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HomeMy WebLinkAbout13-6546 Supreme Courto Pennsylvania Cour o Coin Pleas 1V11 C, -elrr S eet For Prothonotary Use Only: C U`R.c County Docket No: (� / 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: S 0 Complaint ❑ Writ of Summons El Petition El Notice of Appeal ❑ Transfer from Another Jurisdiction ❑ Declaration of Taking E C Lead Plaintiff's Name: Lead Defendant's Name: T MARILEE WILLEY JEFFREY MARKS, DPM 1 O Check here if you are a Self - Represented (Pro Se) Litigant 0 Name ofPlaintiff /Appellant Attorney:MARK C. ATLEE, ESQUIRE N Are money damages requested? : ❑X Yes ❑ No Dollar Amount Requested: ❑ within arbitration limits (Check one) —0— outside arbitration limits A Is this a Class Action Suit? ❑ Yes E No 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 consider most important. TORT (do not include Mass Tort) CONTRACT (do not include Judgments) CIVIL APPEALS ❑ Intentional ❑ Buyer Plaintiff Administrative Agencies ❑ Malicious Prosecution ❑ Debt Collection: Credit Card ❑ Board of Assessment ❑ Motor Vehicle ❑ Debt Collection: Other ❑ Board of Elections ❑ Nuisance ❑ Dept. of Transportation ❑ Premises Liability ❑ Zoning Board S ❑ Product Liability (does not include ❑ Statutory Appeal: Other E mass tort) F-1 Employment Dispute: Slander/Libel/ Defamation Discrimination El ❑ C F1 Other: Employment Dispute: Other . Judicial Appeals ❑ MDJ - Landlord/Tenant I ❑ Other: ❑ MDJ - Money Judgment O MASS TORT ❑ Other: ❑ Asbestos N Toba ❑ H Toxic Tort - DES ❑ Toxic Tort - Implant REAL PROPERTY MISCELLANEOUS ❑ Toxic Waste ❑ Ejectment Eject ❑ Other: � ❑Common Law /Statutory Arbitration B ❑ Eminent Domain /Condemnation ❑ Declaratory Judgment ❑ Ground Rent ❑ Mandamus ❑ Landlord/Tenant Dispute ❑ Non - Domestic Relations ❑ Mortgage Foreclosure Restraining Order PROFESSIONAL LIABLITY ❑ Partition ❑ Quo Warranto ❑ Dental ❑ Quiet Title ❑ Replevin ❑ Legal ❑X Medical ❑ Other: ❑ Other: ❑ Other Professional: Pa.R. C.P. 205.5 212010 Mark C. Atlee, Esquire Y ri `r' ATLEE HALL LLP 1 8 North Queen Street 1'S FtER� P.O. Box 449 f'ENNs �" C Lancaster, PA 17608 -0449 Court ID No. 204627 (717) 393 -9596 Attorney for Plaintiff MARILEE WILLEY IN THE COURT OF COMMON PLEAS 1119 Carrington Court East OF CUMBERLAND COUNTY, Mechanicsburg PA 17050 PENNSYLVANIA CIVIL ACTION - LAW- MEDICAL Plaintiff PROFESSIONAL /,, / //L//I,,ABILITY ACTION VS. No. ~lJ��� Civ JEFFREY MARKS, DPM JURY TRIAL DEMANDED 161 Old School House Lane Suite 2 Mechanicsburg, PA 17055 Defendant COMPLAINT a v D� C You have been sued in court. If you wish to defend against the claims set forth in the following pages, you must take action within twenty (20) days after this complaint and notice are served, by entering a written appearance personally or by attorney and filing in writing with the court your defenses or objections to the claims set forth against you. You are warned that if you fail to do so the case may proceed without you and a judgment may be entered against you by the court without further notice for any money claimed in the complaint or for any other claim or relief requested by the plaintiff. You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER (OR CANNOT AFFORD ONE), GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. THIS OFFICE CAN PROVIDE YOU WITH INFORMATION ABOUT HIRING A LAWYER CUMBERLAND COUNTY BAR ASSOCIATION 34 S. Bedford Street Carlisle, PA 17013 717 - 249 -3166 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. AVISO Le han demandado en corte. Si usted quiere defenderse contra las demandas nombradas en las paginas siguientes, tiene viente (20) dias a partir de recibir esta demanda y notificacion para entablar personalmente o por un abogado una comparecencia escrita y tambien para entablar con la corte en forma escrita sus defensas y objeciones a las demandas contra usted. Sea advisado que si usted no se defiende, el caso puede continuar sin usted y la corte puede incorporar un juicio contra usted sin previo aviso para conseguir el dinero demandado en el pleito o pars conseguir cualquier otra demanda o alivio solicitados por el demandante. Usted puede perder dinero o propiedad u otros derechos importantes para usted. CUMBERLAND COUNTY BAR ASSOCIATION 34 S. Bedford Street Carlisle, PA 17013 717 - 249 -3166 USTED DEBE LLEVAR ESTE DOCUMENTO A SU ABOGADO INMEDIATAMENTE. SI USTED NO TIENE ABOGADO (O NO TIENE DINERO SUFICIENTE PARA PAGAR A UN ABOGADO), VAYA EN PERSONA O LLAME POR TELEFONO LA OFICINA NOMBRADA ABAJO PARA AVERIGUAR DONDE SE PUEDE CONSEGUIR ASSISTENCIA LEGAL. ESTA OFICINA PUEDE PROPORCIONARLE LA INFORMACION SOBRE CONTRATAR A UN ABOGAD SI USTED NO TIENE DINERO SUFICIENTE PARA PAGAR A UN ABOGADO, ESTA OFICINA PUEDE PROPORCIONARLE INFORMACION SOBRE AGENCIAS QUE OFRECEN SERVICIOS LEGALES A PERSONAS QUE CUMPLEN LOS REQUISITOS PARA UN HONORARIO REDUCIDO 0 NINGUN HONORARIO. PARTIES TO THE CAUSE OF ACTION 1. Plaintiff Marilee Willey is an adult individual residing at 1119 Carrington Court East, Mechanicsburg, PA 17050. 2. Defendant Jeffrey A. Marks, DPM, is a podiatrist licensed to practice podiatric medicine by the Commonwealth of Pennsylvania with a principal place of business at 161 Old Schoolhouse Lane, Suite 2, Mechanicsburg, PA 17055. STATEMENT OF LIABILITY 3. In accordance with Pa.R.C.P. 1042.2, this action is a medical professional liability action against Defendant Jeffrey A. Marks, DPM. STATEMENT OF RELEVANT FACTS 4. Marilee Willey, DOB 08/06/52, was in to see her primary care physician for a wellness examination on November 3, 2010, and was complaining of left foot discomfort. 5. An x -ray performed on November 3, 2010 was interpreted to reveal "no evidence of fracture, dislocation or acute or focal soft tissue abnormality. The joint spaces are within normal limits. There is no evidence of osteolytic or osteoblastic lesion. A small posterior calcaneal spur is noted. " 6. Impression was a negative left foot. 7. On November 30, 2010, Plaintiff presented to see Jeffery Marks, DPM because of persistent pain in the ball of her left foot specifically at the first MTP joint medially and slight plantar pain in the same area. 8. Swelling was noted, as was interrmittent, throbbing pain. An x -ray taken of the lateral left foot demonstrated no evidence of cortical irregularities in the metatarsal, phalanx or sesamoid suggestive of fracture. There was a slight irregularity to the subchondral surface of the metatarsal head medially but it was minimal. 9. Dr. Marks' impression was "capsulitis first MTP joint left foot from unknown cause". It was suggested that Plaintiff give it some time to see if it would heal on its own. Corticosteroid was injected into the first MTP joint. 