -reduction of the fracture had been attempted and acceptable rotation was not obtainable, then operative treatment could have been considered at that time. Dr. Hanks depended on the x-ray appearance without considering the overall clinical appearance of the fractured Ieg. To quote Dr. Esterhai, "as physicians, we treat patients in dinicai settings, not x-rays, and in the context of all the medical evidence." I do believe that closed reduction and long leg cast immobilization was an acceptable method of treatment but its success depends on the ability to obtain a satisfactory reduction of the fracture, which was not accomplished. At the time that he was referred to Dr. Reid, surgery was necessary for correction due to the amount of healing that had already occurred. This obviously prolonged his recovery. h4P CERTIFICATE OF SERVICE I, Lisa Giknis, an employee of the law firm of Angino & Lutz, P.C., do hereby certify that I am this day serving a true and correct copy of Plaintiffs' Response to Defendant's Cross Motion in Limine to Limit the Testimony of Plaintiffs' Expert, Gerald Hayken, M.D. to all counsel of record via email and via postage prepaid first class United States mail addressed as follows: John P. Shusted, Esquire GERMAN, GALLAGHER & MURTAGH, P.C. The Bellevue — Suite 500 200 S. Broad Street Philadelphia, PA 19102-3814 Dated: October 20, 2014 558210 PILED -OFFIC'' OF THE PROTHONOLTARY 2014 OCT 20 PM 3:55 CUMBERLAND COUNTY PENNSYLVANIA ANGINO & LUTZ, P.C. Richard C. Angino, Esquire Attorney ID# : 07140 4503 North Front Street Harrisburg, PA 17110-1708 (717) 238-6791 FAX (717) 238-5610 Attorneys for Plaintiff(s) E-mail: RCA@anginolutz.com ROBERT M. MARSTELLER AND SHARON M. MARSTELLER, Plaintiffs, V. GREGORY A. HANKS, M.D. Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PA NO. 13-3432 Civil CIVIL ACTION MEDICAL PROFESSIONAL LIABILITY ACTION JURY TRIAL DEMANDED PLAINTIFFS' REPLY TO DEFENDANT'S RESPONSE TO THE MOTION IN LIMINE TO LIMIT THE TESTIMONY OF DR. ESTERHAI BY PROHIBITING ANY MENTION OF THE TWO SCHOOLS OF THOUGHT DOCTRINE I. MATTER BEFORE THE COURT Plaintiffs, Robert M. Marsteller and Sharon M. Marsteller, Husband and Wife, by and through their attorneys, Angino & Lutz, P.C., file their foregoing reply and aver as follows. The opinions of Dr. Esterhai regarding the two schools of thought may be properly drawn but they are irrelevant to this action as they address an issue that is not in contention in this case. 558225 II. LEGAL ARGUMENT In the current case, there has been no testimony indicating that there exists two schools of thought in regard to the setting of a fracture such as the one Plaintiff suffered in this case. Specifically, Dr. Esterhai addresses the two schools of thought doctrine in his report but it does not relate to the issue in this case, the improper casting leading to a fracture rotation that is outside the standard of care for an orthopedic surgeon. Defendants' state in their Memorandum that "Dr. Esterhai believes that a considerable number of physicians would also treat the plaintiff though closed reduction rather than surgery." However, this again misses the relevant issue in this case. The issue in this case is not whether there is two schools of thought as to whether a doctor should choose conservative treatment options vs. surgery, as is the entire two schools of thought claim that Dr. Esterhai makes, rather, the issue that is relevant in this case is that after deciding to treat conservatively, Dr. Hanks performed the conservative procedure of casting wrong. Defendants also state in their Memorandum that "a considerable number of physicians would have been satisfied with the positioning obtained by the closed reduction performed by Dr. Hanks" This is untrue. Dr. Reid performed a CT scan on Mr. Marsteller and discovered that his malrotation was at 20 to 25 degrees where the standard provided by Dr. Hayken indicated that the accepted percentage among the orthopedic field was around 10 degrees maximum. Therefore, there is no possible way another orthopedic surgeon would agree with Dr. Esterhai that, after observing a 20 to 25 degree malrotation, they would be satisfied with the position obtained by the closed reduction performed by Dr. Hanks. 558225 The two schools of thought referred to by Dr. Esterhai are irrelevant and inadmissible because they are not at issue in this case. What is at issue is the negligence falling below the standard of care in the setting of break by improperly casting with mal rotation, the failure to recognize the error, refusal to perform a CAT scan when brought to Dr. Hank's attention, and the reliance on flat plate X rays which have been shown to be notoriously unreliable. Dr. Esterhai's expert report does not address the facts which are at issue in this case and therefore, for the reasons stated above, Plaintiff respectfully requests this Honorable Court to exclude any testimony regarding the above mentioned matters. WHEREFORE, Plaintiffs, Robert M. Marsteller and Sharon M. Marsteller, Husband and Wife, respectfully request that Your Honorable Court grant Plaintiffs Motion in Limine. Respectfully submitted, AN & LUTZ, P.C. Date: October 20, 2014 558225 // ard C. Ang o, Esquire .D. No. 07 A0 03 N. Fron ,treet Harrisburg,'A 17110 (717) 238-,79l rca@an olutz.com Attorn (for Plaintiff CERTIFICATE OF SERVICE I, Lisa Giknis, an employee of the law firm of Angino & Lutz, P.C., do hereby certify that I am this day serving a true and correct copy of Plaintiffs' Reply to Defendants' Response to the Motion in Limine to Limit the Testimony of Dr. Esterhai by Prohibiting any Mention of the Two Schools of Thought Doctrine upon all counsel of record via postage prepaid first class United States mail addressed as follows: John P. Shusted, Esquire GERMAN, GALLAGHER & MURTAGH, P.C. The Bellevue — Suite 500 200 S. Broad Street Philadelphia, PA 19102-3814 Dated: October 20, 2014 558225 --.;LED-OFF1CC THE PROTHONOTARY 2014 OCT 20 PH 3: 55 CUMBERLAND COUNTY PENNSYLVANIA ANGINO & LUTZ, P.C. Richard C. Angino, Esquire Attorney ID# : 07140 4503 North Front Street Harrisburg, PA 17110-1708 (717) 238-6791 FAX (717) 238-5610 Attorneys for Plaintiff(s) E-mail: RCA@anginolutz.com ROBERT M. MARSTELLER AND SHARON M. MARSTELLER, Plaintiffs, V. GREGORY A. HANKS, M.D. Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PA NO. 13-3432 Civil CIVIL ACTION MEDICAL PROFESSIONAL LIABILITY ACTION JURY TRIAL DEMANDED PLAINTIFFS' REPLY TO DEFENDANT'S RESPONSE TO THE MOTION IN LIMINE TO LIMIT THE TESTIMONY OF DR. SUZANNE LONG BY PROHIBITING HER TESTIMONY REGARDING THE STANDARD OF CARE I. MATTER BEFORE THE COURT Plaintiffs, Robert M. Marsteller and Sharon M. Marsteller, Husband and Wife, by and through their attorneys, Angino & Lutz, P.C., file their foregoing Reply and aver as follows. The opinions of Dr. Long regarding the standard of care must be restricted to her own field, radiology, and she may not testify as to the standard of care of an orthopedic surgeon. 558228 II. LEGAL ARGUMENT Dr. Long offers her opinion on Dr. Hanks actions in the ER on April 29, 2012 and subsequent follow up visits. She states that Dr. Hanks "in my opinion, from a musculoskeletal radiology standpoint, there is no deviation from the standard of care by Dr. Hanks' in his interpretation of the imaging...It is not mandated, nor is it the standard of radiologic care, to recommend, or to obtain, a CT scan in the setting presented to Dr. Hanks." However, Dr. Long is not an orthopedic surgeon but rather an expert in musculoskeletal radiology, and she cannot testify as to the standard of care for Dr. Hanks who is an orthopedic surgeon. She cannot testify as to whether or not Dr. Hanks' actions were reasonable. In addition, Dr. Long's report does not address the central issue of the case, that casting Plaintiff's leg in a malrotated position and failing to order a CAT scan violated the standard of care. The report merely addresses the issue of negligence and is, therefore, improper testimony and is inadmissible. The standard of care of an orthopedic surgeon is the only standard of care at issue. Defendants in their Memorandum state that Dr. Long will not testify as to the standard of care of an orthopedic surgeon and will confine her expert opinions to her specialty, radiology. Dr. Long may testify as to radiological matters but she may not state the standard of care for a radiologists as it is not at issue in this case and is irrelevant. Defendants attempt to circumvent the MCARE Act requirements by stating that "Dr. Long, a board certified radiologist, operates under a substantially similar standard of care to an orthopedic surgeon with regard to the interpretation of radiographs for the purpose of assessing malrotation and malalignment." Dr. Long may not state that the standard of care of a radiologist is substantially similar to that of an orthopedic surgeon. She may discuss her observations as a radiologist but may not testify as to the standard of care of 558228 an orthopedic surgeon or make any attempt to equate the standard from her field with that of an orthopedic surgeon. WHEREFORE, Plaintiffs, Robert M. Marsteller and Sharon M. Marsteller, Husband and Wife, respectfully request that Your Honorable Court grant Plaintiff's Motion in Limine. Respectfully submitted, ANG .C. Date: October 20, 2014 558228 4chard C. Aniso, Esquire A I.D. No/74 0: 140 4503 N. Fro t Street Harrisburg, PA 17110 (717) 238-6791 rca@anginolutz.com Attorney for Plaintiff CERTIFICATE OF SERVICE I, Lisa Giknis, an employee of the law firm of Angino & Lutz, P.C., do hereby certify that I am this day serving a true and correct copy of Plaintiffs' Reply to Defendants' Response to the Motion in Limine to Limit the Testimony of Dr. Suzanne Long by Prohibiting Her Testimony Regarding the Standard of Care upon all counsel of record via postage prepaid first class United States mail addressed as follows: John P. Shusted, Esquire GERMAN, GALLAGHER & MURTAGH, P.C. The Bellevue — Suite 500 200 S. Broad Street Philadelphia, PA 19102-3814 Dated: October 20, 2014 LLa Giknis 558228 A-1197/41-. . 'D"O1 f. Pry E.,F•TH ROT HO O 'A RY 2014 OCT 20 PM 3: 54 CUMBERLAND COUNTY PENHS YLVAN1A ANGINO & LUTZ, P.C. Richard C. Angino, Esquire Attorney ID# : 07140 4503 North Front Street Harrisburg, PA 17110-1708 (717) 238-6791 FAX (717) 238-5610 Attorneys for Plaintiff(s) E-mail: RCA@anginolutz.com ROBERT M. MARSTELLER AND SHARON M. MARSTELLER, Plaintiffs, v. GREGORY A. HANKS, M.D. Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PA NO. 13-3432 Civil CIVIL ACTION MEDICAL PROFESSIONAL LIABILITY ACTION JURY TRIAL DEMANDED PLAINTIFFS' REPLY TO DEFENDANTS' RESPONSE TO THE MOTION IN LIMINE TO LIMIT THE TESTIMONY OF DR. SUZANNE LONG BY PROHIBITING ANY MENTION OF THE TWO SCHOOLS OF THOUGHT DOCTRINE I. MATTER BEFORE THE COURT Plaintiffs, Robert M. Marsteller and Sharon M. Marsteller, Husband and Wife, by and through their attorneys, Angino & Lutz, P.C., file their foregoing Reply and aver as follows. The opinions of Dr. Long regarding the two schools of thought may be properly drawn but they are irrelevant to this action as they address an issue that is not in contention in this case. 558227 II. LEGAL ARGUMENT In the current case, there has been no testimony indicating that there exists two schools of thought in regard to the setting of a fracture such as the one Plaintiff suffered in this case. Specifically, Dr. Long addresses the two schools of thought doctrine in her report but it does not relate to the issue in this case, the improper casting leading to a fracture rotation that is outside the standard of care for an orthopedic surgeon. Defendants' state in their Memorandum that "Dr. Long's opinions supports the position that Dr. Hanks chose to pursue the more conservative treatment after considering and appreciating the risk that the Plaintiff would experience slight rotation of the ankle. Dr. Long explained that, judging from the radiological evidence, Dr. Hanks choice to pursue closed reduction was well within the standard of care." However, this again misses the relevant issue in this case. The issue in this case is not whether there is two schools of thought as to whether a doctor should choose conservative treatment options vs. surgery, as is the entire two schools of thought claim that Dr. Long makes, rather, the issue that is relevant in this case is that after deciding to treat conservatively, Dr. Hanks performed the conservative procedure of casting wrong. Dr. Long's assertion that Plaintiff would experience a slight rotation of the ankle confirms what Dr. Hanks did was not within the standard of care. A slight rotation of the ankle is to be expect and, according to Dr. Hayken, any rotation up to a maximum of approximately 10 degrees is normal in the orthopedic field. However, Mr. Marsteller's rotation was not "slight" as Dr. Long suggests. Dr. Reid's CT scan showed a rotation of 20-25 degrees. Therefore, Dr. Hanks, by Dr. Long's own admission, breached the 558227 standard of care as a rotation of 20 to 25 degrees is not "slight" and it outside the standard of care for an orthopedic surgeon being 10 degrees or less. The two schools of thought referred to by Dr. Long are irrelevant and inadmissible because they are not at issue in this case. What is at issue is the negligence falling below the standard of care in the setting of break by .improperly casting with mal rotation, the failure to recognize the error, refusal to perform a CAT scan when brought to Dr. Hank's attention, and the reliance on flat plate X rays which have been shown to be notoriously unreliable. Dr. Long's expert report does not address the facts which are at issue in this case and therefore, for the reasons stated above, Plaintiff respectfully requests this Honorable Court to exclude any testimony regarding the above mentioned matters. WHEREFORE, Plaintiffs, Robert M. Marsteller and Sharon M. Marsteller, Husband and Wife, respectfully request that Your Honorable Court grant Plaintiff's Motion in Limine. Respectfully submitted, ANGIN I &,L U"1 Z) P.C. Date: October 20, 2014 558227 Ric d C. An ano, Esquire P ' / D. No. 0714;0 7 4503 . FronSt'reet Harrisburg, A/ 17110 (717) 238- 701 rca@angi utz.com Attorney or Plaintiff CERTIFICATE OF SERVICE I, Lisa Giknis, an employee of the law firm of Angino & Lutz, P.C., do hereby certify that I am this day serving a true and correct copy of Plaintiffs' Reply to Defendant's Response to the Motion in Limine to Limit the Testimony of Dr. Suzanne Long by Prohibiting any Mention of the Two Schools of Thought Doctrine upon all counsel of record via postage prepaid first class United States mail addressed as follows: John P. Shusted, Esquire GERMAN, GALLAGHER & MURTAGH, P.C. The Bellevue — Suite 500 200 S. Broad Street Philadelphia, PA 19102-3814 Dated: October 20, 2014 558227 F:LED-OFFICE CiF THE PROTHONOTAkY 2014 OCT 20 P1 3:55 CUMBERLAND COUNTY PENNSYLVANIA ANGINO & LUTZ, P.C. Richard C. Angino, Esquire Attorney ID# : 07140 4503 North Front Street Harrisburg, PA 17110-1708 (717) 238-6791 FAX (717) 238-5610 Attorneys for Plaintiff(s) E-mail: RCA@anginolutz.eom ROBERT M. MARSTELLER AND SHARON M. MARSTELLER, Plaintiffs, v. GREGORY A. HANKS, M.D. Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PA NO. 13-3432 Civil CIVIL ACTION MEDICAL PROFESSIONAL LIABILITY ACTION JURY TRIAL DEMANDED PLAINTIFFS' RESPONSE TO DEFENDANT'S MOTION IN LIMINE TO PRECLUDE REFERENCE TO THE PLAINTIFFS, AND/OR PLAINTIFFS' WITNESSES, AS RELIGIOUS OR CHURCHGOERS AND NOW, come the Plaintiffs, Robert M. Marsteller and Sharon M. Marsteller, Husband and Wife, by and through their attorneys, Angino & Lutz, P.C., and file the foregoing response and aver as follows: On April 28, 2012, Plaintiff Robert Marsteller, a 49 year old male with a very active work and life style, fell while roller blading and injured his lower right leg, sustaining a spiral intra-articular fracture of the right distal tibia with a spiral proximal fibula fracture. Mr. Marsteller was admitted to Holy Spirit Hospital, where his leg was splinted. The following day, 558159 Mr. Marsteller underwent a closed reduction and long leg cast application performed by Defendant Hanks at bedside. Dr. Hanks knew from the outset that Mr. Marsteller and his wife recognized a malrotation and called it to Dr. Hanks attention. The malrotation obviously came from the casting procedure. Dr. Hanks disagreed that there was a malrotation and did nothing to address the malrotation. Despite Mr. Marsteller's expressed concern during follow up visits, Dr. Hanks did nothing and did not order a CT scan. After insisting upon a second opinion, Dr. Hanks sent Mr. Marsteller to J. Spence Reid at Hershey Medical Center. Dr. Reid observed the clear malrotation and after a CT scan quantified the malrotation as a 25 to 30 degree external rotation deformity, the accepted standard is 10%. Plaintiffs expect to call witnesses at trial who know Mr. Marsteller socially and who will testify as to the obvious malrotation and miscasting that was apparent to them. In qualifying them as witnesses, Plaintiffs intend to ask several of the witnesses how they know Mr. Marsteller and how did they observe his malrotated casting. Several of these witnesses are expect to disclose that they know Mr. Marsteller from church and observed him while at church functions. Defendants filed a motion in limine to preclude Plaintiffs' from referencing that they are religious or that they are church goers. A motion in limine is a procedure for obtaining a ruling on the admissibility of evidence prior to or during trial, but before the evidence has been offered. Yacoub v. Lehigh Valley Med. Associates, P.C., 805 A.2d 579, 588 (Pa. Super. 2002). Under Pennsylvania Rule of Evidence 610, evidence of a witness's religious beliefs or opinions is not admissible to support the witness's credibility. Pa.R.E. 610. While Rule 610 bars the use of a witness's religious beliefs to entered into evidence for credibility purposes, Rule 610 558159 does not invoke a complete bar on the reference to a witness's beliefs and they may be relevant for other purposes. Specifically, Plaintiffs intend to have several acquaintances of Mr. Marsteller to testify. In establishing their connection to the Plaintiff, Plaintiff's counsel will ask these several witnesses how they know Mr. Marsteller. It is expected that these witnesses will assert that they know him from church. This is a permissible use of a witness's religious beliefs and does not conflict with Rule 610. Therefore, Plaintiffs ask this Honorable Court to allow this testimony at trial. WHEREFORE, Plaintiffs, Robert M. Marsteller and Sharon M. Marsteller, Husband and Wife, respectfully request that Your Honorable Court deny Defendants' Motion in Limine. Respectfully submitted, ANGINO & LUTZ, P.C. (,) 'chard C. 4gio, Esquire PA I.D. No. 1140 4503 N`ont Street Harri ; &g, PA 17110 (7 '238-6791 a.@anginolutz.com /Attorney for Plaintiff Date: October 20, 2014 558159 CERTIFICATE OF SERVICE I, Lisa Giknis, an employee of the law firm of Angino & Lutz, P.C., do hereby certify that I am this day serving a true and correct copy of Plaintiffs' Response to Defendant's Motion in Limine to Preclude Reference to the Plaintiffs, and/or Plaintiffs' Witnesses, as religious or Churchgoers upon all counsel of record via electronic mail and via postage prepaid first class United States mail addressed as follows: John P. Shusted, Esquire GERMAN, GALLAGHER & MURTAGH, P.C. The Bellevue — Suite 500 200 S. Broad Street Philadelphia, PA 19102-3814 Dated: October 20, 2014 558159 • GERMAN, GALLAGHER & MURTAGH BY: John P. Shusted shusteda,ggrnfirm.com IDENTIFICATION NO. 44675 THE BELLEVUE, FIFTH FLOOR 200 S. BROAD STREET PHILADELPHIA, PA 19102 (215) 875-4037 ,r! Attorney for: Defencrin142:-.!' Gregory Hanks, M.D. h4/4 fr; -4'rtt 0. et 0 ROBERT M. MARSTELLER and SHARON M. MARSTELLER, Plaintiffs : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PA : NO. 13-3432 CIVIL v. : MEDICAL PROFESSIONAL : LIABILITY ACTION GREGORY HANKS, M.D. Defendant MOTION IN LIMINE OF THE DEFENDANT, GREGORY HANKS, M.D., TO STRIKE AND LIMIT THE TESTIMONY OF J. SPENCE REID, M.D. REGARDING MEDICAL LITERATURE DURING DIRECT EXAMINATION Defendant, Gregory Hanks, M.D., by and through his attorneys, German Gallagher and Murtagh, P.C., hereby moves to Strike and Limit the Testimony of J. Spence Reid, M.D. Regarding Medical Literature During Direct Examination, and in support thereof, aver as follows: 1. This action was instituted via Complaint filed by the Plaintiff on June 14, 2013 alleging medical malpractice against the Moving Defendant, Gregory Hanks, M.D., in relation to medical care following the fracture of the Plaintiff's right tibia and fibula. 2. During the deposition of Dr. J. Spence Reid, M.D., counsel for the Plaintiff stated that they were offering the testimony of Dr. Reid as an expert. (The Deposition Transcript of J. Spence Reid, M.D. is attached hereto and marked as Exhibit "A.") (See Exhibit A 18:6-9). 