10. On August 31, 2011, Plaintiff Marilee Willey presented again to Dr. Marks, with complaints of persistent discomfort in her left great toe. Dr. Marks noted a "rather mild bunion deformity. " 11. On examination, Dr. Marks was able to reproduce the pain directly on the metatarsal head. Examination from her prior treatment was reviewed, and Dr. Marks noted that Plaintiff "has a moderate bunion deformity with the tibial sesamoid position of position 4. " 12. Dr. Marks' impression was noted to be "hallux abductovalgus deformity left foot, capsulitis first metatarsophalangeal joint. " Treatment options were discussed, and Plaintiff decided to try another cortisone injection. She received the injection and she asked to follow up as needed. 13. On October 31, 2011, Plaintiff Marilee Willey returned to Dr. Marks' office with reports of persistent discomfort in her left great toe. Noted again was a "rather mild bunion deformity. " Impression was "bunion deformity left foot. " 14. The treatment plan proposed by Defendant Dr. Marks was surgical correction of the bunion deformity. 15. On November 22, 2011, Dr. Marks performed an Austin bunionectomy with screw fixation of the left foot. There were no documented complications for the procedure. 16. Plaintiff presented to Defendant Marks' office on November 25, 2011 for her post- operative visit. Noted was minimal edema and mild pain controlled by prescribed medication. 17. An x -ray taken at the post- operative visit was interpreted to reveal that "the foot seemed somewhat inverted on these views. The intermetatarsal angle has been reduced and the osteotomy is tightly closed with screws and in good position. The tibial sesamoid is in the normal position. There appears to be overlap of the hallux on the second toe. " 18. It was Defendant Marks' impression that the x -ray demonstrated good progress. Plaintiff was asked to return in 1 week. 19. On December 1, 2011, Plaintiff returned for evaluation and Dr. Marks noted that he "discussed the residual adductus of the hallux. She was borderline on the table for an Akin. 1 was concerned about the possibility of a varus formation. Loading the foot produces a straight hallux at the time of surgery. 1 will have to follow this in time to see if this heals straight. " 20. On December 6, 2011, Plaintiff returned to Dr. Marks' office with complaints of severe pain in the left surgical site along with swelling. It was noted that Plaintiff had returned to work but had been elevating the foot and utilizing surgical shoes, as directed. 21. An x -ray was interpreted to reveal no evidence of displacement and was seen as no different from the view on November 25, 2011. Dr. Marks diagnosed possible infection, and Plaintiff was prescribed Doxycycline 100mg capsules. She was also given a prescription for Percocet. 22. Plaintiff returned on December 12, 2012, for reevaluation. Noted was persistent redness and pain. Significantly, Defendant Marks noted "... an extensus deformity of the hallux. " 23. Attempted range of motion caused pain. Dr. Marks' impression was suture reaction versus delayed infection to the left foot. Plaintiff was prescribed Cephalexin 500mg tid. 24. On December 19, 2011, Plaintiff presented and reported swelling and slight redness to the foot. The incisional area was completely healed with minimal scarring but there was generalized swelling. Dr. Marks' impression was resolving bunionectomy left to rule out infection or suture reaction. 25. On January 3, 2012, Plaintiff returned 7 weeks post - operatively. The redness had resolved but reported swelling in the mid to late day. Overall correction was felt to be good. "Initially I thought the correction was not what I had noted on the OR table however in examining the foot today the correction is actually quite good. " 26. Plaintiff presented to Dr. Marks on February 15, 2012, with several complaints ".... primarily secondary to lack of muscle function surrounding the MTR She has also noticed some lateral drift of the toe likely also secondary to the relative lack of strength. " 27. Defendant Marks noted "In gait the toe only purchases the ground in late propulsion, with a slight limp on the left side. " Impression was "persistent muscular weakness surrounding MTP joint following bunionectomy. " 28. Dr. Marks prescribed physical therapy for strengthening of the foot and toe function. Plaintiff's physical therapy records note that her left great toe did not make contact with the ground in standing or with walking as it had been positioned in extension and adduction. 29. On March 3, 2012, Plaintiff returned to Dr. Marks' office and reported little increase in range of motion and some lateral drift of the great toe. Plantar flexion was limited to 5 %, and there was severe weakness in flexor hallucis longus. Dr. Marks could not explain the reasons for Plaintiff's pain, weakness, or lack of motion. Defendant Marks recommended that Plaintiff be seen for a second opinion. 30. On April 23, 2012, Plaintiff presented to Orthopedic & Spine Specialists for a second opinion from Suzette J. Song, MD. Dr. Song noted that Ms. Willey's left great toe presented with noted cockup with recurrent hallux valgus. She was tender to palpation at the toe and under the medial sesamoid. She also had decreased plantar fat pads distally. The first metatarsocuneiform joint was found to be unstable with poor first metatarsophalangeal joint motion passively. She could not plantar flex her great toe IP or MTP joint. 31. Dr. Song reviewed the x -rays dated March 20, 2012 which showed the great toe sitting up with some retained hallux valgus. 32. Dr. Song opined that Plaintiff had "left great toe dysfunction" and noted that it was unclear whether her condition was a tendon injury and mechanical problem or something else. 33. Dr. Song recommended an EMG to better evaluate the nerves and also MRI to evaluate Plaintiff's mechanical pathology. 34. Plaintiff returned to Dr. Song's office on April 30, 2012. Her MRI results were reviewed which showed post operative changes and "subchondral fracture of the plantar and medial head of the first metatarsal at the articulation with the medial sesamoid. Findings are suspicious for a non displaced fracture of the medial sesamoid. No MR evidence of disruption of the flexor hallucis longus tendon. " 35. Dr. Song also reviewed the EMG which was essentially a normal study. It's noted she had a long discussion with the patient regarding the diagnosis and they discussed possible continued conservative care versus surgical options. Because of the great impact on her lifestyle, Plaintiff chose the surgical option. 36. On May 25, 2012, Dr. Song performed a "left revision modified McBride, lapidus procedure, EHL tendon lengthening, FHL tenosynovectomy and removal of all hardware". 37. Plaintiff returned to see Dr. Song post operatively, and x -rays indicated evidence of good alignment and good position. She was placed in a fiberglass short cast with her left ankle in neutral position, and was to be non- weight bearing for 3 weeks. 38. Plaintiff returned to Dr. Song's office on several occasions between June, 2012 and September, 2012. She participated in physical therapy, and x -rays taken demonstrated evidence of healing of the joint fusion with maintenance of the intermetatarsal angle. She was instructed to gradually increase her weight bearing as tolerated. 39. On September 24, 2012, Plaintiff returned to Dr. Song's office, where she noted that her left great toe was still stiff and occasionally painful. Overall improvement was noted, however it was also noted that the left hallux was rigid and did not touch the floor which caused Plaintiff to have pressure and pain in the first metatarsal head. She was molded for custom orthotics. 40. On November 5, 2012, Ms. Willey returned to Dr. Song's office with complaints of continued pain, including sharp pain in the Achilles tendon. The left great toe continued to have limited motion, and treatment options were discussed. Plaintiff was prescribed various medications, and several different orthotics were tried throughout this period. 41. To date, Plaintiff continues to suffer from pain, discomfort, swelling of her left great toe, which limits her mobility and greatly affects her lifestyle, all as of result of Defendant Jeffrey Marks' negligent treatment and care of Plaintiff Marilee Willey. COUNT I MARILEE WILLEY v. JEFFREY A. MARKS, DPM Negligence 42. Paragraphs 1 -41 of Plaintiffs' Complaint are incorporated herein by reference. 43. At all times relevant hereto, Defendant Jeffrey Marks, DPM owed Plaintiff Marilee Willey a duty to use reasonable care and a duty to comply with the applicable standard of care in his specialty of podiatric medicine and in his care and treatment of Marilee Willey. 44. Defendant Jeffrey Marks, DPM breached the standard of care and was negligent in the following particulars: a. Damaging the EHL tendon during performance of bunionectomy on November 22, 2011; b. Tearing or cutting the tendon structure of the EHL during performance of bunionectomy on November 22, 2011; c. Failing to promptly order diagnostic testing, specifically an MRI, to determine the post- operative cause of Plaintiff's pain, swelling and limited motion; d. Failing to promptly determine the cause of Plaintiff's post- operative pain and symptoms; e. Failing to take timely measures to diagnose the cause of Plaintiff's post- operative pain and symptoms, before the injury became worse and required a more complicated surgical procedure for correction; 45. Failing to properly perform the bunionectomy with screw fixation of the left foot resulting in a fracture, non - displaced fracture of the left foot. 46. The negligence of Defendant Jeffrey Marks increased the risk of harm to Plaintiff Marilee Willey and was a direct and proximate cause of her damages. 47. As a direct and proximate result of the negligence of Defendant Jeffrey Marks, DPM, Plaintiff Marilee Willey has sustained severe pain and suffering, embarrassment, the loss of life's pleasures, anguish and distress, and will continue to suffer such damages in the future, for all of which damages are claimed. 48. As a direct and proximate result of the negligence of Defendant Jeffrey Marks, DPM, Plaintiff Marilee Willey has incurred costs and expenses for medical care and treatment, and will continue to suffer such damages in the future, for all of which damages are claimed. 49. As a direct and proximate result of the negligence of Defendant Jeffrey Marks, DPM, Plaintiff Marilee Willey has incurred a loss of earnings and will continue to suffer a loss of future earnings, for all of which damages are claimed. WHEREFORE, Plaintiff Marilee Willey, demands judgment against Defendant Jeffrey Marks, DPM, in an amount in excess of $50,000.00, together with interest and costs thereon as allowed by law. Respectfully submitted: Dated: / ATLEE , By: C. ee, Esquire Attorney for Plaintiff 8 North Queen Street P.O. Box 449 Lancaster, PA 17608 -0449 (717) 393 -9596 I.D. No. 204627 VERIFICATION I hereby verify that the facts contained in the foregoing document are true and correct to the best of my knowledge, information and belief. I understand that false statements herein are made subject to the penalties of 18 Pa.C.S.A. § 4904 relating to unsworn falsification to authorities. Dated: M rilee Willey `e Print Name Here J J ' J C Mark C. Atlee, Esquire ATLEE HALL LLP I ; 8 North Queen Street , P.O. Box 449 CU CDUN, y Lancaster, PA 17608 - 0449 P ENN g YLVANIA Court ID No. 204627 (717) 393 -9596 Attorney for Plaintiff MARILEE WILLEY IN THE COURT OF COMMON PLEAS 1119 Carrington Court East OF CUMBERLAND COUNTY, Mechanicsburg PA 17050 PENNSYLVANIA CIVIL ACTION - LAW -- MEDICAL Plaintiff PROFESSIONAL LIABILITY ACTION VS. No. JEFFREY MARKS, DPM JURY TRIAL DEMANDED 161 Old School House Lane Suite 2 Mechanicsburg, PA 17055 Defendant CERTIFICATE OF MERIT AS TO JEFFREY MARKS, DPM I, Mark C. Atlee, Esquire, certify that: An appropriate licensed professional has supplied a written statement to the undersigned that there is a basis to conclude that the care, skill or knowledge exercised or exhibited by this defendant in the treatment, practice, or work that is the subject of the Complaint, fell outside acceptable professional standards and that such conduct was a cause in bringing about the harm; or The claim that this defendant deviated from an acceptable professional standard is based solely upon allegations that other licensed professionals for whom this defendant is responsible deviated from an acceptable professional standard and an appropriate licensed professional has supplied a written statement to the undersigned that there is a basis to conclude that the care, skill or knowledge exercised or exhibited by the other licensed professionals in the treatment, practice, or work that is the subject of the Complaint, fell outside acceptable professional standards and that such conduct was a cause in bringing about the harm; or Expert testimony of an appropriate licensed professional is unnecessary for prosecution of the claim against this defendant. Respectfully submitted, Dated: f ATL4Attorney By: , Esquire laintiff Street P.O. Box 449 Lancaster, PA 17608 -0449 (717) 393 -9596 I.D. No. 204627 ����U��v� d���U��� ��� CUMBERLAND COUNTY �~" "~�"~""SHERIFF'S OFFICE"�~�� ��" ��~�"�"�~~�"��'��"°�~ Ronny RAnderson Sheriff THE PROTH�����i�`� Jody SSmith ^ °O!� WM# �� �� 70` �Q Chief Deputy L-.^°". �� =. ,°` =_ Richard VVStewart ~��"���- �� �0 QU�—Y Solicitor upp�a�prwmwmm�/pp PENNSYLVANIA Marilee Willey Case Number «». | 2U13'654G Jeffrey Marks, DPN1 | SHERIFF'S RETURN OF SERVICE 11/19/2013 12:26 PM- Deputy Dawn Kell, being duly sworn according to law, served the requested Complaint& Notice by handing atnue copy toa person representing themselves to be Shannon Hart. Receptioniot, who accepted as"Adult Person in Charge"for Jeffrey K8arka. OPYN at 161 Old School House Lano, Suite 2. Upper Allen, Mechanicsburg, PA17U55. DAWN KELL. DEPUTY SHERIFF COST: $30.30 SO ANSWERS, November 2O. 2O13 RONNYR ANDERSON, SHERIFF } LAW OFFICES STEPHEN C.NUDEL,PC Joseph A.Ricci,Esquire ' Pa. ID#49803 219 Pine Street ' Pi O V 2 1 P j -�f•Harrisburg,PA 17101 h' (717)236-5000 C t‘L N (�iJ j T y Attorney for Defendant ! °i Y l�jt��� MARILEE WILLEY, : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff • vs. : CIVIL ACTION—LAW : PROFESSIONAL LIABILITY ACTION JEFFREY MARKS, DPM, : NO: 13-6546-CIVIL Defendant : JURY TRIAL DEMANDED ENTRY OF APPEARANCE To the Prothonotary: Kindly enter the appearance of Joseph A. Ricci, Esquire on behalf of Defendant Jeffrey Marks, DPM. Respectfully submitted, LAW OFFICES STEPHEN C. NUDEL,PC Date: i)(2-4.