1220802 1 3. During cross-examination of Dr. Reid, counsel for the Defendant and Dr. Reid had the following exchange: Q: Would you agree that in even past 10 degrees, would not cause any long- term issues with ankle stability? A: There is no data in literature that suggests that rotational past 10 degrees is going to predispose anyone to ankle or knee arthritis or some degenerative problem as a result of the malrotation. Q: The literature you just referenced, you are saying that the degree — there is no support in the literature that malrotation is going to affect future arthritis or the possibility of arthritis. Is that fair? A: Correct. I was trying to separate out for the patient the difference — two separate facts or two separate issues. One is what the patient desires to maximize what he wants to do versus what the long-term prognosis would be with respect to his ankle and knee irrespective of what he wants to do. Function versus long-term disability. I was trying to separate that out for the patient as two separate but distinct issues. (Exhibit A 64:8-25, 65:1-5). 4. Also during cross-examination of Dr. Reid, counsel for the Defendant and Dr. Reid had the following exchange: Q: So if one goes to a textbook to look at different fractures, there are recommendations or goals to be achieved; but there is no one patient or one fracture exactly textbook that you can say this the way to do it or not the way to do it. It is really an idea of recommendations for treatment. Is that fair? A. Yes. (Exhibit A 76:20-25, 77:1-2). 5. During redirect examination by counsel for the Plaintiff, the questioning exceeded limited identification of textual material and, instead, discussed specific excerpts from medical texts. (Exhibit A 82:8-25, 85:1-10, 86:1-25, 87:1-25, 88:1-25, 89:1-25, 90:1-25, 91:1-25, 92:1- 25, 93:1-25, 94:1-13). 6. During redirect examination of Dr. Reid, counsel for the Plaintiff and Dr. Reid had the following exchange: 1220802 1 Q. So there is evidence that malalignment and malunion are associated with late knee and ankle osteoarthritis? A. That is what it states here. Q. "The definition of what actually constitutes a tibial malunion has never been agreed upon. Many surgeons believe that the tibia should be restored to its original alignment after fraction, and only minor degrees of malalignment should be accepted." Is that what it says? A. That is what it says. (Exhibit A 87:10-21). 7. Questioning by Plaintiff's counsel devolved into the counsel for the Plaintiff reading excerpts of medical literature, then asking the deponent if the excerpt was correctly recited. 8. Questioning of his own expert witness by counsel for the Plaintiff exceeded the scope permitted under Pennsylvania law because the testimony went beyond the limited identification of textual materials that provided a basis for the deponent's opinion. 9. "Pennsylvania courts have [] permitted, subject to appropriate restraint by the trial court, limited identification of textual materials (and in some circumstances their contents) on direct examination to permit an expert witness to fairly explain the basis for his reasoning. Aldridge v. Edmunds, 750 A.2d 292, 297 (Pa. 2000). 10. "[T]he purpose for which treatises may be referenced on direct examination is generally limited to explaining the reasons underlying the opinion, the trial court should exercise careful control over their use to prevent them from being made the focus of the examination. Additionally, the trial court should issue appropriate limiting instructions." Aldridge v. Edmunds, 750 A.2d 292, 297 (Pa. 2000). 11. "[L]earned writings which are offered to prove the truth of the matters therein are hearsay and may not properly be admitted into evidence for consideration by the jury." Burton - Lister v. Siegel, Sivitz & Lebed Assocs.,798 A.2d 231, 239 (Pa. Super. Ct. 2002) (holding that 1220802 1 the trial court failed to ensure that the publication was used in a limited nature); Pa.R.E. 801; Pa.R.E. 802. 12. Here, counsel for the Plaintiff repeatedly questioned his own expert regarding the specific content of medical literature, which was outside the scope of cross-examination. 13. Counsel for the Defendant briefly questioned Dr. Reid regarding medical literature that Dr. Reid referenced in his response to a general question on his opinion of ankle stability. In fact, Dr. Reid, not counsel for the Moving Defendant, initially brought up the topic of medical literature. (Exhibit A 64:11). 14. Thereafter, on redirect examination, counsel for Plaintiff repeatedly questioned Dr. Reid pertaining to the specific contents of medical literature. The medical literature used by counsel Plaintiff was not identified as standard or authoritative. 15. Counsel for Plaintiff used substantive medical literature to improperly testify on the record during the deposition of Dr. Reid. (Exhibit A). 16. Here, the portions of the deposition transcript of Dr. Reid where counsel for Plaintiff merely recites excerpts from medical literature should be stricken. 17. Furthermore, any questioning and testimony during direct examination regarding the substantive content of medical literature should be precluded and limited at trial. 1220802 1 18. To permit impermissible testimony regarding medical literature would severely prejudice the Moving Defendant's ability to fairly defend against this action. WHEREFORE, Defendant, Gregory Hanks, M.D., respectfully requests that this Honorable Court Strike and Limit the Testimony of J. Spence Reid, M.D. Regarding Medical Literature During Direct Examination. GERMAN G LLAGHER & MURTAGH By: 1220802 1 Jo P ' husted, Atty. Id. No.44675 The : ellevue — Suite 500 200 South Broad Street Philadelphia, PA 19102 (215) 545-7700 Attorney for Defendant Gregory Hanks, M.D. GERMAN, GALLAGHER & MURTAGH BY: John P. Shusted shustedj(a umfirm.com IDENTIFICATION NO. 44675 THE BELLEVUE, FIFTH FLOOR 200 S. BROAD STREET PHILADELPHIA, PA 19102 (215) 875-4037 Attorney for: Defendant, Gregory Hanks, M.D. ROBERT M. MARSTELLER and : IN THE COURT OF COMMON PLEAS SHARON M. MARSTELLER, : CUMBERLAND COUNTY, PA Plaintiffs : NO. 13-3432 CIVIL v. GREGORY HANKS, M.D. Defendant : MEDICAL PROFESSIONAL : LIABILITY ACTION MEMORANDUM OF LAW IN SUPPORT OF THE MOTION IN LIMINE OF THE DEFENDANT, GREGORY HANKS, M.D., TO STRIKE AND LIMIT TESTIMONY REGARDING MEDICAL LITERATURE DURING DIRECT EXAMINATION I. MATTER BEFORE THE COURT Defendant, Gregory Hanks, M.D., by and through his attorneys, German Gallagher and Murtagh, P.C., hereby moves to Strike and Limit Testimony Regarding Medical Literature During Direct Examination. II. QUESTION PRESENTED Whether plaintiff should be precluded from offering testimony of the contents of medical literature on direct examination? Suggested Answer: Yes. 1220802 1 III. FACTS This action was instituted via Complaint filed by the Plaintiff on June 14, 2013 alleging medical malpractice against the Moving Defendant, Gregory Hanks, M.D., in relation to medical care following the fracture of the Plaintiff's right tibia and fibula. During the deposition of Dr. J. Spence Reid, M.D., counsel for the Plaintiff stated that they were offering the testimony of Dr. Reid as an expert. (The Deposition Transcript of J. Spence Reid, M.D. is attached hereto and marked as Exhibit "A.") (See Exhibit A 18:6-9). During cross-examination of Dr. Reid, counsel for the Defendant and Dr. Reid had the following exchange: Q: Would you agree that in even past 10 degrees, would not cause any long- term issues with ankle stability? A: There is no data in literature that suggests that rotational past 10 degrees is going to predispose anyone to ankle or knee arthritis or some degenerative problem as a result of the malrotation. Q: The literature you just referenced, you are saying that the degree — there is no support in the literature that malrotation is going to affect future arthritis or the possibility of arthritis. Is that fair? A: Correct. I was trying to separate out for the patient the difference — two separate facts or two separate issues. One is what the patient desires to maximize what he wants to do versus what the long-term prognosis would be with respect to his ankle and knee irrespective of what he wants to do. Function versus long-term disability. I was trying to separate that out for the patient as two separate but distinct issues. (Exhibit A 64:8-25, 65:1-5). Also during cross-examination of Dr. Reid, counsel for the Defendant and Dr. Reid had the following exchange: Q: So if one goes to a textbook to look at different fractures, there are recommendations or goals to be achieved; but there is no one patient or one fracture exactly textbook that you can say this the way to do it or not the way to do it. It is really an idea of recommendations for treatment. Is that fair? A. Yes. 1220802 1 (Exhibit A 76:20-25, 77:1-2). During redirect examination by counsel for the Plaintiff, the questioning exceeded limited identification of textual material and, instead, discussed specific excerpts from medical texts. (Exhibit A 82:8-25, 85:1-10, 86:1-25, 87:1-25, 88:1-25, 89:1-25, 90:1-25, 91:1-25, 92:1-25, 93:1-25, 94:1-13). During redirect examination of Dr. Reid, counsel for the Plaintiff and Dr. Reid had the following exchange: Q. So there is evidence that malalignment and malunion are associated with late knee and ankle osteoarthritis? A. That is what it states here. Q. "The definition of what actually constitutes a tibial malunion has never been agreed upon. Many surgeons believe that the tibia should be restored to its original alignment after fraction, and only minor degrees of malalignment should be accepted." Is that what it says? A. That is what it says. (Exhibit A 87:10-21). Questioning by Plaintiff's counsel devolved into the counsel for the Plaintiff reading excerpts of medical literature, then asking the deponent if the excerpt was correctly recited. Questioning of his own expert witness by counsel for the Plaintiff exceeded the scope permitted under Pennsylvania law because the testimony went beyond the limited identification of textual materials that provided a basis for the deponent's opinion. IV. LEGAL ARGUMENT "Pennsylvania courts have [] permitted, subject to appropriate restraint by the trial court, limited identification of textual materials (and in some circumstances their contents) on direct examination to permit an expert witness to fairly explain the basis for his reasoning. Aldridge v. Edmunds, 750 A.2d 292, 297 (Pa. 2000). "[T]he purpose for which treatises may be referenced on direct examination is generally limited to explaining the reasons underlying the opinion, the trial court should exercise careful control over their use to prevent them from being made the 1220802 1 focus of the examination. Additionally, the trial court should issue appropriate limiting instructions." Aldridge v. Edmunds, 750 A.2d 292, 297 (Pa. 2000). "[L]earned writings which are offered to prove the truth of the matters therein are hearsay and may not properly be admitted into evidence for consideration by the jury." Burton -Lister v. Siegel, Sivitz & Lebed Assocs.,798 A.2d 231, 239 (Pa. Super. Ct. 2002) (holding that the trial court failed to ensure that the publication was used in a limited nature); Pa.R.E. 801; Pa.R.E. 802. Here, counsel for the Plaintiff repeatedly questioned his own expert regarding the specific content of medical literature, which was outside the scope of cross-examination. Counsel for the Defendant briefly questioned Dr. Reid regarding the medical literature that Dr. Reid referenced in his response to a general question on his opinion of ankle stability. In fact, Dr. Reid initially brought up the topic of medical literature. (Exhibit A 64:11). Thereafter, on redirect examination, counsel for Plaintiff repeatedly asked specific questions pertaining to the specific contents of medical literature. The medical literature used by counsel Plaintiff was not identified as standard or authoritative. Counsel for Plaintiff used substantive medical literature to improperly testify on the record during the deposition of Dr. Reid. (Exhibit A). Here, the portions of the deposition transcript of Dr. Reid where counsel for Plaintiff merely recites excerpts from medical literature should be stricken. Furthermore, any questioning and testimony during direct examination regarding the substantive content of medical literature should be precluded and limited at trial. To permit impermissible testimony regarding medical literature would severely prejudice the Moving Defendant's ability to fairly defend against this action. 1220802 1 V. CONCLUSION Moving Defendant, Gregory Hanks, M.D., respectfully requests that this Honorable Court to Strike and Limit Testimony Regarding Specific Contents of Medical Literature During Direct Examination. GERMAN G AGHER & MURTAGH By: 1220802 1 . Shusted, Atty. Id. No.44675 e Bellevue — Suite 500 200 South Broad Street Philadelphia, PA 19102 (215) 545-7700 Attorney for Defendant Gregory Hanks, MD. VERIFICATION I, Zachary J. Duffy, Esquire, counsel for the Defendant, Gregory Hanks, M.D., verify that this statements contained in the foregoing document are true and correct to the best of my knowledge, information, and belief, and are subject to the penalties of 18 Pa.C.S. §4904, relating to unsworn falsification to authorities. BY: Jo 9 . Shusted #44675 shustedj@ggmfirm.com achary J. Duffy I.D. 316566 The Bellevue — Suite 500 200 S. Broad Street Philadelphia, PA 19102 1220802_1 CERTIFICATE OF SERVICE The undersigned certifies that on 2,19 , 2014, the within Motion in Limine of Defendant Gregory Hanks, M.D. was forwar ed to the Court for filing and that the Answer was served upon counsel of record listed below via U.S. First -Class Mail, postage prepaid. Richard C. Angino, Esquire ID No. 07140 Angino & Rovner, P.C. 4503 N. Front Street Harrisburg, PA 17110 Counsel for Plaintiffs 1220802 1 „EXHIBIT Marsteller v. Hanks, M.D. J. Spence Reid, M.D. April 4, 2014 THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA Civil Action Medical Professional Liability No. 13-3432 Civil ROBERT M. MARSTELLER AND SHARON M. MARSTELLER, Plaintiffs, - vs - GREGORY A. HANKS, M.D., Defendant. x • • • • • x Deposition of J. SPENCER REID, M.D. 500 University Drive April 4, 2014 Hershey, PA 1:22 p.m. IT IS HEREBY STIPULATED and agreed that the sealing of the within transcript is waived. IT IS FURTHER STIPULATED and agreed that all objections except as to the form of the question are reserved to the time of trial. LEARY REPORTING 112 West Main Street, Ste. 200 Mechanicsburg, PA 17055 (717) 233-2660 Fax (717) 691-7768 1 Leary Reporting (717) 233-2660 1402939e-bdd8-4b2d-96b1-907adc8884cb Marsteller v. Hanks, M.D. J. Spence Reid, M.D. April 4, 2014 Leary Reporting (717) 233-2660 14e2939e-bdd8-4b2d-95b1-907adc8884cb 2 3 1 1 APPEARANCES: 2 2 3 3 ANGINO & ROVNER 4 4503 North Front Street 5 INDEX 4 Harrisburg, PA 17110-1708 6 BY: RICHARD C. ANGINO, ESQ. WITNESS EXAMINATION BY PAGE 5 (717)238-5610 7 6 For the Plaintiffs J. Spence Reid Mr. Angino 6 7 8 8 GERMAN, GALLAGHER & MURTAGH, P.C. Mr. Shusted 49 The Bellevue - Suite 500 9 9 200 South Broad Street Mr. Angino 78 Philadelphia, PA 19102-3814 10 10 BY: JOHN P. SHUSTED, ESQ. Mr. Shusted 95 (215) 545-7700 11 11 Mr. Angino 99 For the Defendant 12 12 Mr. Shusted 101 13 13 14 14 15 15 ***** 16 16 17 17 18 18 • 19 19 • 20 20 21 21 22 22 23 23 24• 24 25 25 4 5 1 1 PROCEEDINGS 2 2 VIDEOGRAPHER: We are going on the 3 3 video record. My name is Marc Seiffert. 4 4 I am a legal assistant with Angino & 5 66 EXHIBITS 5 Rovner. Our office is located at 4503 7 8 EXHIBIT DESCRIPTION PAGE I Curriculum vitae 7 7 _North Front Street, Harrisburg, Pennsylvania; and 1 am operating the 9 2 Holy Spirit Hospital 8 video and audio equipment for today's record 12 9 deposition. 10 10 The date is April 4, 2014, and it is 3 Index of Deposition 11 1:24 p.m. We are here on behalf of 11 Exhibits for 12 plaintiff to take the deposition of Dr. Marsteller v Hanks 44 13 J. Spencer Reid at 500 University Drive 12 13 14 in Hershey, Pennsylvania. Dr. J. Spencer 14 * * * * * 15 Reid will be testifying in this case 15 16 Robert M. Marsteller and Sharon M. 16 17 Marsteller, Plaintiffs, versus Gregory A. 17 18 Hanks, M.D., Defendant, in the Court of 18 19 Common Pleas of Cumberland County, No. 19 2 0 13-3432. 20 21 Will the attorneys please introduce 21 2 2 themselves and who they represent? 23 23 MR. Hart: I am Richard Angino, and 2 4 2 4 I represent Mr. And Mrs. Marsteller. 25 2 5 MR. SHUSTED: Jack Shusted for Dr. Leary Reporting (717) 233-2660 14e2939e-bdd8-4b2d-95b1-907adc8884cb Marsteller v. Hanks, M.D. J. Spence Reid, M.D. April 4, 2014 Leary Reporting (717) 233-2660 14e2939e-bdd8-4b2d-95b1-907adc6884cb 6 7 1 Gregory Hanks. 1 (Exhibit R -I, Curriculum vitae, 2 VIDEOGRAPHER: Will the court 2 marked for Identification.) 3 reporter please identify herself and 3 Q Do you see R-1? Is that your CV? 4 swear in the witness. 4 A Yes. 5 COURT REPORTER: Gwen Leary from 5 Q Doctor, I am not going to obviously 6 Leary Reporting. 6 go through this entire CV; but does it give us 7 7 personal data, educational background, 8 J. SPENCE REID, M.D., having been 8 professional training, and things such as that? 9 duly sworn by Gwen A. Leary, Notary Public, was 9 A Yes, 10 examined and testified as follows: 10 Q Let's start with are you a 11 11 physician? 12 EXAMINATION BY MR. ANGINO: 12 A Yes. 13 Q What is your full name? 13 Q What type of physician are you? 14 A John Spence Reid, 14 A I am an orthopedic surgeon, 15 Q And, Dr. Reid, did you and I meet 15 Q What is an orthopedic surgeon? 16 for the first time today? 16 A It is the specialty of medicine that 17 A Yes. 17 deals with bone and joint problems or issues. 18 Q And did we spend about 15 or 20 18 Q Did you have occasion to have Mr. 19 minutes talking? 19 Marsteller come to you as a patient? 20 A Yes. 2 0 A Correct. 21 Q And did we talk about this case? 21 Q Did he come to you not only as a 22 A Yes. 22 patient but for the purpose of getting a second 23 Q Did you provide me with what we call 23 opinion? 24 a CV or curriculum vitae? 24 A Yes. 25 A Yes. 25 Q What is a second opinion? 8 9 1 A A second opinion is pretty much what 1 Q And then I see what they call 2 it sounds like. It is an opinion offered by 2 professional training, which included residency 3 another physician on a matter on which another 3 fellowships, appointments. Is that correct? 4 physician as already given a first opinion. 4 A Correct. 5 Q Was Mr. Marsteller previously 5 Q For how long have you been here at 6 treated by Dr. Hanks? 6 Hershey? 7 A Yes. 7 A I have been on faculty here for 20 8 Q Do you know if Dr. Hanks was B years. 9 instrumental in Mr. Marsteller seeing you? 9 Q How many years? 10 A I don't know how instrumental he 10 A It will be 21 in July. 11 was, but he was involved in the process of having 11 Q In terms of the building that we are 12 him come to see me. 12 in, what is it called? 13 Q Let's just take a few minutes to go 13 A This building? 14 over your curriculum vitae. lam going to 14 Q Yes. 15 perhaps lead you a little bit, because these are 15 A It's called the Biomedical Research 16 not disputed matters. You went to college at 16 Building. 17 Lehigh. Is that correct? 17 • Q Are you involved in research? 18 A Correct. 18 A It is part of what I do. 19 Q Graduated 1980? 19 Q So do you treat patients? 20 A Correct, 20 A Yes. 21 Q Medical school at Pennsylvania State 21 Q And do you conduct research? 22 University? 22 A It is again part of what I do. It 23 A Correct. 23 is intrinsically part of what I do at this 24 Q Graduated 1985? 24 academic medical center. 25 A Correct. 25 Q In terms of writing, what we call Leary Reporting (717) 233-2660 14e2939e-bdd8-4b2d-95b1-907adc6884cb Marsteller v. Hanks, M.D. J. Spence Reid, M.D. April 4, 2014 Leary Reporting (717) 233-2660 14e2939e-bdd8-4b2d-95b1-907adc8884cb 10 11 1 publications -- 1 reviewed actively at the moment. 2 A Uh-huh. 2 Q And you go on to book chapters and 3 Q Uh-huh is not going to pass today. 3 abstracts. Tell us what abstracts are? 4 We have to say yes or no or something like that. 4 A Abstracts are usually the early 5 A You didn't ask a question. You just 5 phase of research. And it is being presented at 6 said, in the form of publications and then you 6 a meeting, again, usually prior to being 7 stopped. Ask me a question and I'll give you an 7 published or prior to being submitted for peer 8 answer. 8 review. 9 Q Thank you, sir. I see that on page 9 Q Then there is something called 10 7 of 32, there is a list of publications. Is 10 presentations where you are invited? 11 that correct? 11 A Correct. 12 A Yes, 12 Q Tell me what presentations are. 13 Q There is reference to peer reviewed 13 A Again, at a meeting usually. If the 14 publications. What does that mean, peer 14 organizer of the meeting feels you have a certair 15 reviewed? 15 expertise to offer you might be invited to speak 16 A It is articles that have been 16 on a topic. 17 reviewed by experts in the field, impartial third 17 Q And you have been invited to talk 18 parties who deem the work worthy of being 18 nationally, regionally and I guess locally? 19 published. 19 A And internationally as well. 20 Q You have 18 of those? 20 Q Internationally as well. 21 A That's correct. 21 In terms of this particular case, 22 Q Manuscripts in progress. What are 22 what type of fracture are we dealing with? 23 manuscripts? 23 A A fracture of the tibia. 24 A It is research that has yet to 24 Q And can you show the jury what the 25 finish the peer review process. It is being 25 tibia is? 12 13 1 A It is the bone between the knee, 1 familiar with Bates stamps? 2 which is here and the ankle which is here. It is 2 A No. 3 the large bone between the two. And there was 3 Q If you look at the bottom right-hand 4 also a fracture of the fibula, which is the small 4 corner of the documents, you will see Marsteller 5 bone as well. • 5 0004? 6 Q What particular part of the tibia 6 A Yes. 7 was fractured? 7 Q Do you see that? 8 A It was in what is called the lower 8 A Yes. 9 third. If we split the tibia other into three 9 Q We attorneys call those Bates 10 segments, it was where the middle and the third 10 stamps, so that this is the way in which we 11 meet. About right here. 11 designate documents in voluminous files so that 12 Q Did you understand that this came 12 everybody is on the right page. 13 from a skating accident? 13 A Literally and figuratively. 14 A Yes. 14 Q And what is the document that you 15 Q And I have given you certain 15 are looking at at 0004? 16 exhibits. One that is called R-2, Do you have 16 A This looks like a radiology report 17 something there that is called R-2? 17 from Holy Spirit Hospital dated April 28, 2012, 18 (Exhibit R-2, Holy Spirit Hospital 18 on Mr. Marsteller. 19 record, marked for Identification.) 19 Q What type of X-ray would this have 20 A Yes. I have my own. Got it. 20 been? 21 Q Does R-2 index have the Holy Spirit 21 A A regular X-ray of his ankle. 22 Hospital as No. 1? 22 Q Do they sometimes call them flat 23 A Yes. 23 plate X-ray? 24 Q And at the lower right-hand corner, 24 A Regular plane films, flat plate. 25 are there what we call Bates stamps? Are you 25 Q What was the conclusion there? Leary Reporting (717) 233-2660 14e2939e-bdd8-4b2d-95b1-907adc8884cb Marsteller v. Hanks, M.D. J. Spence Reid, M.D. April 4, 2014 1 14 ' A There was a spiral fracture of the 1 15 Q And what was the operative procedure 2 distal tibia with extension to the distal 2 recorded by Dr. Hanks? 3 articular surface. Please see tibia fibular 3 A Closed reduction and application of 4 X-ray report, which showed an associated proxim a1 4 long-leg cast, right leg. 5 fibular fracture indicative of a potential 5 Q Can you tell the jury how such a 6 syndesmotic ligament and interosseous membrane 6 procedure is done? 7 tear. 7 A Well, I will actually read how Dr. 8 Q Can you put that into layman terms, 8 Hanks did it, in the sense it says the patient 9 please? 9 was brought to the side of the bed. The splint 10 A Basically there was a fracture of 10 was removed. His leg was allowed to dangle off 11 the tibia, as I described a minute ago, that is 11 the side of the bed. And the closed reduction 12 spiral in nature, meaning -- spiral nature 12 was done by a slight amount of rotational 13 meaning the fracture starts in one location and 13 adjustment. Then a well -padded long-leg 14 then winds around and ends up around the other 14 fiberglass cast was applied without difficulty. 15 side at a lower location. And there was also a 15 Q And after the cast has been applied, 16 fracture of the smaller bone, the fibula, up 16 would Mr. Marsteller have been ambulatory? 17 high. 17 A Again, I don't know what instruction 18 Q Could you turn to Bates 006, please. 18 he was given; but typically that person would be 19 Doctor, what is the particular 19 put on crutches and would initially be in a 2 0 document that you are looking at here? 20 significant•amount of discomfort that they would 21 A This is an operative report by Dr. 21 be just resting it down for balance and really 22 Hanks. 22 not even attempting ambulation or weight bearing 23 Q And what was the preoperative 23 at that point. 24 diagnosis? 24 Q What date was this full leg cast 25 A Right tibia/fibula fracture. 25 applied? 16 17 1 A April 28, 2012. 1 injured his tibia. X-rays show an obliquely 2 Q Doctor, if I could turn you to the 2 oriented minimally displaced distal third tibia 3 second tab, which would be Orthopedic Institute 3 fracture with a proximal fibular fracture. He 4 of Pennsylvania? 4 was splinted and admitted. He will undergo 5 A Yes. 5 casting for an attempted closed treatment. He is 6 Q Do you have that? 6 to remain nonweightbearing. He is to have an 7 A Yes. 7 X-ray in his cast at his tibia. AP and lateral 8 Q Are there certain notes that appear 8 at the first post hospital visit, 9 there? 9 Q And if we turn to 0039, what date do 10 A Yes. 10 we have now? 11 Q And if I could direct you to Bates 11 A 5/122012. 12 Stamp 0040? 12 Q 5/10? 13 A Okay. 13 A 5/10. Sony. 14 Q Is this carrying the same date as 14 Q Approximately two weeks later? 15 the date in the hospital? 15 A Correct. 16 A Yes. 16 Q Can you read that, please? 17 Q 4/282012? 17 A Chief complaint: Follow-up, right 18 A Yes. 18 tib-fib fracture. 19 Q And it is relatively short. Would 19 History of Chief Complaint: This is 20 you read it, please? 20 the first post hospitalization check for his 21 A Diagnosis: Right tib-fib fracture. 21 closed reduction and casting of tib-fib fracture 22 Procedure: Closed reduction and 22 on the right. He works in construction. 23 casting right tib-fib fracture in his room at 23 Review of Systems: The patient's 24 Holy Spirit Hospital. This is a 49 -year-old male 24 past medical history, social history, family 25 who was roller skating on 4/28/12, twisted and 25 history and detailed review of systems were Leary Reporting (717) 233-2660 14e2939e-bddB-4b2d-95b1.907adc6BB4cb Marsteller v. Hanks, M.D. J. Spence Reid, M.D. April 4, 2014 Leary Reporting ( 717) 233-2660 14e2939e-bdd8-4b2d-95b1-907adc6BB4cb 18 19 1 reviewed and recorded. 1 A Correct. 2 Physical exam: The cast is intact. 2 Q What is the most important thing 3 Toes are neurovascularly intact. 3 clinically as far as finding out if someone has a 4 Diagnosing Tests: X-ray in his cast 4 rotational problem? 5 shows maintaining excellent alignment of his 5 MR. SHUSTED: Objection. Off the 6 distal third tibia fracture and his proximal 6 record. 7 fibular fracture. No significant shortening or 7 VIDEOGRAPHER: We are off the vides 8 angulation. 8 record. The time is 1:38 p.m. 9 Diagnosis: Right tib-fib fracture, 9 MR. SHUSTED: We can still roll the 10 post closed reduction and casting. He has got 10 video if you want to during the 11 great alignment. 11 objections. 12 Plan: Follow-up in three weeks for 12 This is beyond -- the objection is 13 cast off, repeat X-rays, at which time I will 13 this is beyond the scope of the Doctor's 14 either put him into a high short -leg case or a 14 records in this case. I have no 15 Sarmiento fracture brace. I estimate anywhere 15 indication that he has ever seen these 16 from three to four months before returning to his 16 records during the course of his 17 construction type of work. 17 treatment. 18 Q How accurate diagnostically are 18 It is my understanding that he is 19 X-rays in terms of determining alignment? 19 not being presented as an expert witness 20 A They are very good for varus valgus 20 in the case? 21 or flexion/extension or lengthening or 21 MR. ANGINO: No, he is; because 22 shortening. They can be difficult in accurate 22 basically his first note talked about the 23 determination of rotation. 23 standard of care. And he thought 24 Q Is this the issue in this case, as 24 anything up to 10 degrees was within the 25 you understand it, a rotational problem? 25 standards of care. 20 21 1 So pretty much that is the area we 1 initial office note as -- 2 are going to focus on. I am not going to 2 MR. ANGINO: -- a standard of care 3 get to the point of expert testimony 3 issue. 4 beyond his own assessment of the 10 4 MR. SHUSTED: We have a dispute 5 degrees and the later CAT scan. 5 about that. 6 MR. SHUSTED: Are you offering him 6 MR. ANGINO: He uses those words. 7 as an expert on the standard of care 7 MR. SHUSTED: We have a dispute 8 against Dr. Hanks? 8 about the issue on the standard of care. 9 MR. ANGINO: Yes. 9 My point at this point is that you 10 MR. SHUSTED: But he never issued a 10 are showing him records which is 11 report criticizing the standard of care. 11 uncertain he has ever seen those records 12 MR. ANGINO: He is a treating 12 before. I have not seen any comment on 13 physician here. And the report that he 13 that before. 14 issued did talk about 10 degrees and 14 I have an objection on that basis. 15 standard of care. 15 MR. ANGINO: And I will allow you ti 16 I mean his actual first report, 16 have a continuing objection along that 17 which we are going to get to 17 line. 18 momentarily -- 18 MR. SHUSTED: So the objection is to 19 MR. SHUSTED: Talking about his 19 the extent he is talking about other 20 reports are fine. To the extent it is 20 records that he has not referred to in 21 going beyond the reports, I think that is 21 his records, that is my objections. 22 beyond the scope of his testimony. 22 Let's have a continuing objection to 23 I have not received an expert report 23 that. 24 from him. I understand your point that 24 MR. ANGINO: Along those lines. So 25 you would like to characterize his 25 you have obviously preserved your Leary Reporting ( 717) 233-2660 14e2939e-bdd8-4b2d-95b1-907adc6BB4cb Marsteller v. Hanks, M.D. J. Spence Reid, M.D. April 4, 2014 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 22 objection. MR. SHUSTED: Thank you. VIDEOGRAPHER: Back on the video record. The time is 1:41 p.m. BY MR. ANGINO: Q Up until we met a half an hour ago, you had not seen Dr. I-Ianks' records. Is that correct? A That's correct. Q You were shown his records when we met. Is that right? A That's correct. Q And I am asking you questions along the lines of what we discussed. Is that right? A That's right. Correct. Q So we are looking now at the 5/10 record. And we are looking at a reference to a diagnostic test. And you have commented within your area of expertise in terms of X-rays and clinical approaches to rotation. Is that correct? A Correct. Q Doctor, at this particular point, 5/10/2012, was Mr. Marsteller in a full leg cast? 23 1 A Yes. 2 Q It had not been removed at this 3 point. Is that correct? 4 A That's correct. 5 Q Let's turn to the next, which is 38, 6 please. Are we now at 5/31/12? 7 A Correct. 8 Q Can you read that, please? 9 A Followup with tib-fib fracture. 10 This is a re -check of his tib-fib fracture. He 11 is four weeks out. Having much less pain. 12 A review of symptoms: Past medical 13 history, social history, family history, and 14 detailed review of systems were reviewed and 15 recorded. 16 Physical Exam: Out of the cast. He 17 has decent stability. I did not want to stress 18 him hard. He thinks there.is may be a rotational 19 abnormality. I think it is minimal at best. He 20 has excellent alignment on my view. There is 21 just slight tenderness and minimal swelling. 22 Diagnostic Tests: X-rays out of the 23 cast show a near anatomic alignment in both 24 planes of his comminuted distal third tib-fib 25 fracture and a proximal comminuted fibular 24 1 fracture also nondisplaced. 2 Diagnosis: Follow-up of right 3 tib-fib fracture. 4 Plan: We placed him into a 5 posterior splint and we are going to send him 6 over to Hanger Teufel's for a Sarmiento fracture 7 brace. He can be toe touch weightbearing in the 8 brace. Follow up in three weeks for a repeat 9 X-ray out of his brace, at which time I will 10 begin weightbearing at that time. 11 Q Let us go then to, I think the last 12 of the notes, 0037. What is the date of that? 13 A June 21, 2011 14 Q Approximately three weeks later? 15 A Correct. 16 Q Please read? 17 A Chief complaint: Followup status 18 post tib-fib fracture. 19 History of Chief Complaint: This is 20 a recheck of his rib -fib fracture. He is eight 21 weeks out now. He is in a Sarmiento brace. He 22 is not having any pain. He still has a lot of 23 edema in his foot. His ankle is stiff and he is 24 concerned a little bit about rotation. 25 Review of Systems: The patient's 25 1 past medical history, social history, family 2 history, and detailed review of systems were 3 reviewed and recorded. 4 Physical Exam: His tibia has no 5 swelling. There is edema and rubor in his foot. 6 Q What is rubor? 7 A It is red appearing. 8 Q And edema is what? 9 A Swelling. 10 He has a good pulse. To my 11 inspection, his foot is slightly externally 12 rotated compared to his other; but overall, there 13 is excellent alignment in his leg. 14 Diagnostic Tests: X-rays of his 15 tib-fib fracture showed a near anatomic 16 alignment. The fracture lines are starting to 17 fill in. He had a comminuted tib-fib fracture. 18 I am pleased with the progress. 19 Diagnosis: Right tib-fib comminuted 20 fracture healing nicely, nonoperatively. 21 Continue the Sarmiento brace. He can progress to 22 full weightbearing as tolerated. He can have it 23 off at nighttime, which will help the foot edema. 24 Plan: I am going to start him on 25 physical therapy for edema control of the foot, Leary Reporting (717) 233-2660 14e2939e-bdd8-4b2d-95b1-907adc6884cb Marsteller v. Hanks, M.D. J. Spence Reid, M.D. April 4, 2014 Leary Reporting (717) 233-2660 14e2939e-bdd8.4b2d-96b1-90Tadc6884cb 26 27 1 and range of motion strengthening of his ankle 1 Marsteller to you because he respects your 2 and leg. Follow up for repeat X-rays in one 2 opinion. And Mr. Marsteller went to see you. I: 3 month. I told him that the little bit of 3 that right? 4 external rotation is not going to change and 4 A Correct. 5 overall I am actually pleased with the alignment. 5 Q And in the orthopedic institute or 6 To change the rotation would require an 6 Dr. Hanks' records 0048, is there actually a 7 osteotomy, a major surgical risk, which I think 7 letter or report from you? 8 he should function just fine once this is 8 A Yes, dated 6/27/2012. 9 completely healed. Re-x-ray of the tib-fib in 9 Q And to put it in proximity, Dr. 10 one month. 10 Hanks had seen Mr. Marsteller on 6/21, six days 11 Q You aware, Doctor, that Mr. 11 before. Is that right? 12 Marsteller was not satisfied with what Dr. Hanks 12 A Correct. 13 had said with regard to rotation and asked for a 13 Q And at that time talked about a 14 second opinion? 14 little bit of external rotation. Is that right? 15 A That is my understanding as how he 15 A Correct. 16 eventually found his way to me. 16 Q And the time before that he had 17 Q Did you at the time have a 17 talked about excellent alignment. Is that 18 relationship with Dr. Hanks and his practice? 18 correct? 19 A Well, a relationship in the sense 19 A Correct. 20 that he practices in the same region as I do. 20 Q Can you please read your report so 21 And he has occasionally referred me patients in 21 the jury will know what you said on June 27, 22 the past for trauma-related problems. 22 2012? 23 Q We have taken his deposition, and I 23 A The whole report? 24 am going to ask you to assume a hypothetical 24 Q Well, let's -- 25 question as we have it, that he referred Mr. 25 A I mean, I will read it if you want 28 29 1 me to. 1 muscle multiple pieces. That would be called a 2 Q It is actually just a page and 2 high energy fracture. This is in comparison to 3 another paragraph. 3 that. 4 A Okay. That's fine. 4 Q Can you just read the next sentence 5 Q I think if you read it, I can then 5 and then I will ask you questions about that? 6 ask you questions from it. 6 A His closed spiral fracture was 7 A Okay. This is my first clinic visit 7 treated at OIP/Pinnacle appropriately with closed 8 for this 49 -year-old male, who is approximately 8 reduction and long-leg casting. 9 eight weeks status post a right tibia fracture. 9 Q Are there different ways that one 10 This is a low energy fracture that he sustained 10 can treat the type of fracture that Mr. 11 playing with his kids. 11 Marsteller sustained? 12 Q Can I stop you there? What is a low 12 A Yes. 13 energy fracture? 13 Q What types are there? 14 A It means that -- how can I best 14 A In an adult you would consider an 15 quantitative -- or explain this. 15 intramedullary nail that goes down the inside of 16 The force that broke the tibia was 16 the bone. You can consider a plate on the 17 applied without a direct impact on the leg. It 17 outside of the bone, under the skin. You could 18 was applied indirectly in this case through 18 consider an external fixation device or casting. 19 rotation of the foot. 19 All of them imply reduction as the first step; 20 And so the skin was not broken. 20 but then the way you hold it after the reduction 21 There was very little displacement. And not a 21 is the various ways I described, the choices. 22 lot of energy was imparted to the bone, just 22 Q What do we mean when we talk about 23 enough to create the fracture; as opposed to a 23 reduction? 24 motorcycle accident in which the leg hits the 24 A Reduction simply means trying to put 25 guardrail, the skin is open and the bone is in 25 the bone back in the same position they were Leary Reporting (717) 233-2660 14e2939e-bdd8.4b2d-96b1-90Tadc6884cb Marsteller v. Hanks, M.D. J. Spence Reid, M.D. April 4, 2014 Leary Reporting (717) 233-2660 14e2939e-bdd8.4b2d-95b1-807adc6884cb 30 31 1 before they broke. 1 because we are going to ask the doctor to 2 Q And there are different ways you can 2 assume that Mr. And Mrs. Marsteller were 3 do that? 3 deposed and that they testified from 4 A Correct. 4 that. 5 Q And the notes you saw from Dr. 5 It is also part of the history, 6 Hanks, did you see anything where he mentioned 6 which takes it outside of the hearsay 7 doing anything other than a brace -- or other 7 objection. 8 than a cast? 8 A I wasn't aware of anything he told 9 A Meaning -- I don't know any 9 them until you told me today. 10 discussions that he had with the patient. I have 10 Q You were not aware until I told you? 11 no idea. 11 A Correct. 12 Q No, I am saying, from the notes that 12 Q In terms of a patient -- and in this 13 we read? 13 case, a patient and his wife expressing concern 14 A No. 14 about rotation, is there a type of test that a 15 Q Are there pros and cons for each 15 doctor could have done on April 28 to find out if 16 type? 16 there was rotation problem? 17 A Sure. 17 MR. SHUSTED: Objection. Beyond the 18 Q Are you aware that, from my 18 scope of what he stated in his reports, 19 discussion with you before this deposition, that 19 along the same lines as the objection I 20 Mr. Marsteller and his wife expressed concern 20 made before. This is beyond what has 21 about rotation when and after Dr. Hanks had 21 been written. 22 casted him. 22 A Theoretically speaking, the way you 23 MR. SHUSTED: Objection. Objection 23 could accurately determine rotation is with a CAT 24 is hearsay. Go ahead. 24 scan, theoretically speaking. 25 MR. ANGINO: It is not hearsay 25 Q But no CAT scan was done? 32 33 1 A That's correct. 1 plate X-ray doesn't help you much either. Is 2 Q And in terms of determining 2 that right? 3 alignment, particularly with regard to rotation, 3 A Well, interestingly in this case it 4 is it difficult when a patient is in a cast? 4 does not. Sometimes in a spiral fracture you can 5 A Yes. 5 actually see the spiral fracture literally unwind 6 Q Why is it difficult? 6 because of rotation, in which case you see the 7 A Because the landmarks by which one 7 fracture lines. 8 judges clinical rotation are obscured. 8 In this case it did not. The plain 9 Q What are those landmarks? 9 film does not give you a clue to the rotational 10 A The kneecap for one, and part of the 10 issue in this case, 11 — it is going to be this, the position of this 11 Q Tell us what a CAT scan is? 12 with respect to the foot and the position of 12 A CAT scan is a series of X-rays made 13 this, what is called the tibial tubical, with 13 in planes such that it is cut and you can look at 14 respect to the foot. Those are both covered in a 14 them as if it were cut and you were looking down 15 cast, so you can't see them or feel them, So you 15 on it. It is just a different way, but it is a 16 lose those landmarks to judge. You can see this 16 series of X-rays done in a plane. 17 foot; but you can't see this part. And so you 17 Q Would that have shown what the 18 really can't judge what position it is in. 18 rotational misalignment was? 19 The point is, the foot can look 19 A Yes. 20 externally rotated because the person is holding 20 Q Thank you. Next sentence please 21 their leg like that, or because the leg is 21 proximally? 22 correct and the foot is rotated. You can't tell 22 A At approximately the five-week mark, 23 the difference based on the examination alone 23 the long-leg cast was removed and the patient was 24 because the long-leg cast obscures the landmarks. 24 placed in a functional fracture brace using 25 Q And similarly you said the flat 25 Sarmiento -type technique. Leary Reporting (717) 233-2660 14e2939e-bdd8.4b2d-95b1-807adc6884cb Marsteller v. Hanks, M.D. J. Spence Reid, M.D. April 4, 2014 Leary Reporting (717) 233-2660 14e2939e-bdd8-4b2d-95b1-807adc6884cb 34 35 1 Q What is Sarmiento? 1 side. Knee range of motion is from 4 degrees to 2 A Sarmiento is a gentleman, August 2 about 95 degrees. The right foot is 3 Sarmiento who practices in California who 3 significantly swollen compared to the left foot. 4 popularized this type of fracture brace for low 4 There is no tenderness about the foot. The 5 energy tibia fractures. And it carries his name. 5 fracture site in the distal third of the tibia is 6 Sarmiento type technique encouraged 6 minimally tender. Neurovascular exam of the 7 to begin gentle weightbearing. At this point, 7 right foot and leg is intact except as otherwise 8 meaning currently at the eight-week mark, the 8 noted with the vascular engorgement. The patient 9 patient's beginning physical therapy for range of 9 does have a visible external rotation deformity 10 motion of the knee and ankle. And he noted what 10 on the right side compared to the left. 11 he thought was external rotation of the right 11 Q Can I interrupt you? Was it obvious 12 side compared to the left side and is here 12 to you when you saw Mr. Marsteller six days after 13 seeking a second opinion with regard to that 13 Dr. Hanks that he had a visible external rotation 14 problem. Patient is actually otherwise quite 14 deformity? 