( l3 _� 4 oseph A. ' ci, Esquire D #4980 ' Law Offices Stephen C. Nudel, PC 219 Pine Street Harrisburg, PA 17101 (717) 236-5000 Counsel for Defendant, Jeffrey Marks, DPM CERTIFICATE OF SERVICE I hereby certify that a copy of the foregoing has been duly served upon the following, by depositing a copy of the same in the United States Mail, first-class, postage prepaid, at Harrisburg, Pennsylvania, as follows: Mark C. Atlee, Esquire Atlee Hall, LLP 8 North Queen Street P.O. Box 449 Lancaster, PA 17608-0449 Attorney for Plaintiff Date: 11 /2_4 oseph 'icci, Esquire 11 LAW OFFICES STEPHEN C.NUDEL,PC 1 l t t v+j y�]j '7 Joseph A.Ricci,Esq. r., Pa.ID#49803 Z i� 3 219 Pine Street � Harrisburg,PA 17101 Ut ERL 'tN Co .161-; (717)236-5000 - PENNSYLVANIA Attorney for Defendant Dr.Marks MARILEE WILLEY, : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff vs. : CIVIL ACTION—LAW : PROFESSIONAL LIABILITY ACTION JEFFREY MARKS, DPM, : NO: 13-6546-CIVIL Defendant : JURY TRIAL DEMANDED ANSWER WITH NEW MATTER OF DEFENDANT JEFFREY MARKS, DPM NOTICE TO PLEAD TO: Marilee Willey and her attorney Mark C.Atlee,Esq. YOU ARE HEREBY NOTIFIED TO PLEAD TO THE WITHIN ANSWER WITH NEW MATTER WITHIN TWENTY(20)DAYS OF THE DATE OF SERVICE OF THIS PLEADING OR JUDGMENT MAY BE ENTERED AGAINST YOU. • .Z- oseph A. •'cci,E AND NOW COMES, Defendant Jeffrey Marks, DPM by and through his counsel, Joseph A. Ricci, Esquire and responds to the Plaintiffs Complaint as follows: PARTIES TO THE CAUSE OF ACTION 1. Denied. After reasonable investigation the Answering Defendant is without information sufficient to admit or deny the truth or falsity of the said averment and accordingly denies the same and demands strict proof thereof at time of trial if deemed material. 2. Admitted. STATEMENT OF LIABILITY 3. Denied. The averments contained in this paragraph are conclusions of law to which no affirmative response is required. To the extent an affirmative response may be required, said averments are denied and strict proof thereof demanded at time of trial if deemed material. STATEMENT OF RELEVANT FACTS 4. Denied. After reasonable investigation the Answering Defendant is without information sufficient to admit or deny the truth or falsity of the said averment and accordingly denies the same and demands strict proof thereof at time of trial if deemed material. 5. Denied. After reasonable investigation the Answering Defendant is without information sufficient to admit or deny the truth or falsity of the said averment and accordingly denies the same and demands strict proof thereof at time of trial if deemed material. 6. Denied. After reasonable investigation the Answering Defendant is without information sufficient to admit or deny the truth or falsity of the said averment and accordingly denies the same and demands strict proof thereof at time of trial if deemed material. 7. Admitted in part, denied in part. To the extent the averments contained in this paragraph are reflected within the medical records of the Plaintiff they are admitted. To the extent the averments contained in this paragraph are not reflected in the medical records of the Plaintiff or are contradicted thereby, they are denied and strict proof thereof demanded at time of trial if deemed material. By way of further Answer, the averments contained in this paragraph are denied in conformity with Pa.R.C.P. 1029(e). 8. Admitted in part, denied in part. To the extent the averments contained in this paragraph are reflected within the medical records of the Plaintiff they are admitted. To the extent the averments contained in this paragraph are not reflected in the medical records of the Plaintiff or are contradicted thereby, they are denied and strict proof thereof demanded at time of trial if deemed material. By way of further Answer, the averments contained in this paragraph are denied in conformity with Pa.R.C.P. 1029(e). 9. Admitted in part, denied in part. To the extent the averments contained in this paragraph are reflected within the medical records of the Plaintiff they are admitted. To the extent the averments contained in this paragraph are not reflected in the medical records of the Plaintiff or are contradicted thereby, they are denied and strict proof thereof demanded at time of trial if deemed material. By way of further Answer, the averments contained in this paragraph are denied in conformity with Pa.R.C.P. 1029(e). 10. Admitted in part, denied in part. To the extent the averments contained in this paragraph are reflected within the medical records of the Plaintiff they are admitted. To the extent the averments contained in this paragraph are not reflected in the medical records of the Plaintiff or are contradicted thereby, they are denied and strict proof thereof demanded at time of trial if deemed material. By way of further Answer, the averments contained in this paragraph are denied in conformity with Pa.R.C.P. 1029(e). 11. Admitted in part, denied in part. To the extent the averments contained in this paragraph are reflected within the medical records of the Plaintiff they are admitted. To the extent the averments contained in this paragraph are not reflected in the medical records of the Plaintiff or are contradicted thereby, they are denied and strict proof thereof demanded at time of trial if deemed material. By way of further Answer, the averments contained in this paragraph are denied in conformity with Pa.R.C.P. 1029(e). 12. Admitted in part, denied in part. To the extent the averments contained in this paragraph are reflected within the medical records of the Plaintiff they are admitted. To the extent the averments contained in this paragraph are not reflected in the medical records of the Plaintiff or are contradicted thereby, they are denied and strict proof thereof demanded at time of trial if deemed material. By way of further Answer, the averments contained in this paragraph are denied in conformity with Pa.R.C.P. 1029(e). 13. Admitted in part, denied in part. To the extent the averments contained in this paragraph are reflected within the medical records of the Plaintiff they are admitted. To the extent the averments contained in this paragraph are not reflected in the medical records of the Plaintiff or are contradicted thereby, they are denied and strict proof thereof demanded at time of trial if deemed material. By way of further Answer, the averments contained in this paragraph are denied in conformity with Pa.R.C.P. 1029(e). 