15 healthy. He states he is on no current 15 A What I mean by that is the right leg 16 medications. He has no significant past medical 16 was more externally rotated than the left when I 17 history other than a torn meniscus of his left 17 saw him. 18 knee in 2011. He is extremely active. He rides 18 Q And the use of the word deformity 19 a bike, he runs. He's a nonsmoker. 19 means what? 20 On physical exam, he has some 20 A Just what I said. It means one is 21 atrophy of his thigh and calf muscles on the 21 different than the other. 22 right side. There is some vascular engorgement 22 Q Okay. And was it obvious merely by 23 of the right foot, which is typical after a 23 comparing one with the other? 24 period of restrictive weightbearing. I can get 24 A It was really obvious when he got up 25 the ankle to come just to neutral on the right 25 with his crutches and walked, and we could 36 37 1 observe the knee and what is called the foot 1 weightbearing at that point. So I don't know 2 progression angle, which is the angle the foot 2 what weightbearing status was in the office 3 makes during walking, and looked at his knee. 3 because the cast, I think had been off now. The 4 The combination of looking at the knee facing 4 cast was already off several weeks at this point, 5 forward and watching the foot progression angle, 5 but now it states in the diagnosis he can 6 you could see with the walking with the knee 6 progress to full weightbearing as tolerated. 7 uncovered, there was a difference. 7 So it seems he is giving him 8 Q Was there any mention six days prior 8 permission to start to really walk on it with the 9 that Dr. Hanks had Mr. Marsteller walk? 9 foot flat on the floor. 10 MR. SHUSTED: Objection. You can 10 Q But my question is, as part of the 11 ask him. 11 physical exam, do you see either on 5/10 or on 12 Q If you need to look at it again, you 12 5/31 that he actually had Mr. Marsteller walk as 13 can. 13 you had Mr. Marsteller walk? Do you see -- 14 A Do you know the number? 14 A I don't see that. But I need to 15 Q Sure. 15 jump in and state there is no point in watching a 16 A I think he was at that point just 16 patient walk until you have allowed them to be 17 sending him to physical therapy. I think that 17 full weightbearing. There is nothing to be seen, 18 was the last part of his note that day. 18 because they are holding their foot off the 19 Q If we look at -- 19 floor. 20 A 6/21. 2 0 Q But as of 5/10, was he fully 21 Q If we look at 038 when he talks 21 weightbearing? 22 about the physical exam? 22 A As of when I saw him in the office, 23 A I think 37, which is 6/21. 23 he was putting — well, he was still using both 24 Q I'm sorry. 24 crutches, but he was putting some real weight or 25 A He is going to progress him to full 25 the floor at that point. Leary Reporting (717) 233-2660 14e2939e-bdd8-4b2d-95b1-807adc6884cb Marsteller v. Hanks, M.D. J. Spence Reid, M.D. April 4, 2014 Leary Reporting (717) .233-2660 14e2939e-bdd8-4b2d-95b1-907adc6884cb • 38 39 1 Q Let's continue with your report, 1 A Yes. 2 please. I think you were on review of his 2 Q Continue, please. 3 X-rays. 3 A I counseled Mr. Marsteller that his 4 A Review of his X-rays shows a spiral 4 treatment was certainly within the standard of 5 fracture with a proximal fibular fracture and a 5 care for this injury, but I agree that there is 6 distal third tibia fracture. The fracture in 6 some external rotation of the right compared t 7 both AP and lateral X-rays appears to be well 7 the left side. It is difficult for me to 8 aligned with less than 5 degrees angulation in 8 quantitate this. I stated that up to 10 degrees 9 any plane and only about 4 to 5 millimeters o 9 would be considered acceptable, either extern 10 translation. 10 or internal rotation, and even past that it is 11 Q May I interrupt you, please? When 11 difficult to define whether or not this creates 12 you talk about less than 5 degrees angulation i 12 any significant functional difference and may 13 any plane, would that have included rotation? 13 require certain adaptations when running or 14 A No. 14 biking, but most likely would not cause any 15 Q Okay. 15 long-term issues with ankle or knee joint 16 A Also there is minimal to no 16 irritability. 17 shortening of the spiral fracture. Clinically 17 Q May I interrupt you? Did you at 18 there does appear to be external rotation of the 18 this point from the X-ray and your observatior 19 right compared to the left. It is difficult to 19 feel that he had less than 10 degrees of 20 quantitate and it also difficult to determine ho 20 rotation? . 21 much healing is going on at the fracture site o 21 A I didn't feel able to quantitate it 22 the plain X-rays. 22 at this point. 23 Q So you here mention the difficulty 23 Q Did you feel you needed something til 24 of determining rotation from the X-rays. Is t24 assist you to quantitate it? 25 what you are saying? 25 A Yes, 40 41 1 Q What did do? 1 revealed, that the rotational difference from 2 A I counseled the patient that he 2 right to the left depending on how it is measured 3 should obtain a CT scan to accurately quantitate 3 is anywhere between 20 to 25 degrees of external 4 the rotational difference right to left, and also 4 rotation on the right compared to the left. It 5 to look at the healing at the fracture site to 5 also shows there is callus formation at the 6 determine how we can proceed with correction if 6 fracture site that might make immediate 7 that is selected. 7 correction somewhat difficult and may require us 8 The patient did obtain a CT scan 8 to open the spiral fracture to obtain the 9 after now -- I want to comment here that what we 9 correction, The other alternative is to let this 10 did was, we sent him to the CT scanner right fro 10 fully heal and do the correction through an 11 the clinic, He came back to the clinic the same 11 osteotomy at another site. I am going to call 12 day, and then I saw him about two hours later. 12 the patient to discuss our options -- I'm sorry 13 So this note, between that paragraph and his 13 this was dictated after he went home. I 14 paragraph is about a two-hour time lag while he 14 apologize. 15 went to the CT scanner. 15 Q It's okay. 16 Q So up to that time when you were 16 A I will call the patient to discuss 17 expressing your opinion as to the standard of 17 our options, which will include use of 18 care, were you of the thought that it was 10 18 intramedullary nail or a Taylor spatial frame, 19 degrees or less for rotation? 19 both which would also allow immediate 20 MR. SHUSTED: Objection. Leading. 20 weightbearing and continuation of physical 21 A I was simply stating that is what I 21 therapy. 22 would consider acceptable. 22 Q What I am going to ask now, Doctor, 23 Q So then he had the CT scan? 23 is if Dr. Hanks had done a CT scan on 4/28 -- 24 A Correct. The patient did obtain a 24 husband, wife say just looks like it is rotated 25 CT scan after discharge. And two things were 25 to me. They do a CT scan. What would have had Leary Reporting (717) .233-2660 14e2939e-bdd8-4b2d-95b1-907adc6884cb Marsteller v. Hanks, M.D. J. Spence Reid, M.D. April 4, 2014 Leary Reporting (717) 233-2660 14.2939e-bdd8-4b2d-95b1-907adc8884cb 42 43 1 to be done if it was done that very day? 1 felt that the rotation that was identified was 2 MR. SHUSTED: Objection. Beyond the 2 within the acceptable range. 3 scope. Asking for an expert opinion 3 Q Would 20 to 25 degrees be within the 4 beyond what has been stated in these 4 acceptable range? 5 records. 5 MR. SHUSTED: Objection. Calls for 6 You can answer, Doctor. 6 expert testimony and is speculative. 7 A He would have had to go back to the 7 Doctor, you can answer the question 8 operating room and he would have needed anothe• 8 subject to that objection. 9 reduction, and then he would have needed some 9 A That really depends on activity 10 type of internal fixation or external fixation 10 level. If it were somebody who was 65 and was 11 device done to hold in it position. 11 going to go out to their mailbox and walk arounc 12 At that point, a cast would probably 12 their yard and tend to their flowers, they may 13 have not been reselected because of the 13 not be bothered by 20 degrees of external 14 difficulty in holding the rotation. 14 rotation. 15 Q Did Dr. Hanks do that? 15 He was a runner and a biker, and it 16 MR. SHUSTED: Objection. You can 16 was going to bother him. 17 answer. 17 Q So it would not be acceptable to 18 A No. 18 him? 19 Q Were there other periods of time 19 A Correct. 20 over the course of a period from 4/28 up until 20 Q As a result, did he decide to have 21 6/21/2012 where Dr. Hanks, at least from the 21 you do surgery? 22 notes that you saw, ever considered doing 22 A Correct. 23 anything other than continuing with the cast 23 Q And what surgery did you do? 24 situation? 24 A We did an open -- it is difficult to 25 A It is clear from the notes that he 25 describe what we did inside the fracture site; 44 45 1 but we basically loosened it to allow it to move 1 here. And these are aluminum rings, three of 2 and then we closed it. We cut the small bone, 2 them; and they are attached to the bone through 3 the fibula, and put on what is called a Taylor 3 the skin through a series of pins. And then this 4 spatial frame, which is a combination of rings 4 ring basically gains purchase on the lower bone 5 and pins that go into the bone. And we can 5 below the fracture. These two rings gain 6 accurately rotate and move the position of one 6 purchase on the bone above the fracture. And 7 part of the bone with respect to the other part 7 these six angled struts are adjusted by the 8 of the bone. 8 patient every day. And it allows us to gradually 9 Q When was that done? 9 move and correct the position slowly over time. 10 A 5th of July 2012. 10 This is a computer assisted software.technique. 11 Q I am going to ask you to look at the 11 Q What do you do over a period of 12 next group of exhibits which would be R-3. 12 time? How do you change the position? 13 (Exhibit R-3, Index of Deposition 13 A Once a day basically this is turned 14 Exhibits for Marsteller v Hanks, marked 14 to a new position. And these six struts are what 15 for Identification.) 15 changes the position of one bone with respect to 16 A Okay. 16 another. They are adjusted once a day. 17 Q Can you look at Bates 233, please -- 17 Q And who does that? 18 A Okay. 18 A The patient does. 19 Q Can you put it up so the jury can 19 Q If I turn to 235, could you tell us 20 see it? 20 what that is? 21 A Yes. 21 A This is basically a picture of the 22 Q Could you tell the jury what they 22 same thing but from the side. Again, the knee is 23 are seeing? 23 up here, the ankle and foot are down here. And 24 A This is Mr. Marsteller's right leg. 24 this just basically shows the same thing. These 25 Here is his foot down here. Here is his knee 25 are the pins that come off the rings, and here is Leary Reporting (717) 233-2660 14.2939e-bdd8-4b2d-95b1-907adc8884cb Marsteller v. Hanks, M.D. J. Spence Reid, M.D. April 4, 2014 Leary Reporting (717) 233-2660 1492939e-bdd8-4b2d-95b1-907adc6884cb 46 47 1 the ring down by the ankle. And then these are 1 that? 2 the struts that are adjusted to make the 2 A We put him in a removable what is 3 correction. 3 called a boot, which is a velcro device that 4 Q Again by the patient? 4 provides some additional stability and allowed 5 A Yes. 5 him to continue to walk on it. Something we 6 Q Doctor, how long did this have to 6 standardly put people in immediately after 7 continue? 7 removal of these frames. 8 A The actual adjustments were done 8 Q How long was he in the boot? 9 relatively quickly over about two weeks. And 9 A I saw him two weeks after the frame 10 then the remaining time in the frame was to let 10 came off, and he was still in the boot. And I 11 everything heal. 11 told him, as he felt better, he could take the 12 Q So let's start with the date you 12 boot off and put a regular shoe on. What I 13 started this process, was what date? 13 typically tell patients is, start wearing your 14 A Probably the day after the surgery. 14 shoe around the house. Wear the boot when you 15 Q Which was? 15 are outside. And as you feel more and more 16 A 7/5. 16 comfortable, you can discontinue the boot 17 Q Did he eventually reach a point 17 altogether. I don't know exactly when he stopped 18 where this apparatus could be taken off? 18 it. 19 A Yes. 19 Q Did you see him again? 20 Q When was that -- 2 0 A I saw him once after the frame came 21 A The 12th of November 2012. 21 off on the 28th of November. 2 2 Q So August, September, October, 22 Q Was the boot off at this point? 23 November, about four months? 23 A This is where I told him he could 2 4 A Yes, 24 wean himself out of the boot. So he still had 2 5 g And what did you prescribe after 25 the boot on two weeks after the frame came off. 48 49 1 Q So you have not seen him since he 1 2 still had a boot on? 2 EXAMINATION BY MR. SHUSTED: 3 A I have not seen him since the 28th; 3 Q Good afternoon, Doctor. 4 and at that point, he was still wearing the boot. 4 A Hi. 5 Q So you don't know what his condition 5 Q I have some questions for you. Why 6 has been from then to the present? 6 don't we start at the last time that you saw the 7 A That's correct. 7 patient, which you have told us was November 28 8 -Q Had you, when he was a the boot, 8 2012. Is that right? 9 permitted him to attempt to perform limited work? 9 A That's correct. 10 A Yes. I don't have any discussion 10 Q And just I had the opportunity of 11 recorded in my note with respect to work at this 11 looking at your record from that visit. 12 point. 12 Do you conclude your note by stating 13 Q So you are not able to give us an 13 to the patient that if he has any issues with 14 opinion as to if he went to work, the type of 14 respect to his leg, that he ought to come back to 15 work or any of that? 15 see you? 16 A No, I don't know. 16 A Yes. 17 Q Doctor, I don't have any further 17 Q Has the patient come back to see you 18 questions. 18 since that point in time? 19 MR. SHUSTED: Off the record fora 19 A No. 2 0 moment. 20 Q And that is about a year and a half 21 VIDEOGRAPHER: Off the record. The 21 ago, as we sit here today? 22 time is 2:12 too 12 p.m. 22 A Correct. 23 (Discussion held off the record.) 23 Q Do you know if your office has 24 VIDEOGRAPHER: We are back on the 24 received any phone calls from Mr. Marsteller or 25 video record. The time is 2:13 p.m. 25 his wife about his condition since November 28, Leary Reporting (717) 233-2660 1492939e-bdd8-4b2d-95b1-907adc6884cb Marsteller v. Hanks, M.D. J. Spence Reid, M.D. April 4, 2014 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 50 2012? A Well, I have since taken care of his wife for a foot fracture. So I have seen the husband in the office with her, but it has been unofficial and off the record. Q So not relevant to this case. A Correct. Q But now that you have seen Mr. Marsteller when you saw him and his wife for the wife's foot fracture, did Mr. Marsteller complain to you about his leg at that point in time? A My recollection is that he was progressing well and doing fine. And he didn't register any complaints at that point to me. Q Was Mr. Marsteller happy with the outcome from your treatment as of November 2012 MR. ANGINO: Objection. He can't say whether he was happy. How does he know? MR. SHUSTED: Thank you. Withdraw that question and I will ask a different one. BY MR. SHUSTED: Q Did Mr. Marsteller thank you for the treatment you rendered to him? 51 1 A Yes. 2 Q Did he appear happy to you with the 3 treatment you rendered to him? 4 A Yes. 5 Q And would you consider this a 6 successful outcome for Mr. Marsteller? 7 A Yes. 8 Q Let's step back for a moment. I 9 want to ask you about your role in this case. 10 You first saw the patient in late 11 June 2012 and last saw the patient November 201 12 That is about a five month window of time. Is 13 that right? 14 A Six months, yes. 15 Q Thank you for the mathematical ? 16 correction. As 1 understand it, your role in 17 this case at this deposition is to provide a 18 description of what your treatment was for the 19 patient? 20 A Yes. 21 Q And as I understand it, you are not 22 offering testimony on the standard of care in a 23 medical malpractice case? 24 A That is my understanding as well. 25 Q You are aware that Mr. Marsteller 52 1 has filed a lawsuit against Dr. Hanks and has 2 made a claim of malpractice against him? 3 A Yes. 4 Q And so we are clear, you are not 5 offering an opinion that Dr. Hanks violated the 6 standard of care when he treated the patient. Is 7 that right? 8 A That's correct. 9 •Q • Have you ever served as an expert in 10 medical malpractice cases for other matters? 11 A Yes. 12 Q Whether for a patient or not? 13 A Yes. 14 Q And are you typically compensated 15 for that testimony? 16 A Yes. 17 Q But you are not doing that in the 18 case of Marstel ler vs Dr. Hanks, are you? 19 A My understanding is I am not 20 functioning as an expert witness in this case. 21 Q And you have not written an expert 22 report which criticizes the treatment rendered by 23 Dr. Hanks in this matter? 24 A That is correct. 25 Q Now, when Mr. Angino began Leary Reporting 53 1 questioning you, he talked about the idea of 2 second opinions? 3 A Yes. 4 Q And in your practice do you 5 frequently see patients who come to you for a 6 second opinion? 7 A Yes. 8 Q And I see from your white jacket you 9 are wearing there, that you are the chairman of 10 the -- chief orthopedic trauma. You are chairman 11 of the orthopedic trauma department? 12 A Chief of the division. 13 Q And in that capacity here at the 14 great institution of Penn State Hershey Medical 15 Center, you frequently do see patients for second 16 opinions. Is that fair? 17 A Yes. 18 Q And do you counsel your patients 19 that they can go to another orthopedic physician 20 if they want to get a different opinion than the 21 one you offered to them? 22 A Absolutely. 23 Q The way it works, as I understand 24 second opinions, is you may have one opinion 25 about a diagnosis or treatment options for a (717) 233-2660 14e2939e-bdd8-4b2d-95b1-907adc6884cb Marsteller v. Hanks, M.D. J. Spence Reid, M.D. April 4, 2014 Leary Reporting (717) 233-2660 14•32939e-bdd8-4b2d-95b1.907adc6884cb 54 55 1 patient; and another doctor may have different 1 A Correct. 2 ideas based on their training and experience as 2 Q And if you have an opinion on the 3 to what could be best for a patient. Is that 3 case as to what -- or if you have an opinion 4 fair? 4 about a patient and another doctor has another 5 A Sure. 5 opinion, it doesn't mean that the other doctor 6 Q And your opinion -- if there is a 6 has violated the standard of care? 7 disagreement of opinion, it doesn't mean the 7 A Correct, 8 other guy is wrong. It is just how things can 8 Q And the same vice versa would be 9 work in medicine. There can be different 9 true? 10 approaches all within the standard as to how a 10 A I would hope it would be true. 11 condition can be treated. Is that fair? 11 Q Now, let's talk about your initial 12 A Yes. 12 report; because as Mr, Angino has indicated, tha 13 Q You say this is my diagnosis and 13 is the dispute we are having in the case. And 14 recommendation. Dr. X may feel differently. Sp 19 that is from June 27, 2012. Is that right? 15 I welcome the opportunity for you to go to a 15 A Yes. 16 different doctor to get a second opinion? 16 Q And you pretty much read the entire 17 A Sure. 17 thing. So what I would like to do is, rather 18 Q And in reality, that is what 18 than repeating that, is to ask you a couple 19 happened here. Dr. Hanks rendered treatment to 19 questions about it. Okay? 20 the patient, and the patient expressed the idea 20 A Sure. 21 that he wanted to get a second opinion. And that 21 Q When you looked at the X-rays, you 22 is where your role came to this case? 22 described the degree of angulation. Is that 23 A That's correct. 23 right? 24 Q And you was the patient quite 24 A Yes. 25 quickly after he had last seen Dr. Hanks. True? 25 Q And that was 5 degrees of 56 57 1 angulation? 1 care was violated? No. 2 A I said less than 5 degrees in any 2 Q That was my question and you 3 plane. 3 restated it for me. I am glad that we understanc 4 Q And that would be acceptable to you? 4 that. 5 A Yes. 5 So the angulation -- can you 6 Q And the term "acceptable" was used 6 describe for the jury what that is using the 7 in many different ways. When you use the term 7 tibia bone? 8 "acceptable," do you mean to state in the 8 A Angulation. 9 standard of care or that is the recommendation or 9 Q Angulation. Okay. 10 the goal that was sought. How would you 10 A Angulation would mean if you look at 11 characterize that? 11 the leg, if it is tilted this way or tilted this 12 A Acceptable to means to me what I am 12 way, looking at the front; or looking at it from 13 willing to accept, And that I think if left 13 the side, if it is tilted this way or that way, 14 alone would be satisfactory for the patient. 19 that is considered angulation. 15 So it means to me I have no further 15 Q And you mentioned that you thought 16 need to change any of it. It is acceptable to me 16 it was less than 5 degrees looking at it from 17 for what I think the patient needs. 17 both perspectives? 18 Q And if something is unacceptable, 18 A Yes. 19 would that be a violation of standard of care? 19 Q And is it a true statement that a 20 I mean, in other words, are we talking about two 20 physician tries to get the best reduction they 21 different things from a medical perspective 21 can, given the circumstances? 22 versus care rendered to a patient? 22 A Sure. No one is going to 23 A That is a big question. But if you 23 intentionally put something in a position that 24 are asking the question does -- just because 24 they think is unacceptable. 25 something is unacceptable mean the standard of 25 Q Right. The question I have is, the Leary Reporting (717) 233-2660 14•32939e-bdd8-4b2d-95b1.907adc6884cb Marsteller V. Hanks, M.D. 'J. Spence Reid, M.D. April 4, 2014 Leary Reporting (717) 233-2660 14e2939e-bdd8-4b2d-95b1.907adc6884cb 58 59 1 leg when you are born when God gives it to you 1 A That is acceptable. 2 has 0 degrees of angulation and 0 degrees of -- 2 Q So the angulation and the 3 A Not always, no. And 1 think -- but 3 translation planes were good. True? 4 usually there is a -- when we use the term -- 4 A Yes. 5 there are certainly alignment parameters that are 5 Q And you described for us earlier 6 considered normal. You can go to a textbook and 6 that this was a spiral fracture, meaning it began 7 look them up. 7 in the lower distal part of the tibia and then 8 But they vary based on height. They 8 sort of twisted around. 9 vary based on genetic predispositions, a lot of 9 A Yes. 10 things. 10 Q Can you us show that again? 11 Q While you were holding that tibia 11 A If I were to draw the fracture line, 12 up -- and 1 didn't mean to give you exercise, 1 12 it is as if you take a piece of wood and hold one 13 will ask you about the other thing. You talked 13 one way and twist it, it doesn't break straight 14 about translation. Can you explain that to 14 across. It breaks in a line that goes around. 15 members of the jury? 15 It almost unwinds. 16 A Translation is when at the fracture 16 The best way to describe it is if 17 site one bone is shifted, not angulated, but 17 you remember the inside of a toilet paper tube. 18 shifted. That is called translation. And that 18 When you unwind it, it actually unwinds. 19 is called angulation. 19 Q So -- you can put the exhibit down. 20 Q When you looked at the X-rays from 20 And the goal of an orthopedic 21 both angles, that was good alignment for that 21 surgeon dealing with a spiral injury is to get it 22 also? 22 back as close to without that spiral as possible. 23 A Yes. And I said -- I believe I said 23 Is that correct? 24 less than 4 millimeters, 4 to 5 millimeters. 24 A True. 25 Q And that is a good outcome? 25 Q And a way to do that is with a 60 61 1 closed reduction and the casting procedure? 1 hint of it on the X-rays? 2 A Yes. 2 A Usually you do. 3 Q Now, you mentioned at one point that 3 Q But in Mr. Marsteller's case, we 4 on this particular patient, Mr. Marsteller, that 4 don't even have a hint of it on the X-rays? 5 when looking at the X-rays, the degree of 5 A That's correct, 6 rotation could not be assessed. Is that right? 6 MR. SHUSTED: How much time do we 7 A That's correct. 7 have on the tape? 8 Q Is it the case in some case with 8 VIDEOGRAPHER: Off the video record. 9 spiral fractures that the degree of rotation can 9 The time is 2:25 p.m. 10 be assessed on X-ray? 10 (Brief recess.) 11 A Yes. 11 VIDEOGRAPHER: Back on the video 12 Q Would the fact that his degree of 12 record. The time is 2:28 p.m. 13 rotation could not be determined on the X-rays 13 BY MR. SHUSTED: 14 indicate that it wasn't jumping out as being out 14 Q All right. I think when we went off 15 of rotation? 15 the record, you mentioned that you were surprised 16 A There was a significant -- I was 16 when the CAT scan came back with the numbers tha 17 surprised by the results of the CAT scan; because 17 were in that. Is that right? 18 the plain X-rays did not indicate that it would 18 A Yes. 19 be that much. 19 Q Did you look at the CAT scan 20 Q And I am going to get to the CT in a 20 yourself or did you go by the numbers? 21 second. We might need more than the 17 minutes. 21 A I measured them myself. 22 But that comment I find very interesting. 22 Q Did you also rely upon what the 23 Would it be that if it was -- you 23 radiologist found there? 24 were really looking for a great amount of 24 A I generally don't, in all honesty. 25 rotation, that you would expect to see at least a 25 They measure a little different than I do. Leary Reporting (717) 233-2660 14e2939e-bdd8-4b2d-95b1.907adc6884cb Marsteller v. Hanks, M.D. J. Spence Reid, M.D. April 4, 2014 Leary Reporting (717) 233-2660 14e2939e-bdd8.4b2d-96b1-907adc6884cb 62 63 3. Q In looking at your note of June 27, 1 A Yes. 2 2012, the first time you saw Mr. Marsteller, you 2 Q And there has never been any dispute 3 stated "I counseled Mr. Marsteller that his 3 that the angulation and translation were all 4 treatment is certainly within the standard of 4 good. Is that right? 5 care for this injury, but I agree that there is 5 A That's correct. 6 some external rotation of the right compared to 6 Q The next sentence, I am going to 7 the left side. It is difficult for me to 7 read it and it is a long sentence, then I will 8 quantitate this." 8 ask questions about it. 9 Did I read that first sentence of 9 You state, "I stated that up to 10 10 that paragraph accurately? 10 degrees would be considered acceptable, either 11 A Yes. 11 external or internal rotation, and even past that 12 Q And this was written before you saw 12 it is difficult to define whether or not this 13 the CT scan. Is that right? 13 creates any significant functional difference and 14 A Yes. 14 may require adaptations when running or biking 15 Q When you said that the treatment was 15 but it most likely will not cause any long-term 16 certainly within the standard of care, were you 16 issues with angle or knee joint irritability. 17 referring to the treatment that Dr. Hanks gave 17 Did I read that sentence accurately? 18 with respect to the closed reduction and casting 18 A Yes. 19 of the injury? 19 Q That was a long sentence. Right? 20 A What I was referring to was that the 20 A Yes, it was. 21 selection of closed reduction and casting for 21 Q I want to see if we can break it 22 this injury is within the standard of care. 22 down for a second. 23 Q And at that point in time it was 23 Would you agree that it was your 24 difficult for you to quantitate what the amount 24 view that up to IO degrees was acceptable, and 25 of rotation was on it. Is that right? 25 even past 10 degrees or greater than that may no 64 65 1 cause any a significant functional difference? 1 would be with respect to his ankle and knee 2 A That is what I state. 2 irrespective of what he wants to do. Function 3 Q Did you also mean to state that 3 versus long-term disability. I was trying to 4 meaning if it is over 10 degrees, it would not 4 separate that out for the patient as two separat 5 affect day-to-day activities? 5 but distinct issues. 6 A Depending on what your day-to-day 6 Q When you were separating this out 7 activities are. 7 for the patient, did you ultimately make 8 Q Would you agree in even past 10 8 recommendations or give him options? 9 degrees, would not cause any long-term issues 9 A Yes, I ultimately did. 10 with ankle stability? 10 Q And one of the options was to open 11 A There is no data in the literature 11 the spiral fracture to make a change to it. Is 12 that suggests that rotational past 10 degrees is 12 that right? 13 going to predispose anyone to ankle or knee 13 A Yes. 14 arthritis or some degenerative problem as a 14 Q Did you actually open the spiral 15 result of the malrotation. 15 fracture? 16 Q The literature you just referenced, 16 A I did. We had to free enough of the 17 you are saying that the degree -- there is no 17 healing material to allow the external frame to 18 support in the literature that malrotation is 3.8 rotate it. 19 going to affect future arthritis or the 19 Q That was the option he chose. 20 possibility of arthritis. Is that fair? 20 A He chose correction. He basically 21 A Correct. I was trying to separate 21 said, I want this corrected. I am not willing to 22 out for the patient the difference -- two 22 live with this amount of rotation. And I don't 23 separate facts or two separate issues. One is 23 really care whether or not it affects my 24 what the patient desires to maximize what he 24 long term function of knee or ankle. I don't 25 wants to do versus what the long-term prognosis 25 like it. He said, I don't like it. And he said, Leary Reporting (717) 233-2660 14e2939e-bdd8.4b2d-96b1-907adc6884cb Marsteller v. Hanks, M.D. J. Spence Reid, M.D. April 4, 2014 Leary Reporting (717) 233-2660 14e2939e-bdd8.4b2d-96b1-907adc6884cb 66 67 1 Is it going to affect my running or my biking? 1 Q So even after you got the CT 2 And I said, you will probably notice a 2 results, you never wrote or offered the opinion 3 difference. You probably won't be happy with it. 3 that the treatment was below the standard of 4 Q Did you offer him an option to do 4 care. Is that right? 5 nothing? 5 A That's correct. 6 A Yes. 6 Q And as I understand it, you met with 7 Q And was it ultimately the patient's 7 Mr. Angino for about 10 or 15 minutes before the 8 decision as to whether to undergo the surgery or 8 deposition? 9 not? 9 A That's correct. 10 A Yes. The other option would be to 10 Q And he has the ability to do that 11 let it heal and have him embark on those 11 because he represents the patient. We have never 12 activities with it fully healed, with no pain; 12 met before today. Is that right? 13 and then make a decision, I am really unhappy 13 A That's right. 14 with this. At which point a different operation 14 Q And we didn't talk before the 15 could have been to do the rotation. Because we 15 deposition, other than to introduce ourselves? 16 are intervening during the period of healing. 16 A That's correct. 17 Q So the option he chose at that point 17 Q Let me turn to a different topic. 18 in time ultimately had a good outcome for him by 18 Did you ever note that Mr. Marsteller had unequa 19 the time you completed your treatment. Is that 19 leg lengths? 20 fair? 20 A Not to my recollection. 21 A Yes. 21 Q If he had leg lengths which were 22 Q Did you ever write in any of your 22 different, would you have noted that? 23 records that Dr. Hanks' treatment was not within 23 A It would have to be somewhat non 24 the standard of care? 24 subtle to be noticed. I did nothing to formally 25 A No. 25 measure his leg lengths. 68 69 1 Q That didn't seem to be an issue to 1 on it when it is bent. 2 you. Is that fair? 2 Q It is sort of an unspoken trick of 3 A Correct. 3 orthopedic surgeons to prevent the patient from 4 Q Is it true that one of the things 4 walking on it. You are making the leg shorter b' 5 that can happen when there is a spiral fracture 5 flexing the knee? 6 of the lower leg is that the leg can become 6 A And also flexing the knee helps you 7 shorter? 7 lock in the rotation; because otherwise, it is a 8 A Yes. 8 long tube that can do this. And when it is 9 Q And based on your review of the 9 flexed, it does help to control rotation. So two 10 X-rays, you noted that the fracture appeared to 10 reasons really. 11 be minimally displaced. 11 Q And when patients are taken out of 12 Does that refresh your memory as to 12 the cast, is it sometimes the case that they have 13 whether there was any leg shortening as a result 13 some stiffness with the knee joint because it has 14 of the spiral fracture? 14 been in a cast for a period of time? 15 A No, there wasn't at the time I saw 15 A Yes. 16 him or at the completion of care. 16 Q And it takes a few weeks to work 17 Q Okay. When a patient's leg is put 17 that out or maybe a month or two? 18 in a long-leg cast, as was done initially here, 18 A Correct. 19 is the knee typically flexed? 19 Q Now, when a knee is flexed or bent, 20 A Yes. 20 would you agree that that permits a greater 21 Q And the reason for that is you don't 21 degree of external rotation than when the knee H 22 want to have the knee locked in a fully extended 22 extended? • 23 position? 23 A Yes. 24 A And it prevents the patient from 24 Q And why is that, can you demonstrate 25 putting weight on it too. They can't put weight 25 that? Leary Reporting (717) 233-2660 14e2939e-bdd8.4b2d-96b1-907adc6884cb Marsteller v. Hanks, M.D. J. Spence Reid, M.D. April 4, 2014 Leary Reporting g (717) 233-2660 14629396-bdd8-4b2d-95b1.907adc6884cb 70 71 1 A There is a thing called -- as the 1 Q Plantar flexion, right. Is there 2 knee flexes, there is more laxity in it, 2 more a degree of rotation or a laxity, so to 3 basically. When it is locked out straight, it is 3 speak, that can be achieved with the foot? 4 the most stable position because that is when 4 A Yes. When the foot is down, this 5 weightbearing, But in the flexed position, there 5 can move. When it is brought up, it is locked 6 is more rotational movement. 6 in. 7 Q Is it natural for the foot to 7 Q And is the reason for that the way 8 externally rotate if the knee is flexed, as in 8 the talus bone on the foot fits into the tibia on 9 that position? 9 the bottom? 10 A I think it could internally -- 10 A Yes. 11 change more fluidly in a flexed position, either 11 Q There is a ridge there? 12 direction, 12 A Right. 13 Q So it is a freedom of movement when 13 Q You have written many articles. And 14 they are in flexion? 14 I looked at your curriculum vitae. Many of them 15 A There is freedom in both directions. 15 were on tibias. Is that right? 16 Q Now I will ask you about the ankle 16 A Yes. 17 joint, the end of the tibia where it meets the 17 Q And the treatment of tibial 18 talus. 18 fractures? 19 Could you point out to the jury 19 A Yes. 20 where the talus is? 20 Q And you have given presentations 21 A Here. 21 about that? 22 Q When the foot is pointed down or I 22 A Yes. 23 think it is called plantar extension. Is that 23 Q Have you ever heard of the 24 right? 24 gentleman -- a gentlemen, an expert or an 25 A Plantar flexion. 25 orthopedic surgeon by the name of Gerald Hayker 72 73 1 A No. 1 flexed, would it be necessary to find the 2 Q Have you ever heard of an orthopedic 2 matching anatomy on a different image, because 3 by the name John Esterhai? 3 the slicing of the images would not so show the 4 A Yes. 4 same levels to compare them? Do you follow me . 5 Q Who is he? 5 A Are you talking about a CT scan? 6 A I believe he is in practice at the 6 Q I am talking about a CT scan. 7 University of Pennsylvania. 7 A Well, if you are judging rotation 8 Q Have you given presentations with 8 and comparing one side to the other, you would 9 him before? 9 need to have optimally both legs in the same 10 A He may have been on a panel at some 10 position with respect to the CT scanner. 11 point. I don't remember anything specific. 11 Q Okay, And if the legs were not in 12 Q Is he well respected within the 12 the same position, what would be done when tryir 13 orthopedic field? 13 to determine rotation would be to find -- 14 A He is well published, yes. 14 A The matching cut on one leg and the 15 Q And is he published also on tibial 15 matching cut on the other leg? 16 fractures? 16 Q Yes. 17 A I think so. I can't pull up an 17 A Yes, that what we try to do, 18 individual paper in my mind. 18 Q Would an acceptable way to measure 19 Q Would you agree with me that one 19 rotation be to measure the angles on each leg at 20 method to measure the degree of rotation in the 20 the plafonds? 21 lower leg is to compare the same anatomical 21 A Yes. 22 features on one leg to the same anatomical 22 Q The far end of the tibia? 23 features on the other leg? 23 A Yes. 24 A Yes. 24 Q Why don't you put that out where 25 Q If one leg is flexed, if the knee is 25 that is? Leary Reporting g (717) 233-2660 14629396-bdd8-4b2d-95b1.907adc6884cb Marsteller v. Hanks, M.D. J. Spence Reid, M.D. April 4, 2014 Leary Reporting n (717) 233-2660 140939e-bdd8-4b2d-95b1.907adc8684cb 74 75 1 A Here is the plafond. 1 notice you had the words malrotation and malunio 2 Q So measure the angle on the plafond 2 in your records. And Mr. Angino did not ask you 3 there on the tibia on the right side? 3 about that; but I want to make it -- ask some 4 A Yes. 4 questions about that. 5 Q And you are holding up a right leg 5 For example, on your operative 6 there? 6 report, you list the risks of the procedure that 7 A Right. 7 you were going to do. And among those were 8 Q And you would measure the angle of 8 nonunion, Is that right? 9 the plafond on the left leg at the same level. 9 A Yes. 10 Is that right? 10 Q And malunion continuing malunion? 11 A The way it is done is you measure 11 A Yes. 12 the angle at the back of the tibia here on the 12 Q Those are the risks of any 13 right, and then the back of the plafond on the 13 procedure. Right? 14 right and you subtract the two; and then the same 14 A Sure. 15 measurements on the left and you subtract the 15 Q And if malunion occurs, that doesn't 16 two; because it is the difference between this 16 necessarily mean the physician, surgeon violated 17 and this which gives you the rotation of this 17 the standard of care. Is that right? 18 leg. And then you compare the same measurements 18 A Yes. 19 with this leg. And that is how you determine the 19 Q So the term malunion because it has 20 rotation of this leg with respect to that leg. 20 the -- 21 Q And when the calculations are being 21 A -- the word mal in it? 22 done; it is important to make sure you are on the 22 Q I think it is a prefix actually. 23 same levels with each leg. Is that right? 23 Right? 24 A Yes. 24 A That's true. 25 Q Moving to a different topic now. 1 25 Q So just because malunion or 76 77 1 malrotation is utilized by surgeons, it is not 1 recommendations for treatment. Is that fair? 2 synonymous with medical mal practice. Is that 2 A Yes. 3 right? 3 Q . When you discharged the patient on 4 A That's right. Malunion is used to 4 November 28, 2012, the last time you saw him, he 5 describe a finding on one side which is not there 5 had a good outcome? 6 on the other side. 6 A Yes. 7 Q And I've heard the analogy from 7 Q Is it true if a patient has any 8 surgeons that all fractures are unique and can be 8 symptoms since that point in time, it could be 9 different. And it is like dropping a gas on the 9 attributed to the initial trauma? 10 floor. A glass can break many different ways. 10 A I am not sure how to answer that 11 And the goal of the surgeon is put it back 11 question. Can you be more specific? I am not 12 together as closely as possible. Is that a good 12 sure how to answer it. 13 analogy? 13 Q The nature of a spiral fracture 14 A I have not heard that before. It is 14 injury is a significant trauma. Is that right? 15 an interesting analogy. I can see why it might 15 A Yes. 16 apply. 16 Q And this patient ultimately before 17 Q And it might apply because every 17 he even presented to Dr. Hanks had a significant 18 fracture is different? 18 trauma to his leg? 19 A Every fracture is different. 19 A He had a displaced fracture of his 20 Q So if one goes to a textbook to look 20 tibia and fibula, yes. The word "significant" is 21 at different fractures, there are recommendations 21 -- he had a broken leg and it was significant and 22 or goals to be achieved; but there is no one 22 required treatment. 23 patient or one fracture exactly textbook that you 23 Q And treatment was rendered by Dr. 24 can say this is the way to do it or not the way 24 Hanks. Is that right? 25 to do it. It is really an idea of 25 A Yes. Leary Reporting n (717) 233-2660 140939e-bdd8-4b2d-95b1.907adc8684cb Marsteller v. Hanks, M.D. J. Spence Reid, M.D. April 4, 2014 Leary Reporting n (717) 233-2660 14e2939e-bdd8.4b2d-95b1-907adc8884cb 78 79 1 Q And then you rendered some 1 the X-rays appear normal and the clinical 2 additional treatment. Is that right? 2 exam appears normal? 3 A Yes. 3 THE WITNESS: No. 4 Q And ultimately the patient had a 4 MR. SHUSTED: And that is something 5 pretty good outcome. Is that fair? 5 you did because the patient came to you 6 A Yes. 6 and expressed some concern about what he 7 Q Thank you. I have no other 7 perceived to be rotation. 8 questions. 8 THE WITNESS; Well, also at this 9 9 point, we had the advantage of him 10 EXAMINATION BY MR. ANGINO: 10 weightbearing walking with an exposed 11 Q Doctor, I am going to take you back 11 knee. 12 to page 49 of the Bates stamp. 12 And so that I think revealed the 13 MR. SHUSTED: Can I ask another 13 situation to a pretty clear level that 14 question before you begin? 14 may not have been as clear before. 15 MR. ANGINO: Sure, 15 MR, SHUSTED: Thank you. You 16 MR. SHUSTED: I apologize for 16 answered the question. 17 interrupting, but we are here at a 17 BY MR. ANGINO: 18 deposition. 18 Q Doctor, back to R-2, Bates Stamp 49? 19 MR. ANGINO: And the jury is hearing 19 A Yes. 20 all this. 20 Q Defense counsel spent a considerable 21 MR. SHUSTED: That's correct. I 21 time talking about how important it was in 22 just want to make sure. There was also 22 determining degrees of rotation, what one does in 23 something you brought up about a CAT scan 23 examining the CT scan film. Is. that right? 24 would reveal this type of information. 24 A Yes. 25 Is it standard to do CAT scans when 25 Q And you have testified that you 80 81 1 actually did that. Is that right? 