14. Admitted in part, denied in part. To the extent the averments contained in this paragraph are reflected within the medical records of the Plaintiff they are admitted. To the extent the averments contained in this paragraph are not reflected in the medical records of the Plaintiff or are contradicted thereby, they are denied and strict proof thereof demanded at time of trial if deemed material. By way of further Answer, the averments contained in this paragraph are denied in conformity with Pa.R.C.P. 1029(e). 15. Admitted in part, denied in part. To the extent the averments contained in this paragraph are reflected within the medical records of the Plaintiff they are admitted. To the extent the averments contained in this paragraph are not reflected in the medical records of the Plaintiff or are contradicted thereby, they are denied and strict proof thereof demanded at time of trial if deemed material. By way of further Answer, the averments contained in this paragraph are denied in conformity with Pa.R.C.P. 1029(e). 16. Admitted in part, denied in part. To the extent the averments contained in this paragraph are reflected within the medical records of the Plaintiff they are admitted. To the extent the averments contained in this paragraph are not reflected in the medical records of the Plaintiff or are contradicted thereby, they are denied and strict proof thereof demanded at time of trial if deemed material. By way of further Answer, the averments contained in this paragraph are denied in conformity with Pa.R.C.P. 1029(e). 17. Admitted in part, denied in part. To the extent the averments contained in this paragraph are reflected within the medical records of the Plaintiff they are admitted. To the extent the averments contained in this paragraph are not reflected in the medical records of the Plaintiff or are contradicted thereby, they are denied and strict proof thereof demanded at time of trial if deemed material. By way of further Answer, the averments contained in this paragraph are denied in conformity with Pa.R.C.P. 1029(e). 18. Admitted in part, denied in part. To the extent the averments contained in this paragraph are reflected within the medical records of the Plaintiff they are admitted. To the extent the averments contained in this paragraph are not reflected in the medical records of the Plaintiff or are contradicted thereby, they are denied and strict proof thereof demanded at time of trial if deemed material. By way of further Answer, the averments contained in this paragraph are denied in conformity with Pa.R.C.P. 1029(e). 19. Admitted in part, denied in part. To the extent the averments contained in this paragraph are reflected within the medical records of the Plaintiff they are admitted. To the extent the averments contained in this paragraph are not reflected in the medical records of the Plaintiff or are contradicted thereby, they are denied and strict proof thereof demanded at time of trial if deemed material. By way of further Answer, the averments contained in this paragraph are denied in conformity with Pa.R.C.P. 1029(e). 20. Admitted in part, denied in part. To the extent the averments contained in this paragraph are reflected within the medical records of the Plaintiff they are admitted. To the extent the averments contained in this paragraph are not reflected in the medical records of the Plaintiff or are contradicted thereby, they are denied and strict proof thereof demanded at time of trial if deemed material. By way of further Answer, the averments contained in this paragraph are denied in conformity with Pa.R.C.P. 1029(e). 21. Admitted in part, denied in part. To the extent the averments contained in this paragraph are reflected within the medical records of the Plaintiff they are admitted. To the extent the averments contained in this paragraph are not reflected in the medical records of the Plaintiff or are contradicted thereby, they are denied and strict proof thereof demanded at time of trial if deemed material. By way of further Answer, the averments contained in this paragraph are denied in conformity with Pa.R.C.P. 1029(e). 22. Admitted in part, denied in part. To the extent the averments contained in this paragraph are reflected within the medical records of the Plaintiff they are admitted. To the extent the averments contained in this paragraph are not reflected in the medical records of the Plaintiff or are contradicted thereby, they are denied and strict proof thereof demanded at time of trial if deemed material. By way of further Answer, the averments contained in this paragraph are denied in conformity with Pa.R.C.P. 1029(e). 23. Admitted in part, denied in part. To the extent the averments contained in this paragraph are reflected within the medical records of the Plaintiff they are admitted. To the extent the averments contained in this paragraph are not reflected in the medical records of the Plaintiff or are contradicted thereby, they are denied and strict proof thereof demanded at time of trial if deemed material. By way of further Answer, the averments contained in this paragraph are denied in conformity with Pa.R.C.P. 1029(e). 24. Admitted in part, denied in part. To the extent the averments contained in this paragraph are reflected within the medical records of the Plaintiff they are admitted. To the extent the averments contained in this paragraph are not reflected in the medical records of the Plaintiff or are contradicted thereby, they are denied and strict proof thereof demanded at time of trial if deemed material. By way of further Answer, the averments contained in this paragraph are denied in conformity with Pa.R.C.P. 1029(e). 25. Admitted in part, denied in part. To the extent the averments contained in this paragraph are reflected within the medical records of the Plaintiff they are admitted. To the extent the averments contained in this paragraph are not reflected in the medical records of the Plaintiff or are contradicted thereby, they are denied and strict proof thereof demanded at time of trial if deemed material. By way of further Answer, the averments contained in this paragraph are denied in conformity with Pa.R.C.P. 1029(e). 26. Admitted in part, denied in part. To the extent the averments contained in this paragraph are reflected within the medical records of the Plaintiff they are admitted. To the extent the averments contained in this paragraph are not reflected in the medical records of the Plaintiff or are contradicted thereby, they are denied and strict proof thereof demanded at time of trial if deemed material. By way of further Answer, the averments contained in this paragraph are denied in conformity with Pa.R.C.P. 1029(e). 27. Admitted in part, denied in part. To the extent the averments contained in this paragraph are reflected within the medical records of the Plaintiff they are admitted. To the extent the averments contained in this paragraph are not reflected in the medical records of the Plaintiff or are contradicted thereby, they are denied and strict proof thereof demanded at time of trial if deemed material. By way of further Answer, the averments contained in this paragraph are denied in conformity with Pa.R.C.P. 1029(e). 28. Admitted in part, denied in part. To the extent the averments contained in this paragraph are reflected within the medical records of the Plaintiff they are admitted. To the extent the averments contained in this paragraph are not reflected in the medical records of the Plaintiff or are contradicted thereby, they are denied and strict proof thereof demanded at time of trial if deemed material. By way of further Answer, the averments contained in this paragraph are denied in conformity with Pa.R.C.P. 1029(e). 29. Admitted in part, denied in part. To the extent the averments contained in this paragraph are reflected within the medical records of the Plaintiff they are admitted. To the extent the averments contained in this paragraph are not reflected in the medical records of the Plaintiff or are contradicted thereby, they are denied and strict proof thereof demanded at time of trial if deemed material. By way of further Answer, the averments contained in this paragraph are denied in conformity with Pa.R.C.P. 1029(e). 30. Denied. After reasonable investigation the Answering Defendant is without information sufficient to admit or deny the truth or falsity of the said averment and accordingly denies the same and demands strict proof thereof at time of trial if deemed material. By way of further Answer, the averments contained in this paragraph are denied in conformity with Pa. R.C.P. 1029(e). 31. Denied. After reasonable investigation the Answering Defendant is without information sufficient to admit or deny the truth or falsity of the said averment and accordingly denies the same and demands strict proof thereof at time of trial if deemed material. . By way of further Answer, the averments contained in this paragraph are denied in conformity with Pa. R.C.P. 1029(e). 32. Denied. After reasonable investigation the Answering Defendant is without information sufficient to admit or deny the truth or falsity of the said averment and accordingly denies the same and demands strict proof thereof at time of trial if deemed material. . By way of further Answer, the averments contained in this paragraph are denied in conformity with Pa. R.C.P. 1029(e). 33. Denied. After reasonable investigation the Answering Defendant is without information sufficient to admit or deny the truth or falsity of the said averment and accordingly denies the same and demands strict proof thereof at time of trial if deemed material. . By way of further Answer, the averments contained in this paragraph are denied in conformity with Pa. R.C.P. 1029(e). 34. Denied. After reasonable investigation the Answering Defendant is without information sufficient to admit or deny the truth or falsity of the said averment and accordingly denies the same and demands strict proof thereof at time of trial if deemed material. . By way of further Answer, the averments contained in this paragraph are denied in conformity with Pa. R.C.P. 1029(e). 35. Denied. After reasonable investigation the Answering Defendant is without information sufficient to admit or deny the truth or falsity of the said averment and accordingly denies the same and demands strict proof thereof at time of trial if deemed material. . By way of further Answer, the averments contained in this paragraph are denied in conformity with Pa. R.C.P. 1029(e). 36. Denied. After reasonable investigation the Answering Defendant is without information sufficient to admit or deny the truth or falsity of the said averment and accordingly denies the same and demands strict proof thereof at time of trial if deemed material. . By way of further Answer, the averments contained in this paragraph are denied in conformity with Pa. R.C.P. 1029(e). 37. Denied. After reasonable investigation the Answering Defendant is without information sufficient to admit or deny the truth or falsity of the said averment and accordingly denies the same and demands strict proof thereof at time of trial if deemed material. . By way of further Answer, the averments contained in this paragraph are denied in conformity with Pa. R.C.P. 1029(e). 38. Denied. After reasonable investigation the Answering Defendant is without information sufficient to admit or deny the truth or falsity of the said averment and accordingly denies the same and demands strict proof thereof at time of trial if deemed material. . By way of further Answer, the averments contained in this paragraph are denied in conformity with Pa. R.C.P. 1029(e). 39. Denied. After reasonable investigation the Answering Defendant is without information sufficient to admit or deny the truth or falsity of the said averment and accordingly denies the same and demands strict proof thereof at time of trial if deemed material. . By way of further Answer, the averments contained in this paragraph are denied in conformity with Pa. R.C.P. 1029(e). 40. Denied. After reasonable investigation the Answering Defendant is without information sufficient to admit or deny the truth or falsity of the said averment and accordingly denies the same and demands strict proof thereof at time of trial if deemed material. . By way of ter. further Answer, the averments contained in this paragraph are denied in conformity with Pa. R.C.P. 1029(e). 41. Denied. To the extent this paragraph is an averment of alleged proximate causation, it is a conclusion of law to which no affirmative response is required. To the extent an affirmative response may be required said averments are denied and strict proof thereof demanded at time of trial if deemed material. By way of further Answer, it is specifically and unequivocally denied that Dr. Marks was negligent in his care and treatment of the Plaintiff. To the contrary, at all times material hereto, the Answering Defendant provided proper and appropriate care within the standard of care required for treatment of patients such as the Plaintiff. By way of yet further Answer, to the extent this paragraph refers to the Plaintiffs alleged damages it is denied since after reasonable investigation the Answering Defendant is without information sufficient to admit or deny the truth or falsity of the said averment and accordingly denies the same and demands strict proof thereof at time of trial if deemed material. COUNT I MARILEE WILLEY v.JEFFFREY A. MARKS, DPM Negligence 42. Answering Defendant, Jeffrey A. Marks, DPM, incorporates by reference his responses to paragraphs 1 —41 above as if more fully set forth herein at length. 43. Denied. The averments contained in this paragraph are conclusions of law to which no affirmative response is required. To the extent an affirmative response may be required, said averments are denied and strict proof thereof demanded at time of trial if deemed material. By way of further Answer, at all times material hereto, the Answering Defendant provided proper and appropriate care within the standard of care required for treatment of patients such as the Plaintiff. 