1 side and you are calling that your reference 2 A Yes. 2 location. Then you go hunting for the same cut 3 Q And when you did it, did you do it 3 on the right and you can't find one that matches, 4 in the appropriate way as it was questioned of 4 so you see two that are very close but neither 5 you? 5 one is exact. So you make a measurement based c 6 A I do it in the way that I was taught 6 one, and you get 20 degrees, And you make the 7 to do it and have been doing it for quite 7 measure on the other and get 25 degrees. And the 8 sometime, yes. 8 same thing can occur at the bottom, which is the 9 Q And what you found was that 9 other reference location. 10 comparing the right with the left, depending on 10 So there is a little play based on 11 how it is measured, is anywhere from 20 to 25 11 which cuts you take. I mean if we gave the same 12 degrees of external rotation on the right 12 CT scan to ten radiologists and asked them to 13 compared to the left. 13 determine the rotational difference, you are 14 Could you tell us what you mean by 14 going to probably see that range in a bell curve 15 depending upon where it is measured 20 to 25 15 distribution of what they find. 16 degrees? 16 Q But the range was 20 on the low side 17 A It depends on which of the CT cuts 17 and 25 on the high side? 18 you take as your reference cut. And you try to 18 A Yes. 19 make the cuts be the same location on both right 19 Q Is that right? 20 and left; but sometimes you can't find an 20 A Yes. 21 identical cut just because of the way the patient 21 Q So that since you have that range, 22 is positioned in the CT scanner. So you pick the 22 might it also be 23? 23 best one you can find. 23 A Yes. 24 In other words, you have a cut on 24 Q Or 24? 25 the top of the tibia on the patient's normal left 25 A Yes. Leary Reporting n (717) 233-2660 14e2939e-bdd8.4b2d-95b1-907adc8884cb Marsteller v. Hanks, M.D. J. Spence Reid, M.D. April 4, 2014 Leary Reporting 1 (717) 233-2660 14.32939e-bdc18-4b2d-95b1-907adc6884cb 82 83 1 Q But it would not be ten? 1 inclusive when they write the chapter and don't 2 A Yes. 2 extend indications with something that is not 3 Q And it would not be 30? 3 really referable in the original cited document. 4 A Yes. 4 Q So if we looked at it, there would 5 Q So we are down to 20 to 25. Is that 5 be textbooks that would be included among medice 6 right? 6 literature, Is that right? 7 A Yes. 7 A Within the constraints I just 8 Q What I am going to do now is defense 8 stated, yes. 9 counsel talked about the medical literature. 9 Q And textbooks may depend upon 10 What do we mean when we talk about medical 10 references that go back over years? 11 literature? 11 A Yes. 12 MR. SHUSTED: Objection. Beyond 12 Q Articles, are they usually more 13 scope. 13 current? 14 A It is the sum total of the published 14 A Well, when you write a book chapter, 15 articles which pertain to a given area. And 1 15 you will tend to reference the older literature 16 want to differentiate that from book chapters; 16 and then the newer literature. When I say 17 because book chapters are -- and I have written 17 literature, in this case I mean articles. 18 many book chapters. It is an author's 18 And methods may have changed between 19 distillation of the medical literature at the 19 the old and the new. And something may come 20 time that chapter is written. 20 along which refutes an older article. And the 21 And some not often -- not 21 appropriate thing to do would be, if you were a 22 infrequently an author of a book chapter may need 22 textbook chapter writer, would be to state to the 23 to make a statement about appropriate management 23 reader how this new information now refutes 24 of an injury for which literature is 24 earlier information; and we should now accept 25 inconclusive. And one hopes that they state was 25 this as the new standard. 84 85 1 Q And the area that we are talking 1 Q You have taken me into the 10 2 about here; alignment, malalignment, has that 2 degrees and 5 degrees that I am going to ask you 3 been pretty much consistent for many years? 3 questions about. 4 A If you are going to go back and look 4 Rockwood and Green fractures in 5 at what authors recommend for acceptable 5 Adults, Volume 2, Sixth Edition 2006, would that 6 alignment of tibia fractures to be specific, that 6 be part of the medical literature you are 7 has been pretty standard over the course of time. 7 referencing? 8 Q That is my question. 8 A That would be a textbook that would 9 A However, if you go to the literature 9 be considered in the medical literature within 10 and ask the question -- let's take an example of 10 the constraints I already went over. 11 most textbook authors say you should have a tibia 11 MR. SHUSTED: Objection. Off the 12 fracture within less than 5 degrees of 12 record. May I have a continuing 13 angulation. And then you go back and ask the 13 objection to the use of the literature on 14 question, well, what happens if it is greater 14 this general topic? 15 than that and look for an article that shows an 15 MR. ANGINO: Absolutely. Since 16 increased incidence of arthritis or things like 16 mentioned literature, we are talking 17 that, it is all over the map. 17 about literature. 18 So an author has to give an opinion. 18 MR. SHUSTED: Actually the doctor 19 And we have to teach residents and teach young 19 initially brought it up. I just want to • 20 doctor some number to keep in their head. But if 20 clarify. 21 you go back and ask the question what really 21 BY MR. ANGINO: 22 happens if you go outside of that? Sometimes 22 Q I am going turn to R-3 and we are 23 there is good support with hard documentation of 23 looking at five. This would be Rockwood and 24 what and sometimes there isn't. So it depends a 24 Green Fractures in Adults. 25 bit. 25 A Yes. Leary Reporting 1 (717) 233-2660 14.32939e-bdc18-4b2d-95b1-907adc6884cb Marsteller v. Hanks, M.D. J. Spence Reid, M.D. April 4, 2014 Leary Reporting (717) 233-2660 14e2939e-bdd8-4b2d-95111-907adc8884cb 86 87 1 Q And I am asking you to turn to page 1 Q You are going exactly the direction 2 2129. 2 that I am going to go. 3 A Yes. 3 Mal means it is not aligned within 4 Q And you can see it is highlighted 4 acceptable degree? 5 there? 5 A That's correct. 6 A Yes. 6 Q And malunion means it has not 7 Q And I am going to start with the 7 reached union in an acceptable fashion. Is that 8 heading. It is called Malunion. Is that right? 8 right? 9 A That's correct. 9 A That's correct. 10 Q And Mr. Marsteller never fully 10 Q So there is evidence that 11 healed, so he didn't technically reach the point 11 malalignment and malunion are associated with 12 of malunion. Is that correct? 12 late knee and ankle osteoarthritis? 13 A Correct. 13 A That is what it states here. 14 Q But if he had gone to full healing, 14 Q "The definition of what actually 15 he would have had a malunion. Is that right? 15 constitutes a tibial malunion has never been 16 A Yes. 16 agreed upon, Many surgeons believe that the 17 Q And this particular section there is 17 tibia should be restored to its original 18 evidence that malalignment -- tell us what 18 alignment after fraction, and only minor degrees 19 malalignment is? 19 of malalignment should be accepted." Is that 20 A In the most general sense, 20 what it says? 21 malalignment would be a measurement either in 21 A That is what it says. 22 angulation, rotation or lengthening or shortening 22 Q "On this basis, 5 degrees of angular 23 of a fracture that is measurably different from 23 or rotatory malalignment or 1 centimeter of 24 the opposite side and outside of what we would 24 shortening is often used. And this seems to be a 25 consider acceptable. 25 reasonable definition of malunion. It is always 88 89 1 important to avoid malalignment; but if it 1 is not referenced. And I know this literature, 2 occurs, the patient must be returned to the 2 and that literature is all over the map. And I 3 operating room and the fracture must be 3 could find equal articles on the other side; but 4 realigned." Is that what it says? 9 that is what it states. 5 A Yes. 5 Q And now I want to go to 10. We are 6 Q "It is much easier to reoperate and 6 talking about all over the lot. 7 correct the malalignment early than it is to 7 I am sure you are familiar with this 8 carry out a late osteotomy." Is that right? 8 particular brief, are you not? 9 A That is what it says. 9 A I have seen it. 10 Q We go on. "In asymptomatic patients 10 Q And this is actually 2011. Is that 11 who have a rotational or angular deformity. 11 right, accepted? 12 between 5 and 10 degrees, it is impossible to 12 A Yes. 13 accurately predict whether they will develop late 13 Q This would be a peer reviewed 19 arthritis." Is that what it says? 14 document? 15 A Yes. 15 A Yes. 16 Q But it goes on to say, "The greater 16 Q And it starts with, "Fractures of 17 the deformity is, the higher the incidence of 17 the tibial shaft are the most common long bone 18 posttraumatic osteoarthritis will be and the 18 fractures, with an incidence greater than 75,000 19 author recommends surgical treatment of 19 per year in the U.S." Would you generally agret 20 asymptomatic angular or rotational deformities of 20 with those numbers? 21 more than IO degrees." Is that what it says? 21 A Yes. 22 A That is what it states, but it is 22 Q Although intramedullary fixation has 23 not referenced. 23 become the mainstay of treatment, many of these 29 Q That is what it states? 29 fractures are amenable to closed treatment. 25 A Yes. That is what it states, but it 25 What does that mean, intramedullary Leary Reporting (717) 233-2660 14e2939e-bdd8-4b2d-95111-907adc8884cb Marsteller v. Hanks, M.D. J. Spence Reid, M.D. April 4, 2014 Leary Reporting (717) 233-2660 14e2939e-bdd8-4b2d-95b1-907adc6884cb 90 91 1 fixation has become the mainstay? 1 Q Is that what Mr. Marsteller -- 2 A It means it is probably used more 2 A Yes. 3 frequently than other form of treatment. 3 Q And their orientation transverse 4 Q It says many of these fractures are 4 oblique, spiral or comminuted. He had the 5 amenable to close. Is that what Hanks did, the 5 spiral? 6 closed treatment? 6 A Yes. 7 A Correct. 7 Q "Displacement and angulation play a 8 Q It talks about the tibia carrying 8 role when determining treatment." Is that what 9 nearly five times body weight of axial force 9 it says? 10 during walking. Is that right? 10 A Yes. 11 A Right. 11 Q Going to go now down to treatment. 12 Q "And it is also subject to bending 12 Do you see the heading treatment? 13 and twisting forces, especially when the foot is 13 A Yes. 14 planted." Is that right? 14 Q "The goals of treatment are a pain 15 A That's correct. 15 free function of the lower him. Achieving these 16 Q And now I want to turn to 3519, 16 goals usually requires (l) establishing bone 17 please. You will see what I want you to read is 17 union." That is why you don't want malunion. Is 18 usually highlighted. 18 that right? 19 "Management and prognosis of tibial 19 A Union means it is healed. 20 shaft fractures are influenced by their location 20 Q Two, "Establishing or maintaining 21 in the bone." Would you agree with that? 21 normal length, alignment, and rotation of the 22 A Yes. 22 bone." Is that right? 23 Q And it talks about proximal, middle 23 A Yes. 24 or distal third? 24 Q And three, "Establishing and 25 A Distal third. 25 maintaining the normal anatomical relationshps 92 93 1 between the knees and ankles for weightbearing, 1 one group of experts" and this is footnoted, "non 2 motion and propulsion." That means to walk? 2 operative management may be used when there is 3 A Yes. 3 minimal soft tissue injury and when there is no 4 Q Or run? 4 substantial displacement or deformity of the 5 A Correct. 5 fracture." 6 Q Whether these can be met -- best met 6 Was there in this case substantial 7 with surgery, intramedullary nailing or external 7 displacement or deformity? 8 fixation or with closed treatment, usually cast 8 A The displacement was purely 9 immobilization followed by functional bracing 9 rotational. 10 depends on the particular circumstances of the 10 Q The upper limits of tolerable 11 injury. Do you agree with that? 11 deformity are reportedly 5 degrees angulation in 12 A Yes. 12 the coronal plane, 10 degrees angulation in the 13 Q "Many such treatment recommendations 13 sagittal plane, 5 degrees rotation deformity." 14 are based on expert opinion rather than high 14 It says 5 degrees, does it not? 15 quality studies with high levels of evidence." 15 A That is what it says. 16 Would you agree with that? 16 Q It goes on. "If pursuing closed 17 A I think I just stated that about 17 treatment, the patient should wear a long cast 18 five minutes ago. 18 with the ankle in neutral and the knee positioned 19 Q That is what I was going to say. 19 in 10 degrees to 15 degrees flexion to initiate 20 The book is going to say what you just said. 20 early weightbearing." 21 So it goes on to say here that, 21 Do you agree with that? 22 although you said that casting was within the 22 A That is what it says here. 23 standard of care, this article agrees. Right? 23 Q The supracondylar area should be 24 A Yes. 24 carefully molded to prevent cast slippage. 25 Q And it goes on to say, "According to 25 Radiographs should be taken at one- to two-week Leary Reporting (717) 233-2660 14e2939e-bdd8-4b2d-95b1-907adc6884cb Marsteller v, Hanks, M.D. J. Spence Reid, M.D. April 4, 2014 1 2 3 94 intervals to verify maintenance of the reduction." Radiographs were taken here in this case. Is that right? 1 2 3 95 Q With a different doctor. A But the same treatment. MR. ANGINO: No further questions. 4 A Yes. 4 5 Q "Although some shortening from the 5 EXAMINATION BY MR. SHUSTED; 6 initial reduction is to be expected, if greater 6 Q So looking at that, the article, you 7 than 1.5 centimeters of shortening is seen or 7 agreed with many of the statements that were mac 8 alignment criteria for closed management is no 8 by Mr. Angino. Were you agreeing with that is 9 longer met, operative fixation may be indicated. 9 what is written in the article? 10 As soon as a patient can comfortably bear weight, 10 A That is what is written in the 11 transition to a patellar bearing functional brace 11 article I am reading. 12 may be made." 12 Q And if we look at the previous 13 A Yes. 13 article, which was Tab 5, which was the Rockwoo 14 Q So in this particular case, we 14 article on page 2922 where he was reading it to 15 didn't have 5 degrees rotation. Is that right? 15 you. 16 A We did not. 16 A It is a book chapter. 17 Q We didn't have 10 degrees of 17 Q So a book chapter is a compilation 18 rotation? 18 of information. Is that right? 19 A That's correct. 19 A Yes. 20 Q We had between 20 to 25 degrees of 20 Q And it provides recommendations and 21 rotation? 21 goals as to what a surgeon ought to achieve. Is 22 A That's correct. So at that moment 22 that right? 23 he failed criteria for closed treatment and 23 A Yes. 24 operative treatment was selected. Exactly like 24 Q There was a sentence read by Mr. 25 the article states, with a different doctor. 25 Angino, and then he continued on with a 96 97 1 paragraph. But he left out the second sentence 1 to more risk to the patient than closed 2 and I want to read that. 2 procedures generally? 3 A Where are you? 3 A Yes. Different type of problem than 4 Q Page 2129 of Tab 5. 4 with closed treatment. The problem with closed 5 A Got it. 5 treatment is malalignment. The problem with op 6 Q So you see there is yellow 6 treatment is infection and things like that. 7 highlighting there that Mr. Angino put in there? 7 Q So that there are pros and cons to 8 A Yes. 8 all approaches. And I think you said that about 9 Q And he didn't highlight the second 9 an hour or so ago. Is that right? 10 sentence and did not read that. And I just want 10 A Yes. 11 to make that clear. It states, "The definition 11 Q And would you agree with that? 12 of what actually constitutes a tibial malunion 12 A Yes. 13 has never been agreed upon." 13 Q And the reference and the use of 14 Is that what is written? 14 literature, which you have been intimately 15 A That is what is written here. 15 involved in the medical field, is for the 16 Q Would you agree with that statement? 16 advancement of medical knowledge and thought 17 A Yes. 17 process as to a physician's goal to render the 18 Q And there is another sentence he did 18 best possible treatment to a patient. Is that a 19 not read to you, which states "Patients may well 19 fair characterization? 20 decide against surgery once they understand what 20 A Yes. 21 a corrective osteotomy entails!" With an 21 Q And would you agree that it is 22 exclamation point? 22 important to keep any statements in medical 23 A That is what is recorded here in 23 literature in proper context? 24 this book chapter. 24 A I think I was pretty clear about 25 Q Are open surgical procedures subject 25 that a few minutes ago; but, yes. Leary Reporting e en (717) 233-2660 14e2939e-bdd8-4b2d-95b1-907adc6884cb Marsteller v. Hanks, M.D. J. Spence Reid, M.D. April 4, 2014 Leary Reporting (717) 233-2660 1402939e-bdd8-4b2d-95b1-907adc6884cb 98 99 1 Q And would you agree that taking a 1 had at that point in time. Is that fair? 2 sentence or taking a paragraph out of a medical 2 A That's correct. 3 text doesn't necessarily set forth a standard of 3 MR. SHUSTED: Thank you, very much, 4 care in a medical malpractice case. It is more a 4 Doctor. 5 discussion among various different surgeons as to 5 6 how treatment results can be achieved through 6 EXAMINATION BY MR. ANGINO: 7 particular patients. Is that fair? 7 Q Doctor, I don't think it is correct. 8 A Yes. It is a lot of words there; 8 One school of thought might provide for casting. 9 but, yes. Taking any sentence out of context, 9 Another school of thought might provide for an 10 either in a book chapter or in an article, is to 10 operative procedure? 11 be avoid at all costs. 11 A Correct. 12 Q And is it the case in the treatment 12 Q You don't know of any school of 13 of tibial fractures that can be different schools 13 thought that would find a rotation greater than 14 of thought on how to deal with them? 14 10 degrees as acceptable? 15 A Schools of thought on tibia 15 A That is not what we said. 16 fractures is probably the largest variable school 16 Q That is what 1 am saying. 17 out there; because of all of the different 17 A That is not what he said. What he 18 variations and all the different ways it can be 18 said was, the approach of choosing casting for 19 treated. It is a very varied school of thought 19 this was one school of thought -- if Mr. 20 with respect to tibia fractures. 20 Marsteller had healed his tibia fracture with 21 Q And what we have in this case is Dr. 21 casting alone, with no rotational problem that he 22 Hanks followed one school of thought in treating 22 detected, and he had no incision on his leg and 23 the patient and then ultimately referred the 23 no knee pain, which is what intramedullary woulc 24 patient to you; and you followed a different 24 give you 40 percent of the time, he would have 25 school of thought based on the information you 25 been ecstatic with his care. 100 101 1 The problem is, during the course of 1 EXAMINATION BY MR. SHUSTED: 2 his treatment, he developed, I believe, a 2 Q You are not offering an opinion that 3 worsening rotational abnormality, which was 3 Dr. Hanks violated the standard of care, are you" 4 detected appropriately and referred timely to me 4 A No. 5 And Mr. Marsteller's length, alignment, and 5 Q Thank you. 6 rotation are anatomic at the moment. 6 VIDEOGRAPHER: This concludes the 7 Q But what I am asking you, there is 7 video deposition of Dr. J. Spence Reid. 8 no school of thought that would accept a rotation 8 The time is 3:12 p.m. and the date is 9 of more than 10 degrees? 9 April 4, 2017. 10 A That's correct. 10 11 Q That is what I am saying. 11 (Deposition adjourned, 3:12 p.m.) 12 A I agree with you. That is correct. 12 13 I think anybody would be bothered by a rotation 13 14 of 20 to 25 degrees. 14 15 Q That is the point. 15 16 A I agree. 16 17 Q And that is what we are suggesting 17 18 this case is about. 18 19 A Well, no. We are suggesting this 19 20 case was outside of the standard of care; and not 20 21 that the patient had a rotational malalignment of 21 22 25 degrees. Those are two different distinct 22 23 questions, 23 24 Q Okay. Thank you. 24 25 A You are very welcome. 25 Leary Reporting (717) 233-2660 1402939e-bdd8-4b2d-95b1-907adc6884cb Marsteller v. Hanks, M.D. J. Spence Reid, M.D. April 4, 2014 Leary Reporting (717) 233-2660 14e2939e-bdd8-4b2d-95b1.907adc6884c b 102 1 CERTIFICATE 2 3 I, Gwen A. Leary, the officer before whom the 4 within deposition(s) was taken, do hereby certify 5 that the witness whose testimony appears in the 6 foregoing deposition(s) was duly sworn by me on 7 said date and that the transcribed deposition of 8 said witness is a true record of the testimony 9 given by said witness; 10 That the proceeding is herein recorded fully 11 and accurately; 12 That I am neither attorney nor counsel, nor 13 related to any of the parties to the action in 14 which these depositions were taken, and further 15 that l am not a relative of any attorney or 16 counsel employed by the parties hereto, or 17 financially interested in this action. 18 19 Gwen A. Leary, Reporter 20 Notary Public in and for the 21 Commonwealth of Pennsylvania 22 My commission expires 23 September 1, 2014 24 25 Leary Reporting (717) 233-2660 14e2939e-bdd8-4b2d-95b1.907adc6884c b e: I.j rr��, i -OF It'd,. 