44. Denied. It is specifically and unequivocally denied that Dr. Jeffrey Marks, DPM breached the standard of care in his treatment of the Plaintiff. To the contrary, at all times material hereto, Dr. Marks provided proper and appropriate care within the standard of care required for treatment of patients such as the Plaintiff By way of further Answer, it is specifically and unequivocally denied that Dr. Marks was negligent in: a. Denied. It is specifically and unequivocally denied that Dr. Marks breach the standard of care in "Damaging the EHL tendon during performance of bunionectomy on November 22, 2011." To the contrary, at all times material hereto, Dr. Marks provided proper and appropriate care within the standard of care for treatment of patients such as the Plaintiff b. Denied. It is specifically and unequivocally denied that Dr. Marks breach the standard of care in "tearing or cutting the tendon structures on the EHL during performance of bunionectomy on November 22, 2011." To the contrary, at all times material hereto, Dr. Marks provided proper and appropriate care within the standard of care for treatment of patients such as the Plaintiff c. Denied. It is specifically and unequivocally denied that Dr. Marks breach the standard of care in "failing to promptly order diagnostic testing, specifically an MRI, to determine the post-operative cause of Plaintiffs pain, swelling and limited motion." To the contrary, at all times material hereto, Dr. Marks provided proper and appropriate care within the standard of care for treatment of patients such as the Plaintiff d. Denied. It is specifically and unequivocally denied that Dr. Marks breach the standard of care in "failing to promptly determine the cause of Plaintiffs post-operative pain and symptoms." To the contrary, at all times material hereto, Dr. Marks provided proper and appropriate care within the standard of care for treatment of patients such as the Plaintiff. e. Denied. It is specifically and unequivocally denied that Dr. Marks breach the standard of care in "failing to take timely measure to diagnose the cause of Plaintiffs post-operative pain and symptoms, before the injury became worse and required a more complicated surgical procedure for correction." To the contrary, at all times material hereto, Dr. Marks provided proper and appropriate care within the standard of care for treatment of patients such as the Plaintiff. 45. Denied. It is specifically and unequivocally denied that the Answering Defendant was negligent in "failing to properly perform the bunionectomy with screw fixation of the left foot resulting in a fracture, non-displaced fracture of the left foot." To the contrary, at all times material hereto, the Answering Defendant provided proper and appropriate care within the standard of care for treatment of patients such as the Plaintiff. 46. Denied. The averments contained in this paragraph are conclusions of law to which no affirmative response is required. To the extent an affirmative response may be required, said averments are denied and strict proof thereof demanded at time of trial if deemed material. By way of further Answer, at all times material hereto, the Answering Defendant provided proper and appropriate care within the standard of care required for treatment of patients such as the Plaintiff. 47. Denied. To the extent this paragraph is an averment of alleged proximate causation, it is a conclusion of law to which no affirmative response is required. To the extent an affirmative response may be required, said averments are denied and strict proof thereof demanded at time of trial if deemed material. By way of further Answer, it is specifically and unequivocally denied that Dr. Marks was negligent in his care and treatment of the Plaintiff To the contrary, at all times material hereto, the Answering Defendant provided proper and appropriate care within the standard of care required for treatment of patients such as the Plaintiff. By way of yet further Answer, to the extent this paragraph refers to the Plaintiffs alleged damages it is denied since after reasonable investigation the Answering Defendant is without information sufficient to admit or deny the truth or falsity of the said averment and accordingly denies the same and demands strict proof thereof at time of trial if deemed material. 48. Denied. To the extent this paragraph is an averment of alleged proximate causation, it is a conclusion of law to which no affirmative response is required. To the extent an affirmative response may be required said averments are denied and strict proof thereof demanded at time of trial if deemed material. By way of further Answer, it is specifically and unequivocally denied that Dr. Marks was negligent in his care and treatment of the Plaintiff To the contrary, at all times material hereto, the Answering Defendant provided proper and appropriate care within the standard of care required for treatment of patients such as the Plaintiff. By way of yet further Answer, to the extent this paragraph refers to the Plaintiffs alleged damages it is denied since after reasonable investigation the Answering Defendant is without information sufficient to admit or deny the truth or falsity of the said averment and accordingly denies the same and demands strict proof thereof at time of trial if deemed material. 49. Denied. To the extent this paragraph is an averment of alleged proximate causation, it is a conclusion of law to which no affirmative response is required. To the extent an affirmative response may be required said averments are denied and strict proof thereof demanded at time of trial if deemed material. By way of further Answer, it is specifically and unequivocally denied that Dr. Marks was negligent in his care and treatment of the Plaintiff To the contrary, at all times material hereto, the Answering Defendant provided proper and appropriate care within the standard of care required for treatment of patients such as the Plaintiff. By way of yet further Answer, to the extent this paragraph refers to the Plaintiff's alleged damages it is denied since after reasonable investigation the Answering Defendant is without information sufficient to admit or deny the truth or falsity of the said averment and accordingly denies the same and demands strict proof thereof at time of trial if deemed material. WHEREFORE, it is respectfully requested that this Honorable Court enter judgment in favor of the Defendant and against the Plaintiff and award the Defendant appropriate costs and fees. NEW MATTER 50. Plaintiff has failed to state a claim upon which relief can be granted. 51. Plaintiffs claim is barred and/or limited by the applicable Statute of Limitations. 52. It is believed, and therefore averred, that the discovery will show that the Plaintiff was negligent and that her negligence exceeded the negligence, if any, of the Answering Defendant, thereby barring her recovery by operation of the Pennsylvania Comparative Negligence Act. 53. It is believed, and therefore averred, that discovery will show that the Plaintiff was negligent and that by virtue of her negligence, her claims may be limited by the operation of the Pennsylvania Comparative Negligence Act. 54. It is believed, and therefore averred, that discovery will show that the Plaintiff voluntarily assumed a known risk thereby barring recovery by the operation of the Doctrine of Assumption of Risk. 55. Plaintiffs injuries, if any, were sustained as a result of natural or unknown causes and not as the result of any action or inaction on behalf of the Answering Defendant. 56. At all times material hereto, Answering Defendant provided full, complete, proper, reasonable and adequate medical care and treatment in accordance with the applicable standard of care. 57. No conduct on the part of the Answering Defendant was a substantial factor in causing or contributing to any harm which the Plaintiff may have suffered. 58. If Plaintiff suffered any damage, the damages were caused by the conduct of others over whom the Answering Defendant had no control or right to control. 59. All claims and causes of action pleaded against the Answering Defendant are barred by Plaintiffs knowing and voluntary informed consent to the care in question. 60. Insofar as the Answering Defendant or any person for whom he is or may be vicariously liable, elected a treatment modality which is recognized as proper but may differ from another appropriate treatment modality, then said Answering Defendant raises the "two schools of thought" defense. 61. To the extent he was required to do so, the Answering Defendant took all reasonable and necessary steps to make a proper and appropriate diagnosis and to the extent it may be determined that that diagnosis was in error, the Answering Defendant asserts that the error in diagnosis was a reasonable and legally justifiable error. 63. Answering Defendant incorporates by reference all the defenses available to him as set forth in the Medical Care Availability and Reduction of Error Act, 40 P.S. §1303.101 et seq. WHEREFORE, it is respectfully requested that this Honorable Court enter judgment in favor of the Defendant and against the Plaintiff and award the Defendant appropriate costs and fees. Respectfully submitted, LAW OFFICES STEPHEN C. NUDEL,PC ♦ / ) Date: lea 2-L' Jos- eh A. Ricci, squire Pa. #49803 Law Offices tephen C. Nudel, PC 219 Pine Street Harrisburg, PA 17101 (717) 236-5000 Counsel for Defendant, Jeffrey Marks, DPM VERIFICATION I, Jeffery A. Marks, DPM hereby verify that the facts set forth in the foregoing Answer with New Matter are true and correct to the best of my knowledge, information and belief. I understand that false statements herein are made subject to the penalties of 18 Pa.C.S. §4904, relating to unsworn falsification to authorities. Date: 13 1 9 I('f 4 if/. AP Jeff A. Marks, DPM CERTIFICATE OF SERVICE I hereby certify that a copy of the foregoing Answer with New Matter has been duly served upon the following, by depositing a copy of the same in the United States Mail, first- class, postage prepaid, at Harrisburg, Pennsylvania, as follows: Mark C. Atlee, Esquire Atlee Hall 8 North Queen Street P.O. Box 449 Lancaster, PA 17608-0449 Counsel for Plaintiff Date: ��S ,2t� i>' :.?"7 JJseph A. Ric • C II-4E PRO Mark C. Atlee, Esquire ATLEE HALL LLP 2014 JAN -8 PM I: l t4 8 North Queen Street CUM €3i1 AND COUNTY P.O. Box 449 PENNSYLVANIA Lancaster, PA 17608-0449 Court ID No. 204627 (717) 393-9596 Attorney for Plaintiff MARILEE WILLEY IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, Plaintiff PENNSYLVANIA CIVIL ACTION - LAW vs. No. 13-6546 JEFFREY MARKS, DPM JURY TRIAL DEMANDED Defendant PLAINTIFF'S REPLY TO THE NEW MATTER TO PLAINTIFF'S COMPLAINT Plaintiff Marilee Willey, by and through her attorneys, Atlee Hall, LLP, hereby files the instant Reply to the New Matter to Plaintiff's Complaint, as follows: 50. Neither admitted nor denied. This allegation calls for a conclusion of law to which no response is required. 51. Neither admitted nor denied. This allegation calls for a conclusion of law to which no response is required. 52. Neither admitted nor denied. This allegation calls for a conclusion of law to which no response is required. To the extent that a response is required, it is denied that Plaintiff was negligent. 53. Neither admitted nor denied. This allegation calls for a conclusion of law to • which no response is required. To the extent that a response is required, it is denied that Plaintiff was negligent. 54. Neither admitted nor denied. This allegation calls for a conclusion of law to which no response is required. To the extent that a response is required, it is denied that Plaintiff assumed the risk of her injuries. 55. Neither admitted nor denied. This allegation calls for a conclusion of law to which no response is required. 56. Neither admitted nor denied. This allegation calls for a conclusion of law to which no response is required. To the extent that a response is required, Plaintiff denies that the medical care provided by Defendant complied with the applicable standard of care. 57. Neither admitted nor denied. This allegation calls for a conclusion of law to which no response is required. 58. Neither admitted nor denied. This allegation calls for a conclusion of law to which no response is required. 59. Neither admitted nor denied. This allegation calls for a conclusion of law to which no response is required. To the extent that a response is required, Plaintiff did not consent to negligent medical care and treatment. 60. Neither admitted nor denied. This allegation calls for a conclusion of law to which no response is required. 61. Neither admitted nor denied. This allegation calls for a conclusion of law to which no response is required. To the extent that a response is required, Defendant was negligent and his negligence is compensable. 63(sic). Denied. Defendant has waived all defenses not properly pled. See, Pa.R.C.P. 1032. WHEREFORE, Plaintiff respectfully requests that this Honorable Court dismiss Defendant's New Matter, and enter judgment in her favor as set forth in Plaintiff's Complaint. Respectfully submitted: Dated: I'\1 1 1 LI A T L E E L , L P By: AIIM Vie!C. Ati-e, Esquire Attorney for Plaintiff 8 North Queen Street P.O. Box 449 Lancaster, PA 17608-0449 (717) 393-9596 I.D. No. 204627 CERTIFICATE OF SERVICE I hereby certify that I have this day caused a true and correct copy of the foregoing document, to be served upon the following persons by placing a copy of the said document in the United States mail, first class mail, directed to their office addresses as follows: Joseph A. Ricci, Esquire Nudel Law Offices 219 Pine st Harrisburg, PA 17101 Dated: 1 J `� ) / y ATLEE HA aL, By: :'I/WA I ar'C.'tle- Esquire Attorney for Plaintiff 8 North Queen Street P.O. Box 449 Lancaster, PA 17608-0449 (717) 393-9596 I.D. No. 204627