1 CF PRQ HONQT R,HAR J' 2014 OCT 22 PN 2: 43 CUMBERLAND COUNTY PENNSYLVANIA ANGINO & LUTZ, P.C. Richard C. Angino, Esquire Attorney ID# : 07140 4503 North Front Street Harrisburg, PA 17110-1708 (717) 238-6791 FAX (717) 238-5610 Attorneys for Plaintiff(s) E-mail: RCA@anginolutz.com ROBERT M. MARSTELLER AND SHARON M. MARSTELLER, Plaintiffs, v. GREGORY A. HANKS, M.D. Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PA NO. 13-3432 Civil CIVIL ACTION MEDICAL PROFESSIONAL LIABILITY ACTION JURY TRIAL DEMANDED PLAINTIFFS' RESPONSE TO DEFENDANT'S MOTION IN LIMINE TO STRIKE AND LIMIT THE TESTIMONY OF J. SPENCE REID, M.D. REGARDING MEDICAL LITERATURE DURING DIRECT EXAMINATION AND NOW, come the Plaintiffs, Robert M. Marsteller and Sharon M. Marsteller, Husband and Wife, by and through their attorneys, Angino & Lutz, P.C., and file the foregoing response and aver as follows: On April 28, 2012, Plaintiff Robert Marsteller, a 49 year old male with a very active work and life style, fell while roller blading and injured his lower right leg, sustaining a spiral intra-articular fracture of the right distal tibia with a spiral proximal fibula fracture. Mr. Marsteller was admitted to Holy Spirit Hospital, where his leg was splinted. The following day, 558258 Mr. Marsteller underwent a closed reduction and long leg cast application performed by Defendant Hanks at bedside. Dr. Hanks knew from the outset that Mr. Marsteller and his wife recognized a malrotation and called it to Dr. Hanks attention. The malrotation obviously came from the casting procedure. Dr. Hanks disagreed that there was a malrotation and did nothing to address the malrotation. Despite Mr. Marsteller's expressed concern during follow up visits, Dr. Hanks did nothing and did not order a CT scan. After insisting upon a second opinion, Dr. Hanks sent Mr. Marsteller to J. Spence Reid at Hershey Medical Center. Dr. Reid observed the clear malrotation and after a CT scan quantified the malrotation as a 25 to 30 degree external rotation deformity, the accepted standard is 10%. Plaintiffs expect to show Dr. Reid's deposition at trial including expression of his opinions as to the standard of care as to malrotation from casting. Plaintiffs intend to supplement Dr. Reid's testimony with learned treatises as is allowed under the Pennsylvania Rules of Evidence. Defendants filed a motion in limine to strike and limit the testimony of Dr. Reid regarding medical literature during direct examination. A motion in limine is a procedure for obtaining a ruling on the admissibility of evidence prior to or during trial, but before the evidence has been offered. Yacoub v. Lehigh Valley Med. Associates, P.C., 805 A.2d 579, 588 (Pa. Super. 2002). Under Pennsylvania Rule of Evidence 803(18) a party may use learned treatises in limited circumstances. The permitted uses fall into two areas. "First an expert witness who uses a learned treatise during the process of forming an opinion may identify that source during direct testimony, so long as the expert does not expound from it.... Second, a learned treatise may be 558258 used on cross-examination to impeach an expert witness; however, that opens the door to rehabilitation of the witness through learned treatises on redirect examination." 2013 Edition Pennsylvania Rules of Evidence with Comments & Annotations by Honorable Mark I. Bernstein 803(18). Plaintiff expects to utilize "learned treatises" in conformity with the Pennsylvania Rules of Evidence in the direct and possibly cross examination of Plaintiffs' expert. Therefore, Plaintiffs ask this Honorable Court to allow this testimony at trial. WHEREFORE, Plaintiffs, Robert M. Marsteller and Sharon M. Marsteller, Husband and Wife, respectfully request that Your Honorable Court deny Defendants' Motion in Limine. Respectfully submitted, ANGINO & LUTZ, P.C. Date: October 22, 2014 558258 . Angino, Esquire . No. 07140 3 N. Front Street arrisburg, PA 17110 (717) 238-6791 rca@anginolutz.com Attorney for Plaintiff CERTIFICATE OF SERVICE I, Lisa Giknis, an employee of the law firm of Angino & Lutz, P.C., do hereby certify that I am this day serving a true and correct copy of Plaintiffs' Response to Defendant's Motion in Limine to Strike and Limit the Testimony of J. Spence Reid, M.D. Regarding Medical Literature During Direct Examination upon all counsel of record via electronic mail and via postage prepaid first class United States mail addressed as follows: John P. Shusted, Esquire GERMAN, GALLAGHER & MURTAGH, P.C. The Bellevue — Suite 500 200 S. Broad Street Philadelphia, PA 19102-3814 Dated: October 22, 2014 558258 ,..IL O-GFF CE C i THE PROTHONOTARY 2011 OCT 24 NI 2. 49 CUMBERLAND. COUNTY PENNSYLVANIA ROBERT M. MARSTELLER and SHARON M. MARSTELLER, Plaintiffs v. GREGORY A. HANKS, M.D., Defendant Count? of Cumberlaub IN THE COURT OF COMMON PLEAS OF THE NINTH JUDICIAL DISTRICT 2013-3432 CIVIL TERM IN RE: PLAINTIFF'S MOTION IN LIMINE TO LIMIT THE TESTIMONY OF DR. SUZANNE LONG BY PROHIBITNG HER TESTIFYING AS TO THE STANDARD OF CARE OF AN ORTHOPEDIC SURGEON; PLAINTIFF'S MOTION IN LIMINE TO LIMIT THE TESTIMONY OF DR. JOHN STERHAI BY PROHIBITING ANY MENTION OF THE TWO SCHOOLS OF THOUGHT DOCTRINE; PLAINTIFF'S MOTION IN LIMINE TO LIMIT THE TESTIMONY OF DR. SUZANNE LONG BY PROHIBITING ANY MENTION OF THE TWO SCHOOLS OF THOUGHT DOCTRINE; DEFENDANT'S MOTION IN LIMINE TO PRECLUDE REFERENCE TO THE PLAINTIFF'S AND/OR PLAINTIFF'S WITNESSES AS RELIGIOUS OR CHURCHGOERS; DEFENDANT'S CROSS MOTION TO LIMIT THE TESTIMONY OF PLAINTIFF'S EXPERT, GERALD HAYKEN, M.D. ORDER OF COURT AND NOW, this 24th day of October 2014, upon consideration of the above noted Motions in Limine, the Court rules as follows; 1. Plaintiff's Motion in Limine to Limit the Testimony Dr. Suzanne Long by Prohibiting Her Testifying as to the Standard of Care of an Orthopedic Surgeon is DENIED. 2. Plaintiff's Motion in Limine to Limit the Testimony of Dr. John Sterhai by Prohibiting Any Mentiont of the Two Schools of Thought Doctrine is DENIED. 3. Plaintiff's Motion in Limine to Limit the Testimony of Dr. Suzanne Long by Prohibiting Any Mentiont of the Two Schools of Thought Doctrine is DENIED. 4. Defendant's Motion in Limine to Preclude Reference to the Plaintiff's and/or Plaintiff's Witnesses as Religious or Churchgoers is GRANTED in part, DENIED in part. Plaintiff may not reference a Witness or Plaintiff's religious affiliation solely for character purposes, however, Plaintiff may make reference to the religious affiliation of a witness or Plaintiff solely to establish how a witness knows Plaintiff. 5. Defendant's Cross Motion to Limit the Testimony of Plaintiff's Expert, Gerald Hayken, M.D. is DENIED. BY T Thoma -.A. Placey C.P.J. Distribution: ✓tachary J. Duffy, Esq. /Richard C. Angino, Esq. ROBERT M. MARSTELLER and SHARON M. MARSTELLER, Plaintiffs v. GREGORY A. HANKS, M.D., Defendant (county of QCumberfanb IN THE COURT OF COMMON PLEAS OF THE NINTH JUDICIAL DISTRICT 2013-03432 CIVIL TERM IN RE: VERDICT We, the jury, empanelled and sworn to try the case between the above named parties do find as follows: 1. Do you find that Defendant GREGORY A. HANKS, M.D. was negligent, in other words, do you find that the Defendant's conduct was below the applicable standard of medical care? Yes No If you answer "yes" please proceed to Question No. 2. If you answer "no", please notify the tipstaff that you have reached a verdict and you will be returned to the courtroom. 2. Was the negligence of GREGORY A. HANKS, M.D., a factual cause in bringing about harm to Plaintiffs ROBERT M. MARSTELLER and SHARON M. MARSTELLER? Yes No If you answer "yes" please proceed to Question No. 3. If you answer "no", please notify the tipstaff that you have reached a verdict and you will be returned to the courtroom. 3. State the amount of damages you find Plaintiffs ROBERT M. MARSTELLER and SHARON M. MARSTELLER sustained as a result of the negligence of Defendant GREGORY A. HANKS, M.D. Insert a figure for each category set forth below. a. Past Income loss: b. Future Income loss: c. Past pain and suffering, loss of enjoyment of life, disfigurement and humiliation: d. Future pain and suffering, loss of enjoyment of life, disfigurement and humiliation: $ e. Loss of Consortium: TOTAL DATE: 10 3/--) Foreperson: 2 • r :� ROBERT & SHARON MARSTELLER GREGORY A. HANKS, M.D. JURORS In the Court of Commons Pleas of Cumberland County, PA., Docket No. 2013-3432 Judge: PLACEY ��^ � ,A l C V el Attorney: ?--iAC 1 i 6 Attorney: s.-C—\'%•h . %.t.l % keti Date: Pt 11 y -'11)11 Juror # NAMES OF JURORS CALLED CAUSE P D 11111111111111111111111111811111111 OCT27-236 SEAGRIST, TRUDIE M. -- _ .. 3 0 - , tV 0•, ft-Mill OCT27-57 STAR • , : • • • • 1111111111IIIIINMI III 11111111 __ iH OCT2 - : .. - •- k. _ - ' ►4_ARION E "--1 7—llIlrntltnIIHltI Hn i- - . • - . : . -- : • • i 1 ._ .. . . • . _ - - - -„ -, 1 ; RY L j.4lIIJlIIIIllhIIIIIIIIIIIIIIIIIbhIIIIIIl OCT27-69 BOWERSOX, RONALD A 1 i .:; i A V1UE iF A AT R 15 1111111111111111IIIIIIIIIIIIIII11111111 OCT27-251 THUMMA, DAWN C 16 1 1111111111111111111111111IIIHIF 0CT27-201 TATE, MERL E 11111111 li- •, • :. t—l1IHIHIHHHHHHIHIHIiN .. . , + - 5 -, itlf HnHfttlit flag Hn 1 .. ,..mnonnnn'maw lip '6L - : - . I . Y M 1 22—NHHHIHHIIIIIIIIIIIIIilllllllllllll ROBERT & SHARON MARSTELLER GREGORY A. HANKS, M.D. In the Court of Commons Pleas of Cumberland County, PA., Docket No. 2013-3432 Judge: PLACEY Attorney: Attorney: Date: JURORS No. Juror # NAMES OF JURORS CALLED CAUSE P D l (1IltllIlIll1IIIllhIllhIohIIIallIw OCT27-181 i FOSTER, RODNEY R 111111111111. ItIHIH . 11 127 11 IIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIl OCT27-76 UNRUH, VIRGINIA S 111 2&-111111 flllhIffI llfllf1H HIF SAA _1111111111111111111111111111111111111111 OCT27-265 f ► I, H A -A MITCHELL„ JR WAYNE E 30 III II11II111I1111111i11111I1111111 0CT27-340 LOGAN, PAUL P 1111 I oCT 27- ' OCT OCT -x.11 • • , • 11111111111.111101.111111111111111111111. 11111111111.1111111111- 32' 111111111111111111111111111111111111 11111.11111111 11IIIIIIIHII111111111II a1CI�:Z�J.>t►1�. IIiII11111111111I OCT27-336 FRY, TIMOTHY W IIIIMTIII II11111IIIII111111111111II11111I11111111 OCT27-163 KENNETT, KRISTIE M ip 11 111111111 11111 111 11 110111 1 11 10111 11 0CT27-8 COOPER, KYLE 111111111 grEffri__. - - miiiiiimmv.winon 8 1111111111IIEIIII1111II11111I1111111111 OCT27-332 TUBBS, ALEXANDRIA N IIIIIIIIIIIII 1111111111I111111li1111I110i11IIII11i IF, OCT27-231 BOWES, ANDREA C ` t IIIEIIN1tlIIIIlllllllllllll€IIIIIIIIII OCT27-28 DEJESUS„ JR SIXTO 111111111111111 4i-- OCT27-343 A : •, ` - ; 43 111111111111111111Iw1111111111111111111 OCT27-11 ST ER, RICKY M 44 111 1111 111111111111111 1111111111 11111111 OCT27- ( 5 LABRANA, AUDRA D ROBERT & SHARON MARSTELLER GREGORY A. HANKS, M.D. In the Court of Commons :Pleas of Cumberland County, PA., Docket No. 2013-3432 Judge: PLACEY Attorney: Attorney: Date: JURORS No. Juror # NAMES OF JURORS CALLED CAUSE P D 45 111111►IIIII►Iu►ulllullllNNulln OCT27-341 LATHROP, CYNTHIA A 47 IIIIIIII11111IIIIIIIIIIIIIIIIII1111 IN OCT27-12 MANGIERI, GERARD N 48 1111111IIII1-1IIIIIIIIIIIIIIIIIIIIIIIIIB OCT27-127 LAUVER, DARLA M 49 . ...-_..—, ,, ..:ate._ 50. IIIIIIIIIIIIIIII111111111111111111111 OCT27-4 DECKER, KELLI L 51 52 53 54 55 56 57 58 59 60 61 62 63 64 65 66 OF THE PROTHONOTARY 2014 NOV -3 P'M 2: 3 CUMBERLAND•COUN 1 t` - PENNSYLVANIA' ANGINO & LUTZ, P.C. Richard C. Angino, Esquire Attorney ID# : 07140 4503 North Front Street Harrisburg, PA 17110-1708 (717) 238-6791 FAX (717) 238-5610 Attorneys for Plaintiff(s) E-mail: RCA@anginolutz.com ROBERT M. MARSTELLER AND SHARON M. MARSTELLER, Plaintiffs, v. GREGORY A. HANKS, M.D. Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PA NO. 13-3432 Civil CIVIL ACTION MEDICAL PROFESSIONAL LIABILITY ACTION JURY TRIAL DEMANDED PLAINTIFFS' MOTION FOR POST -TRIAL RELIEF AND NOW, come Plaintiffs, Robert M. Marsteller and Sharon M. Marsteller, Husband and Wife, by and through their attorneys, Richard C. Angino, Esquire and Angino & Lutz, P.C., and file the foregoing Motion for Post -Trial Relief in accordance with Pa.R.C.P. 227.1 as follows: 1. The jury's finding of no negligence is contrary to the facts and law based upon the undisputed testimony of all three medical experts that unequivocally stated that it was 558807 unacceptable and/or below the standard of care to reduce a tibia fracture by casting wherein the rotational deformity and/or rotational malunion exceeded 10 degrees and again it was undisputed that Mr. Marsteller's rotational deformity and/or rotational malunion as of the July 2012 operative note of Mr. Marsteller, CT scan and interpretations by Dr. Reed and Defendant's expert John Esterhai, M.D. was at least 20% or two times the accepted 10%. 2. The trial court committed an error of law and/or abused his discretion when he denied Plaintiffs' Motion in Limine to Preclude any testimony as to two schools of thought with respect to the Complaint's five allegations of negligence and as a result permitted questioning by defense counsel and responses by Defendants' expert John Esterhai, M.D. as to potentially two schools of thought with respect to five allegations of negligence and .the defense permeating the entire record as to Dr. Hanks' mental thinking and reasoning in selecting casting rather than three operative procedures. 3. The Court refused to give an informed consent charge as provided by Plaintiffs' counsel in his request for jury instructions as to the risk of malalignment, malrotation, and malunion with respect to casting. Respectfully submitted, AN, & LUTZ, P.C. r X%ic and C. Angio tii"re t.D. No. 0714 Jonathan R nko, Esquire I.D. ► •. 3 153 45 G 3 cont Street isburg, PA 17110 (717) 238-6791 Attorney for Plaintiff Date: November 3, 2014 558807 CERTIFICATE OF SERVICE I, Lisa A. Giknis, an employee of Angino & Lutz, P.C. hereby certify that a true and correct copy of the foregoing Plaintiffs' Motion for Post -Trial Relief was served by United States first-class Mail, postage prepaid, upon the following: i John P. Shusted, Esquire GERMAN, GALLAGHER & MURTAGH, P.C. The Bellevue — Suite 500 200 S. Broad Street Philadelphia, PA 19102-3814 Lis A. Giknis, Legal Secretary Dated: November 3, 2014 558807 GERMAN, GALLAGHER & MURTAGH BY: John P. Shusted shustediAggrnifirm.com IDENTIFICATION NO. 44675 THE BELLEVUE, FIFTH FLOOR 200 S. BROAD STREET PHILADELPHIA, PA 19102 (215) 875-4037 '211 Attorney for: Defenda;unitii ll,fw. Lo-vPR104 I R5Y Gregory Hanks, M.D. CUMBERLAND COUNTY PENNSYLVANIA ROBERT M. MARSTELLER and SHARON M. MARSTELLER, Plaintiffs v. GREGORY HANKS, M.D. Defendant : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PA : NO. 13-3432 CIVIL : MEDICAL PROFESSIONAL : LIABILITY ACTION RESPONSE OF THE DEFENDANT, GREGORY HANKS, M.D., IN OPPOSITION TO PLAINTIFFS' MOTION FOR POST -TRIAL RELIEF AND NOW, Defendant, Gregory Hanks, M.D., by and through his attorneys, German Gallagher & Murtagh, P.C., hereby responds in opposition to Plaintiffs' Motion for Post -Trial Relief as follows: 1. Denied. Plaintiffs' suggestion that three experts opined that external rotation of greater than 10 degrees fell below the standard of care is inaccurate and mischaracterizes the testimony. Three physicians who testified, Drs. Hanks, Esterhai, and Reid, stated that depending on the circumstances and the patient, a physician performing a closed reduction should attempt to achieve external rotation of 10 degrees or fewer under ideal circumstances. However, they clearly stated that the goal for external rotation did not reflect the standard of care applicable to orthopedic physicians. Only Plaintiff's expert suggested that there was a deviation from the standard of care in not achieving 10 degrees of rotation. Dr. Reid, Plaintiff's treating physician, 1225549_1.docx specifically stated he was not offering any standard of care criticisms and Dr. Esterhai testified that Dr. Hanks satisfied the standard of care in all respects. The evidence speaks for itself and was properly submitted to the jury. 2. Denied. The burden of proving that there are two schools of thought falls on the defendant. Gala v. Hamilton,715 A.2d 1108, 1110 (Pa.1998). "The burden, however, should not prove burdensome." Gala v. Hamilton,715 A.2d 1108, 1110 (Pa.1998); Jones v. Chidester, 531 Pa. 31, 610 A.2d 964, 969 (Pa. 1992) (emphasis added). Here, Dr. Esterhai explained that there was no consensus among orthopedic physicians on a single course of treatment for tibia fractures. He plainly stated that "[a] considerable number of physicians would have treated the patient as Dr. Hanks did" insofar as he elected to attempt a conservative approach and allow the fracture to heal. Likewise, Dr. Hanks and Dr. Reid also testified that there are differing schools of thought. The evidence was sufficient to submit the issue to the jury for consideration. 3. Denied as stated. This issue was never plead and was not raised by the Plaintiff at the charge conference and, as such, it has been waived. WHEREFORE, Defendant, Gregory Hanks, M.D., respectfully requests that this Honorable Court DENY Plaintiffs' Motion for Post -Trial Relief. GERMAN GALL GHER & MURTAGH By: 1225549_1 .docx John P. usted, Atty. Id. No.44675 The Bellevue — Suite 500 200 South Broad Street Philadelphia, PA 19102 (215) 545-7700 Attorney for Defendant Gregory Hanks, M.D. CERTIFICATE OF SERVICE The undersigned certifies that on /, , 2014, the within Response to Plaintiffs' Motion for Post -Trial Relief of Defendant Gregory Hanks, M.D. was forwarded to the Court for filing and that the Answer was served upon counsel of record listed below via U.S. First -Class Mail, postage prepaid. Richard C. Angino, Esquire ID No. 07140 Angino & Rovner, P.C. 4503 N. Front Street Harrisburg, PA 17110 Counsel for Plaintiffs 1225549_1.docx ROBERT M. MARSTELLER AND SHARON M. MARSTELLER, Plaintiffs v. GREGORY A. HANKS, M.D., Defendant entintp ot Cum trlattb IN THE COURT OF COMMON PLEAS OF THE NINTH JUDICIAL DISTRICT 13-3432 CIVIL ACTION IN RE: PLAINTIFFS' MOTION FOR POST -TRIAL RELIEF ORDER OF COURT AND NOW, this 17th day of November 2014, upon consideration of Plaintiffs' Motion for Post -Trial Relief, a RULE is issued upon Defendant to show cause the requested relief should not be granted. PLAINTIFFS shall effectuate service of this Order of Court upon Defendant and shall file proof of service. The Court Reporters for trial shall transcribe the trial testimony, the Court's jury instructions, conferences and orders for the Plaintiff. Costs of Transcription shall be c.) paid by Plaintiff for the service. RULE RETURNABLE within ten (10) days of the service of this Ord r: - C) -7) n *-4 C -Th cz) CD z.; Response by Defendant shall contain a proposed order for relief. Distribution List: ard C. Angino, Esq. John P. Shusted, Esq. Cer'es P2tLECL ////7//,P COURT, Thomas A. Placey C.P.J. ANGINO & LUTZ, P.C. Richard C. Angino, Esquire Attorney ID# : 07140 Jonathan E. Danko, Esquire Attorney 1D#: 314653 4503 North Front Street Harrisburg, PA 17110-1708 (717) 238-6791 FAX (717) 238-5610 Attorneys fOr Plaintiff(s) E-mail: RCA@anginolutz.com jdanko@anginolutz.com ROBERT M. MARSTELLER AND SHARON M. MARSTELLER, Plaintiffs, v. GREGORY A. HANKS, M.D. Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PA NO. 13-3432 Civil CIVIL ACTION MEDICAL PROFESSIONAL LIABILITY ACTION JURY TRIAL DEMANDED PROOF OF SERVICE I, Lisa A. Giknis, an employee of the law firm of Angino & Lutz, P.C., do hereby certify that I am this day serving a true and correct copy of the Order of Court of The Honorable Thomas A. Placey, C.P.J. In Re: Plaintiffs' Motion for Post -Trial Relief upon all counsel of record via postage prepaid first class 'United States mail addressed as follows: 559492 John P. Shusted, Esquire GERMAN, GALLAGHER & MURTAGH, P.C. The Bellevue — Suite 500 200 S. Broad Street Philadelphia, PA 19102-3814 Dated: November 19, 2014 559492 Respectfully 'submitted, ANGINO & LUTZ, P.C. Lia A. Giknis, Lega Secretary for Richard C. Angino, Esquire , ROBERT M . MARSTELLER AND SHARON M. MARSTELLER, Plaintiffs v. GREGORY A. HANKS, M.D., Defendant Couuutp of 1tttnber ttttb IN THE COURT OF COMMON PLEAS OF THE NINTH JUDICIAL DISTRICT 13-3432 CIVIL ACTION IN RE: PLAINTIFFS' MOTION FOR POST -TRIAL RELIEF ORDER OF COURT AND NOW, this 17th day of November 2014, upon consideration of Plaintiffs' Motion for Post -Trial Relief, a RULE is issued upon Defendant to show cause the requested relief should not be granted. PLAINTIFFS shall effectuate service of this Order of Court upon Defendant and shall file proof of service. The Court Reporters for trial shall transcribe the trial testimony, the Court's jury instructions, conferences and orders for the Plaintiff. Costs of Transcription shall be paid by Plaintiff for the service. RULE RETURNABLE within ten (10) days of the service of this Order. -, Response by Defendant shall contain a proposed order for relief. Distribution List: Richard C. Angino, Esq. John P. Shusted, Esq. HE COURT, Thomas A. Placey C.P.J. J;,. J- 'OF7'�t is iIL i.... k k�4 1 HOH3 A i{ DEC -5 Pik 2: LI 7 CUMBERLAND COUNTY PENNSYLVANIA ROBERT M . MARSTELLER AND SHARON M. MARSTELLER, Plaintiffs v. GREGORY A. HANKS, M.D., Defendant Count? of Cumberlanb IN THE COURT OF COMMON PLEAS OF THE NINTH JUDICIAL DISTRICT 13-3432 CIVIL ACTION IN RE: PLAINTIFFS' MOTION FOR POST -TRIAL RELIEF ORDER OF COURT AND NOW, this 3rd day of December 2014, upon consideration of Plaintiffs' Motion for Post -Trial Relief and Defendant's response, it is hereby ORDERED that Plaintiff's Motion is DENIED. Thomas A. Placey _Distribution List: •orchard C. Angino, Esq. John P. Shusted, Esq. Es oinlscL /__ '7' C.P.J. ROBERT M. MARSTELLER and IN THE COURT OF COMMON PLEAS OF SHARON M. MARSTELLER , CUMBERLAND COUNTY, PENNSYLVANIA Plaintiffs: VS 2013-3432 CIVIL GREGORY A. HANKS, M.D., Defendant . IN RE: MOTION IN LIMINE ORDER OF COURT AND NOW, this 27th day of October, upon consideration of Defendant's Motion in Limine to Strike and Limit the Testimony of J. Spence Reid, M.D., Regarding Medical Literature During Direct Examination, the Defendant's Motion in Limine is denied. Thomas Placey, C.P.J. /Richard C. Angina, Esquire For the Plaintiffs /John P. Shusted, Esquire For the Defendant :mlc r•a c7 rn —, 37P CD m', ANGINO & LUTZ, P.C. Richard C. Angino, Esquire Attorney ID# : 07140 4503 North Front Street Harrisburg, PA 17110-1708 (717) 238-6791 FAX (717) 238-5610 Attorneys for Plaintiff(s) E-mail: RCA@anginolutz.com 'r=Cr'/ ROBERT M. MARSTELLER AND SHARON Al MARSTELLER, IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PA Plaintiffs, NO. 13-3432 Civil v. CIVIL ACTION MEDICAL PROFESSIONAL LIABILITY ACTION GREGORY A. HANKS, M.D. Defendant JURY TRIAL DEMANDED PRAECIPE,TO ENTER JUDGMENT Please enter judgment in favor of the Defendant Gregory A. Hanks, M.D. and against Plaintiffs Robert M. and Sharon M. Marsteller in the above -captioned action as Post -Trial Motions have been denied by Order dated December 3, 2014. Exhibit "A". Respectfully submitted, Date: December 16, 2014 560432 ANGINO UTZ, P.C. ichard C o, Esquire I.D. N 40 Jon. an E. Danko, Esquire I.D. No. 314653 4503 N. Front Street Harrisburg, PA 17110 (717) 238-6791 Attorney for Plaintiff 0.vAA L°. S4bP&b CiL-t4 9Nc)cjS _..st L i 9 CL1111:41:1-2,:i'D P1'0'11 2:1 PENNS YL VA NtA," I ROBERT M. MARSTELLER AND SHARON M. MARSTELLER, Plaintiffs V. GREGORY A. HANKS, M.D., Defendant tOiiit*fttifib.00 IN THE COURT OF COMMON PLEAS OF THE NINTH JUDICIAL DISTRICT 13-3432 CIVIL ACTION IN. RE: PLAINTIFFS' MOTION FOR POST -TRIAL RELIEF ORDER OF COURT AND NOW, this 3rd day of December 2014, upon consideration of Plaintiffs' Motion for Post -Trial Relief and Defendant's response, it is hereby ORDERED that Plaintiff's Motion is DENIED. Distribution List: Richard C. Angino, Esq. John P. Shusted, Esq. BY Thomas A. Placey C.P.J. CERTIFICATE .OF_SERVICE I, Lisa A. Giknis, an employee of Angino & Lutz, P.C. hereby certify that a true and correct copy of the foregoing Plaintiffs' Praecipe to .Enter Judgment was served by United States first-class Mail, postage prepaid, upon the following: The Honorable Thomas A. Placey Cumberland County Courthouse One Courthouse Square Carlisle, PA 17013 John P. Shusted, Esquire GERMAN, GALLAGHER & MURTAGH, P.C. The Bellevue — Suite 500 200 S. Broad Street Philadelphia, PA 19102-3814 Dated: December 16, 2014 560432 A. Giknis, Legal Secretary ANGINO & LUTZ, P.C. Richard C. Angino, Esquire Attorney ID# : 07140 4503 North Front Street Harrisburg, PA 17110-1708 (717) 238-6791 FAX (717) 238-5610 Attorneys for Plaintiff(s) E-mail: RCA@anginolutz.com ROBERT M. MARSTELLER AND SHARON M. MARSTELLER, Plaintiffs, v. GREGORY A. HANKS, M.D. Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PA NO. 13-3432 Civil CIVIL ACTION MEDICAL PROFESSIONAL LIABILITY ACTION JURY TRIAL DEMANDED ENTRY, OF. JUDGMENT AND NOW, this fl day of �• , 2014, judgment is entered in favor of the Defendant Gregory A. Hanks, M.D. and against Plaintiffs Robert M. Marsteller and Sharon M. Marsteller in the above -captioned action as Post -Trial Motions have been denied by Order dated December 3, 2014. Dated: December 1-7, 2014 560433 1:11 1 I t;" d I if DEC -5 Pil 2: 47 CUMBEFa. UD COW' PENNS YLVA NIA"' i ROBERT M. MARSTELLER AND SHARON M. MARSTELLER, Plaintiffs v. GREGORY A. HANKS, M.D., Defendant tamp Cutitlittimit IN THE COURT OF COMMON PLEAS OF THE NINTH JUDICIAL DISTRICT 13-3432 CIVIL ACTION IN. RE: PLAINTIFFS' MOTION FOR POST -TRIAL RELIEF ORDER OF COURT AND NOW, this 3rd day of December 2014, upon consideration of Plaintiffs' Motion for Post -Trial Relief and Defendant's response, it is hereby ORDERED that Plaintiff's Motion is DENIED. Distribution List: Richard C. Angino, Esq. John P. Shusted, Esq. Thomas A. Placey C.P.J. A- CERTIFICATE OF SERVICE I, Lisa A. Giknis, an employee of Angino & Lutz, P.C. hereby certify that a true and correct copy of the foregoing Entry of Judgment was served by United States first-class Mail, postage prepaid, upon the following: The Honorable Thomas A. Placey Cumberland County Courthouse One Courthouse Square Carlisle, PA 17013 John P. Shusted, Esquire GERMAN, GALLAGHER & MURTAGH, P.C. The Bellevue — Suite 500 200 S. Broad Street Philadelphia, PA 19102-3814 Lis A. Giknis, Legal Secretary Dated: December 16, 2014 560433 DEC 30 FM 2: 5 CUMBERLAND COUNTY PENNSYLVANIA ANGINO & LUTZ, P.C. Richard C. Angino, Esquire Attorney ID# : 07140 4503 North Front Street Harrisburg, PA 17110-1708 (717) 238-6791 FAX (717) 238-5610 Attorneys for Plaintiff(s) ,E-mail: RCA@anginolutz.com ROBERT M. MARSTELLER AND SHARON M. MARSTELLER, Plaintiffs, v. GREGORY A. HANKS, M.D. Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PA NO. 13-3432 Civil CIVIL ACTION MEDICAL PROFESSIONAL LIABILITY ACTION JURY TRIAL DEMANDED Appeal of Plaintiffs from Order of Court dated December 3, 2014 NOTICE OF APPEAL Notice is hereby given that Plaintiffs Robert M. Marsteller and Sharon M. Marsteller hereby appeal to the Superior Court of Pennsylvania from the Order of The Honorable Albert H. Masland entered on this matter on December 2, 2014, denying Plaintiffs' Motion for Post -Trial Relief. This Order has been entered in the docket, as evidenced by the Docket and Entry of Judgment with Order attached as Exhibit "A" The following person entered an appearance in the proceeding below: Richard C. Angino, Esquire - I.D. No. 07140 Angino & Rovner, P.C. 4503 N. Front Street Harrisburg, PA 17110 (717) 238-6791 560797 1 J vi ti; E i / SLI l � 71 ANGINO& LUTZ, P.C. gg f Richard C. Angino, Esquire Attorney ID# : 07140 4503 North Front Street Harrisburg, PA 17110-1708 (717)238-6791 FAX(717)238-5610 Attorneys for Plaintiff(s) .E-mail: RCA@anginolutz.com ROBERT M. MARSTELLER AND IN THE COURT OF COMMON PLEAS SHARON M. MARSTELLER, CUMBERLAND COUNTY, PA Plaintiffs, NO. 13-3432 Civil V. CIVIL ACTION MEDICAL PROFESSIONAL LIABILITY ACTION GREGORY A. HANKS, M.D. Defendant JURY TRIAL DEMANDED Appeal of Plaintiffs from Order of Court dated December 3, 2014 NOTICE OF APPEAL Notice is hereby given that Plaintiffs Robert M. Marsteller and Sharon M. Marsteller hereby appeal to the Superior Court of Pennsylvania from the Order of The Honorable Albert H. Masland entered on this matter on December 2, 2014, denying Plaintiffs' Motion for Post-Trial Relief. This Order has been entered in the docket, as evidenced by the Docket and Entry of Judgment with Order attached as Exhibit"A" The following person entered an appearance in the proceeding below: Richard C. Angino, Esquire - I.D. No. 07140 Angino & Rovner, P.C. 4503 N. Front Street Harrisburg, PA 17110 (717) 238-6791 560797 Date: December,, 2014 560797 Respectfully submitted, ANGINO & ER, P.C. 6 C. Angino, Esquire . No. 07140 4503 N. Front Street Harrisburg, PA 17 (717) 238-6791 Attorney fontiffs totitai‘ 3 3 s4 ,..PYS511 2013-03432 Cumberland County Prothonotary's Office Civil Case Print MARSTELLER ROBERT M ET AL (vs) HANKS GREGORY A MD Reference No..: Case Type • PROFESSIONAL LIABILITY Judgment Filed • Time • Execution Date Jury Trial.... Disposed Date. Higher Crt 1.: Higher Crt 2.: General Index Attorney Info .00 Judge Assigned: PLACEY THOMAS A Disposed Desc..: Case Comments MARSTELLER ROBERT M MARSTELLER SHARON M HANKS GREGORY A M D PLAINTIFF PLAINTIFF DEFENDANT ANGINO RICHARD C ANGINO RICHARD C SHUSTED JOHN P Page 6/1T013 1:47 0/00/0000 0/00/0000 *******************************************************************************1 * Date Entries *******************************************************************************1 6/14/2013 6/14/2013 6/26/2013 7/15/2013 8/12/2013 8/21/2013 12/26/2013 12/31/2013 1/27/2014 4/11/2014 4/14/2014 4/16/2014 8/28/2014 10/08/2014 10/08/2014 FIRST ENTRY COMPLAINT - BY RICHARD C ANGINO ATTY FOR PLFFS CERTIFICATE OF MERIT AS TO GREGORY A HANKS M D ATTACHED AS EXHIBIT - BY RICHARD C ANGINO ATTY FOR PLFFS SHERIFF'S RETURN DATED 06 DEFT AT 779 PINE TREE ROAD SHFF COST - $28.46 3 - COMPLAINT & NOTICE SERVED ON LSTOWN PA 17036 ENTRY OF APPEARANCE - BY JOHN P SHUSTED ATTY FOR DEFT AFFIDAVIT TO PLAINTIFFS' COMPLAINT TO DEFENDANT GREGORY HANS MD WITH NEW MATTBY JOHN P SHUSTED ESQ PLAINTIFFS REPLY TO NEW MATThR OF DEFENDANT GREGORY HANKS MD BY RICHARD C ANGINO ATTY FOR PLFF PARTIES' JOINT STIPULATION OF CASE MANAGEMENT DEADLINES - BY RICHARD C ANGINO ATTY FOR PLFF ORDER - 12/31/13 - IN RE: JOINT STIPULATION OF CASE MANAGEMENT DEADLINES - BY THE COURT ALBERT H MASLAND J COPIES MAILED 12/31/13 PRAECIPE FOR WITHDRAWAL OF APPEARANCE - BY KRISTIN N SINISI ATTY FOR PLFF PARTIES REVISED JOINT STIPULATION OF CASE MANAGEMENT DEADLINES - BY RICHARD C ANGINO ATTY FOR PLFF AND JOHN P SHUSTED ATTY FOR DEFT CERTIFICATE PREREQUISITE TO SERVICE OF A SUBPOENA. PURSUANT TO RULE 4009.22 - BY JOHN P SHUSTED ATTY FOR DEFT ORDER 4/16 MANAGEMENT COPIES MAILED 4 14 - IN RE: REVISED JOINT STIPULATION OF CASE S - BY THE COURT ALBERT H MASLAND J 14 PRAECIPE FOR LISTING CASE FOR JURY TRIAL - BY RICHARD C ANGINO ATTY FOR PLFFS PLFFS' MOTION IN LIMINE TO BY PROHIBITING ANY MENTION - BY RICHARD C ANGINO ATTY LIMIT THE TESTIMONY OF DR SUZANNE LONG OF HTE TWO SCHOOLS OF THOUGHT DOCTRINE FOR PLFF PLFFS' MOTION IN LIMINE TO BY PROHIBITING ANY MENTION - BY RICHARD C ANGINO ATTY LIMIT THE TESTIMONY OF DR JOHN ESTERHAI OF THE TWO SCHOOLS OF THOUGHT DOCTRINE FOR PLFFS 10/08/2014 PLFFS' MOTION IN LIMINE TO LIMIT THE TESTIMONY OF DR SUZANNE LONG BY PROHIBITING HER TESTIFYING AS TO THE STANDARD OF CARE OF AN ORTHOPEDIC SURGEON - BY RICHARD C ANGINO ATTY FOR PLFFS Y .t - PYS511 Cumberland County Prothonotary's Office Civil Case Print 2013-03432 MARSTELLER ROBERT M ET AL (vs) Reference No..: Case e • Judgmen Judge Assigned: Disposed Desc.: Case Comments PRECOPIES MAILED 10 15/1410/15/14 PROFESSIONAL LIIAABILITY .00 PLACEY THOMAS A 10/15/2014 10/20/2014 10/20/2014 10/20/2014 10/20/2014 10/20/2014 10/21/2014 10/22/2014 10/24/2014 10/31/2014 11/03/2014 11/14/2014 11/17/2014 11/ 17/2014 11/20/2014 HANKS GREGORY A MD Filed • Time Execution Date Jury Trial Disposed Date, Higher Crt 1.: Higher Crt 2.: - BY THE COURT ALBERT HMASLAND J Page 6/14/2013 1.47 0/00 0000 0/00/0000 PLFFS' RESPONSE TO DEFT'S CROSS MOTION IN LIMINE TO LIMIT THE TESTIMONY OF PLFFS' EXPERT GERALD HAYKEN MD - BY RICHARD C ANGINO ATTY FOR PLFF • PLFFS' REPLY TO DEFT'S RESPONSE TO THE MOTION IN LIMINE TO* LIMIT THE TESTIMONY OF DR ESTERHAI BY PROHIBITING ANY MENTION OF THE TWO SCHOOLS OF THOUGHT DOURINE - BY RICHARD C.ANGINO ATTY FOR PLFFS• PLFFS' REPLY TO DEFT'S RESPONSE TO THE MOTION IN LIMINE TO LIMIT . THE TESTIMONY OF DR SUZANNE LONG BY PROHIBITING HER TESTIMONY REGARDING THE STANDARD OF CARE - BY RICHARD C ANGINO ATTY FOR PLFF PLFFS' REPLY TO DEFTS' RESPONSE TO THE MOTION IN LIMINE TO LIMIT THE TESTIMONY OF DR SUZANNE LONG BY PROHIBITING ANY MENTION OF THE TWO SCHOOLS OF THOUGHT DOCTRINE - BY RICHARD C ANGINO ATTY FOR • PLFF PLFFS' RESPONSE O DEFT'S MOTION IN LIMINE TO PRECLUDE REFERENCE TO THE PLFFS AND OR PLFFS' WITNESSES AS RELIGIOUS OR CHURCHGOERS - BY RICHARD C ANG O ATTY FOR PLFFS MOTION IN LIMINE OF THE DEFENDANT GREGORY HANKS MD TO STRIKE AND LIMIT THE TESTIMONY OF J SPENCE REID MD REGARDING MEDICAL LITERATURE DURING DIRECT EXAMINATION - BY JOHN P SHUSTED ATTY FOR DEFT HANKS PLFFS' RESPONSE TO DEFT'S MOTION IN LIMINE TO STRIKE AND LIMIT THE TESTIMONY OF J SPENCE REID MD REGARDING MEDICAL LITERATURE DURING DIRECT EXAMINATION - BY RICHARD C ANGINO ATTY FOR PLFF ORDER OF COURT - 10/24/14 - IN RE: PLFF'S MOTION IN LIMINE TO LIMIT THE TESTIMONY OF DR SUZANNE LONG BY PROHIBITING HER TESTIFY GAS TO THE STANDARD OF CARE OF AN ORTHOPEDIC SURGEON - *DENIED PLFF'S MOTION IN LIMINE TO LIMIT THE TESTIMONY OF DR JOHN S BY PROHIBITINGMENTION OF THE TWO SCHOOLS OF THOUGHT DOCTRINE - *DENIED* PLFF'S MOTION IN LIMINE TO LIMIT THE TESTMONY OF DR SUZANNE LONG Y PROHIBITNG ANY MENTION OF THE TWO SCHOOLS OF THOUGHT DOCTRINE - *DENIED* DEFT'S MOTION IN LIMINE TO PRECLUDE REFERENCE TO THE PLFF'S AND/OR PLFF'S WITNESSES AS RELIGIOUS OR CHURCHGOERS - *GRANTED IN PART AND DENIED IN PART* - DEFT'S CROSS MOTION TO LIMIT THE TESTIMONY OF PLFF'S EXPERT GERALD HAYKEN MD - * * - BY THE COURT THOMAS A PLACEY J COPIES MAILED 10 24/14 VERDICT - JURY TRIAL - DO YOU FIND THE DEFT WAS NEGLIGENT - NO BY JURY PLAINTIFF'S MOTION FOR POST -TRIAL RELIEF - BY RICHARD C ANGINO ATTY FOR PLFF RESPONSE OF THE DEFENDANT GREGORY HANKS MD IN OPPOSITION TO PLAINTIFF'S MOTION FOR POST -TRIAL RELIEF - BY JOHN P SHUSTED ATTY FOR DEFT ORDER OF COURT DATED 11-17-14 IN RE PLAINTIFF'S MOTION FOR POST -TRIAL RELIEF - RULE IS ISSUED UPON DEFT TO SHOW CAUSE - RULE RETURNABLE WITHIN 10 DAYS OF THE SERVICE - BY THE COURT THOMAS A PLACEY J- COPIES MAILED 11-17-14 TRANSCRIPT OF PROCEEDINGS - IN RE TESTIMONY OF DAVID HOPKINS ON 10-30-14 PROOF OF SERVICE - ORDER UPON DEFT'S COUNSEL - BY RICHARD C ANGINO ATTY FOR PLFF ▪ PYS511 Cumberland County Prothonotary's Office Civil Case Print 2013-03432 MARSTELLER ROBERT M ET AL (vs) HANKS GREGORY A MD Reference No..: Case Type • PROFESSIONAL LIABILITY Assigned:Judgment .00 PLACEY THOMAS Disposed Desc.: -- Case Comments 12/05/2014 12/11/2014 Page Filed : 6/14/201: Time • 1:4' Execution Date 0/00 0001 Jury Trial.... Disposed Date. 0/00/0001 Higher Crt 1.: Higher Crt 2.: ORDER OF COURT DATED 12-3-14 IN RE PLAINTIFF'S MOTION FOR POST -TRIAL RELIEF - MOTION IS *DENIED* - BY THE COURT THOMAS A PLACEY J- COPIES MAILED 12-5-14 ORDER OF COURT - 10`27/14 - IN RE: DEFT'S MOTION IN LIMINE.TO STRIKE AND LIMIT TESSTI ONY - *DENIED* - BY THE COURT THOMAS A PLACEYJ -- COPIES MAILED12/11 14 -- - T ENTRY ******************************************************************************1 * Escrow Information * Fees & Debits Beg Bal Pyrmts%Ad] End Bal *****.*************************** ******** ****** *****************************a COMPLAINT SB LLEMN LT ENT AUTOMATION JCP FEE PRAECIPEAETRIAL 65.50 9.50 5.00 23.50 29.75 16.50 65.25 50 9.50 5.00 23.50 29.75 16.50 .00 .00 .00 .000 .00 150.00 150.00 .00 ********************'*********************************************************** * End of Case Information ******************************************************************************* TRUE COPY FROM RECORD In Testimony whereof, l here unto set my hand and the seal of said rt at Carlisle, P_1a. y This day of C 20y Prothonotary ANGINO & LUTZ, P.C. Richard C. Angina, Esquire Attorney ID# : 07140 4503 North Front Street Harrisburg, PA 17110-1708 (717) 238-6791 FAX (717) 238-5610 Attorneys for Plaintiff(s) E-mail: RCA@anginolutz.com ROBERT M. MARSTELLER AND IN THE COURT OF COMMON PLEAS SHARON M. MARSTELLER, CUMBERLAND COUNTY, PA Plaintiffs, NO. 13-3432 Civil v. CIVIL ACTION MEDICAL PROFESSIONAL LIABILITY ACTION GREGORY A. HANKS, M.D. Defendant JURY TRIAL DEMANDED ENTRY OF JUDGMENT AND NOW, this / day of --b-ee. , 2014, judgment is entered in favor of the Defendant Gregory A. Hanks, M.D. and against Plaintiffs Robert M. Marsteller and Sharon M. Marsteller in the above -captioned action as Post —Trial Motions have been denied by Order dated December 3, 2014. Dated: December n , 2014 560433 Prothonotary L:EP '21114 iic PH 2: 147 CUI,1ERL AND COL_I'r" PE,' MANIA!' ROBERT M . MARSTELLER AND SHARON M. MARSTELLER, Plaintiffs V. GREGORY A. HANKS, M.D., Defendant *Ott ttni*Ituit IN THE COURT OF COMMON PLEAS OF THE NINTH JUDICIAL DISTRICT 13-3432 CIVIL ACTION IN. RE: PLAINTIFFS' MOTION FOR POST -TRIAL RELIEF . ORDER OF COURT AND NOW, this 3d day of December 2014, upon consideration of Plaintiffs' Motion for Post -Trial Relief and Defendant's response, it is hereby ORDERED that Plaintiffs Motion is DENIED. Thomas A. Placey Distribution List: Richard C. Angino, Esq. John P. Shusted, Esq. C.P.J. CERTIFICATE OF SERVICE I, Lisa A. Giknis, an employee of Angino & Lutz, P.C. hereby certify that a true and correct copy of the foregoing Entry of Judgment was served by United States first-class Mail, postage prepaid, upon the following: The Honorable Thomas A. Placey Cumberland County Courthouse One Courthouse Square Carlisle, PA 17013 John P. Shusted, Esquire GERMAN, GALLAGHER & MURTAGH, P.C. The Bellevue — Suite 500 200 S. Broad Street Philadelphia, PA 19102-3814 1 % ; LisdA. Giknis, Legal Secretary Dated: December 16, 2014 560433 1 PROOF OF SERVICE I, Lisa A. Giknis, an employee of Angino & Lutz, P.C. hereby certify that a true and correct copy of the foregoing NOTICE OF APPEAL was served upon the following and in the manner indicated below, which service satisfies the requirements of Pa.R.A.P. 121: Service by First Class United States mail, postage prepaid upon all of the following: The Honorable Thomas A. Placey Cumberland County Courthouse One Courthouse Square Carlisle, PA 17013 John P. Shusted, Esquire GERMAN, GALLAGHER & MURTAGH, P.C. The Bellevue — Suite 500 200 S. Broad Street Philadelphia, PA 19102-3814 Li A. Giknis, Legal Secretary Dated: Deceinber.VQ, 2014 560797 r is :_lJ' 2015 JAN -8 PM I I i+ CUMBERLAND COUNTY PENNSYLVANIA ROBERT M . MARSTELLER AND SHARON M. MARSTELLER, Plaintiffs v. GREGORY A. HANKS, M.D., Defendant Count? of Cunnbtrlattb IN THE COURT OF COMMON PLEAS OF THE NINTH JUDICIAL DISTRICT 13-3432 CIVIL ACTION IN RE: NOTICE OF APPEAL ORDER OF COURT AND NOW, this 8th day of January 2014, upon consideration of the Plaintiffs Notice of Appeal, Appellant is DIRECTED, pursuant to Pa. R.A.P. 1925(b), to file of record in this court and to serve upon' the undersigned judge a concise statement of errors complained of an appeal NO LATER THAN 21 days after entry of this Order of Court. Any issues not properly included in the statement, timely filed and served pursuant to this order, shall be deemed WAIVED. Dom' tribution List: ✓ 'chard C. Angino, Esq. „/John P. Shusted, Esq. Citi t es MadL 117 BY Thom' £ . Placey C.P.J. 'uperior Court of Jeuttoptbauia Joseph D. Seletyn, Esq. Prothonotary Jennifer Traxler, Esq. Deputy l'rothonotary Buell, David D. Prothonotary Cumberland County Courthouse 1 Courthouse Square Carlisle, PA 17013 Middle District January 7, 2015 RE: Robert M. Marsteller, et al Appellants v. Gregory A. Hanks, M.D. 11 MDA 2015 Trial Court Docket No: 2013-03432 Dear David D. Buell: Pennsylvania Judicial Center P.O. Box 62435 601 Commonwealth Avenue, Suite 1600 Harrisburg, PA 17106-2435 (717) 772-1294 www.pacourts.us/courts/superior-court Enclosed please find a copy of the docket for the above appeal that was recently filed in the Superior Court. Kindly review the information on this docket. Appellant's counsel is also being sent a Docketing Statement, pursuant to Pa.R.A.P. 3517, for completion and filing. Please note that Superior Court Dockets are available on the Internet at the Web site address printed at the top of this page. Thank you. Respectfully, Jennifer Traxler, Esq. Deputy Prothonotary /ks Enclosure 11:24 A.M. Appeal Docket Sheet Docket Number: 11 MDA 2015 Page 1 of 2 January 7, 2015 Robert M. Marsteller, et al Appellants v. Gregory A. Hanks, M.D. _ Initiating Document: Case Status: Case Processing Status: Journal Number: Case Category: Notice of Appeal Active December 30, 2014 Superior Court of Pennsylvania Secure CAPTION CASE INFORMATION Awaiting Original Record Civil Case Type(s): CONSOLIDATED CASES Next Event Type: Receive Docketing Statement Next Event Type: Original Record Received Appellant Pro Se: No IFP Status: No Attorney: Bar No: Law Firm: Address: Marsteller, Robert and Sharon Appoint Counsel Status: Represented Phone No: Receive Mail: Receive EMail: SCHEDULED EVENT COUNSEL INFORMATION Angino, Richard C. 007140 Angino & Lutz, P.C. Angino & Lutz PC 4503 N Front St Harrisburg, PA 17110-1799 (717) 238-6791 Fax No: Yes Yes EMail Address: rca@anginolutz.com Medical Malpractice RELATED CASES Next Event Due Date: January 21, 2015 Next Event Due Date: March 2, 2015 Appellee Hanks, Gregory A. Pro Se: No Appoint Counsel Status: Represented IFP Status: No Attorney: Bar No: Law Firm: Address: Phone No: Receive Mail: Receive EMail: Shusted, John Patrick 044675 German, Gallagher & Murtagh, P.C. German Gallagher ET AL 200 S Broad St FI 5 Philadelphia, PA 19102-3898 (215) 545-7700 Yes No EMail Address: Fax No: 11:24 A.M. Appeal Docket Sheet Docket Number: 11 MDA 2015 Page 2 of 2 January 7, 2015 Fee Dt Fee Name 12/30/2014 Notice of Appeal FEE INFORMATION Fee Amt Receipt Dt Receipt No Receipt Amt 85.50 01/02/2015 2015 -SPR -M-000004 85.50 Superior Court of Pennsylvania Secure AGENCY/TRIAL COURT INFORMATION Court Below: Cumberland County Court of Common Pleas County: Cumberland Division: Cumberland County Civil Division Order Appealed From: December 3, 2014 Judicial District: 09 Documents Received: January 2, 2015 Notice of Appeal Filed: December 30, 2014 Order Type: Order Entered OTN(s): Lower Ct Docket No(s):2013-03432 Lower Ct Judge(s): Placey, Thomas A. Judge Original Record Item ORIGINAL RECORD CONTENT Filed Date Content Description Date of Remand of Record: None Filed Date BRIEFING SCHEDULE DOCKET ENTRY Docket Entry / Representing Participant Type None Filed By December 30, 2014 Notice of Appeal Docketed Appellant Marsteller, Robert and Sharon January 7, 2015 Docketing Statement Exited (Civil) Middle District Filing Office